State v. Freeman

• Decision Date: 21 February 2006
• Docket Number: No. WD 64305.,WD 64305.
• Citation: 189 S.W.3d 605
• Parties: STATE of Missouri, Respondent, v. Cedric FREEMAN, Appellant.
• Court: Missouri Court of Appeals

189 S.W.3d 605

STATE of Missouri, Respondent, v. Cedric FREEMAN, Appellant.

No. WD 64305.

Missouri Court of Appeals, Western District.

February 21, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 2, 2006.

As Modified May 2, 2006.

Susan L. Hogan, Kansas City, MO, for appellant.

Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.

Before LOWENSTEIN, P.J., SPINDEN and BRECKENRIDGE, JJ.

PATRICIA BRECKENRIDGE, Judge.

Cedric Freeman appeals his conviction following a bench trial for the class A misdemeanor of resisting arrest, in violation of section 575.150, RSMo 2000, and the class B felony of assault of a law enforcement officer in the second degree, in violation of section 565.082.¹ In his sole point on appeal, Mr. Freeman contends the trial court plainly erred in proceeding to trial without a jury because the court failed to ascertain in open court and on the record that he understood that he was entitled to a jury trial and there is no indication in the record that he knowingly, intelligently, and voluntarily waived his right to a jury trial. Because the record fails to demonstrate with unmistakable clarity that Mr. Freeman waived his right to a jury trial, Mr. Freeman's conviction for the class B felony of assault of a law enforcement officer is reversed. The case is remanded to the trial court for a new trial on that count. Mr. Freeman's conviction for the class A misdemeanor of resisting arrest is affirmed.

Factual and Procedural Background

On February 5, 2002, Mr. Freeman and his girlfriend, Latrice Abercrombie,² were arguing outside Mack Freeman's house because Mr. Freeman would not give Ms. Abercrombie the keys to her car. Ms. Abercrombie did not want Mr. Freeman to drive her car because he had been drinking. When Mack Freeman, who is Mr. Freeman's brother, heard the commotion, he called the police. Officers Maggie McGuire and Michael Brenton of the Kansas City Police Department responded to the call.

When the officers arrived on the scene, they saw Mr. Freeman and Ms. Abercrombie arguing. As the officers approached the couple, Mr. Freeman said, "we don't need you here, everything's fine, we don't need you here, I will give her back her keys." When the officers approached Mr. Freeman, they noticed that he was wearing a "puffy" coat, appeared intoxicated, and had a bottle and a set of keys in his right hand. As the officers came nearer, Mr. Freeman backed up against the car and put his left hand in his pocket. Fearing that Mr. Freeman might be reaching for a weapon, Officer McGuire reached for Mr. Freeman's right hand and Officer Brenton attempted to grab his left hand. As Officer McGuire tried to grab Mr. Freeman's hand, Mr. Freeman swung the bottle at her. As the officers attempted to restrain Mr. Freeman, they gave him verbal commands to put his hands behind his back and Officer Brenton told Mr. Freeman that he was under arrest for disorderly conduct. Mr. Freeman refused to comply with the officers' commands and told the officers, "You are going to have to kill me to get me in handcuffs." In response, Officer McGuire sprayed Mr. Freeman in the face with pepper spray two times. The pepper spray, however, did not appear to have any effect on Mr. Freeman.

After Mr. Freeman was sprayed with pepper spray, he became assaultive and began swinging at the officers as they attempted to get him under control. Because of Mr. Freeman's "puffy" coat, however, the officers were unable to gain control of his arms. As the officers tried to subdue Mr. Freeman, he attempted to grab Officer Brenton's gun and, being unsuccessful in that attempt, he then attempted to grab Officer McGuire's gun. As Officer McGuire struggled to keep Mr. Freeman from grabbing her gun, the two officers and Mr. Freeman fell in a pile on the ground. Officer McGuire ended up on the bottom of the pile, Mr. Freeman in the middle, and Officer Brenton on the top. As Officer McGuire attempted to get Mr. Freeman off of her, he swung at her face and chest. At that time, Mack Freeman came running out of his house and yelled, "Don't kill my brother" and "I am here to help, I am here to help." Mack Freeman got on top of the pile and attempted to grab Mr. Freeman's arms and assist the officers in restraining his brother.³

After Mack Freeman joined the fracas, Officer McGuire tried to restrain Mr. Freeman with a lateral vascular neck hold. As she attempted the restraint, however, Mr. Freeman bit her hand and would not let go. To prevent a more severe bite, Officer McGuire forced her hand further into Mr. Freeman's mouth. Officer McGuire then began to strike Mr. Freeman in the head with her knee in an attempt to get him to release her hand. At this point, additional officers arrived on the scene. One officer pulled Mack Freeman from the pile, while others subdued Mr. Freeman and got Officer McGuire's hand out of Mr. Freeman's mouth. The officers arrested Mr. Freeman for disorderly conduct.

