State v. Cornelious

• Decision Date: 03 June 2008
• Docket Number: No. WD 67321.,WD 67321.
• Citation: 258 S.W.3d 461
• Parties: STATE of Missouri, Respondent, v. Otis CORNELIOUS, Appellant.
• Court: Missouri Court of Appeals

258 S.W.3d 461

STATE of Missouri, Respondent, v. Otis CORNELIOUS, Appellant.

No. WD 67321.

Missouri Court of Appeals, Western District.

June 3, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 29, 2008.

James R. Hobbs, Kansas City, MO, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, MO, Shaun Mackelprang, Asst. Attorney General, Jefferson City, MO, for respondent.

Before PAUL M. SPINDEN, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.

JAMES M. SMART, JR., Judge.

Otis Cornelious appeals his convictions for murder in the first degree and armed criminal action. Cornelious claims that the State impermissibly commented on his post-arrest silence in violation of his Fifth Amendment rights. Cornelious also claims that the prosecutor misled the jury as to the burden of proof on self-defense. We affirm.

Background

Cornelious was charged with murder in the first degree in violation of section 565.020¹ and armed criminal action in violation of section 571.015 for events that occurred on the night of October 21, 2003. That night, Danetta Leggs and her brother, Antonio Leggs, were at Danetta's house with Antonio's girlfriend, Aunai Finley. Cornelious, along with his friend Aaron Stanley, came over to Danetta's house. While they were there, Cornelious and Antonio got into an argument. The argument escalated into a physical fight.

The fight dissipated, and Antonio walked into the kitchen. The testimony indicated that Antonio retrieved a knife from somewhere in the kitchen. Danetta testified that Antonio picked up a knife from the dishwasher. She said, however, he then put it back in the dishwasher. Stanley testified that Antonio began rummaging through kitchen drawers and took out a knife. Finley testified that Antonio went to the kitchen and picked up a knife. She could not recall whether it was from the sink or a drawer in the kitchen. All three agreed that Cornelious then left the house and returned moments later with a gun. Cornelious then shot Antonio three times. One of the shots was fatal. None of the three eyewitnesses saw Antonio make any threatening movements toward Cornelious when he returned. They could not agree, however, as to whether Antonio still had the knife in his hand when Cornelious returned to the house.

After the shooting, detectives attempted to find Cornelious in Missouri but were unsuccessful. After receiving information that Cornelious's cell phone was sending and receiving calls in Georgia, the detectives involved the FBI Task Force. The FBI was able to locate Cornelious in Georgia and arrest him. Cornelious had been using the name of his friend Aaron Stanley while in Georgia.

Cornelious was charged with first-degree murder and armed criminal action. A jury trial was held on September 27-29, 2005. The State presented the above-outlined evidence. Cornelious testified in his own defense. He stated that on the night of the shooting, he smelled PCP on Antonio and that Antonio was not acting like himself. Cornelious further testified that when Antonio pulled out the knife, Cornelious walked out the front door, but then came back because his friend Aaron Stanley was still in the house and he was also concerned about the other people in the house. Cornelious testified that when he came back in the house, Antonio came toward him in an attempt to stab him, and Cornelious pulled out his gun and fired in self-defense. Cornelious conceded that there was nothing blocking his access to the exit of the house.

The jury found Cornelious guilty of both first-degree murder and armed criminal action. The court sentenced him to life imprisonment without the possibility of probation or parole for the murder charge and 27 years for the armed criminal action charge, sentences to run concurrently. Cornelious appeals. More necessary facts will be outlined in the argument sections of this opinion.

Commenting on Silence

In his first point Cornelious claims that his Fifth Amendment rights as outlined in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), were violated when the prosecutor impermissibly commented on his post-arrest silence. The four alleged errors are as follows. First, during cross-examination of Cornelious, the prosecutor asked:

And once you got to Georgia, you called the police, hotline, anonymous hotline, and said, "This is an anonymous call. You need to check into that shooting, because I think that guy that did it, did it in self-defense. You need to check that out —"

At that point, defense counsel objected to the line of inquiry and moved for a mistrial. The court sustained the objection but denied the motion for a mistrial. The court instructed the prosecutor to stay away from that line of inquiry, and Cornelious never answered the question.

