State v. Greenlee, ED 93792.
| Citation | 327 S.W.3d 602 |
| Decision Date | 21 December 2010 |
| Docket Number | No. ED 93792.,ED 93792. |
| Parties | STATE of Missouri, Respondent,v.Richard D. GREENLEE, Appellant. |
| Court | Court of Appeal of Missouri (US) |
OPINION TEXT STARTS HERE
Mark A. Kennedy, Kennedy, Kennedy, Robbins & Yarbro, LC, Poplar Bluff, MO, for Appellant.Chris Koster, Attorney General, Terrance M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.KURT S. ODENWALD, Judge.
Richard Greenlee (Greenlee) appeals from the trial court's judgment following a jury conviction for first-degree statutory sodomy. Greenlee was subsequently sentenced as a prior offender to life imprisonment. Finding none of Greenlee's nine points to have merit, we affirm the judgment of the trial court.
The State of Missouri (State) charged Greenlee as a prior offender 1 with first-degree statutory sodomy as a result of an incident in which the State alleged Greenlee had deviate sexual intercourse with a child under twelve years old.
Viewed in the light most favorable to the verdict, the evidence adduced at trial indicated that Greenlee and his girlfriend, Maria Page (Page), were overnight guests at the apartment of Page's friend, D.B. (Mother). Also in the house that night was Mother's boyfriend and Mother's two children, a four-year-old, H.S. (Victim), and a ten-month-old infant.
In the early morning hours of December 23, 2006, Mother was awakened by the infant's crying. When Mother went to the kitchen to make the infant a bottle, she walked past the living room where Victim was sleeping on the couch. Mother observed Greenlee in the living room, leaning over Victim. Mother testified that she then saw Greenlee take his hand out of Victim's underwear, move his hand toward his face, lick his finger, and put it back in Victim's underwear.
Greenlee was later arrested and charged with first-degree statutory sodomy.
Greenlee's trial, first held on June 26, 2008, resulted in a mistrial. Greenlee was again tried on August 27, 2009. The jury returned a verdict of guilty on the charge of first-degree statutory sodomy. The trial court entered its judgment on the jury's conviction and sentenced Greenlee to life in prison. Additional facts related to the crime and trial which are relevant to the points on appeal are discussed below.
Greenlee filed a Notice of Appeal with this Court and this appeal follows.
Greenlee presents nine points on appeal. First, Greenlee alleges the trial court erred in overruling his motion to dismiss due to misconduct by the State because of pre-trial publicity. In his second point, Greenlee claims the trial court erred in denying his Motion to Dismiss Due to Failure of the State to Grant a Speedy Trial. Third, Greenlee asserts that the trial court erred in refusing to compel the State to allow his expert to interview Victim or Mother, view Victim's taped testimony, read Mother's deposition, or review the examining doctor's statements and medical records. In his fourth and fifth points on appeal, Greenlee claims the trial court erred in sustaining the State's motions in limine which limited Greenlee's cross-examination of Mother and prevented the presentation of Greenlee's expert testimony. Sixth, Greenlee asserts the trial court erred in compressing a two-day trial into one day and improperly coercing the jury into returning a guilty verdict. In his seventh point on appeal, Greenlee alleges the trial court erred in overruling his motions for directed verdict and judgment of acquittal because there was insufficient proof as to each element of first-degree statutory sodomy. Eighth, Greenlee claims the trial court erred in refusing to submit the case to the jury on the lesser included offense of first-degree sexual misconduct. In his ninth point on appeal, Greenlee alleges the trial court erred in giving its verdict directing instruction because the instruction was unconstitutionally void because of vagueness.
In his first point on appeal, Greenlee argues that the trial court erred in overruling his Motion to Dismiss for Misconduct by the State. Greenlee claims that he did not receive a trial by an impartial jury, free from outside influence, because both the prosecutor and Mother discussed the case, by name, in newspaper articles and radio programs immediately prior to trial.
