State v. Prine

• Decision Date: 13 January 2015
• Docket Number: No. SD 32940,SD 32940
• Citation: 456 S.W.3d 876
• Parties: State of Missouri, Respondent, v. Terrell Eugene Prine, Appellant.
• Court: Missouri Court of Appeals

456 S.W.3d 876

State of Missouri, Respondent

v.Terrell Eugene Prine, Appellant.

No. SD 32940

Missouri Court of Appeals, Southern District, Division One .

Filed: January 13, 2015

Motion for Rehearing and/or Transfer to Supreme Court Denied February 3, 2015

Application for Transfer Denied March 31, 2015

Appellant's Attorney: Samuel E. Buffaloe, of Columbia, MO.

Respondent's Attorney: Chris Koster, Attorney General and Andrew C. Hooper, Assistant Attorney General, of Jefferson City, Missouri

Opinion

WILLIAM W. FRANCIS, JR., C.J./P.J.—OPINION AUTHOR

Terrell Eugene Prine (“Prine”),¹ appeals his conviction of the class A felony of first-degree robbery, pursuant to section 569.020; and the unclassified felony of armed criminal action, pursuant to section 571.015.² We affirm the judgment of the trial court.

Facts and Procedural Background

Prine does not challenge the sufficiency of the evidence to support his conviction. This Court views the evidence in the light most favorable to the verdict. State v. Perry, 275 S.W.3d 237, 242 (Mo. banc 2009). We accept as true all facts and inferences favorable to the verdict, and we disregard evidence and inferences to the contrary. State v. Oliver, 293 S.W.3d 437, 444 (Mo. banc 2009). In light of these principles, the following evidence was adduced at trial.

On the evening of January 14, 2012, Prine, intoxicated, had his girlfriend drive him to the home of Bradley Clark (“Clark”) to collect fifteen dollars that Clark owed Prine. When Clark refused to pay Prine because Clark only had a fifty dollar bill, Prine became angry and told Clark he was going out to his girlfriend's car to retrieve his gun. Prine returned to Clark's home with his gun (wearing gloves), kicked in the front door, took two steps inside, and fired the gun. Prine took the fifty dollars from Clark, then threatened to kill a second man in the house, Gary Mitchell (“Mitchell”), unless Mitchell gave Prine his money. Prine left Clark's house in his girlfriend's car after taking about two hundred dollars from Mitchell, but was later apprehended and arrested.³

Police found a bullet hole in Clark's home during a search, found a glove worn by Prine at the time of the shooting, retrieved the gun fired by Prine, as well as the shell casing from the bullet Prine fired.

On April 24, 2012, a special prosecutor was appointed for the State due to a conflict of interest within the office of the Jasper County Prosecuting Attorney.

A jury trial was held on June 18, 2013. At the close of all the evidence, an instruction conference was held in which Prine's counsel offered Instruction 5A,⁴ a lesser-included-offense instruction for second-degree robbery. When the trial court offered counsel for Prine an opportunity to make a record regarding the instruction, the following transpired:

[PRINE'S ATTORNEY]: Yes, Judge. I believe there's evidence of intoxication of Mr. Clark, and I believe Mr. Mitchell. Both testified that Mr. Prine was not himself, that he was intoxicated, under the influence. I would ask that the Court offer Instruction—I have marked it as 5A, Judge, you're marking it as A, is that right[?]

BY THE COURT: Yes. [STATE], any record you wish to make[?]

[STATE]: Yes. Your Honor, the only difference between what the defense is submitting in its proposed # A and robbery first that is in Instruction No. 5, which is properly given by the Court, they're attempting to negate, as I understand, the elements of—the intent element of the crime on purpose, that he was intoxicated therefore purposely did this.

If you recall the testimony[,] the defense is I just didn't do it. Period. In other words, he didn't do the robbery, number one. So the only difference between robbery first and robbery second is paragraph four in the two instructions. Robbery first requires the additional element of using—the MAI would say you can charge it by doing deadly weapon or dangerous instrument in the commission of the crime.

The specific intent for both of those is purposely, Judge, so I don't think you go down to a second-degree robbery and eliminate the use of a weapon in the commission of a crime just because you're drunk. Plus the defendant is saying I just didn't do this anyway. I don't know how you get—it seems like a contradictory argument. If you believe I did it then negate the elements of robbery by—down to second-degree robbery, forget about the gun, and let me off with a second-degree because I was drunk. It's the same standard for both.

