State v. Myers, s. 19206

• Decision Date: 25 May 1999
• Docket Number: 22072,Nos. 19206,s. 19206
• Citation: 997 S.W.2d 26
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Sean L. MYERS, Defendant-Appellant. Sean L. Myers, Movant-Appellant, v. State of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 26

997 S.W.2d 26

STATE of Missouri, Plaintiff-Respondent, v. Sean L. MYERS, Defendant-Appellant.

Sean L. Myers, Movant-Appellant, v. State of Missouri, Respondent-Respondent.

Nos. 19206, 22072.

Missouri Court of Appeals,

Southern District,

Division Two.

May 25, 1999.

Motion for Rehearing and Transfer

Denied June 18, 1999.

Application for Transfer Denied

Aug. 24, 1999.

Arthur S. Margulis, Linda Hogan, Margulis & Grant, P.C., St. Louis, for Appellant/Movant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Office of the Attorney General, Jefferson City, for Respondent/Respondent.

PAUL McGHEE, Senior Judge.

Sean L. Myers (defendant) was tried by jury as a prior offender in Camden County on change of venue from Laclede County. The jury found him guilty of the class B felony of assault in the first degree and armed criminal action in violation of sections 565.050 and 571.015, RSMo 1986. He was acquitted on a count of unlawful use of a weapon. After denying defendant's after-trial motions, the court sentenced him to concurrent terms of fifteen years on the assault count and fifty years on the armed criminal action count. He appeals from those convictions in Case No. 19206.

Defendant then filed postconviction motions pursuant to Rule 29.15. The motion court denied relief after an evidentiary hearing, and defendant appeals from that denial in Case No. 22072. As defendant was sentenced on November 20, 1993, the provisions of Rule 29.15 in effect when the postconviction motion was filed on March 3, 1995, govern these cases. Rule 29.15(m), Missouri Rules of Criminal Procedure. Rule 29.15(l ) then provided that a pending direct appeal should be suspended until final determination of the issues raised in the postconviction motion, and that the appeals should be consolidated. This court consolidated the cases, but addresses them separately in this opinion.

Case No. 19206

--Direct Appeal

The sufficiency of the evidence is not challenged, and we review for prejudice, not mere error. We will reverse only if an error was so prejudicial that it deprived defendant of a fair trial. State v. Hall, 982 S.W.2d 675, 680 (Mo.banc 1998).

Shortly after midnight on January 31, 1991, with Sherrill Anthony in the front passenger seat, defendant stopped his Camaro automobile on an overpass over the westbound lanes of Interstate 44. He retrieved a rifle from behind the front seat and fired it at least ten times out the open window on his side to the east at the oncoming line of traffic. One of the bullets went through the windshield of a pickup truck, striking and injuring the driver.

The Lebanon police later impounded the Camaro and in making an inventory search they found defendant's operator's license, his jacket with twenty-six .22-caliber cartridges in a pocket, and an ammunition clip for a .22-caliber rifle.

Acting on information received from Lloyd Tabor, III ("Little Lloyd"), the son of Debbie and Lloyd Tabor, Jr. ("Big Lloyd"), investigating officers recovered parts of a .22-caliber rifle from a farm pond. Its serial number matched the serial number of a rifle that defendant's former stepbrother had given him to sell. Ten spent shell casings that had been found on the overpass were identified as having been fired by this rifle.

Defendant claimed to have been "framed" by Big Lloyd, his former employer, who had died of a heart attack the month before the trial. He testified as to acts of Big Lloyd, and others, that caused him to believe that he had been framed. When asked on cross-examination why he had not told "this story" before, the court sustained an objection to the question. He then was asked whether he had told the story to anyone associated with the investigation of the case before his testimony. His attorney objected on the ground that the prosecution was attempting to shift the burden of proof, but did not state constitutional grounds for the objection with requisite specificity. The court overruled the objection and the attorney did not ask for any relief; nor did he make an offer of proof as to defendant's arrest or the giving of Miranda warnings. Defendant then replied that he had not told anyone. He now asserts that his due process rights and his privilege against self-incrimination were violated by the ruling on this objection.

The State may not use a defendant's postarrest silence, following the receipt of Miranda warnings, as either substantive evidence of guilt or for impeachment. State v. Ogle, 967 S.W.2d 710, 712 (Mo.App. S.D.1998). However, in the absence of Miranda warnings, it does not violate due process of law to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982).

