State v. Cross

• Decision Date: 30 September 2013
• Docket Number: No. SD 31974.,SD 31974.
• Citation: 421 S.W.3d 515
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Dale Gene CROSS, Defendant–Appellant.
• Court: Missouri Court of Appeals

421 S.W.3d 515

STATE of Missouri, Plaintiff–Respondent,

v.Dale Gene CROSS, Defendant–Appellant.

No. SD 31974.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 30, 2013.

Ellen H. Flottman, Columbia, MO, for appellant.

Dora A. Fichter, Jefferson City, MO, for respondent.

MARY W. SHEFFIELD, J.

Dale Gene Cross (“Defendant”) appeals his convictions for second-degree murder, second-degree arson, and armed criminal action. See §§ 565.021, 569.050, 571.015.¹He raises two points on appeal, claiming (1) the trial court abused its discretion in excluding “the testimony of John Matney about what Danny Snethern told him” and (2) the trial court erred in denying his motion based on his allegation that the State violated Rule 25.03² by failing to disclose recordings of telephone calls Defendant made while he was incarcerated awaiting trial. These points are without merit, and Defendant's convictions and sentences are affirmed.

Factual and Procedural History

Annette Cross–Sanford (“Cross–Sanford”) is Defendant's sister. Cross–Sanford had two children with Andrew Day (“Victim”). Cross–Sanford lived in Lawrence, Kansas; Defendant lived in Hannibal, Missouri; and Victim lived in Mountain View, Missouri. During August 2009, Cross–Sanford's daughter reported to Defendant that her “private” hurt after she returned from visitation with Victim.

On September 14, 2009, Defendant's mother, Joann Cross (“Cross”), purchased a handgun at a pawn shop. Cross–Sanford drove with her children to Hannibal. The children remained with Cross at Defendant's home. Cross–Sanford and Defendant put on black hooded sweatshirts and drove to Victim's home.

At Victim's home, Defendant left the gun on the roof of the car while Defendant and Cross–Sanford spoke with Victim. A confrontation ensued with Victim shoving Defendant. Defendant went back to the car to retrieve the gun. Defendant then shot Victim and lit the couch on fire.

One of Victim's neighbors drove by Victim's home at about 5:30 a.m. on September 15, 2009, noticed that Victim's home was on fire, and called 911. After the fire was extinguished, Victim's body was found in the remains of the home. Victim had been shot four times, twice in the head and twice in the chest.

Defendant was subsequently arrested. After being advised of his Miranda³ rights, Defendant admitted shooting Victim and setting the home on fire.

Defendant was charged with first-degree murder, first-degree arson, and armed criminal action. The jury found Defendant guilty of second-degree murder, second-degree arson, and armed criminal action. In a subsequent proceeding, the jury recommended sentences of 25 years for second-degree murder, 7 years for second-degree arson, and 25 years for armed criminal action. The judge sentenced Defendant in accordance with the jury's recommendation, and this appeal followed.

Discussion

Point I: Hearsay

In his first point, Defendant claims the trial court erred in excluding testimony from John Matney (“Fire Marshal”) about statements made by a person named Danny Snethern (“Snethern”). Defendant argues Snethern's statements were admissible under the residual hearsay exception. Defendant's argument is without merit because he was not prejudiced by the exclusion of the evidence.

The following additional facts are relevant to the resolution of this claim. Prior to trial, Defendant filed a “Motion to Permit Introduction of Eyewitness Statement by Deceased Eyewitness.” At the hearing regarding the motion, Defendant presented Fire Marshal's testimony. During the course of his investigation, Fire Marshal interviewed Snethern. On the morningof the fire, Snethern saw smoke coming from Victim's home and observed a female run from the back of Victim's home. He also noticed a car parked outside with a man in the driver's seat. Snethern saw the car drive off with the female in the passenger seat. Defendant also presented Snethern's death certificate at the hearing. Defense counsel argued the evidence was admissible under the residual hearsay exception. The judge ruled the evidence would not be admitted.

At trial after the State rested its case, Defendant again attempted to introduce the evidence of Snethern's statements. The parties agreed the testimony at the pre-trial hearing could be used as the offer of proof. The trial court maintained its ruling and refused to admit Fire Marshal's statement containing Snethern's statement.

