State v. Wright

• Citation: 383 S.W.3d 1
• Decision Date: 28 August 2012
• Docket Number: No. WD 73441.,WD 73441.
• Parties: STATE of Missouri, Respondent, v. Consuella Renne WRIGHT, Appellant.
• Court: Court of Appeal of Missouri (US)

383 S.W.3d 1

STATE of Missouri, Respondent,

v.Consuella Renne WRIGHT, Appellant.

No. WD 73441.

Missouri Court of Appeals, Western District.

July 24, 2012.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 28, 2012.

Application for Transfer Denied Oct. 30, 2012.

Ruth Sanders, Kansas City, MO, for Appellant.

Laura Elsbury, Jefferson City, MO, for Respondent.

Before JAMES M. SMART, JR., P.J., JAMES EDWARD WELSH, J, and ZEL M. FISCHER, Sp. J.

JAMES EDWARD WELSH, Judge.

Consuella Wright appeals the circuit court's judgment convicting her of first degree robbery and armed criminal action. She asserts three points on appeal. First, she contends that the court erred in entering the first degree robbery judgment after being convicted of receiving stolen property in a previous trial. Wright claims that her subsequent conviction for first degree robbery violated her right to be free from double jeopardy. Second, Wright asserts that the court abused its discretion by admitting a prior recorded statement of a witness. She contends that, because the witness's credibility was not attacked, the prior statement was improper bolstering and therefore inadmissible. Lastly, Wright claims that the court erred in not granting a mistrial when the State played a prior recorded statement without properly redacting drug references pursuant to the court's pretrial order. Wright contends that by not granting a mistrial the court violated her right to due process, to a fair trial, and to be tried only for the crimes with which she was charged. We affirm the circuit court's judgment.

Statement of Facts

On the evening of September 9, 2008, Wright drove her car along with three other individuals, her cousin Brandon Goodwin, Trenae Jones, and Kenny Haley, to a house on Swope Parkway so that Haley could buy drugs. During the drive, the group talked about robbing the drug house. When they arrived, however, they noticed that there were too many people in the house at that time, so they decided to leave and to ask Clint Jones for help in robbing the house. Upon returning to the house with Clint Jones now driving the car, they decided not to rob the house because there were even more people at the house than before.

They then drove around until they eventually ended up at a gas station in Dearborn, Missouri. While Clint Jones got out of the car to pump the gas, Goodwin went inside to pay for it. Clint Jones pulled the car to the front of the gas station to pick up Goodwin. While they waited, they noticed that Goodwin was robbing the place. Some of the people in the car wanted to leave Goodwin, but Wright told them not to leave as Goodwin was her cousin. When Goodwin got in the car, he told Clint Jones to drive off.

Within a few minutes, the police were following them, and a chase ensued. During the chase, Goodwin threw the money into the back of the car and told Wright and Trenae Jones to hide the money. Wright stuffed some money in her bra and also into the back seat of the car. After the high-speed chase ended, the police arrested all five occupants of the car. Upon arrest, Wright admitted that the money in her bra was money from the convenience store. Wright was charged with four felonies—receiving stolen property, tampering with physical evidence, robbery in the first degree, and armed criminal action. After a jury trial, the jury convicted Wright of receiving stolen property, acquitted her of tampering with physical evidence, but failed to reach a verdict on robbery in the first degree and armed criminal action. A mistrial was declared on these two charges, and the State proceeded to a second trial on these charges. Between the first and second trial, the State entered into a plea agreement with Trenae Jones and Clint Jones in exchange for their testimony against Wright and Goodwin. Additionally, Wright moved in limine to prevent the State from submitting evidence of other crimes and bad acts. The court ruled that it would allow the State to present evidence that the group considered an earlier robbery but not evidence that the house they intended to rob was a “wet” house.¹

During the second trial, Clint Jones testified that they had planned to rob a drug house. Wright moved for a mistrial because Clint Jones said drug house. The court denied the request for mistrial but instructed the jury to disregard Clint Jones's statement regarding the drug house.

After Trenae Jones testified, the State moved to admit a videotape of her statement to the police. The court allowed the videotape over the Wright's objection. While the audio in the videotape was partially redacted to remove any references to “wet house,” two references remained because the tape was not properly redacted. The court considered the evidence a violation of the motion in limine but overruled Wright's request for a mistrial. The court offered to instruct the jury to disregard the references, but Wright declined. The jury convicted Wright as an accomplice, with liability based upon evidence that she aided and encouraged Goodwin in the execution and commission of first-degree robbery and armed criminal action. Wright appeals.

