State v. Irby

• Decision Date: 08 April 2008
• Docket Number: No. ED 87385.,ED 87385.
• Citation: 254 S.W.3d 181
• Parties: STATE of Missouri, Respondent, v. Dennis A. IRBY, Appellant.
• Court: Missouri Court of Appeals

254 S.W.3d 181

STATE of Missouri, Respondent, v. Dennis A. IRBY, Appellant.

No. ED 87385.

Missouri Court of Appeals, Eastern District, Division Two.

April 8, 2008.

Application for Transfer to Supreme Court Denied May 15, 2008.

Application for Transfer Denied June 24, 2008.

Michael Gross, St. Louis, MO, for appellant.

Shaun Mackelprang, Jefferson City, MO, Evan Bucchein, Roger Johnson, Co-Counsel, for respondent.

NANNETTE A. BAKER, Judge.

Introduction

Dennis Irby ("Defendant") was convicted by a jury of murder in the first degree in violation of Section 565.020 and armed criminal action in violation of Section 571.015. Defendant was sentenced to concurrent terms of life imprisonment without possibility of parole. Defendant alleges that the trial court made several evidentiary errors including the admission of videotaped statements of two witnesses; the replaying of those videotapes for the jury during deliberations; the admission of a witness' testimony from a previous trial and the admission of a recorded telephone conversation between Defendant and a witness. We find no error and affirm.

Factual and Procedural Background

Defendant does not challenge the sufficiency of the evidence to support his conviction. Viewed in the light most favorable to the verdict, the facts are as follows: Lois Sexton and Jeff Sexton ("Victim") were married with one child. Victim's wife, Lois, testified that Victim was violent and often beat and abused her.

Lois fled to a "safehouse" on December 2, 2002. After two days, Victim's parents told Lois that Victim was attending anger management programs and convinced Lois to return to Victim. After Lois returned, Victim refused visitors. Victim moved Lois and their child to a hotel, where he beat her continuously. They returned home and Victim enclosed himself, Lois and the child in the house, screwing the doors shut and hiding the phones to prevent Lois from contacting anyone outside the house. On December 13, Victim beat Lois and threatened to kill her.

On December 14, Lois and the child escaped while Victim was sleeping. She went to a gas station and called her sister, Lisa Frein, in North Carolina. Ms. Frein purchased plane tickets for Lois and the child. Lois' brother, Robert Hoover ("Mr. Hoover"), drove Lois and the child to the airport. When Lois arrived in North Carolina, she and the child stayed with Ms. Frein. Ms. Frein photographed her injuries. Lois' sister, Laurie, also lived in North Carolina.

After Lois left for North Carolina, Laurie's husband, Dennis Irby ("Defendant") called Lois' brother Mr. Hoover. In Mr. Hoover's statement to police, he stated that Defendant asked him where he could get an untraceable cellular phone and a gun. Mr. Hoover did not procure these items for Defendant, but Ms. Frein procured a pre-paid cellular phone.

Mr. Hoover testified that Defendant traveled to St. Louis from North Carolina and they met in a parking lot on December 19. Mr. Hoover took Defendant to Lois' car, which Mr. Hoover had parked in a public parking lot near his house. Mr. Hoover testified that he saw Defendant again on December 22. In a written statement to police, Mr. Hoover said that Defendant put on gloves and test fired a gun on December 22. However, at trial, Mr. Hoover said that his statement was coerced and that Defendant did not put on gloves or test fire a gun.

On December 28, Defendant called Mr. Hoover from North Carolina and asked him to move Lois' car because he would be returning to St. Louis and he needed the car. In Mr. Hoover's statement to police, he said that Defendant called him in the morning on December 29 and told him "It's done," and to move Lois' car. When Mr. Hoover went to retrieve Lois' car, it was in a different spot than where he had parked it before.

On December 31 Victim's parents found Victim's body in his house, lying in a pool of blood on the kitchen floor, with a can of soda in his hand. The autopsy revealed that Victim had been dead one to three days. Victim died from two bullet wounds to the head, fired from a .22 caliber rifle. In Mr. Hoover's statement to police, he stated that his father, Ervell Hoover, had given Dennis Irby a .22 caliber rifle. Police seized a .22 caliber rifle, .22 caliber ammunition and a cleaning kit from Ervell Hoover's home.

