State v. Primers

• Decision Date: 28 July 1998
• Docket Number: No. WD,WD
• Citation: 971 S.W.2d 922
• Parties: STATE of Missouri, Respondent, v. Anthony K. PRIMERS, Appellant. 54038.
• Court: Missouri Court of Appeals

Page 922

971 S.W.2d 922

STATE of Missouri, Respondent, v. Anthony K. PRIMERS, Appellant.

No. WD 54038.

Missouri Court of Appeals,

Western District.

July 28, 1998.

Emmett D. Queener, Asst. Public Defender, Columbia, for Appellant.

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

HANNA, Presiding Judge.

On December 17, 1996, the defendant, Anthony Primers, was found guilty of first degree robbery, § 569.020, RSMo 1994, by a jury in the circuit court of Jackson County. He was acquitted of armed criminal action, § 571.015, RSMo 1994. He was sentenced to ten years imprisonment. The defendant appeals, claiming that the trial court did not maintain neutrality by putting itself in the position of the state's advocate.

The robbery victim, Karl Knief, arrived home from work on May 14, 1996, at 12:30 A.M., after finishing his shift at midnight. He parked behind his apartment at 4202 Harrison Street. He was retrieving a radio from the passenger side of his car when he heard footsteps running behind him. Mr. Knief turned, and saw a man run up to him and stop. The man said "give me your wallet." As Knief reached into his back pocket, the man cocked a large automatic handgun with his left hand, raised and pointed it at Knief. Knief held out his wallet, the man took it, and told him "if I see any police I'm going to kill you." He then turned and ran from the parking lot.

Knief locked himself into his apartment. After speaking with a friend on the phone, he called "911" at 12:45 A.M. During "a kind of long conversation" with the dispatcher, he described what happened and requested that the police respond. Shortly after he hung up the phone, Knief heard a police helicopter overhead. The helicopter received the call at 12:55 A.M., and arrived at the scene of the crime within a minute or two, which put the helicopter at the scene approximately 15 to 25 minutes after the robbery occurred. The helicopter began to fly in a grid pattern up and down the streets looking for someone matching the description of Knief's assailant. Officer McCrea, an observer in the police helicopter, was told that the suspect was a black male, wearing a green top and black pants, armed with an "assault-type weapon," and running east from the scene. McCrea saw an individual, later identified as the defendant, walking north in the 42nd block of Troost. McCrea described the man as wearing a green top and dark pants. McCrea did not see a weapon. He waited until police cars got to the area, and then shined the helicopter's spotlight on the defendant.

The defendant crossed the street and walked through the parking lot of Church's Chicken restaurant. At this point, according to McCrea, the defendant began walking faster. He crossed another street, and then walked under some trees next to an apartment building. McCrea lost sight of the defendant when the defendant went under the trees.

Two ground unit officers arrived and began searching the area. One of the officers found the defendant on the west side of the apartment building, hiding in a doorway. The defendant was searched, taken into custody and placed in a paddy wagon. The officers then canvassed the area and the path that the defendant took from the time the helicopter first spotted him, to the point of his arrest. No weapon, wallet, or cash in the denominations that were stolen, were found on the defendant, nor were they found on or near the path he travelled.

An officer went to Knief's apartment, and told him that they had a suspect in custody. The officer transported Knief in a police car to the paddy wagon where the defendant was standing in handcuffs. The officer shined his car's headlights on the defendant. Knief identified the defendant as the man who robbed him. The defendant was then placed in the paddy wagon. Knief wanted a closer look. He looked through the back window of the paddy wagon. A spotlight was shined on the defendant's face and Knief stated "yes, without a doubt" that it was his assailant. Knief said that it was "the same eyes, the same mouth, the same jaw, the same shirt, the same pants."

While Knief was there, an officer showed him a coat found in a dumpster near the scene, and asked if it was the coat that the defendant was wearing. At some point, Knief had told the police that the robber had pulled an assault-type weapon from under his coat. He told the police, apparently incorrectly, that the coat that the police had retrieved from the dumpster looked like the one that the robber was wearing. At trial, he explained that he mistakenly told the officer that the gun was pulled out from under a coat because "[t]here was a coat presented to me, and I didn't remember the coat being there." He further testified that he told the officer that the assailant had a coat on because "I thought he might have a coat on when it was mentioned to me that he was wearing one." He testified that he later realized that his assailant was not wearing a coat.