The second instance occurred again during cross-examination of Cornelious. The following exchange took place:

Q. [by the prosecutor] You remember the FBI agents coming down to Georgia?

A. [by Cornelious] Yes, sir.

....

Q. And then the FBI showed up? And they came to, is it Hollow Tree Apartments where you lived?

A. Yes.

Q. Did you say, "Hello, FBI agents, what can I do for you?"

A. No, I didn't.

Q. No. You ran from them, didn't you?

A. Yes.

No objection was made during this inquiry.

Finally, Cornelious points to two comments made by the prosecutor during his closing argument. Neither comment was objected to. First, the prosecutor declared,

And even if you buy this story of what happened in that home, think about his actions after this homicide. What would a reasonable person have done?

. . . .

Would a reasonable person acting in self-defense run and not call the police? Would a reasonable person then leave town, fly to Georgia and assume a new name and tell everyone that he is Aaron Stanley? A reasonable person acting in lawful self-defense does not do that.

Later the prosecutor argued:

And remember, their [Danetta's and Finley's] statements were taken hours, mere hours after they had just witnessed the man that they both love, be gunned down right before their eyes. Their statements were taken immediately after that homicide. And who's had almost two years to think about what his story is going to be to the 12 of you?

(Emphasis added.)

Because only one of these instances was objected to, it is the only one preserved for appellate review. The standard of review to apply to the first alleged error, then, is that outlined in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). State v. Dexter, 954 S.W.2d 332, 340 n. 1 (Mo. banc 1997). The U.S. Supreme Court held in Chapman, that before a federal constitutional error can be held harmless, the court must declare that it was harmless beyond a reasonable doubt. 386 U.S. at 24, 87 S.Ct. 824.

The other alleged errors were unpreserved and, therefore, can be reviewed only for plain error. Rule 30.20; see Dexter, 954 S.W.2d at 340. Plain error affecting substantial rights may be considered in our discretion if we find that a manifest injustice or a miscarriage of justice has resulted therefrom. Rule 30.20. Plain error can serve as the basis for granting a new trial only if the error was outcome determinative. State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006). "Plain error review is used sparingly and is limited to those cases where there is a clear demonstration of manifest injustice or miscarriage of justice." State v. Smiley, 240 S.W.3d 214, 217 (Mo.App.2007). The appellant has the burden of proving the existence of a manifest injustice or miscarriage of justice. Id.

In all cases, whether the alleged error was preserved or not, we must consider the following factors:

(1) whether the government made repeated Doyle violations, (2) whether any curative effort was made by the trial court, (3) whether the defendant's exculpatory evidence is transparently frivolous, and (4) whether the other evidence of the defendant's guilt is otherwise overwhelming.

Dexter, 954 S.W.2d at 340. We first determine whether any of these specific references actually crossed the Doyle line and, therefore, were erroneous.

The Fifth Amendment to the U.S. Constitution assures that a criminal defendant shall be protected from compulsory self-incrimination. State v. Steger, 209 S.W.3d 11, 17 (Mo.App.2006). This privilege includes the requirement that police give the warnings outlined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which includes the right to remain silent. Steger, 209 S.W.3d at 17. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, the U.S. Supreme Court held that the use of a defendant's post-warning silence for purposes of impeachment was a violation of due process. Steger, 209 S.W.3d at 17.

However, a defendant's pre-warning silence may be used for purposes of impeachment when the circumstances are such that the silence may be probative. State v. Graves, 27 S.W.3d 806, 810 (Mo. App.2000). Generally, this silence is used to impeach the defendant when "a neutral expectancy of an exculpatory statement exists as a result of a defendant's testimony and defendant's silence is probative of inconsistencies in that testimony." Id. (quoting State v. Antwine, 743 S.W.2d 51, 69 (Mo. banc 1987)). In other words, when a defendant offers an explanation for his actions at trial and circumstances suggest that he would naturally have given the explanation earlier if the explanation were true, his previous silence may be used to impeach him if the silence was not the result of an exercise of his Fifth Amendment rights. State v. Myers, 997 S.W.2d 26, 31 (Mo.App.1999).

We have held that where a defendant claims self-defense, there is generally an expectancy that he would have given the explanation prior to trial if the explanation were true. See Antwine, 743 S.W.2d at 69; see also State v. Cummings, 779 S.W.2d 10, 12 (Mo.App.1989). There is no suggestion in the record that, after fleeing to Georgia...