State v. Reyes

• Decision Date: 24 June 2003
• Docket Number: No. WD 61400.,WD 61400.
• Citation: 108 S.W.3d 161
• Parties: STATE of Missouri, Respondent, v. Alberto M. REYES, Appellant.
• Court: Missouri Court of Appeals

108 S.W.3d 161

STATE of Missouri, Respondent, v. Alberto M. REYES, Appellant.

No. WD 61400.

Missouri Court of Appeals, Western District.

June 24, 2003.

COPYRIGHT MATERIAL OMITTED

Emmett D. Queener, Assistant State Public Defender, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Assistant Attorney General, Jefferson City, MO, for respondent.

Before LOWENSTEIN, P.J., and SMART and EDWIN H. SMITH, JJ.

HAROLD L. LOWENSTEIN, Presiding Judge.

Alberto M. Reyes was convicted by a jury of murder in the second degree, Section 565.021,¹ and armed criminal action, Section 571.015. He was sentenced to concurrent terms of life imprisonment for each. On appeal, Reyes alleges that the trial court abused its discretion in permitting the State to argue its case in voir dire. He also argues that the trial court abused its discretion in permitting the prosecutor to denigrate defense counsel during closing argument. The judgment is affirmed.

Statement of Facts

On July 17, 1998, a little before five o'clock in the evening, Marco Duarte arrived at the Jazz Louisiana Kitchen restaurant located in Kansas City to begin his shift. Duarte clocked in, said hello to the day shift bartender, Lynn Marie Thompson, and went into the food prep area of the kitchen to begin work. At this time, Thompson was cutting fruit for the evening shift. Her two children were with her waiting to be picked up by their father. Shortly after seeing Duarte go into the food prep area, she heard a crash and heard Cecelia, another prep cook, scream. Fearing that Cecelia had fallen, Thompson ran back into the food prep area. Cecelia was running from the food prep area crying and screaming. As Thompson reached the doorway to the food prep area, she saw the appellant, Alberto Reyes, a day shift dishwasher, with a knife in his hand swinging it at Duarte. Duarte was holding a metal tray in front of him, trying to keep Reyes away. She yelled Reyes' name and he turned to look at her. Thompson saw her children coming toward her, grabbed them, and went out into the restaurant.

About the time Duarte arrived at the restaurant, Xavier Martinez,² a cook, had also arrived for his shift. He was beginning to work, when he, too, heard pans falling and Cecelia scream. He saw Cecelia run, screaming hysterically, from the food prep area. He then entered the area and saw Duarte on the floor and Reyes standing over him, "knifing him" with a large butcher knife. He also saw Duarte holding a metal tray in front of him. He heard Duarte say, "Leave me alone. Leave me alone." Martinez tried to separate Reyes and Duarte, but Reyes came after Martinez with the knife. He then left to get help. Victor Duarte, a relative of Duarte and an employee of the restaurant,³ was coming to work. Victor and Martinez then went back into the food prep area. Martinez testified he saw Reyes still standing over Duarte. Reyes came after them with the knife again. They left the area again and Victor told Martinez to get the police. Martinez went outside looking for the police. As he was going around the block, Martinez observed Reyes leave through the service door, get into his car, and drive away.

Ricky Essex, the head chef, had finished his shift around this time and was downstairs in the office changing his clothes. He heard a lot of noise, Spanish being spoken louder than normal, and thought there was a fight. He went upstairs and saw Victor "dancing around talking in Spanish." When he got to the middle of the kitchen, he saw Reyes walking from the food prep area carrying a knife. He placed his hand on Reyes' shoulder and asked him what was going on. Reyes pulled the knife on Essex, and Essex backed away. Reyes then walked out of the back door and to his van, which was parked just to the right of the door. This was unusual because employees were supposed to park on the furthest side of the parking lot, away from the building. Reyes, acting as if nothing were wrong, got into the van and drove away. When Essex went back into the food prep area, Duarte was lying on the floor gasping for breath. Essex could see multiple stab wounds. A doctor from KU Medical Center, which was across the street from the restaurant, was in the restaurant and began providing medical assistance.

Two waitresses, one who was already waiting tables and one who had arrived a little late for her shift, saw Reyes drop a knife into a trash can as he walked toward the back door. Mike Vandee, the restaurant manager, also saw Reyes going out of the back door with blood on him. Since they had just received new knives, which were very sharp, he thought Reyes had cut himself. He tried to stop him, but Reyes did not respond. As Vandee was calling 911, Reyes then got into his van and drove away. Vandee thought he was possibly driving himself to KU Medical Center next door.