The State may use a defendant's immediate postarrest, pre-Miranda warnings silence to impeach his testimony when a neutral expectancy of an exculpatory statement exists as a result of his testimony and his silence is probative of inconsistencies in that testimony. State v. Antwine, 743 S.W.2d 51, 69 (Mo.banc 1987). Where a defendant offers an explanation for his conduct under circumstances suggesting he naturally would have given the explanation earlier, if true, his previous silence may be used for impeachment purposes if his silence was not the result of an exercise of a constitutional right. State v. Wallace, 952 S.W.2d 395, 396 (Mo.App. W.D.1997).

Defendant was in custody serving cumulative sentences of fifteen years imposed in other cases when the charges were filed in this case. There is no evidence that he had been given Miranda warnings, or had invoked his right to remain silent.

In the absence of evidence, or an offer of proof, of Miranda warnings and silence, there is nothing to show that the question about defendant's previous silence was a violation of constitutional guarantees. His testimony created a neutral expectancy that he would have given the exculpatory information earlier, if true; and his silence was of probative value in determining his credibility. See Antwine, 743 S.W.2d at 69. The use of defendant's previous silence for impeachment purposes was proper, and the trial court did not err in overruling his objection.

Defendant contends that the trial court erred in permitting one of his witnesses to assert the Fifth Amendment privilege against self-incrimination because the witness had waived the privilege by previously disclosing information which incriminated him. He does not point to any place in the record where the witness had incriminated himself.

Defendant submitted nine exhibits in support of this and other points, and the State filed motions to strike the exhibits. Defendant is limited to the record made in the trial court and motion court, and we are limited to consideration of the evidence in the record. State v. Weber, 814 S.W.2d 298, 301 (Mo.App. E.D.1991); State v. Pendergrass, 869 S.W.2d 816, 819 n. 1 (Mo.App. S.D.1994); State v. Thomas, 965 S.W.2d 396, 402 n. 3 (Mo.App. S.D.1998); State v. Wilbur, 976 S.W.2d 15, 16 (Mo.App. S.D.1998). We grant the motions to strike and disregard the exhibits.

At a pretrial hearing upon a motion claiming that the prosecutor had failed to disclose exculpatory evidence, defendant's attorney called Timothy Harris as a witness. Harris, who had seven prior convictions, then was an inmate in the Farmington Correctional Center with defendant. He testified that he had told the prosecuting attorney that he knew defendant was not guilty and Big Lloyd was guilty. He said that he had also told an uncle of defendant, and a previous attorney for defendant, who took notes of his interview with Harris. When Harris was asked how he knew that Lloyd Tabor "did it," and was asked to tell how it happened, he refused to answer because he feared that felony charges would be filed against him. The court ruled that Harris had invoked the Fifth Amendment. The prosecutor asked additional questions, and defendant's attorney objected upon the grounds that Harris had requested counsel and had invoked the Fifth Amendment. Harris gave no other substantive testimony at the hearing.

Defendant's attorney called Harris as a witness at the trial. However, as to certain questions, Harris invoked his Fifth Amendment privilege not to testify. As to those questions, defendant's attorney told the court that he did not want to press him to testify. Although given the opportunity, the attorney made no offer of proof as to what the testimony would have been.

Defendant relies on Rogers v. U.S., 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951) to support his contention that Harris waived his Fifth Amendment privilege by disclosing information that incriminated him. Rogers does hold that if a witness elects to waive his privilege he cannot invoke the privilege to avoid disclosure of the details. Id. 340 U.S. at 373, 71 S.Ct. at 442. However, a witness does not waive the privilege by answering matters that do not incriminate him. Williams-El v. State, 768 S.W.2d 605, 607 (Mo.App.1989).

If a trial court excludes evidence, an offer of proof must be made stating facts which are specific and sufficient in detail to establish the admissibility of the evidence sought to be introduced. State v. Hill, 817 S.W.2d 584, 587 (Mo.App.1991). In order to preserve any possible error, the offer of proof must provide the appellate court with a record from which it can determine whether the exclusion was erroneous and prejudicial. An appellate court cannot reverse a judgment on this ground unless it finds that error was committed materially affecting the merits of the action. State v. Brosseit, 958 S.W.2d 615, 618 (Mo.App. W.D.1998).

Harris did not waive his privilege against self-incrimination, and the trial court properly permitted him to invoke the privilege. There being no evidence, or offer of proof, as to what his testimony would have been had he testified, defendant has not...