State v. Moore

• Decision Date: 22 October 2013
• Docket Number: No. ED 99077.,ED 99077.
• Citation: 411 S.W.3d 848
• Parties: STATE of Missouri, Respondent, v. Johnnie MOORE, Appellant.
• Court: Missouri Court of Appeals

411 S.W.3d 848

STATE of Missouri, Respondent,

v.Johnnie MOORE, Appellant.

No. ED 99077.

Missouri Court of Appeals,

Eastern District,

Division One.

Oct. 22, 2013.

Roxanna A. Mason, St. Louis, MO, for appellant.

Chris Koster, Daniel N. McPherson, Jefferson City, MO, for respondent.

ROY L. RICHTER, Presiding Judge.

Johnnie Moore (“Defendant”) appeals from the trial court's judgment, following a jury's guilty verdict of two counts of rape and two counts of sodomy, in violation of Sections 566.030, RSMo Cum. Supp. 2010,¹ and 566.060, respectively. We affirm.

I. BACKGROUND

In the interest of clarity and brevity, we will recite the procedural facts as they relate to the case and discuss additional facts and evidence as it relates to individual points in our analysis.

The relevant facts, viewed in the light most favorable to the jury verdict, are as follows. On the morning of July 26, 1985, fourteen-year-old V.V., while walking to George's Market Store, roughly two blocks from her home in the City of St. Louis, was attacked and apprehended by a man. The man grabbed V.V. from behind and placed a knife to her neck, cautioning her not to scream or attempt to escape. The man escorted V.V. to a garage in a nearby alley, where the man forced V.V. to perform oral sex and proceeded to vaginally rape her. The man fled after ejaculating. V.V. returned home, at which point the police were called and V.V.'s clothes were seized as evidence.

In the City of St. Louis, on the morning of October 1, 1985, sixteen-year-old K.P., while walking home from a friend's house where she had spent the previous night, was attacked and apprehended by a man. The man grabbed K.P. from behind and placed a knife to her neck, cautioning her not to scream or attempt to escape. The man escorted K.P. to a vacant building in a nearby alley, where the man forced K.P. to perform oral sex and proceeded to vaginally rape her. After the man fled, K.P. exited the vacant building, still naked, and ran to the adjacent school where the janitor assisted K.P. in contacting the police. K.P.'s clothes were recovered from the vacant building and seized as evidence.

Several months after both rapes, V.V. and K.P. were contacted, individually, by the police to review photographic line-ups. Both female victims identified a man named Lonnie Erby (“Erby”) as their assailant. Erby was subsequently tried, convicted and sentenced in connection with both crimes. See State v. Erby, 735 S.W.2d 148 (Mo.App.E.D.1987). During the trial, both V.V. and K.P. testified that Erby was their rapist.

In 2003, at the behest of the Innocence Project, samples of V.V.'s and K.P.'s clothing underwent DNA analysis at the St. Louis Police Crime Laboratory. Sperm was discovered on both V.V.'s and K.P.'s clothing, and was thereby used to create DNA profiles. The DNA collected from both of the victim's recovered-clothing was matched to Johnnie Moore (“Defendant”) in August of 2006.

In 2010, V.V. and K.P. were again shown photographic line-ups. V.V. was unable to identify her rapist, but K.P. identified Defendant as her rapist. Subsequently, Defendant was charged with the crimes relating to V.V. and K.P. Defendant proceeded to trial in 2012 in the City of Saint Louis.

Thereafter, the jury returned a guilty verdict on all four counts: one count of forcible rape and one count of forcible sodomy for each of the two victims, V.V. and K.P. The trial court denied Defendant's motion for a new trial.

This appeal follows.

II. DISCUSSION

Defendant presents two points of error on appeal. In his first point, Defendant asserts the trial court erred in denying his motion for a new trial, in that the State failed to disclose and inadvertently suppressed favorable and impeaching evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Rule 25.03. Specifically, Defendant claims the State had a duty to discover and disclose its witness's (K.P.) suspended imposition of sentence (“SIS”), and in failing to do so, infringed upon Defendant's rights to a fair trial and due process, in violation of the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution.

In his second point on appeal, Defendant claims the trial court erred in denying his motion for a new trial, in that the trial court permitted the State to introduce evidence regarding the details of Defendant's prior criminal convictions and permitted use of Defendant's prior criminal convictions to demonstrate Defendant's propensity to commit rape, thereby violating Defendant's right to be tried only for the offenses charged as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Sections 17 and 18(a) of the Missouri Constitution. Defendant claims that a review of Missouri case law should have disabused the trial court of the notion that details of prior criminal convictions can be used for impeachment or propensity purposes.

