State v. Dudley

• Decision Date: 10 April 2001
• Citation: 51 S.W.3d 44
• Parties: (Mo.App. W.D. 2001) State of Missouri, Respondent, v. Mark L. Dudley, Appellant. WD58665 0
• Court: Missouri Court of Appeals

51 S.W.3d 44 (Mo.App. W.D. 2001)

Missouri Court of Appeals Western District

State of Missouri, Respondent, v. Mark L. Dudley, Appellant.

WD58665

04/10/2001

Appeal From: Circuit Court of Boone County, Hon. Ellen S. Roper

Counsel for Appellant: Emmett D. Queener

Counsel for Respondent: Stephanie Morrell

Opinion Summary: Mark L. Dudley appeals the judgment of his convictions and sentences in the Circuit Court of Boone County following a jury trial for second degree felony murder, section 565.021, second degree burglary, section 569.170, and two counts of armed criminal action (ACA), section 571.015. The appellant was sentenced, as a prior and persistent offender, section 558.016, to consecutive terms of imprisonment in the Missouri Department of Corrections of life for second degree felony murder; twenty years for burglary; and twenty-five years for each count of ACA.

The appellant raises three points on appeal. In Point I, he attacks his conviction for ACA based on the underlying felony of second degree burglary. In Points II and III, he attacks all four of his convictions. In Point I, he claims that the trial court erred in overruling his motion for judgment of acquittal at the close of the State's evidence as to the charge of ACA based on the underlying felony of burglary in the second degree, because the State failed to prove beyond a reasonable doubt an essential element of the offense in that the evidence was insufficient to prove, as required, that the burglary, on which the ACA conviction was predicated, was committed by, with, and through the use, aid, and assistance of a deadly weapon. In Point II, he claims that "the trial court abused its discretion and plainly erred in allowing the State to present evidence and to argue in closing argument that a witness had agreed to testify 'truthfully' in exchange" for a favorable plea agreement from the State because it constituted improper personal vouching by the State for the witness's credibility in that it implied that the State had information concerning the witness's credibility that was not available to the jury. In Point III, he claims that the trial court erred in refusing to allow him to question a State's witness about being known on the street as "Killer K" because it was proper impeachment of the witness.

AFFIRMED IN PART; REVERSED IN PART.

Division III holds: As to the appellant's claim in Point I, the State concedes the point and acquiesces in the reversal of the appellant's conviction for one count of ACA, which was based on his conviction for second degree burglary. The appellant's conviction for second degree burglary was based on his "unlawfully entering" Nickens' house. However, to convict on the related charge of ACA, the State was required to show that he committed this felony "by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon." Here, the State concedes that there is nothing in the record from which a reasonable jury could infer that he entered the victim's house unlawfully by, with, or through the use, aid, or assistance of the gun. Thus, the State failed to prove each and every element of ACA based on burglary in the second degree, and the appellant's conviction thereof cannot stand and must be reversed.

As to Point II, he claims that the State improperly vouched for the credibility of its main witness against him, Harris, by repeatedly referring in voir dire, during direct examination and in closing arguments to the fact that Harris agreed to testify "truthfully" in exchange for a favorable plea agreement from the State because such statements implied that the State had information concerning Harris that was not available to the jury such that manifest injustice or a miscarriage of justice occurred.

The appellant's claim of error as to the State's actions during voir dire is not preserved for appellate review because it was not raised in his point relied on, only in the argument portion of his brief. With respect to his claim of error concerning the State's references during direct examination and closing argument, he concedes that he failed to object at trial, such that these errors are not preserved either. Nonetheless, we will review this point using the plain error standard from Rule 30.20. Thus, we must first decide whether the appellant's claim, on its face, demonstrates that plain error occurred.

