State v. Williams

• Decision Date: 01 April 2014
• Docket Number: No. ED 99841.,ED 99841.
• Citation: 427 S.W.3d 259
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Belvin L. WILLIAMS, Jr., Defendant/Appellant.
• Court: Missouri Court of Appeals

427 S.W.3d 259

STATE of Missouri, Plaintiff/Respondent,
v.
Belvin L. WILLIAMS, Jr., Defendant/Appellant.

No. ED 99841.

Missouri Court of Appeals,
Eastern District,
Division Five.

April 1, 2014.

[427 S.W.3d 260]

Daniel N. McPherson, Jefferson City, MO, for plaintiff/respondent.

Timothy J. Forneris, St. Louis, MO, for defendant/appellant.

SHERRI B. SULLIVAN, J.
Introduction

Belvin L. Williams, Jr. (Appellant) appeals from the trial court's judgment convicting him of first-degree assault, first-degree robbery and two counts of armed criminal action. We affirm.

Factual and Procedural Background

The State charged Appellant with one count of first-degree assault, one count of first-degree robbery and two counts of armed criminal action. The evidence presented at trial is as follows.

Around 3:00 p.m. on January 29, 2011, Appellant celebrated his birthday by having dinner with Denise Crenshaw (Crenshaw) and two of his children at the Lumiere buffet. Appellant and Crenshaw have a son together but are no longer a couple. After dinner, Crenshaw dropped the children off at Appellant's mother's house and went home.

Around 10:00 p.m., Crenshaw went out with a group of people including her friend Jennifer ¹ and Jennifer's cousin, Lamont Grady (Grady). Grady parked his car across the street from Crenshaw's house before leaving in Jennifer's car with Jennifer and Crenshaw. After having a few drinks at a bar, they drove to a club in East St. Louis. Grady and Jennifer left Crenshaw and went to another club to get something to eat. Afterward, Jennifer drove Grady back to St. Louis to get his car.

[427 S.W.3d 261]

Jennifer dropped Grady off at his car between 4:00 and 5:00 a.m. Grady's car windows were fogged up, so he sat in his car, letting them defrost. Suddenly, Grady heard a loud bang on the car window. Grady could not see through the frost and his electric window did not work so he opened the car door. A man, later identified as Appellant, put a gun in Grady's face and said something to the effect of “What the f––– are you doing?” Appellant said, “I told you to stop ‘effing’ with my girl,” and shot Grady in the thigh while he was sitting in the car. Appellant ordered Grady out of the car and onto the ground. As he lay on the ground, Appellant hit Grady in the head with the gun, took his wallet and shot him three more times. Grady testified he heard the gun click, as if the gun either misfired or ran out of ammunition.

Grady heard someone yell, “Come on, man, like he's not worth it.” Appellant told Grady not to move and then quickly walked off. Grady then heard tires squealing and exhaust pipes. Grady went back to his car, called 911 and drove off. When he passed the police cars responding to the call, he followed them back to the scene.

Grady testified he did not know Appellant and had never seen him before that night. Later, when discussing the incident with his cousin Jennifer, she told him that Appellant must have been the shooter. Jennifer showed him a photo of Appellant and Grady recognized him as the shooter. Grady relayed this information to police. Grady subsequently identified Appellant as the shooter in a physical lineup.

Appellant testified he finished having dinner with Crenshaw and his children at approximately 6:00 p.m. Appellant then picked up his girlfriend, Lareisha Bostic (Bostic), stopped by his work and returned home. Appellant testified “it was time for me to be in the house at that time. At 7 o'clock it's time to go home.” Appellant testified that a few friends came by his house and that he drank and played cards until 1:00 or 1:30 a.m., before going to bed. Appellant stated he was at home asleep until Bostic woke him around 9:00 or 10:00 a.m. on January 30. Appellant asserted he did not leave the house again until Monday morning, January 31, 2011, when he went to work. Appellant denied being outside Crenshaw's home at 5:00 a.m. on January 30, 2011, stating he was at home at that time.

Appellant testified as follows during direct examination:

Q. Now, [Appellant], you have a criminal record, do you not, sir?

A. Yes, sir.

Q. And at the time you were on parole; is that correct?

A. Yes.

Q. You have been convicted of a felony?

A. Yes.

Q. And you were under supervision of a parole officer, correct?

A. Yes, sir.

Q. And that was one of the reasons you had to be in by a certain time; is that correct?

A. Yes.

Q. And during—on January 29th and 30th, did you comply with your parole officer's directives to be in by a certain time?

A. Yes, sir.

Bostic testified on Appellant's behalf. In January 2011, she and Appellant were living together and she was pregnant with Appellant's child. Bostic testified she knew Appellant was home by 7:00 or 8:00 p.m. on January 29 because “those were the rules for him to be in the house.”

