State v. Boss

577 S.W.3d 509

STATE of Missouri, Respondent,

v.Jafari R. BOSS, Appellant.

WD 81763

Missouri Court of Appeals, Western District.

OPINION FILED: June 25, 2019

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

Ellen H. Flottman, Columbia, MO, for appellant.

Before Division Two: Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, Judge and Cynthia L. Martin, Judge

Cynthia L. Martin, Judge

Jafari Boss ("Boss") appeals from the trial court's entry of judgment convicting him of seven counts of robbery in the first degree, seven counts of armed criminal action, and one count of unlawful use of a weapon. Boss claims (1) the trial court erred in overruling a motion to exclude evidence including a gun found in a backpack and ballistics conclusions relating to that gun because the State failed to timely disclose the evidence; (2) the trial court erred in admitting the testimony of a ballistics expert because the admission of the testimony violated section 490.065¹ ; and (3) the trial court erred in admitting testimony that Boss had been kicked out of his hotel room because the testimony was inadmissible character and propensity evidence. We affirm the trial court with regard to Boss's arguments on appeal, and remand on the limited basis to correct the written judgment to reflect the trial court's oral pronouncement and sentencing.

Factual and Procedural Background²

On October 29, 2014, Boss entered the LaQuinta Inn located in Columbia, wearing a plastic mask and carrying a .45-caliber pistol. Boss held the overnight employee at gunpoint and directed the employee to retrieve money in the hotel's cash drawer, before fleeing the hotel. This robbery was the first of a series of seven armed robberies that Boss committed in October and December of 2014.

In December, Boss, with the assistance of others, robbed another hotel, the Budget Host Inn; two convenience stores, the Speedy Mart and We B Smokin'; and three restaurants, Jimmy John's, China Moon, and Denny's. During the commission of the robbery at Denny's, a single round was fired into the restaurant's ceiling from a handgun. A .45-caliber shell casing was recovered by police. After the robbery at China Moon, a restaurant employee told police the gunman had been carrying a handgun with the word "Model" written on it.

On December 17, police responded to calls about a possible robbery and shots fired in an alleyway behind a strip mall near the Columbia Mall. Police discovered damage to the strip mall building consistent with the discharge of a firearm. Police also recovered a .45-caliber shell casing from the alleyway. Boss was apprehended walking near the strip mall. Several weeks later, a backpack that had been hidden under a porch at an apartment complex near the strip mall was discovered. The backpack contained a .45-caliber handgun with the word "Model" written on it. Boss's DNA was discovered on items in the backpack.

Boss was charged by information on multiple counts of robbery in the first degree, kidnapping, and armed criminal action. A jury trial was set for December 5, 2017. On November 15, 2017, the State disclosed evidence relating to the gun found in the backpack, including ballistics laboratory reports that had been prepared by the Missouri Highway Patrol ("Highway Patrol"). Boss filed a Motion to Exclude ("Motion") any evidence or witnesses regarding the gun and ballistics reports compiled by the Highway Patrol based on the late disclosure of the evidence. During a pretrial hearing on November 29, 2017, the trial court overruled Boss's Motion.

On December 1, 2017, the State filed a superseding indictment, charging Boss with seven counts of robbery in the first degree, seven counts of armed criminal action, and one count of unlawful use of a firearm.³ On December 4, 2017, Boss's counsel's requested a continuance to prepare for additional charges filed in the superseding indictment. The continuance request was granted.⁴ Boss was tried by jury in early February 2018. Prior to trial, Boss re-asserted his Motion. The Motion was denied the day trial began.

At trial, the State admitted the gun found in the backpack without Boss's objection, though he earlier objected unsuccessfully to admission of a photograph of the gun. Highway Patrol Officer Jason Crafton ("Crafton") testified as a firearm and tool mark expert without objection.⁵ Other evidence, including cartridges and photographs used during the ballistics testing, were admitted over Boss's objection. Crafton concluded from examination of the gun and shell casings recovered at Denny's and in the alleyway of the strip mall that the gun found in the backpack was used to discharge the round in both locations.

