State v. Whittier

• Decision Date: 01 October 2019
• Docket Number: No. ED 107356,ED 107356
• Citation: 591 S.W.3d 19
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Victor C. WHITTIER, Defendant/Appellant.
• Court: Missouri Court of Appeals

591 S.W.3d 19

STATE of Missouri, Plaintiff/Respondent,

v.Victor C. WHITTIER, Defendant/Appellant.

No. ED 107356

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: October 1, 2019

Motion for Rehearing and/or Transfer Denied November 4, 2019

Christopher R. Wray, P.O. Box 899, Jefferson City, MO 65102, For Plaintiff/Respondent.

Lisa M. Stroup, 1010 Market Street, Suite 1100, St. Louis, MO 63101, For Defendant/Appellant.

SHERRI B. SULLIVAN, J.

Introduction

Victor C. Whittier (Appellant) appeals from the trial court’s judgment entered after a jury trial convicting him of first-degree murder. We affirm.

Facts and Background

Appellant was convicted of murdering his estranged girlfriend (Victim) by shooting her from outside of her window at night. Victim was in her apartment she shared with her younger brother, Reggie Jackson (Reggie), who was 13 years old at the time of his sister’s shooting. On the evening Victim was shot, Reggie was in the living room playing video games. Reggie testified he heard Appellant yell "F--- you" followed by gunshots. Reggie testified he was familiar with the sound of gunshots in their neighborhood, and usually when he heard them his sister would yell for him to get down. That night, Reggie did not hear his sister yell, so he went to her room to check on her. Reggie entered his sister’s room and saw blood everywhere, and then ran from their apartment to a neighbor’s house.

Emergency services responded, finding Victim dead at the scene. She had been shot four times from outside the apartment; it was not clear how many shots had been fired in total.

Police interviewed Reggie at the scene. Reggie recounted what he had observed. He told police Victim had a restraining order against Appellant, who was the individual he heard yell before Victim was shot.

Police accessed security camera footage from the apartment complex. The footage depicted a male subject pacing around the complex shortly before the shooting. The subject was wearing a dark shirt and jeans with distinctive tearing and bleach marks. The shooting itself was not shown, but the individual stalked the area outside of Victim’s window sometime before the shooting, and then suddenly ran away.

Investigators spoke with a neighbor who had witnessed an individual walking around the apartment complex that night. The neighbor recognized the individual as a man who been at the complex on numerous occasions, and who drove a noisy car with engine troubles. While dating Victim, Appellant had been to the apartment complex numerous times. At trial, Reggie testified about Appellant’s battered car with noisy engine troubles.

Police obtained the restraining order Victim had recently obtained against Appellant from Victim’s apartment. Investigation led police to a residence in St. Louis where Appellant had been staying. A vehicle connected with Appellant was located outside the residence. Inside the residence police found a box containing Appellant’s belongings, including his driver’s license. In the closet of a bedroom occupied by another individual, police found a .38 caliber revolver with five spent shell casings. An examination of the revolver could not conclusively determine whether the bullets that killed Victim were fired from it, nor could fingerprints be identified. However, examiners were able to conclude the revolver was the same caliber as the murder weapon. Examiners also concluded the revolver had the same eight-right barrel rifling that would produce the same type of lands and grooves as were found on the slugs fired into Victim’s apartment. Appellant was arrested wearing clothes similar to the subject depicted in the surveillance footage.

Additional facts will be adduced as necessary.

Points on Appeal

Appellant brings three points in this appeal. Point I claims the trial court erred by excluding evidence of an alternative suspect. Point II claims the trial court erred by admitting into evidence the security camera footage from the apartment without a proper foundation. Point III claims the trial court erred by admitting into evidence the revolver found in the closet at the residence where Appellant was staying.

Point I

At trial, Appellant sought to introduce evidence that Nelson Hall, Jr. (Hall), an individual Victim had dated before Appellant, was the actual shooter. The State of Missouri (State) filed a motion in limine to exclude such evidence. At a pretrial hearing on the State’s motion in limine, Appellant told the trial court he wished to introduce evidence of a number of violent incidents between Victim and Hall, including one incident where Hall brandished a gun and punched a hole in Victim’s wall. Appellant also stated he wished to elicit testimony from Reggie that Hall continued to appear at Victim’s and his apartment after Hall and Victim broke up, including one instance where Reggie saw Hall lingering outside their window. The State argued there was no evidence placing Hall at the scene of the shooting that night, and all the other evidence was thus inadmissible. When the trial court asked whether Appellant had any evidence directly connecting Hall to the shooting, Appellant stated he did not. The trial court ruled evidence regarding Hall as an alternative suspect was inadmissible.

