Opinion
No. ED 84783
December 6, 2005
Appeal from the Circuit Court of the City of St. Louis, Honorable Julian L. Bush.
Nellie Ribaudo, Mark. W. Lyons, Clayton, MO, for appellant.
Jeremiah W. (Jay) Nixon, Alison K. Brown Jefferson City, MO, for respondent.
Calvin Kevin Clark ("Defendant") appeals from the judgment entered after a jury found him guilty of first degree assault, armed criminal action, and attempted first degree robbery. The trial court sentenced Defendant to consecutive terms of life imprisonment for first degree assault, thirty years for armed criminal action, and fifteen years for attempted first degree robbery.
In his sole point on appeal, Defendant contends that the trial court erred by allowing the State to introduce evidence of his prior acquittals during the sentencing portion of the trial. We find no error and affirm.
BACKGROUND
The evidence presented at trial viewed in the light most favorable to the verdict is as follows:
On the evening of March 24, 2001, Jarvis Hardimon ("Hardimon") picked up his girlfriend, Jennifer Wesson ("Wesson"), from her home. They drove to Cahokia, Illinois to watch a few movies at Hardimon's friend's house. Hardimon then drove Wesson home, arriving at around 4:00 A.M. Hardimon estimated that when he arrived at Wesson's home, he was carrying $1,500.00 in cash.
When Hardimon got back into his car, after walking Wesson to her home, the Defendant opened the passenger side door and sat down next to Hardimon. Hardimon told Defendant to get out of the car and reached across Defendant's body to open the door and push him out. Defendant then brandished a 9 millimeter gun. Defendant refused to exit the vehicle. As Hardimon started to exit the car, Defendant shot him in the chest. Hardimon lost his balance and fell out of the car and onto a nearby fence. Defendant told Hardimon to give him the money, got out of the vehicle, walked around to Hardimon, and shot him again. Hardimon and Defendant struggled as Defendant tried to go through Hardimon's pockets. Hardimon managed to get back into his car and drive away. As Hardimon drove away, the Defendant shot Hardimon two more times in the back through the rear window.
Hardimon was hospitalized for six days. While in the hospital, the police contacted him. Hardimon identified Defendant from a photo array as the man who shot him. Hardimon also identified Defendant during a subsequent line-up and at trial.
The trial began on May 24, 2004. During the first phase of the trial, although Wesson testified that she did not see the actual shooting, she testified that she saw the Defendant before and after the shooting. The State presented testimony from police officers and medical experts detailing the crime scene and the extent of Hardimon's injuries. Defendant also testified that he was in no way involved in the incident. At the close of the first phase of the trial, the jury returned a verdict of guilty as to first degree assault, armed criminal action, and attempted first degree robbery.
During the second phase of the trial, the State introduced evidence that Defendant had committed four murders. The State introduced the testimony of Irving Massie ("Massie"), Police Officer Mark Karpinski ("Officer Karpinski"), William Dudley ("Dudley"), Wesson, Kimberly Clerk ("Clerk"), Police Officer Dennis Conway ("Officer Conway"), and Hardimon.
Massie testified that on April 16, 2001, he, David Johnson ("Johnson"), Michael Hays ("Hays"), and Bruce Smith ("Smith") were painting Smith's house at 4320 Farlin, St. Louis, when Adrian Bowman ("Bowman") and Defendant came into the house, armed with guns. Massie identified Defendant as the person who shot him twice in the back of the head that day.
On April 16, 2001, the police found Johnson and Hays deceased and Massie severely injured in the kitchen of Smith's house. On the same day, the police found Smith deceased at 4117 Clarence, St. Louis. Officer Karpinski testified that he examined the homicide scene of Smith and seized six 9 mm shell casings from around Smith's body.
Dudley testified that on April 16, 2001, as a St. Louis Police Department evidence technician, he seized the 9 mm shell casings from the kitchen of Smith's house where the police found Johnson, Hays, and Massie.
Further, Wesson testified as to a separate incident that occurred more than a year before on November 2, 1999. Wesson testified that on November 2, 1999 she witnessed the shooting and killing of Victor Killebrew in the area of Ron's Liquor store at 4143 Newstead, St. Louis. On the stand, Wesson identified Defendant as the party who shot and killed Victor Killebrew that day. Clerk's testimony corroborated Wesson's testimony; she also identified Defendant as the individual who shot and killed Victor Killebrew on November 2, 1999.
