State v. White

• Decision Date: 20 August 2007
• Docket Number: No. 27756.,27756.
• Citation: 230 S.W.3d 375
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jeffrey W. WHITE, Defendant-Appellant.
• Court: Missouri Court of Appeals

230 S.W.3d 375

STATE of Missouri, Plaintiff-Respondent, v. Jeffrey W. WHITE, Defendant-Appellant.

No. 27756.

Missouri Court of Appeals, Southern District, Division One.

August 20, 2007.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Jefferson City, for respondent.

Nancy A. McKerrow, Columbia, for appellant.

NANCY STEFFEN RAHMEYER, Presiding Judge.

Jeffrey W. White ("Appellant") appeals his conviction for statutory rape in the first degree, a violation of section 566.032.¹ He was found guilty in a jury trial and sentenced as a prior offender to a term of twenty years in the custody of the Missouri Department of Corrections. Appellant raises two points on appeal, neither challenges the sufficiency of the evidence. We will address only Appellant's first point, which is a claim of evidentiary error. For the reasons discussed herein, we reverse and remand for a new trial.

Appellant was charged as a prior offender in Crawford County Circuit Court with first-degree statutory rape. The victim, K.M., who was thirteen years old at the time of the incident, claimed Appellant and Harold Helms raped her one evening during a gathering of friends, which took place at the home of Harold Helms. K.M. did not immediately leave the party or disclose the rape at that time, but confided the events to a friend, her sister and her mother approximately seven or eight months later. K.M. testified about the events at trial, but there was conflicting testimony from several witnesses regarding the events of that night. None of the witnesses, including K.M., claimed that anyone was using methamphetamine on the night in question.

During the trial, Appellant offered the testimony of Harold Helms to refute K.M.'s account of the night in question. The prosecutor asked Mr. Helms during cross-examination:

[Prosecutor]: Was [Appellant] drinking?

[Helms]: Yes.

[Prosecutor]: Was he using anything else?

[Helms]: No not to my knowledge.

[Prosecutor]: Was he using specifically methamphetamine?

[Helms]: No.

[Prosecutor]: You sound kind of surprised that I would ask that, are you?

[Helms]: Yes.

[Prosecutor]: Well in fact are you aware that [Appellant] is serving ten years for manufacturing or distributing methamphetamine right now.

[Helms]: No I wasn't aware of that. I know nothing about [Appellant].

After Mr. Helms answered, Appellant's counsel objected and requested a sidebar during which the following exchange occurred:

[Defense]: I want to know what the hell that was about.

[Prosecutor]: He said he wasn't using, acted surprised, I asked him, he said he was surprised, so I have a right to cross[-]examine.

Court: You have a right to cross[-]examine him.

[Defense]: You asked him about methamphetamine, there was nothing about methamphetamine in this deal, and he didn't talk about the character of this guy, he said he never knew him.

[Prosecutor]: I asked him if he was using. He acted surprised when I asked that. I asked him if he was using meth.

. . . .

[Defense]: And he said no, not to his knowledge.

[Prosecutor]: And then he acted surprised and I asked him if he was surprised that I asked that, and he said yes, I wanted to know if he knew that. I'm entitled to ask that on cross.

[Defense]: I don't think he is but that's alright.

Court: Proceed.

When the prosecutor later cross-examined another defense witness, Michael Bocardo, the following exchange occurred:

[Prosecutor]: Was [Appellant] using any methamphetamine?

[Bocardo]: No.

[Prosecutor]: Does he typically use methamphetamine?

[Bocardo]: I don't think so.

[Prosecutor]: Would you know?

[Bocardo]: No.

[Prosecutor]: You['re] his friend aren't you?

[Defense]: Your Honor I am going to object again. May we approach?

Later, during the cross-examination of another defense witness, Jamie (Counts) Davis, the prosecutor conducted a similar line of questioning:

[Prosecutor]: You and [Appellant] were friends weren't you?

[Davis]: Yes.

[Prosecutor]: Was he using methamphetamine that night?

[Davis]: I don't know. I don't believe so.

[Prosecutor]: Could he have been?

[Davis]: I don't believe so.

[Prosecutor]: You don't believe so, why not?

[Defense]: Objection[.] Answered.

The court overruled both of defense counsel's objections.

In his first point, Appellant claims that the trial court erred by allowing the prosecutor to ask the witnesses about Appellant's drug use and incarceration. Appellant claims that the trial court's failure to sustain the objections Appellant made or to rebuke the prosecutor, or to give a curative instruction, violated Appellant's "right to due process, to be tried only for the crime for which he was charged, and to a fair trial before a fair and impartial jury."

