State v. Mills

• Decision Date: 30 March 2021
• Docket Number: ED 108022
• Citation: State v. Mills, 623 S.W.3d 717 (Mo. App. 2021)
• Parties: STATE of Missouri, Respondent, v. Desmond Artez MILLS, Appellant.
• Court: Missouri Court of Appeals

623 S.W.3d 717

STATE of Missouri, Respondent,

v.Desmond Artez MILLS, Appellant.

ED 108022

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: March 30, 2021

Application for Transfer Denied June 29, 2021

Alexandra A. Shah, 1010 Market Street, Suite 1100, St. Louis, MO 63101, for appellant.

Richard A. Starnes, Assistant Attorney General, P.O. Box 899, Jefferson City, MO 65102, for respondent.

Lisa P. Page, Judge

Desmond Artez Mills(Appellant) appeals from the trial court's judgment, following a jury trial, convicting him of (Count I) first-degree murder, in violation of Section 565.020¹;(Count II) armed criminal action, in violation of Section 571.015; and (Count III) unlawful use of a weapon, in violation of Section 571.030.He was sentenced to two concurrent terms of life in prison on Counts I and II, and a term of 15 years on Count III to run consecutively with Count I.The sentences for Counts I, II and III were to run consecutively with Appellant's sentence in a separate case in St. Louis County, No. 16SL-CR08833-01.We affirm.

BACKGROUND

On October 31, 2016, Appellant went with his then-girlfriend, Latraneice Duncan(Duncan) to a pawn shop where she purchased a handgun.She brought it to her home in Lemay and put it in a purse in her closet.Appellant also lived there and did not have permission to use the gun, but he photographed the gun with his phone.

The next day, Duncan took Appellant to a 7-Eleven to meet Douglas Coats(Victim).Appellant and Victim exchanged numerous phone calls and texts throughout that day and into the next morning.They referenced doing "business,""playing games," and Victim not being a "baby."One message referred to "Ol gal" planning to call the police, and another message from Appellant advised Victim that he had heroin for Victim.Their final text message at 3:09 a.m. on November 2, 2016, indicated Appellant was on his way to his mom's house.Around 6:15 a.m. on November 2, Appellant dropped Duncan off at work and took her car.About three hours later, shortly after 9 a.m., Appellant called Victim one last time.

Around 9:15 a.m., near the intersection of Winnebago and Wisconsin in St. Louis, Joyce Griffin(Witness) was getting ready for work when she heard a gunshot and then a vehicle speed away.She went outside and saw Victim leaning over in the driver's seat of a car in the street.She recognized him as someone who she"always" saw in the neighborhood.She first thought he was drunk, but then she came close enough to see he had been shot and was dead.

Police arrived to find Victim had been killed by a gunshot wound to the neck.There was a bullet hole in the rear driver's seat window.Victim's car was still in gear and his foot was on the brake.No firearms were located in the vehicle and there were no signs of a struggle.Victim's cell phone was recovered from the car, along with controlled substances.Heroin and cocaine were packaged in a manner consistent with sales.

Up the street from Victim's vehicle, police found an empty shell casing and a cell phone in the street.Examination of the phone revealed it belonged to Appellant and included records of all the phone calls and text messages between Appellant and Victim, including the call minutes before Victim was murdered.Based on the phone, Appellant was identified as a person of interest in the investigation.

On December 5, 2016, Appellant was home with Duncan and had possession of her gun, even though Duncan had never told him where she kept it.Police were called to the scene where they recovered the gun.Tests showed that it fired the shell casings found at the crime scene and was of the same class that fired the bullet recovered from Victim.

An autopsy conducted on Victim revealed he was killed by a single gunshot that entered his neck and went through his thyroid gland, trachea, two major blood vessels, and his lung.The bullet exited the right side of Victim's chest and then entered his arm.The bullet jacket was recovered from Victim's neck wound and the core from his arm.The trajectory and lack of stippling demonstrated the gun was likely fired from outside the car.Victim's injuries were consistent with a shot fired through the rear driver's seat window where the bullet hole was found.

