State v. Kidd, WD

Decision Date23 February 1999
Docket NumberNo. WD,WD
Citation990 S.W.2d 175
PartiesSTATE of Missouri, Respondent, v. Ricky L. KIDD, Appellant. 54381.
CourtMissouri Court of Appeals

Before BRECKENRIDGE, C.J., ULRICH and HANNA, JJ.

PATRICIA BRECKENRIDGE, Chief Judge.

Appellant Ricky Kidd was convicted after a jury trial of two counts of class A felony murder in the first degree, § 565.020.1, RSMo 1994, 1 and two counts of armed criminal action, § 571.015. He was sentenced as a prior offender to life imprisonment without eligibility for probation or parole for the two first degree murder convictions and life imprisonment for the two armed criminal action convictions. The four sentences were ordered to run consecutively. Mr. Kidd appealed his convictions alleging (1) the trial court erred in admitting hearsay statements not within any exception; (2) the trial court abused its discretion in denying Mr. Kidd's request for a severance from his co-defendant; and (3) the trial court erred in allowing testimony referring to Mr. Kidd as the "Terminator" because the evidence was more prejudicial than probative.

Facts and Procedural Background

Because the sufficiency of the evidence is not at issue in this case, only a brief statement of the facts is necessary. On February 6, 1996, four-year-old Kayla Bryant was at home with her father, George Bryant, and his friend, Oscar Junior Bridges. While Kayla sat in the living room eating and watching television, she noticed a white car pull up in front of the house. When Kayla looked out the window, she saw two men dressed in black getting out of the white car. Kayla described one as skinny and the other as fat. The "skinny one" had on a black leather jacket, a black hat, black pants, rings, two "circle" earrings, a bracelet, a "twist" necklace, and a watch. The "fat one" was bald and had on a black leather jacket, black pants, rings, one "circle" earring, a "twist" necklace, and a watch.

Kayla testified that she told her father someone was outside. He then looked out and opened the garage door. The two men and George Bryant went into the kitchen where Oscar Bridges was waiting. After a brief conversation, the two men pulled out guns. One man shot George Bryant, while the other chased and shot Oscar Bridges, who had fled to the basement. The two men then went through the house, as if they were looking for something. While the men were searching the house, Mr. Bryant was able to make his way outside and yelled for help. Mr. Bryant's neighbor, Richard Harris, was walking by the house when he heard Mr. Bryant's calls. He watched while a man came out and dragged Mr. Bryant behind a car, and then another man came out and shot Mr. Bryant two times. The first man came after Mr. Harris, but he was able to run away.

Mr. Kidd and his co-defendant Marcus Merrill were indicted on two counts of first degree murder and two counts of armed criminal action. At trial, Kayla testified about the events of February 6, 1996, but she was not able to identify, in court, the two men who murdered her father. Mr. Harris also testified, identifying Mr. Kidd as the second man who came out and shot Mr. Bryant. The court also allowed detectives Jay Thompson, Robert Guffey and Jay Pruetting to testify about the statements Kayla made to them regarding the events of February 6, 1996, and the identity of the perpetrators. Mr. Kidd was convicted of both counts of first degree murder and both counts of armed criminal action. He subsequently filed a timely appeal in this court.

Admissibility of Witness's Out-of-Court Statements to Police

At trial, Mr. Kidd objected to the admission of the detectives' testimony relating Kayla's statements to the officers about the events that transpired on the day of the murder because the statements were hearsay and were not with the exception set forth in § 491.075. The trial court ruled that the testimony was within § 491.075. On appeal, the State concedes that § 491.075 is not applicable under the facts of this case. 2 However, the State argues that the testimony concerning Kayla's out-of-court identification of Mr. Kidd was admissible under the hearsay exception announced in State v. Harris, 711 S.W.2d 881 (Mo. banc 1986). On appeal, Mr. Kidd argues that the detectives' testimony was inadmissible hearsay and he was prejudiced because its admission permitted the State to bolster Kayla's in-court testimony.

