State v. Ward

• Decision Date: 28 November 1989
• Docket Number: 55410,Nos. 53771,s. 53771
• Citation: State v. Ward, 782 S.W.2d 725 (Mo. App. 1989)
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Michael C. WARD, Defendant/Appellant. STATE of Missouri, Defendant/Respondent, v. Michael C. WARD, Plaintiff/Appellant.
• Court: Missouri Court of Appeals

Page 725

782 S.W.2d 725

STATE of Missouri, Plaintiff/Respondent, v. Michael C. WARD, Defendant/Appellant.

STATE of Missouri, Defendant/Respondent, v. Michael C. WARD, Plaintiff/Appellant.

Nos. 53771, 55410.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 28, 1989.

Motion for Rehearing and/or

Transfer to Supreme Court Denied

Jan. 3, 1990.

Application to Transfer Denied Feb. 13, 1990.

Holly G. Simons, Asst. Public Defender, David C. Hemingway, St. Louis, for Michael C. Ward.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for the State.

SATZ, Judge.

Defendant, Michael Ward, was indicted on a charge of acting with Edward Claypool in the First Degree Robbery of Leroy Winston. § 569.020, RSMo 1986. A second count charged defendant with Second Degree Robbery in an unrelated incident. The trial court severed Count II and, then, tried defendant and Claypool in a joint trial. Defendant was convicted and sentenced to a term of twenty years on the first Count. Defendant pleaded guilty to the second Count and was sentenced to a term of fifteen years to run concurrently with the twenty year sentence.

Defendant filed motions for post conviction relief from the sentences imposed against him after his trial and after his guilty plea. These motions were denied. Defendant appeals from the sentence imposed after trial and from the denials of his motions for post conviction relief. We affirm.

Defendant does not contest the sufficiency of the evidence at trial. On Christmas Eve, 1986, around midnight, two men came up behind Leroy Winston as he was locking his car. One put a gun in Mr. Winston's back and the other said, "be still, old man, and you won't get hurt." Mr. Winston glanced back, saw and recognized defendant and Claypool as the two men he had previously seen walking together in his neighborhood. Claypool went through Mr. Winston's pockets and removed his wallet, car keys, and about fifty dollars. Claypool also took Mr. Winston's ring and a wristwatch. The area was well lighted at the time.

The defendant and Claypool then pushed Mr. Winston in the back seat of his car, got in and drove him about ten blocks from his house. Defendant and Claypool then ordered Mr. Winston out of the car, and he walked home. While in the car, Mr. Winston was seated in the back seat next to defendant, and Mr. Winston had approximately ten to fifteen minutes to observe him.

The next morning defendant and Claypool appeared at Mr. Winston's home and returned his car keys. On December 29, Mr. Winston identified defendant and Claypool, in a lineup, as the men who robbed him. In the lineup, Claypool was wearing the watch he had taken from Mr. Winston.

Direct Appeal

Prior to trial, defendant filed a motion to sever his trial from that of Claypool's because, defendant alleged, there was inculpatory evidence admissible against Claypool but inadmissible against him. The motion was denied. On appeal, defendant contends the admission of this evidence violated his right to severance guaranteed by § 545.880 RSMo 1986 and Rule 24.06, and, in turn, violated his right to due process and right to a fair trial. We disagree.

Section 545.880.2 provides that, upon written motion, the court "shall" order severance of co-defendants for trial, if the court finds "the probability of prejudice exists in a joint trial." The statute requires the court to find the probability for prejudice exists if:

....

(2) There is, or may reasonably be expected to be, material and substantial evidence admissible against less than all of the joint defendants;

(3) There exists an out of court statement of a codefendant which makes reference to another of the joint defendants, but is not admissible against that defendant, and if the statement cannot be properly limited so as to eliminate reference to the complaining defendant;

(4) Severance of the joint defendants is necessary to achieve a fair determination of guilt or innocence of any defendant. ¹

Tracking these provisions in his pretrial motion, defendant alleged:

[T]here is evidence admissible against Mr. Claypool, to wit that he returned a wristwatch allegedly belonging to the victim, and at the same time made a statement indicating his involvement in robbery of the victim, which is inadmissible against defendant Ward.

Detective Richard Brogan testified about this objected to evidence both at the hearing on defendant's pre-trial motion and at trial. After the lineup and after Detective Brogan had explained to Claypool his Miranda rights, Claypool made a statement to Brogan which Brogan related at trial in basically the same language Brogan used at the hearing on the pre-trial motion. Brogan testified:

[Prosecutor]: What, if anything, did Mr. Claypool tell you about this matter?

