State v. Norman

• Decision Date: 18 October 2004
• Docket Number: No. 25119.,25119.
• Citation: 145 S.W.3d 912
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Leroy L. NORMAN, Defendant-Appellant.
• Court: Missouri Court of Appeals

145 S.W.3d 912

STATE of Missouri, Plaintiff-Respondent, v. Leroy L. NORMAN, Defendant-Appellant.

No. 25119.

Missouri Court of Appeals, Southern District, Division One.

October 18, 2004.

Appeal from the Circuit Court, Greene County, Henry W. Westbrooke, Jr., J Craig Johnston, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, for Respondent.

NANCY STEFFEN RAHMEYER, Judge.

Leroy L. Norman ("Appellant") appeals his conviction for murder in the second degree, a violation of Section 565.021, and armed criminal action, a violation of Section 571.015.¹ Appellant raises three points on appeal. First, he argues the trial court abused its discretion in overruling his request for a mistrial when testimony was given contrary to the trial court's pretrial ruling on his motion in limine. Second, Appellant argues the trial court abused its discretion in excluding two photographs which would tend to implicate another as the murderer. Last, Appellant contends the trial court erred in giving an instruction because it was not supported by the evidence and had the effect of misleading and confusing the jury. We affirm.

Facts and Procedural History

Appellant does not challenge in this appeal the sufficiency of the evidence presented by the State to sustain his conviction for second degree murder and armed criminal action. We consider all facts and make reasonable inferences in the light most favorable to the conviction and reject all contrary evidence and inferences. State v. Stanley, 124 S.W.3d 70, 72 (Mo. App. S.D.2004).

On July 22, 2000, Sandra Guzman, age 19, was staying with her parents in Carthage, Missouri. While her parents were out of town visiting relatives, Guzman, who had worked the night shift the evening before, awoke in the late afternoon. She decided to leave her house to visit her brother, who lived in an apartment over Mike's Bar. Guzman met, for the first time, Lauren `Angel' Wallis ("Victim") who offered to buy beer for Guzman and some of her underage friends.

Guzman had not planned to have a party because she knew that her parents would not be pleased if they found out; however, Guzman, her friends and Victim went back to her house to drink the beer Victim had just purchased. After Guzman decided to invite other people to her house, she went back to her brother's apartment and also invited Andy Kelly and Martin McQuaid. They shared a joint of marijuana on their way back to the house. Guzman then saw other acquaintances and asked them to join her party. Appellant and his brother joined the party at this point with people drinking beer and smoking marijuana.

Victim became quite intoxicated and kept losing consciousness in the house. When Victim became conscious, she asked for her purse, which she had left at the apartment where she first met Guzman. Victim became belligerent when she could find no one to take her to get her purse. Guzman, trying unsuccessfully to get Victim to leave, asked Kelly for his help in removing Victim from her house. Kelly picked Victim up, carried her outside and placed her on the ground. Guzman then threatened to beat up Victim. Kelly and Guzman then threw Victim in the dumpster in hopes of humiliating her but Victim climbed out of the dumpster and returned to the party.

Guzman later told Kelly that she could obtain the drug, Ecstasy, from some people she knew in Springfield; she told Kelly she just needed to find a ride for the two of them. Appellant agreed to drive Guzman and Kelly to Springfield to obtain Ecstasy and to drive Victim home. Guzman rode in the passenger side of Appellant's truck with Kelly and Victim riding in the bed. Kelly stuck his head through the sliding rear window of the cab of the truck numerous times to complain about Victim. One time in particular, Kelly became so aggravated with Victim that he stuck his head through the sliding window to ask if he could kill Victim and insisted that Appellant pull the truck over on the side of the road.

Appellant did eventually pull the truck over at the Republic and Bois D'Arc exit; he brought the truck to a stop on TT Highway next to a low-water bridge. Appellant and Guzman exited the vehicle. Guzman saw Kelly hunched over Victim, who was screaming, in the bed of the truck. Kelly told Guzman he was killing Victim. Guzman went over to Appellant and told him what Kelly was doing. Appellant told Kelly to get Victim out of his truck, but when Victim refused to move, Kelly reached up and grabbed Victim's arm and yanked her out of the truck. The force caused Victim to loss her footing and she fell to the pavement. Victim stood up crying and began punching Kelly, who grabbed her and placed her in a choke-hold. Victim became limp and collapsed to the pavement unconscious but still breathing. Appellant grabbed Guzman and made her watch as he placed his foot on Victim's chest. While Appellant held Victim in place with his foot, Kelly repeatedly kicked Victim in the head.