Officer Conway testified that he examined the ballistic evidence seized by Officer Karpinski in Smith's homicide, by Dudley in the triple shooting resulting in the double homicide at Smith's house, and by Dudley in the shooting of Hardimon. Officer Conway testified that all the shell casings seized matched each other, "so they were positive and definitely fired from the same firearm."
Finally, the State called Hardimon to testify how the shooting affected his life. He stated that he still had problems breathing and back pains. In addition, Hardimon described how the shooting increased his stress and affected his relationship with his girlfriend and his children.
The defense noted Defendant had been tried and acquitted of the charges from the two prior incidents. A jury acquitted Defendant of the charges related to the incident on April 16, 2001. Another jury acquitted Defendant of the charges related to the incident on November 2, 1999.
Additionally, the defense called Robert Steele ("Steele"), who had been Bowman's attorney. Steele testified that during Bowman's trial, Massie testified that Defendant was the man who shot him. However, when asked to point out the individual who shot him in court, Massie identified Bowman. The defense also called Angela Roberson ("Roberson") who testified to Defendant's character. Roberson said that Defendant was a "very caring and concerned young man with a big heart, always willing to go the extra mile to help someone out."
After the closing arguments, the jury recommended a sentence of life imprisonment for first degree assault, thirty years for armed criminal action, and fifteen years for attempted first degree robbery. The court imposed the recommended sentences and ordered that they be served consecutively.
STANDARD OF REVIEW
The trial court has broad discretion in admitting evidence, and its decisions will be affirmed on appeal absent an abuse of discretion. State v. Anglin, 45 S.W.3d 470, 472 (Mo.App.W.D. 2001). Abuse of discretion occurs when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State v. Moore, 88 S.W.3d 31, 36 (Mo.App.E.D. 2002).
DISCUSSION
In his sole point relied on, the Defendant argues that the trial court erred by allowing the State to introduce evidence of acquitted crimes during the penalty phase of the trial.
Section 557.036.3, as amended in 2003, states:
All statutory references are to RSMo. 2004, unless otherwise indicated.
If the jury at the first stage of a trial finds the defendant guilty of the submitted offense, the second stage of the trial shall proceed. The issue at the second stage of the trial shall be the punishment to be assessed and declared. Evidence supporting or mitigating punishment may be presented. Such evidence may include, within the discretion of the court, evidence concerning the impact of the crime upon the victim, the victim's family and others, the nature and circumstances of the offense, and the history and character of the defendant (emphasis added).
As a general rule, the trial court has discretion during the punishment phase of trial to admit whatever evidence it deems helpful to the jury in assessing punishment. State v. Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999); State v. Kinder, 942 S.W.2d 313, 331 (Mo. banc 1996). The Missouri Supreme Court has repeatedly held that both the State and the defendant may introduce any evidence pertaining to the defendant's character in order to help the jury assess punishment in a penalty phase setting. State v. Jaco, 156 S.W.3d 775, 781 (Mo. banc 2005). Furthermore, even evidence of a defendant's prior unadjudicated criminal conduct may be heard by the jury in the punishment phase of a trial. Winfield, 5 S.W.3d at 515; see also State v. Ferguson, 20 S.W.3d 485, 500 (Mo. banc 2000) (holding that admitting unadjudicated bad acts during the penalty phase did not violate due process).
In this case, the jury found Defendant guilty of first degree assault, armed criminal action, and attempted robbery. Afterwards, during the penalty phase of the trial, the State introduced evidence that Defendant shot five other individuals, killing four of them; three in a triple homicide, one in a separate incident. The State also introduced evidence that all those individuals were shot with the same gun that Defendant used to shoot Hardimon. Defendant stood trial for these shootings in two separate trials and was acquitted both times. In open court, the trial court took judicial notice of Defendant's earlier acquittals. The State introduced Defendant's previous acquittals during the second phase of the trial to support the State's request that Defendant be sentenced the maximum terms available for his crimes, not to determine whether Defendant was guilty of shooting Hardimon.
