State of Missouri, Plaintiff/Respondent v. Victor C. Whittier ( 2019 )

In the Missouri Court of Appeals
Eastern District
DIVISION THREE
STATE OF MISSOURI, ) No. ED107356
)
Plaintiff/Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
)
VICTOR C. WHITTIER, ) Honorable Thomas C. Clark II
)
Defendant/Appellant. ) Filed: October 1, 2019
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
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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
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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
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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
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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. Id. at 99-100. The
appellant argued the direct connection rule was satisfied by the perpetrators wearing similar hats.
Id. This Court disagreed, holding that, unlike the clear and substantial evidence discussed in
McKay, the hat connection “does not tend to clearly point to [the alternative suspect] as the
guilty person in this case. At most, the evidence only raises a bare suspicion or conjectural
inference that another person committed the crimes....” Id. at 100.
From Bowen’s holding, we take the principle that the direct connection rule cannot be
satisfied on evidence so lacking in probative value it is outweighed by its potential to confuse
and mislead the trier of fact. See also State v. Harding, 528 S.W.3d 362, 377-78 (Mo. App. E.D.
2017) (offered evidence “must establish a clear link between the alleged alternative perpetrator
and a key piece of evidence in the crime”) (emphasis added). Bereft of context, Reggie’s
monosyllabic response during the offer of proof does not meaningfully put at issue whether Hall
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was involved with Victim’s shooting, nor does it justify giving Appellant an unfettered
opportunity to introduce evidence that is otherwise inadmissible. In so holding, we are also
mindful of the substantial evidence of Appellant’s guilt, which includes two witnesses
recognizing his voice and his car, his possession of clothes similar to the clothes worn by the
assailant on security camera, and the fact a weapon of the same type used to kill Victim was
found where Appellant was staying. In light of the record as a whole, we cannot conclude the
exclusion of Reggie’s “maybe” had an outcome determinative effect. Nor did that “maybe”
justify allowing Appellant to dredge up another unfortunate past relationship of Victim’s, and
create a substantial risk the jury would be confused, misled, and unduly prejudiced. See McKay,
459 S.W.3d at 459-60 (showing prejudice requires error to have had reasonable probability of
affecting outcome). Accordingly, Appellant’s first point is denied.
Point II
In his second point, Appellant claims the trial court plainly erred by admitting security
camera footage for which the State failed to lay a proper foundation.
At trial, the State sought to admit the security camera footage obtained from Victim’s
apartment’s surveillance system. The footage depicted the individual that the State argued was
Appellant as he stalked about the apartment’s exterior before pausing outside of Victim’s
window for some time, then suddenly running away.
At trial, the footage was introduced through one of the investigating police officers. The
officer testified he was able to remotely access the apartment complex’s security footage due to
having accessed it for a prior investigation. The officer stated he was familiar with the security
camera system, had used it before, and based on his experience the footage was of above-average
quality. After observing the footage, the officer requested and received a copy. When the State
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sought to admit this footage into evidence, Appellant objected, stating he believed the proper
foundation had not been laid because the officer could not testify as to his personal knowledge of
whether the footage depicted a fair and accurate representation of what occurred. The trial court
overruled Appellant’s objection and the footage was admitted.
Standard of Review
Appellant objected to the introduction of the footage at trial, but did not include the claim
in his motion for new trial. Appellant concedes he has not preserved this issue for appellate
review. Rule 29.11(d).1 Thus, this claim may only be reviewed for plain error.
“Plain error is a two-step process.” State v. Speed, 551 S.W.3d 94, 98 (Mo. App. W.D.
2018), citing State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009).
First, we determine whether the trial court committed evident, obvious and clear
error affecting the defendant’s substantial rights. If the defendant does not get
past the first step, our inquiry ends. If we determine that a plain error occurred,
however, we then must decide whether the error actually resulted in manifest
injustice or a miscarriage of justice.
State v. Smith, 370 S.W.3d 891, 894 (Mo. App. E.D. 2012).
“The trial court is vested with broad discretion to exclude or admit evidence at trial.”
Wright, 551 S.W.3d at 616, citing Bowman, 337 S.W.3d at 686. “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. Shegog, 521 S.W.3d at 633. We reverse on such a basis only when an appellant
establishes both error and resulting prejudice. Id.
1
Mo. R. Crim. P. 2018.