Immediately after having her hand removed from Mr. Freeman's mouth, Officer McGuire's hand began to swell. Mr. Freeman's teeth had broken the skin on her hand and her skin was "pulled up toward the top" of her hand. As a result of the bite, Officer McGuire suffered nerve damage, losing sensation in her middle finger for five months.⁴

Mr. Freeman was ultimately charged with one count of the class A misdemeanor of resisting or interfering with arrest, in violation of section 575.150, and one count of the class B felony of assault of a law enforcement officer in the second degree, in violation of section 565.082.1(1). Following a bench trial, the trial court found Mr. Freeman guilty on both counts. Thereafter, Mr. Freeman filed a motion for new trial, claiming that the trial court erred in finding him guilty of assault on a police officer because the State failed to prove that he inflicted "serious physical injury" on Officer McGuire. The trial court denied Mr. Freeman's motion for a new trial and sentenced Mr. Freeman, as a prior and persistent offender, to concurrent terms of one year in jail for resisting arrest and ten years in prison for second degree assault of a law enforcement officer. Mr. Freeman filed this appeal.

Plain Error Committed In Proceeding to Trial Without a Jury

In his sole point on appeal, Mr. Freeman asserts the trial court plainly erred in proceeding to trial, without a jury, in violation of his fundamental right to a jury trial. In particular, Mr. Freeman claims that because the trial court failed to ascertain in open court and on the record that he understood that he was entitled to a jury trial and that he affirmatively waived that right, the record did not contain any proof that he knowingly, intelligently, and voluntarily waived his right to a jury trial. In seeking plain error review of his claim, Mr. Freeman acknowledges that he made no objection to being tried by the court and failed to include this issue in his motion for new trial. Nevertheless, "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Rule 30.20. Thus, this court will review Mr. Freeman's claim for plain error.

This court conducts a two-step review for plain error. State v. Bode, 125 S.W.3d 924, 927 (Mo.App. W.D.2004). In the first step, this court examines the record to determine whether the trial court committed error, affecting substantial rights, that was "evident, obvious, and clear." Id. If such error is discovered, this court moves on to the second step. Id. In the second step, this court must determine whether a manifest injustice or a miscarriage of justice resulted from the error. Id. Only if the error caused such an injustice will this court reverse the conviction. Id. Mr. Freeman bears the burden of demonstrating the existence of a manifest injustice or miscarriage of justice. State v. Franklin, 144 S.W.3d 355, 359 (Mo.App. S.D.2004).

In Missouri, a criminal defendant "has both a federal and state constitutional right to have a jury decide his guilt or innocence." State v. Mitchell, 145 S.W.3d 21, 23 (Mo.App. S.D.2004) (citing U.S. CONST. amend. VI and XIV; Mo. CONST. art. I, section 22(a)). A criminal defendant, however, may "`waive his constitutional right to a jury trial provided such waiver is voluntarily, knowingly and intelligently made.'" Id. (citations omitted). In regard to a defendant's constitutional right to a jury trial, Rule 27.01 provides:

(a) All issues of fact in any criminal case shall be tried by a jury to be selected, summoned and returned in the manner prescribed by law, unless trial by jury be waived as provided in this Rule.

(b) The defendant may, with the assent of the court, waive a trial by jury and submit the trial of any criminal case to the court, whose findings shall have the force and effect of the verdict of a jury. In felony cases such waiver by the defendant shall be made in open court and entered of record.

In felony cases, "[u]nder the Constitution and Rule 27.01(b), a waiver by the accused and an assent of the court must appear from the record with unmistakable clarity." State v. Bibb, 702 S.W.2d 462, 466 (Mo. banc 1985). In the absence of such an unmistakably clear waiver in a felony case, a defendant is entitled to a remand for a new trial under plain error review. State v. Cooper, 108 S.W.3d 101, 106 (Mo. App. E.D.2003). See also Mitchell, 145 S.W.3d at 25; State v. Hamilton, 8 S.W.3d 132, 134 (Mo.App. S.D.1999); State v. Rulo, 976 S.W.2d 650, 653 (Mo.App. S.D. 1998). In misdemeanor cases, however, while a defendant is entitled to a jury trial, if no jury trial is demanded, the case may proceed to trial before the court. Section 543.200.⁵

In this case, Mr. Freeman was charged with the class A misdemeanor of resisting arrest and the class B felony of second degree assault of a law enforcement officer. While Mr....