State v. Edwards

579 S.W.3d 249

STATE of Missouri, Respondent,

v.Sequoi D. EDWARDS, Appellant.

ED 106656

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: May 7, 2019

Motion for Rehearing and/or Transfer to Supreme Court Denied June 11, 2019

Application for Transfer Denied September 3, 2019

Britton L. St. Onge, 100 S. Fourth Street, Suite 1000, St. Louis, MO 63102, for appellant.

Eric Schmitt, Evan J. Buchheim, PO Box 899, Jefferson City, MO 65102, for respondent.

Gary M. Gaertner, Jr., Judge

Introduction

Defendant, Sequoi D. Edwards (Defendant), appeals the judgment after a jury found him guilty of third-degree kidnapping, third-degree domestic assault, unlawful use of a weapon, and two counts of fourth-degree domestic assault. Defendant argues the trial court erred: (1) in admitting into evidence three 911 calls, (2) excluding the testimony of a process server, and (3) instructing the jury on the charge of third-degree domestic assault. The trial court’s judgment is affirmed.

Background

We view the evidence in the light most favorable to the verdict.¹ The victim began a romantic relationship with Defendant in 2015. Thereafter, Defendant bought a house and the victim moved in. In the early morning of May 11, 2017, Defendant and the victim started arguing at the house. Defendant hit the victim with his fists and a metal mop. Despite Defendant’s attempt to block the door, the victim eventually escaped from the house. The victim saw a neighbor, Chris Thomas, standing outside and ran to him. Thomas gave the victim his phone and she called 911. The victim told the 911 operator: her boyfriend, Defendant, was trying to kill her, Defendant was wearing a blue shirt and jeans, Defendant had a gun, Defendant was inside the house, and she was hurt and needed an ambulance.

Defendant came outside with a gun in his hand. Defendant grabbed the victim by her hair, dragged her down the street, and hit her head with the gun. An unidentified female called 911 once, and a male, believed to be Thomas, called 911 three times. The male caller and the victim told 911 operators that Defendant was wearing a blue shirt and jeans. When the police arrived at approximately 7:30 a.m., they saw Defendant dragging the victim across the street. The officers also observed a handgun protruding from Defendant’s waistband and Defendant was wearing blue jeans and a blue shirt. The officers arrested Defendant. The victim went by ambulance to the hospital for treatment of her injuries. The victim suffered a nasal fracture, subconjunctival hemorrhage to her eye, and contusions to her face and other parts of her body.

The jury found Defendant guilty of third-degree kidnapping, third-degree domestic assault, unlawful use of a weapon, and two counts of fourth-degree domestic assault. The trial court sentenced Defendant to a total of 11 years imprisonment for the five convictions. Defendant raises three points on appeal.

Point I

In his first point, Defendant argues the trial court abused its discretion by admitting into evidence and playing for the jury three 911 calls: one made by an unknown female and two made by a male.² Defendant asserts the calls were inadmissible hearsay. Defendant also contends that his constitutional rights under the Confrontation Clause were violated because the male and female callers did not testify at trial and, therefore were not subject to cross-examination.

The trial court’s decision whether to admit or exclude evidence is reviewed for an abuse of discretion. State v. Blurton, 484 S.W.3d 758, 769 (Mo. banc 2016). "Claims of trial court error are reviewed for prejudice, not mere error." Id. (citation and internal quotations omitted). We "will reverse the trial court’s decision only if there is a reasonable probability that the error affected the outcome of the trial or deprived the defendant of a fair trial." Id.

There were five calls placed to 911, one by the victim, one by an unknown female, and three from a male. Defendant filed a pretrial motion in limine to exclude four of the calls but did not challenge admission of the victim’s call. Defendant argued that the four calls were inadmissible hearsay and violated his confrontation rights. The trial court ruled that three of the four challenged calls were admissible: the male’s calls at 7:25 a.m. and 7:29 a.m., and the female’s call at 7:31 a.m.

The victim’s 7:20 a.m. call to 911 was played for the jury without objection. Defendant objected to the 911 calls made by the male at 7:25 a.m. and 7:29 a.m., and the female’s call at 7:31 a.m.

