State v. Hughes

• Decision Date: 30 August 2016
• Docket Number: No. ED 103131,ED 103131
• Citation: 497 S.W.3d 400
• Parties: State of Missouri, Respondent, v. Leland Hughes, Appellant.
• Court: Missouri Court of Appeals

497 S.W.3d 400

State of Missouri, Respondent,

v.Leland Hughes, Appellant.

No. ED 103131

Missouri Court of Appeals, Eastern District, DIVISION TWO .

Filed: August 30, 2016

Kevin B. Gau, Andrew E. Zleit, St. Louis, MO, for Defendant/Appellant.

Robert J. Bartholomew, Jr., Jefferson City, MO, for Plaintiff/Respondent.

Colleen Dolan, Judge

I. Introduction

Leland Hughes, (“Defendant”), appeals his conviction of first-degree burglary, first-degree robbery, two counts of kidnapping, five counts of armed criminal action, and one count of forcible rape for which he received a sentence of 43 years.¹ Defendant claims the trial court erred in denying his motion to strike his co-defendant's testimony, thereby denying Defendant his Sixth Amendment right to confrontation, and his rights under the Fourteenth Amendment to due process and right to a fair trial. Defendant additionally claims the trial court erred in denying his motion for judgment of acquittal on Counts XIX and XX (the forcible rape and accompanying armed criminal action), arguing there was insufficient evidence to find him guilty. We affirm the trial court's decision.

II. Factual Background

Defendant was convicted after a two-day bench trial on July 22 and 23, 2014. Evidence at trial demonstrated on November 21, 2012, Defendant and co-defendant, Shawn Borders, broke into the home of Bryan Richardson and robbed him, forcing him, his guest Alfred Barton, and Richardson's fiancée, T.A., to the floor, while the two defendants demanded money. Defendant took Richardson's expired debit card and left Borders to stand guard over the three victims while he attempted to withdraw money from a nearby ATM. When Defendant returned he took T.A., who was in her second trimester of pregnancy, into the bedroom and raped her at gunpoint. The defendants then led Richardson and Barton into the bedroom and Richardson told them he had $800.00 in his jacket pocket. Subsequently, the defendants took turns removing valuables from the apartment and standing guard over the prisoners. Before they left, the defendants covered the victims' heads with dresser drawers and ordered them to count down from one thousand.

At trial, Kenneth Allen, Borders's grandfather and Defendant's step-grandfather, testified the defendants stored the goods at his home and identified Defendant. Each of the victims testified to the series of events, including the rape, and items that were stolen. Borders pleaded guilty to the charges and testified as a hostile witness, admitting he was with Defendant on November 21, and together they robbed the apartment. Borders initially refused to answer questions implicating Defendant in the robbery, when posed by both the prosecutor and defense counsel. However, after instruction by the judge to answer defense counsel's questions and a break, Borders testified Defendant was with him during the home invasion on cross-examination. Borders also testified they were together on November 23, 2012, when they were arrested after fleeing the police. Borders stated Defendant was driving and crashed the car prior to their arrest.

The State also called several police officers to the stand, including the first responders who testified about the evidence seized from the car. These items included two t-shirts with the names of the victims and a gun with laser sights that T.A. identified as the gun used during the robbery. The State also called forensic experts who testified Defendant's DNA was found on a glove left inside the apartment by the assailants. At the close of evidence the court found Defendant guilty of burglary, robbery, two counts of kidnapping, five counts of armed criminal action, and one count of forcible rape, and sentenced him to serve a total sentence of 43 years.

III. Standard of Review

Trial courts have broad discretion to admit or exclude evidence and this Court will only reverse upon a clear showing of abuse of discretion. State v. Moffett , 474 S.W.3d 248, 250 (Mo.App.S.D.2015). “An abuse of discretion exists when the trial court ruling ‘clearly offends the logic of the circumstance or appears arbitrary and unreasonable.’ ” State v. Patton , 419 S.W.3d 125, 133 (Mo.App.E.D.2013) (internal quotations omitted). An appellate court will only reverse a conviction due to evidentiary error if it “was so prejudicial that it deprived the defendant of a fair trial.” State v. Evans , 455 S.W.3d 452, 455 (Mo.App.E.D.2014). Errors are prejudicial when “the errors are more likely than not to have affected the outcome.” Patton , 419 S.W.3d at 133. While the admissibility of evidence is reversed only when a court finds a clear abuse of discretion, “whether a defendant's rights were violated is a question of law reviewed de novo.” State v. Aaron , 218 S.W.3d 501, 505 (Mo.App.W.D.2007).

