STATE OF MISSOURI, Plaintiff-Respondent v. JAMES ROBERT CROCKER , 479 S.W.3d 174 ( 2015 )

STATE OF MISSOURI, )
)
Plaintiff–Respondent, )
)
vs. ) No. SD33566
)
JAMES ROBERT CROCKER, ) Filed: December 9, 2015
)
Defendant–Appellant. )
APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY
Honorable Kelly W. Parker
AFFIRMED
James Robert Crocker ("Defendant") appeals from his conviction for
second-degree murder. See § 565.021, RSMo (2000). Defendant raises two
points on appeal: (1) that the trial court erred in denying his request for a
continuance filed on the morning of trial and (2) that the trial court plainly erred
in admitting certain deposition testimony during the sentencing phase of the
trial. These claims are without merit, and we affirm the trial court's judgment.
Factual and Procedural Background
Defendant owned a house and some property next to the Meramec River
and maintained two keep-out signs on the property near the river. On July 20,
2013, Defendant encountered a group of canoers who had stopped on a sand bar
near Defendant's property. Although no one in the group went past the posted
keep-out signs, Defendant told them that they were trespassing and demanded
that they leave. Ultimately, Defendant shot one of the canoers in the face, killing
the man instantly. Subsequently, the county surveyor took measurements at the
scene and determined the incident occurred at a location approximately 50 feet
from the river and 381 feet beyond Defendant's property line.
Defendant was charged with one count of second-degree murder. The
prosecution filed motions to endorse additional witnesses on February 6, 2014,
on March 18, 2014, and on April 8, 2014. One of the witnesses included in those
motions was Gerald Carrell ("Mr. Carrell"). Although defense counsel received
notice, defense counsel did not appear at either of the hearings regarding the
prosecution's motions, and the trial court sustained the motion to endorse Mr.
Carrell.
On Monday morning before trial, defense counsel filed a motion for
continuance. In that motion he argued he needed more time to prepare to meet
Mr. Carrell's testimony because the prosecution had not disclosed the content of
Mr. Carrell's proposed testimony until the Friday prior to trial. The trial court
denied the motion for continuance, and Defendant was tried by a jury on May 12
through May 14, 2014. Mr. Carrell testified during the prosecution's rebuttal case
stating that Defendant told Mr. Carrell that Defendant was ex-military and "that
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if he pulls his gun he's going to use it." The jury found Defendant guilty as
charged. During the penalty phase, the prosecution again used Mr. Carrell's
testimony, this time by reading portions of Mr. Carrell's deposition into the
record.
The jury recommended a sentence of 25 years in the Department of
Corrections. The trial court sentenced Defendant in accordance with the jury's
recommendation, and Defendant appeals.
Point I: Continuance
In his first point, Defendant argues the trial court erred when it denied his
motion for continuance because defense counsel did not have sufficient time to
investigate Mr. Carrell or his testimony in light of the late disclosure of the
content of Mr. Carrell's proposed testimony. This claim is without merit.
The following additional facts are relevant to this claim. The parties
discussed Defendant's motion for continuance at length at the pretrial conference
on the morning of trial. Defense counsel stated that he had received an email
from the prosecutor regarding Mr. Carrell's proposed testimony only the Friday
before trial was to begin and that he could not view the content of the proposed
testimony because a link in the email did not work. The prosecutor explained
that he had not been able to talk with Mr. Carrell earlier because Mr. Carrell had
pending criminal charges and was represented by counsel. The prosecutor also
explained he had forwarded the information regarding the proposed content of
Mr. Carrell's testimony to defense counsel by both fax and email as soon as the
State had received it. The prosecutor further stated he did not plan to use Mr.
Carrell's testimony in his case in chief but would only use Mr. Carrell as a rebuttal
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witness if Defendant testified. Defense counsel continued to object, stating that
he wanted to set up a deposition and that he wanted to know whether the
prosecution had arranged a plea agreement with Mr. Carrell. The prosecutor
denied any plea agreement with Mr. Carrell.
