State v. Minner, WD 70338.

CourtCourt of Appeal of Missouri (US)
Citation311 S.W.3d 313
Docket NumberNo. WD 70338.,WD 70338.
PartiesSTATE of Missouri, Respondent, v. Vincent Keith MINNER, Appellant.
Decision Date29 June 2010

311 S.W.3d 313

STATE of Missouri, Respondent,
Vincent Keith MINNER, Appellant.

No. WD 70338.

Missouri Court of Appeals, Western District.

March 9, 2010.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.

Application for Transfer Denied June 29, 2010.

311 S.W.3d 314


311 S.W.3d 315


311 S.W.3d 316

Kent Denzel, Columbia, MO, for appellant.

Shaun J. Mackelprang and Daniel N. McPherson, Jefferson City, MO, for respondent.

Before Division Four: THOMAS H. NEWTON, Chief Judge, RUSSELL E. STEELE, Special Judge and CYNTHIA L. MARTIN, Judge.


Vincent Minner appeals from a judgment of conviction entered following a jury verdict. Minner was convicted of first degree murder, first degree assault, first degree burglary, and two counts of armed criminal action. On appeal, Minner claims the trial court erred in permitting an officer to testify to statements made at the scene of the crime by the murder victim, which implicated Minner, as a dying declaration. Minner also claims the jury could not have found beyond a reasonable doubt that the murder victim died as a result of the gunshot wounds inflicted by Minner or that Minner acted with deliberation. Finally, Minner alleges the trial court committed plain error in failing to intercede when the State in closing argument characterized a statement made by Minner's counsel during closing argument as deception. We affirm.

Factual and Procedural History1

During the overnight hours of December 4-5, 2006, Michael Terry ("Terry") and Jennifer Terry ("Jennifer"), then husband and wife,2 were at home, sleeping, in their apartment in Sikeston, Missouri.3 Jennifer was in the bedroom. Terry was in the living room, because he was suffering from pain following a recent hospitalization.4 Jennifer was awakened by a knock on the door. She looked out her bedroom window. She saw Minner and another man at the door. Jennifer heard Terry ask who was at the door. Jennifer heard Minner respond, "It's V." Jennifer knew this to be a nickname used by Minner. Jennifer heard a gunshot followed immediately by an exclamation from Terry consistent with having been shot.

Jennifer then heard the sound of the front door being kicked in. She opened her bedroom door and saw Minner in the apartment. There was no sign of the second man she had seen when she first looked out her bedroom window. Terry screamed at Jennifer to get back into the bedroom. Jennifer closed and locked the bedroom door. She picked up the phone to dial 911, but the phone was not working. Jennifer called 911 from her cell phone.

Jennifer heard Minner ask Terry, "Where's the bitch at?" Terry asked Minner why he was doing this, to which Minner responded he was doing it for Brandon Johnson, Orlando Sheron, Travis Williams, and others.5 Jennifer heard sounds of a struggle and then two or three gunshots.

311 S.W.3d 317
Minner then kicked in the bedroom door. Minner punched Jennifer and stabbed her in the neck with a knife

Minner headed towards Jennifer's grandmother's room. Jennifer was afraid for her grandmother's safety. She left the bedroom and saw Minner and Terry fighting in the kitchen. Jennifer picked up a knife lying on the floor and began stabbing Minner. As the three struggled, Minner attempted to pick up the gun which had also fallen to the floor. Jennifer grabbed the gun and put it up in a kitchen drawer. By this time, the struggle between Minner and Terry had taken its toll. Spent and seriously injured, both men lay in different locations in the apartment. Jennifer sat on top of Minner to prevent him from leaving. Minner said to Terry, "Just die with me, man. Just die with me."

When officers arrived at the scene, they found Jennifer bloody, disheveled, and disoriented. The apartment was in complete disarray. Blood spatter and broken glass and furniture were found throughout the apartment. Terry was kneeling on the living room floor. Minner was lying on his back in front of the refrigerator. Both men were bleeding heavily. EMTs arrived. Jennifer was placed in an ambulance and was being treated for a laceration to her neck. Jennifer told officers on the scene that Minner shot Terry through the apartment door.

EMTs on the scene initially treated Terry where he lay in the apartment. Captain James Hailey ("Hailey") then spoke with Terry. Hailey testified that Terry had gunshot wounds to his chest and head and that Terry was weak, ashen, and lying in blood. After conferring with a supervising officer, Hailey told Terry that it looked like he was dying and asked Terry who had shot him. Terry responded that the medics had told him that he was dying and that he knew that he was dying. Hailey again asked Terry who had shot him. Terry indicated to Minner.

