State v. Pherigo

• Decision Date: 07 December 2012
• Docket Number: No. SD 31477.,SD 31477.
• Parties: STATE of Missouri, Plaintiff–Respondent, v. Daniel Lee PHERIGO, Defendant–Appellant.
• Court: Missouri Court of Appeals

389 S.W.3d 693

STATE of Missouri, Plaintiff–Respondent,
v.
Daniel Lee PHERIGO, Defendant–Appellant.

No. SD 31477.

Missouri Court of Appeals,
Southern District,
Division One.

Dec. 7, 2012.

[389 S.W.3d 694]

Emmett D. Queener, Columbia, MO, for Appellant.

[389 S.W.3d 695]

Chris Koster, Attorney General, and Emmett D. Queener, Assistant Attorney General, Jefferson City, MO, for Respondent.

GARY W. LYNCH, P.J.

Daniel Lee Pherigo (“Defendant”) was found guilty by a jury of second-degree burglary, in violation of section 569.170, RSMo 2000, first-degree tampering with a motor vehicle, in violation of section 569.080, RSMo Cum.Supp.2005, and stealing a credit card, in violation of section 570.030, RSMo Cum.Supp.2009. The trial court sentenced Defendant to serve consecutive terms of fifteen years, ten years, and ten years in prison, respectively. Defendant appeals, arguing that (1) the trial court abused its discretion in overruling his motion for new trial based on the State's late disclosure of three recorded statements, and (2) there was insufficient evidence to support his stealing conviction because the State failed to prove that the credit card he stole accessed an active account. We disagree and affirm the trial court's judgment.

Factual and Procedural Background

Viewed in the light most favorable to the verdict, State v. Bescher, 247 S.W.3d 135, 137 (Mo.App.2008), the following facts were adduced at trial.

Rex and Carol Malson lived at 189 Sherwood Drive in Branson. They went on vacation during September 2010.

On September 29, 2010, Deputy Donald Piveral of the Taney County Sheriff's Department received a report of a burglary at the Malsons' home. When he arrived at the scene, the front door and garage door of the residence were open. Items in the home were strewn about. Deputy Piveral photographed the scene, secured the residence, and left. Later, he determined that a silver Mercedes had been taken from the home.

The next day as he was on his way to another investigation, Deputy Carl Pride, also of the Taney County Sheriff's Department, noticed a silver Mercedes that matched the description of the one missing from the Malsons' home. The trunk was open, and two people were standing outside the car. He notified Detective Roger Ellis, who responded to the location. As he arrived, Detective Ellis saw Defendant transfer two backpacks from the silver Mercedes to a red BMW parked nearby. Detective Ellis approached Defendant and asked if Defendant had any identification. Defendant asked what the problem was. Detective Ellis told Defendant that the vehicle had been reported stolen. Defendant reached into a blue backpack, and Detective Ellis “told him he better come out with his ID and nothing else.” Defendant “put his hands in the air and said ‘it's not worth it.’ ” Detective Ellis handcuffed Defendant and sat him on the ground. Defendant's companion, who was still sitting in the driver's seat of the Mercedes, identified herself as Teresa Buckner. Defendant told officers that Buckner had borrowed the car from a man named Matt and that she had told Defendant to take the bags from the Mercedes and put them in the BMW.

Detective Ellis seized the backpacks. There were no identification documents for Defendant in the backpacks. One of the backpacks did contain a pair of gloves, a loaded pistol, and an American Express credit card with Carol Malson's name on it. The officers took the Mercedes back to the sheriff's department to inventory it. They found personal papers belonging to the Malsons in plain view in the backseat of the car.

At trial, the Malsons testified that they had not given Defendant permission to

[389 S.W.3d 696]

have possession of their car. Carol Malson also said she did not give Defendant permission to possess her credit card. The jury found Defendant guilty of burglary, tampering, and theft of a credit card. This appeal followed.

Discussion Defendant failed to introduce evidence to support the Brady claim in his motion for new trial and suffered no prejudice in any event.

