State v. Oliver

• Decision Date: 04 October 2022
• Docket Number: ED 110005
• Citation: 655 S.W.3d 407
• Parties: STATE of Missouri, Respondent, v. Willie OLIVER, Appellant.
• Court: Missouri Court of Appeals

655 S.W.3d 407

STATE of Missouri, Respondent,

v.Willie OLIVER, Appellant.

No. ED 110005

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: October 4, 2022

Application for Transfer to Supreme Court Denied November 08, 2022

Application for Transfer Denied December 20, 2022

FOR APPELLANT: Stephanie A. Hoeplinger, Missouri Public Defender's Office, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.

FOR RESPONDENT: Richard A. Starnes, Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102.

Kelly C. Broniec, Presiding Judge

Willie Oliver ("Defendant") appeals the trial court's judgment entered on a jury verdict finding him guilty of first-degree rape, second-degree domestic assault, and two counts of third-degree domestic assault. Defendant raises two points on appeal. In his first point on appeal, Defendant argues the trial court plainly erred by failing to give the correct jury instruction. In his second point on appeal, Defendant argues the trial court erred by failing to dismiss the charges against him because he was denied his right to a speedy trial.

Finding that trial court's instructions did not so misdirect the jury as to result in a miscarriage of justice, and that the delays are largely attributable to Defendant or circumstances that weigh neutrally, including the COVID-19 pandemic, we affirm.

I. Factual and Procedural Background

Defendant was arrested in September, 2017. On December 5, 2017, a grand jury indicted Defendant of the unclassified felony of rape in the first degree, the class B felony of kidnapping in the first degree, the class D felony of domestic assault in the second degree, and two counts of the class E felony of domestic assault in the third degree. On August 25, 2021, nearly four years after his arrest, a jury found Defendant guilty of all counts except the class B felony of kidnapping in the first degree. The trial judge sentenced Defendant to ten years imprisonment for the first-degree rape as a prior offender, to run consecutive to concurrent terms of five years for second-degree domestic assault, and four years for each count of third-degree domestic assault.

The evidence at trial established that T.M. met Defendant in 2015, and they subsequently engaged in a sexual relationship.¹ T.M. and Defendant began living together a few months after their relationship began.

On the night of September 1, 2017, T.M. and Defendant were in their home together. Defendant accused T.M. of damaging or allowing someone else to damage his futon couch. Defendant became angry and started hitting T.M. Defendant demanded that T.M. undress. Defendant struck T.M. multiple times with his fist, his open hand, and his belt. Defendant subsequently pushed T.M. onto the futon and engaged in vaginal intercourse. To avoid repetition, additional facts directly relevant to Defendants’ points are addressed in the Discussion section below.

II. Standard of Review

Defendant requests plain error review on both points. For his first point on appeal, Defendant acknowledges he did not preserve his claim of instructional error for review through an objection. In his second point on appeal, Defendant concedes his claim of error was not properly preserved because it was not raised in his motion for new trial.

This Court uses a two-step inquiry in applying plain error review. State v. Hunt , 451 S.W.3d 251, 260 (Mo. banc 2014). First, the court must determine whether the claimed error is a "plain error[ ] affecting substantial rights." Rule 30.20.² Plain error is error that is "evident, obvious, and clear." State v. DeRoy , 623 S.W.3d 778, 789 (Mo. App. E.D. 2021) (quoting State v. Darden , 263 S.W.3d 760, 762-63 (Mo. App. W.D. 2008) ). "Substantial rights are involved if, facially, there are significant grounds for believing that the error is of the type from which manifest injustice or miscarriage of justice could result if left uncorrected." Hunt , 451 S.W.3d at 260 (citing Rule 30.20). Second, the court must determine whether "the claimed error actually resulted in manifest injustice or miscarriage of justice." State v. Robinson , 484 S.W.3d 862, 870 (Mo. App. E.D. 2016). "Manifest injustice is determined by the facts and circumstances of the case, and the defendant bears the burden of establishing manifest injustice." State v. Baxter , 204 S.W.3d 650, 652 (Mo. banc 2006).

