State v. Neely, 21618
| Decision Date | 17 November 1998 |
| Docket Number | No. 21618,21618 |
| Citation | 979 S.W.2d 552 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Jackson Leroy NEELY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Nancy L. Vincent, Asst. Public Defender, St. Louis, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Jefferson City, for Respondent.
Jackson Neely (Defendant) was convicted by a jury of murder in the first degree in violation of section 565.020. 1 The Circuit Court of Carter County sentenced Defendant to the Missouri Department of Corrections for a term of life without eligibility for parole or probation. We affirm.
Defendant does not challenge the sufficiency of the evidence to support the conviction. We consider the facts and all reasonable inferences therefrom in the light most favorable to the verdict and reject all contrary evidence and inferences. State v. Rush, 949 S.W.2d 251, 252 (Mo.App.1997).
In October 1994, Mandel Steward died of a gunshot wound which law enforcement officers concluded was self-inflicted by accident. Randall Steward (Mandel Steward's son) and Leonard Steward (Mandel Steward's nephew) did not believe the shooting was accidental. They believed that Mandel Steward had been murdered. They also believed that Terri Bell, the victim in the case at bar, was present when Mandel Steward was killed, knew the identity of his assailant, and was involved in causing his death.
On January 12, 1995, Defendant and Terri Bell were at Defendant's residence, located in Paragould, Arkansas. Randall Steward, Leonard Steward, Charles Perkins, Lee Dillard and Argel Morrow traveled to Defendant's residence to question Terri Bell about the identity of Mandel Steward's assailant and her involvement. When asked who had shot Mandel Steward, Terri Bell stated that she did not know. Defendant then pulled out a gun, held it to her head and stated, "Tell me what you told me 'while ago.' " Terri Bell pushed the gun away and said to Defendant, "Oh, honey, don't." At that point, Argel Morrow stated to Defendant, "Before you 'uns do anything now, I'm a deputy sheriff." Defendant put the gun away.
Randall Steward, Leonard Steward and Defendant then continued to question Terri Bell. 2 Terri Bell was slapped in the face by Randall Steward and Leonard Steward, and there is evidence in the record that suggests that Defendant knocked Terri Bell's head against a wall, splattering some blood from her head on the wall and leaving an indentation on the wall. Terri Bell then began to cry and stated that indeed she knew who killed Mandel Steward.
Argel Morrow testified that he heard Terri Bell say to Randall Steward, Leonard Steward and Defendant that she was at Mandel Steward's house, "dancin' and drinkin," and that at some time during the evening she "heard the gun go off, and turned around, and Marcus [Torres] had a gun in his hand and said it was an accident." Argel Morrow also testified that after Terri Bell had made the foregoing remarks, he then heard Defendant say to Randall Steward and Leonard Steward, "You don't mind if she comes up missing, do you?"
At approximately 9:30 p.m. that day, Terri Bell visited Michael Bryan at his home in Paragould, Arkansas. Michael Bryan noticed that Terri Bell had a black eye, some "red spots on her in a few places," and that her lips were "swollen from being busted." Terri Bell asked Michael Bryan to help her move some of her personal possessions to Defendant's home on South Seventh Avenue in Paragould. Terri Bell told Michael Bryan she had been beaten up by some men, that one or more of those men were armed, and that she believed that Defendant 3 would protect her from Marcus Torres.
Gary Goldsmith made two statements, identified at trial as State's Exhibits 6 and 7, to law enforcement officials at the Paragould Police Department in Arkansas. In his second taped statement, (Exhibit 7) Gary Goldsmith stated that the day after Terri Bell had been forced to admit to her complicity in the murder of Mandel Steward, Defendant informed Gary Goldsmith that he had been instructed by one of the Stewards to kill Terri Bell. Defendant was supposed to wait for the Stewards to tell him when to "do it." However, Gary Goldsmith stated that Defendant did not wait for the Stewards to call him, but "went ahead and called them and they said, 'Go ahead.' " Gary Goldsmith also stated that on January 14, 1995, he, Defendant and Terri Bell went for a drive, drove to Missouri and stopped the car on a gravel road near the Wilhelmina Club. 4 When they stopped, Terri Bell got out of the car to urinate. Defendant exited the car at the same time as Terri Bell, but Gary Goldsmith remained in the car. While Terri Bell was urinating, Defendant shot her in the head with a .38 caliber pistol. The shot killed her. Defendant placed Terri Bell's body into a nearby pond. Defendant and Gary Goldsmith then drove away and returned to Paragould, Arkansas. The next day Terri Bell's body was discovered in a pond near Wilhelmina Road.