Ultimately, the trial court stated it did not believe there had been a
discovery violation because the prosecutor had forwarded the information as
soon as it had become available and because the defense had knowledge that Mr.
Carrell would be a witness since at least as early as April 8, 2014. The trial court
denied the motion for continuance. The trial court further ordered that the
prosecution could not mention Mr. Carrell in opening statement or in its case in
chief. The trial court also ordered the prosecuting attorney to work with defense
counsel to arrange for a deposition of Mr. Carrell sometime before Mr. Carrell
would be called as a witness. A deposition was taken one evening during the
course of the three-day trial. Both attorneys received a transcript of the
deposition testimony the next morning before Mr. Carrell testified.
We begin our analysis by noting that Defendant's claim as regards this
point is not preserved for appellate review because his motion for new trial was
not timely filed.1 See Rule 29.11(b);2 State v. Shinn, 420 S.W.3d 619, 628 (Mo.
App. S.D. 2013). "Plain error review is used sparingly and is limited to those
1 In an attempt to avoid this conclusion, Defendant cites State v. Henderson, 468 S.W.3d 422
(Mo. App. S.D. 2015), in support of his argument that the State waived compliance with the time
limits of Rule 29.11(b) when the prosecutor stated he had no objection to the trial court’s
consideration of Defendant’s untimely motion. However, Henderson is factually
distinguishable from the present case. In Henderson, the trial court indicated a reluctance to
consider the untimely motion, and the prosecution “twice pressed the trial court to consider the
untimely Brady [v. Maryland, 373 U.S. 83 (1963)] claim.” Id. at 425. That is, Henderson
was decided on principles of invited error, rather than waiver. Id. Here, in contrast, the
prosecutor did not urge the trial court to commit error, but merely stated no objection.
2 All rule references are to Missouri Court Rules (2015).
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cases where there is a clear demonstration of manifest injustice or miscarriage of
justice." State v. Parker, 208 S.W.3d 331, 334-35 (Mo. App. S.D. 2006). Plain
error review involves two steps. Id. at 335. First, the court determines "whether
there is, indeed plain error, which is error that is 'evident, obvious, and clear.'"
Id. (quoting State v. Roper, 136 S.W.3d 891, 900 (Mo. App. W.D. 2004)). If
such error appears, the court moves on to the second step in which the court
"considers whether a manifest injustice or miscarriage of justice has, indeed,
occurred as a result of the error." Id. (quoting Roper, 136 S.W.3d at 900).
The trial court in this case did not plainly err in denying Defendant's
motion for continuance because the trial court provided sufficient remedies for
the prosecution's disclosure of the proposed content of Mr. Carrell's testimony.
The rules for discovery in criminal cases require the prosecution to disclose many
things, including any statements of the defendant which the State intends to use
at trial. Rule 25.03(A)(2). Where a party fails to comply with the discovery rules,
"the court may order such party to make disclosure of material and information
not previously disclosed, grant a continuance, exclude such evidence, or enter
such other order as it deems just under the circumstances." Rule 25.18.
Here, the trial court correctly found there was no discovery violation
because the prosecution provided the information to the defense as soon as it
became available to the prosecution. See State v. Deason, 240 S.W.3d 767, 774
(Mo. App. S.D. 2007) ("Rule 25.03 imposes no obligation on the State to disclose
evidence that it does not possess."). Nevertheless, the trial court, in an
abundance of caution, ordered an appropriate remedy for Defendant. The State
was prohibited from using the information in its case in chief, and the defense
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was given the opportunity to depose Mr. Carrell before the State would be
permitted to use any of Mr. Carrell's testimony. Similar measures have been
found sufficient to remedy any problems caused by untimely disclosures by the
State. See, e.g., State v. Carlisle, 995 S.W.2d 518, 521-22 (Mo. App. E.D.
1999); State v. Cartwright, 17 S.W.3d 149, 154 (Mo. App. E.D. 2000); State
v. Merrick, 677 S.W.2d 339, 343 (Mo. App. E.D. 1984).
