State v. Reed

• Decision Date: 22 May 2000
• Citation: State v. Reed, 21 S.W.3d 44 (Mo. App. 2000)
• Parties: (Mo.App. S.D. 2000) State of Missouri, Plaintiff-Respondent, v. James Reed, Defendant-Appellant. 23204 0
• Court: Missouri Court of Appeals

21 S.W.3d 44 (Mo.App. S.D. 2000)

State of Missouri, Plaintiff-Respondent, v. James Reed, Defendant-Appellant.

23204

Missouri Court of Appeals Southern District

05/22/2000

Appeal From: Circuit Court of Pemiscot County, Hon. Byron D. Luber

Counsel for Appellant: Nancy A. McKerrow

Counsel for Respondent: Barbara K. Chesser

Opinion Summary: None

Crow, P.J., concurs; Parrish, J., concurs in separate opinion.

Kenneth W. Shrum, Judge

A jury convicted James Reed (Defendant) of two counts of first degree robbery, section 569.020, one count of class B felony assault in the first degree, section 565.050, and three counts of armed criminal action, section 571.015.¹ In total, the trial court sentenced Defendant to twenty-nine years in the penitentiary.

On appeal, Defendant claims the trial court "plainly erred" when, at the jury's request and during its deliberations, the court let the jury review a transcript of the preliminary hearing testimony of a witness who had died before trial. Defendant asserts reversal is mandated, even under the plain error standard of review, because the exhibit given the jury included the preliminary hearing judge's probable cause ruling.

We affirm.

At trial, a supermarket employee and a man delivering bread to the store identified Defendant as their assailant during his attempt to rob the store. This occurred early on August 7, 1998, in Portageville, Missouri, before the store opened. During the incident, Defendant took purses and their contents from store employees Betty Davidson and Annie Washington, thus giving rise to the robbery charges. Defendant also displayed a pistol as he robbed the women and assaulted Richie Lancaster, the delivery man.

At Defendant's preliminary hearing, Earnestine Wells testified for the state. On August 7, 1998, Wells lived in the same house as Defendant. When Defendant came home that morning, he asked his father if he had "heard anything across the scanner about a robbery." Defendant then talked to Wells, telling her he had gone in a store and made two women open a safe. Continuing, Defendant told Wells that as he came out of the store, a person delivering bread "grabbed him" and they began fighting. During the fight Defendant dropped both the money and his gun. Later, Defendant got free of the bread delivery man, jumped in a van, and drove away. As they talked, Defendant showed Wells "papers and . . . credit cards" or "bank cards" bearing the names of "Betty David[son] . . . and Annie Washington." Wells recalled Defendant was "kind of shaking" and "nervous" as they talked that morning.

By the time of trial, Earnestine Wells had died. Accordingly, the State read her testimony from the preliminary hearing to the jury. Later, as the jury deliberated, it asked for transcripts of the preliminary hearing testimony of Lancaster and Wells. The trial judge refused the jury's request for Lancaster's testimony but gave them the Wells transcript, marked exhibit 10. This occurred without objection from defense counsel.The transcript given the jury contained information not previously read to the jury:

"MR. RECKER [Assistant Prosecuting Attorney]: That is all the State has, Your Honor.

"THE COURT: Ms. Bolton [defense counsel], do you have any witnesses?

"MS. BOLTON: No, sir.

"THE COURT: All right, based upon the testimony that has been received by the Court today, (inaudible) the Court does in fact find that there is probable cause to believe [Defendant] may have in fact committed the Counts I, II, III, IV, V, and VI as alleged (inaudible). And the Court hereby orders him to appear upstairs in Division I."

Defendant's only point relied on complains the trial court "plainly erred" when it acceded to the jury's request to review exhibit 10 during its deliberation. Defendant admits in his brief this point has not been preserved. Thus, we review for plain error.

Under plain error review a Defendant bears the burden of showing that the trial court's action was not only erroneous, but that the error so substantially affected his or her rights that a manifest injustice or miscarriage of justice will result if the error is not corrected. State v. Hope, 954 S.W.2d 537, 541[1] (Mo.App. 1997); Rule 30.20.²

Defendant claims there are two reasons why the court plainly erred in giving the jury the preliminary hearing transcript excerpt. First, Defendant cites State v. Evans, 639 S.W.2d 782, 795 (Mo.banc 1983) and State v. Brooks, 675 S.W.2d 53, 57 (Mo.App. 1984) for the general rule that exhibits testimonial in nature cannot be given to the jury during its deliberations. The reason often given for the rule is that testimonial exhibits tend to unduly emphasize some of the testimony, thus raising the possibility the jury would give it undue weight. Evans, 639 S.W.2d at 795. However, Evans and Brooks are distinguishable as they are not "plain error" review cases. Further, Evans did not actually apply the general rule against giving testimonial exhibits to the jury--it merely recited the rule via dicta. Instead, Evans recognized and applied an exception to the general rule, namely, there is no error in giving the jury the recording of a defendant's confession. 639 S.W.2d at 795[4]. Brooks is also factually distinguishable. Unlike this case, the depositions which the defendant asked be given the jury in Brooks had not been read in their entirety and neither were they marked as exhibits or admitted in evidence.

Without explicitly saying so, Defendant appears to concede the distinctions between Evans and Brooks and this case. We deem this so because in the argument part of Defendant's brief he never develops his claim that giving Wells's preliminary hearing testimony to the jury during deliberations, by itself, caused a manifestly unjust result or miscarriage of justice. Defendant goes instead to the second prong of his point relied on. There, Defendant points out what was given the jury contained more than Wells's preliminary hearing testimony and included facts not in evidence, i.e., the preliminary hearing judge's probable cause finding. He suggests although jury members knew Wells had testified at an earlier stage of the case, they could not be expected to understand the function or purpose of a preliminary hearing. He argues that giving the preliminary hearing judge's ruling to the jury via exhibit 10 gave its members the idea a judge found Wells's testimony credible and found probable cause existed to believe Defendant had committed the crimes as charged. Continuing, Defendant asserts "[l]ay jurors cannot be expected to understand a probable cause finding is something less than a finding of guilt beyond a reasonable doubt." With this as his premise, Defendant goes further, saying "[i]n this exhibit, they [jury members] were told that a judge was convinced of [his] guilt." Accordingly, he argues that giving the jury such information "during deliberations was clearly not harmless."

Defendant relies heavily on the following cases and principles to support his argument that giving exhibit 10 to the jury rose to the level of plain error. First, he asserts what happened here was analogous to a trial court denying a motion for judgment of acquittal in front of the jury, a procedure condemned in United States v. Coke, 339 F.2d 183, 186 (2d Cir. 1964) and United States v. Gaffney, 676 F.Supp. 1544, 1553 (M.D.Fla 1987).

Second Defendant contends giving the jury exhibit 10 with a probable cause finding contained therein was akin to a trial judge summing up or commenting on evidence in a criminal case or charging the jury as to questions of fact, a practice held to be reversible error in State v. Lomack, 570 S.W.2d 711, 713 (Mo.App. 1978).

Third, he relies on State v. Cook, 676 S.W.2d 915 (Mo.App. 1984). There, a juror called the St. Louis University Meteorological Department before deliberations began to find out if it had rained on the day of the robbery as Defendant's alibi witnesses testified, or if it was sunny as a witness for the state testified. After learning of the call, the trial judge conducted a hearing at which the juror in question testified the rainfall information was not used in deliberations. Defendant's request for mistrial was denied and he appealed. The eastern district reversed, saying:

"'The receipt by a juror or jury of possibly...