BY THE COURT: I agree. As I indicated in chambers, there is, I don't think, any evidence at all in the case, much less substantial evidence to support the giving of a second degree robbery instruction. I don't believe anybody gives a version that he was there and robbed Brad Clark but did so without the use of a gun or a dangerous instrument. And so for all of those reasons I am refusing the proffered instruction, which I have marked as # A, 323.04, and that is the only instruction—that's the only instruction offered by the defense.

The jury found Prine guilty of robbery in the first degree and armed criminal action. The jury recommended Prine be sentenced to ten years in the Missouri Department of Corrections for the charge of robbery in the first degree, and three years in the Missouri Department of Corrections for the charge of armed criminal action. The trial court ruled the sentences would run consecutively after finding the recommendation of the jury was appropriate and within the limits of the law.

On July 15, 2013, Prine filed a “Motion for Judgment of Acquittal Notwithstanding the Verdict, or, in the Alternative, Motion for New Trial” asserting that:

The trial court clearly erred and/or abused its discretion by refusing to submit [Prine]'s jury instruction NUMBER 5A on ROBBERY IN THE SECOND DEGREE MAI–CR 3rd 323.04. Gary Mitchell and Bradley Clark testified they had known Mr. Prine all his life and had never before observed him [to] act the way he did on 14 January 2012. Clark opined Prine appeared to be under the influence of something. He stated Mr. Prine drank several alcoholic beverages in his presence. Mr. Prine admitted to drinking alcohol that evening as well. The Defense asserts Instruction Number 5A should have been an option for the jury and refusing to submit same violates Mr. Prine's rights to Due Process, Fair Trial, a Fair and Impartial Jury under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution [.]

This appeal followed.

In his four points on appeal, Prine contends the trial court erred in: (1) refusing to instruct jurors as to Prine's lesser-included-offense instruction for robbery in the second degree because it deprived Prine of a fair trial before a properly instructed jury in that robbery in the second degree is a lesser-included offense of the charged robbery in the first degree, and there was a basis for the jury to acquit on the offense charged but still convict on the lesser offense; (2) in sustaining the State's objection to Prine's counsel questioning Mitchell about his pending criminal charges because Prine was prevented from exposing Mitchell's potential bias and prejudice; (3) assessing court costs against Prine and ordering him to pay $31,065.98 for the special prosecutor because Prine was indigent; and (4) assessing court costs against Prine in the amount of $31,027.50 for the costs of a special prosecutor because this amount was prohibited by section 56.130 and not reasonable.

Point I: Lesser–Included Instruction

Standard of Review

“This Court reviews de novo a trial court's decision whether to give a requested jury instruction under section 556.046, RSMo Supp.2002 [.]” State v. Jackson, 433 S.W.3d 390, 395 (Mo. banc 2014) (footnote omitted). A preliminary issue is preservation; to “preserve a claim of instructional error for review, counsel must make specific objections to the allegedly erroneous instruction at trial and in a motion for new trial.” State v. Steinmann, 431 S.W.3d 495, 498 (Mo.App.E.D.2014) ; Rule 28.03.

Analysis

After Prine filed his brief in this appeal, our Supreme Court ruled that a trial court cannot refuse a requested nested-lesser instruction “based solely on its view of what evidence a reasonable juror must believe or what inferences a reasonable juror must draw.” Jackson, 433 S.W.3d at 392.⁵ Thereafter, we allowed Prine to amend his brief to also seek reversal based upon Jackson and its companion case, State v. Pierce, 433 S.W.3d 424 (Mo. banc 2014).

Jackson held that “in a criminal case, the trial court cannot refuse a defendant's request for ... [a] ‘nested’ lesser offense instruction based solely on its view of what evidence a reasonable juror must believe or what inferences a reasonable juror must draw.” 433 S.W.3d at 392 (our emphasis). This requirement was reiterated in Jackson, then again in Pierce.

If the defendant requests that the jury be instructed on a lesser included offense consisting of all but one of the elements required for the greater offense, is the trial court allowed to refuse to give that instruction solely because it determines that no reasonable juror could refuse to find that the differential element had been proved beyond a reasonable doubt? The answer is no.

Id. at 402 (our emphasis).

As in Jackson, therefore, the Court holds that where the defendant requests the trial court to instruct the jury on a ‘nested’ lesser offense, the trial court cannot refuse to give that instruction solely because the court concludes that the evidence is so overwhelming that all reasonable jurors must find the differential element proved beyond a reasonable doubt.

Pierce, 433 S.W.3d at 433 (our emphasis).

Prine sought a second-degree robbery instruction, but his sole basis was a claim that he was intoxicated at the time of the offense. The trial court correctly agreed with the prosecutor's argument against that theory (i.e., “forget about the gun, and let me off with a...