State v. Moore

• Decision Date: 20 May 2008
• Docket Number: No. 28602.,28602.
• Citation: 252 S.W.3d 272
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Demarcus MOORE, Defendant-Appellant.
• Court: Missouri Court of Appeals

252 S.W.3d 272

STATE of Missouri, Plaintiff-Respondent, v. Demarcus MOORE, Defendant-Appellant.

No. 28602.

Missouri Court of Appeals, Southern District, Division Two.

May 20, 2008.

Ellen H. Flottman, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Robert J. Bartholomew, Assistant Attorney General, Jefferson City, MO, for respondent.

GARY W. LYNCH, Chief Judge.

Demarcus Moore ("Defendant") was found guilty by a jury of robbery in the first degree, in violation of section 569.020,¹ and assault in the second degree, in violation of section 565.060, and sentenced to consecutive ten- and three-year terms, respectively. His sole point in this appeal of those convictions posits that the trial court plainly erred in not permitting Defendant to cross-examine a witness on his unrelated pending criminal charges. Finding no merit in Defendant's claim, we affirm.

Factual and Procedural Background

The evidence adduced at trial, viewed in the light most favorable to the verdict, showed the following: On the evening of September 22, 2005,² Dennis Gore was on duty as a delivery driver for a Pizza Hut in Charleston, Missouri, when a call came in for two pizzas to be delivered to 211 Elm Street. Gore was first instructed to deliver the order to South Elm Street, but he was unable to find the correct address and returned to the restaurant. While he was out, the person who placed the original order called back to the Pizza Hut, asking where the order was. Gore returned to his car, this time heading to 211 North Elm Street. As he drove along North Elm, Gore noticed a larger man standing by the side of the road underneath a streetlight. Gore described the man as around six foot two inches tall, "heavyset," and wearing dark clothing. Gore pulled his car over and asked the man "if he ordered pizzas," and when the man replied that he had, Gore pulled into the nearby driveway of a white trailer at the man's direction. The larger man, later identified as Fred Flemming, told Gore that someone in the trailer had placed the order, but when Gore climbed the porch steps and knocked on the door of the trailer, there was no answer. At that point, Gore realized that Flemming had followed him onto the porch and that there was another, smaller man also on the porch. While Gore did not get a clear look at the smaller man's face, he described him as both skinnier and shorter than Flemming, and wearing a "darkish hoodie." Gore also noticed that the smaller man was holding what appeared to be "a wooden club."

The smaller man told Gore to "give [me] the pizzas," but Gore was unable to initially react. When Gore did not respond, the man repeated his request, and Gore "looked at him like he was stupid." The smaller man, later identified as Defendant, then hit Gore on the left side of his head, knocking him completely off of the porch. Flemming and Defendant began to pat Gore down, and Defendant told Gore to "give [me] the money or [I will] hit [you] again." Gore gave Defendant somewhere in the neighborhood of $22.00 to $23.00 in a variety of denominations. Flemming and Defendant each grabbed a pizza and ran away.

Gore got to his feet and made his way back to his car. He immediately drove to the Charleston Police Department, where he was interviewed by Officer Brandon Cade. During the course of the interview, Officer Cade recalled seeing two men a few nights earlier who matched the descriptions given by Gore and pulled up Fred Flemming's picture on his computer. Gore immediately identified Flemming as the larger of the two men who had accosted him. An order was put out to arrest Flemming, and Officer Cade called an ambulance to tend to Gore's head injury. Gore was treated by the EMT crew that arrived at the station, but waited until the end of his shift at Pizza Hut before going to the hospital. At the hospital, Gore was treated for a concussion and released.

While waiting on the ambulance to arrive at the station, Officer Cade received word that Flemming had been picked up nearby. When Flemming was brought into the station, Officer Cade advised him of his Miranda³ rights and asked Flemming about a "particular crime involving the pizza delivery person." Flemming told Officer Cade that he and Defendant had eaten pizzas and not paid for them, and that Defendant hit the delivery man and stole his money. Using that and other specific information supplied by Gore and Flemming, the Charleston Police secured a search warrant for Defendant's home. While executing the search warrant, police found two pizza boxes consistent with the order Gore delivered that night, a dark, hooded jacket consistent with that described by Gore as being worn by the smaller man who assaulted him, and numerous pieces of currency consistent with that taken from Gore during the assault. Officer Cade also obtained money from Flemming, who asserted that it was some of that taken from Gore. Charleston Police then arrested Defendant.

