State of Missouri v. Jeffery Jerome Millens, Jr.

• Court: Missouri Court of Appeals
• Decided: May 17, 2022
• Docket: WD84274
• Status: Published

Opinion

In the Missouri Court of Appeals Western District

STATE OF MISSOURI, ) Respondent, ) WD84274 v. ) ) JEFFERY JEROME MILLENS, JR., ) FILED: May 17, 2022 Appellant. )

APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY THE HONORABLE DANIEL R. GREEN, JUDGE

BEFORE DIVISION ONE: LISA WHITE HARDWICK, PRESIDING JUDGE, ALOK AHUJA AND MARK D. PFEIFFER, JUDGES

Jeffery Millens appeals from his convictions of second-degree murder,

armed criminal action, and the unlawful possession of a firearm. Millens

contends there was insufficient evidence to support his convictions. He further

argues the circuit court erred in granting the State’s motion to quash a post-trial

subpoena duces tecum for a juror who allegedly committed misconduct. Lastly,

he asserts the court erred in entering a written sentence for second-degree

murder that differs from the court’s pronounced sentence. For reasons explained

herein, we affirm, conditioned upon a limited remand with instructions to correct

the written judgment to reflect the actual sentence imposed. FACTUAL AND PROCEDURAL HISTORY

In the light most favorable to the verdict, the following facts were adduced

at trial: On December 31, 2016, Millens attended a party at Georden Qualls’s

home. At the time, Millens was wearing a red coat and had shoulder length

dreadlocks. The home was sparsely lit. At some point, Qualls observed

Quonterio Davis fighting with a man who appeared to have dreadlocks and was

wearing a red coat. Qualls further testified that, “when the fight broke out,” he

heard someone say Millens’s name. Qualls saw a gun “as much as he wanted to

see it,” and heard gunshots, which caused Qualls to flee to another room.

Dimitri Barnes, who was in a relationship with Davis and who shared a child

with Millens, was in a separate room when the shooting occurred. After the

shooting stopped, Kristen Andrews, Millens’s cousin, warned Barnes to hide

because “it’s Jeff [Millens].” Barnes assumed that Andrews had warned her to

hide because she and Millens had been on bad terms since the birth of their child.

Andrews was also in another room when she heard arguing and heard

Millens say “bitch,” which prompted her to run towards the argument. As she

reached an entrance to the room where the fight was happening, she saw muzzle

flashes and heard gunshots. In the confusion, she collided with another party

guest. After Andrews reoriented herself, she saw Millens with his arms raised

standing near Davis, who was on the floor “gasping for air.” Millens looked at

Andrews but said nothing, and “[Millens] left, but he didn’t run. He didn’t – he

just looked at [Andrews].”

2 Andrews informed officers that Millens was the shooter, and officers

arrested Millens later that night. Millens initially told detectives that he was at his

girlfriend’s house and had a flat tire, but he eventually admitted that he attended

the party. He further denied knowing Davis, which he also later recanted. Officers

attempted to perform a test to determine if gunshot residue was present on

Millens, but he resisted. The test was eventually performed, and the results

showed elements consistent with gunshot residue. One of Millens’s dreadlocks

had also fallen off and was recovered in the room where the shooting occurred.

Millens was charged with second-degree murder, armed criminal action,

and illegal use of a firearm. A jury trial was held. During voir dire, Millens’s trial

counsel asked if any potential jurors had previously known Millens. Juror number

23 remained silent. After trial, Millens filed a motion for a new trial in which he

argued, in part, that juror number 23 committed misconduct by failing to disclose

that she knew Millens. Millens’s motion contained only general allegations that

juror number 23 knew him and that he did not recognize her sooner because she

wore a mask in the courtroom. Millens issued a subpoena duces tecum to

summon juror number 23 to testify. The State filed a motion to quash the

subpoena on the ground that Millens had not alleged facts indicating that the juror

actually knew him. At sentencing, Millens’s counsel argued that, “[a]fter the trial

was concluded, Mr. Millens advised my office that he recognized juror No. 23 and

realized that she had been living across the street from him and his mother at one

point.” The circuit court granted the State’s motion to quash the subpoena duces

3 tecum, denied Millens’s motion for new trial, and sentenced Millens to

consecutive sentences of life imprisonment for second-degree murder, and 10

years each for armed criminal action and the unlawful use of a firearm. Millens

appeals.

ANALYSIS

In Points I and II, Millens contends the verdict was unsupported by sufficient

evidence that he shot Davis and that he ever shot a firearm. Our review of a

challenge to the sufficiency of the evidence to support a conviction is “limited to

determining whether there was sufficient evidence from which a reasonable juror

might have found the defendant guilty beyond a reasonable doubt.” State v.

Naylor, 510 S.W.3d 855, 859 (Mo. banc 2017) (internal citation and quotations

omitted). “This is not an assessment of whether this [c]ourt believes that the

evidence at trial established guilt beyond a reasonable doubt but rather a question

of whether, in light of the evidence most favorable to the State, any rational fact-

finder could have found the essential elements of the crime beyond a reasonable

doubt.” Id. (internal citations and quotations omitted). We do not reweigh the

evidence but, instead, accept as true all evidence and inferences supporting guilt

and ignore all contrary evidence and inferences. Id. at 858-59.

Millens contends the jury’s verdict rests on “unreasonable inference and

speculation.” He argues the State’s witnesses all saw the events surrounding the

shooting, but that none could testify that they unequivocally saw him shoot Davis.

