State v. Sanders

• Decision Date: 18 July 1995
• Docket Number: 66939,Nos. 65079,s. 65079
• Citation: 903 S.W.2d 234
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Richard SANDERS, Defendant-Appellant. Richard SANDERS, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 234

903 S.W.2d 234

STATE of Missouri, Plaintiff-Respondent, v. Richard SANDERS, Defendant-Appellant.

Richard SANDERS, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 65079, 66939.

Missouri Court of Appeals,

Eastern District,

Division Three.

July 18, 1995.

Gary E. Brotherton, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., David G. Brown, Asst. Atty. Gen., Jefferson City, for respondent.

DOWD, Judge.

Defendant appeals from a judgment of conviction of first-degree murder and a sentence of life imprisonment without parole. Defendant also appeals the denial of his Rule 29.15 motion after an evidentiary hearing. We affirm.

In early 1986, Defendant spent some time "casing" a jewelry store in St. Louis. On the morning of March 11, 1986, Defendant and two accomplices, James Montgomery and Antonio Veal, decided to rob the store. They waited for Elizabeth Baker (Victim) to arrive and open the store. Once Victim arrived, the three men waited outside a few minutes to allow for her to open the safe before entering the store. Veal stayed in the getaway car as a lookout while Defendant and Montgomery entered the back of the building by breaking into an upstairs apartment. While two female friends of the assailants, Karen Luke and Donna Shinault, distracted Victim by posing as customers, Defendant and Montgomery broke open the store's back door, entered the store, and remained in the back room.

Upon hearing noises from the back room, Victim walked towards the rear of the store. Victim stopped in front of the back room door, and Defendant removed his gun from its shoulder holster. Victim called out, "Who's back there?"; "What do you want?"; or "What's going on?" Without responding, Defendant shot Victim in the chest with his .22 caliber, long-barrelled revolver. The bullet struck two major veins, passed through Victim's right lung, and lodged in the right side of her back, killing her.

Defendant was the focus of the ensuing police investigation because his car was identified as being near the store at the time of the shooting. Three days after the murder, Defendant voluntarily appeared at the police station. He initially denied any involvement with the robbery and shooting, stating that Montgomery and Veal had borrowed his car the morning of the incident. Defendant later changed his account during a videotaped statement in which he claimed he had remained in his car while Montgomery and Veal broke into the back of the store.

Montgomery and Veal were arrested later that day. Police told Montgomery and Veal Defendant's version of the story and gave them the opportunity to view Defendant's videotaped statement. After viewing Defendant's statement, Montgomery and Veal asked to speak with Defendant. Following this conversation, Defendant gave another statement in which he admitted to shooting Victim but claimed it was accidental. Defendant was charged with first-degree murder, § 565.020.1, RSMo 1994. A jury found Defendant guilty of the charged offense. The jury verdict and resulting sentence of life imprisonment without eligibility for probation or parole was reversed by this court in State v. Sanders, 842 S.W.2d 170 (Mo.App.1992).

The cause was re-tried and again a jury found Defendant guilty, as charged, of first-degree murder. Defendant was sentenced to life imprisonment without parole. Defendant filed a notice of direct appeal and later a Rule 29.15 motion for postconviction relief. Defendant's Rule 29.15 motion was denied after an evidentiary hearing. This appeal followed. Defendant asserts seven points on appeal.

Defendant's first point on appeal contends the reading of Bruce Feltner's direct testimony from the first trial at the second trial violated his right to confront the witnesses against him because the State did not make an adequate showing that Feltner was unavailable. Feltner, Defendant's brother-in-law, testified for the State at the first trial as a reluctant witness and admitted that he helped Defendant destroy the murder weapon and discard its remnants into the Missouri River. Defendant further argues that in not allowing only selective portions of Feltner's cross-examination to be read to the jury, the trial court violated his rights to effective cross-examination and effective assistance of counsel. See United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984).

The right to confront one's accusers is "an essential and fundamental requirement for a fair trial." Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). An exception to the right of confrontation exists where a witness is unavailable and has given testimony at a previous judicial proceeding against the same defendant who was subject to cross-examination by the defendant. State v. Murphy, 592 S.W.2d 727, 731 (Mo. banc 1979). A witness is unavailable if: (1) the State made a good faith effort to obtain the witness; and (2) the State exercised due diligence to secure the individual as a witness. Id. Due diligence is evaluated on the facts of each case. Id.