Mr. Hoover was taken in for questioning. He talked with police and eventually submitted a written statement. He also allowed the police to take a videotaped statement. At the direction of the police officers, Mr. Hoover also made a call to Defendant while at the police station. He pretended that he had already left the police station and asked Defendant questions given to him by the officers. The purpose of the recorded call was to induce Defendant to make incriminating statements.

At trial, Prosecutors sought to introduce the videotaped statement made by Mr. Hoover in order to impeach his testimony that he was coerced into writing falsities in his statement because the police threatened his wife and child. However, Mr. Hoover acknowledged during his testimony that his demeanor appeared calm on the video. Defendant objected to the introduction of the videotaped statement on the grounds that Mr. Hoover had already been impeached and Mr. Hoover already told the jury that he appeared calm in the video. The court overruled Defendant's objection and admitted and played the videotaped statement.

During trial, the State also played the audio recording of the conversation between Mr. Hoover and Defendant recorded at the police station during Mr. Hoover's questioning. Defense counsel objected that an inadequate foundation was made for the recording, and the objection was overruled.

Lisa Frein did not appear at the trial to testify. Instead, the State introduced a transcript of Ms. Frein's testimony from Defendant's earlier trial.¹ The State obtained a certificate pursuant to Section 491.420 identifying Ms. Frein as a necessary and material witness and requesting that a North Carolina court compel her testimony. North Carolina refused to compel her appearance. The State introduced an uncertified order stating that a North Carolina court denied the Section 491.420 request. Defense counsel objected to the introduction of the transcript on the grounds that the State failed to make an adequate showing of its efforts to obtain Ms. Frein's appearance and that the North Carolina order was uncertified. The court overruled the objection and admitted the transcript.

The State also introduced at the same time a videotaped statement that Ms. Frein made to police.

During deliberation, the jury asked to see the videotaped statements again. The court granted the request over defense counsel's objections. The jury found Defendant guilty of first-degree murder and armed criminal action. The court sentenced Defendant to concurrent terms of life imprisonment without parole. Defendant appealed.

On appeal, Defendant raises six points. In his first point, Defendant contends that the trial court erred in overruling Defendant's objection to the introduction of Mr. Hoover's videotaped statement. In his second point, Defendant claims that the trial court erred in replaying the statement to the jury during deliberations. In his third point, Defendant argues the trial court erred in overruling Defendant's objection to the introduction of Ms. Frein's videotaped statement. In his fourth point, he contends that the trial court further erred in replaying the statement to the jury. In his fifth point, Defendant contends that the trial court erred in admitting Ms. Frein's prior testimony because the prosecution did not demonstrate that it had exercised reasonable diligence to secure her presence at trial. Finally, Defendant argues that the trial court erred in overruling Defendant's objection to the recorded evidence of his telephone conversation with Hoover because there was inadequate foundation for the admissibility of the recording.

Standard of Review

We review a trial court's admission of evidence for abuse of discretion. State v. Smith, 136 S.W.3d 546, 550 (Mo. App. W.D.2004). A trial court's decision to admit evidence is an abuse of discretion when it is clearly against the logic of the circumstances then before the court, and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration. Id.

Mr. Hoover's Videotaped Statement

Defendant's first and second points involve Mr. Hoover's videotaped statement. We consider these points together. In his first point, Defendant argues that the trial court erred in admitting the videotape. More specifically, Defendant argues that the statement was not relevant to Mr. Hoover's credibility and its admission improperly bolstered his direct testimony regarding statements he had made to police. In his second point, Defendant argues that the trial court erred in replaying this statement to the jury.

On January 1, Mr. Hoover was brought to the police station where he wrote a statement and made a statement on videotape which contained information incriminating Defendant. At trial, Mr. Hoover testified that the written statement contained falsities. He testified that police officers were threatening him, his wife and child and coerced him to make the false statements. During direct examination, the State questioned Mr. Hoover line-by-line about the written statement, asking which parts Mr. Hoover was claiming were true and which parts Mr. Hoover claimed were false and coerced by police.

The State then asked Mr. Hoover about the videotaped statement that was recorded at the police station. Mr. Hoover testified that the officer asked him questions, which he answered, but he did not go over the written statement "word for word." He stated that the videotape contained "truth and lies." He testified that he was coerced into making false statements on the videotape, like in the written statement. He also testified...