State v. Culpepper
| Decision Date | 09 November 2016 |
| Docket Number | No. SD 34231,SD 34231 |
| Citation | 505 S.W.3d 819 |
| Parties | STATE of Missouri, Respondent, v. Eugene CULPEPPER, Jr., Appellant. |
| Court | Missouri Court of Appeals |
Appellant's Attorney: Ellen H. Flottman, of Columbia, Missouri
Respondent's Attorney: Chris Koster, Attorney General, and Nathan J. Aquino, Assistant Attorney General, of Jefferson City, Missouri
Eugene Culpepper, Jr. ("Culpepper"), appeals the judgment of the trial court following his convictions for the class B felony of first-degree assault, the unclassified felony of armed criminal action, and the class C felony of second-degree assault. Culpepper challenges the judgment of the trial court in twelve points on appeal. Finding no merit to any of Culpepper's points, we affirm the judgment of the trial court.
"Appellate review of sufficiency of the evidence is limited to whether the state has introduced sufficient evidence from which a reasonable juror could have found each element of the crime beyond a reasonable doubt." State v. Hosier , 454 S.W.3d 883, 898 (Mo. banc 2015). This Court "does not reweigh the evidence but, rather, considers it in the light most favorable to the verdict and grants the state all reasonable inferences." Id. All evidence and inferences contrary to the verdict are disregarded. State v. Nash , 339 S.W.3d 500, 509 (Mo. banc 2011). The following summary of the relevant facts is presented in accordance with these governing principles.
Jessica Duck ("Duck") and Jason Durgan ("Durgan") were in a long and contentious romantic relationship. On February 9, 2015, Duck and Durgan rented a motel room at the Battlefield Inn ("the motel") in Springfield. In the late evening of February 9, 2015, or early morning of February 10, 2015, Jackie Merryman ("Merryman")1 and Culpepper arrived at the motel room. Thereafter, Culpepper and Durgan got into an argument. Culpepper threatened to shoot Durgan with a pistol, and when Duck tried to intervene, Culpepper shot her in the wrist. Culpepper then left the motel.
The police were called. When Officer Robert Douglas ("Officer Douglas"), of the Springfield Police Department, arrived at the motel room, Duck told him that Culpepper shot her.
The police found a gun lying in the grass between the pool and the fence of the motel. The police also found a bullet hole in the motel room wall and a shell casing on the motel room floor. Police found Culpepper's EBT2 card on a table in the motel room.
Culpepper was arrested on March 3, 2015, three weeks after the shooting, when a vehicle Culpepper was riding in was stopped for having a broken taillight. When the driver got out of the vehicle, Culpepper jumped into the driver's seat and drove away. Culpepper was apprehended after a brief chase, and officers found illegal drugs in the vehicle.
Culpepper was charged by amended information, as a persistent offender, with the class B felony of assault in the first degree (Count I), pursuant to section 565.050; the unclassified felony of armed criminal action (Count II), pursuant to section 571.015; and the class C felony of assault in the second degree (Count III), pursuant to section 565.060.3
Before trial, defense counsel told the trial court that he had an ethical dilemma if the State called Durgan as a witness. He indicated that he had not prepared for Durgan to be a witness, that Culpepper had refused to ask for a continuance, and that he might not be prepared to "effectively represent [Culpepper's] interests" as a result. The prosecutor stated that Durgan was not going to be called as a witness. Defense counsel did not object, but pointed out to the trial court that Culpepper did not want a continuance. The trial court stated it would not prevent the witness from testifying.
Also prior to trial, the State filed a motion in limine seeking to preclude the introduction of evidence regarding any incidents between Duck and Durgan that did not result in a conviction, and to preclude the introduction of any evidence of any orders of protection that Duck had involving Durgan. Culpepper's theory of the case was that it was Durgan who shot Duck, and not Culpepper. During the pretrial conference, the State argued that such evidence was inadmissible because there was no direct evidence linking Durgan to the crime. The trial court declined to make an explicit pretrial ruling, but in response to the argument of Culpepper's defense counsel that Culpepper was the "scapegoat," the trial court responded:
Well, what about the point that nobody says—there's no witness to establish that anybody but your client did the shooting? ... [Y]our client can testify and tell his side of the story [that Durgan was the shooter.] Then you can get into all that. ... Well, I mean, you'll probably have some leeway; I just don't know that you're going to have as much as you want. ... And [Culpepper's] offer of proof may change my mind.
A jury trial commenced on July 28, 2015. Culpepper did not testify. Duck testified that prior to the shooting, she had gone into the motel bathroom to take a bath. She testified she heard Culpepper and Durgan arguing, and then heard someone get violently slapped. Duck indicated that, at this point, she got dressed and exited the bathroom. She testified that after Culpepper threatened to shoot Durgan, she moved to Durgan's side. Culpepper then discharged the pistol into her arm.
