State v. Perkins

• Decision Date: 17 March 2020
• Docket Number: No. ED 107622,ED 107622
• Citation: 600 S.W.3d 838
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Xavier PERKINS, Defendant/Appellant.
• Court: Missouri Court of Appeals

600 S.W.3d 838

STATE of Missouri, Plaintiff/Respondent,

v.Xavier PERKINS, Defendant/Appellant.

No. ED 107622

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: March 17, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied April 30, 2020

Application for Transfer to Supreme Court Denied June 30, 2020

Daniel N. McPherson, P.O. Box 899, Jefferson City, MO 65102, For Plaintiff/Respondent.

Lisa M. Stroup, 1010 Market Street, Suite 1100, St. Louis, MO 63101, For Defendant/Appellant.

SHERRI B. SULLIVAN, J.

Introduction

Xavier Perkins (Appellant) appeals from the trial court's judgment entered upon a jury verdict convicting him of first-degree murder, attempted robbery, and two counts of armed criminal action. We affirm the judgment of the trial court.

Factual and Procedural Background

The evidence adduced at trial, viewed in the light most favorable to the verdict, is as follows.

Appellant was living in an apartment complex in O'Fallon, Missouri, in September 2016. Also living in the same apartment complex were Damonte Dixon (Dixon), Ronald Harris (Harris), and L.C.¹ Trevour Fritz (Fritz) was staying with Appellant. Fritz owned a pistol that he kept under his mattress in Appellant's apartment, a fact of which Appellant was aware. Fritz also owned a Chevrolet Cruze, which he often let Appellant and others borrow.

On the evening of September 12, 2016, Appellant, Dixon, Harris, and L.C. borrowed Fritz's car, left their apartment complex and drove to St. Louis. Along the way, the group picked up a fifth individual, J.S.² After picking up J.S., the group drove around St. Louis, looking for marijuana and, as Dixon testified, "just doing dumb – dumb stuff," such as trying to steal cars.

Dixon was driving the car when he and the others saw Monica Shaw (Victim) walking down the street. The group decided to rob Victim. Dixon stopped the car, and Appellant and J.S. got out and followed Victim down the street. L.C., who was still sitting in the car, heard Victim say, "God wouldn't want you to do this." He then heard a gunshot and turned in time to see Victim fall to the ground and Appellant standing near her body with the gun in his hand. L.C. watched J.S. run around the corner and then L.C. jumped out of the car and ran down the street. Dixon and Harris remained in the vehicle, and Dixon watched Appellant return to the car, still holding the gun.

J.S. returned to the car and Dixon drove him home before the group went to look for L.C. Dixon located L.C. at a nearby gas station. Dixon, L.C., Harris, and Appellant then drove around and smoked marijuana before returning to O'Fallon, Missouri. On the drive back, Appellant repeatedly asked L.C. if the two of them were "cool." L.C. asked Appellant where he had shot Victim, and Appellant told L.C., "I shot her in the chest." A couple of days after the shooting, Appellant told Dixon that he was the one who shot Victim, and if anyone in the group were to get caught, Appellant would say what happened and "free [them] up."

Police dispatch sent out a call over the radio advising of a gunshot victim. An off-duty police officer who was working security nearby responded, finding Victim unconscious and not breathing with a gunshot wound to her chest. Medics transported Victim from the scene by ambulance, but she did not survive. Victim's autopsy revealed her cause of death to be a thoracic-abdominal gunshot wound. The coroner testified the bullet entered Victim's chest and then her abdomen.

A few days later, L.C. became fearful after he saw a report of the murder on the news. L.C. told a high school classmate what he had witnessed. The classmate told the school's resource officer, who relayed the information to the homicide department investigating Victim's murder. This information led to the arrest of Appellant.

The jury found Appellant guilty of all counts as charged by the State of Missouri (State). Appellant was sentenced to concurrent sentences of life without the possibility of parole on Count I, first-degree murder; life on Count II, armed criminal action; ten years on Count III, attempted first-degree robbery; and ten years on Count IV, armed criminal action. This appeal follows.

Points Relied On

In his first point, Appellant claims the trial court erred in overruling his motion for judgment of acquittal and sentencing him on the first-degree murder conviction because there was insufficient evidence as a matter of law from which a reasonable juror could have found beyond a reasonable doubt the element of deliberation.

In his second and third points, Appellant claims the trial court abused its discretion in sentencing him on Count I to life imprisonment without the possibility of parole because such a sentence violated his rights to due process of law and to be free from cruel and unusual punishment.

In his fourth point, Appellant claims the trial court abused its discretion in overruling his motion for new trial because it violated his right to a fair and impartial jury, in that the court heard evidence that some jurors found Appellant guilty because he had "come into town to kill our people."