Officer Tim Hernandez, a Kansas City, Missouri, police officer, was the first to respond. Upon hearing a commotion, he proceeded to the rear of the restaurant. He observed Duarte lying on his back on the floor covered in blood. He then cleared everyone from the scene except for the KU Medical Center doctor that was in the restaurant. While securing the scene, he observed a butcher knife with what appeared to be blood on it in the trashcan near the door to the parking lot.

Crime scene technician Charles Johnson arrived and observed a large pool of apparent blood on the floor and blood splatter on the wall and the ceiling of the food prep area. Several knifes were found, including a butcher knife with apparent blood on it found in the trashcan. Although the knives were tested for fingerprints, no prints of value were retrieved. A metal tray was also recovered that had what appeared to be knife punctures on it. An apron and baseball cap with apparent blood was also found.

Duarte died as a result of the attack, sustaining twenty-nine stab wounds to his face, head, neck, chest, scrotum, arms, and legs. No one saw Duarte with a weapon nor was one found on his body. Many of the witnesses testified at trial that they had not heard any arguments before the stabbing nor had they observed previous arguments between the two men. Each of the witnesses identified Reyes as the person who committed the crime.

Reyes was arrested on a warrant in Sanford, Florida, in August 1999, over a year after the incident. His photograph was taken and placed in a photo line-up. Again, each witness identified Reyes.

A jury found Reyes guilty of second-degree murder and armed criminal action. In accordance with the jury's recommendation he was sentenced to life sentences, to run concurrently. This appeal follows.

I.

In his first point on appeal, Reyes claims that the trial court abused its discretion in permitting the State to argue its case in voir dire. He asserts that the purpose of voir dire is to discover bias, but the State's examination presented evidence to the venire members in a way that created bias against Reyes and in favor of a guilty verdict before any evidence had been admitted at trial. He claims that the questions posed by the prosecutor were also argumentative, phrased in a manner which preconditioned the venire members to react, even subconsciously, in a particular way to evidence the prosecutor anticipated producing at trial.

The prosecuting attorney in this case stated the following:

I need to tell you a sentence or two about what the State alleges in this case. It is by no means the evidence in this case, but just an introduction into what you might hear in this case so that I can ask you whether or not anybody knows anything about this case.

I will tell that you [sic] the State alleges that on July 17th, 1998, at the Louisiana Jazz Restaurant this defendant was working as a dishwasher and he was in the same vicinity as Mr. Marco Duarte, the victim in this case.

The State alleges that this defendant took a butcher knife, some 15 inches in length ...

Defense counsel then objected to the statement concerning the length of the knife, claiming that the State was describing in grand detail and arguing the case. The trial court overruled the objection, stating that the court believed that the State was "trying to identify if they've read about it[.]" The State continued:

The State alleges that the defendant took a butcher knife some 15 inches in length and repeatedly, repeatedly stabbed Mr. Duarte something like between 25 to 30 wounds, to the point that he died.

Having heard just the brief set of the allegations in this case is there anybody that would say, "... based on what you've told me, I think I may know something about this case; I read about it or I saw it on some news media, some friend told me about it."

"The control of voir dire is a matter within the sound discretion of the trial court." State v. Dudley, 51 S.W.3d 44, 54 (Mo.App.2001). Under both the Missouri and United States Constitutions, a defendant is entitled to a fair and impartial jury. State v. Clark, 981 S.W.2d 143, 146 (Mo. banc 1998). Along with this right is the ability to adequately voir dire the jurors to identify unqualified jurors. Id. "The purpose of voir dire is to discover bias or prejudice in order to select a fair and impartial jury." Id. To protect a defendant's right to an impartial jury, "the Court and the parties must determine a prospective juror's personal knowledge of the crime or his exposure to pretrial publicity." State v. Antwine, 743 S.W.2d 51, 58 (Mo. banc 1987). To make this determination, counsel must reveal "some portion of the facts of a case on voir dire [.]" Id. Counsel, however, is not permitted "to try the case on voir dire by a presentation of the facts in explicit detail." Id. "Nor is voir dire an appropriate occasion for argument." Id. "The trial judge is in the best position to determine whether a disclosure of facts on voir dire is sufficient to assure the defendant of an impartial jury without, at the same time, being...