Whether the State can introduce evidence of Defendant's previous acquittals during the penalty phase is an issue of first impression. There is no Missouri case law on this matter. The United States Supreme Court, however, directly addressed this issue in United States v. Watts, 519 U.S. 148 (1997). In Watts, the Court found that an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof. Id. at 157. Watts also held that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence. Id.
The Court based its holding, in part, on the 18 U.S.C. Section 3661, which provides: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." See Watts, 519 U.S at 151. Much like the U.S. Code, the Missouri Revised Statutes allow the sentencing trial court to consider "[e]vidence supporting or mitigating punishment." Under Section 557.036.3, "[s]uch evidence may include, within the discretion of the court, evidence concerning the impact of the crime upon the victim, the victim's family and others, the nature and circumstances of the offense, and the history and character of the defendant."
Section 557.036.3.
In Watts, the Supreme Court reasoned that an acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt. 519 U.S. at 155. An acquittal is not a finding of any fact. Id. An acquittal can only be an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt. Id. Without specific jury findings, no one can logically or realistically draw any factual finding inferences. Id. As such, the Court held that an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof. Id.; Dowling v. United States, 493 U.S. 342, 349 (1990).
In Jaco, the Missouri Supreme Court held that the punishment phase of a trial is generally subject to a lower standard of proof than the guilt phase of the trial. 156 S.W.3d at 780. In Jaco, the defendant's 20-year sentence was within the original, unenhanced range of punishment, which was 10 to 30 years or life imprisonment for abusing a child and causing the death of her thirteen-month-old child. Id. at 777, 780. In Jaco, the court found that neither Ring v. Arizona, 536 U.S. 584 (2002) nor Apprendi v. New Jersey, 530 U.S. 466 (2000) held that a jury is required to find facts beyond a reasonable doubt to impose a sentence that is within the unenhanced range of punishment for an offense. Id. at 780. Instead, under Ring and Apprendi, facts that are the functional equivalent of elements of offenses, such as a statutory aggravating circumstance that is required for eligibility for the death penalty, must be found beyond a reasonable doubt. Id.; see also Ring, 536 U.S. at 602; Apprendi, 530 U.S. at 482-83. The Missouri Supreme Court held that since the defendant's sentence was within the original unenhanced range of punishment, any facts that would have tended to assess her punishment within that range were not required to be found beyond a reasonable doubt by a jury. Jaco, 156 S.W.3d at 780-81.
Much like the defendant in Jaco, Clark's sentences were within the original unenhanced range of punishment. The jury found Clark guilty of one count of assault in the first degree, a Class A felony, one count of armed criminal action, an unclassified felony, and one count of attempted robbery in the first degree, a Class B felony. The authorized term of imprisonment for a Class A felony is "a term of years not less than ten years and not to exceed thirty years, or life imprisonment." Section 557.011.1(1). The authorized term of imprisonment for a Class B felony is "a term of years not less than five years and not to exceed fifteen years." Section 557.011.1(2). Under Section 571.015.1, an individual convicted of armed criminal action shall be punished by imprisonment by the department of corrections and human resources for a term of not less than three years. The statute specifies a minimum sentence of three years but does not state a maximum penalty. State v. Norton, 949 S.W.2d 672, 678 (Mo.App.W.D. 1997). The absence of a state maximum penalty merely indicates a legislative intent that a defendant convicted of the offense may be sentenced to any term of years above the minimum, including life. Thurston v. State, 791 S.W.2d 893, 895 (Mo.App.E.D. 1990). Since Clark was sentenced to life imprisonment on the count of assault in the first degree, thirty years on the count of armed criminal action, and fifteen years on the count of attempted robbery, all the sentences were within the original unenhanced range of punishment.
In view of the fact that Clark did not receive enhanced sentences, any facts that would have tended to assess his punishment within that range were not required to be found beyond a reasonable doubt by a jury. Since those facts were subject to a lower standard of proof than beyond a reasonable doubt, the State was not precluded from introducing evidence of Clark's prior acquittals during the penalty phase of the trial. See Watts, 519 U.S. at 155. As the United States Supreme Court reasoned in Watts, "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence." Id. at 157. As such, the trial court did not err by allowing the State to introduce evidence of Defendant's prior acquittals during the penalty phase of the trial. Point denied.
Judgment affirmed.
Robert G. Dowd, Jr., J., and Sherri B. Sullivan, J., concur.