At the conclusion of Reggie’s testimony, Appellant made an offer of proof consisting of testimony from Reggie regarding Hall. At the end of the offer of proof, Appellant asked Reggie whether the voice he heard yell "F--- you" the night his sister was shot could have been Hall’s, and Reggie replied, "Maybe."

Standard of Review

"The trial court is vested with broad discretion to exclude or admit evidence at trial." State v. Wright, 551 S.W.3d 608, 616 (Mo. App. E.D. 2018), citing State v. Bowman, 337 S.W.3d 679, 686 (Mo. banc 2011). "We review the trial court’s evidentiary rulings for an abuse of that broad discretion." Id. An abuse of discretion occurs when the trial court’s decision is so against the logic of the circumstances then before it, or so unreasonable and arbitrary, that it shocks one’s sense of justice and indicates a lack of careful consideration. State v. Shegog, 521 S.W.3d 628, 633 (Mo. App. W.D. 2017). We reverse on such a basis only when an appellant establishes both error and resulting prejudice. Id.

Discussion

Appellant claims the evidence he offered to the trial court was sufficient under Missouri law to entitle him to present to the jury as evidence of an alternative suspect.

"Generally a defendant may introduce evidence tending to show that another person committed the offense, if a proper foundation is laid, unless the probative value of the evidence is substantially outweighed by its costs (such as undue delay, prejudice or confusion)." State v. Barriner, 111 S.W.3d 396, 400 (Mo. banc 2003). Missouri courts have been consistent in holding evidence showing another person had a motive or an opportunity to commit the crime is not admissible to cast a bare suspicion on another person. State v. Speaks, 298 S.W.3d 70, 86 (Mo. App. E.D. 2009), citing State v. Woodworth, 941 S.W.2d 679, 690 (Mo. App. W.D. 1997). Such evidence may be admissible, provided the defendant can satisfy the so-called "direct connection rule." State v. McKay, 459 S.W.3d 450, 458 (Mo. App. E.D. 2014). In order to satisfy this rule, "[t]he evidence must be such proof as directly connects the other person with the corpus delicti, and tends clearly to point out someone besides [the defendant] as the guilty person." Speaks, 298 S.W.3d at 86.

We find the evidence referred to in the State’s motion in limine, and during the pretrial hearing on the same, was properly classified by the trial court as inadmissible evidence of a possible motive and opportunity for Hall to have committed the shooting. Appellant wished to introduce Reggie’s testimony that Hall was violent towards Victim in the past, possessed a gun, and continued to stalk Victim after they broke up. None of this evidence directly connects Hall with the shooting. Appellant conceded as much when he told the trial court he had no evidence placing Hall at Victim’s apartment that night. Without evidence directly connecting Hall to the shooting itself, evidence he was violent towards Victim in the past, threatened her, or was otherwise abusive and hostile is precisely the sort of evidence Missouri courts consider inadmissible. See Helmig v. State, 42 S.W.3d 658, 671-72 (Mo. App. E.D. 2001) ; State v. Stokes, 638 S.W.2d 715, 723 (Mo. banc 1982).

On appeal, Appellant argues his evidence met the "direct connection" threshold because during his offer of proof, when Reggie was asked whether the voice he heard may have been Hall’s, Reggie responded, "Maybe." This "maybe," standing alone, is insufficient to meet Appellant’s burden of producing evidence that "tends clearly to point out someone besides [the defendant] as the guilty person." Speaks, 298 S.W.3d at 82, quoting Woodworth, 941 S.W.2d at 690. Reggie had consistently identified Appellant as the individual whom he heard yell before Victim was shot. Appellant cannot point to any other evidence to show a direct connection between Hall and Victim’s murder. Bereft of any further context, Reggie’s one ambiguous answer during the offer of proof does not clearly connect Hall to the shooting, and can at most serve to cast on him bare suspicion.

Appellant argues this case is similar to State v. McKay, where this Court reversed the trial court based on its exclusion of several substantial pieces of evidence that directly connected an alternative suspect to the commission of the offense. 459 S.W.3d at 459-60. We find this case bears a stronger resemblance to State v. Bowens, 550 S.W.3d 84 (Mo. App. E.D. 2018). There, the appellant also attempted to invoke McKay, arguing the trial court’s exclusion of evidence of several other robberies committed by an individual wearing the same Chicago Bulls cap worn by the appellant during the commission of his offense was error....