State v. Mcquary
| Decision Date | 18 October 2005 |
| Docket Number | No. WD 64730.,WD 64730. |
| Parties | STATE of Missouri, Respondent, v. Larue L. McQUARY, Appellant. |
| Court | Missouri Supreme Court |
Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn Naccarato, Assistant Attorney General, Jefferson City, MO, for respondent.
Ellen H. Flottman, Assistant Public Defender, Columbia, MO, for appellant.
Before HOWARD, P.J., and SMART and NEWTON, JJ.
Larue L. McQuary appeals his conviction of the class A felony of distribution of a controlled substance within 2,000 feet of a school in violation of section 195.214,1 for which he was sentenced as a prior and persistent drug offender to twenty-five years imprisonment. In his appeal from the judgment entered upon his conviction, McQuary raises two points. Prior to considering McQuary's points on appeal, we must consider his motion for remand that was taken with the case.
McQuary has filed a motion for remand based on evidence of alleged juror misconduct he discovered subsequent to filing this appeal. He seeks a remand based on allegations that one of the jurors failed to disclose that he knew one of the State's witnesses.
In support of his motion for remand, McQuary states that Daniel Woods, who was later selected to serve on the jury, did not respond when the venire panel was asked during voir dire if they knew any of the witnesses, including Justin Berry. Berry testified for the State at McQuary's trial that he went to McQuary's home on March 28, 2003, to exchange property that James Foote had given him for at least $100 worth of crack cocaine from McQuary. McQuary took the property and gave Berry the crack cocaine in return. Berry then left McQuary's house, returned to his car, and smoked the crack cocaine with Foote. The jury convicted McQuary of distribution of a controlled substance within 2,000 feet of a school.
After the time for filing a motion for new trial had expired and McQuary had filed his appeal with this court, McQuary obtained an affidavit from Joshua Huffman, which states, in relevant part:
I, Joshua L. Huffman, do hereby profess that I know for sure that juror Daniel ("Danny") Woods and witness Justin Berry knew each other at the time of LaRue McQuary's trial on June 30, 2004. In fact I've taken Danny along with me over to Justin's home — when he lived at 813 W. Rollins — several (at least three) times on visits, we were all recreational buddies in 2002. So Danny and Justin knew each other pretty well, and I'm willing to testify to this — if need be.
McQuary asks that we use our inherent power to remand to the trial court to allow him to file, out of time, a motion for new trial based on this evidence of juror Woods' misconduct. See State v. Jackson, 925 S.W.2d 856, 860 (Mo.App. W.D.1996) ().
In State v. Davis, 698 S.W.2d 600, 603 (Mo.App. E.D.1985), the Eastern District discussed its opinions in State v. Mooney, 670 S.W.2d 510 (Mo.App. E.D.1984), and State v. Williams, 673 S.W.2d 847 (Mo.App. E.D.1984). Mooney, 670 S.W.2d at 515-16, and Williams, 673 S.W.2d at 848, first recognized the above-described discretionary jurisdiction of the appellate courts to remand a cause to the trial court for consideration of a motion for new trial based on newly discovered evidence. Davis explained the exceptionally narrow scope of those holdings as follows:
A careful reading of those cases reveals that they involved exceptional circumstances and are thus limited. Furthermore, it is clear that remand is not mandated in cases involving allegations of newly discovered evidence after appeal. A case will only be remanded on the basis of newly discovered evidence after appeal where the court, in its discretion, determines that its inherent power must be exercised in order to prevent a miscarriage of justice.
698 S.W.2d at 603. In McCauley v. State, 866 S.W.2d 892, 894 (Mo.App. E.D.1993), the Eastern District further explained:
The facts of Williams and Mooney were extremely unique. In both cases, the defendants had newly discovered evidence which would completely exonerate them of the crime for which they were convicted. Williams, 673 S.W.2d at 847; Mooney, 670 S.W.2d at 512 (). A failure to present that evidence in a motion for new trial would have resulted in a serious miscarriage of justice.