The State of Missouri(State) charged Appellant as a prior offender with first-degree murder, armed criminal action, unlawful use of a weapon, and unlawful possession of a firearm.²Prior to trial, Appellant filed a "Request for a Daubert³ Hearing" regarding the toolmark examination conducted that linked the shell casing found at the scene to the gun owned by Duncan and possessed by Appellant.The trial court denied the motion for a Daubert hearing.The State filed a motion in limine to prohibit defense counsel from cross-examining the State's toolmark and firearms experts about information contained in reports authored by the National Academy of Science (NAS) from 2009 and Presidential Council of Advisors on Science and Technology(PCAST) from 2015, especially asserting a "false positive" rate as fact in toolmark examination.The trial court granted the State's motion in limine to prevent a cross-examination of the toolmark experts about the NAS and PCAST reports.The relevant facts regarding the pre-trial hearings and testimony on toolmark examination will be discussed in greater detail in the Analysis of Points III and IV.

The first three counts were tried by a jury.Appellant presented no evidence in his defense.The jury found him guilty on all three counts and sentenced him to life without parole for murder, a concurrent term of life for armed criminal action, and a consecutive term of 15 years for unlawful use of a weapon.The sentence was to run consecutively with the sentence Appellant received in a separate case in St. Louis County, where he was convicted of two counts of domestic assault in the second degree.This appeal follows.

DISCUSSION

Appellant raises five points on appeal.His first two points allege the trial court erred in denying his motion for judgment of acquittal, denying the motion for new trial, and imposing sentences on Appellant for Counts I, II, and III, in that the evidence did not prove the crimes beyond a reasonable doubt.Appellant's third and fourth points allege the trial court abused its discretion in prohibiting defense counsel from cross-examining the State's toolmark expert, Officer David Menendez(Menendez), and denying his request for a Daubert hearing.Appellant's fifth point alleges the trial court erred in denying his motion for judgment of acquittal, and in denying the motion for new trial, because the cumulative effect of all the errors in Points I through IV resulted in a miscarriage of justice.We will discuss Appellant's points in the order raised.

Points I and II

Appellant's first two points allege the trial court erred in denying his motion for judgment of acquittal, denying the motion for new trial, and imposing sentences on Appellant for Counts I, II, and III, in that the evidence did not prove the crimes beyond a reasonable doubt.His first point alleges the trial court erred in denying his motion for judgment of acquittal at the close of the State's evidence, denying the motion for new trial, and in imposing sentences on Appellant for Count I, first-degree murder, and the associated Count II, armed criminal action, in that the evidence did not prove beyond a reasonable doubt that Appellant was the shooter or had the specific intent necessary to commit the charged murder against Victim.Appellant's second point alleges the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence, denying the motion for new trial, and imposing sentences on Appellant for Count III, unlawful use of a weapon, in that the evidence did not prove beyond a reasonable doubt that Appellant knowingly discharged a firearm at a motor vehicle.Appellant alleges the trial court's errors prejudiced him by depriving him of his right to due process of law, as guaranteed by the Fourteenth Amendment to the U.S. Constitution, andArticle I, Section 10 of the Missouri Constitution.Appellant urges this Court to reverse his conviction on Counts I, II, and III and discharge him.

Standard of Review

In reviewing the trial court's denial of a motion for judgment of acquittal, the Court must determine if the State presented sufficient evidence to make a submissible case.State v. Johnson , 244 S.W.3d 144, 152(Mo. banc 2008).We determine whether there is sufficient evidence from which a reasonable juror may have found the defendant guilty beyond a reasonable doubt.Id.This Court views the evidence in the light most favorable to the judgment, disregarding any contrary evidence, and grants the State all reasonable inferences from the evidence.Id.However, an appellate court"may not supply missing evidence, or give the [S]tate the benefit of unreasonable, speculative or forced inferences."State v. Clark , 490 S.W.3d 704, 707(Mo. banc 2016)(quotingState v. Whalen , 49 S.W.3d 181, 184(Mo. banc 2001)(overruled on other grounds)).We give deference to the jury as the trier of fact, in their superior position, to assess the credibility of witnesses and the weight and value of their testimony.Johnson , 244 S.W.3d at 152.

The State may meet its burden of proof by presenting either direct or circumstantial evidence connecting the defendant to each element of the crime.State v. Burns , 444 S.W.3d 527, 529(Mo. App. E.D.2014).Furthermore, circumstantial evidence is given the same weight as direct evidence in considering whether there was sufficient evidence to support a conviction.State v. McBenge , 507 S.W.3d 94, 104(Mo. App. E.D.2016).

Analysis

Point I

Appellant's first point alleges the trial court erred in denying his motion for judgment of acquittal at the close of the State's evidence, denying the motion for new trial, and in imposing sentences on Appellant for Count...