State v. Smith

Decision Date05 April 2016
Docket NumberNo. ED 102585,ED 102585
Citation491 S.W.3d 286
Parties State of Missouri, Respondent, v. David E. Smith, Appellant.
CourtMissouri Court of Appeals

FOR APPELLANT: Margaret M. Johnston, Woodrail Centre, 1000 West Nifong, Building 7, Suite 100, Columbia, Mo 65203.

FOR RESPONDENT: Chris Koster, Attorney General, Daniel N. McPherson, Asst. Atty. Gen., P.O. Box 899, Jefferson City, MO 65102.

ROBERT M. CLAYTON III, Presiding Judge

David E. Smith (Defendant) appeals the judgment entered upon a jury verdict convicting him of one count of first-degree assault, one count of first-degree robbery, and two counts of armed criminal action. On appeal, Defendant argues the trial court erred in denying his motion for a mistrial and, in the alternative, his motion to continue the trial, after it was discovered during the trial that Bridgeton police had video surveillance footage from the scene of the crimes which was not disclosed to the defense prior to trial. Defendant also claims the trial court erred in denying his motions to dismiss his charges on the grounds his right to a speedy trial had been violated. We affirm.

I. BACKGROUND

On July 1, 2013, Defendant was charged with the above crimes for his alleged involvement in an incident involving Florentino Marquez Tellez (“Victim”). Defendant was tried by a jury on November 3–7, 2014, and he does not challenge the sufficiency of the evidence to support his convictions.

A. Evidence Presented at Defendant's Jury Trial

Viewed in the light most favorable to the verdict, the evidence presented at Defendant's jury trial revealed the following.

On May 10, 2013, Defendant, Shenee Edwards, Lindsay Dames, Kevin Nolfo, and Jake Dwyer were gathered in Room 235 of the Northwest Airport Inn in Bridgeton (“the motel”). After Defendant smoked crack cocaine, he asked Dames if she knew of someone he could rob, and Dames suggested Victim. Dames and Victim were acquaintances, and Dames thought Victim would have substantial cash from getting paid at work that day. In addition, Dames and Victim had already planned to meet up at a nearby Domino's Pizza later that night. Defendant asked Dames if Victim would fight back, and Dames said she did not think he would.

Nolfo and Dwyer were asked if they wanted “in” on the robbery, but they declined. Dames and Edwards then left the motel room to meet Victim. Victim, who lived close by, walked from his home to the Domino's, where he met Dames and Edwards. They ordered food and Victim paid for it. Subsequently, Dames asked Victim to accompany her and Edwards back to the motel, and Victim agreed.

Dames contacted Dwyer and told him that he and Nolfo needed to get out of the motel room since they did not want to participate in the robbery. Dwyer then sent Dames a text message telling her Defendant would be hiding in the bathroom.

Thereafter, Dames, Edwards, and Victim arrived at the motel room, and Dames and Edwards left Victim alone on the couch in the living room.1 Defendant subsequently left the bathroom and charged toward Victim, while holding a knife in his hand and yelling curse words. Defendant then hit Victim in the face with his elbow and stabbed Victim near his heart. Victim, who was bleeding heavily, dropped his cell phone and tried to grab it, but Defendant kicked it away. Defendant then said to Victim, [G]ive me the money, mother [expletive],” while continuing to hold the knife. Victim removed about $130 in cash from his pocket and threw it on the carpet. Defendant then took Victim's money and cell phone and ran out of the room. Dames followed Defendant, and they both drove away in Defendant's black Chevrolet truck.

As they were driving away from the motel, Dames asked Defendant, “What the [expletive]?” referring to the fact that hurting Victim had not been part of the plan. Defendant, who was still holding a knife, told Dames to shut up or he would slit her throat. Defendant then threw the knife out of the passenger window of the truck as he was driving through St. Ann. He later parked in a residential area of Breckenridge Hills and told Dames to walk down the street with him. Defendant kicked Victim's cell phone into a sewer, and he and Dames went to a nearby house, where Defendant knocked on the door and asked the occupant if he could have something to clean himself up with in exchange for cash. After the occupant brought Defendant a towel, Dames sent a text message to Edwards, asking to be picked up. Edwards, Nolfo, and Dwyer arrived in Dwyer's vehicle, and Dames got in. Defendant, who had shoulder-length hair at the time, told Dames, Edwards, Nolfo, and Dwyer to tell the police the man who stabbed and robbed Victim was “a long-haired biker,” with hair that went down to the middle of his back. Defendant got his hair shaved off the day after the incident.