The aforementioned cases involved newly discovered evidence tending to completely exonerate the defendants, not newly discovered evidence of juror misconduct, as alleged here. The only case discovered by this court concerning a remand upon newly discovered evidence of juror misconduct is State v. Post, 804 S.W.2d 862 (Mo.App. E.D.1991). In Post, the Eastern District stated at the outset that it had previously exercised its discretion and granted the defendant's motion to remand for new trial by reason of newly discovered evidence of serious juror misconduct. Id. at 862. The actual issue in Post involved the proceedings that occurred after that remand, i.e., the State appealed from the trial court's judgment granting a new trial after the trial court made findings of serious juror misconduct on remand. Id. The Eastern District agreed with the trial court that substantial evidence supported the trial court's finding of prejudicial juror misconduct. Id. at 863. The misconduct resulted from "outrageous" conduct by law enforcement in interacting with the sequestered jury, which conduct included unauthorized socializing with the jurors and sexual contact between an alternate juror and a deputy sheriff not assigned to the jury. Id. at 862-63. In agreeing with the trial court that a new trial was warranted, the Eastern District concluded, "[n]o one should be on trial for any crime, much less murder, in such a lackadaisical atmosphere." Id. at 863.
McQuary argues that as in Post, the evidence of juror Woods' misconduct requires that this cause be remanded for a new trial. We disagree. Post involved evidence of egregious juror misconduct. This case does not involve such exceptional circumstances as to warrant the exercise of our inherent discretion to remand the case back to the trial court. The only evidence McQuary offers in support of his motion for remand is an affidavit from Joshua Huffman, which has no proof of credibility, and the information revealed does not exonerate McQuary. Huffman's affidavit does little more than to mention that sometime in 2002, two years before McQuary's trial, he took juror Woods with him to Berry's house on at least three occasions. Even if we assume Huffman's statements are true, we can conjecture several different scenarios in which juror Woods could have been completely truthful when he did not respond when the venire panel was asked during voir dire whether anyone knew Justin Berry. For example, Woods may have never known Berry by name, Woods may have known Berry by another name, or Woods may not have recalled meeting Berry due to the lapse of time. Moreover, Berry's testimony was not the only testimony offered at McQuary's trial concerning the exchange of property for cocaine that occurred at McQuary's residence. James Foote also testified about the transaction. It was Foote's property that Berry exchanged with McQuary for the cocaine. Foote used Berry as a "go-between," because McQuary
We are not convinced that a serious miscarriage of justice will result if we do not exercise our discretion to remand to the trial court for its consideration of this information in a motion for new trial. McQuary's motion for remand is denied.
McQuary argues in his first point on appeal that the trial court erred in overruling his motion for acquittal at the close of all the evidence and in sentencing him, because the State failed to prove beyond a reasonable doubt that McQuary knew his residence was within 2,000 feet of school property, which is required to establish a violation of section 195.214.
When reviewing a motion for judgment of acquittal, we apply the same standard of review as the standard used in reviewing a challenge to the sufficiency of the evidence. State v. Botts, 151 S.W.3d 372, 375 (Mo.App. W.D.2004). We must determine "whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt, not whether the verdict was against the weight of the evidence." Id. In so reviewing, we "accept[ ] as true all evidence and its reasonable inferences in a light most favorable to the verdict and reject[ ] all contrary evidence and inferences." Id.
The State charged McQuary with distribution of a controlled substance near schools — specifically, Moberly Area Community College, a public junior college — in violation of section 195.214. Section 195.214.1 provides, in relevant part:
[a] person commits the offense of distribution of a controlled substance near schools if such person violates section 195.211 by unlawfully distributing or delivering any controlled substance to a person . . . within two thousand feet of, the real property comprising a . . . public or private junior college[.]
State v. White, 28 S.W.3d 391, 396 (Mo.App. W.D.2000) (citations omitted). Section 195.211.1, provides, in relevant part, that "it is unlawful for any person...
To continue reading
Request your trial