State v. Guest

692 S.W.3d 444

STATE of Missouri, Plaintiff-Respondent,

v.Jeremy Damon GUEST, Defendant-Appellant.

No. SD 37691

Missouri Court of Appeals, Southern District, In Division.

Filed: July 9, 2024

APPEAL FROM THE CIRCUIT COURT OF NEW MADRID COUNTY, The Honorable William Edward Reeves, Judge

Attorney for Appellant - Ellen H. Flottman of Columbia, MO.

Attorneys for Respondent - Andrew Bailey (Attorney General), Justin E. Davis of Jefferson City, MO.

JENNIFER R. GROWCOCK, J.

Jeremy Damon Guest ("Guest") appeals the judgment of the Circuit Court of New Madrid County ("trial court") convicting him of voluntary manslaughter, armed criminal action, stealing, and unlawful use of a weapon following a jury trial.¹ Raising two points on appeal, Guest argues the trial court abused its discretion by overruling the defense’s objection when the State asked Guest why he was the only witness to testify about the events in question (Point I) and further abused its discretion by overruling the defense’s objection when the State stated in its closing argument that an acquittal would tell D.H.’s ("Victim") family he deserved to die (Point II). We affirm.

Factual Background and Procedural History

In the early morning of February 16, 2020, Guest and Victim both attended a party at "The Club House" in Marston, Missouri. A lot of people from the party, including Guest and Victim, went to a Pilot Truck Stop afterwards, where they continued talking and partying. Victim pulled his car up next to a gas pump, and Guest parked his car right next to Victim’s car.

Another partygoer ("Eye Witness") went to the Pilot Truck Stop after the party to get a hot dog. As she parked and got ready to go into the store, she noticed there was "kind of like a hostile type of environment" and "angry energy" occurring in front of her. Eye Witness saw that Guest’s younger brother ("Brother") had pinned Victim against his car, and Guest was standing beside them. According to Eye Witness, Victim looked "defenseless" with nobody fighting on his behalf.

Eye Witness looked for her wallet in her car, and, after she looked up, she saw Guest had started "pointing] around" a gun. When Guest pulled out his gun, Victim was, in Eye Witness’s words, still "hemmed up" against the car. Eye Witness moved her car and went inside the Pilot Truck Stop, and she then heard gunshots from inside the store. When she went outside, Eye Witness saw Brother trying to get Guest to leave and Victim lying on the ground.

Before the shooting, Victim’s girlfriend ("Girlfriend") had gone into the Pilot Track Strop to use the bathroom when someone came in and said there was a commotion outside. Girlfriend and Victim’s cousin ("Cousin") then tried to get Victim back to his car. Victim pushed Girlfriend away to protect her and to get his gun from the car. When Girlfriend ran back to Victim, both Guest and Victim were "at the gun stance." As Girlfriend described it, Guest "had his gun pointed at [Victim], and by that time, [Victim] turned around and pointed his gun back at him." Victim told Guest to put his gun down so they could fight with their fists instead. Guest responded, "no, I told you I was going to kill you." At that point, Guest started shooting Victim.

Guest first shot Victim in the arm. Victim tried to lift his arm with the gun, and Guest shot again. Once Victim fell to the ground, Guest walked over, kicked Victim’s gun away, stood over Victim, and repeated, "I told you I was going to kill you[.]" Guest then picked up Victim’s gun and left. According to Cousin, Victim never fired a shot, and Guest was "shooting and walking towards [Victim] at the same time." Victim sustained nine total gunshot wounds, and died from the gunshot wounds to his chest and abdomen.

The State charged Guest with murder in the first degree (Count I), armed criminal action (Count II), robbery in the first degree (Count III), and unlawful use of a weapon (Count IV). His case proceeded to a jury trial on June 2, 2022. At trial, Eye Witness, Girlfriend, and Cousin testified to Guest shooting Victim at the Pilot Truck Stop. Girlfriend could not remember how many times Guest shot Victim, but said it was "multiple times" and agreed there were at least four shots. The Assistant Chief for the New Madrid Police Department testified that law enforcement collected 10 shell casings from the crime scene, and the location of the shell casings indicated the shooter may have been moving forward while firing the gun. At various points in the trial, the State played a cell phone video of the events leading up to the shooting as well as two different surveillance videos from the Pilot Truck Stop.