[427 S.W.3d 262]

Bostic stated Appellant's friends came over to play cards that evening and Appellant went to bed around 1:30 a.m. Bostic stated Appellant was asleep in bed when she woke up with morning sickness around 3:00 or 3:30 a.m. and again at 7:00 a.m.

Bostic testified she asked the property management company to fix the phone on January 17, 2011. Bostic stated by January 24, 2011, the phone was not fixed so she made another complaint but they did not fix it. Bostic testified the telephone lines were coming out of the “box” inside the house and were exposed on the outside of the house.

The defense also called Kari Welker (Welker), the acting community manager for the property management company who testified the company's records indicated a complaint was made about the phone system at Bostic's residence on January 17, 2011 and the repairs were completed on January 24, 2011. Welker testified there is no record of any complaint being made about Bostic's phone system after that date.

Over the State's objection, the defense also called Oleatha Warren (Warren), an employee of YourTel America, a company that provides home and cellular phone services. Warren testified the repair records for Bostic's residence indicate that on January 17, 2011, a complaint was made that the customer's phone had no dial tone. The records indicate a repairman went to the property and the problem was resolved. Warren stated another complaint of no dial tone was made on January 22, 2011. Warren's records indicated that the repair was “completed to satisfaction,” meaning it was “back up and running.” Warren stated the records indicated no other repair requests were made between December 2010 and February 2011.

In rebuttal, the State called Marcia Townsend (Townsend), Appellant's parole officer. Townsend testified that beginning on January 19, 2011, Appellant was on an electronic monitoring program which monitored when he entered and exited his residence. Appellant had a mandatory curfew but was allowed to leave to go to work.

Townsend testified the electronic monitoring system reported that Appellant made an “unauthorized leave,” meaning he left his residence outside of his scheduled curfew, at 12:53 a.m. on January 30, 2011. The system then showed an “unauthorized entry” at 5:36 a.m. Townsend testified the records indicate Appellant was not present at home between those times. Townsend testified she called Appellant after receiving a notification that Appellant's location needed to be verified, but no one answered the house phone and Appellant's cell phone was disconnected.

In sur-rebuttal, the defense recalled Bostic who testified that on one occasion between one and two weeks prior to the incident, Townsend called their home phone and stated the electronic monitoring system was showing Appellant had committed an unauthorized leave from the house and asked Bostic where Appellant was. Bostic testified Appellant was standing next to her at the time, that she advised Townsend of such, and that Appellant put Townsend on speaker phone to prove that he was at home. Bostic testified this incident occurred during a time when Bostic was not getting a dial tone on her home phone and this precipitated her complaint about her phone service. Bostic testified she did not receive a phone call on January 30.

The jury found Appellant guilty on all counts. On April 5, 2013, the court sentenced Appellant to four consecutive twenty-year terms of imprisonment. This appeal follows.

[427 S.W.3d 263]

Discussion Point I

In his first point on appeal, Appellant argues the trial court abused its discretion by denying his request to replace a juror, Juror Hilt, with the alternate juror because the trial court's refusal to do so denied Appellant his right to due process and a fair trial by a fair and impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, Sections 10 and 18(a) of the Missouri Constitution, in that the trial court was aware Juror Hilt was seen sleeping during trial, Juror Hilt admitted to nodding off and being very close to dozing off, and Juror Hilt offered out of fairness to be replaced.

On the second day of trial, after all the evidence was adduced and the instructions were read by the court to the jury, defense counsel requested a side bar. At that time, defense counsel stated that Juror Hilt was “substantially nodding off,” counting at least ten occasions when he had “closed his eyes and his head went down and then he stumbled” during testimony. Counsel expressed concern that this “may be a problem when they deliberate.” At that time, the prosecutor stated he had not observed anything. Defense counsel did not make a motion to strike the juror at this point and the proceedings continued.

After closing arguments, defense counsel again raised the issue with the court, stating he saw Juror Hilt sleeping during closing arguments and the juror next to him prod him awake with his elbow. After excusing the rest of the jury for their lunch recess, the court conducted the following examination of Juror Hilt.

THE COURT: I just want to be sure. I noticed a few times that you...