Double Jeopardy

In her first point on appeal, Wright claims that she was subjected to double jeopardy by the successive prosecutions for robbery in the first degree after her previous conviction for receiving stolen property. She contends that receiving stolen property is a lesser included offense of first degree robbery. We disagree.

Claims of error concerning the double jeopardy clause are questions of law that are reviewed de novo. State v. Mullenix, 73 S.W.3d 32, 34 (Mo.App.2002). A constitutional claim, such as double jeopardy, “must be raised at the earliest opportunity and preserved at each step of the judicial process.” State v. Sumowski, 794 S.W.2d 643, 647 (Mo. banc 1990). Wright's double jeopardy constitutional claim was not raised until appeal. As a result, that issue was not preserved. Nevertheless, “because the right to be free from double jeopardy is a constitutional right which goes ‘to the very power of the State to bring the defendant in the court to answer the charge brought against him,’ ” an appellate court should grant plain error review in any case where from the face of the record it appears that the court had no power to enter the conviction. State v. Elliott, 987 S.W.2d 418, 421 (Mo.App.1999) (citing Hagan v. State, 836 S.W.2d 459, 461 (Mo. banc 1992)).

Rule 30.20 authorizes this Court to review, in its discretion, “plain errors affecting substantial rights ... when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Our Supreme Court has established a threshold review to determine if a court should exercise its discretion to entertain a Rule 30.20 review of a claimed plain error. First, we determine whether or not the claimed error “facially establishes substantial grounds for believing that ‘manifest injustice or miscarriage of justice resulted[.]’ ” State v. Brown, 902 S.W.2d 278, 284 (Mo. banc), cert. denied,516 U.S. 1031, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995) (quoting Rule 30.20). If not, we should not exercise our discretion to conduct a Rule 30.20 plain error claim review. If, however, we conclude that we have passed this threshold, we may proceed to review the claim under a two-step process pursuant to Rule 30.20. In the first step, we decide whether plain error has, in fact, occurred. State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc), cert. denied,––– U.S. ––––, 130 S.Ct. 144, 175 L.Ed.2d 93 (2009). “All prejudicial error, however, is not plain error, and plain errors are those which are evident, obvious, and clear.” Id. (citations and internal quotations marks omitted). In the absence of evident, obvious, and clear error, we should not proceed further with our plain error review. If, however, we find plain error, we must continue to the second step to consider whether or not a miscarriage of justice or manifest injustice will occur if the error is left uncorrected. Id.

The United States Constitution's Fifth Amendment Double Jeopardy Clause, which is enforceable against the states through the Fourteenth Amendment, provides two distinct protections for criminal defendants: (1) protection from successive prosecutions for the same offense after either acquittal or conviction and (2) protection from multiple punishments for the same offense. U.S. Const. amend. V and XIV. The proper test for determining whether successive prosecutions violate double jeopardy is the same-elements test. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Daws, 311 S.W.3d 806, 808 (Mo. banc 2010). In applying this test to determine whether the offense is a lesser included offense, the court simply determines the elements of the offenses at issue and compares them. State v. Reando, 313 S.W.3d 734, 738 (Mo.App.2010). “If this comparison establishes that they do not each have an element that the other offense lacks, the guarantee against double jeopardy bars the prosecution of the second offense.” Id. (Internal quotations and citations omitted); see also§§ 556.041, 556.046.1(1), RSMo 2000. “If both offenses have elements that the other lacks, the guarantee does not bar the subsequent prosecution.” Id.

Prior to the enactment of section 570.080, RSMo 1977, which is almost identical to the current receiving stolen property statute, the receiving stolen property statute remained mostly unchanged. § 1324, RSMo 1879, § 3553, RSMo 1889, § 4554, RSMo 1909, § 560.270, RSMo 1969. These statutes all began with the phrase “[e]very person who shall buy, or in any way receive.” Id. This phrase was interpreted by the courts as preventing a person from being charged with both stealing (and robbery) and receiving stolen property because the terms used in the statutes denoted a two-party transaction. State v. Walker, 659 S.W.2d 349, 351 (Mo.App.1983); State v. Jackson...