State v. NYLON
| Decision Date | 29 June 2010 |
| Docket Number | No. ED 92172.,ED 92172. |
| Citation | 311 S.W.3d 869 |
| Parties | STATE of Missouri, Respondent, v. Lavell E. NYLON, Appellant. |
| Court | Missouri Court of Appeals |
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Jessica Hathaway, MO Public Defenders Office, St. Louis, MO, for appellant.
Shaun Mackelprang, Richard Starnes, Co-Counsel, Jefferson City, MO, for respondent.
Before KATHIANNE KNAUP CRANE, P.J., CLIFFORD H. AHRENS, J., and NANNETTE A. BAKER, J.
Lavell Nylon ("Defendant") appeals from the judgment entered upon a jury verdict convicting Defendant of drug trafficking in the second degree and resisting arrest. The trial court sentenced Defendant as a prior and persistent offender to consecutive terms of fifteen years for the drug offense and five years for resisting arrest. On appeal, Defendant claims the trial court erred in denying his motion for judgment of acquittal for the crime of resisting arrest, in overruling his Batson1 challenges, and in denying his motions to suppress drug evidence and his statements to the police. We affirm in part and reverse in part.
After Defendant filed this appeal, he filed a "Motion for Remand to the Trial Court for Reconsideration of Appellant's Suppression Motions and/or New Trial Motion in Light of Newly Discovered Evidence" ("motion to remand"). Defendant has moved this Court to remand his case to the trial court because he claims the trial court should be able to consider newly discovered evidence regarding the credibility of the State's key witnesses against Defendant. This motion is denied.
This Court reviews the facts in the light most favorable to the verdict. State v. Barriner, 111 S.W.3d 396, 397 (Mo. banc 2003). On January 7, 2007, an anonymous person approached City of St. Louis Police Officers Shell Sharp and Mike Mathews and reported that an older black male with braids and a brown jacket was selling narcotics. The officers went to the location described by the tipster and saw Defendant, who was huddled with another man in conversation. Defendant matched the tipster's description of the man selling drugs. The police officers approached the men, who immediately separated and walked away in different directions. Defendant also put his right hand into his pants pocket. Officer Mathews ordered Defendant to remove his hand from his pocket. Defendant took a step backward, turned and began to walk away briskly. Officer Mathews followed Defendant and again instructed him to take his hand out of his pocket. Defendant then slipped in a mud hole and fell to the ground. Defendant removed his hand from his pocket to brace his fall, and when he hit the ground, a plastic bag containing numerous smaller bags fell to the ground. Officer Mathews believed the plastic bags contained crack cocaine, and later testing confirmed that the bag contained 5.11 grams of a substance with a crack cocaine base.
After falling, Defendant attempted to stand up, but Officer Mathews told him to stop and that he was under arrest. Officer Mathews grabbed Defendant, and both men fell into the mud. Defendant attempted to crawl away, but Officer Sharp came to Officer Mathews's assistance and placed Defendant under arrest. After the police read Defendant his Miranda2 rights, Defendant told the officers that he would cooperate and would provide them with information on other narcotic dealers if the officers would give him a break.
Defendant was charged as a prior and persistent offender with drug trafficking in the second degree in violation of Section 195.2233 and resisting arrest in violation of Section 575.150 RSMo. (Supp.2005). During jury selection, the State used five of its six peremptory strikes on African-Americans, including venirepersons Britt, Watson and Cobb. Defendant objected to all five strikes based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State responded that it struck venirepersons Britt and Watson because they lived in the area where the arrest occurred. The State also argued that two white venirepersons, Peterson and Staum, who also lived in the same area, were distinguishable from the struck African-American venirepersons. The State claimed that venirepersons Peterson and Staum were pro-State, and the State assumed Defendant would use his peremptory strikes on them. The State argued that it struck Venireperson Cobb because "she worked in a casino, so she works in the same industry." The State did not explain who else worked in a casino. The trial court overruled Defendant's Batson challenges.
