State v. Manley

• Decision Date: 24 December 2013
• Docket Number: No. ED 97949.,ED 97949.
• Citation: State v. Manley, 414 S.W.3d 561 (Mo. App. 2013)
• Parties: STATE of Missouri, Respondent, v. Cornell MANLEY, Appellant.
• Court: Missouri Court of Appeals

414 S.W.3d 561

STATE of Missouri, Respondent,

v.Cornell MANLEY, Appellant.

No. ED 97949.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 24, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 5, 2013.

Application for Transfer Denied Dec. 24, 2013.

Lisa M. Stroup, Assistant Public Defender, St. Louis, MO, for appellant.

Gregory L. Barnes, Assistant Attorney General, Jefferson City, MO, for respondent.

PATRICIA L. COHEN, Judge.

Introduction

Cornell Manley (Defendant) appeals the judgment of conviction entered after a jury found him guilty of one count of first-degree murder, two counts of first-degree assault, and three counts of armed criminal action. Defendant claims the trial court: (1) abused its discretion in overruling Defendant's objections when the prosecutor asked the venire panel whether they required certain types of evidence to consider conviction; and (2) plainly erred in failing to declare a mistrial and instructing the jury to continue deliberations. Defendant also filed with this court a motion to remand based on newly discovered evidence, which we took with the case. We deny the motion for remand and affirm the judgment of conviction.

Factual and Procedural Background

On the afternoon of October 3, 2009, Anthony Dodson picked up Defendant in a maroon Toyota Avalon. Dodson and Defendant stopped at a gas station, and Dodson went inside, where Trevon Sykes verbally confronted and flashed a gun at him. Dodson returned to the maroon Toyota, and Sykes climbed into the driver's seat of a green Pontiac Grand Prix, in which Craig Nichols and Brandon Campbell were waiting. Sykes followed Defendant and Dodson out of the gas station parking lot, and Nichols fired a gunshot at the maroon Toyota.

Sykes, Nichols, and Campbell then picked up Sykes's girlfriend and drove to a Schnucks parking lot where they waited while the girlfriend shopped. From the parking lot, they saw Dodson and Defendant drive by in the maroon Toyota. At this point, Campbell, who was sitting in the driver's seat, drove the car out of the parking lot because he feared retaliation by Defendant and Dodson.

Dodson pursued the green Pontiac while Defendant fired an AK–47 at it. The Pontiac crashed, and Sykes and Campbell climbed out of the driver's-side window and fled on foot. Nichols, who was injured, slowly emerged from the car. Dodson made a u-turn and drove the Toyota onto the sidewalk where Nichols was lying. As Nichols begged Defendant not to kill him, Defendant shot Nichols at least six times. An ambulance transported Nichols to a hospital, where doctors pronounced him dead.

The State charged Defendant as a prior offender with one count of first-degree murder for causing Nichols's death, two counts of first-degree assault for shooting at Sykes and Campbell, and three counts of armed criminal action. The trial court conducted a four-day jury trial at which the State presented the testimony of Dodson, Sykes, Sykes's former counsel, a forensic medical examiner, an evidence technician, police officers involved in the investigation, and an eye-witness to the October 3, 2009 car chase. The defense presented Campbell and re-called two State witnesses to the stand.

The jury found Defendant guilty on all counts, and the trial court sentenced Defendant as a prior offender to concurrent terms of life imprisonment without the possibility of parole for first-degree murder, life imprisonment for each count of armed criminal action, and fifteen years' imprisonment for each count of first-degree assault. Defendant appeals.

Discussion

1. Motion to Remand to the Trial Court

After Defendant filed his appellate brief, he filed in this court a motion to remand the case to the trial court “for a hearing on whether he is entitled to a new trial because of newly discovered evidence, if relief is not granted on the two points in [his] brief.” Defendant attached an affidavit by State's witness Dodson recanting his testimony against Defendant. We ordered the motion taken with the case.

Defendant asserts that Dodson's post-trial affidavit constitutes newly discovered evidence. In the affidavit, Dodson stated:

1. I was the Co–Defendant and witness against Cornell Manley in State v. Cornell Manley, Case No. 1022–CR00537–01.

2. The testimony I gave against Cornell Manley was completely falsified.

3. I was threatened and told by the arresting officers that if I did not cooperate in helping them put Cornell Manley away that they would do everything in their power to make sure I never saw the streets again.

4. My true statement and testimony is, on 10–3–09 Cornell Manley's whereabouts were unknown to me, and he had absolutely no involvement in the incident that occurred on the following date.