Determination of the relevancy and admissibility of evidence is a matter clearly within the discretion of the trial court and will not be reversed in the absence of an abuse of that discretion. State v. Collins, 962 S.W.2d 421, 424 (Mo.App.1998). A defendant must be prejudiced by the improper admission of evidence to warrant a new trial. Id. Prejudice occurs when the improperly admitted evidence "materially affects the merits of the action." State v. Larson, 941 S.W.2d 847, 854 (Mo.App.1997). The court reviews allegations of erroneous admission of evidence for prejudice "and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Richardson, 923 S.W.2d 301, 311 (Mo. banc 1996).

At trial, Detective Jay Thompson testified about statements Kayla made to him when he interviewed her on April 11, 1996. Detective Thompson stated that during the interview, Kayla told him that early on the morning of February 6, 1996, Oscar Bridges came over to her house. Mr. Bridges and her father, George Bryant, took her to her grandmother's house and then went to the barber shop. Mr. Bridges and her father later picked her up from her grandmother's and took her to McDonald's for a Happy Meal. When they returned home, Kayla sat in the living room watching T.V. and eating her Happy Meal while Mr. Bridges and Mr. Bryant ate in the kitchen. She told Detective Thompson that the door bell rang and Mr. Bryant used a remote control to open the garage door. Two males then entered the house and spoke with Mr. Bryant and Mr. Bridges in the kitchen. She told the detective that the men pulled out guns and Mr. Bridges ran for the basement. She heard her father say, "Don't shoot me," and she saw him standing in the kitchen with his hands in the air. The man in the kitchen then shot Mr. Bryant and he fell to the ground, but he eventually ran outside. Kayla told the detective that the two men then looked through the house.

Kayla told Detective Thompson that the men were African American and were dressed in black or dark colored clothing. She described one as skinny and one as bigger. She also said one had a dark complexion, while the other was lighter. She told him that one was wearing a cap and stated that one man was wearing a gold loop chain styled earring. She said she had seen the men before when they had been to her house two days prior to the shooting.

Detective Thompson testified that he then showed her a video lineup which included Mr. Kidd. The detective had Kayla watch the video in a room with him and her mother. When Mr. Kidd appeared on the lineup stage, Kayla turned to her mother and said, "That's him." The detective told her to finish watching the video. At the end of the video all four people appeared on the screen and Detective Thompson put Kayla in a chair with wheels and pushed her closer to the T.V. so she could point to the person she recognized. The detective testified that while he was pushing Kayla toward the T.V., she became nervous and clutched his arm. When asked to point to the person she recognized in the video, she pointed to Mr. Kidd.

Detective Robert Guffey's testimony related only to Kayla's identification of Marcus Merrill, Mr. Kidd's co-defendant. However, Detective Jay Pruetting testified as to statements he obtained from Kayla on the day of the murder. Detective Pruetting testified that after arriving on the scene, he took Kayla and her mother to the station to interview them about what had happened that day. With her mother present, Kayla twice told the detective that she was at the house with her father and Oscar Bridges when her daddy's brother shot him. He asked her who "daddy's brother" was and she responded that she didn't know. Later, her mother asked if she meant Bryant's real brother and Kayla said no.

Kayla went on to tell Detective Pruetting that two black males, one skinny and one fat, came over to the house wearing black hats and black coats and driving a white car. She said her father let them in through the garage and that they both had guns when they came in the house. She told the detective they wanted her dad's money and they searched the ice box and the attic. She said Mr. Bridges was initially upstairs, but ran to the basement. She said the men "cussed a lot," but told her she would be "alright." After they left, she called 911. She also told the detective that the men had been at the house the day before.

The State concedes that the above testimony was not properly admitted under § 491.075, and this court agrees. However, if the evidence is competent under any theory, or for any purpose, the trial court did not commit error in admitting it. State v. Russell, 872 S.W.2d 866, 869 (Mo.App.1994). Even if the evidence was not admissible under any theory and it was error to admit it, the error does not compel the reversal of a conviction unless the error so prejudiced the defendant that the defendant was denied a fair trial. Id.

In considering Mr. Kidd's claim that hearsay evidence was improperly admitted, it is necessary to divide the detectives' testimony into two categories: (1) their testimony concerning Kayla's out-of-court identification of Mr. Kidd; and (2) their testimony regarding her out-of-court statements about the events of the day her father was murdered. With regard to the first category, Detectives Guffey's and Thompson's testimony about Kayla's out-of-court identification was...

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