In his first point, Defendant claims the trial court abused its discretion in denying his motion for new trial based on the State's failure to timely disclose recorded statements to the police made by Teresa Buckner, Andrew Larned, and Andrew Burton. He relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the purported factual support for this argument comes from statements his attorney made during the hearing on the motion for new trial.¹

On the first morning of trial, before voir dire began, the prosecutor, when asked about other pretrial matters, told the judge that on the Friday before trial at about five minutes until five o'clock, he received a “few disks that contained interviews of codefendants and two of the defendant[.]” He explained that there were references in the police reports to the recorded interviews and that he had left a voice mail for defense counsel about the matter. The prosecutor provided copies of Defendant's recorded statements to the defense that morning and offered to provide copies of the recordings of the co-defendants' statements. He emphasized that “it was not the intention of the State to withhold those.” The judge asked for comment from the defense, and defense counsel responded that he had no reason to dispute the State's characterization of the situation but said, “I have what he gave me and don't have what he hasn't given me[.]” The parties moved on to other matters and returned to the disclosure issue after voir dire was complete. Defendant's attorney objected to any use of Defendant's recorded statements to the police. The prosecutor said that he was not planning to use any of the recordings of the statements made by Defendant in the State's case-in-chief because of the untimely disclosure. Defense counsel responded:

Well, judge, I'd just—I mean I'd be satisfied with the exclusion of ... interviews by any law enforcement officer of my client ... [that] ... hadn't been disclosed. Uh, I know there was one at the scene of the arrest. I know to that.

In terms of the ones that I got videos of this morning and this supplemental report that I got at ... 2:15 p.m. on day one of the trial.... I think those ... should be something that the State be prohibited from going into.

The prosecutor responded that he misunderstood the nature of defense counsel's objection. The judge responded that it “[s]ounds like we got that all resolved[,]” and the trial began.

During trial, the defense theory of the case was that someone else committed the crime. In opening statement, defense counsel told the jury that the evidence would show that the burglary was committed by Larned. Counsel also told the jury about two traffic tickets Larned received for speeding in the Mercedes two days before Defendant's arrest and the fact that Defendant was not seen driving the Mercedes.

[389 S.W.3d 697]

He also mentioned Buckner's involvement. During the State's case-in-chief, defense counsel cross-examined the arresting officers regarding whether they saw Defendant driving or sitting in the Mercedes. During the cross-examination of Detective Ellis, defense counsel introduced evidence that Larned had sold some of the items that had been taken from the Malsons' home. After the State rested, defense counsel introduced two traffic tickets showing that the Mercedes had been driven by Larned two days before Defendant was seen with the car. Defense counsel's closing argument emphasized these facts and suggested to the jury that Larned was the true culprit.

In Defendant's motion for new trial, his tenth claim involved the State's failure to disclose the co-defendants' recorded statements. That claim read, in full:

On October 29, 2010, the Defendant had filed with the Court and served upon the State his Request For Discovery. The State violated its discovery obligations to the Defendant by failing to timely disclose materials relevant to the defense and covered by the Request For Discovery until April 5, 2011, after verdict. On said date the State disclosed three DVDs. One contained a law enforcement interview of co-Defendant Teresa Buckner, concerning the charged offenses on December 14, 2010. The second contained a law enforcement interview of co-Defendant Andrew Larned, concerning the charged offenses on December 9, 2010. The third contained a law enforcement interview of Andrew Burton, a potential witness and jail house informant, concerning the charged offenses on November 21, 2010. The failure to disclose violated the State's obligations under Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963) and Kyles v. Whitely [ Whitley ], 514 U.S. 419 [115 S.Ct. 1555, 131 L.Ed.2d 490] (1995) in that the material tends to negate the guilt of the defendant, or mitigate the degree of the offense charged, or reduce punishment. This was a violation of defendant's rights to due process, a violation of the defendant's right to confront and to cross-examine the witnesses against him, a violation of the defendant's right to effective assistance of counsel, and a fair trial as protected by Article I, Sections 10 and 18(a) of the Missouri Constitution and the 5th, 6th and 14th Amendments to the United States Constitution.

At the hearing on the motion for new trial, defense counsel stated that he had not received copies of the videos until after the trial. Then he stated, “I assume there's not necessarily a factual issue requiring an evidentiary hearing. Um, the State disagrees about kind of what I—what I feel are contained on there and perhaps we need to have an evidentiary hearing.” He went on to describe each of the videos. As related to the trial court by defense counsel, Larned said he had made four trips to the Malson home with two other individuals but that Defendant and Buckner were not with him during any of those trips. Defense counsel then explained that Buckner told police she received the Mercedes from...