We find ample evidence to support the trial court's determination that Feltner was unavailable to testify. Accordingly, Defendant's right to confrontation was not violated by the introduction of Feltner's direct testimony. Feltner moved to Indiana following the first trial. Before the instant trial, the State unsuccessfully attempted to serve Feltner in Indiana with an out-of-state subpoena, first at his home address and then at a second address. Additionally, the State unsuccessfully searched Social Security records in an attempt to locate other possible addresses and unsuccessfully monitored both Indiana addresses waiting for Feltner to appear.

Upon the trial court's determination that Feltner was unavailable to testify, the State asked to read Feltner's entire direct testimony to the jury. Anticipating that Feltner's cross-examination could be introduced into evidence as well, defense counsel asked if only select portions of the cross-examination could be read to the jury. Defendant, represented by different counsel at the second trial, had adopted a new trial strategy for the second trial. Arguing that the line of questioning from the first trial might confuse the jury, Defendant wanted only those portions of the cross-examination which he believed would support his new strategy to be read to the jury. The trial court gave Defendant the option of reading all or none of Feltner's cross-examination to the jury. Defendant elected not to read the cross-examination to the jury and now argues that in not allowing only selective portions of Feltner's cross-examination to be read, the trial court has violated his rights to effective cross-examination and to effective assistance of counsel.

Questions concerning the admissibility of evidence are solely within the discretion of the trial court and will not be overturned on appeal absent an abuse of discretion and a showing of prejudice. State v. Simms, 859 S.W.2d 943, 945 (Mo.App.1993), citing State v. Burns, 795 S.W.2d 527, 531 (Mo.App.1990); State v. Henderson, 826 S.W.2d 371, 374 (Mo.App.1992). Since Feltner's entire direct examination was read to the jury, we do not find that the trial court acted unreasonably or arbitrarily in presenting defense counsel with the option of reading all or none of the cross-examination. Arguably, allowing the jury to hear only select portions of the cross-examination after hearing the entire direct examination could have caused confusion. Point denied.

In his second point on appeal, Defendant argues the trial court abused its discretion in overruling his Motions for Mistrial and allowing the introduction into evidence of his prior criminal convictions. Defendant contends the evidence was extremely prejudicial; and since it failed to show motive, intent, absence of mistake or accident, common scheme or plan, or identity, its introduction violated his rights of due process and a fair trial. State v. Holbert, 416 S.W.2d 129, 132 (Mo.1967); State v. Shepard, 654 S.W.2d 97, 100 (Mo.App.1983).

Contrary to Defendant's assertion, the State did not attempt to, nor in fact did the State introduce his criminal history into evidence. The evidence at issue was testimony which was volunteered in two answers, neither of which connected Defendant to a specific crime. The first answer was given by co-defendant, Veal, during his direct examination.

Q: Do you know a person by the name of Richard Lee Sanders or Ricky Lee Sanders?

A: Yes, sir.

Q: How long have you know him?

A: I think since 1977 or '76.

Q: So, you knew him a long time before '86?

A: Yeah, I met him at Algoa.

The second objectionable answer also occurred during Veal's direct examination, when, despite the State's attempt to interrupt him, Veal volunteered that Defendant had a parole officer.

Q: Did he [Defendant] say he was going to tell them [the police] everything?

A: He told me that the police had been kicking in his family's--

Q: He indicated that the police kicked in some doors?

A: And his parole officer was calling--

Mistrial is a drastic remedy to be used only in the most extraordinary circumstances when there is a grievous error which cannot otherwise be remedied. State v. Durbin, 835 S.W.2d 323, 325 (Mo.App.1992); see also State v. Sidebottom, 753 S.W.2d 915, 919 (Mo. banc), cert. denied, 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988). Generally, prejudice may be removed by striking the improper testimony and instructing the jury to disregard it. See State v. Harris, 547 S.W.2d 473, 475 (Mo. banc 1977). Defendant failed to request such measures in the instant case. When a witness unexpectedly volunteers inadmissible information, the trial court is in the best position to determine what measures, if any, are necessary to cure that effect. State v. Davis, 825 S.W.2d 948, 952-53 (Mo.App.1992). In the instant case, the...