State v. Savage

Decision Date29 September 2020
Docket NumberWD 82413
Citation609 S.W.3d 71
Parties STATE of Missouri, Respondent, v. Thomas J. SAVAGE, III, Appellant.
CourtMissouri Court of Appeals

Annette M. Wallace, Kansas City, for appellant.

Evan J. Buchheim, Jefferson City, for respondent.

Before Division Four: Cynthia L. Martin, C.J., P.J., and Alok Ahuja and Edward R. Ardini, JJ.

Alok Ahuja, Judge

Following a jury trial, Thomas Savage was convicted in the Circuit Court of Clay County of second-degree burglary and misdemeanor stealing. Savage appeals. He asserts nine Points, which argue that the circuit court erred: in denying his motion to strike a venireperson for cause; in overruling his objection to what he characterizes as victim-impact testimony; in ordering restitution; and in taxing certain costs against him. Savage has also filed a motion to remand the case to the circuit court for a new trial, or for the circuit court to consider an untimely new trial motion, based on his belated discovery of impeachment evidence which the State failed to timely disclose. The State has filed a motion to dismiss based on the "escape rule." We deny the State's motion to dismiss and Savage's motion to remand, and otherwise affirm the judgment of the circuit court.

Factual Background

On May 24, 2018, Savage was charged with second-degree burglary in violation of § 569.170,1 and the class D felony of stealing property valued at more than $750 in violation of § 570.030.

Savage's prosecution arose from the burglary of a private residence in Kansas City on April 24, 2017. The home belonged to a senior officer with the Kansas City Police Department. At trial, the victim testified that, when he returned home from work around 6:00 p.m. on April 24, he noticed that the garage door was open. As he entered the home through the garage, the victim noticed that the road film on a vehicle that was parked in the garage had been disturbed. A door leading to the back porch was damaged, and the victim noticed that several drawers, closets, and rooms throughout the house had been disturbed. A 55-inch television, various items of jewelry, and a Bose stereo were missing.

During their investigation, police recovered a latent palm print from the driver's door of the car that was parked in the victim's garage. At trial, Julie Snyder, an examiner with the Kansas City Police Crime Laboratory, testified that the print belonged to Savage. Investigators also recovered other prints from the scene, five of which Snyder testified were "prints of value." Savage was excluded as the source of the other prints.

A neighbor told police that he had noticed a vehicle he did not recognize parked in front of the victim's property at approximately 11:00 a.m. on April 24. At trial, the neighbor testified that he did not see anyone in or around the vehicle. The neighbor testified that the vehicle was a "lighter shade of blue," was "likely" a two-door but possibly a four-door sedan, and that it was also potentially "something foreign." The vehicle had a temporary rear license tag. The neighbor testified that he saw a "[d]ecorative" sticker in the center of the back window, similar to an "In loving memory" sticker, although he did not read the sticker and did not know what it said.

A couple of weeks after the burglary, police conducted a traffic stop on a blue Ford Focus with a temporary tag driven by Savage. Police observed Savage driving the same blue Ford Focus with temporary tags on a later occasion, and an acquaintance also testified that Savage drove the vehicle. The vehicle had a "light colored" sticker in the rear windshield, apparently identifying the dealership from which it had been purchased.2

Savage gave officers his phone number during the traffic stop. An analysis by a Kansas City Police Department detective indicated that Savage's phone had made calls using a cell phone tower within the coverage area of the victim's home between 10:16 and 11:11 a.m. on April 24, 2017. The phone number had been activated on April 17, 2017; the account belonged to Savage's mother.

During questioning by police, Savage denied having been in the "Northland" (i.e. , the part of Kansas City north of the Missouri River), where the victim's home is located. Savage claimed that he never went further north than his workplace, which was located in Kansas City, Kansas, on the south side of the Missouri River.

The jury returned its verdict finding Savage guilty of second-degree burglary and misdemeanor stealing (as a lesser-included offense of the charged stealing offense). The circuit court sentenced Savage to six years’ imprisonment in the Department of Corrections for burglary, and 180 days’ imprisonment in the county jail for stealing, with the sentences to be served concurrently. In addition, the court ordered Savage to pay restitution of $4,711.54, ordered court costs to be taxed against him, and entered a $46 judgment in favor of the Crime Victims’ Compensation Fund. At sentencing, Savage objected to the restitution award, and to the taxing of costs given his indigent status.

Savage filed his direct appeal on December 31, 2018.

While his appeal was pending, Savage filed a motion to retax costs in the circuit court on March 4, 2019. After holding a hearing, the circuit court denied Savage's motion to retax costs on March 20, 2019. On March 22, 2019, Savage filed a separate appeal to this Court from the circuit court's denial of his motion to retax costs. No. WD8663. In the costs appeal, Savage argued that the circuit court should have assessed court costs against the State, and that Savage should not have been taxed any costs because he was indigent. We rejected Savage's attempt to challenge the "inter-party allocation" of court costs in an appeal from the denial of a motion to retax costs; we held that "a circuit court's determination as to which party should be taxed costs is part of the judgment" to be challenged on direct appeal. State v. Savage , 592 S.W.3d 42, 45 (Mo. App. W.D. 2019). We held that a motion to retax costs was intended to challenge "any subsequent determination as to the amount and types of costs to be assessed," not the court's initial decision identifying the party responsible for payment of costs. Id. at 47. Accordingly, we affirmed the circuit court's judgment denying Savage's motion to retax costs "because [Savage's motion to retax costs] was an improper effort to revisit the allocation directly adjudicated by the final judgment of conviction." Id.