Duck indicated that when Officer Douglas arrived on the scene, she told him that Culpepper had shot her. She testified she was "kind of shocked that he did it because—I was just shocked."
Before his cross-examination of Duck, Culpepper's attorney made an offer of proof concerning the ex parte order of protection Duck had obtained against Durgan in October 2014 because of violent behavior toward her in the presence of her children. The ex parte order of protection was still in effect at the time of the shooting. Duck testified that Durgan had been violent with her on another occasion in August 2012. Duck denied she was aware of Durgan's previous convictions for domestic assault, assault, and harassment prior to her relationship with him. After the offer of proof, the trial court made no further ruling. Culpepper's attorney then began his cross-examination of Duck.
Before trial on the second day, Culpepper's defense counsel—anticipating the testimony of Officer Douglas—made an objection to Officer Douglas being allowed to recite Duck's statement to him that Culpepper was the one who shot her. Defense counsel argued that it was hearsay and did not fall under any hearsay exceptions; that if the State intended to say that the statement was an "excited utterance," it would not qualify as such because there was sufficient time between the shooting and when Officer Douglas arrived for Duck and Durgan to have fabricated a story; and that it was also cumulative, improper bolstering, and not legally admissible because its probative value outweighed its prejudice. The State rebutted by arguing that the statement was spontaneous and was made at a time of stress and physical pain. The trial court overruled the objection and allowed the testimony.
Officer Douglas testified he arrived at the scene within five minutes of the 911 call. When he arrived, Durgan was in the parking lot "frantically" flagging him down. When the prosecutor asked Officer Douglas what Durgan initially told him in the parking lot, defense counsel made a hearsay objection. The objection was overruled. Officer Douglas testified that Durgan told him his girlfriend had been shot. Upon entering the motel room, Officer Douglas observed Duck on the bed bleeding from a gunshot wound
to her right wrist. Officer Douglas testified that Duck told him that Culpepper had shot her.
Deputy Andrew Webb ("Deputy Webb"), with the Greene County Sheriff's Department, was called to testify. Before the State's examination of Deputy Webb could begin, Culpepper's attorney objected to any testimony regarding Culpepper's arrest approximately three weeks after the shooting. Culpepper's attorney argued that Culpepper's flight did not show a consciousness of guilt; Culpepper was unaware there was a probable cause warrant out for his arrest; it was not relevant, material, and was evidence of a prior bad act in which charges were still pending; and its prejudicial value outweighed its probative value. The State argued that Culpepper's arrest was close in time to the shooting, and it was evidence of flight in consciousness of guilt. The trial court overruled the objection.
Deputy Webb then testified that a car Culpepper was riding in was stopped for a traffic violation. Culpepper gave a false name, and when the driver of the vehicle was removed from the car, Culpepper jumped into the driver's seat and drove away. Culpepper was arrested, and a search of the vehicle revealed crack cocaine in the front seat near the driver.
Merryman appeared to testify, but was found to be impaired and was released. The parties agreed that her videotaped deposition, taken on July 22, 2015, could be played for the jury in lieu of her live testimony. Defense counsel stated he believed Merryman's videotaped statement, taken on February 10, 2015, would also be played during the testimony of Detective Brandon Cole ("Detective Cole").
State's Exhibit 32, the video deposition of Merryman, was played for the jury. In that deposition, Merryman stated there were four people in the motel room just before the gunshot, including herself, and specifically identified Culpepper by name as being there as well. However, Merryman stated she did not remember speaking with Detective Cole on the morning of the shooting, denied making various specific statements at that time, and also denied making specific statements during any interviews after the shooting.
Detective Cole...
To continue reading
Request your trial
-
State v. Townsend
...that the trial court's abuse of discretion was ‘so prejudicial that it deprived the defendant of a fair trial.’ " State v. Culpepper , 505 S.W.3d 819, 828 (Mo. App. S.D. 2016). Under certain circumstances, we may review unpreserved errors under our plain error standard of review. See State ......
-
State v. Nickels
...appellate review, the claim in the motion for new trial must be the same as the claim on the appeal. See, e.g., State v. Culpepper, 505 S.W.3d 819, 831 (Mo. App. S.D. 2016) (citing State v. Howery, 427 S.W.3d 236, 248 (Mo. App. E.D. 2014) ) (noting "[a]n allegation of error in a motion for ......
-
State v. Peirano
...error was included in Defendant's motion for new trial, thereby preserving the issue for appeal. See Rule 29.11(d); State v. Culpepper , 505 S.W.3d 819, 831 (Mo. App. 2016) ; see also State v. Hood , 521 S.W.3d 680, 688 (Mo. App. 2017).5 Evidence may be admissible if it tends to establish: ......
-
State v. Hood, SD 34258
...made at trial, the same objection must be set out in the motion for new trial and must be carried forward on appeal. State v. Culpepper, 505 S.W.3d 819, 831 (Mo. App. 2016). A motion for new trial is not necessary in a criminal case tried without a jury in order to preserve any issue for ap......