State v. Overton

• Decision Date: 30 June 2008
• Docket Number: No. 28282.,28282.
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donald OVERTON, Defendant-Appellant.
• Court: Missouri Court of Appeals

261 S.W.3d 654

STATE of Missouri, Plaintiff-Respondent, v. Donald OVERTON, Defendant-Appellant.

No. 28282.

Missouri Court of Appeals, Southern District, Division One.

June 30, 2008.

Petition for Rehearing and Transfer to Supreme Court Denied August 13, 2008.

Application for Transfer Denied September 30, 2008.

S. Kathleen Webber, Kansas City, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for respondent.

JEFFREY W. BATES, Judge.

Donald Overton (Defendant) was found guilty by a jury of committing murder in the first degree. See § 565.020.¹ On appeal, Defendant presents four points for decision. He contends that the trial court: (1) erred in denying Defendant's first motion to dismiss based on an alleged violation of the Interstate Agreement on Detainers (IAD) because his trial did not occur within 180 days after the prosecutor and court received his request for final disposition of detainer; (2) erred in denying Defendant's second motion to dismiss based on the same ground as applied to subsequent continuances after the first trial resulted in a mistrial; (3) abused its discretion in failing to grant a mistrial for certain comments the prosecutor made during closing argument; and (4) abused its discretion in failing to grant Defendant's motion for a mistrial after the prosecutor elicited testimony about another murder during the direct examination of a witness for the State. This Court affirms.

I. Factual and Procedural Background

An appellate court considers the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict and disregards all contrary evidence and inferences. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998). Viewed from that perspective, the favorable evidence and inferences supporting the State's case against Defendant are summarized below.

All of the events relevant to this appeal took place in Joplin, Missouri. Israel Ward (Ward) was a member of the Red "Money Over Bitches" (MOB) Gangsters.² Ward had been friends since 1991 with Brian McDaniel (McDaniel), who was another MOB gang member. Defendant was not a member of MOB; he belonged to the Bloods gang. Ward also knew Kendace "Sissy" DeCarlo (Victim). She was not a gang member, but she knew a lot of persons who were.

Victim and another gang member named "Mad Dog" were involved in a relationship. Later, Mad Dog introduced Victim to McDaniel. He and Victim became romantically involved. Nevertheless, McDaniel had a problem with a prior relationship between Victim and Mad Dog. In the presence of Ward and Defendant, McDaniel said: (1) he wanted Victim and Mad Dog killed; (2) McDaniel could not kill Victim himself because he could be easily identified, he had lived with Victim and her children at one time, and everyone knew he had a "beef" with her; (3) no one in Joplin knew Defendant, so he would be the one to kill Victim and Mad Dog. McDaniel also showed a .380 handgun to Ward and Defendant.

On July 3, 2001, Michael Wheeler (Wheeler) was at the home of Valerie Moss (Moss) and her son, Brad. The Mosses resided at 3530 S. Pearl Avenue in Joplin. The trio had taken Wheeler's car to get some sandwiches and were returning home between 9:30 and 10:00 p.m. As they approached the Mosses' residence, they saw an unfamiliar car parked across the street from the house. The vehicle was a small white four-door sedan. The driver was an African-American man wearing glasses. As Wheeler's vehicle drew nearer, its headlights fell upon the sedan. The driver leaned over and back in the seat in order to hide. After Wheeler pulled into the driveway, he walked over to the rear of the sedan to see if he recognized the driver. Wheeler heard someone running down a gravel alley that ran perpendicular to the street. This alley connected S. Pearl Avenue to S. Joplin Avenue, which was two blocks away. Wheeler and the Mosses all saw the second man in the alley. He was about 50 feet away, running toward S. Pearl Avenue. The area was well lit by floodlight illumination. This second man was an African American. He was at least 6 feet tall and was running "at a good pace." This man, who appeared startled to see Wheeler and the Mosses, stopped in the yard for a second and said, "What's up, dog?" He was not wearing glasses. He got into the sedan, and the two men took off quickly without turning on the vehicle's headlights.

A murder was reported by telephone at 9:44 p.m. Officer Gabriel Allen (Officer Allen) heard a radio dispatch that a woman had been found in a pool of blood at 3532 S. Joplin Avenue. This location was two blocks from the Mosses' residence and was accessible through the alley that connects S. Pearl and S. Joplin Avenues. Officer Allen arrived at the scene about 35 minutes later. Victim was found lying face down in a pool of blood in the front entryway of her house, two to three feet from the front door. Several teeth fragments were spread across the floor. Two spent .380 shell casings and three live RP .380 rounds were found on the front porch of Victim's house. A black cordless phone from Victim's house was found on the front walkway leading to the house.

