State v. Muhammad

• Decision Date: 27 October 2015
• Docket Number: WD 76966
• Citation: 478 S.W.3d 468
• Parties: State of Missouri, Respondent, v. Umar Muhammad, Appellant.
• Court: Missouri Court of Appeals

478 S.W.3d 468

State of Missouri, Respondent,
v.
Umar Muhammad, Appellant.

WD 76966

Missouri Court of Appeals, Western District.

OPINION FILED: October 27, 2015
Motion for Rehearing and/or Transfer to Supreme Court Denied November 24, 2015
Application for Transfer Denied January 26, 2016

Gregory L. Barnes, Jefferson City, MO, for respondent.

Jarrett A. Johnson, Kansas City, MO, for appellant.

Before Division One: Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge and Cynthia L. Martin, Judge

Cynthia L. Martin, Judge

Umar Muhammad ("Muhammad") appeals his convictions of second-degree murder, first-degree assault, and two counts of armed criminal action following a jury trial. Muhammad claims that errors during closing argument and in the admission of evidence at trial made it less likely that the jury would accept his defense that he was not the shooter, an essential element of his crimes. Finding no error, we affirm.

Factual and Procedural Background

Muhammad does not challenge the sufficiency of the evidence to sustain his convictions. [Appellant's Brief, p. 14, n. 5] That evidence, viewed in the light most favorable to the jury's verdict,¹ was as follows:

478 S.W.3d 471

On May 19, 2011, at approximately 3:45 a.m., Muhammad shot and killed Mohamed Hussein ("Hussein") at a park in Kansas City, Missouri. Just prior to the shooting, Hussein was in a car with Anwar Ali ("Ali"). Muhammad was near the park entrance with two men when he saw Hussein and exclaimed "Bird, Bird, that's them." The two men with Muhammad were Seneca Keith ("Keith"), whose nickname was "Bird," and Jermaine Henderson ("Henderson"). Ali and Hussein heard Muhammad's statement, which prompted Hussein to get out of the car and walk toward the three men. Ali got out of the car to urge Hussein to return. Muhammad shot Hussein. Hussein began running. Ali was five feet away at the time and saw Muhammad shoot Hussein. Ali had met Muhammad on two prior occasions and recognized him. Ali did not know the other two men with Muhammad.

After firing several more shots at Hussein, Muhammad began firing at Ali, who ducked and took cover inside the car. After the shots stopped, Ali lifted his head and saw Muhammad and the other two men running into the park.

Ali drove his car to the location where Hussein had fallen. Ali drug Hussein to the car. Keith and Henderson (who had at first fled the scene) ran back to assist Ali. However, Hussein died at the scene. The bullets recovered from Hussein's body and from Ali's car where determined to have been fired from the same weapon, although that weapon was never recovered.

Muhammad and Hussein had been in a dispute just hours before the shooting at a gas station close to the park. A police officer who responded to that scene observed that Muhammad was wearing a black "do rag" and a black jacket with white "KC" insignias. In a dash cam photograph of that scene, the officer could not distinguish the "do rag" from a black baseball cap.

Ali told officers that Hussein's shooter was wearing a black hoodie and a black baseball cap. Ali described the shooter as "the Egyptian dude." Muhammad is Egyptian. Ali identified Muhammad as the shooter in a color photo lineup several hours after the shooting. Ali also identified Keith as the person Muhammad had called "Bird" at the scene. Ali testified at trial that he was "[one] hundred percent sure" that Muhammad was the shooter.

Following his arrest, Muhammad first denied being at the park, then admitted being at the park though at a different time than the shooting. Later, Muhammad admitted being at the park almost every day. He admitted knowing Hussein and admitted that he had been involved in an altercation with Hussein, though he claimed it had been several days earlier. Muhammad claimed he was at his sister's at the time of the shooting, though she never corroborated this alibi. Muhammad did not testify at trial, but his defense at trial centered on suggesting that Keith was the shooter.

The jury convicted Muhammad and recommended sentences which the trial court imposed.

Muhammad appeals.