Defendant filed motions to suppress the seized drug evidence and his statements to the police because Defendant claimed that the police lacked reasonable suspicion to approach him. The trial court ordered the motion to suppress the drug evidence to be taken with the case. Officer Mathews and Defendant testified at an evidentiary hearing on the motion to suppress the statements. The trial court found Officer Mathews's account of the arrest credible and denied the motion.
At trial on April 16, 2008, officers Sharp and Mathews and the criminologist who tested the crack cocaine testified on behalf of the State. The State also admitted into evidence an evidence envelope, the bag of crack cocaine and a lab analysis report. When the State moved to admit the evidence envelope and the crack cocaine, Defendant stated that he had no objection to their admission. Furthermore, Defendant did not reassert his motion to suppress the drug evidence. The trial court denied the motion to suppress after hearing the evidence in the case. Defendant failed to object when Officer Sharp testified regarding Defendant's post-arrest statements but did object to Officer Mathews's testimony regarding the same statements. Defendant did not present any evidence at trial, and the jury found Defendant guilty. On May 1, 2008, Defendant timely filed a motion for new trial, which was denied. On May 23, 2008, Defendant was sentenced to consecutive terms of fifteen years for the drug offense and five years for resisting arrest. Defendant filed this appeal and oral arguments were conducted on December 8, 2009.
On December 4, 2009, Defendant filed the motion to remand with this Court. Defendant moves this Court to remand Defendant's case to the trial court so Defendant can amend his motion for new trial and so that the trial court can reconsider Defendant's motions to suppress in light of newly discovered evidence. The State opposes the motion to remand. The newly discovered evidence consists of multiple articles published in the ST. LOUIS POST-DISPATCH. The articles detailed serious issues in the City of St. Louis Police Department regarding police officers allegedly fabricating statements by confidential informants to support applications for search and arrest warrants.4
The articles included information that the St. Louis Circuit Attorney's Office declined to prosecute numerous cases involving Officer Sharp's testimony because his testimony was no longer reliable and that he had been accused of lying on search warrant applications. Specifically, Officer Sharp had listed either a dead person or a person in jail as one of his confidential informants. The reports also stated that the St. Louis Circuit Attorney had lost confidence in Officer Mathews as a witness. In an affidavit filed as part of a warrant application, Officer Mathews had stated that he conducted surveillance on April 1, 2008, but records show that he was off duty at the time. As a result, the Circuit Attorney dismissed charges against the subject of the surveillance and was in the process of reviewing other cases involving Officer Mathews. The reports concerned cases in 2008 and 2009 and did not include any allegations of misconduct by officers Sharp and Mathews related to their testimony in Defendant's case.
When Defendant filed his motion to remand, the Missouri Supreme Court had before it a case involving a motion to remand because of newly discovered evidence. State v. Terry, 304 S.W.3d 105 (Mo. banc 2010). This Court withdrew Defendant's appeal from consideration pending the Supreme Court's decision in Terry. After the Supreme Court issued its opinion in Terry, this case was resubmitted for consideration.
We will first address Defendant's motion to remand on the basis of the newly discovered evidence. Defendant filed his motion to remand because newly discovered evidence exists that the police officers involved in this incident have serious credibility issues that came to light after Defendant's trial. He argues the trial court should be able to consider this evidence in ruling on Defendant's motions to suppress and motion for a new trial because the evidence seriously harms the credibility of the State's two crucial witnesses.
Defendant's motion to remand, however, does not satisfy the time limits for filing a motion for a new trial under Rule 29.11(b)5 because it was filed more than twenty-five days after the jury returned its verdict.6 The Missouri rules do not provide a means to order the granting of a new trial for newly discovered evidence outside of the time limits imposed by Rule 29.11. Terry, 304 S.W.3d at 107-09. Despite the lack of a provision in the rules, this Court has the "responsibility to avoid a `perversion of justice.'" Terry, 304 S.W.3d at 110 (quoting State v. Williams, 673 S.W.2d 847, 848 (Mo.App. E.D.1984)). Appellate courts also "have the inherent power to prevent miscarriages of justices" in certain cases of newly discovered evidence. State v. Mooney, 670 S.W.2d 510, 515-16 (Mo.App. E.D.1984). To exercise this power, the appellate court may, in limited circumstances, dismiss the appeal and remand the case to ...
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