Defendant additionally requests this Court review his second point de novo , relying on State v. Sisco , 458 S.W.3d 304, 313 (Mo. banc 2015). This reliance is misplaced. In Sisco , the defendant asserted the trial court erred in overruling his motion to dismiss for violations of his right to a speedy trial. Id. at 304, 311. In cases where the defendant has failed to preserve the speedy trial issue by failing to file a motion to dismiss or failing to include the speedy trial issue in a motion for new trial, and where the argument on appeal is that the trial court failed to sua sponte dismiss the charges, we have found plain error review appropriate. See, e.g. , State v. Jones , 530 S.W.3d 525, 533 (Mo. App. E.D. 2017) ; and State v. Drudge , 296 S.W.3d 37, 42 (Mo. App. E.D. 2009).

III. Discussion

Point I

In his first point on appeal, Defendant argues the trial court plainly erred by failing to give the correct jury instruction. In Instruction No. 12, the trial court instructed the jury prior to deliberation using language modeled after MAI-CR 4th 402.05 (2017). The instruction, as given, stated:

When you retire to your jury room, you will first select one of your number to act as your foreperson and to preside over your deliberations.

You will then discuss the case with your fellow jurors. Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors.

Your verdict, whether guilty or not guilty, must be agreed to by each juror. Although the verdict must be unanimous, the verdict should be signed by your foreperson alone.

When you have concluded your deliberations, you will complete the applicable form(s) to which you unanimously agree and return (it) (them) with all unused forms and the written instructions of the court.

A revised version of MAI-CR 4th 402.05 went into effect on January 1, 2021, prior to the trial in this case. This revision stated:

When you retire to your jury room, you will first select one of your number to act as your foreperson and to preside over your deliberations.

You will then discuss the case with your fellow jurors. Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors.

In deciding what the facts are, you must decide what testimony you believe and what testimony you do not believe. You may believe all, any part, or none of a witness's testimony. You must decide for yourselves whether to believe the testimony of any witness.

You must take great care in determining the believability of a witness and the weight to be given to testimony of the witness; you may take into consideration the witness's manner while testifying; the ability and opportunity of the witness to observe and remember any matter about which testimony is given; any interest, bias, prejudice, incentive, or motive the witness may have; the reasonableness of the witness's testimony considered in the light of all of the evidence in the case; any benefit that the witness was promised, received, or expected; and any other matter that has a tendency in reason to prove or disprove the truthfulness of testimony of the witness.

Your verdict in this case should be based on unbiased reflection after fairly considering the evidence and the views of other jurors whose backgrounds and perspectives may be different from yours.

Your verdict, whether guilty or not guilty, must be agreed to by each juror. Although the verdict must be unanimous, the verdict should be signed by your foreperson alone.

When you have concluded your deliberations, you will complete the applicable form(s) to which you unanimously agree and return (it) (them) with all unused forms and the written instructions of the court.

(Emphasis added to denote language added in the 2021 revision).

Defendant did not object to the instruction as given and, after reviewing the proposed instructions at the instructions conference, Defense counsel affirmatively stated that the instructions appeared to be correct.

Analysis

Rule 28.02 directs the trial court's use of instructions and verdict forms in criminal trials. See also State v. Bax , 459 S.W.3d 493, 496 (Mo. App. W.D. 2015). "Rule 28.02(c) requires the trial court to give the appropriate approved instructions or verdict form to the exclusion of any other instruction or verdict form." Id. When jury instructions have been revised, the appropriate jury instruction is that which is in effect at the time of trial. See Rule 28.01; see also McCroskey v. Marshall , 519 S.W.2d 717, 721 (Mo. App. 1975) ("In almost all cases where an MAI instruction has undergone revision, instruction preparers should conclude that the old form may no longer properly be used. To hold otherwise would be to ignore the revision itself."). Failure to use the proper MAI-CR instruction "shall constitute error, the error's prejudicial effect to be judicially determined...." Rule 28.02(f).

The trial court's giving of Instruction No. 12 was in error as it was not the approved instruction in effect at the time of the trial. However, Rule 28.02(f) continues, stating that failure to use the proper instruction shall constitute error, "provided that objection has been timely made pursuant to Rule 28.03." Rule 28.03 requires counsel to "make specific objections to instructions or verdict forms considered erroneous." Further, "[n]o party may assign as error the giving or failure to give instructions or...