Defendant argues that if the jury had heard Dodson state that his testimony was false, the jury likely would have found Defendant not guilty. The State counters that the information contained in Dodson's affidavit is neither “newly discovered” nor sufficient to exonerate Defendant.¹

Defendant did not file his motion within the time limits for filing a motion for new trial pursuant to Rule 29.11(b). “Once the time for filing a motion for a new trial has passed, the Missouri rules have no provision for the granting of a new trial based on newly discovered evidence even if the evidence is available prior to sentencing.” State v. Terry, 304 S.W.3d 105, 109 (Mo. banc 2010). “Additionally, new evidence that is not in the record should not be considered on appeal.” Id. “Generally, this Court will not remand a case before an appeal is concluded if the lone fact of newly discovered evidence is not enough to grant a new trial.” Id. However, this court has “the inherent power to prevent a miscarriage of justice or manifest injustice by remanding a case to the trial court for consideration of newly discovered evidence presented for the first time on appeal,” and this court will exercise this power in its discretion. Id.

To obtain a new trial on the basis of newly discovered evidence, a movant must show that: (1) the facts constituting the newly discovered evidence came to the movant's knowledge after the end of the trial; (2) the movant's lack of prior knowledge did not result from want of due diligence on his part; (3) the evidence is so material that it is likely to produce a different result at a new trial; and (4) the evidence is neither cumulative only nor merely of an impeaching nature. Terry, 304 S.W.3d at 109. “Such claims succeed very rarely.” State v. Hannon, 398 S.W.3d 108, 113 (Mo.App. E.D.2013) (quotation omitted) (emphasis in original).

Assuming arguendo that Defendant established the first, second, and fourth elements required to succeed on his motion to remand for a new trial on the basis of newly discovered evidence, he failed to demonstrate the existence of the third element. To satisfy the third prong, Defendant must show that the alleged newly discovered evidence “is so material that it is likely to produce a different result at a new trial.” Terry, 304 S.W.3d at 109. To be deemed likely to produce a different result at a new trial, the evidence must be: (1) credible; and (2) “reasonably sufficient to raise a substantial doubt in the mind of a reasonable person as to the result of a new trial.” Hannon, 398 S.W.3d at 114 (quoting State v. Stewart, 313 S.W.3d 661, 666 (Mo. banc 2010)).

Defendant does not allege or otherwise demonstrate that Dodson's affidavit is credible. Testimony from a co-defendant who, after trial, is willing to exonerate the defendant “has an inherent lack of credibility” because “[a]t the time that the co-defendant signifies his willingness to testify, he has been convicted and thus cannot be harmed by testifying untruthfully about the alleged innocence of the defendant seeking a new trial.” State v. Magee, 911 S.W.2d 307, 312–13 (Mo.App. W.D.1995) (citing State v. Hamilton, 732 S.W.2d 553, 556 n. 3 (Mo.App. E.D.1987)). Moreover, “[r]ecanting testimony is exceedingly unreliable and is regarded with suspicion....” State v. Culkin, 791 S.W.2d 803, 814 (Mo.App. E.D.1990) (quoting State v. Harris, 428 S.W.2d 497, 501 (Mo.1968)). Defendant's motion to remand for a new trial based on newly discovered evidence is silent as to why this court should not view Dodson's recantation with suspicion. See, e.g., Harris, 428 S.W.2d at 501 (“There is no reason for us to accept what the affidavits say in preference to what affiants said when they testified at defendant's trial.”).

Even if Dodson's affidavit were credible, it is not reasonably sufficient to raise a substantial doubt in the mind of a reasonable person as to the result of a new trial because the State presented considerable evidence at trial that corroborated Dodson's testimony. Officer Charles Betts testified that, in interviews after the shooting, Dodson and Sykes each described the incident similarly and identified Defendant as the shooter. Officer Betts also stated that “wheel marks and ballistic evidence” corroborated Dodson's and Sykes's statements. In addition, video footage from the security camera at the gas station where Defendant and Dodson originally encountered the victims showed Dodson driving away in a maroon Toyota and Sykes following in a green Pontiac, as described by Dodson and Sykes. Cf. Stewart, 313 S.W.3d at 667 (newly discovered evidence of statements by defendant's brother-in-law, coupled with newly confirmed DNA evidence linking the brother-in-law to the crime scene, raised a substantial doubt warranting a new trial). The motion to remand is denied.

2. Points on Appeala. Voir Dire

In his first point on appeal, Defendant claims the trial court abused its discretion in overruling Defendant's objections when the prosecutor asked whether the venirepersons: (1) required scientific evidence, in addition to testimonial evidence, to convict Defendant; and (2) could make a decision without knowing a motive for the shooting. Defendant...