State v. Patrick
| Decision Date | 08 January 2019 |
| Docket Number | WD 80777 |
| Citation | 566 S.W.3d 245 |
| Parties | STATE of Missouri, Respondent, v. Derrick R. PATRICK, Appellant. |
| Court | Missouri Court of Appeals |
Christine K Lesicko, Jefferson City, MO, Counsel for Respondent.
Katharine P Curry, Columbia, MO, Counsel for Appellant.
Before Division Four: Mark D. Pfeiffer, Presiding Judge, Karen King Mitchell, Chief Judge, and Anthony Rex Gabbert, Judge
Derrick R. Patrick appeals from a judgment convicting him of domestic assault in the third degree pursuant to Section 565.074, RSMo. Cum. Supp. 2012. He asserts two points on appeal. First, he contends the circuit court abused its discretion in admitting and considering, over Patrick’s objection, a 911 recording because it had no probative value and was not properly authenticated. Second, he contends that the circuit court abused its discretion in admitting and considering, over Patrick’s objection, the portion of the body camera footage wherein Patrick made a statement to police regarding threats he made with a knife because it had no probative value, was not made in reference to the offense charged, and was highly prejudicial. We reverse.
Factual and Procedural Background
On November 7, 2016, the State charged Patrick with the class A misdemeanor of domestic assault in the third degree pursuant to Section 565.074, RSMo. Cum. Supp. 2012. As relevant to the State’s charge, Section 565.074 provides that "a person commits the crime of domestic assault in the third degree if the act involves a family or household member" and "the person purposely places such family or household member in apprehension of immediate physical injury by any means." Patrick was tried by the court on March 16, 2017. The following evidence was offered at the bench trial:
On November 7, 2016, Elizabeth Taylor1 was working as a 911 operator and received a call around 7:30 a.m. The call was tape recorded and lasted fourteen minutes. At trial, the State offered the 911 tape into evidence. Patrick’s counsel objected on hearsay, confrontation, and foundational/authentication grounds. The court allowed the 911 tape to be admitted but indicated that "there may be a limit on how far we get into the conversation based on [Patrick’s] argument." Patrick’s counsel indicated that there would potentially be other objections to the tape and stated, "I'm hoping – I'm hoping they redacted it out, but we shall see."
At the beginning of the call, the caller asked for police assistance and provided her address. She reported that the previous evening her son pulled a knife on her grandson and her son Patrick’s counsel objected stating, Patrick’s counsel argued the statement was highly prejudicial and being used as propensity evidence. The State argued that it was an excited utterance and that it went to the credibility of the later threat that occurred during the 911 call. The court sustained Patrick’s objection.
Five additional objections were made by Patrick on what appears to be the same grounds as the State continued to play six minutes and forty seconds of the tape. The tape was stopped and started with each objection. The court sustained each of Patrick’s objections. After Patrick’s sixth objection, the State asked to skip to the portion of the tape the State wanted heard.
The transcription provided to this court on appeal provides no notations as to the content of the portions of the tape wherein objections were sustained. After trial, the State provided the court with notice that the State had admitted into evidence the 911 call starting from the inception of the call to six minutes and forty seconds into the call. However, the portions of the tape wherein objections were sustained were not noted and were not redacted in the tape provided to this court. We glean from the record that Patrick’s objections regarded references to Patrick’s alleged conduct the prior evening wherein Patrick was alleged to have threatened H.P.’s grandson with a knife. As Patrick was not charged regarding that alleged act and it is clear from the record that the court sustained Patrick’s initial objection to that evidence, we presume the court excluded related information when sustaining Patrick’s objections. Some of this information is referenced below in explaining the factual context of the 911 call and the police body camera evidence.
H.P. identified herself within the call as Patrick’s mother and asked for police assistance due to Patrick’s behavior. She stated that Patrick would get drunk and cause disturbances within the home. The 911 operator asked H.P. if the disturbance was physical or verbal. H.P. stated that it was verbal. When asked how many people were involved H.P. replied, "It’s just my grandson." H.P. then told the operator that Patrick was calling someone else on his cell phone and that, H.P. stated that the knife involved, H.P.’s kitchen butcher knife, was laying on a dresser. H.P. calmly relayed that, while H.P. was on the phone with the operator, Patrick brought the knife to the kitchen and placed it in dishwater. H.P. asked the operator if she should take the knife out of the dishwater; the operator told her not to touch it.
H.P. provided Patrick’s name, race, birthdate, and a description of the clothing he was wearing. The operator asked H.P. if she or anyone else was in immediate danger. H.P. replied,
Approximately five minutes and fifteen seconds into the call H.P. shouts, A male voice can be heard in the background. H.P. firmly says to the operator, "Come and get him, please!" H.P. can then be heard talking with other people, telling them that Patrick had just threatened to kill her. She asks someone to call "Deanie" and tell him that Patrick just threatened to kill her. H.P. states with an angry tone, "Fu* * this sh* *." A male voice can be heard saying, "ain't gonna kill nobody." A male voice can be heard yelling, "I'm leaving!"2 A male voice says something about the "police." H.P. asks the 911 operator in a calm voice, "Do you hear him?" The 911 operator states that she does and asks H.P. to separate herself from Patrick and avoid further contact if it is safe to do so. H.P. states calmly, She then says, H.P. then explains that Patrick had called "Deanie," H.P.’s brother, whom she stated was a good brother who transported both Patrick and H.P. back and forth from work. When the portion of the 911 tape entered into evidence by the State ended, H.P. had still not left the home and remained inside the home with Patrick.
The State introduced the testimony of Robert Smith, police officer with the Columbia Police Department. He testified that he responded to a domestic disturbance call the morning of November 7, 2016. He stated that he made contact with Patrick and H.P. upon arriving at their residence. Smith stated that when he spoke with H.P. she was upset and crying. Smith testified that he was wearing a body camera the day he was called to the home. The State offered the body camera footage into evidence. Defense counsel objected on the grounds that the video was "full of inadmissible testimony" that should have been redacted with the portion of video the State intended to present and disclosed to defense counsel. The State indicated that "we really just want to play an admission of the defendant during the course of this at around six minutes and thirty seconds." The State indicated that the statement involved Patrick saying, "The reason I threatened you all with a knife is because...." Defense counsel objected on the grounds that any information regarding a knife involved alleged misconduct with H.P.’s grandson the previous evening, and the charge before the court involved a threat made during the 911 call. Defense counsel argued that any "admission" by Patrick would have to be relevant to the offense charged – a threat made specifically to H.P. The court ruled:
The portion of the body camera video admitted by the court shows Patrick stating to bystanders: After the statement was played to the court, defense counsel again argued it referenced irrelevant and inadmissible alleged conduct from the prior evening. The State countered that it was relevant because H.P. stated on the 911 call that her son was threatening to kill her , and when the police showed up Patrick stated, "The reason I was threatening to kill you all...." The State argued that this was an admission by Patrick to the offense charged. Although the court questioned whether the threat referenced a knife rather than killing, the court ruled:
After the footage was shown, the State asked...
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