[Brogan]: After I explained to him what occurred and what's happened, he said that he did not want to go to jail and that he would give the man back his stuff. And then he gave me the man's wristwatch off his wrist.

Q: Did you ask him anything about a gun being involved in this matter?

A: I did.

Q: What did he say about that?

A: He said there was a .22 revolver involved, and he does not have the gun.

Section 545.880.2 is primarily designed to protect a defendant from being convicted of a crime in a joint trial on evidence which would be inadmissible against him if he were tried separately. Thus, whether paragraph (2) or (3) of § 545.880.2 requires severance in this case initially turns on whether Claypool's hearsay statements to Detective Brogan, admissible against Claypool as an "admission" exception to the hearsay rule, are also admissible against defendant under another exception to the hearsay rule. The state contends there is another exception: the co-conspirator exception to otherwise objectionable hearsay, even though defendant was charged with the completed crime of robbery and not a conspiracy to commit robbery.

In criminal law, conspiracy and complicity can exist separately. Normally, however, the two go hand-in-hand. Thus, in Missouri, the evidentiary rules governing the admissibility of the statements of one conspirator against another conspirator are also applied to accomplices, even though the latter are not charged with a conspiracy but are charged with the commission of a crime. See, e.g. State v. Pizzella, 723 S.W.2d 384, 388 (Mo. banc 1987). Statements of a co-conspirator made during and in furtherance of the conspiracy are admissible against another conspirator. State v. Frederickson, 739 S.W.2d 708, 711 (Mo. banc 1987). But, statements and acts of a co-conspirator made after the termination of a conspiracy are inadmissible against another conspirator, unless the statement was made for purposes of continuing the conspiracy, i.e. to conceal the conspiracy, to defeat the prosecution. E.g., State v. Smith, 631 S.W.2d 353, 360 (Mo.App.1982); State v. Browner, 587 S.W.2d 948, 955 (Mo.App.1979).

Claypool made his statements to Brogan after the crime was completed. The state contends the statements were, nonetheless, admissible as an attempt to conceal the conspiracy between Claypool and defendant because Claypool did not refer to defendant in these statements.

The state reads too much into Claypool's failure to refer to defendant. Rather than trying to protect defendant by concealing a conspiracy, Claypool, driven by a thief's strongest urge, was simply trying to protect himself by confessing. The only phrase missing from making his statement an express confession was: I robbed Mr. Winston. Therefore, Claypool's straightforward expression of self-protection does not fit within the co-conspirator's exception to the hearsay rule.

However, even though Claypool's statements would be inadmissible against defendant if he had been tried separately, neither paragraph (2) nor (3) of § 545.880.2 required severance in this case.

Paragraph (3) is simply a statutory reflection of the Bruton rule. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), a nontestifying co-defendant's confession naming the other defendant as a participant in the crime was introduced at their joint trial. The court held the introduction of the co-defendant's confession violated the other defendant's right to confrontation guaranteed by the Confrontation Clause of the Sixth Amendment. 391 U.S. at 126, 88 S.Ct. at 1622. As a corollary, there is no Bruton problem if the confession or admission of one defendant does not refer to the other defendant. E.g. United States v. Hicks, 524 F.2d 1001, 1003 (5th Cir.1975), cert. denied 424 U.S. 946, 96 S.Ct. 1417, 47 L.Ed.2d 353 (1976). This corollary is reflected in paragraph (3) which requires severance if, but only if, the co-defendant's out-of-court statement "makes reference" to the other defendant. Here, Claypool's statements made no reference to defendant, and, thus, paragraph (3) did not require severance here.

As to paragraph (2), it requires severance if there is "material and substantial evidence against less than all of the joint defendants." Here, the "evidence" in question is Claypool's out-of-court statements, which are inadmissible against defendant and, thus, "admissible against less than all of the joint defendants." But, paragraph (2) leaves unanswered the question: against whom must the evidence be material and substantial in order to require severance. Clearly, Claypool's statements are "material and substantial" against him. Therefore, if paragraph (2) merely requires the evidence in question be "material and substantial" against one of the joint defendants, it requires severance here. However, we read this paragraph as requiring severance only if the out-of-court statements are material and substantial against the defendant moving for severance.

As noted above, the purpose of the statute is to protect defendants in joint trials from being convicted on evidence that would be inadmissible against them in a...