State v. Garner, WD

• Decision Date: 15 September 1998
• Docket Number: No. WD,WD
• Citation: 976 S.W.2d 57
• Parties: STATE of Missouri, Respondent, v. Santino J. GARNER, Appellant. 53839.
• Court: Missouri Court of Appeals

Page 57

976 S.W.2d 57

STATE of Missouri, Respondent, v. Santino J. GARNER, Appellant.

No. WD 53839.

Missouri Court of Appeals Western District.

Sept. 15, 1998.

Emmett D. Queener, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Alana M. Barragan-Scott, Asst. Atty. Gen., Jefferson City, for respondent.

Before SMART, P.J., and ELLIS and HOWARD, JJ.

HOWARD, Judge.

Santino Garner appeals from convictions of robbery in the first degree, § 569.020, RSMo 1994, and armed criminal action, § 571.015, RSMo 1994. He contends that the trial court erred by failing to grant him a new trial on the basis of newly discovered evidence, and by overruling his challenge to the State's use of peremptory strikes to remove three black women from the jury panel.

Affirmed.

On the afternoon of February 22, 1996, Dennis Compos was standing beside his 1966 Chevrolet Bel Air, which was parked along Independence Avenue in Kansas City, Missouri. As Compos talked with a friend named Arthur Walker, a dark-colored Ford pulled up behind his car, blocking it in. One of the Ford's three occupants, whom Compos identified at trial as Garner, got out and said hello to Walker, and Compos concluded that the two were acquainted. Garner then asked Compos if he wanted to sell his Bel Air. When Compos declined, Garner returned to the Ford and Compos thought he was going to leave. Instead, Garner reapproached Compos as the Ford drove off, and stuck a gun in Compos' side. Compos testified at trial that he thought the weapon was some kind of sawed-off shotgun. Garner then got in Compos' car and drove off.

A short time later, Compos came across a police officer and told him of the carjacking. The officer broadcast a description of the stolen vehicle, which another officer then saw traveling westbound on 12th Street. As the officer followed the stolen vehicle, he could see the face of Garner, its sole occupant, in the Bel Air's rearview mirror, and the officer could tell that Garner was nervous. When the officer activated his lights and siren, the Bel Air accelerated, leading the officer on a chase at up to 60 miles per hour in a 35 miles per hour zone. Eventually, the Bel Air crashed into a retaining wall and telephone pole, and Garner got out and started running. Garner was apprehended on foot, and three shotgun shells were found in his pants pocket.

Garner testified in his own defense at trial, and denied robbing Compos of his car. Garner claimed that, prior to the incident, he had agreed to sell Walker a set of four chrome wheels for $2,200.00. He stated that later he took the bus to meet Walker to finish the deal, and found Walker with Compos, whom he assumed to be the real buyer of the wheels. According to Garner, Compos wanted to buy the wheels, but didn't have the money at that time, so he gave Garner the car as collateral until he could acquire more funds. Garner claimed that Compos handed him the keys and he drove away.

Garner testified that he later attempted to elude the police because he knew there was an outstanding warrant for his arrest for a parole violation, and also because he was afraid that Compos might have given him a stolen car. Garner also claimed that he did not know how the police could have found shotgun shells in his pocket, as he didn't have any in his possession.

Garner was convicted of first-degree robbery and armed criminal action, and was sentenced as a prior and persistent offender to concurrent prison terms of twenty and ten years, respectively. Garner timely filed a motion for new trial, but the motion did not contain a claim based upon newly discovered evidence. It was not until the sentencing hearing, which took place about four months after Garner's trial, that such a claim was made.

At the sentencing hearing, Garner presented the testimony of Thomas Pace, who stated that, a month earlier, he had encountered Garner in jail while Garner was awaiting sentencing in this case and Pace was awaiting trial in an unrelated prosecution. Pace contended that his conversation with Garner had jogged his memory, and that he had recalled witnessing the encounter which led to Garner's taking possession of Compos' automobile.

Pace claimed that he was present with Compos and Walker when Garner walked up, and that he had stepped away from them as they talked. Nevertheless, he said, he could hear pieces of their conversation, and he described what he heard as follows:

Q. Okay. From the odds and ends that you did hear, what part of the conversations do you recall?

A. Like he asked, you know, did he have the money for his rims, cause--and I, you know, I'm not for sure, but Dennis, I know he bought some rims, but I don't know where exactly from who.

Q. Okay.

A. You know, but--did he have the money for some rims. And, I was, you know, referring to the rims on his car. So, then, you know, they talked like, "No, I don't have it but I could pay you later."

Q. Okay, did you hear anything else?

A. Uh, then they had a little conversation like, you know, kept on talking and he said that he needed, you know, some money now, you know, not all, just, you know, pay him little by little.

A. Who said that?

A. That's what he, you know--

Q. Who said that?

A. He was referring--Santino. He was like, in other words he said, you know, if he didn't pay him the full amount, he needed to pay him little by little.

Q. What did they say next?

A. And, then, they kept talking and the next thing you know, he got--they gave, he got into the car and they all, you know, went off their separate ways.

At the close of the hearing, the trial court denied Garner's claim for relief on the basis of newly discovered evidence. In so doing, the trial court noted that, after observing Pace's testimony, it found him to be without credibility as a witness. The court also determined that, since Pace's testimony was that he knew Garner from belonging to the same church years earlier, and that he was present at the time of the incident, Garner would have been aware of him, and in the exercise of diligence should have subpoenaed him to appear at trial.

In his first point on appeal, Garner claims that the trial court erred by failing to grant him a new trial on the basis of newly discovered evidence. Garner acknowledges that his claim of newly discovered evidence was not raised in a timely fashion, and seeks review on the basis of plain error.

Missouri procedures do not provide a means for a criminal defendant to present claims of newly discovered evidence to the judiciary after the time to file a Rule 29.11 motion for a new trial have expired. State v. Young, 943 S.W.2d 794, 799 (Mo.App. W.D.1997). An untimely claim of newly discovered evidence preserves nothing for review, and, procedurally, is a nullity. Id. The only formally authorized means by which a criminal defendant with a late claim of newly discovered evidence can seek relief is by application to the governor for executive clemency or pardon. Id.

This court, however, has recognized that, in "extraordinary" cases, it may remand the case as plain error pursuant to Rule 30.20 or to this court's inherent powers so that the defendant can present his new evidence. Id. Such extraordinary circumstances are where the newly discovered evidence would have completely exonerated the defendant. Id.

This is not the extraordinary kind of case which merits the relief that Garner is seeking. First, we note that the truth...