State v. Robinson

• Citation: 90 S.W.3d 547
• Decision Date: 12 December 2002
• Docket Number: No. 24600.,24600.
• Parties: STATE of Missouri, Plaintiff Respondent, v. David Lee ROBINSON, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 547

90 S.W.3d 547

STATE of Missouri, Plaintiff Respondent, v. David Lee ROBINSON, Defendant-Appellant.

No. 24600.

Missouri Court of Appeals, Southern District, Division One.

December 12, 2002.

Rosalynn Koch, Assistant State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Patrick T. Morgan, Assistant Attorney General, Jefferson City, for respondent.

PHILLIP R. GARRISON, Judge.

David Lee Robinson ("Appellant"), was convicted by a jury of one count of murder in the first degree, a violation of Section 565.020,¹ and one count of armed criminal action, a violation of Section 571.015. He was sentenced to the consecutive terms of life imprisonment without the possibility of parole on the murder count, and to life imprisonment on the armed criminal action count. Appellant raises two points in this appeal. In his first point, Appellant alleges that the trial court abused its discretion in granting the State's motion in limine relating to the testimony from a witness proffered by Appellant. In his second point, he argues that the trial court plainly erred by making a statement, in front of the jury, about his past friendship with a rebuttal witness for the State. We deem Appellant's first point to be without merit, decline to review his second point as it was not preserved for appellate review, and affirm the judgement.

On the evening of August 5, 2000, Sheila Box ("Sheila") went to Cheers Bar and Grill in Sikeston, Missouri with her fiancee, L.A. Thompson ("Thompson"). She left several times during the evening, returning to Cheers each time except after her last departure, which was between 10:00 P.M. and 10:30 P.M. Her stated reason for this final trip was to purchase some "last minute items" from a local store.

Sheila left Cheers driving a two-toned Chevy Suburban ("Suburban") owned by Thompson and containing a loaded .38 caliber revolver in a locked console. Sheila took with her three money bags containing $300 in cash and checks representing receipts from Thompson's restaurant business that she managed, which she planned to deposit in a bank the following morning. Sometime during this trip, Sheila stopped at a pay phone to call Thompson and ask whether she should bring dinner to him when she returned to Cheers.

At approximately the same time that Sheila was calling Thompson from the pay phone, Albert Baker ("Baker") was walking to his home in Sikeston after purchasing crack cocaine in an area known as "The Bottoms." This area of Sikeston, which included the place from which Sheila placed her phone call, was well known to area residents as a high crime area and a focal point for drug trafficking. As Baker took a shortcut across a field he heard a gunshot, and shortly thereafter, saw Appellant walking along a nearby dirt path known to area residents as the "pig path."

Baker continued to observe Appellant as Appellant crossed the street that fronted the gas station parking lot from which Sheila was making her phone call. The area was well lit by an overhead street lamp. According to Baker, Appellant walked up to the Suburban in which Sheila was sitting with the pay phone in her hand, fired one shot from a handgun into the open driver side window and walked away. Sheila immediately drove away in the Suburban at a high rate of speed and in an erratic fashion, almost colliding with another vehicle in the process.

The next person to observe Sheila was Christopher Jenkins ("Jenkins"), who was watching television in his trailer, when he heard a loud noise. When Jenkins went out of the trailer he saw the Suburban crash through a perimeter fence and into a building. Jenkins called for emergency assistance when he looked inside the Suburban and found Sheila slumped over the steering wheel.

Paramedics found Sheila covered with blood and initially unresponsive. They also noticed a blood clot on the skin of her upper left chest. Shortly thereafter, Sheila began to respond to questions, but was confused and combative. When asked who had shot her, she denied having been shot. Between Sheila's legs, a Sikeston police officer found the loaded .38 caliber revolver normally stored in the Suburban's console. Aside from ten to twenty dollars on the floorboard of the Suburban's passenger side, no money or money bags were located.

Sheila was transported to a local hospital, where emergency physicians treated her for two gunshot wounds — one to her upper left chest and one to her right side. They were unable to repair the extensive damage to Sheila's heart and lungs, and she died during surgery. An autopsy revealed that the shot to the left side of Sheila's chest had been fired from a range of six to eighteen inches, and at an approximately downward 45-degree angle. A bullet removed from just under the skin of Sheila's right side was tested and found not to be a ballistic match with the gun found in her possession.