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Discussion
The State argues sufficient foundation was laid for the video under State v. Moyle, 532
S.W.3d 733 (Mo. App. W.D. 2017). Moyle involved a defendant on trial for attempting to return
items she had not purchased to a store. Id. at 735. The State sought to introduce surveillance
footage of the defendant taking items from a store shelf and then proceeding directly to the return
desk to obtain a fraudulent refund. Id. The defendant objected because the State had no witness
to testify as to their own firsthand knowledge that the footage was a fair and accurate
representation of what it depicted. Id. at 736. The trial court overruled the objection and the
footage was admitted. Id. at 735. On appeal, the Western District affirmed the trial court’s
ruling under the so-called “silent witness” theory. Id. at 738. Under this theory of
authentication, the routinely collected security camera footage was admissible evidence of an
event’s occurrence even though no witness could verify its accuracy from firsthand knowledge.
Id. at 737. The theory is so named because under it the footage itself is treated as a proxy
witness of the event it depicts. Id. If the camera and security system used to capture the footage
displayed sufficient indicia of reliability, the footage should be admissible to prove the
occurrence of the event it depicts. Id.
In Moyle, the Western District set forth its view on what factors trial courts should
consider when evaluating the reliability of the surveillance footage evidence. The non-
exhaustive list includes: (1) whether the camera, recording system and storage method were
working properly at the time of the event depicted; (2) the historic reliability of the system
including whether it was sufficiently protected from tampering by third parties; and (3) whether
the recording in the medium presented at trial is a fair and accurate portrayal of the recording in
its original form, or that any modification is sufficiently explained and does not affect the
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reliability or accuracy of the evidence. Id. at 738. The Moyle court noted its list was not meant
to be comprehensive, and, depending on the circumstances, the trial court may conduct
additional inquiry to ensure the system is sufficiently reliable. Id.
On appeal, Appellant claims the State met none of its foundational burdens under Moyle.
We disagree. The foundation was sufficient to show the camera was working properly, as the
officer testified he was familiar with the system, had used it in the past, had utilized it in the
instant case without any indication of malfunction, and in his experience it was of above-average
quality. As to the third factor, the officer also testified he had accessed the feed from the camera
system near the time of the shooting, had later requested a copy of that footage, and that the copy
matched his initial observation of the feed.
If the State’s foundation was lacking in any respect, it was with regard to the second
factor. The State argues the foundation was sufficient to show historic reliability because the
officer testified he had utilized that same camera system for a prior investigation. This may be
sufficient to establish a general historic reliability, but the Moyle factor includes a more specific
inquiry: whether the system is protected from third-party tampering. As far as we can tell, the
State laid no foundation to show whether the surveillance system itself was sufficiently protected
from third-party tampering.
However, this deficiency does not rise to the level of plain error. Notably, Appellant
does not argue the video footage may have been tampered with, or was readily available to be
tampered with. Nor does Appellant argue the State would have been unable to establish the
system was sufficiently protected from tampering. Rather, he points only to the lack of
foundation on the record establishing such protections. Even if we were to agree the trial court
erred by accepting the footage without such assurance by the State, Appellant would still have
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the burden of establishing he was prejudiced. Shegog, 521 S.W.3d at 633. Without any
suggestion the State would have been unable to lay a proper foundation for the footage, it is
questionable whether Appellant can establish any resulting prejudice, much less the higher
burden he now bears of showing a manifest injustice resulted. See Kulhanek v. State, 560
S.W.3d 94, 104 (Mo. App. E.D. 2018) (no prejudice results from admitting evidence without
foundation where appellant cannot argue State was actually unable to lay foundation).
In the instant case, the surveillance footage was highly probative and otherwise displayed
strong indicia of reliability. Further, as the Moyle court points out, the traditional rules
governing the admission of video evidence are too restrictive and illogical to apply in the instant
case, as they may have resulted in the exclusion of video evidence that was useful to the jury in
evaluating the State’s case against Appellant. However, Moyle should not serve as a license for
the unrestricted admission of such footage without the prerequisite inquiries prescribed by the
Moyle court. Here, the trial court admitted the security camera footage into evidence without
assurances from the State the system was historically reliable with regard to its protections from
third-party tampering. However, given the standard of review, Appellant is unable to establish
this amounts to plain error. After considering the entire record, including the footage’s other
strong indicia of reliability and the substantial evidence of Appellant’s guilt, we find neither a
manifest injustice nor a miscarriage of justice occurred.
