State v. Moore
| Decision Date | 08 November 2011 |
| Docket Number | No. ED 95643.,ED 95643. |
| Citation | 352 S.W.3d 392 |
| Parties | STATE of Missouri, Respondent, v. Ernest E. MOORE, Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Craig A. Johnston, Columbia, MO, for appellant.
Chris Koster, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, MO, for respondent.
The defendant, Ernest E. Moore, appeals the judgment entered by the Circuit Court of the County of St. Charles following his conviction by a jury of felony driving while revoked, in violation of section 302.321 RSMo. (Supp.2008); 1 second-degree assault of a law enforcement officer, in violation of section 565.082; resisting arrest, in violation of section 575.150; and possession of a controlled substance (cocaine), in violation of section 195.202 RSMo. (2000). The trial court suspended imposition of sentence on the charge of driving while revoked, and placed the defendant on five years' probation. The court sentenced the defendant as a prior and persistent offender to consecutive terms of imprisonment of fifteen years for the assault of a law enforcement officer and seven years for resisting arrest, and to a concurrent term of eight years for possession of a controlled substance.
We dismiss the defendant's appeal of the suspended imposition of sentence on the charge of driving while revoked because a suspended imposition of sentence is not a final, appealable judgment. We hold the State adduced sufficient evidence to convict the defendant of assault of a law enforcement officer and possession of a controlled substance. But because the prosecutor improperly adduced evidence of the defendant's prior convictions as propensity evidence, we reverse the judgment on the remaining counts and remand for a new trial.
Viewed in the light most favorable to the judgment, the evidence reveals that St. Charles police officer Daryl Garrett saw a black pick-up run a flashing red light about 12:30 a.m. on February 4, 2009. The officer observed that the truck had no rear license plate lamp, and stopped the truck. He observed the defendant, the truck's sole occupant, reaching around in the passenger seat area. When Officer Garrett checked the defendant's name and registration through dispatch, he discovered that the defendant had multiple outstanding warrants for his arrest. Officer Garrett informed the defendant that he was under arrest, asked the defendant to step out of the truck, opened the defendant's door, and stepped between the door and the defendant's seat in an effort to secure the defendant. The defendant then drove away, causing the truck door to strike Officer Garrett's leg.
Officer Garrett and Officer Young, who had arrived as back-up, pursued the defendant into an apartment complex. The defendant then led multiple officers on a chase through the apartment complex for at least 45 minutes, and then fled from his truck on foot. Early in the pursuit, Officer Young became the lead police vehicle and drove directly behind the defendant. At one point, the defendant drove downhill on a long, straight stretch of road as Officer Chappie, in his marked patrol car, was driving on the same road in the opposite direction. The defendant drove straight at Officer Chappie's patrol car, even though the defendant had sufficient room to pass the patrol car, thus forcing Officer Chappie to swerve to avoid striking the defendant's truck. Had Officer Chappie not swerved from his lane of travel, the defendant would have struck Officer Chappie's car because the defendant made no effort to avoid a collision.
The pursuit continued, and the defendant eventually abandoned his truck in the roadway and fled on foot through the apartment complex. Police received a 911 call from a resident reporting that the defendant was hiding on her patio. Police located the defendant, and Officer Wilkison attempted to handcuff him. The defendant kicked and punched Officer Wilkison, struggled to prevent being handcuffed, and kicked and punched another officer. The defendant relented only after officers twice used a Taser on him. The officers then arrested the defendant.
After the defendant abandoned his pick-up, Officer Garrett called for a tow truck and conducted an inventory search of the defendant's vehicle. In plain view on the passenger seat, Officer Garrett found a small glass tube covered in something like black tape, which was consistent with a pipe used for smoking crack cocaine. Officer Garrett observed a burnt, visible residue inside the pipe. Laboratory tests confirmed the presence of cocaine in the visible residue.