The trial court did not plainly err in denying Defendant's motion for
continuance. Defendant's first point is denied.
Point II: Sentencing Phase Evidence
In his second point, Defendant claims the trial court plainly erred in
allowing the prosecutor to read portions of Mr. Carrell's deposition into evidence
during the sentencing phase of trial because that evidence was hearsay. Although
Defendant is correct that the evidence was hearsay, reversal is not warranted
because Defendant failed to prove manifest injustice or miscarriage of justice as
Mr. Carrell testified during the guilt phase of trial regarding the same matter.
The following additional evidence is relevant to the disposition of this
claim. During the penalty phase after presenting victim impact evidence, the
prosecutor announced his intention to read portions of Mr. Carrell's deposition
testimony into the record. Defendant objected to the reading of Mr. Carrell's
deposition because it was hearsay and because Mr. Carrell had "been available all
week." The prosecutor responded that the deposition was sworn testimony and
that "in sentencing it doesn't matter if it's hearsay." The trial court overruled the
objection.
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The prosecutor read the following testimony from Mr. Carrell's deposition
regarding statements Defendant made to Mr. Carrell. When Mr. Carrell asked
Defendant if Defendant would have done anything differently, Defendant said,
"[h]e would make sure he shot all of them that way there wouldn't be any
witnesses." Defendant told Mr. Carrell "he's a military man and if he pulls his
gun he's going to kill somebody." Defendant also told Mr. Carrell "he would do it
again" and he would "always protect his property and his rights."
Defendant concedes this claim is not preserved for appellate review
because Defendant did not include the claim in his motion for new trial, and
Defendant requests a plain error review. See State v. Bryant, 362 S.W.3d 46,
50 (Mo. App. S.D. 2012). As stated above, plain error review involves a two-step
analysis. State v. Thurman, 272 S.W.3d 489, 496 (Mo. App. E.D. 2008). "The
first step of this analysis is to determine whether the asserted claim of plain error
facially establishes substantial grounds for believing a manifest injustice or
miscarriage of justice has occurred." Id. Only where such grounds are found to
exist should the court continue to the second step of the analysis in which the
court considers "whether manifest injustice or a miscarriage of justice has
actually occurred." Id.
Regardless of whether this evidence should have been admitted,
Defendant has failed to meet his burden of showing prejudice, much less the
manifest injustice or miscarriage of justice that he must demonstrate to succeed
under plain error review. "If hearsay testimony is erroneously admitted, the
admission does not require reversal unless the defendant was prejudiced as a
result." State v. Tindle, 395 S.W.3d 56, 63 (Mo. App. S.D. 2013). "A defendant
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is not prejudiced by hearsay testimony that is merely cumulative of evidence
already before the trial court[.]" Id. (quoting State v. Atkeson, 255 S.W.3d 8,
11 (Mo. App. S.D. 2008)). "Indeed, 'prejudice will not be found from the
admission of hearsay testimony where the declarant was also a witness at trial,
testified on the same matter, and was subject to cross-examination because the
primary defects in hearsay testimony are alleviated."' Id. (quoting State v.
Steele, 314 S.W.3d 845, 850 (Mo. App. W.D. 2010)).
In the present case, Mr. Carrell was present and testified at the guilt phase
of this trial before the same jury which determined punishment. He testified
regarding precisely the same matter covered in the deposition, i.e., Defendant's
statements regarding the incident at issue. To the extent that some of the
statements included in the deposition varied from those presented during the
guilt phase, Defendant had an opportunity to impeach Mr. Carrell during the
guilt phase, and did so by showing Mr. Carrell was facing serious felony charges.
Even though the trial court incorrectly admitted Mr. Carrell's deposition
during the penalty phase, the admission of Mr. Carrell's deposition did not result
in manifest injustice or a miscarriage of justice. Defendant's second point is
denied.
Decision
The trial court's judgment is affirmed.
MARY W. SHEFFIELD, C.J. – OPINION AUTHOR
DANIEL E. SCOTT, P.J. – CONCURS
JEFFREY W. BATES, J. – CONCURS
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