Terrence Harvey testified that he participated in four of the seven robberies with Boss. Harvey also testified that he and Boss had been denied lodging at the LaQuinta Inn on December 8, 2014. Corroborating Harvey's testimony, a LaQuinta Inn manager testified that she denied Boss lodging on that date. The LaQuinta Inn manager testified that she decided to deny Boss a room after a discussion with a co-employee who had been working when the LaQuinta Inn was robbed on October 29, 2014. Other testimony also established that Boss had stayed at the Budget Host Inn for several months, before being asked to leave before the University of Missouri-Columbia's homecoming weekend.

The jury convicted Boss on all counts included in the superseding indictment. The trial court sentenced Boss, as a prior and persistent offender, to 90 years imprisonment.⁶

Boss timely appeals.⁷

Analysis

Boss asserts three points on appeal. Boss's first point argues that the trial court erred in admitting the gun found in the backpack and ballistics conclusions relating to that gun because the State failed to disclose that evidence in violation of Rule 25.03.⁸ Boss's second point asserts the trial court erred in overruling Boss's objections to the testimony of Crafton because the testimony violated section 490.065's standards of admissibility for expert witness testimony. Boss's third point asserts the trial court erred by overruling Boss's objection to evidence that Boss had been denied and kicked out of hotel rooms. We address each point in turn.

Point One

Boss's first point asserts the trial court erred in admitting into evidence the gun found in the backpack and ballistics conclusions relating to that gun in violation of Rule 25.03 because the evidence was not disclosed by the State until November 15, 2017 and the late disclosure prevented defense counsel from having sufficient time to prepare.⁹

In reviewing discovery violations under Rule 25.03, we must determine: "first, whether the State's failure to disclose the evidence violated Rule 25.03, and second, if the State violated Rule 25.03, then what is the appropriate sanction the trial court should have imposed." State v. Clark , 486 S.W.3d 479, 484 (Mo. App. W.D. 2016). "Review is for abuse of discretion." Id. (citing State v. Wolfe , 13 S.W.3d 248, 259 (Mo. banc. 2000) ). "The trial court has discretion to impose sanctions for discovery violations under Rule 25.03." Id. "[The] denial of a requested sanction is an abuse of discretion only where the admission of the evidence results in fundamental unfairness to the defendant." State v. Taylor , 298 S.W.3d 482, 502 (Mo. banc 2009).

"Such fundamental unfairness exists if there is a reasonable likelihood that the failure to disclose the evidence affected the result of the trial." Id. (internal quotes omitted).

Rule 25.03(A) provides that the State "shall, upon written request of defendant's counsel, disclose to defendant" material and information within its possession or control as designated in the request. Included among the information and material that the State is required to disclose are "any reports or statements of experts, made in connection with the particular case, including results ... of scientific tests, experiments, or comparisons." Rule 25.03(A)(5). Rule 25.03(C) provides:

If the defense in its request designates material or information which would be discoverable under [Rule 25.03] if in possession or control of the state, but which is, in fact, in the possession or control of other governmental personnel, the state shall use diligence and make good faith efforts to cause such materials to be made available to the defense counsel ...

This rule "imposes an affirmative requirement of diligence and good faith on the state to locate records not only in its own possession or control but also in the control of other government personnel." State v. Steidley , 533 S.W.3d 762, 772 (Mo. App. W.D. 2017).

Boss's point on appeal asserts the trial court erred "in admitting the gun found in the backpack and ballistics conclusions relating to that gun." The State argues that Boss's claim of error is only partially preserved because although Boss objected to admission of some of the evidence used to reach the ballistics conclusion (such as cartridges and photographs) he did not object to admission of the gun itself, or to the testimony of Crafton about the "ballistics conclusions."¹⁰ The partial preservation of some, but not all, of Boss's claim of error need not be further addressed, however, as the trial court did not commit error in denying Boss's Motion and in admitting the gun and ballistics conclusions, plain or otherwise.

Here, among numerous other discovery requests, Boss requested all lab reports relating to Boss's arrest and charges. In response to those requests, the State disclosed all reports it had been provided by the Columbia Police Department and Highway Patrol.

The State and defense counsel met in November 2017 to review the physical evidence that might be introduced at trial. During the review of this evidence, the parties jointly discovered information referring to additional ballistics testing that had been conducted under a different police report number. The State contacted the Columbia Police Department and the Highway...