IV. Discussion

a. The trial court did not abuse its discretion in denying Defendant's motion to exclude testimony of co-defendant, Shawn Borders.

“In all criminal prosecutions the accused shall enjoy the right... to be confronted with the witnesses against him.” U.S. Const. Amend. VI. A defendant's Sixth Amendment right to confrontation is “one of the safeguards essential to a fair trial.” United States v. Cardillo , 316 F.2d 606, 613 n. 4 (2d Cir.1963). “Cross-examination of a witness is a matter of right...and its allowance is especially important in the case of a witness who is himself an admitted violator of the law.” Id . (internal quotations omitted).

In 1982, the Missouri Supreme Court adopted the Second Circuit's holding in Cardillo regarding the confrontation clause and witnesses who invoke the Fifth Amendment privilege against self-incrimination. See State v. Blair , 638 S.W.2d 739, 754 (Mo. banc 1982). In Cardillo, the Second Circuit held a “conviction will be reversed if the cross-examination of government witnesses has been unreasonably limited.” Cardillo , 316 F.2d at 611. “However, reversal need not result from every limitation of permissible cross-examination and a witness' testimony may, in some cases, be used against a defendant, even though the witness invokes his privilege against self-incrimination during cross-examination.” Id . A witness's testimony should be stricken in whole or in part “if the witness by invoking the privilege precludes inquiry into the details of his direct testimony[.]” Id . This is because a defendant who is deprived of the right to test the truthfulness of an adverse witness's direct testimony faces “a substantial danger of prejudice[.]” Id .

In the present case, co-defendant, Borders, initially refused to implicate Defendant when asked questions about the home invasion by the prosecution. Borders did not invoke the Fifth Amendment at any point and freely answered questions about his own involvement. He would not testify as to whether he was telling the truth when he made a statement to the police that implicated Defendant.² Under cross-examination, Borders again refused to answer any questions implicating Defendant, stating clearly it was not because he was being asked questions by Defendant's attorney. At sidebar, Defense counsel made its first request to strike Borders's testimony from direct examination, alleging Defendant's right to confrontation had been violated. The court stated it would entertain that request if defense counsel asked the court to direct Borders to answer questions on cross, and Borders continued to refuse. The court then ordered Borders to answer defense counsel's questions and Borders asked, “If I refuse to answer the question, is that an answer?” to which the court responded:

“That's a response. That's not an answer...You might refuse to answer the question. You might say I don't remember, or you can still refuse even though I'm telling you, you must answer. You should answer yes, no, or I don't remember. You should answer the questions truthfully. If you refuse to give an answer to the question, if that's your response as it has been before, then you will be in contempt of court, and I might impose a fine or I might place you in prison for contempt of court. That will be up to me. He's going to ask you a question. If you know the answer, I direct you to answer the question. If you don't know the answer, you can say you don't know the answer. You should make one of those responses.”

After this instruction, Borders answered many of the defense counsel's questions with “I don't know.” He told defense counsel he was with Defendant on the night of their arrest November 23, 2012, and Defendant was driving the car they were in when they were arrested. However, he continued to refuse to answer whether Defendant was with him on the night of the home invasion, November 21, 2012. After extensive questioning, with no change in Borders's testimony, the defense moved again to strike the entirety of his testimony under Defendant's Sixth Amendment right to confrontation.

At side bar, the attorneys explained their positions to the court. The prosecution felt the witness was answering questions, and defense counsel asserted he was parroting the responses the court informed him he could say “like refuse to answer and I don't know.” Defense counsel admitted, “We're not getting any useful testimony from him whatsoever,” and felt there was no way he could effectively cross-examine Borders and admitting any of his testimony as evidence against his client would violate the confrontation clause as well as Defendant's rights to due process and a fair trial. The court pointed out, “He's answered more of your questions than [the prosecutor's]. I'm not sure what [the State] got of value.”

After lunch, and a conversation with his attorney, Borders was recalled to the stand and did answer defense counsel's questions, stating Defendant was with him on November 21^stand went inside the home. Borders stated under oath he lied when he wrote an affidavit stating, “the things I said against [Defendant] wasn't true.” On re-direct he was again ambiguous about whether he lied in his...