While Savage's appeal was pending, his trial counsel received discovery materials in another case, which included material which Savage contends should have been produced in discovery in his case. The newly discovered materials documented a prior occasion in 2014 in which the fingerprint examiner, Julia Snyder, had misidentified a latent fingerprint. Snyder testified at trial that the palm print recovered from a car in the garage of the victim's home belonged to Savage. Savage contends that the report concerning Snyder's 2014 misidentification of a fingerprint would have permitted him to impeach her testimony. He filed a motion in this Court to remand the case to the circuit court for a new trial based on the newly discovered evidence, or instead to remand to the circuit court to permit it to consider a belated new-trial motion.

Finally, four days before oral argument, the State filed a motion to dismiss Savage's appeal on the basis of the "escape rule," because Savage had failed to maintain contact with his parole officer.

Discussion

On direct appeal, Savage asserts nine claims of trial court error. In Point I, Savage argues that the circuit court abused its discretion in denying a defense motion to strike a venireperson for cause. In Point II, he argues that the circuit court abused its discretion in overruling his objection to testimony by the victim, during the guilt phase of the trial, concerning the effect the burglary had on the victim. In Points III and IV, Savage argues the court erred in ordering him to pay restitution. In Points V through IX, argues that the circuit court erred in taxing costs against him, and in refusing to retax costs.

In addition to the nine Points raised in his appellate briefing, Savage has also filed a motion to remand the case to the circuit court for a new trial based on newly discovered evidence.

I.

We begin by addressing the State's motion to dismiss the appeal based on the "escape rule."

" ‘The judicially-created escape rule operates to deny the right of appeal to a defendant who escapes justice. Whether or not to use the escape rule to dismiss an appellant's claims of error rests within the sound discretion of the appellate court.’ " State v. Byington , 575 S.W.3d 720, 723 n.1 (Mo. App. E.D. 2019) (quoting Townsend v. State , 495 S.W.3d 225, 228 (Mo. App. E.D. 2016) ). "We never condone absconding from justice, but even when it would be within our discretion to invoke the escape rule, we often prefer to address the merits of the appeal." Id. (citations omitted).

The State's motion to dismiss is based on the fact that Savage has apparently failed to maintain contact with his parole officer since mid-June 2020. According to a report from Savage's parole officer attached to the State's motion to dismiss, "Savage reported as directed and maintained contact with [his parole] Officer via virtual methods as mandated by COVID-19 Pandemic guidelines on 03/10/2020, 03/24/2020, 04/07/2020, 04/23/2020, 04/30/2020, 05/07/2020, 05/19/2020, 06/01/2020 and 06/10/2020." The parole officer's report indicates that the officer spoke with Savage's mother on July 1, 2020, and that she indicated that Savage's cell phone service had been suspended due to his non-payment of his phone bill. The parole officer's report, dated July 14, 2020, recommends "Delayed Action" in Savage's case. The report states that "[r]eengagement efforts will continue for the next 90 days and when Savage is arrested or reengaged, a supplemental report with a...

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  • State v. Spradling
    • United States
    • Missouri Court of Appeals
    • September 15, 2021
    ...entire voir dire examination, rather than a single response. State v. McFadden , 369 S.W.3d 727, 738 (Mo. banc 2012) ; State v. Savage , 609 S.W.3d 71, 83 (Mo. App. 2020) ; State v. Grondman , 190 S.W.3d 496, 498 (Mo. App. 2006). Whether bias or prejudice exists is a finding of fact. State ......
  • State v. Winters
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    • Missouri Court of Appeals
    • March 30, 2021
    ...on appeal challenges the trial court's sentencing decision, which we would normally review for abuse of discretion. State v. Savage , 609 S.W.3d 71, 87 (Mo. App. W.D. 2020). However, Winters recognizes that his claims of error may not have been properly preserved for our review, subjecting ......
  • State v. Bertrand
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    • Missouri Court of Appeals
    • October 27, 2020
    ...– testimonial, by affidavit, or otherwise – to establish that she is unable to pay the court costs. See State v. Savage , No. WD82413, 609 S.W.3d 71, 90–91 (Mo. App. W.D. Sept. 29, 2020) (indicating a hearing must be held at which the defendant must present such evidence establishing inabil......
  • State v. Russell
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    • Missouri Court of Appeals
    • December 13, 2022
    ...a challenge for cause absent a clear abuse of discretion and a real probability of injury to the complaining party." State v. Savage , 609 S.W.3d 71, 83 (Mo. App. W.D. 2020) (internal quotation marks omitted). "Because the trial court is in a better position to determine a venireman's abili......

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