State v. McKay

• Decision Date: 23 December 2014
• Docket Number: No. ED 101298,ED 101298
• Citation: State v. McKay, 459 S.W.3d 450 (Mo. App. 2014)
• Court: Missouri Court of Appeals
• Parties: State of Missouri, Respondent, v. Cornell McKay, Defendant/Appellant.

459 S.W.3d 450

State of Missouri, Respondent

v.Cornell McKay, Defendant/Appellant.

No. ED 101298

Missouri Court of Appeals, Eastern District, Division Two..

FILED: December 23, 2014

Motion for Rehearing and/or Transfer to Supreme Court Denied February 24, 2015

Application for Transfer Denied April 28, 2015

Robert Brooks Ramsey, Co-Counsel, Exra & Associates, St. Louis, James R. Dowd, Co-Counsel, Law Office of James R. Dowd, Clayton, Joseph Fredric Yeckel, Co-Counsel, Law Office of Joseph F. Yeckel, LLC, Clayton, Thomas James Sanfilippo, St. Louis, for Appellant.

Chris Koster, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, for Respondent.

OPINION

Mary K. Hoff, Presiding Judge

Cornell McKay (Defendant) appeals from the judgment upon his conviction by a jury for one count of first-degree robbery, in violation of Section 569.020, RSMo 2000,¹ and one count of armed criminal action, in violation of Section 571.015. The trial court sentenced Defendant to a term of twelve-years' imprisonment on each count, with the sentences to run concurrently. We reverse and remand for a new trial.

Factual and Procedural Background

Viewed in the light most favorable to the verdict, the following evidence was adduced at trial: On August 10, 2012, Leigh Deusinger (Victim) left work around 5:00 or 5:30 p.m. and drove to Tower Grove Park, where she met some friends for a “Food Truck Friday” event. At about 8:25 p.m., while on her way home, Victim called her husband but was unable to reach him.

When she arrived home, she parked on the street in front of her condo. She exited her car and went to the trunk to retrieve a larger purse she had put in it. At this moment, she noticed a young man walk past her. As she opened the trunk and leaned in to retrieve her purse, she saw the same young man walking back towards her. She closed the trunk, and the young man circled around the driver's side of her car and made eye contact with her. He said, “Give me your money,” and pointed a gun at Victim's stomach. Victim put up her hands and said, “I don't have anything.” The man repeated his demand and then asked if she had a cell phone. Victim told him it was in the front seat, and the man said, “Well, give it to me. Give it to me.”

Victim walked back to the driver's door and sat down inside the car and the man put his arm on the door and leaned in. Victim told the man that her phone was in her purse, and she gestured toward it. She then put the purse on her lap, unzipped it, and handed her phone to the man. The phone was an “Evo 3.” There was also some cash in the purse that Victim gave to the man. The man asked what else she had, and he “rifled” through the contents of Victim's purse. Victim told him that she did not have anything else and the man turned and ran away toward West Pine.

Immediately following the robbery, Victim retrieved her larger purse from the trunk, and went inside her condo. She was unable to call the police because she did not have a land line. Her husband was not at home. Victim then became “really scared” and turned off the lights, thinking that the man who had robbed her might be able to identify the condo where she lived.

When the robbery occurred, Victim's husband had been out walking their dog. Victim's husband testified that during his walk, he encountered a young man on the street. They nodded to each other but passed without speaking. As Victim's husband was returning to their condo, he saw the same young man on the corner of Boyle and West Pine, about a block from their condo. The man looked at Victim's husband and then ran across Boyle Street. Victim's husband “checked to make sure everything was squared away with the cars,” and then he went inside.

When he entered the condo, he found Victim standing in the dark. He asked Victim what was wrong, and she told him she had been robbed at gunpoint. She started shaking and crying, and they called 911 on her husband's cell phone. The 911 call was made at about 8:40 p.m.

When the police arrived, Victim described the robbery and provided a physical description of the suspect. Victim described the suspect as a young African–American male, tall, thin, and very clean cut. She testified that his skin was more light colored, that he was wearing a light-colored, white or powder blue t-shirt, light-colored khaki shorts, and tennis shoes.

