State v. Perry

• Decision Date: 27 January 2009
• Docket Number: No. SC 89240.,SC 89240.
• Citation: 275 S.W.3d 237
• Parties: STATE of Missouri, Respondent, v. Mike PERRY, Appellant.
• Court: Missouri Supreme Court

275 S.W.3d 237

STATE of Missouri, Respondent, v. Mike PERRY, Appellant.

No. SC 89240.

Supreme Court of Missouri, En Banc.

January 27, 2009.

Gwenda R. Robinson, Office of the Public Defender, St. Louis, for Appellant.

Christopher A. Koster, Atty. Gen., Richard Starnes, Shaun Mackelprang, Asst. Attys. Gen., Jefferson City, for Respondent.

LAURA DENVIR STITH, Chief Justice.

A jury found Mike Perry guilty of first-degree child molestation. On appeal he asserts that section 491.075, RSMo 2000,¹ is unconstitutional on its face and as applied to him. He alleges it improperly makes admission of out-of-court statements by a child witness depend on whether the statements demonstrate sufficient indicia of reliability rather than on whether they satisfy the Confrontation Clause as interpreted by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

This Court disagrees. A statute is unconstitutional on its face where it cannot be applied constitutionally applied in any circumstance. That is not the case here, for Crawford clearly permits introduction of non-testimonial statements as well as of testimonial statements if the declarant testifies at trial or, if unavailable, the defendant had a prior opportunity to cross-examine the declarant. That is also what section 491.075 permits.

Moreover, section 491.075 is not unconstitutional as applied to Mr. Perry, for his accuser testified and was subject to cross-examination at trial. Crawford explicitly states that in such cases the Confrontation Clause is no bar to admission. Likewise, the Confrontation Clause does not prohibit states from imposing additional prerequisites to admission of statements, such as requiring that they fall within hearsay exceptions or show other indicia of reliability of the kind required by section 491.075. Under the circumstances of this case, the Confrontation Clause simply is not implicated.²

This Court also rejects Mr. Perry's argument that the evidence was not sufficient to support the verdict and that the trial court plainly erred in failing, sua sponte, to strike the prosecutor's closing argument referring to Mr. Perry as a "child molester" and a "sexual predator" who was "grooming" the victim for a more serious crime. The judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

In October 2005, Mike Perry was living in the apartment of a long-time friend, K.R. ("Stepfather") who shared the apartment with his fiance ("Mother") and her children, including six-year-old N.M. ("Victim"). One night, several months after Mr. Perry had moved into the couples' apartment, Mother heard Victim in the living room up past her bedtime. She walked into the living room and saw Victim stretched out on the floor watching television. Mother found this unusual, as Victim normally was in bed by this time. She called Victim over to talk, but Stepfather told Mother that he wanted to talk to Victim alone.

Mother testified at trial that she listened at the closed door and that when she heard Stepfather and Victim saying "something about touching," she rushed in and asked what was going on. Victim said Mr. Perry "had touched her vagina with his foot." Stepfather testified at trial that Mr. Perry had approached him before the conversation occurred with Victim and complained that Victim "was touching him and rubbing him on his arm and on his leg like she shouldn't be doing and it made him feel uncomfortable." Because of uncertainty this created as to exactly what had happened, Mother and Stepfather did not require Mr. Perry to leave immediately. Two weeks later, however, Mother insisted that Mr. Perry leave. Mother testified she asked him to leave because she did not feel that Mr. Perry had respect for her home or that he cared about his relationship with Stepfather.

Mr. Perry voluntarily left without taking his belongings. When Mr. Perry returned the next day to get his things, and learned that, in the interim, Mother had put them in the garbage, he and Mother got into an argument. Eventually, Mother called the police and told them that there was a man in her apartment who had molested her daughter and that they needed to come and get him. Mother and Victim spoke with the police, who then read Mr. Perry his rights and interrogated him. Mr. Perry admitted that the touching had occurred but said he simply fell asleep on the couch and awoke to find Victim moving up and down on his foot. He said he sternly told Victim he would inform Stepfather about what she was doing and that he did so. Mr. Perry refused to put this statement in writing.

