State v. Myers
| Decision Date | 15 January 2008 |
| Docket Number | No. ED 89170.,ED 89170. |
| Citation | 248 S.W.3d 19 |
| Parties | STATE of Missouri, Respondent, v. George MYERS, Appellant. |
| Court | Missouri Court of Appeals |
Margaret M. Johnston, Columbia, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Roger W. Johnson, Jefferson City, MO, for respondent.
George Myers ("Defendant") appeals from the judgment of the trial court entered after a jury convicted him of one count of second degree murder and one count of distribution of a controlled substance. The trial court sentenced Defendant as a persistent drug offender to consecutive terms of life imprisonment for second degree murder and life imprisonment without parole for distribution of a controlled substance. Finding no error, we affirm.
Viewed in the light most favorable to the verdicts, the facts are as follows. On the morning of March 9, 2004, Joseph Gercone bought ten 80 milligram Oxycontin pills from Defendant. Oxycontin is a time-released form of oxycodone, which is meant to be ingested as a pill and released slowly into a body. Crushing an Oxycontin pill and ingesting or injecting it thereafter delivers the entire dose of oxycodone at once. Gercone crushed some pills in water in a spoon at Defendant's home, and injected himself there. Gercone left and picked up his girlfriend, Megan Williams ("Girlfriend") and a friend, Tanya Baker, and the trio rented a motel room. Gercone and Girlfriend injected crushed Oxycontin in the motel bathroom, and Girlfriend helped Baker inject herself.
Later that same evening, Gercone went back to Defendant's house with a former girlfriend, Jaime McGrael. They were joined subsequently by Girlfriend and Baker. After a fight between Girlfriend and McGrael, Gercone drove off with Girlfriend and Baker in the latter's car, eventually parking a few blocks away. Girlfriend and Baker went back to the motel room, while Gercone returned to Defendant's home. Gercone purchased several more Oxycontin pills from Defendant, and called Girlfriend and Baker, who joined him. Gercone injected himself and Baker, and gave an Oxycontin pill to Girlfriend. Girlfriend asked Defendant to help her with it. Defendant prepared the pill, crushing it in water in a spoon, loading the liquid in a syringe, and injected Girlfriend. He injected her again a few minutes later. McGrael, who was also present at Defendant's home, thought that Defendant had injected too much Oxycontin solution into Girlfriend.
Sometime after midnight, Gercone, Girlfriend, and Baker returned to the motel room. Gercone soon passed out, while Girlfriend and Baker stayed up talking. Girlfriend was nodding off, and they turned off the lights and went to sleep sometime between 2:00 a.m. and 3:00 a.m. No one saw Girlfriend use any more drugs at the motel room after leaving Defendant's house.
Gercone and Baker woke up at approximately 7:20 a.m., and realized that Girlfriend was dead. Gercone called 911, while Baker disposed of the drug paraphanalia. The police soon arrived and examined the scene, which had indicia of drug use. The condition of Girlfriend's body indicated that she likely died at around 6:00 a.m. An autopsy revealed puncture wounds consistent with a needle around her elbow, and marks on her upper leg that may have been puncture marks. Girlfriend died of oxycodone intoxication, with blood work showing that she had between ten to twenty times the therapeutic amount of oxycodone in her system. Girlfriend also had a pulmonary edema, consistent with a death that takes place over a period of hours.
A number of witnesses testified at trial, including Gercone, Baker, McGrael, the pathologist, and experts for both the Defendant and the State. A number of documents and exhibits were introduced into evidence as well, including three written statements made by Gercone to the police.
The jury returned guilty verdicts on the charges of second degree murder and distribution of a controlled substance. The trial court sentenced Defendant as a persistent drug offender to consecutive terms of life imprisonment for second degree murder and life without parole for distribution of a controlled substance.
Defendant now appeals from this judgment.
In his first point relied on, Defendant contends that the trial court erred by abusing its discretion in admitting Exhibit 18, a written statement by Gercone, over Defendant's objection, and in permitting Gercone to testify about statements made by Girlfriend to him that were contained in Exhibit 18. Defendant avers that this denied him his due process rights, including his rights under the Confrontation Clause, in that the contents of Exhibit 18 were hearsay used to prove the truth of the matter asserted, and that he was prejudiced because he could not counter the statements of Girlfriend, which were emphasized by the State in its closing argument.
On direct examination of Gercone, the State did not introduce any of his three written statements. Rather, it was the Defendant who introduced Gercone's first two written statements, Exhibits A and B, during cross-examination. Gercone provided police with his first written statement, Exhibit A, the day that Girlfriend died, and gave his second written statement, Exhibit B, the following day. He made his third written statement, Exhibit 18, the day after he gave his second statement. On cross-examination, the following exchange took place:
Defense counsel: And [the police] asked you to write out a statement?
Gercone: Yes.
Defense counsel: How many pages did you write?
Gercone: I don't know.
Defense counsel: If I told you it was a total of just a few lines, would that be a correct statement?
Gercone: I don't know. I don't know.
Defense counsel: Maybe 12 lines?
Gercone: I don't know.
. . .
Defense counsel: You felt that what you wrote down was enough for the police investigating the death of [Girlfriend]?
Gercone: Yes.
Defense counsel: And the next day you went back and you wrote out another statement?
Gercone: I don't recall. I don't know. I mean, this is a long time ago. I don't know.
. . .
Defense counsel: And on the second statement, I think you wrote out a total of 16 lines?
Gercone: I'm not sure.
Defense counsel had Gercone examine Exhibits A and B, and total the number of lines in each written statement, emphasizing that Exhibit A consisted of 12 lines only and Exhibit B consisted of 16 lines only. Defense counsel's questioning of Gercone on Exhibits A and B stressed that Gercone left many things out of these written statements, such as the disposal of various items of drug paraphernalia by Gercone and Baker prior to the arrival of the police after the death of Girlfriend. There was a further exchange about Exhibit B, as follows:
Defense counsel: And in the second [written statement], we talked about it earlier, you wrote out a total of 16 lines?
Gercone: Yes.
Defense counsel: That was 16 more lines in response to the police officer's questions?
Gercone: Yes.
Defense counsel: You still knew the police were investigating the death of [Girlfriend]?
Gercone: Yes.
Defense counsel: And you wrote out the second statement to try to assist the police?
Gercone: Yes.
Defense counsel: You wrote out what you felt was important information for this death investigation?
Gercone: They weren't asking about that. They wanted to know about [Defendant].
Defense counsel: Okay. You wrote out a total of 16 lines?
Gercone: Yes.
Defense counsel: And you wrote out all you felt was important about [Defendant] in 16 lines?
Gercone: Yes.
Defense counsel: You felt writing out 16 lines was enough for the police to have their investigation on [Defendant]?
Gercone: Yeah, yes.
. . .
Defense counsel: Now, you said the second statement, they're wanting to know information about [Defendant], right?
Gercone: Yes.
Defense counsel: Now, in either the first or the second statement you never said, "I saw George Myers inject Megan Williams with oxycodone."
Gercone: Right.
Defense counsel: Thank you. No more questions, Your Honor.
On redirect examination, the State sought to introduce Exhibit 18, Gercone's third written statement that he made to the police. Defense counsel objected, leading to the following exchange:
. . .
State's counsel: I think that it is a clear exception [to the hearsay rule], I think it's misleading to not refer to the fact that [Gercone] actually had a third [written statement].
The trial court allowed Exhibit 18 to be...
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