We review trial court decisions regarding the admission or exclusion of evidence for abuse of discretion. State v. Norman, 145 S.W.3d 912, 919 (Mo.App.S.D.2004). “A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” State v. White, 329 S.W.3d 710, 712 (Mo.App.S.D.2010). Furthermore, “[w]e will not reverse a judgment because of error in the admission or exclusion of evidence unless the error was so prejudicial that it deprived the defendant of a fair trial.” State v. Collis, 139 S.W.3d 638, 641 (Mo.App.S.D.2004).

“Hearsay statements are out-of-court statements used to prove the truth of the matter asserted[.]” State v. Harrison, 213 S.W.3d 58, 76 (Mo.App.S.D.2006) (quoting State v. Lockett, 165 S.W.3d 199, 204 (Mo.App. E.D.2005)). Testimony regarding hearsay statements is not admissible unless it fits into a recognized exception. State v. Newsom, 299 S.W.3d 784, 788–89 (Mo.App.S.D.2009). The residual hearsay rule as applied in the federal courts and several other jurisdictions, “allows admission of statements not specifically covered by any other exception when they have equivalent circumstantial guarantees of trustworthiness.” State v. Freeman, 269 S.W.3d 422, 428 (Mo. banc 2008). However, the Supreme Court of Missouri “has never adopted the residual hearsay exception rule[.]” Id.

Nevertheless, we need not reach the issue of whether the statements were admissible because Defendant suffered no prejudice as a result of their exclusion. “Although there is a rebuttable presumption that excluded admissible evidence is prejudicial, this presumption is rebutted when the error is harmless beyond a reasonable doubt.” Norman, 145 S.W.3d at 919–20. In determining whether the exclusion of evidence was harmless beyond a reasonable doubt, “we take special note of all evidence presented, the nature of the charge and the role the excluded evidence would have played in the defense's theory.” Id. at 920. Where the excluded evidence would have been cumulative of evidence already before the jury, the exclusion of the evidence is harmless beyond a reasonable doubt. Id. See also State v. Robinson, 108 S.W.3d 689, 696 (Mo.App.W.D.2003); Collis, 139 S.W.3d at 641.

In the present case, Snethern's statements were cumulative of evidence admitted at trial. The jury heard a recording of the interview between the police and Defendant. During that interview, the officers told Defendant a witness had reported seeing Cross–Sanford run from the back of Victim's home on the morning of the crimes. This evidence was substantiallythe same as Snethern's statements to Fire Marshal about seeing a female run from the back of Victim's home on the morning of the crimes. Hence, Fire Marshal's testimony would have been cumulative and Defendant was not prejudiced by the trial court's decision to exclude that testimony.

Defendant's first point is denied.

Point II: Discovery Violation

In his second point, Defendant argues the trial court erred in overruling his motion for new trial based on the State's alleged discovery violations. More specifically, he claims the State failed to disclose recordings of phone calls Defendant made while incarcerated pending trial. Defendant's point is without merit because earlier disclosure would not have created a reasonable probability of a different result at trial.

The following additional facts are relevant to the disposition of this point. Prior to trial, Defendant filed a motion seeking discovery from the State. Among the many things requested in that motion were “[t]he names and last known addresses of persons whom the State intends to call as witnesses at any hearing or trial, together with their written or recorded statements and existing memoranda reporting or summarizing part or all of their oral statements [,]” and “[a]ny and all written or recorded statements and the substance of any oral statements made by the defendant or by any codefendant, a list of witnesses to the making, and a list of witnesses to the acknowledgment of such statements and the last known addresses of such witnesses[.]”

After Defendant had been found guilty and had filed his motion for new trial, Defendant filed an additional motion titled “Motion for Relief Pursuant to 25.18 for Discovery Violations or in the Alternative for Consideration of Whether Defendant Received Effective Assistance of Counsel Due to States [sic] Failure to Disclose.” The trial court held a hearing on the motion on December 22, 2011.

At the hearing, the lead prosecutor on Defendant's case testified he received a letter from Defendant in October 2009. In the letter, Defendant stated a person named “Jimmy” was going to give him an alibi. The prosecutor then requested that his investigator listen to the recordings of Defendant's telephone calls from the jail to determine if Defendant was attempting to get someone to change their testimony. The investigator listened to numerous phone calls and found nothing of evidentiary value. He reported his findings to the prosecutor. The prosecutor did not provide the recordings to the defense. After the guilt phase of trial, but before the penalty phase of trial, Defendant's attorney learned about the recordings.

At the hearing on the motion for sanctions, Defendant's attorney also introduced CDs containing many hours of recorded telephone calls. The calls primarily concerned family matters and...