After talking to police, Victim decided to leave her phone service on, in an attempt to track the stolen phone. Thereafter, on two occasions, Victim accessed her cell phone account on-line and obtained a list of telephone numbers and calls. She testified that she prepared these lists by “copy[ing] and past[ing] them from the website into an Excel spreadsheet.” She then copied the list and e-mailed the information to police. The first list included calls from August 10 to August 13, 2012; the second included calls from August 10 to August 18, 2012.

About eight days after the robbery, Victim canceled her phone service when a friend informed her that she had received a “pocket” call and a strange message from Victim's stolen phone. Aside from a call Victim had made to her husband shortly before the phone was stolen and from the strange “pocket” call to her friend, Victim did not recognize any of the telephone numbers that appeared on the lists she provided to the police.

On August 20, 2012, using telephone numbers provided by Victim, Detective Anthony Boettigheimer (Detective Boettigheimer) obtained the name of Lamont Carter (Carter) from the CrimeMatrix database and in turn obtained the names of several people connected with Carter. Detective Boettigheimer then compared those people to the description of the robber and only Defendant matched the description provided by Victim.

That same day, police compiled a photo line-up that included Defendant and showed Victim the photographs. Victim recognized the man who had robbed her and identified Defendant. Victim's husband did not identify anyone from the photo line-up.

On August 21, 2012, after Detective Boettigheimer put out a “wanted” for Defendant and talked to the associate pastor at Defendant's church, Defendant turned himself in. Victim and her husband went to the Justice Center and viewed a live line-up. They entered the viewing room separately. When Victim entered the room, she immediately saw the man who had robbed her. Victim testified that she took the time to look at each person, but she was sure she recognized the man who had robbed her. Victim's husband identified Defendant as the man he had seen on the street that evening. He was certain that Defendant was the man he had seen. Victim also identified Defendant at trial as the man who had robbed her.

In investigating the case, Detective Boettigheimer interviewed Kaylin Perry (Perry), who indicated that she had received Victim's phone from her boyfriend, Keith Esters (Esters). Detective Boettigheimer then tracked down Victim's phone at a gas station in Wellston. The police had been told that the phone had been sold to someone there. Detective Boettigheimer went to the gas station and retrieved the phone. The gas station employees identified Esters as an individual who sold the phone and was accompanied by Perry. Later, the State charged Defendant with robbery in the first degree and armed criminal action.

Prior to trial, Defendant filed a pretrial notification of his intent to rely on an alternative perpetrator defense and a motion to admit evidence in support of that defense. In response, the State filed a motion in limine to prevent the defense from presenting this alternative perpetrator evidence as well as from mentioning “Megan Boken” (Boken) or “Keith Esters” by name.² At the conclusion of the pre-trial hearing, the trial court sustained nearly all of the State's motions in limine, and specifically ruled that Defendant could not present the following evidence in support of his alternative perpetrator defense: Esters' s incriminating admissions to Perry and Detective Jackson regarding the robbery; any references to the Boken case or Esters's involvement in that crime; “Keith's” surname; matching clothing found hidden at Esters's residence; and a photograph of Esters shown to BP station employees.

After the State rested its case, there was a lengthy discussion and further offer of proof. The trial judge then partially revised her previous orders noting she had misread Victim's deposition. The court ruled that the defense would be permitted to elicit testimony from Perry that a person named “Keith” had “robbed somebody” for Victim's phone.

Defense counsel made an offer of proof regarding Perry's testimony that Esters possessed a handgun fitting the description of the weapon used in the robbery. Defense counsel maintained that Esters's possession of a small silver handgun was relevant because it corroborated his statement implicating himself in the robbery. Defense counsel further offered to prove that Carter, who police located from the CrimeMatrix database, sold the small silver handgun to Esters before the robbery and that Carter resided with Perry and Esters at times. The State argued in response that Esters's possession of “a small silver gun” was irrelevant because “half the criminals in the City of St. Louis have a small silver gun.” The trial court rejected Defendant's offer of proof regarding Esters's possession of the gun finding that the defense had not established a substantial link between Esters and the gun used in the robbery.

The defense called two witnesses, Perry and Detective Jackson. Before they testified, the trial court told both witnesses that they were not permitted to mention the Boken case or to identify “Keith” by his last name.

At trial, Perry testified that her boyfriend, “Keith,” was about 6'0? or 6'2? and nineteen years old. She testified that in August 2012, she had a cell phone with the telephone number 373–0135. She testified that her phone stopped working, and that she started using an Evo cell...