State v. McDaniel

• Decision Date: 25 October 2007
• Docket Number: No. 27572.,27572.
• Citation: 236 S.W.3d 127
• Parties: STATE of Missouri, Plaintiff-Respondent v. Brian McDANIEL, Defendant-Appellant.
• Court: Missouri Court of Appeals

236 S.W.3d 127

STATE of Missouri, Plaintiff-Respondent v. Brian McDANIEL, Defendant-Appellant.

No. 27572.

Missouri Court of Appeals, Southern District, Division One.

October 25, 2007.

Daniel J. Ross, Ray E. Sousley, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joshua N. Corman, Asst. Atty. Gen., Jefferson City, for respondent.

JOHN E. PARRISH, Presiding Judge.

Brian McDaniel (defendant) was convicted, following a jury trial, of murder in the first degree. § 565.020.¹ This court affirms.

On July 3, 2001, the body of Kendace DeCarlo was found at her residence in Newton County. She had sustained two gunshot wounds to the head. An autopsy determined the cause of death as "massive brain trauma secondary to gunshot wound." The police officer who responded to the scene, Officer Allen, found three unused rounds of RP .380 cartridges on the front porch. He found two RP .380 shell casings on the porch just outside the front door near the victim's body.

Detective Jimmy Wallace, an officer with the Joplin Police Department, contacted Val Moss, Brad Moss, and Michael Wheeler. Detective Wallace was told that the three of them had come to the Moss residence that was located near the victim's residence about 9:45 the night of the shooting; that a white car was parked in front of the Moss residence when they arrived. A black male was seated in the driver's seat. They saw another black male run down an alley and get in the car.

Detective Wallace developed photo lineups for the three witnesses to view. All three witnesses identified defendant from one of the photo lineups as one of the persons they saw near the Moss residence the evening of the murder. They also identified a picture of a white Saturn rental car to which defendant had access as being very similar to, if not the same as, the car they saw at the Moss residence. The three witnesses identified a picture of Don Overton from another photo lineup as the other person they saw the night of the murder.

In July 2002, Detective Wallace went to Tulsa, Oklahoma, where defendant lived. He was present when a search warrant was executed at defendant's apartment. The officers executing the search warrant seized a box of .380 ammunition. It was not a full box and contained different brands of ammunition. RP was the dominant brand.

Defendant told the officers that he was an ex-boyfriend of the victim; that his intentions had been to get back with her. Defendant said at the time of the murder he had been "out dealing dope that night, in and out of his apartment." He told the officers that about a week and a half before the murder, he learned the victim "was not only cheating on him, but that she was selling her new lover's dope along with his dope." Defendant told the officers that during his relationship with the victim, she had sold his dope; that he believed she was murdered because of her dope dealing and her relationship with her new boyfriend.

Israel Ward had known defendant since the early 1990s. At the time of the trial of this case, Ward was in federal custody after pleading guilty to conspiracy to distribute cocaine. His sentencing was pending. He had pleaded guilty pursuant to a negotiated plea agreement. The plea agreement provided for a recommendation of a 15-year sentence. One of the terms of the plea agreement was that Ward would cooperate with any federal, state, or local government in prosecuting a crime about which he had knowledge.

Ward told the jury about business dealings he had with defendant involving "[d]rug distribution." He said defendant was upset with the victim because of her relationship with a new boyfriend; that defendant told Ward defendant was going to get Donald Overton to kill her. Ward said defendant told him that a .380 semi-automatic handgun would be used because it "was a throw away, a gun that was untraceable to anybody." Ward said defendant had shown him the gun. Ward talked to defendant after the victim had been killed. Ward told the judge and jury, "[H]e let me know that it had been handled, and that Overton had pulled the trigger."

Point I

Defendant asserts four points on appeal. Point I is directed to the trial court's denial of a motion to exclude defendant's statement made to Detective Jim Wallace in July 2002. Defendant contends it was error to deny the motion "because the statement was taken ... as part of plea negotiations between the Newton County prosecutor and counsel for the defendant...."