At trial, Sue Sharp (the mother of the defendant's brother's girlfriend) testified that the defendant was at her house on the night of the incident, helping his brother move in. She testified that he was there from the time she got home from work at 11:10 P.M., until she went to bed at 12:30 A.M. She testified that the defendant was wearing a black sweatshirt and dark blue jeans. This information was confirmed by a photograph taken of the defendant at the juvenile detention facility the night he was arrested.

Furthermore, Ms. Sharp testified that, after she went to bed, she heard the defendant's voice at 12:45 A.M. She indicated that she was aware of the time because her daughter, the defendant and his brother were being so noisy that she looked at the clock and yelled at them to be quiet. The state did not object to this testimony. However, on its own motion, the trial court called the parties to the bench and informed them that Ms. Sharp's testimony supported an alibi defense, which he understood was not going to be offered. After arguments, and prompting from the court, the state objected to the testimony. Accordingly, the court struck Ms. Sharp's testimony which placed the defendant at her house after 12:30 A.M.

The defendant testified that on the day of the incident he showered around noon, and changed into a black sweater and blue jeans. He testified that he did not own a green sweater. Later that evening, he left the Sharps' apartment with his brother and his brother's girlfriend. He left them and then walked alone to the apartment of another friend and stayed for about five minutes. He left his friend's apartment and was walking along Troost when he heard the police helicopter, which eventually shined its spotlight on him.

The defendant had been spotted by a police helicopter in the past, but never stopped. He testified that, therefore, he believed that the helicopter would eventually turn off its spotlight. The defendant was sixteen at the time of this incident and, when the spotlight stayed on him, he began to worry about being in violation of curfew law. He also possessed a cigar containing marijuana. His mother had told him that if he was caught on another curfew violation, she was going to leave him in the juvenile detention facility. He decided to cut between the buildings. He threw the marijuana away. The officers found him hiding in a doorway of the apartment building between the door and screen. He asked why he was being stopped, and the officers explained that he was a suspect in a robbery. The officers repeatedly asked him where the gun was, and he told them that he did not have a gun and he did not rob anyone. He saw a police officer pull a coat out of a nearby dumpster.

In addition, there was other testimony presented unrelated to the crime charged, concerning the defendant's juvenile record, including his previous involvement with a gun and a charge of hindering and interfering with a police officer, which will be detailed in the opinion as discussed infra.

After the presentation of evidence, the jury found the defendant guilty of first degree robbery, and recommended a ten-year sentence. The jury acquitted him of armed criminal action. The court sentenced the defendant to ten years imprisonment.

The defendant's sole point on appeal is the assertion that the trial court plainly erred in abandoning its duty of neutrality by injecting itself into the presentation of the defendant's evidence. The state had not objected to the alibi evidence when the trial court intervened and stopped the testimony of the defendant's witness. The defendant claims that the court's unilateral action in excluding evidence of the defendant's alibi defense, without any objection from the state's attorney, resulted in manifest injustice. Although we agree that it was inappropriate for the trial court to have injected itself under these circumstances, we find that the judge's conduct did not prejudice the minds of the jury, and thereby did not deny the defendant a fair trial. ¹

The defendant requests plain error review pursuant to Rule 30.20. Rule 30.20 provides that "plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." Id. It is within an appellate court's discretion to grant plain error review. State v. Frankenberg, 876 S.W.2d 286, 288 (Mo.App.1994). We review for plain error in light of the charge of improper conduct by the trial judge.

At trial, Ms. Sharp testified that she had heard the voice of the defendant on the night of the incident, at about 12:45 A.M. ² The trial court interrupted the proceedings and asked counsel to approach the bench. The trial court stated he understood that the defendant was not offering an alibi defense and that Ms. Sharp's testimony appeared to set up an alibi defense. The court excused the jury from the...