Kelly suggested that the three of them should just leave Victim there to find her own way home. Appellant then pulled out a knife and, as Guzman and Kelly both shouted, "No," slit Victim's throat. Appellant and Kelly then picked up Victim and tossed her body over the side of the low-water bridge into the stream below. Guzman, Kelly and Appellant got back into the truck and drove back to Carthage. Appellant was driving with Guzman riding in the passenger seat and Kelly in the bed of the truck. During the drive home Kelly and Appellant bragged about killing and Kelly suggested they go on a killing spree when they returned home. The three made a stop at a convenience store on the way back, but when Appellant and Guzman were ready to leave, they could not find Kelly. Appellant commented to Guzman that if Kelly ran off, he would have to cut his throat, too.

Appellant drove to Guzman's house, where he told his brother that they had been out driving around and had given Victim a ride home. Appellant and his brother drove the truck to Spot-Not, a local car wash, and washed the truck before returning home. Guzman called her parents, who told her to report the murder; she did so at the police station later that morning. The Carthage Sheriff's Department then notified Greene County Sheriff's Department of a possible homicide. Victim's body was discovered where Guzman described it would be. Despite the fact Victim suffered from numerous injuries, autopsy reports show that she bled to death from a laceration to the neck.

Kelly was arrested later that day wearing the same shirt he had been wearing the night before when Victim was killed. Two spots on Kelly's shirt tested positive with Victim's DNA profile. Officers also stopped Appellant's truck based upon a description given to them by Guzman; however, Appellant was not driving the vehicle because he had loaned it to Demetrio Cortez to move some furniture. Upon initial surveillance of the truck during the vehicle stop, Detective Arnott noted a reddish-brown substance smeared on the back, on the bed, and outside the truck. He also observed, on the driver's side, spots toward the rear of the bed and on the outside close to the taillight. Arnott took photos of these areas and conducted an appropriate sample gathering of various sections to be tested in the lab. Arnott also spotted a knife in the console of the truck, which fit the description Kelly provided when questioned about the knife. Although testing on the reddish-brown substance on the truck revealed the possible presence of blood, testing on the knife produced a negative result for the presence of blood. Appellant's shoes were confiscated and tested, when he was arrested, for traces of Victim's DNA. Three spots on his shoes revealed matches to Victim's DNA profile.

I. Mistrial Request

In Appellant's first point, he contends the trial court abused its discretion by not declaring a mistrial when Detective Arnott gave a voluntary, inadmissible statement that he had found handcuffs in Appellant's truck, which violated the trial court's ruling on a pretrial motion in limine. Appellant objected to the statement at trial, the court sustained his objection but refused to grant a mistrial. Instead, the trial court ordered the statement stricken from the record and instructed the jury to disregard the statement.

We review a ruling on a request for a mistrial for an abuse of discretion. State v. Webber, 982 S.W.2d 317, 323 (Mo. App. S.D.1998). The declaration of a mistrial is a drastic remedy that should be employed only in extraordinary circumstances in which prejudice to the defendant can be removed in no other way. Id. "Testimony contrary to the court's ruling on a defendant's motion in limine does not, in itself, require the declaration of a mistrial." Webber at 322. A ruling on a motion in limine is interlocutory, it is subject to change during the course of trial. State v. McCullum, 63 S.W.3d 242, 259 (Mo.App. S.D.2001).

Appellant filed a motion in limine, which was granted, seeking to prevent the State from making reference to a pair of handcuffs which were found in Appellant's truck. During the cross-examination of Detective Arnott, however, defense counsel, after a discussion concerning Detective Arnott's initial inspection during the vehicle stop, inquired about other reddish-brown substances found in and on the truck.

Q. [DEFENSE COUNSEL]: Other than those locations, did you observe reddish-brown substances anywhere else in the pick-up truck?

A. [DETECTIVE ARNOTT]: Other— on the vehicle, itself or —

Q. [DEFENSE COUNSEL]: On the exterior or the interior of the vehicle.

A. [DETECTIVE ARNOTT]: Can I review my report?

Q. [DEFENSE COUNSEL]: Yes.

THE COURT: You may step down if you like.

A. [DETECTIVE ARNOTT]: Thank you, sir. There was another item recovered inside the truck, which was a pair of handcuffs, and it had an unknown type substance on it, also.

[DEFENSE COUNSEL]: Judge...