State v. Lee, No. WD 71924.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBefore Division One: THOMAS E. NEWTON, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
Citation344 S.W.3d 865
Docket NumberNo. WD 71924.
Decision Date07 June 2011
PartiesSTATE of Missouri, Appellant,v.Markus D. LEE, Respondent.

344 S.W.3d 865

STATE of Missouri, Appellant,
v.
Markus D. LEE, Respondent.

No. WD 71924.

Missouri Court of Appeals, Western District.

June 7, 2011.Motion for Rehearing and/or Transfer to


Supreme Court Denied July 5, 2011.
Application for Transfer
Denied Aug. 30, 2011.

[344 S.W.3d 866]

Michael Joe Hunt, Kansas City, MO, for appellant.Ruth Sanders, Kansas City, MO, for respondent.Before Division One: THOMAS E. NEWTON, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.JAMES M. SMART, JR., Judge.

The State of Missouri appeals the judgment of the Circuit Court of Jackson County dismissing the State's prosecution of Markus D. Lee with prejudice.

Statement of Facts

Markus Lee was charged in the Circuit Court of Jackson County with one count of murder in the first degree, three counts of assault in the first degree, four counts of assault of a law enforcement officer in the first degree, and eight counts of armed criminal action. The circuit court dismissed Mr. Lee's criminal charges with prejudice following a mistrial that the court had earlier granted as a result of an improper statement made during the testimony of a State's witness.

The State is entitled to appeal a judgment in favor of a criminal defendant only where the right is expressly conferred by statute and where no double jeopardy can result. See section 547.200.2 RSMo; 1 State v. Casaretto, 818 S.W.2d 313, 315–16 (Mo.App.1991). The double jeopardy clause of the Fifth Amendment of the United States Constitution protects a criminal defendant from being prosecuted more than once for the same offense. Oregon v. Kennedy, 456 U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). If, during the trial of a case, the defendant requests a mistrial, the prohibition against double jeopardy may bar the re-prosecution of the defendant if the defendant's request for a mistrial was brought about as a result of prosecutorial misconduct that was intended to provoke the defendant into moving for a mistrial. See id. at 676, 102 S.Ct. 2083.

Mr. Lee's case proceeded to a jury trial on November 9, 2010. The factual background of the prosecution involved a shooting event which took place on March 5, 2007. The prosecution alleged that the defendant was a participant with a group of people seated in a parked car from which gunfire erupted across the street into a tire shop. Following the shooting, police officers chased the vehicle from which the gunfire apparently came. The occupants of the vehicle, being pursued, fired at the police chasing the vehicle.

[344 S.W.3d 867]

Three men were apprehended after the suspect's vehicle crashed.

During the prosecution of the case, Detective Danny Phillips of the homicide unit took the stand. Detective Phillips testified concerning the scene of the car crash at the end of the pursuit. Detective Phillips was involved in the collection of evidence there. Detective Phillips was asked if he had further involvement in the case. He testified that he had contact with the suspects on March 28, 2007. The prosecutor inquired as to the identity of the suspects, and Detective Phillips said, “Their names are Markus Lee, sitting at the defense table in the white, a fellow by the name of Richard Cooper, and Rayshawn Taylor.” He said that he collected buccal swabs from Mr. Lee, Mr. Cooper, and Mr. Taylor and sent the swabs to the lab.

On cross-examination, defense counsel asked Detective Phillips to clarify whether he took Mr. Lee's DNA sample some weeks after the incident. Detective Phillips answered, “Right,” and then said, “I knew him prior.” The testimony was as follows:

Q. Detective, you're actually the first officer today who has referenced Markus Lee at all, but I want to be clear. You were not involved in his arrest, correct?

A. No.

Q. This was collecting the DNA sample from him several days after this incident we're talking about, a couple of weeks, March 28th?

A. Right, I knew him prior.

Defense counsel immediately objected to the statement concerning the officer's prior knowledge of Markus Lee and moved the court to declare a mistrial. The trial court, without asking for a response from the prosecution, granted the mistrial request. The trial judge then turned to Detective Phillips and admonished him:

Detective Phillips, you know better than that. I can't believe what I heard. I want to call Sergeant Bernard and inform him that we wasted now four days of trial time. We were two hours away from submitting this case to a jury. If I can, I'm going to find a way to submit the charges for this trial to the Kansas City Police Department for the waste of time, the waste of taxpayers' money. We'll be back here for trial November 30th. If you testify, I don't expect something like that to happen again.

Detective Phillips responded, “Yes, sir.” The jury was then dismissed. In the trial court's minutes, the court stated that the mistrial was granted because Detective Phillips's “improper, inexcusable comment in front of the jury left this court with no alternative than to declare a mistrial.”

On November 20, 2009, defense counsel filed a motion on behalf of the defendant asking the court to dismiss Mr. Lee's criminal case with prejudice. The court conducted a hearing on that motion on November 25, 2009. At the hearing, defense counsel, Molly Hastings, testified that she represented Mr. Lee at trial. She testified also that she spoke with Detective Phillips in the hallway and in the witness room before he testified. She stated that when she introduced herself and told him she wanted to find out what his testimony would be, Detective Phillips said in a joking manner, “You mean, that I would testify that Markus is guilty?” The defense also presented the testimony of a public defender intern. Over the State's objection, the intern testified that he heard a juror state that all fifteen jurors and alternates had taken a straw poll and that all fifteen of them would have voted to acquit Mr. Lee.