Ordinarily, "`[w]e 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. Johnson, 161 S.W.3d 920, 924 (Mo.App. S.D.2005) (quoting State v. Dunn, 21 S.W.3d 77, 85 (Mo. App. S.D.2000)). It is clear that a party must make a timely objection to preserve an issue for appellate review. State v. Dale, 128 S.W.3d 180, 182 (Mo.App. S.D. 2004). Whether Appellant properly preserved his objection to the initial comments of the prosecutor is an issue we need not decide. The parties have analyzed the comments under a plain error standard of review and under these circumstances, this Court may review for plain error.

We will conduct such a review only if the error affects a substantial right that results in manifest injustice or a miscarriage of justice. State v. Smith, 979 S.W.2d 215, 217 (Mo.App. S.D.1998). Plain error review should be "used sparingly and may not be used to justify a review of every point that has not been otherwise preserved for appellate review." State v. Roberts, 948 S.W.2d 577, 592 (Mo. banc 1997). It is the defendant who bears the burden of demonstrating a manifest injustice. State v. Tokar, 918 S.W.2d 753, 769-770 (Mo. banc 1996).

Evidence of other crimes, when not properly related to the cause on trial, violates a criminal defendant's right to be tried only for the crime with which he is charged. State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992). The well-established rule is that, generally, proof of the accused's prior convictions is inadmissible, "unless such proof has some legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial." State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-23 (1947). Evidence of other crimes may be admitted if it tends to establish motive, intent, the absence of mistake or accident, a common plan or scheme embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, the identity of the person charged with the commission of the crime on trial, a signature modus operandi, or a continuation of a sequence of events that assist in painting a coherent picture of the crime. Johnson, 161 S.W.3d at 924-25. Evidence of other crimes is admissible only if its probative value outweighs its prejudicial effect. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993).

This principle barring the admission of prior convictions is meant to prevent juries from convicting the accused simply because he is perceived to be a "bad or evil man." State v. Davis, 211 S.W.3d 86, 87 (Mo. banc 2006). Evidence of other crimes is so highly prejudicial to the accused that it should be received only when there is a "strict necessity," State v. Collins, 669 S.W.2d 933, 936 (Mo. banc 1984), and only after it is subject to "`rigid scrutiny.'" Davis, 211 S.W.3d at 88 (quoting Sladek, 835 S.W.2d at 311).

The fact that Appellant was serving a ten-year prison sentence for methamphetamine distribution at the time of trial had no legitimate tendency to establish his guilt on the first-degree statutory rape charge. Furthermore, Appellant did not put his character in issue as he did not testify nor did he call Mr. Helms, Mr. Bocardo, or Ms. Davis as character witnesses. See State v. Brooks, 675 S.W.2d 53, 58 (Mo.App. S.D.1984) (stating that a prosecutor may not attack defendant's character when it was not put into issue by the accused). Though the scope and extent of cross-examination in criminal cases rests largely in the discretion of the trial judge, State v. Gardner, 8 S.W.3d 66, 72 (Mo. banc 1999), evidence of other crimes, if erroneously admitted, is presumed to be prejudicial. Brooks, 675 S.W.2d at 59. Admitting evidence of Appellant's drug conviction was highly prejudicial and erroneously admitted.

Appellant contends the prejudice is evident by the repeated references to methamphetamine even though no one, not even K.M., ever testified that methamphetamine was used and the additional inappropriate questions of the prosecutor deprived Appellant of a fair trial. In reviewing the transcript, the prejudice of the error is apparent as the prosecutor pushed the limits of appropriate cross-examination during this trial.

In earlier testimony, when the prosecutor asked how long Mr. Helms spoke with defense counsel, Mr. Helms responded "[m]aybe a minute or two." The prosecutor then challenged Mr. Helms, asking, "well actually wasn't he out there talking to the witnesses for more like forty minutes?" The prosecutor again implied that defense counsel coached Mr. Bocardo during the following exchange:

[Prosecutor]: Did [defense counsel] talk to you about what had already been testified to and what your testimony would be?

[Bocardo]: Yes.

[Prosecutor]: You understand that he's not supposed to talk to you about what has already been testified to? You understand that? But he did didn't he?

[Bocardo]: Yeah.

Defense counsel objected and the following sidebar occurred:

[Defense]: This is irrelevant and immaterial. I did not disclose anything about the testimony to anybody. I told him the kind of questions I was...