The Mississippi County Prosecutor charged Defendant with first-degree robbery and first-degree assault, pursuant to sections 569.020 and 565.050, respectively. At Defendant's jury trial, Flemming testified for the State, in exchange for a plea agreement with the State on his robbery and assault charges arising out of this incident in which he would receive a five-year prison sentence with a 120-day callback, pursuant to section 559.115, RSMo Cum.Supp.2005. During Flemming's testimony, but outside the presence of the jury, Defendant's counsel asked the trial court to permit her to cross-examine Flemming regarding unrelated criminal charges pending against him in the same county, but to prohibit the State from going into the details of those charges on redirect because Defendant would likely be implicated in the unrelated criminal activity. The State countered that counsel's proposed line of questioning—proffered to demonstrate potential bias—would open the door for the State to get into the details of the crime on redirect, including Defendant's involvement. The trial court agreed with the State and denied defense counsel's request. Defense counsel made an offer of proof regarding Flemming's unrelated charges, which the trial court overruled.

After the jury returned a guilty verdict on both charges, Defendant timely filed a motion for new trial, which omitted any claimed error related to the trial court's denial of Defendant's offer of proof made during Flemming's testimony. Defendant's motion for new trial was denied, and he was sentenced as previously noted. Defendant now appeals.

Standard of Review

Ordinarily, a properly preserved error concerning the admission of evidence is reviewed on appeal for an abuse of discretion. State v. Wolfe, 13 S.W.3d 248, 258 (Mo. banc 2000). Unpreserved errors, however, are only reviewed for plain error, and such a review is undertaken at the Court's discretion. Rule 30.20. The burden is on the Defendant to demonstrate plain error. State v. Mead, 105 S.W.3d 552, 556 (Mo.App.2003). A Defendant must show (1) that the error was plain, i.e., evident, obvious, and clear, State v. Bailey, 839 S.W.2d 657, 661 (Mo.App.1992); (2) that a failure to correct the error would produce a manifest injustice or a miscarriage of justice, State v. Brethold, 149 S.W.3d 906, 909 (Mo.App.2004); and (3) that the error was outcome determinative, Deck v. State, 68 S.W.3d 418, 427 (Mo. banc 2002). Such a standard places a much greater burden on Defendant than that ordinarily incurred on appeal, as he must go beyond a demonstration of mere prejudice and actually establish such a misdirection of the jury as would cause the requisite level of injustice. State v. Reichert, 854 S.W.2d 584, 601 (Mo.App.1993).

Discussion

Defendant's sole point relied on challenges the trial court's decision not to allow Defendant's trial counsel to cross-examine Flemming regarding a pending unrelated charge in the same county.⁴ Because Defendant did not present this argument to the trial court in his motion for new trial, and because "[a]n issue that was never presented to or decided by the trial court is not preserved for appellate review," VanBooven v. Smull, 938 S.W.2d 324, 330 (Mo.App.1997), it is solely within our discretion to examine Defendant's claim for plain error. We decline such review because Defendant has failed to demonstrate that the trial court committed any error, plain or otherwise.

As a general rule, a witness may not be impeached with a mere arrest, investigation, or criminal charge not yet resulting in a conviction. State v. Wise, 879 S.W.2d 494, 510 (Mo. banc 1994). This rule exists because such evidence is generally considered inadmissible character evidence, lacking the necessary relevance to proving the case at hand, as well as not being a reliable gauge of the witness's credibility. State v. Phillips, 941 S.W.2d 599, 601 (Mo.App.1997).

Like any rule, however, this principle has its exceptions, which are threefold: (1) where the inquiry would demonstrate a specific interest of the witness; (2) where the inquiry would demonstrate a witness's motivation to testify favorably for the State; or (3) where the inquiry would demonstrate that the witness testified with an expectation of leniency from the State. State v. Broussard, 57 S.W.3d 902, 915 (Mo.App.2001). Nevertheless, before a defendant can be allowed to use a pending charge to cross-examine a witness, he must lay a foundation clearly demonstrating one of the three exceptions outlined above. State v. Harris, 825 S.W.2d 644, 649 (Mo.App.1992). A pertinent part of such a foundation "is the witness' knowledge of these facts, his perception of expectancy of favorable treatment if he furthers the state's case, or his basis to fear harsh treatment if his testimony is unfriendly." State v. McRoberts, 837 S.W.2d 15, 20-21 (Mo.App.1992). "Speculating or theorizing motives for testifying is not sufficient to show the connection that is necessary to obviate the trial court...