State v. Kennedy

• Decision Date: 04 March 2003
• Docket Number: No. WD 60990.,WD 60990.
• Citation: 107 S.W.3d 306
• Parties: STATE of Missouri, Respondent, v. Christopher KENNEDY, Appellant.
• Court: Missouri Court of Appeals

107 S.W.3d 306

STATE of Missouri, Respondent, v. Christopher KENNEDY, Appellant.

No. WD 60990.

Missouri Court of Appeals, Western District.

March 4, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 24, 2003.

Application for Transfer Denied July 1, 2003.

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Rebecca L. Kurz, Kansas City, MO, for Appellant.

Jeremiah W. (Jay) Nixon, John M. Morris, III, and Joel A. Block, Jefferson City, MO, for Respondent.

Before THOMAS H. NEWTON, P.J., ROBERT G. ULRICH and EDWIN H. SMITH, JJ.

THOMAS H. NEWTON, Presiding Judge.

Mr. Christopher Kennedy appeals his convictions for murder in the second-degree, pursuant to section 565.021, RSMo 2000; assault in the first-degree, pursuant to section 565.050, RSMo 2000; and armed criminal action, pursuant to section 571.015, RSMo 2000. For the reasons explained below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case stems from a shooting that occurred outside of a Kansas City, Missouri, nightclub. On October 3, 1999, Frederick Darrington, Ryan Pearson, Rodja Pearson, and Raphael Pearson attended a comedy show at the Beaumont Club. As they walked away from the club after the show, shots rang out. Three bullets struck Frederick Darrington, who died at the scene. One bullet struck Ryan Pearson in the head. He died three days later at a hospital. Rodja Pearson suffered a gunshot wound to the leg but died of unrelated injuries before trial. Raphael Pearson escaped physical injury.

Several people witnessed the shootings, and three of them identified Mr. Kennedy as the culprit. Raphael Pearson identified Mr. Kennedy from a police photographic array four days after the shooting. At trial, he recalled seeing two people brandishing a large gun and firing it. He harbored "no doubt" that Mr. Kennedy was one of the people shooting the gun and that Mr. Kennedy was the person who murdered his brother. He testified that he had seen Mr. Kennedy in the nightclub earlier in the evening and had known Mr. Kennedy several years earlier as a "drinking buddy."

Darren Miller identified Mr. Kennedy from a police photographic array on the evening after the shooting. On the night of the shooting, Mr. Miller was a bystander in the area. Unlike Raphael Pearson, Mr. Miller saw only one shooter. But he was positive that Mr. Kennedy was the shooter. He observed Mr. Kennedy's face from a distance of four to five feet and between fifteen and thirty seconds.

In an interview with police Sergeant Jay Pruetting on the morning after the shooting, Rodja Pearson also identified Mr. Kennedy as the killer. Although the trial court recognized that Rodja Pearson's statement to Sergeant Pruetting would be hearsay if offered to prove the truth of the matter asserted, the trial court allowed the admission of the statement for the limited purpose of explaining why the police developed Mr. Kennedy as a suspect in the case.

Over Mr. Kennedy's objection, the trial court also allowed the State to present motive evidence pertaining to a 1992 shooting in which Mr. Kennedy was the victim. Although the police never charged a suspect or determined who shot Mr. Kennedy in 1992, they did identify Rodja Pearson as a suspect in that case. The State reasoned that this evidence suggested a possible motive for the 1999 shootings, in which Rodja Pearson was one of the victims.

After hearing the evidence, the jury convicted Mr. Kennedy of two counts of second-degree murder, one count of first-degree assault, and three counts of armed criminal action. The trial court imposed the following sentence: (1) life imprisonment for second-degree murder (Count I); (2) twenty-five years' imprisonment for armed criminal action (Count II), to run concurrently with Count I; (3) life imprisonment for second-degree murder (Count III), to run consecutively to Counts I and II; (4) twenty-five years' imprisonment for armed criminal action (Count IV), to run concurrently with Count III and consecutively to Counts I and II; (5) fifteen years' imprisonment for first-degree assault (Count VII), to run consecutively to Counts I, II, III, and IV; and (6) twenty-five years' imprisonment for armed criminal action (Count VIII), to run concurrently with Count VII and consecutively to Counts I, II, III, and IV.

Mr. Kennedy raises two points on appeal. In his first point, he contends that the trial court abused its discretion in admitting evidence of the 1992 shooting where Mr. Kennedy was a victim. Mr. Kennedy reasons that this evidence was too remote and inconclusive to establish a motive for the 1999 shootings. He points out that he identified a person other than Rodja Pearson as the man who shot him in 1992.