On August 6, 2000, Appellant was detained and questioned regarding the shooting of Sheila. Appellant claimed to have been at a family social gathering at the time Sheila was shot, and he was subsequently released from custody. Eleven days later, Baker, who was being held in a Sikeston facility on an unrelated charge, asked to speak with Detective John Blakley ("Blakley") of the Sikeston Public Safety Department. He told Blakley what he had observed the evening Sheila was shot, including details not previously revealed to the public. On the basis of this statement, and upon inconsistencies Blakley had uncovered in Appellant's alibi, Blakley obtained and executed a warrant for Appellant's arrest.

Appellant did not testify at his jury trial, but offered the testimony of three relatives who were consistent in placing Appellant at a family gathering between 10:00 P.M. and 11:00 P.M. on August 5, 2000, the time Sheila was believed to have been shot. The jury nevertheless found Appellant, guilty of murder in the first degree and. armed criminal action, and he was sentenced as indicated previously. This appeal followed.

In his first point relied on, Appellant alleges that the trial court abused its discretion in granting the State's motion in limine to exclude the testimony of a witness who would have testified that his cousin had confessed to the murder of Sheila. Appellant claims the cousin's alleged statement represented an admission against interest and was sufficiently reliable to be admissible hearsay. According to Appellant, the testimony, if admitted, would likely have resulted in Appellant's acquittal.

Trial courts have broad discretion in ruling on the admission or exclusion of evidence at trial. State v. Bryan, 60 S.W.3d 713, 718 (Mo.App. S.D.2001). Absent a clear abuse of discretion, we will not disturb the trial court's rulings in this area. Id. Such abuse of discretion occurs when the trial court's evidentiary ruling is clearly against the logic of the circumstances before the court, and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful deliberate consideration. State v. Anglin, 45 S.W.3d 470, 472 (Mo.App. W.D. 2001). "Furthermore, in matters involving the admission of evidence, we review for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." Id. (quoting State v. Harrison, 24 S.W.3d 215, 218 (Mo.App. W.D.2000)).

Prior to the commencement of trial, the State filed a motion in limine to exclude the testimony of Romance Mosby ("Mosby"), an inmate at the Boonville, Missouri Correctional Facility ("BCC"). The State anticipated Mosby would testify that, while he was incarcerated with his cousin, Carlos Jones ("Jones"), Jones confessed to Mosby that he had murdered Sheila. The trial court granted the State's motion in limine and precluded Appellant, from referring to Mosby's allegation in his opening statement to the jury, but allowed Appellant to make an offer of proof during trial and outside the presence of the jury.

During this offer of proof, Mosby testified that, while he was incarcerated in BCC in June 2001, his cousin (Jones), with whom Mosby professed to be "close," admitted to Mosby that he had shot Sheila in the course of robbing her. Under cross-examination, Mosby stated, first, that he had no recollection of what Jones had told him happened to the gun used in the shooting of Sheila, then, that he recalled telling a sheriffs deputy that Jones had said he threw the gun in a river and, finally, that Jones had told him he disposed of the gun on a gravel road. Mosby also testified that Jones claimed he shot Sheila in self-defense in that she was trying to shoot Jones. Mosby confessed, however, that he had not previously mentioned to investigators this aspect of Jones' alleged statement. Mosby also admitted that he had refused to submit to a polygraph examination to verify the truth of his account to police concerning Jones' alleged statements. At the close of the offer of proof, the trial court reaffirmed its prior ruling excluding Mosby's testimony. Appellant claims this ruling was an abuse of the trial court's discretion.

Missouri courts have been consistent in declaring that statements against penal interest, admissible under Federal Rules of Evidence 804(b)(3) and in several of the States as a valid exception to the hearsay rule, are inadmissible in criminal proceedings in Missouri. State v. Blankenship, 830 S.W.2d 1, 6 (Mo. banc 1992); Anglin at 473; State v. Dayringer, 755 S.W.2d 698, 701-02 (Mo.App. S.D.1988). Such statements are, however, admissible under limited circumstances, namely, where due process is implicated and where circumstances strongly indicate the reliability of the statement. Anglin at 473. For this narrow exception to apply, "[a]ppellant must show that the declarant is unavailable as a witness, there is substantial indicia of reliability of the alleged declaration, and the declaration, if true, would...