Point I—State's Duty to Disclose Impeaching Evidence

In his first point on appeal, Defendant claims the State failed to disclose and inadvertently suppressed favorable and impeaching evidence, in violation of Brady and Rule 25.03.

During the course of the 2012 criminal trial, Defendant requested discovery from the State pursuant to Rule 25.03. The State delivered responses to Defendant's discovery requests. However, unbeknownst to the State, K.P.—one of the victims and a witness for the State—had a prior misdemeanor charge for stealing for which she received a suspended imposition of sentence disposition. The State did not become aware of the SIS until after the trial was complete; the State, nevertheless, informed Defendant immediately of the newly discovered information.

Standard of Review

This Court reviews a trial court's denial of a motion for new trial, pursuant to Rule 29.11, for an abuse of discretion. State v. Kelly, 851 S.W.2d 693, 696 (Mo.App.E.D.1993); see also State v. Cooper, 336 S.W.3d 212, 215 (Mo.App.E.D.2011). Under this standard, we must “determine whether the trial court's ruling constituted an abuse of discretion because it offended the logic of the circumstances or was arbitrary and unreasonable.” State v. Coleman, 954 S.W.2d 1, 4 (Mo.App.W.D.1997); see also Kelly, 851 S.W.2d at 696 (“We find such abuse when the trial court's ruling clearly offends the logic of the circumstances or when it becomes arbitrary and unreasonable.”). Thus, an abuse of discretion is found when reasonable persons could not differ as to the propriety of the action taken by the court. Cooper, 336 S.W.3d at 215.

Analysis

Defendant asserts both a Rule 25.03 violation, as well as a Brady violation, “which is based on the constitutional requirement of due process.” State v. Parker, 274 S.W.3d 551, 553 (Mo.App.W.D.2008). Each rule implicates different requirements; the State's discovery obligations under Rule 25.03 and its constitutional obligations under Brady are separate and distinct.²State v. Perry, 879 S.W.2d 609, 614 (Mo.App.E.D.1994) (“ Brady is the law of the land. It requires disclosure of specified exculpatory information. Rule 25.03 is the law of the state. It requires disclosure of information requested by the defense.”). In resolving this issue on appeal, it is first necessary to clarify the scope and obligation of each rule; we, thus, review each alleged violation independently.

A. Rule 25.03 did not require disclosure.

Upon the written request of a defendant in criminal proceedings, pursuant to Rule 25.03, the State is required to disclose and provide to the defendant certain information or material within the State's possession or control. See generallyRule 25.03.; see also State v. Grant, 784 S.W.2d 831, 835 (Mo.App.E.D.1990) (compliance with Rule 25.03 is mandatory, not discretionary). However, any information or material not covered by Rule 25.03 may still be requested by a defendant, but the trial court must approve such requests. SeeRule 25.04(A) (“The defense may make a written motion in the court having jurisdiction to try said case requesting the state to disclose material and information not covered by Rule 25.03....”). Specifically at issue in the case at bar is subsection (A)(7) of Rule 25.03, wherein the State is mandated, upon the request of the defendant, to provide “[a]ny record of prior criminal convictions of persons the state intends to call as witnesses at a hearing or the trial[.]” Rule 25.03(A)(7).

During the discovery phase of this case, Defendant requested, inter alia, the following:

Any record of any prior criminal convictions of persons the State intends to call as witnesses at any hearing or the trial, including any witnesses or any evidence of any arrests, pleas of guilty or convictions of defendant.

K.P., one of the alleged victims and a witness for the State, had a prior misdemeanor charge for stealing for which she received a suspended imposition of sentencedisposition. However, the State only notified Defendant of K.P.'s SIS after the trial was completed. Defendant, in his Motion for a New Trial, and now on appeal, contends the State failed to abide by the mandate set forth in Rule 25.03(A)(7). We disagree.

First, for purposes of Rule 25.03(A)(7) requiring the State to disclose during discovery its witnesses' prior criminal convictions, the State is not required to disclose that a witness received a suspended imposition of sentence because an SIS does not constitute a conviction. Rogers v. State, 265 S.W.3d 853, 855 (Mo.App.S.D.2008). Therefore, the State did not violate Rule 25.03(A)(7) by failing to disclose K.P.'s SIS, because K.P.'s SIS was not a “prior conviction.”

Second, Defendant's request for discovery, supra, expands the mandate of Rule 25.03(A)(7). Explicitly, Defendant's request for discovery seeks disclosure of any evidence of any arrests, pleas of guilty and prior convictions. Unfortunately, on its face, Defendant's ...