State v. Schmidt

• Decision Date: 15 June 2021
• Docket Number: No. ED 108959,ED 108959
• Citation: 630 S.W.3d 802
• Parties: STATE of Missouri, Respondent, v. Darin SCHMIDT, Appellant.
• Court: Missouri Court of Appeals

630 S.W.3d 802

STATE of Missouri, Respondent,

v.Darin SCHMIDT, Appellant.

No. ED 108959

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: June 15, 2021

Motion for Rehearing and/or Transfer to Supreme Court July 20, 2021

Application for Transfer Denied October 26, 2021

Garrick F. D. Aplin, P.O. Box 899, Jefferson City, MO 65102, For Respondent.

Stephen P. Ranz, 1010 Market St. Ste 1100, St. Louis, MO 63101, For Appellant.

OPINION

Colleen Dolan, J.

I. Introduction

Darin Schmidt ("Defendant") appeals the judgment entered on his convictions after a jury trial for murder in the first degree and armed criminal action arising from the shooting death of David Bewig, Jr. ("Victim"). On appeal, Defendant contends the trial court plainly erred by (a) admitting Defendant's out-of-court statements that he shot and killed Victim as substantive evidence of guilt without independent proof of the corpus delicti and (b) allowing three of the State's witnesses to testify that they believed Defendant's statements were true. We conclude that the extrajudicial statements were admissible, but it was plain error to allow the witnesses to testify that they believed those statements and thereby impermissibly comment on the ultimate issue of Defendant's guilt. We reverse and remand for a new trial.

II. Procedural and Factual Background

Victim was a music promoter. On December 8, 2016, Victim traveled from his home in Pevely to the City of St. Louis to conduct business. Early the next morning, Victim was found in the driver's seat of his vehicle with two gunshot wounds on the right side of his head, one in the hairline above his right ear and one in his right ear. An autopsy revealed that the fatal wound was the one that entered Victim's head at the hairline above his right ear. Around the other wound in his right ear, there were stippling marks, which occur when a gun is fired at close range. There was no evidence at trial as to which gunshot occurred first or from what distance either shot was fired. In Victim's right hand, there was a small plastic bag containing suspected drugs. There were no guns found in the vehicle.

Ballistics evidence revealed that a .380 caliber weapon had been used in this crime. A gun matching that evidence was eventually found in a stairwell of an apartment building in St. Louis, but it was never traced to any individual. It was determined that all of the fingerprints in the car belonged to Victim. The only DNA match from the swabs taken from the car was to a man Victim was supposed to meet on the night he was killed, according to Victim's family. The police had previously investigated this man's social media account and cell phone records, which revealed no useful information. When he was interviewed by the police, the man said he had been in Victim's car on several occasions--he was a singer who worked with Victim--but did not know anything about the night of the murder. The police testified there was no basis to arrest this person.¹

In December of 2018--two years after his death--Victim's family notified the police that Shawnee Richie and Kyle Ayers had information about the murder. Ayers is Defendant's nephew, and both he and Richie were Victim's friends. Richie and Ayers were interviewed by police, and Defendant was arrested shortly thereafter. Police then interviewed Ayers's mother, Crystal Ayers-Adams, who is Defendant's sister and also knew Victim because of his friendship with her son. At trial, Richie, Ayers, and Ayers-Adams testified about statements Defendant made to them regarding Victim's death.

Richie and Ayers lived together in a trailer in Pevely with their children, and Defendant slept there a couple of nights a week. She testified that Victim had been her best friend. Richie said that one evening in November or December of 2018, she, Ayers, and Defendant were the only ones at home. Richie and Ayers began reminiscing about Victim. Defendant was in another room but could hear them. Richie testified that Defendant "got mad" that she had brought up Victim's name. "His whole demeanor changed. He was fine. Then his actions. He was angry." Richie testified that Defendant got in front of her "and looked at me with anger." She said she asked him what was wrong: "He said, do you want to know why I get so mad that you talk about [Victim]? I said, why. And he said, because I killed him." Richie testified that she was "shocked" and that when she asked him why he did it, Defendant said it was revenge for someone else who owed him money. Richie said Defendant also told her that after he shot Victim, he hid the gun under the passenger-side tire. Richie testified she was looking at Defendant "face to face" while he was making these statements. The State then asked Richie: "When you were looking at [Defendant] and he was telling you he shot and killed [Victim], did you believe he had done that?" She said "yes."