After Victim was stabbed and robbed, he walked back to the Domino's, where he passed out, and he later underwent surgery. Victim suffered a knife wound to the chest which lacerated the right ventricle of his heart, penetrated his diaphragm, and lacerated his liver. Victim had internal bleeding, and he would have bled to death without medical attention.

Dames was questioned by police about a week after the incident. The police showed Dames multiple still-image photographs taken from one of the motel's video surveillance cameras (“camera eleven”), and she identified herself, Defendant, Edwards, Nolfo, and Dwyer as the individuals shown in the photographs. Dames also later identified Defendant from a photograph array of a total of six men who resembled one another. Dames told the police Defendant had physically assaulted Victim after she brought him to the motel to be robbed, and she also told police where Defendant had disposed of Victim's cell phone.2 Detectives went to that location and recovered the cell phone, in pieces, from the sewer. Prior to and during trial, Victim identified the cell phone as the phone that was taken from him in the motel room.

Victim was shown a still-image photograph taken from camera eleven, and he testified at trial that the man in the photograph looked like the man who stabbed and robbed him. When shown the same still-image photograph at trial, Nolfo, Dwyer, and Defendant's wife identified Defendant as the man in the photograph.

Before trial, Victim viewed a line-up of men including Defendant, and prior to and during trial, Victim identified Defendant as the man in the line-up who stabbed and robbed him. Victim also stated Defendant's hair was longer at the time of the incident than it was at the time of the line-up.

B. Relevant Procedural Posture1. Defendant's Motions to Dismiss, Motion for a Mistrial, and Motion to Continue the Trial

Prior to trial, Defendant's counsel filed motions to dismiss Defendant's charges on the grounds his constitutional and statutory right to a speedy trial had been violated, which the trial court denied. During the trial, Defendant filed a motion for a mistrial and, in the alternative, a motion to continue the trial, after it was discovered during the trial that the Bridgeton police had video surveillance footage from the motel which was not disclosed to the defense prior to trial. The trial court denied both of those motions.3

2. The Jury's Verdict, Defendant's Motion for a New Trial, and the Trial Court's Judgment

After hearing all of the evidence, including that which is set out above in Section I.A., the jury found Defendant guilty of one count of first-degree assault (Count I), one count of first-degree robbery (Count III), and two counts of armed criminal action (Counts II and IV). Defendant filed a motion for a new trial, asserting the trial court erred in denying his motions to dismiss, motion for a mistrial, and his motion to continue the trial. The trial court denied Defendant's motion for a new trial.

Thereafter, the trial court entered a judgment in accordance with the jury's verdict. The court sentenced Defendant as a prior and persistent offender to consecutive terms of life imprisonment for Counts I and II and to concurrent terms of life imprisonment for Counts III and IV, with the sentences for Counts I and II to run concurrently with the sentences for Counts III and IV. Defendant appeals.

II. DISCUSSION

Defendant raises three points on appeal. In his first and second points on appeal, Defendant asserts the trial court erred in denying his motion for a mistrial and, in the alternative, his motion to continue the trial. In his third point on appeal, Defendant contends the trial court erred in denying his motions to dismiss his charges on the grounds his right to a speedy trial had been violated.

A. The Trial Court's Denials of Defendant's Motion for a Mistrial and His Motion for a Continuance

Defendant's first and second points on appeal assert the trial court erred in denying his motion for a mistrial and, in the alternative, his motion to continue the trial, after it was discovered during the trial that Bridgeton police had video surveillance footage from the motel which was not disclosed to the defense prior to trial. Because both of these points involve the same underlying facts, standard of review, and general law, we will address them together.

1. Relevant Facts

On July 10, 2013, defense counsel filed a request for discovery pursuant to Rule 25.03(A)4 requesting, inter alia, [a]ny material or information within the possession or control of the State or its agents which tends to negate the guilt of the defendant as charged, or reduce punishment.” See Rule 25.03(A)(9). Prior to trial, the State disclosed to the defense video surveillance footage from camera eleven at the motel, and this was the only surveillance footage which was given to the defense prior to trial.

Testimony at trial revealed the police showed Dames multiple still-image photographs taken from camera eleven, and she identified...

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    ...oral statements. Rule 25.03 gives the defendant the opportunity to prepare his case before trial and avoid surprise. State v. Smith, 491 S.W.3d 286, 297 (Mo. App. E.D. 2016). While the State must disclose the witnesses it intends to call, there is no obligation to disclose rebuttal witnesse......
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  • Section 21.42 Duty to Disclose
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    ...(reversing a murder conviction for the failure to disclose the entire surveillance video central to the case). But see State v. Smith, 491 S.W.3d 286, 298–302 (Mo. App. E.D. 2016) (though the State failed to disclose exculpatory surveillance videos until the trial commenced, the court found......

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