State v. White

• Decision Date: 17 April 2007
• Docket Number: No. ED 87951.,ED 87951.
• Citation: 247 S.W.3d 557
• Parties: STATE of Missouri, Respondent, v. Daniel WHITE, Appellant.
• Court: Missouri Court of Appeals

247 S.W.3d 557

STATE of Missouri, Respondent, v. Daniel WHITE, Appellant.

No. ED 87951.

Missouri Court of Appeals, Eastern District, Division One.

April 17, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 7, 2007.

Timothy Forneris, St. Louis, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Jefferson City, MO, for respondent.

Before CLIFFORD H. AHRENS, P.J., MARY K. HOFF, J., and NAJNNETJTE A. BAKER, J.

PER CURIAM.

Introduction

Daniel White ("Defendant") appeals from a conviction for knowingly exposing another person to HIV.¹ He claims three points on appeal. First, Defendant claims the trial court plainly erred in submitting Jury Instructions Five and Six patterned after MAI-CR 332.80. Second, Defendant alleges that the trial court plainly erred in allowing the prosecutor to improperly argue that the jurors imagine what it was like for a nineteen year old woman to find out she was HIV positive and had been exposed unknowingly by a man she loved. Third, Defendant contends that the trial court plainly erred in allowing the prosecutor to elicit Defendant's testimony during cross-examination about the range of punishment he faced on his prior convictions had he not pled guilty. We find no error and affirm.

Factual and Procedural Background

Defendant was convicted in a jury trial of one count of knowingly exposing another to HIV under Section 191.677.² Defendant met Isia Douglas ("Douglas") in June 2002, after his release from prison. They became sexually involved during that summer. They used condoms sometimes but not always. At the end of July 2002, Douglas was present when Defendant argued with his former girlfriend, Paulette Adams ("Adams"). Adams told Defendant that she had AIDS and mentioned that they were sexually intimate just days earlier. After hearing this argument, Douglas asked Defendant if he had HIV but he told her he did not.

Douglas and Defendant broke up in August 2002. After their break up, Douglas had sex with three other partners, both protected and unprotected. In December 2002, Douglas found out that she was HIV positive, or infected with the HIV virus. Douglas informed Defendant and told him he should get tested.

In January 2003, Douglas met with Detective Brenda Turner ("Detective Turner") in the sex crimes unit of the St. Louis City Police Department. Douglas told Detective Turner that she had tested positive for HIV and gave Defendant's name as the individual who had likely exposed her to the virus. Detective Turner investigated and determined that Defendant had tested positive for HIV as of 1997.

Standard of Review for Plain Error

Rule 30.20³ provides, in pertinent part, that plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or a miscarriage of justice has resulted. The plain error rule should be used sparingly and does not justify a review of every alleged trial error that has not been properly preserved for appellate review. State v. Barnaby, 91 S.W.3d 221, 224 (Mo.App. W.D. 2002). In determining whether to exercise its discretion to provide plain error review, the appellate court looks to determine whether on the face of the appellant's claim substantial grounds exist for believing that the trial court committed a "plain" error, which resulted in manifest injustice or a miscarriage of justice. Id. at 224-225. "Plain" error for purposes of Rule 30.20 is error that is evident, obvious and clear. Id. at 225.

Rule 30.20 is no panacea which a criminal defendant can use to obtain appellate review of any alleged error that is unpreserved. State v. Campbell, 122 S.W.3d 736, 739 (Mo.App. S.D.2004). A request for plain error review triggers the commencement of a two-step analysis by an appellate court. Id. at 740. The first step of this analysis is to determine whether the asserted claim of plain error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. Id. If facially substantial grounds are found to exist, the appellate court should then move to the second step of this analysis and engage in plain error review to determine whether manifest injustice or a miscarriage of justice has actually occurred. Id. If facially substantial grounds are not found to exist, the appellate court should decline to exercise its discretion to review the claim of plain error pursuant to Rule 30.20. Id.

Jury Instructions

In his first point, Defendant claims that the trial court plainly erred in submitting Jury Instructions Five and Six to the jury. Specifically, he alleges that the instructions shifted the burden of proof from the State to Defendant because the instructions relied on Section 191.677. Defendant contends that Section 191.677 is unconstitutional.