Ayers testified that he too was a good friend of Victim's. Ayers said he and Richie discussed Victim every so often, including a couple of times when Defendant was also at the trailer with them, but Defendant never joined the conversations. Ayers testified that on one occasion in late November or early December 2018, he and Richie were talking about Victim because his birthday was coming up. Ayers testified that Defendant "got mad" and "was pacing back and forth between the kitchen and the living room. He said, do you want to know what happened to [Victim]?" Ayers was "kind of stunned." Ayers testified that Defendant said he shot and killed Victim. The State asked Ayers: "As you're sitting back and you're thinking about that evening when you, [Richie], and [Defendant] were in the living room of your trailer and you watched, you looked at [Defendant] while he said this to you, did you believe he was telling you the truth?" Ayers said "yes."

Ayers-Adams testified that one night in September of 2018, Defendant came to her house and asked her to come outside and talk to him privately. She said Defendant told her that he shot and killed Victim and that it had something to do with drugs stolen from him by a friend of Victim's. Ayers-Adams did not ask any other details, she just wanted him to leave. The State asked Ayers-Adams: "When you were talking to him, seeing his face, watching what he was telling you, did you believe he was telling you the truth?" She said "yes." She was asked this again at the end of her direct examination: "[W]hen you were talking about [Defendant], and he was telling you he shot and killed [Victim], did you believe he was telling you the truth?" She answered "Yes, I feel like he was."

No objection was raised to the admission of Defendant's extrajudicial statements, nor to the witnesses’ testimony that they believed Defendant was telling the truth. Defendant did not testify. He called one witness, Clara Clifton, who is Defendant's and Ayers-Adams's mother, to impeach Ayers-Adams's statement that she believed Defendant. Clifton testified that Ayers-Adams had told her "on a couple occasions she didn't believe [Defendant] did it."

Throughout the first portion of the State's closing argument, the State repeatedly reminded the jury to "focus in on witness credibility" because Defendant's confessions were "the key to this case." The State pointed out that Richie, Ayers, and Ayers-Adams all "said the defendant told them that he shot and killed [Victim]" and the jury had to "consider[ ] whether that's truthful." The State argued that these witnesses had no reason to lie.

Defendant argued to the jury that there was nothing connecting him to the death of Victim "other than the stories of those three people." He argued that it did not make sense that Defendant would confess suddenly two years after the crime and to Victim's friends. Defendant also highlighted Clifton's testimony that Ayers-Adams had told her she did not believe Defendant did it and suggested Ayers-Adams was lying now to protect her son.

In its final argument before deliberations, the State reiterated that the witnesses had no reason to lie. As to Clifton's testimony, the State suggested that Ayers-Adams simply did not want to tell her mother that she believed Defendant did it. The State then pointed out that both Ayers-Adams and Ayers testified under oath that they believed Defendant: "[Y]ou heard what [Ayers-Adams] had to say under oath today. She did believe the defendant did kill [Victim]. You did hear [Ayers] believed the defendant did kill [Victim]." The State's argument concluded by again reminding the jury that the "confessions are key."

The jury found Defendant guilty of murder in the first degree and armed criminal action. He was sentenced to life imprisonment on both counts, to be served concurrently. This appeal follows.

III. Standard of Review

Because none of the errors raised on appeal were preserved, Defendant seeks plain error review under Rule 30.20.² Plain error review under the rule is a two-step process. State v. Ashcraft , 530 S.W.3d 579, 586 (Mo. App. E.D. 2017). First, we decide if the record "facially demonstrates substantial grounds" to believe a manifest injustice or miscarriage of justice has resulted from a plain error, which is an error that is "evident, obvious, and clear." Id. If so, then, second, we consider whether a manifest injustice or miscarriage of justice has actually occurred as a result of that plain error. Id. at 587. "The appellant bears the burden of establishing that the trial court committed an error that was evident, obvious, and clear as well as that such error actually resulted in manifest injustice or miscarriage of justice." Id.

IV. Discussion

In his first three points on appeal, Defendant contends the trial court plainly erred in allowing Richie, Ayers, and Ayers-Adams to opine about the truth of Defendant's statements. In his fourth point on appeal, Defendant claims the trial court plainly erred in admitting the statements themselves. Taking the points out of order, we...