State v. Turner

• Decision Date: 16 January 2008
• Docket Number: No. 27778.,27778.
• Citation: 242 S.W.3d 770
• Parties: STATE of Missouri, Respondent, v. Darrell TURNER, Appellant,
• Court: Missouri Court of Appeals

242 S.W.3d 770

STATE of Missouri, Respondent, v. Darrell TURNER, Appellant,

No. 27778.

Missouri Court of Appeals, Southern District, Division Two.

January 16, 2008.

Laura G. Martin, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joshua A. Corman, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERT S. BARNEY, Presiding Judge.

Darrell Turner ("Appellant") appeals his conviction by a jury of one count of the class A felony of assault in the first degree, a violation of section 565.050; one count of the unclassified felony of armed criminal action, a violation of section 571.015; one count of the class B felony of burglary in the first degree, a violation of section 569.160; and one count of the class D felony of unlawful use of a weapon, a violation of section 571.130.¹ Appellant was sentenced by the trial court as a prior and persistent offender to life in prison on the assault charge; 100 years in prison on the armed criminal action charge; 30 years in prison on the burglary charge; and 7 years in prison for unlawful use of a weapon with the sentences to run consecutively. Appellant alleges two points of trial court error.

Appellant does not challenge the sufficiency of the evidence to support his conviction. Viewing the evidence in the light most favorable to the jury's verdict, State v. Cole, 148 S.W.3d 896, 898 (Mo.App. 2004), the record reveals Victim² became engaged to Michael Young ("Mr. Young") in early 2004 and the engagement was broken off by Victim in November of 2004 due to, among other things, Mr. Young's drug addiction.³

The record further shows that on December 1, 2004, Mr. Young contacted Victim and informed her that he had been "taken" by Boo, his drug supplier, and another man, Stephen Galbreath ("Mr. Galbreath"), who were threatening to hurt him if he was unable to pay them the money he owed. After several urgent phone calls from Mr. Young, Victim agreed to help him. Victim then contacted the police, who aided her in setting up an exchange. Victim took $400.00 and went to Wal-Mart to meet Boo and Mr. Young while the police conducted surveillance. Victim gave the money to Boo and Mr. Young was released.⁴

Several weeks later, on the evening of December 28, 2004, Mr. Galbreath called his girlfriend, Christina Jones ("Ms. Jones"), and asked her to pick him and Appellant up at his house.⁵ Ms. Jones testified that when she picked them up Appellant was wearing dark clothing, had a stocking cap pulled down "real low," and the hood of his black sweatshirt was pulled up and drawn over his face. Mr. Galbreath then directed Ms. Jones to drive to a wooded area, where Appellant got out of the car and walked away. When Ms. Jones asked Mr. Galbreath what they were doing, he told her they were there "to scare some girl...." Mr. Galbreath and Ms. Jones then went to a convenience store; however, Mr. Galbreath repeatedly spoke to someone on his cell phone and Ms. Jones heard him say, "What's going on? What can you see? How's everything going?" Mr. Galbreath then directed Ms. Jones to return to the location where they had dropped off Appellant. When they got back to that area, Mr. Galbreath told Ms. Jones to go up to the door of a certain house and ask if "Tammy Franklin" was home. Ms. Jones did as she was told. The man who answered the door told her Tammy Franklin did not live there, but she might try a different house. While she was inquiring, Ms. Jones noticed a "bigger" woman dressed in a white t-shirt and black pants inside the home. When she returned to her vehicle, a white Acura, Mr. Galbreath asked her if she saw anyone inside the house and again told her to drive to a convenience store. Mr. Galbreath again placed a cell phone call, but started "freaking out" when he was unable to reach the person he was trying to call.

The record also reveals they again returned to the location where they had left Appellant. When Ms. Jones parked her vehicle, Mr. Galbreath produced a silver semi-automatic gun and he then placed another cell phone call. Ms. Jones heard Mr. Galbreath say "You're in. You're in," and then he referred to Victim by name, telling the caller "she's kind of bigger" and wearing a white t-shirt. Mr. Galbreath then discussed with the caller that there were children in the home and then he told the caller to "do them all in." Ms. Jones had just started driving again when she heard gunshots. Mr. Galbreath told her to stop in front of the house that she had approached earlier. It was then that Appellant ran out of the house, jumped in the vehicle, and told her to "[g]o!" Mr. Galbreath asked Appellant what had happened inside the home and Appellant said "two shots to the head. She's dead." Appellant then said "he put [the kids] in a room across from the refrigerator ... and they didn't see anything."