In its second amended information, the State charged the defendant with felony driving while revoked, second-degree assault of a law enforcement officer, resisting arrest, and possession of a controlled substance (cocaine). The defendant filed a motion in limine to prevent admission of his driving record. Further, the defendant expressed his willingness to stipulate to all elements of the charge of driving while revoked, but the State rejected his offer. Alternatively, at the hearing on the motion, the defendant argued that the court should limit admission of the driving record to only the most recent entries that would establish the defendant's knowledge of his revoked status. But the State was adamant that the entire record be admitted to show the defendant's knowledge that his license was revoked. The State cited section 302.312 RSMo. (2000) 2 and three cases for the proposition that the defendant's entire driving record was admissible, namely State v. Huffman, 627 S.W.2d 672 (Mo.App. W.D.1982), City of Kansas City v. Johnston, 778 S.W.2d 321 (Mo.App. W.D.1989), and State v. Brown, 804 S.W.2d 396 (Mo.App. W.D.1991). The trial court ruled that the defendant's entire driving record was admissible based on the State's cited cases.
In its opening statement the State told the jury:
And indeed in many respects this last count [of driving while revoked] is the most troubling, because you will actually see excerpts of his driving record. I'll warn you it's not an easy read. It's lengthy. It's got a lot of things on it. One of the things that's most troubling is that there are twenty-two convictions or guilty pleas for driving while revoked or driving while suspended. A man who had been convicted or pled guilty twenty-two times to driving while revoked is the person who was driving and leading the police on this dangerous chase through a residential neighborhood....
Our evidence will show his license had been revoked for five years and he knew it because one of those driving while revokeds involved a stop that was done less than a month earlier where he was stopped for driving while revoked or suspended.
The defendant conceded immediately thereafter, in his opening statement, that the evidence would show that he was guilty of driving while revoked, but would not establish his guilt on the other charges.
The trial court admitted the defendant's full driving record as Exhibit 1, which revealed not only that the defendant had been notified that his driver's license was revoked at the time of the events at issue, but that he had an extensive record of traffic-related violations and criminal offenses and corresponding license suspensions and revocations stretching back more than twenty years. Among the offenses revealed in the defendant's driving record were DWIs, leaving the scene of an accident, and careless and imprudent driving. The driving record even included notice of a revocation occurring after the events at issue here. The defendant did not testify.
In closing, the defendant again conceded that he was guilty of driving while revoked. He acknowledged that his license was revoked, that he should have known his license was revoked given the notices the Department of Revenue sent, and that he drove on highways during the events at issue—in short that driving while revoked was, in defense counsel's words, a “[d]one deal.” In its closing, the State maintained that the defendant was selfish and did not believe that rules applied to him. The State argued:
Now, what's [defense counsel's] solution to this? You heard it in opening statement. He said, oh, well, you should find [the defendant] guilty of driving while revoked. Call it a day, acquit him on everything else. As if conviction number twenty-three for driving while revoked or suspended is going to do anything. He would take that and run with it. Well, actually he'd drive. This defendant is a danger to everybody, everybody who lives in this county.
It is time when we deal with this defendant to move beyond passing out traffic tickets because he's moved beyond that. He no longer is content to just drive while his license is revoked.
(Emphases added). The State cited the defendant's twenty-two prior convictions for driving while revoked four more times during its closing argument. The State concluded:
The final count is Count Four, the drug—or the driving while revoked. In his opening statement defense counsel said you should find him guilty of that. Who am I to argue with counsel. Of course you should. But you need to find him guilty of everything else, too, because this isn't going to mean anything to the defendant.
(Emphasis added.)
The jury asked for all exhibits during its deliberations, and convicted the defendant on all four counts. The trial court sentenced him to a total of 22 years of imprisonment. The defendant appeals.
The defendant appeals the suspended imposition of sentence he received for driving while revoked. He contends that the trial court lacked statutory authority to suspend the imposition of sentence, and cites section 302.321, which provides that no court shall suspend the imposition of sentence for certain repeat offenders.
The right to appeal a criminal conviction is limited to final judgments. Section 547.070 RSMo. (2000). In a...
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