Discussion

Motion to Remand for Newly Discovered Evidence

We first address Appellant's motion for remand on the basis of newly discovered evidence. Appellant's motion claims that after his codefendant J.S. was convicted, J.S. confessed to two fellow inmates that he committed the murder and set up Appellant.

Appellant's motion is not within the time limits permitted for filing a motion for new trial pursuant to Rule 29.11(b) because it was filed more than 25 days after the jury returned its verdict. "Missouri statutes and rules do not provide a specific means for a criminal defendant to present claims of newly discovered evidence after the time to file a motion for new trial has expired." State v. Cook, 307 S.W.3d 189, 191 (Mo. App. E.D. 2010), citing State v. Gray, 24 S.W.3d 204, 208 (Mo. App. W.D. 2000).

"However, an appellate court has the inherent power to prevent miscarriage of justice or manifest injustice by remanding a case to the trial court for consideration of newly discovered evidence presented for the first time on appeal." Benton v. State, 128 S.W.3d 901, 904 (Mo. App. W.D. 2004), citing State v. Mooney, 670 S.W.2d 510, 515–16 (Mo. App. E.D. 1984). "Generally, this Court will not remand a case before an appeal is concluded if the lone fact of newly discovered evidence is not enough to grant a new trial." State v. Terry, 304 S.W.3d 105, 109 (Mo. banc 2010).

"In order to obtain a new trial on the basis of newly discovered evidence, a defendant must show: (1) the newly discovered evidence came to his knowledge after the trial; (2) the defendant's lack of knowledge was not due to lack of diligence on his part; (3) the newly discovered evidence is so material it is likely to produce a different result at a new trial; and (4) the evidence is not merely cumulative or used to impeach a witness's credibility." State v. Gray, 591 S.W.3d 65, 73 (Mo. App. E.D. 2019), citing State v. Shelton, 529 S.W.3d 853, 867–68 (Mo. App. E.D. 2017). "Such claims succeed very rarely. " State v. Manley, 414 S.W.3d 561, 566 (Mo. App. E.D. 2013), quoting State v. Hannon, 398 S.W.3d 108, 113 (Mo. App. E.D. 2013) (quotation omitted) (emphasis in original).

Appellant seeks to introduce testimony of two fellow inmates of codefendant J.S. Appellant's motion includes the inmates’ respective sworn affidavits stating J.S. told the inmate that J.S., and not Appellant, killed Victim.

Assuming, arguendo , Appellant is able to meet the first, second, and fourth elements, Appellant has failed to show that the newly discovered evidence is so material it would produce a different result at trial. "Evidence is considered to likely produce a different result at a new trial if it is credible and reasonably sufficient to raise a substantial doubt in the mind of a reasonable person as to the result of a new trial." State v. Stewart, 313 S.W.3d 661, 666 (Mo. banc 2010), citing State v. Jennings, 326 Mo. 1085, 34 S.W.2d 50, 54–55 (Mo. 1930).

"Testimony from a co-defendant who, after trial, is willing to exonerate the defendant has an inherent lack of credibility." State v. Magee, 911 S.W.2d 307, 312 (Mo. App. W.D. 1995), citing State v. Hamilton, 732 S.W.2d 553, 556 n. 3 (Mo. App. E.D. 1987). This is because "[a]t the time that the co-defendant signifies his willingness to testify, he has been convicted and thus cannot be harmed by testifying untruthfully about the alleged innocence of the defendant seeking a new trial." Id. at 312-13.

Here, Appellant argues that the testimony he seeks to introduce does not have the same inherent lack of credibility because the testimony is not that of his codefendant, J.S., but rather from the two inmates to whom J.S. allegedly confessed.

"[F]or a hearsay statement of another confessing to the offense which may exonerate the accused to be admitted into evidence at trial, ‘[t]hree circumstances of reliability have been recognized: 1) each confession is in a very real sense self-incriminatory and unquestionably against interest; 2) each statement was spontaneously made to a close acquaintance shortly after the murder occurred; and 3) the statements are corroborated by other evidence in the case.’ " State v. Lucas, 559 S.W.3d 434, 443 (Mo. App. W.D. 2018), quoting State v. Taylor, 298 S.W.3d 482, 493 (Mo. banc 2009) (internal citations omitted). All three indicia of reliability must be met for the evidence to be admitted.

State v. Anglin, 45 S.W.3d 470, 473 (Mo. App. W.D. 2001).

In the instant case, the confession allegedly made by J.S. to his fellow inmates fails to pass the test for reliability. First, it is questionable whether J.S.’s statements were against his interest. J.S. had already pleaded guilty and received a sentence for his role in Victim's murder, so he would not be harmed by being untruthful about his role. Second, neither of the statements was spontaneously made to a close...