State v. Williams
| Decision Date | 04 April 2000 |
| Citation | 18 S.W.3d 461 |
| Parties | (Mo.App. E.D. 2000) . State of Missouri, Respondent, v. Lewis Williams, Appellant. Case Number: ED76204 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of the City of St. Louis, Hon. Anna C. Forder
Counsel for Appellant: Douglas R. Hoff
Counsel for Respondent: John M. Morris, III, and Susan K. Glass
Opinion Summary: Lewis Williams appeals from his conviction by a jury of first degree murder, first degree assault, and three counts of armed criminal action, for which Williams was sentenced to life imprisonment without parole for murder, life imprisonment for the corresponding armed criminal action count, and fifteen years' imprisonment for each of the remaining counts, all sentences to be served concurrently.
AFFIRMED IN PART AND REMANDED IN PART WITH DIRECTIONS.
Division Two holds: (1) The trial court did not plainly err in its comments to Williams, and Williams failed to show manifest injustice. (2) The trial court did not plainly err in overruling an objection and permitting the prosecutor to cross-examine Williams about his involvement in an unrelated shooting as such evidence was used to show motive. (3) The variance between the information and jury instruction was not fatal in this case. The case is remanded for the entry of an order nunc pro tunc to reflect that Williams was convicted of one count of the class A felony of murder in the first degree, two counts of the class B felony of assault in the first degree, and three counts of the unclassified felony of armed criminal action.
Opinion Vote: AFFIRMED IN PART AND REMANDED IN PART WITH DIRECTIONS. Crane, P.J., and Sullivan, J, concur.
Lewis Williams (Williams) appeals from the judgment upon his conviction by a jury of one count of murder in the first degree, Section 565.020, RSMo 19941; two counts of assault in the first degree, Section 565.050; and three counts of armed criminal action, Section 571.015, for which Williams was sentenced to life imprisonment without the possibility of parole for murder, life imprisonment for the corresponding armed criminal action count, and fifteen years' imprisonment for each of the remaining counts, all sentences to be served concurrently. Williams claims the trial court (1) plainly erred in repeatedly asking Williams in the presence of the jury if he wanted to testify because this questioning resulted in manifest injustice, (2) plainly erred in overruling an objection and permitting the prosecutor to cross-examine Williams about his involvement in an unrelated shooting because this questioning resulted in manifest injustice, and (3) erred in denying Williams' motion for judgment of acquittal at the close of the entire case. We affirm in part and remand in part with directions.
We view the facts in the light most favorable to the jury verdict. On March 28, 1993, five shots were fired into the home of Lucille Johnson, Williams' mother, which was located in the Bluemeyer Housing Project. Williams was not home when this happened. He learned of the shooting when he returned home later that day. Shortly after the shooting, several people were playing basketball in the parking lot of the Bluemeyer Housing Project. A van pulled up to the lot and Williams and Earnest Black began firing shots at the people playing basketball. One shot hit and killed John Brown and another hit Walter Russell, an eleven-year-old boy, in the leg. The van then drove away from the scene.
Three St. Louis Housing Authority officers, Darryl Ewing, Gregory Taylor, and Joseph Simmons, pursued the van. The van stopped and three men, including Williams and Black, exited the van and started shooting at the officers.
Williams was later arrested and brought to the police station to participate in a lineup. While preparing for the lineup, Carl Hoyt, a civilian employee of the prisoner processing division, heard Williams tell three men that he had been involved in a driveby shooting in which an eleven-year-old boy had been shot.
At trial, Williams initially declined to testify in his own behalf. He did present the testimony of three witnesses. The State presented three rebuttal witnesses, one of whom, Patrick Brown, testified that he saw Williams and Black firing shots from the van. Williams then took the stand and testified in his own behalf. He denied having any involvement in the shooting. The jury found Williams guilty as charged.
In his first point, Williams claims the trial court plainly erred in repeatedly asking him in the presence of the jury if he wanted to testify because this questioning resulted in manifest injustice. Williams argues the questioning encouraged the jury to draw an adverse inference from his initial refusal to testify in his own defense and constituted a challenge to Williams to testify. Specifically, he complains of the following exchange:
MS. JOHNSON [defense counsel]: At this time, the defense rests.
Williams concedes that he did not object to this exchange at trial. As such, this claim is not properly preserved for appeal, and the only review here can be for plain error. Plain error review, however, should be used sparingly and should not be used to justify the review of every point that has not properly been preserved. State v. Fairow, 991 S.W.2d 712, 715 (Mo. App. E.D. 1999). A claim should be reviewed for plain error only where it facially establishes substantial grounds for believing that manifest injustice or a miscarriage of justice has resulted. Id. If the court exercises its discretion and reviews for plain error, the appellant bears the burden of demonstrating not only that the trial court erred but that the error so substantially impacted upon his rights that manifest injustice or a miscarriage of justice will result if the error is left uncorrected. State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc 1989). "Relief under plain error, therefore, requires that appellant go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his substantial rights." Id.
Williams correctly notes that direct references to a defendant's right to testify or failure to do so by a prosecutor or trial court are generally prohibited. State v. Futo, 990 S.W.2d 7, 14 (Mo. App. E.D. 1999). This is because a criminal defendant has the right not to testify. Id.
Williams contends the trial court's questioning constituted an attempt to bring his reluctance to testify before the jury and thus caused the jury to draw an adverse inference therefrom. Williams specifically argues the following exchange, which occurred outside of the hearing of the jury, rendered the trial court aware of his reluctance to testify:
JOHNSON [defense counsel]: At this time, I don't know what to do. He is not taking the stand, but we want to bring in Patrick Brown.
WARREN [the prosecutor]: We gave the only phone number we had to Ms. Johnson last night and we advised her of the same number and that's the only number they have.
There is no merit to this claim. Although this exchange may have made the trial court aware that Williams would not be testifying until after Patrick Brown did so, there is no evidence that such knowledge rendered the trial court's later questioning of Williams a deliberate attempt to bring his reluctance to testify before the jury. The trial court simply asked Williams if he wished to testify only in response to his outburst. Williams has therefore failed to point to anything in the record which establishes that he was prejudiced by the trial court's comments.
Moreover, this court has recently held that prejudice and reversible error cannot automatically be presumed whenever a reference to a defendant's right to testify or failure to do so is made. Futo, 990...
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