Legitimate limited references to the terms of the plea agreement are not enough to constitute improper vouching, because the State is allowed to elicit testimony about its terms, attack the credibility of the witness because of it, and even refer to the plea agreement of a state witness in an attempt to deflect defense counsels' use of the agreement to attack the witness's credibility. In order to rise to the level of improper vouching, the State would have to make repeated and persistent references to the plea agreement implying that the accuracy of the witness has been verified by the State, or by telling the jury that the State's recommendation depends on whether the State personally believes the witness.

The record indicates that the State's questioning during voir dire consisted of attempts to elicit from prospective jurors any preconceived notions that they might have concerning the law and to ask specifically whether they would refuse to consider the testimony of State's witnesses with the benefit of a plea agreement, which is acceptable, inasmuch as plea agreements are "double-edged swords," that not only support a witness's credibility by showing an interest to testify truthfully but also impeach a witness's credibility by showing an interest in testifying favorably for the State, regardless of the truth.

As to the State's references to "truthful testimony" at the beginning of its direct examination of Harris, the record reflects that only one reference was made by the State, in an apparent attempt to deflect the appellant's counsel's later use of the agreement to attack Harris's credibility. Furthermore, on cross-examination, the appellant's counsel did vigorously and repeatedly attack Harris's credibility based on his plea agreement and its being a motivation for testifying falsely. Thus, the State's reference during its direct examination of Harris did not constitute improper vouching, but was an acceptable method of dealing with the "double-edged" nature of the plea agreement.

As to the appellant's claim regarding the State's remarks in closing arguments, the record reflects that there was only one reference during closing argument to "truthful testimony" and it was merely a restatement of the terms of the plea agreement, designed to remind the jury of its duty to fairly judge Harris's credibility, which was acceptable. Thus, none of the incidents facially establish that plain error occurred because none rose to the level of improper vouching.

As to Point III, the appellant argued at trial that he should be allowed to question Harris about his street name being "Killer K," because such evidence was admissible and relevant in that "it would lead to a conclusion regarding credibility." The State objected contending that it went solely to Harris's reputation and demonstrated his propensity for violence, rather than his reputation for truthfulness and veracity. The trial court sustained the State's objection, but the appellant did not make an offer of proof. An offer of proof is required to allow the trial court to consider the testimony in context and to make an informed ruling as to its admissibility. Since no offer of proof was made by the appellant, we would have to speculate, which we cannot do, as to whether Harris, if allowed to testify, would have testified that his street name was "Killer K." Without knowing what Harris's testimony would have been, we logically cannot proceed to determine what effect, if any, the introduction of such evidence could have had on the jury's verdict.

Edwin H. Smith, Judge

Mark L. Dudley appeals the judgment of his convictions and sentences in the Circuit Court of Boone County following a jury trial for second degree felony murder, section 565.021,¹ second degree burglary, section 569.170, and two counts of armed criminal action (ACA), section 571.015. The appellant was sentenced, as a prior and persistent offender, section 558.016, to consecutive terms of imprisonment in the Missouri Department of Corrections of life for second degree felony murder; twenty years for burglary; and twenty-five years for each count of ACA.

The appellant raises three points on appeal. In Point I, he attacks his conviction for ACA based on the underlying felony of second degree burglary. In Points II and III, he attacks all four of his convictions. In Point I, he claims that the trial court erred in overruling his motion for judgment of acquittal at the close of the State's evidence, as to the charge of ACA based on the underlying felony of burglary in the second degree, because the State failed to prove beyond a reasonable doubt an essential element of the offense in that the evidence was insufficient to prove, as required, that the burglary, on which the ACA conviction was predicated, was committed by, with, and through the use, aid, and assistance of a deadly weapon. In Point II, he claims that "the trial court abused its discretion and plainly erred in allowing the State to present evidence and to argue in closing argument that a witness had agreed to testify 'truthfully' in exchange" for a favorable plea agreement from the State, because it constituted improper personal vouching by the State for the witness' credibility in that it implied that the State had information concerning the witness' credibility that was not available to the jury. In Point III, he claims that the trial court erred in refusing to allow him to question a State's witness about being known on the street as "Killer K," because it was proper impeachment of the witness.

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