Analysis

Muhammad raises four points on appeal. Three of the points claim error in connection with the State's closing argument. One of the points claims error in the admission of evidence. With respect to all four points, Muhammad concedes that there was sufficient evidence to support his convictions but argues that, but for the

478 S.W.3d 472

errors addressed in the points, the "defense may have carried the day or had a more significant chance of success" in persuading the jury that Muhammad was not the shooter. [Appellant's Brief, p. 14, n. 5] Because establishing that Muhammad was the shooter was an essential element of his charged crimes, Muhammad claims he was prejudiced. We address Muhammad's points individually.

Point One

In his first point on appeal, Muhammad argues that the trial court abused its discretion when it allowed the State to argue during its rebuttal closing, and over Muhammad's objection, that a key witness's trial testimony implicating Keith had not been previously reported to the police.

We review a trial court's decisions in the control of closing arguments for an abuse of discretion. State v. Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006). Improper closing argument will not support reversal, however, unless the error is prejudicial. Id. To be "prejudicial," the improper argument must have had " ‘a decisive effect on the jury's determination.’ " State v. Armentrout, 8 S.W.3d 99, 111–12 (Mo. banc 1999) (quoting State v. Hall, 982 S.W.2d 675, 683 (Mo. banc 1998) ). Muhammad has not met this burden. State v. Steele, 314 S.W.3d 845, 851 (Mo. App. W.D. 2010) (observing that a defendant has the burden to establish prejudice associated with improper closing argument).

The portion of the State's rebuttal closing about which Muhammad complains involved a discussion of the trial testimony of Tyra Anderson ("Anderson"). To afford context to the rebuttal closing, and to Muhammad's objection, we must first summarize Anderson's trial testimony.

The State called Anderson as a witness during its case-in chief On direct examination, Anderson testified that she lived in an apartment building near the park where Hussein was killed. Anderson knew Keith, having previously dated him. Anderson also knew Muhammad and Henderson. Anderson testified that on the morning of the shooting, she awoke to loud voices, leaned out her bedroom window, and could clearly see Muhammad, Keith, and Henderson near the park entrance. She heard gunshots and ducked. She then saw Keith run from the scene in one direction, while Muhammad and Henderson ran in a different direction. Anderson did not testify that she saw who shot Hussein. Anderson did, however, see Hussein fall to the ground and saw Ah drive to that location, where Ah got out of the car crying. Anderson testified that she ran outside and then spoke with the police when they arrived at the scene. She testified that she later went to police headquarters where she made a statement and identified Muhammad, Keith, and Henderson from a photo lineup. The State did not ask Anderson any further questions about the content of her statements to the police at the scene or police headquarters.

On cross examination, Muhammad established through Anderson that Keith was wearing a black hoodie at the time of the shooting and that Anderson saw Keith return to the scene to assist Ali with Hussein after first running away. Muhammad then asked Anderson the following:

Q: Shortly after the shooting, you hear [Keith] yell something, correct?

A: Yes.

Q: And what you hear him yell is—and I don't [sic] that this is offensive, but you hear him yell, "Bitch ass nigga, I got you, I got you?"

A: Yes.

Q: And he was saying this towards the direction of the car or [Hussein]?

478 S.W.3d 473

A: Correct.

Mohammad did not ask Anderson whether she told the police about Keith's statement. The State did not redirect Anderson.

During closing argument, Muhammad argued:

[T]he State is asking you to find [Muhammad] guilty of murder. Everything you heard yesterday—you heard within hours of [Hussein] being shot and killed over two years ago, Officer Moore arrived at the scene and from the moment he got there, he was told that [Keith] was involved, that the shooter was wearing a black pullover hoodie and a black baseball cap and [Keith] is arrested ... right there. Officer Moore spoke with [ Anderson] at the scene. She was available to them immediately. They want you to rule out [Keith] because Officer Moore told you that he was never charged and a case was never submitted to the prosecutor's office because they didn't have any evidence which linked [him] to the shooting. Ladies and gentlemen, they had everything that you saw yesterday. And I've been able to point out to you two things now that the evidence points to [Keith] overwhelmingly more than it points to [Muhammad]. But they let [Keith] go .... Ladies and gentlemen ... you cannot be firmly convinced in this case.... [Keith] is the

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