Section 191.677 reads, in relevant part:

1. It shall be unlawful for any individual knowingly infected with HIV to:

(2) Act in a reckless manner by exposing another person to HIV without the knowledge and consent of that person to be exposed to HIV,

(a) Through contact with blood, semen or vaginal fluid in the course of oral, anal or vaginal sexual intercourse; or

(b)By the sharing of needles; or

...

Evidence that a person has acted recklessly in creating a risk of infecting another individual with HIV shall include, but is not limited to, the following:

a. The HIV-infected person knew of such infection before engaging in sexual activity with another person, sharing needles with another person, and such other person is unaware of the HIV-infected person's condition or does not consent to contact with blood, semen or vaginal fluid in the course of sexual activity, or by the sharing of needles ...

2. Violation of the provisions of subsection 1 of this section is a class D felony.

Since we are reviewing under the plain error standard, we must first determine whether there are facially substantial grounds to believe that a manifest injustice or miscarriage of justice has occurred. During the trial, Douglas testified that Defendant did not inform her that he was infected with HIV before they engaged in consensual sexual intercourse. She also testified that Defendant denied having HIV when she asked him about it on more than one occasion during their brief relationship. Defendant testified that he did inform Douglas that he was HIV positive before they engaged in sexual intercourse.

Detective Richard Noble ("Detective Noble"), a detective with the St. Louis Metropolitan Police Department Sex Crimes Unit, testified that he took Defendant into custody on October 28, 2003 in connection with the crime. After advising Defendant of his Miranda⁴ rights twice, Detective Noble questioned Defendant about his sexual activities with Douglas. Detective Noble testified that Defendant gave a statement "that prior to engaging in any sort of sexual relationship with [Douglas] he told her of his HIV status and she informed him that she was okay with that as long as when they had sex he wore a condom."

When Detective Noble asked Defendant why Douglas would have filed the complaint against him if she knew of Defendant's HIV status, Defendant brought up the argument with Adams at which Douglas was present. Defendant told Detective Noble that after the argument, Douglas asked him about his HIV status and he confirmed that he was positive for the virus. Detective Noble then testified that he asked Defendant why he would tell Douglas of his HIV positive status after the argument with Adams if Defendant had previously told her before they engaged in sexual intercourse. At that point Defendant asked for a lawyer and the questioning stopped.

In order to find Defendant guilty, the jury would have to believe: 1) that he knew he was infected with HIV before he engaged in sexual relations with Douglas; 2) that he did not inform Douglas that he was infected with HIV before engaging in sexual intercourse with her and 3) that as a result, Douglas was exposed to HIV without her consent. See Section 191.677. The credibility of each of the witnesses is a question of fact for the jury. Even if the jury instruction on the use of condoms was not given to the jury, there was sufficient evidence for it to find Defendant guilty of the crime of knowingly exposing another to HIV. Therefore, we do not find facially substantial grounds to believe that a manifest injustice or miscarriage of justice has occurred and we decline Defendant's request for plain error review on this point.

Closing Argument

In his second point, Defendant alleges that the trial court plainly erred in allowing the prosecutor to improperly argue to the jurors that they should imagine what it was like for Douglas to find out she was HIV positive and that they should not let the criminal justice system victimize her again. Defendant argues that these statements improperly personalized the prosecutor's argument and had a decisive effect on the jury that rises to manifest injustice and a miscarriage of justice.

The standard of review for alleged error in closing argument depends upon whether defense counsel objects. State v. Shurn, 866 S.W.2d 447, 460 (Mo. banc.1993), cert. denied 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). Where defense counsel objects, appellate courts will reverse the trial court's decision with regard to closing argument only upon a showing of abuse of discretion by the trial court. Id. However, plain error review mandates reversal only if the error results in manifest injustice. Id. Plain error review also requires that the argument have a decisive effect on the jury's determination. Id. Appellate courts of this state rarely grant relief on assertions of plain error as to closing argument ... because, in the absence of objection and request for relief, the trial court's options are narrowed to uninvited interference with summation and a corresponding increase of error by such...