Guest testified that Brother had not pinned Victim against a car at the Pilot Track Stop, but "a lot of people start[ed] to come around Brother" while Guest was still in his vehicle. Victim and Brother then "both had each other by the shirt." Guest further testified that he put his firearm down by his side as he ran over to Brother, several people started grabbing at his hand with the gun, and Victim started coming toward Guest. Guest said he only started shooting after Victim cocked his own gun and started bringing his arm up. Under cross-examination from the State, Guest admitted he had a gun out first before Victim.

Guest testified to a prior encounter he had with Victim at a card game five months before the shooting. Victim allegedly stood behind Guest and started rubbing his hands together and mumbling, which Guest viewed as a taunt. That situation escalated to the point that Victim and Guest were "fixing to fight[.]" Guest also testified about a fight he and Victim had in October of 2019, which was recorded and posted on Facebook, where Victim asked, "what are you going to do[,] kill me" and Guest responded, "you think I won’t"?

Also during cross-examination, the State asked Guest whether Brother was going to testify.² The following exchange occurred:

[State]: Do you know if [Brother is] going to testify today?

[Guest]: I don’t know.

[State]: So the only people -- all these people that are out there and [Victim] and your brother have each other by the collar, all these people out there, and, the only person we’re hearing is from [sic] you, correct?

[Guest]: Yes.

At this point, the defense requested a bench conference, where it objected to the State’s questions about Brother testifying:

[Defense]: Judge, I’m going to object and ask that in regard to those questions about, comments that we’re all going to hear from [B]rother be stricken. That’s essentially shifting the burden on to all witnesses and that’s improper, and so we ask that the comments by [State’s counsel] be stricken and the jury disregard those.

THE COURT: [State’s counsel]?

[State]: Judge, that he has endorsed this witness and if he’s saying that he’s doing this to protect his brother, his brother is an endorsed witness and the State is just asking if he’s going to testify and say that [sic] the things that he’s saying, and he was probably the only other person out there to verify to what he’s saying.

THE COURT: I think that you’re getting ready to move onto something else, aren’t you?

[State]: Yes, sir.

The trial court overruled the defense’s objection and request.

During closing arguments, the defense maintained that Guest acted in defense of another on behalf of Brother and self-defense of himself when he shot Victim. The State addressed the issue of self-defense in its rebuttal closing argument, stating:

When deadly force is used correctly, the person who was exercising it, has the right to take another person’s life legally. A not guilty verdict would be telling [Victim’s] family … Would be telling them that [Victim] deserved to [die³] for what he did that night. And what did he do? When someone was coming at him with a gun, he went and got his gun. Which he has the right to do.

The defense objected to this statement as improper argument, which the trial court overruled. The jury later found Guest guilty of the lesser-included offense of voluntary manslaughter in Count I, armed criminal action in Count II, the lesser in- eluded offense of stealing in Count III, and unlawful use of a weapon in Count IV. In his motion for new trial, Guest argued the trial court erred by overruling his objections to "questions asked of [Guest] by the State about [Brother] not testifying" and erred again "by overruling his objection to the State’s comment during its rebuttal argument, that a not guilty verdict would be akin to the jury telling the victim’s family that the victim didn’t deserve to live." The trial court denied Guest’s motion for new trial and this timely appeal followed.

Points On Appeal

Point I - The Trial Court did not Abuse its Discretion by Overruling the Defense’s Objection to the Scope of Cross-Examination.

Standard of Review

[1–5] "On appeal, a trial court’s ruling regarding … the extent and scope of cross-examination is reviewed for abuse of discretion." State v. Winfrey, 337 S.W.3d 1, 5 (Mo. banc 2011). "An abuse of discretion occurs when the [trial] court’s ruling is ‘clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful[,] deliberate consideration.’ " State v. Mills, 623 S.W.3d 717, 729 (Mo App. E.D. 2021) (quoting Mansil v. Midwest Emergency Med. Servs., 554 S.W.3d 471, 475 (Mo. App. W.D. 2018)). "We review for prejudice and not mere error; and will affirm the trial court's ruling unless it was so prejudicial as to deprive defendant of a fair trial." State v. Hawkins, 328 S.W.3d 799, 808 (Mo. App. S.D. 2010). "Trial court error is prejudicial if there is a ‘reasonable probability that the [trial] court’s error affected the outcome of the trial.’ " Winfrey, 337 S.W.3d at 5 (quoting State v. Barriner, 111 S.W.3d 396, 401 (Mo. banc 2003)).

Analysis

[6–8] We first analyze whether Guest properly preserved his argument under Point I. ...