Prior to the start of his second trial, Greenlee filed a Motion to Dismiss for Misconduct by the State. In his motion, Greenlee alleged that the prosecutor, along with Mother, who was employed by the radio station, made radio broadcasts regarding Greenlee's pending case. Greenlee claimed that the prosecutor and Mother commented on the evidence and Greenlee's guilt in an effort to taint potential jurors. Greenlee also claimed that the prosecutor made references to Greenlee's case in newspaper articles in an effort to taint potential jurors.
At a pre-trial motion hearing, the trial court found no prosecutorial misconduct and denied Greenlee's motion. The trial court went on to note that voir dire could be used to determine if any of the prospective jurors knew about, read about, or heard about the case prior to trial.
Regarding pre-trial publicity, the United States Supreme Court has noted that:
In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.
Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). As such, courts do not require that jurors be “ignorant of the facts and issues reported by the media.” State v. Johns, 34 S.W.3d 93, 107 (Mo. banc 2000). Instead, in evaluating the impact of potentially prejudicial publicity on prospective jurors, “the critical question is not whether the jurors remember the case, but whether they have such fixed opinions regarding the case that they could not impartially determine the guilt or innocence of the defendant.” Id.
Greenlee has failed to demonstrate that the jury pool was tainted by the alleged pre-trial publicity, much less that any of the jurors had such “fixed opinions regarding the case that they could not impartially determine the guilt or innocence.” See id. The record shows that the venirepersons were questioned regarding pre-trial publicity during voir dire. Prospective jurors were specifically asked whether anyone had heard of the case, either through word of mouth, media, radio, or newspaper. Only two prospective jurors responded that they had heard of the case. One venireperson responded that she may have heard about the case through word of mouth, but did not know any of the specifics of the case. Another prospective juror responded that he read about the case and discussed it at work. Both of those prospective jurors were struck for cause. Greenlee presented no evidence that any of the members of the jury panel selected to hear his case were aware of any pre-trial publicity or that any of the jurors had “such fixed opinions regarding the case that they could not impartially determine the guilt or innocence of the defendant.” See id.
With regard to Greenlee's allegations of prosecutorial misconduct, Rule 4–3.6 of the Missouri Rules of Professional Conduct governs a lawyer's actions with regard to trial publicity. This Rule provides that a lawyer who is participating in the investigation or litigation of a matter “shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Supreme Court Rules of Prof. Conduct Rule 4–3.6. The Rule goes on to list the type of information that a lawyer may state, including “the claim, offense, or defense involved, and, except when prohibited by law, the identity of the persons involved,” information contained in a public record, that an investigation of a matter is in progress, and the scheduling or result of any step in litigation. Id.
During the pre-trial motion hearing regarding the alleged prosecutorial misconduct, Greenlee indicated to the trial court that a newspaper article was written regarding his upcoming trial. However, as the State pointed out and the trial court agreed, the newspaper article was written by a reporter citing simple information regarding Greenlee's case. Greenlee did not present any evidence regarding misconduct by the prosecutor with regard to the article.
Greenlee also alleged prosecutorial misconduct with regard to a radio broadcast at a radio station where Mother worked. The evidence adduced at the pre-trial hearing showed that the prosecutor participated in monthly radio broadcasts for years. In these broadcasts, the prosecutor discussed basic information about a case, including the date of the trial, the nature of the charges, and the range of punishment. At the pre-trial hearing, the prosecutor testified that she was “extremely careful to abide by the ethical rules of conduct to discuss only what [she is] allowed to under the rules of professional conduct.” The prosecutor acknowledged Greenlee's case was mentioned on the radio show a month or two prior to the hearing. However, as the trial court stated, and the State now argues, the issue of publicity was covered during voir dire. Greenlee has failed to present any evidence of prosecutorial misconduct by the State. From the record it appears the information discussed in the radio broadcast or mentioned in the newspaper was clearly within the purview of Rule 4–3.6. Furthermore, the only two potential jurors who had previously heard of the case were stricken for cause, leaving a jury panel unfamiliar with any pre-trial publicity....
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