During his 7:25 a.m. call, the male caller told the 911 operator that there was a "chick on my front [inaudible], "she just used my phone to call the cops," and he wanted to know where the police were. In addition, a male voice can be heard yelling in the background. The 911 operator responded "we're driving to you now." The male caller called again at 7:29 a.m., and spoke to the 911 operator as follows:

911 Operator: Police Department, [inaudible].

Caller: Yeah. I just called y'all 10 minutes ago, 20 minutes ago. There is a guy across the street dragging a girl over here telling me he’s going to kill her.

911 Operator: What’s the address?

Caller: [states address].

911 Operator: [repeats address] He has a gun out right now?

Caller: ... He’s dragging her up and down the street by her hair, hitting her with a pistol.

911 Operator: Okay, what’s he wearing?

Caller: He’s got a blue shirt on, some jeans. And his hair’s all like a fro.

911 Operator: Blue shirt and jeans and he’s dragging her right now.

...

Caller: Yeah. He’s out here punching her in her face right now.

911 Operator: Alright, alright, we're on our way.

Caller: Alright

At 7:31 a.m., an unknown female called 911 and stated "Yes. Hi, I need to report that there is a woman being beaten in the middle of the street. There are the police. Okay, never mind. He got her. That’s okay."

For a 911 recording to be properly admitted, two "hurdles must be cleared," State v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007). "First, the statements must survive traditional hearsay analysis. Second, because this is a criminal case, the statements must survive Sixth Amendment Confrontation Clause analysis." Id.

Hearsay Analysis

At trial, the prosecutor argued that the statements were admissible under the excited utterance or present sense impression exceptions to the hearsay rule,³ "Present sense impression statements have certain indicia of trustworthiness to support their admissibility." State v. McKinney, 336 S.W.3d 499, 502-03 (Mo. App. E.D. 2011). "Errors in memory and time for calculated misstatements are not present because the statements are made as the declarant perceives the event or immediately thereafter." Id. at 503, For the declarant’s out-of-court statement to be admitted under the present sense impression exception: (1) the statement must be made simultaneously, or almost simultaneously, with the occurrence of an event or an act, (2) the statement must describe or explain the act, and (3) the declarant must have perceived the event or act with his or her own senses. Id.

During the first call by the male caller at 7:25 a.m., he stated that there was a "chick on my front [inaudible]," the woman "just used my phone to call the cops," and questioned where the police were. These statements satisfy the elements for a present sense impression exception to hearsay: simultaneous or almost simultaneous with the occurrence of the event, described the acts, and were perceived by the male caller.

The male caller’s 7:29 a.m. call was also admissible under the present sense impression exception. The male caller’s statements were being made simultaneously with the occurrence of the act. The male caller also described the acts. The male caller told the 911 operator that a "guy" was dragging a girl down the street by her hair, hitting her with a pistol, and punching her in the face "right now," The caller also told the operator the address, the police had not arrived, and described the perpetrator’s clothing. Further, the caller’s statements reflect that he was perceiving the acts with his own senses. The caller stated the victim was being punched "right now."

The female caller’s 7:31 a.m. call was again admissible under the present sense impression exception. The caller’s statements were being made simultaneously and described the act. The caller told the 911 operator "there is a woman being beaten in the middle of the street" and the police arrived. The caller’s statement "there are the police" shows that the caller was perceiving the event with her own senses.

The three 911 calls also had additional indicia of trustworthiness because there was corroborating evidence. McKinney, 336 S.W.3d at 503. Officer Brian Kotaska testified that when he arrived at the location provided by the 911 callers he saw Defendant dragging the victim down the street by her hair, Defendant was wearing a blue shirt and blue jeans, Defendant had a handgun protruding from his waistband, and the victim had blood around her mouth and swelling was "setting in," Officer Kotaska’s partner, Officer Kelly Smith, gave similar testimony as Officer Kotaska. Further, the victim testified regarding the events. Id. The trial court did not abuse its discretion by overruling Defendant’s hearsay objection to the three calls. Id.

Confrontation Clause

Defendant also contends the three calls violated his constitutional confrontation rights. We typically review a trial court’s evidentiary rulings for an abuse of discretion but determining whether a criminal defendant’s rights were violated under the Confrontation Clause is a question of law that this Court reviews de novo. State v. Ivy, 531 S.W.3d 108, 120 (Mo. App. E.D. 2017).

The Confrontation Clause provides that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. Amend. VI. The Confrontation Clause prohibits "admission of testimonial...