Point I asserts trial court error in the denial of a pre-trial motion to exclude the statement made to Detective Wallace; the denial of a motion to suppress evidence. Point I does not claim error by the trial court in admitting testimony at trial regarding what defendant said. In order to attack the validity of the admission of evidence to which a motion to suppress evidence was directed, the question to which the motion was directed must be kept alive by asserting a timely objection to its admission at trial and by raising the matter in a motion for new trial. State v. Hart, 805 S.W.2d 234, 238 (Mo.App. 1991). The issue must further be presented in the brief on appeal. State v. Guidorzi, 895 S.W.2d 225, 228 (Mo.App.1995). Here, an objection was made at trial, albeit that the motion for new trial complained only of the denial of the motion to exclude defendant's statement.

A similar defect occurred in State v. Hart, supra. There, as in this case, the point on appeal challenged only the trial court's ruling on the motion to suppress. The Eastern District of this court identified the deficiency but, nevertheless, addressed the admissibility of the evidence. Hart explained:

No reference is made in the point or in the argument to any objection made by trial counsel or any error made by the trial court in the reception of the disputed evidence. This would ordinarily be fatal to the consideration of this point. The record, however, does indicate that a timely objection was in fact made to the reception of this evidence which was preserved in the motion for new trial. Although the error was not properly raised, we will exercise our discretion and review the matter on its merits for plain error under Rule 30.20.

805 S.W.2d at 238. Apparently in Hart there was sufficient record from which the court could determine whether the trial court's ruling was erroneous. That is not the situation in this case. Defendant provided no transcript to this court of the evidence adduced at the trial court's hearing on the pre-trial motion to suppress the statement about which defendant now complains.

The record on appeal is required to contain all of the record of proceedings and evidence necessary to determine the questions presented by the appeal. Rule 30.04(a). It was defendant's duty to secure the necessary record of proceedings that is required to determine the issue about which he complains. Rule 30.04(c). Without a transcript of the hearing on which defendant's claim of error is based, this court cannot determine the issue asserted in Point I. See Grafton v. City of Plattsburg, 167 S.W.3d 731, 734 (Mo.App. 2005). Point I is denied.

Point II

Point II states:

The trial court erred in allowing a witness and the prosecutor to quote a statement allegedly from a co-defendant who was not present and would not testify, because the statement was hearsay, extremely prejudicial to defendant, and the maker of the statement was not available for confrontation and cross-examination.

Rule 30.06 requires briefs by appellants in criminal cases to meet the same requirements Rule 84.04 imposes in appeals of civil cases. This includes the requirement that the statement of facts and the points relied on be prepared as provided in Rule 84.04. State v. Dodd, 944 S.W.2d 584, 587 n. 2 (Mo.App.1997); Rule 30.06(c). Rule 84.04(d) prescribes what points relied on shall contain. Rule 84.04(d)(1) explains:

Where the appellate court reviews the decision of a trial court, each point shall:

(A) identify the trial court ruling or action that the appellant challenges;

(B) state concisely the legal reasons for the appellant's claim of reversible error; and

(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.

The point shall be in substantially the following form: "The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error]."

"Abstract statements of law, standing alone, do not comply with this rule." Rule 84.04(d)(4).

Point II does not comply with requirements of Rule 84.04 in that it does not explain why, in the context of the case, the legal reasons it asserts support its claim of reversible error. Point II neither identifies the nature of the statement it attributes to "a witness and the prosecutor" that it claims was hearsay nor identifies the witness about whom it complains.

"Violations of Rule 84.04 are grounds for a court to dismiss an appeal." Shochet v. Allen, 987 S.W.2d 516, 518 (Mo. App.1999). "Whether an appeal will be dismissed for failure to comply with Rule 84.04 is discretionary." Bamber v. Dale Hunt Trucking, 107 S.W.3d 489, 490 (Mo. App.2003), quoting Hampton v. Davenport, 86 S.W.3d 494, 496 (Mo.App.2002). "That discretion is generally not exercised unless the deficiency impedes disposition on the merits. `A brief impedes disposition on the merits where it is so deficient that it fails to give notice to [the court] and to the other parties as to the issue presented on appeal.'" Keeney v. Missouri Hwy. & Transp. Com'n, 70 S.W.3d 597, 598 n. 1 (Mo.App.2002), quoting Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo.banc 1997).

Defendant's opening paragraph of the part of his argument directed to Point II that he characterizes as "[r]elevant facts" identifies the statement of the...