Appellant’s Point II is denied.
Point III
Appellant next claims the trial court abused its discretion by allowing the State to enter
into evidence the revolver found in the closet at the residence where Appellant was staying. He
argues the evidence was not logically or legally relevant because the revolver was found in the
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closet of a room occupied by another individual, and the State was unable to establish the
revolver was the same one used to shoot Victim.
Standard of Review
“The trial court is vested with broad discretion to exclude or admit evidence at trial.”
Wright, 551 S.W.3d at 616, citing Bowman, 337 S.W.3d at 686. “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. Shegog, 521 S.W.3d at 633. We reverse on such a basis only when an appellant
establishes both error and resulting prejudice. Id.
Discussion
“Evidence of weapons not connected to the accused or the offense at issue are generally
inadmissible.” State v. Wood, --- S.W.3d ---, 2019 WL 3144027 (Mo. banc July 16, 2019),
citing State v. Hosier, 454 S.W.3d 883, 895 (Mo. banc 2015).
[E]vidence is relevant to show that the accused owned, possessed or had access to
tools, implements, or any articles with which the particular crime was or might
have been committed, and that he owned or had such weapons in his possession
prior to or shortly after the commission of the crime.
State v. Miller, 208 S.W.3d 284, 287 (Mo. App. W.D. 2006), quoting State v. Stancliff, 467
S.W.2d 26, 30 (Mo. 1971).
In order to be admissible, evidence must be both logically and legally relevant. Id.
Logical relevance means it makes a material fact more or less likely. Id. Legal relevance means
its probative value must outweigh its potential to cause undue prejudice, by misleading or
inflaming the passions of the jury. Id.
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We hold the revolver was both logically and legally relevant. The revolver’s logical
relevance was established because the State showed it was the same caliber as the murder
weapon, with the same eight-right barrel that would produce a pattern of lands and grooves
similar to the ones found on the bullets used to shoot Victim. The spent shell casings in the
revolver corresponded to the approximate number of shots that had been fired into Victim’s
apartment. Additionally, the revolver was found at a residence where Appellant was staying.
This tends to make more likely the fact that Appellant had access to the weapon that may have
killed Victim. The revolver was thus connected to both Appellant and the crime, making it
relevant and highly probative of Appellant’s guilt. Speaks, 298 S.W.3d at 81.
Appellant argues the State cannot tie the revolver to him sufficiently to establish logical
relevance, citing State v. McCauley, 528 S.W.3d 421 (Mo. App. E.D. 2017). McCauley
involved a defendant who had been acquitted notwithstanding a guilty verdict of being a felon in
possession of a firearm. The State appealed the trial court’s granting the defendant’s motion for
acquittal. On appeal, this Court held the trial court’s judgment was proper where the State failed
to prove beyond a reasonable doubt the defendant knowingly possessed the firearm found
concealed in a kitchen drawer in a shared apartment. McCauley is largely unhelpful to
Appellant, because the standard for establishing logical relevance and the standard for convicting
someone of illegally possessing an item, which is proof beyond a reasonable doubt they
knowingly possessed it, are substantially different. See State v. Prince, 534 S.W.3d 813, 819
(Mo. banc 2017) (“Determining whether evidence is logically relevant is a very low-level test
that is easily met.”) (citation and internal quotation marks omitted).
Appellant also argues the revolver’s probative value was outweighed by its tendency to
unfairly prejudice the jury against him, but he does not identify any such unfair prejudice.
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Appellant claims the revolver unfairly prejudiced him by allowing the State to argue the revolver
tied Appellant to the offense. This argument begs the question, as it presumes the probative
value of the evidence and the unfairly prejudicial effect are one and the same. But it is
insufficient to merely show the damning evidence was prejudicial; any evidence that establishes
a defendant’s guilt necessarily prejudices him. State v. Rush, 949 S.W.2d 251, 256 (Mo. App.
S.D. 1997). Appellant must establish such prejudice is unfair, and outweighs the evidence’s
probative value. Appellant has failed to do so.
Of all the cases cited by Appellant, none supports his claim that where, as here, the State
establishes a clear link between the crime, the evidence, and the defendant, the evidence must
nonetheless be excluded. Appellant’s Point III is denied.
Conclusion
The judgment of the trial court is affirmed.
SHERRI B. SULLIVAN, J.
Mary K. Hoff, P.J., and
Angela T. Quigless, J., concur.
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