In his second point, Mr. Kennedy requests that this court review for plain error several comments made by the assistant prosecuting attorney during closing argument. He contends that these comments unfairly prejudiced him and that the trial court should have declared a mistrial sua sponte or at least admonished the assistant prosecutor and instructed the jury to disregard the comments. He challenges four different comments: (1) the State's reference to Rodja Pearson's hearsay identification of him as the perpetrator; (2) the State's reference to defense counsel as "Mr. Talking Loud, But Saying Nothing"; (3) the assistant prosecutor's reference to Mr. Kennedy as "evil" and an "executioner"; and (4) the assistant prosecutor's inflammatory appeals to jurors' emotions.

II. STANDARD OF REVIEW

We review Mr. Kennedy's first point, challenging the trial court's admission of the motive evidence, solely to determine whether the admission of that evidence amounted to an abuse of discretion. State v. Danikas, 11 S.W.3d 782, 788 (Mo.App. W.D.1999). "The decision to admit evidence is an abuse of discretion where it is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration." Id. (internal quotation marks and citation omitted).

Mr. Kennedy has not preserved his second point for appeal. To the extent that Mr. Kennedy's second point warrants review, we can review it only for plain error.

III. LEGAL ANALYSIS

A. The Trial Court Did Not Abuse its Discretion in Admitting the State's Motive Evidence

"Evidence must be relevant to be admissible." State v. Shurn, 866 S.W.2d 447, 457 (Mo. banc 1993). In Missouri, relevance has two aspects: logical relevance and legal relevance. State v. Anderson, 76 S.W.3d 275, 276 (Mo. banc 2002). "Evidence is logically relevant if it tends to make the existence of a material fact more or less probable." Id. While evidence must be logically relevant, it need not be conclusive; it is relevant as long as it "logically tends to prove a fact in issue or corroborates relevant evidence which bears on the principal issue." State v. Mercer, 618 S.W.2d 1, 9 (Mo. banc 1981). To be admissible, logically relevant evidence also must be legally relevant. Anderson, 76 S.W.3d at 276. Legal relevance refers to the probative value of the evidence weighed against its costs, including unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness. Id. Evidence is legally relevant if its probative value outweighs its prejudicial effect. State v. Mayes, 63 S.W.3d 615, 629 (Mo. banc 2001). See also State v. Williams, 976 S.W.2d 1, 4 (Mo.App. W.D.1998).

When the accused proclaims his innocence, evidence regarding motive, or absence of motive, is logically relevant and admissible. Shurn, 866 S.W.2d at 457. The State and the accused alike have wide latitude in developing such motive evidence. Id.

To the extent that the motive evidence is remote, its remoteness normally affects the weight attached to the evidence rather than its admissibility; but evidence can be so remote as to be inadmissible. State v. Maddox, 657 S.W.2d 719, 721 (Mo.App. E.D.1983). By itself, the passage of time does not render evidence inadmissible due to remoteness. State v. Branch, 757 S.W.2d 595, 598 (Mo. App. E.D.1988); Mid-American Lines, Inc. v. Littrell, 653 S.W.2d 391, 393 (Mo. App. W.D.1983).

To establish a defendant's motive for murdering someone, the State may rely upon testimony that the victim previously crossed the defendant in some manner. State v. Biggins, 987 S.W.2d 457, 464 (Mo.App. W.D.1999). In Riggins, the trial court admitted testimony that a murder victim had "shorted" the defendant on a deal sometime before the victim's murder. Id. Affirming the trial court's admission of the evidence, we said:

We find no error in the trial court's ruling. The statement that the victim "shorted" defendant is vague, as it does not expressly refer to any criminal activity [on the defendant's part in a drug transaction]. The witness did not say defendant had been shorted on a drug deal, but only that defendant had been shorted on a deal. It could have been an entirely legal deal. Equally important, this testimony was admissible because it is relevant to the motive for the crime charged, as it establishes a reason why defendant would want to harm the victim.

Id.

The evidence in this case likewise establishes a potential motive for murder: revenge for the 1992 shooting. The evidence was undoubtedly old, arising from a shooting that occurred seven years before the charged crimes. But as Branch and Littrell show, that fact alone does not make it inadmissible. Cf. State v. Coleman, 857 S.W.2d 363, 366 (Mo.App. E.D.1993) (evidence of ten-year-old uncharged acts was not too remote to be admissible). Indeed, a shooting victim would be expected to remember such an event for a long time afterward. In State v. Smith, 791 S.W.2d 744 (Mo.App. E.D.1990), the court approved the admission of evidence that a murder defendant had shot at the victim six months before the murder, rejecting the contention that this evidence...