During their investigation, officers observed a bullet hole in the front door of the apartment with a burn pattern and stippling on the door. The bullet had gone all the way through the door. The officers also observed damage to the door indicating the door had been forced open. Several live .45-caliber rounds and spent .45-caliber shell casings were found in the apartment. The gun Jennifer had placed in the kitchen drawer was a .45-caliber semiautomatic handgun. Ballistics tests confirmed the gun found in the kitchen could have fired the bullets that were recovered.

Terry was transported to the hospital. Two bullets were recovered from Terry after he underwent surgery, one from his chest and the other from his back. Though Terry initially showed signs of recovery, his condition soon thereafter deteriorated. Terry died on January 2, 2007. Dr. Deidiker performed an autopsy. The autopsy revealed three healing gunshot wounds. One gunshot wound was to the right shoulder. One shot grazed Terry's skull. One shot lacerated a section of Terry's liver, pierced his diaphragm and ended up in his abdominal wall. The autopsy also revealed that Terry had a very cirrhotic liver and signs of heart failure—such as an enlarged heart, lungs that were congested by a buildup of fluids, and congestion of the spleen and adrenal glands. Dr. Deidiker testified that, to a reasonable degree of medical certainty, the primary

311 S.W.3d 318
cause of Terry's death was multiple organ failure as a complication of multiple gunshot wounds. Though Dr. Deidiker testified that Terry was already in poor health due to having cirrhosis of the liver and liver cancer, Dr. Deidiker opined that the gunshot wounds created an additional stress on Terry's body that Terry could not withstand

Following a jury trial, Minner was convicted on Count I—Murder First Degree under section 565.020,6 on Count II—Assault First Degree under section 565.050, on Count IV—Burglary First Degree under section 569.160, and on Counts VI and VII—Armed Criminal Action under section 571.015. Minner was acquitted on Count II—Assault First Degree, on Count V—Tampering with a Victim/Witness, and on Count VIII—Armed Criminal Action.7 Minner was determined to be a prior offender. Minner was sentenced to life imprisonment without possibility of probation or parole on Count I. He was sentenced to ten years on each of Counts II, IV, VI, and VII, with his sentences on Counts II and IV to run concurrent with the sentence on Count I, and with his sentences on Counts VI and VII to run concurrent with each other but consecutive to the sentence on Count I. This appeal follows.

Point One

In his first point on appeal, Minner contends that the trial court erred in admitting, over Minner's objection, the hearsay testimony of Hailey relaying the statement made by Terry, which implicated Minner as his assailant. Minner's point relied on actually raises two separate arguments. First, Minner contends that Terry's statement did not qualify as a dying declaration because the totality of the circumstances did not objectively demonstrate that Terry's death was imminent. Second, Minner contends that Terry's statement was testimonial hearsay deemed inadmissible in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), because a defendant has the right to confront his accuser pursuant to the Confrontation Clause.

During trial, Minner's counsel objected to Hailey's testimony regarding a statement made to him by Terry "based on a previous motion." The previous motion was a motion in limine that the court had just reviewed and had before it. In order to preserve an objection for appellate review based on a motion in limine, it is necessary to object at trial when the relevant evidence is being presented, because a "motion in limine, in and of itself, preserves nothing for appeal." State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992). Although, Terry's counsel did timely object at trial when Hailey was asked about Terry's dying declaration, trial counsel did not specifically state the basis for the objection but, instead, cross referenced the motion in limine. The motion in limine argued that Terry's statement was inadmissible hearsay. The specific basis for the hearsay objection raised in the motion in limine was a lack of foundation to warrant treating Terry's statement as a dying declaration. We conclude that Minner's objection at trial preserved this issue, which is the first argument asserted by Minner in his first point on appeal, for appellate review. As to this claim of error, we will afford the trial court broad discretion in assessing the admissibility of evidence, and we will not interfere with the trial court's determination absent a clear abuse of discretion.

311 S.W.3d 319
State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006)

Although we find that Minner's objection preserved the hearsay objection based on a lack of foundation to support a dying declaration, we conclude the objection did not preserve the alleged constitutional claim for our review. "A hearsay objection does not preserve constitutional claims relating to the...

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