During the trial, the State sought to admit in evidence the transcript of Gary Goldsmith's testimony taken during Defendant's preliminary hearing. Gary Goldsmith was not available to personally testify at trial because he died of an illness prior to Defendant's trial (held over a year after the preliminary hearing). Over Defendant's objections, the transcript of Gary Goldsmith's preliminary hearing testimony was read to the jury by a neutral party and both tape-recorded statements made by Gary Goldsmith to law enforcement officers were also admitted in evidence and played for the jury.
In his first point, Defendant argues that the trial court abused its discretion and committed reversible error: (a) by allowing the State to present to the jury the preliminary hearing testimony of Gary Goldsmith, deceased at the time of trial; (b) in giving a "curative instruction" regarding the reading of Gary Goldsmith's preliminary hearing transcript at trial; (c) because he did not have a "qualified attorney" during the preliminary hearing proceedings, hence the testimony and statements received into evidence were not subject to meaningful cross-examination; (d) that the two tapes, consisting of unsworn statements of Gary Goldsmith, should not have been played to the jury; and (e) that the statements contained inaccuracies, were unreliable, untested and contained numerous instances of inadmissible evidence. We review each subpoint separately.
Defendant argues that the trial court's admission in evidence of the transcript of Gary Goldsmith's testimony taken during Defendant's preliminary hearing, violated "his rights to confront and cross-examine witnesses against him under the Sixth and Fourteenth Amendments" of the United States Constitution. This argument is without merit.
The general rule is "that the testimony of a witness given on the preliminary examination of the accused is competent on the trial where the witness died in the meantime." State v. Fleming, 451 S.W.2d 119, 121 (Mo.1970); see also State v. Kee, 956 S.W.2d 298, 302 (Mo.App.1997)("[a]n exception [to confrontation] exists ... when a defendant had the opportunity to cross-examine an unavailable witness at a previous judicial proceeding...."). "Testimony given at a properly held preliminary hearing satisfies the requirements of the confrontation clause of the Sixth Amendment when the witness is unavailable to testify at trial." State v. Griffin, 848 S.W.2d 464, 470 (Mo. banc 1993). "[T]he inability of defense counsel to conduct the same cross-examination early in the pretrial process as would be conducted at trial does not mean that the testimony lacks sufficient reliability to admit it for trial." Id.
The record in the instant matter reveals the Defendant's defense counsel engaged in a vigorous cross-examination of Gary Goldsmith during the preliminary hearing. See Fleming, 451 S.W.2d at 121; Kee, 956 S.W.2d at 302. The record also reveals that at the time of Defendant's trial, Gary Goldsmith was unavailable to personally testify because of his death. See id.; see also California v. Green, 399 U.S. 149, 165, 90 S.Ct. 1930, 1939, 26 L.Ed.2d 489 (1970) (). Gary Goldsmith's preliminary hearing testimony was therefore properly admitted in evidence in this case. Subpoint denied.
Before introducing the preliminary hearing testimony of Gary Goldsmith, the trial court read an instruction to the jury to explain the circumstances of his testimony and to help the jury understand what was being admitted as evidence. The instruction was:
A witness named Gary Goldsmith testified at an earlier stage of this case. He had since died of an illness, and is not available in person to testify today.
The law permits his testimony at the prior proceeding to be presented to the jury, and treated by you as if it were live today.
The reader of his testimony is an officer of this court, entirely unrelated to any of the parties or events herein, and unacquainted with the deceased witness.
[The prosecutor] will read the questions which he put to the witness at that hearing. [Defendant's attorney] will read the questions put to Mr. Goldsmith by an attorney named Randel Miller, who appeared as [Defendant's] attorney.
Mr. Goldsmith's testimony, as transcribed by a court reporter, will be read by Darron Wheeler. You are cautioned that it is the testimony of Mr. Goldsmith that the Court is admitting into evidence, and not the demeanor, manner, or...
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State v. Evans, s. 20530
...with circumstantial evidence. Id. The jury resolves questions of credibility and inconsistencies in the evidence. State v. Neely, 979 S.W.2d 552, 561 (Mo.App.1998). A jury may accept part of a witness's testimony while disbelieving other portions. State v. Redmond, 937 S.W.2d 205, 209 (Mo. ......
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