Victim was taken to Children's Hospital for an examination, and a month later forensic interviewer Luzette Woods conducted a videotape interview of her at the Child Advocacy Center. Initially, Victim was reluctant to speak about the incident, but later disclosed that while sitting on the couch one morning, Mr. Perry placed his socked foot under her nightgown and rubbed his foot, in a circular motion, on her vagina.

Mr. Perry was charged with first-degree child molestation. At the trial, the state introduced the videotape interview of Victim into evidence pursuant to section 491.075. Mr. Perry objected to the admission of the videotape, claiming it violated his right to confront the witness against him, even though Victim was present, testified, and was subject to cross-examination at trial. During that live trial testimony, Victim talked about the events leading up to and surrounding the charges, saying that Mr. Perry put his foot under her nightgown. She then said that what he did made her feel uncomfortable and later, she said, it made her feel horrible, but she said she did not "want to say" exactly what he did with his foot. She also stated that on another day he had "rubbed his butt" through his clothes on her stomach and it made her feel horrible.

During closing arguments, the prosecutor made reference to the videotape, compared Mr. Perry to a "sexual predator," and referred to him as a "child molester" who was "grooming" Victim for a more serious crime. Mr. Perry's defense counsel did not object to the closing argument. The jury found Mr. Perry guilty of first-degree child molestation. The trial court sentenced him to seven years imprisonment. He appealed to the Court of Appeals, Eastern District, which transferred the case to this Court, prior to opinion, in light of Mr. Perry's claim that introduction of Victim's videotape under section 491.075 violated his confrontation rights under the Sixth Amendment as explained in Crawford.

II. STANDARD OF REVIEW

Construction of a statute is a question of law, which this Court reviews de novo. A "statute is presumed to be valid and will not be declared unconstitutional unless it clearly contravenes some constitutional provision." Doe v. Roman Catholic Diocese of Jefferson City, 862 S.W.2d 338, 340 (Mo. banc 1993). When a defendant challenges the sufficiency of evidence to support a conviction, the test is whether a reasonable juror might have found defendant guilty beyond a reasonable doubt. State v. Smith, 944 S.W.2d 901, 916 (Mo. banc 1997). The reviewing court takes the evidence in the light most favorable to the verdict. State v. Fears, 803 S.W.2d 605, 607 (Mo. banc 1991). Where, as here, some of the issues on appeal were not preserved below, those issues are reviewed for plain error, which requires a finding that manifest injustice or a miscarriage of justice has resulted. State v. Glass, 136 S.W.3d 496, 507 (Mo. banc 2004).

III. THE CONFRONTATION CLAUSE IS NOT IMPLICATED WHERE THE WITNESS WHOSE PRIOR STATEMENTS ARE ADMITTED IS AVAILABLE FOR CROSS-EXAMINATION

Mr. Perry challenges the constitutionality of section 491.075. He argues it permits introduction of statements of a child witness made prior to trial if the trial court finds those statements are reliable and certain other requirements are met; therefore, section 491.075 violates the Confrontation Clause as set out in the Sixth Amendment to the United States Constitution and as interpreted in Crawford, 541 U.S. 36, 124 S.Ct. 1354, even if, as here, the witness testifies at trial and is subject to cross-examination.

The Sixth Amendment states that in "all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." See also Mo. Const. art. I, sec. 18(a) ("in criminal prosecutions the accused shall have the right to ... meet the witnesses against him face to face.") As this Court noted in State v. Justus, 205 S.W.3d 872, 878 (Mo. banc 2006), Crawford and its successors "established a new framework for addressing a criminal defendant's confrontation rights under the Sixth Amendment." Where a witness is absent from trial, prior testimonial statements are admissible "only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine." Crawford, 541 U.S. at 59, 124 S.Ct. 1354.³ But, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." Id. at 59 n. 9, 124 S.Ct. 1354. The Crawford standard reflects the Confrontation Clause's ultimate goal of ensuring reliability of evidence: by testing it in the crucible of cross-examination. Id. at 61, 124 S.Ct. 1354.

Mr. Perry argues that section 491.075 is unconstitutional both facially and as applied to him. It is against the standard set out in Crawford and its progeny that these arguments are to be assessed. Section 491.075 provides in relevant part:

1. A statement made by a child under the age of twelve relating to an offense under chapter 565, 566 or 568, RSMo, performed with or on a child by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of this state as substantive evidence to prove the truth of the matter asserted if:

(1) The...