Defense counsel asked the court to take judicial notice of a prior mistrial event in

[344 S.W.3d 868]

which a different Kansas City Missouri Police Department detective made an unnecessary comment that resulted in a mistrial. The trial judge did take note of that event and added that “quite honestly, I've had that stuck in the back of my mind since that time. So, it's kind of a backdrop against which we are doing these things.”

Defense counsel argued that especially because the case was a high profile one that affected so many police officers, it was unrealistic to think that the officers congregating in the hallway did not discuss how the trial was going. The defense pointed out that Detective Phillips never explained why he made the comment and stated that Detective Phillips did not “appear to be particularly disturbed or apologetic about what he did,” but rather sat and stared at Mr. Lee while the court was admonishing him. Defense counsel argued that if the comment had been inadvertent, Detective Phillips would not have behaved in that manner. Defense counsel further argued that unless the court granted the dismissal with prejudice, there would be no incentive for the police to stop causing mistrials in weak cases to give the State a chance to try the case again.

The State did not dispute defense counsel's description of Detective Phillips's comment in the hallway or his behavior on the stand but argued that the court could not dismiss the case with prejudice, because the mistrial was caused by a police officer, not a prosecutor, and because the defense had not proven that Detective Phillips meant to cause a mistrial.

The court granted the motion to dismiss with prejudice. It concluded that the State's interpretation of governmental misconduct was too narrow and that a dismissal with prejudice was necessary. The court stated as follows:

If law enforcement, without any indication from the prosecutor's office or the State or anybody else, if they think the case is going south, they can say something inappropriate that could scuttle the trial, as happened in this division twice within the last three months, say something inappropriate from that witness stand designed, I think, to inappropriately influence this jury or any jury.

I just can't allow that to happen. I think that flies in the face of our obligation to ensure a fair and level playing field. And as has happened twice in the last three months, I've been forced to declare a mistrial, which I think, especially in this case, gives the prosecuting attorney, the State, an opportunity to maybe bone up a weak case, an admittedly weak case.

I think it gives the State an unfair tactical advantage. I think it gives them an opportunity to make their case on the second go-around, no matter what it was in the first go-around. And it denies the defendant the opportunity, I think, to have his case heard to completion by the first tribunal impaneled to hear that case and as so happened in this case, a favorable tribunal and panel to hear that case.

The court stated that it had no doubt that Detective Phillips's conduct was intended to goad the defense into requesting a mistrial. The court indicated that it considered police conduct to be “state action,” but mentioned to the prosecutor, “I certainly don't think you intended for this to happen. I think you are as aggravated and as angry about the mistrial as I am.”

The court issued a supplement to its judgment on November 30, 2010. It concluded that the State's argument that the double jeopardy clause was not implicated in these circumstances was incorrect:

Police conduct is deemed to be governmental conduct in 42 U.S.C. section 1983 jurisprudence. Brewer v. Trimble, 902 S.W.2d 342 (Mo.App. S.D.1995),

[344 S.W.3d 869]

Miller v. Smith, 921 S.W.2d 39 (Mo.App. W.D.1996). In the context of the Fourth Amendment and search and seizure law, police conduct is considered to be governmental conduct. State v. Collett, 542 S.W.2d 783 (Mo. banc 1976). In the context of Fifth...

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2 practice notes
  • State v. Turner, No. SD 31446.
    • United States
    • Court of Appeal of Missouri (US)
    • June 8, 2012
    ...are to Missouri Court Rules (2012), unless otherwise specified. 2. Appellant was charged as a prior offender. 3. In State v. Lee, 344 S.W.3d 865 (Mo.App. W.D.2011), the State appealed the trial court's dismissal of the State's criminal case with prejudice. Id. at 870. Prior to the dismissal......
  • Grafeman v. Dir. of Revenue, No. WD 72551.
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 2011
    ...Therefore, we reverse the trial court's judgment and remand the case for a new trial, where Mr. Grafeman should be allowed [344 S.W.3d 865] to present other defenses in the case. PFEIFFER, P.J., and AHUJA, J., concur.--------Notes: 1. All statutory references are to RSMo 2000 and the Cumula......
2 cases
  • State v. Turner, No. SD 31446.
    • United States
    • Court of Appeal of Missouri (US)
    • June 8, 2012
    ...are to Missouri Court Rules (2012), unless otherwise specified. 2. Appellant was charged as a prior offender. 3. In State v. Lee, 344 S.W.3d 865 (Mo.App. W.D.2011), the State appealed the trial court's dismissal of the State's criminal case with prejudice. Id. at 870. Prior to the dismissal......
  • Grafeman v. Dir. of Revenue, No. WD 72551.
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 2011
    ...Therefore, we reverse the trial court's judgment and remand the case for a new trial, where Mr. Grafeman should be allowed [344 S.W.3d 865] to present other defenses in the case. PFEIFFER, P.J., and AHUJA, J., concur.--------Notes: 1. All statutory references are to RSMo 2000 and the Cumula......

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