Mr. Galbreath informed Ms. Jones that it was "11:06" and he "need[ed] to be made public." The group went to Gerbes' supermarket and Appellant and Mr. Galbreath went inside.⁶ Thereafter, they went to someone's house where Appellant changed clothes and then they went to a local bar. As they were going into the bar, Ms. Jones heard Appellant and Mr. Galbreath discuss what to do with the gun, which Appellant apparently discarded in a trash bin behind a nearby bar. After playing pool for an hour, Mr. Galbreath paid for four hours of pool and obtained a receipt. Mr. Galbreath and Ms. Jones then spent the night at a local motel. While at the motel, Mr. Galbreath gave his cell phone, which was registered in Ms. Jones's name, back to her and said, "You've had it for at least four days."⁷

On the same evening, Victim was at her home along with her brother, Marcus; her niece, Rachel; and her nephew, Daniel. They were watching a movie when they heard a knock at the door. When Marcus answered the door, a "young," "nervous," white woman asked if "Tammy Franklin" was at home. Marcus told her he did not know anyone by that name, but that she should try the house next door. When he was speaking with the girl he noticed a two-door white vehicle parked in the driveway that looked like an Acura.

After the woman departed, the group returned to watching the movie. At around 10:50 p.m., Marcus left Victim's house and as he was driving away he passed a white car similar to the one he had seen at Victim's home earlier in the evening. A few minutes later Victim's nephew, Daniel, decided he would also leave. When Daniel opened the front door of Victim's home, a black man, wearing a dark hooded sweatshirt with the hood up, pointed a black revolver in his face. The man told Daniel and Victim to get on the floor. Victim immediately knew the situation had something to do with the fact that she had gone to the police when Mr. Young was kidnapped and she felt this man was there to kill her. When the man asked Victim her name, she gave him a different name. The man made Daniel and Rachel move toward the patio doors and lie down. The man called somebody on his cell phone and said, "I don't know if it's her." He asked the person on the phone if the person he was looking for was "a bigger girl" and asked what he should do about children being present. Victim heard the person on the phone say that the man should "kill them all." When the man got off the phone, he said to Victim, "Are you trying to play me ... play games with me?" The man then shot Victim in the head. According to Daniel, Victim screamed and there was a short pause before there was another gunshot.⁸ Daniel waited until he thought the man was gone before he and Rachel ran into the garage and called the police.

When the police arrived on the scene, they found Victim lying in the kitchen floor in a pool of blood with a single gunshot wound to the left frontal area of her head, Victim was flown by helicopter to the University of Missouri-Columbia. Hospital where she remained for over two months. As a result of her injuries, Victim has suffered speech problems, personality changes, and can no longer work as a school teacher.

Appellant did not testify at trial.

At the close of all the evidence, Appellant was found guilty of assault in the first degree, armed criminal action, burglary in the first degree, and unlawful use of a weapon. He was sentenced as previously set out. This appeal followed.

In Appellant's first point relied on he maintains the trial court erred and clearly abused its discretion in overruling his objection and allowing Mr. Young's prior preliminary hearing testimony to be read to the jury when Mr. Young was unavailable for trial. Specifically, Appellant argues "Mr. Young's former testimony was hearsay and was taken in a non-trial proceeding before [Appellant] was provided any discovery, thus failing to provide [Appellant] a full and adequate opportunity for cross-examination."⁹

"A trial court has broad discretion to admit or exclude evidence at trial." State v. Madorie, 156 S.W.3d 351, 355 (Mo. banc 2005). "This standard of review compels the reversal of a trial court's ruling on the admission of evidence only if the court has clearly abused its discretion." Id. "We review trial court decisions regarding the admissibility of evidence `for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.'" State v. Santillan, 1. S.W.3d 572, 579 (Mo.App. 1999) (quoting State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996)). However, "[w]hether a defendant's constitutional rights were violated is a question of law reviewed de novo." State v. Nunnery, 129 S.W.3d 13, 17 (Mo.App.2004).

Mr. Young had previously testified under oath at the preliminary hearing in this matter and at that time was cross-examined "by three different attorneys...."¹⁰ On the second morning of Appellant's trial, Mr. Young was scheduled to testify; however, outside of the jury's presence, the State announced Mr. Young was unavailable to testify. Sergeant Greg Sellers ("Sergeant Sellers"), an...