On the day of the murder, Ward was in Seattle, Washington on vacation. He called McDaniel's grandmother, who told him that Victim had been murdered. After Ward returned from his trip, he met with McDaniel and Defendant to find out what had happened. McDaniel said that he had "handled" Victim, but he still wanted to get Mad Dog. Defendant said that he shot Victim until she was dead and then disposed of the murder weapon.

Wheeler, Valerie Moss, and Brad Moss each identified McDaniel as the driver of the sedan that sped away from S. Pearl Avenue on the night of the murder. These same witnesses each identified Defendant as the man they saw running down the alley between S. Pearl and S. Joplin Avenues.

During an interview by police, Defendant gave the following account of how Victim was killed: McDaniel was upset with Victim because she had flirted with another guy. Defendant took his girlfriend's car and drove McDaniel from Tulsa to Joplin so McDaniel could talk with Victim. They parked down the alley near Victim's house. McDaniel had a .380 handgun in his pocket. He walked down the alley to Victim's house and was gone five to ten minutes. McDaniel was sprinting back to the car when he saw some people. He slowed his pace to a jog and got back in the car. Once inside, he said Victim wouldn't listen to him, so he shot her. The gun was in McDaniel's lap. He told Defendant to say that he did not know anything about the murder.

The police concluded that Defendant had reversed the roles between himself and McDaniel, given that witnesses had placed McDaniel in the driver's seat of the car and identified Defendant as the man coming down the alley. Wheeler and the Mosses also recognized the white sedan that Defendant had admittedly driven from Tulsa to Joplin. Some live RP .380 rounds were found during a later search of McDaniel's car, which was a different vehicle than the one observed by witnesses at the scene.

An autopsy revealed that Victim had sustained one gunshot wound to the upper lip and a second gunshot wound to the occipital region at the back of her head. This second shot was fatal. The bullet from the first shot was lodged in soft tissue in the lateral portion of the neck. The bullet from the second shot passed from the occipital region through the midportion of the brain to the maxillary sinuses. Both bullets were recovered and turned over to police. Ballistic analysis revealed that Victim had been shot with a .380 caliber gun.

A jury found Defendant guilty of murder in the first degree. He had waived jury sentencing, and the trial court imposed a sentence of life imprisonment without the possibility of parole. This appeal followed.

II. Discussion and Decision

Points I and II

Because of the related nature of Defendant's first two points, we will address them together. Defendant contends that the trial court erred in denying his first motion to dismiss (Point I) and second motion to dismiss (Point II) because he was not tried within the 180-day statutory period set forth in Article III, Paragraph 1 of the IAD. See § 217.490. An appellate court conducts a de novo review of the trial court's application of the law in refusing to dismiss an indictment against a defendant pursuant to the IAD. State v. Lybarger, 165 S.W.3d 180, 184 (Mo.App. 2005). On the other hand, "[t]o the extent the application of law is based on the evidence presented, we view the facts in a light most favorable to the judgment, giving deference to the trial court's factual findings and credibility determinations." Id.; State v. Davis, 210 S.W.3d 229, 233 (Mo.App.2006).

The following additional facts are relevant to the disposition of Defendant's first two points. In December 2004, Defendant was an inmate in the Texas Department of Criminal Justice. As required by the IAD, Defendant sent a written request for disposition of the first-degree murder charge pending against him in Missouri to the Circuit Court of Newton County, Missouri, and to the Newton County Prosecuting Attorney. Defendant's request for disposition was received by the court and the prosecutor on December 20, 2004. The parties agree that June 20, 2005, was the last day to bring Defendant to trial within the time period allowed by the IAD.³

On May 26, 2005, a hearing was held in open court at which Defendant's case was set for a jury trial commencing on August 22, 2005. This hearing, which occurred approximately one month before the IAD time limit expired, was not recorded.⁴ On July 22, 2005, Defendant filed his first motion to dismiss the charge against him because he was not tried within the required 180 days.

On July 28, 2005, the court held a hearing on the motion to dismiss. At that hearing, defense counsel argued that the 180-day period under the IAD...