To support his argument, Millens relies on State v. Lehman, 617 S.W.3d 843, 849

4 (Mo. banc 2021), a case in which our Supreme Court reversed a conviction based

on insufficient evidence. In Lehman, the defendant was charged with loitering

within 500 feet of a public park after having been convicted of incest in another

State. Id. at 844-45. The only piece of evidence indicating that the defendant was

within 500 feet of a public park was a police report indicating that the defendant

was at a location “near” a park. Id. at 845. The Court found that the term “near,”

without support from additional evidence, was too subjective to prove beyond a

reasonable doubt that the defendant was within 500 feet of a public park. Id. at

849-50.

Millens argues the circumstances of his case are similar to those in Lehman

because the State’s evidence merely places him near the shooting, which he

contends is insufficient to support the verdict. We disagree. Unlike in Lehman,

where a single, ambiguous article of evidence was offered to demonstrate the

defendant’s proximity to the park, the State in this case offered ample evidence

that not only indicates that Millens was near the shooting but also allows for the

reasonable inference that he was, in fact, the shooter.

Qualls testified that he saw someone matching Millens’s description

fighting with Davis immediately before the shooting occurred and that someone

said Millens’s name as the fight broke out. Qualls saw a gun and heard the

gunshots that resulted in Davis’s death. Qualls’s testimony allows for the

reasonable inference that Millens was fighting with, and ultimately shot, Davis.

Andrews’s testimony and statements to police allow for a similar inference.

5 Andrews testified that she heard arguing and that she heard Millens say “bitch”

from that area, which allows for the reasonable inference that Millens was

involved in the argument. Andrews also testified that she ran into the room

during the shooting to see Millens standing with his arms raised near the recently

shot Davis. Andrews selected Millens from a photographic lineup as the man

standing near Davis with his arm raised.

Additionally, Millens had gunshot residue on his person, allowing for the

reasonable inference that he recently shot a firearm, and he had lost a dreadlock

in the room where the shooting occurred, indicating his immediate proximity to

the shooting. Millens’s own conduct after the shooting further supports an

inference of guilt as he walked, rather than ran, away from an active shooting,

resisted when officers sought to obtain a gunshot residue sample, and he

admitted to lying to detectives about his whereabouts that evening. Millens’s lack

of alarm to the shooting allows for an inference that he was not alarmed because

he was the shooter, and his attempt to hide his whereabouts infers a guilty

conscience. See State v. Buchli, 152 S.W.3d 289, 297 (Mo. App. 2004) (“Guilt may

be inferred when an accused attempts to deceive the police, as in making a false

exculpatory statement”).

Millens argues at length about the unreasonableness of the inferences

drawn from the evidence. In doing so, he asks us to depart from our standard of

review and consider adverse evidence and inferences that do not support the

verdict. Millens argues that multiple people at the party had dreadlocks and red

6 coats, so any witness identification on those grounds is ineffectual; that Andrews

was intoxicated during the party, impeaching her credibility; that, at trial, Andrews

recanted her prior identification of him as the shooter; that his lying to detectives

about his whereabouts was “understandable” because he was scared; and that

the sum of the evidence merely demonstrates that he was “a bystander to the

fight.” These arguments rely on either evidence or inferences adverse to the

verdict, which we may not consider, or they run contrary to the jury’s credibility

determinations, which we will not disturb on appeal. Naylor, 510 S.W.3d at 858-

59. Without more, and without departing from the appropriate standard of

review, Millens has neither rebutted the evidence nor the multiple reasonable

inferences drawn therefrom that he shot Davis with a firearm. We find that the

evidence was sufficient to support the jury’s verdict beyond a reasonable doubt.

Points I and II are denied.

In Point III, Millens contends the circuit court abused its discretion in

granting the State’s motion to quash Millens’s subpoena duces tecum for juror

number 23 and denying his motion for new trial based on juror misconduct. “A

trial court’s evidentiary rulings are reviewed for abuse of discretion.” State v.

Davis, 318 S.W.3d 618, 630 (Mo. banc 2010); State ex rel. Poker v. Kramer, 216

S.W.3d 670, 672 (Mo. banc 2007) (applying the abuse of discretion standard to the

denial of a motion to quash a subpoena duces tecum). “The trial court abuses its

discretion when its ruling is clearly against the logic of the circumstances before it

and when the ruling is so arbitrary and unreasonable as to shock our sense of

7 justice and indicate a lack of careful consideration. State v. Garvey, 328 S.W.3d

408, 417 (Mo. App. 2010).

Millens argues that, because the court quashed his subpoena, he was

unable to present evidence supporting his claim of juror misconduct and was

thereby deprived of the opportunity to prove his allegation. Millens supports his

argument that his subpoena should have been enforced with the conclusory

assertion that:

Because Mr. Millens raised the issue of juror misconduct in his timely motion for a new trial, and because Mr. Millens subpoenaed Juror No. 23 to testify at the hearing on his motion for a new trial, the court abused its discretion in quashing the subpoena and denying the motion for a new trial.

“Rule 26.02 vests the trial court with broad discretion in determining

whether good cause exists for the enforcement of a subpoena duces tecum.”

State ex rel. St. Louis Cty. v. Block, 622 S.W.2d 367, 369 (Mo. App. 1981). The

party seeking enforcement bears the burden to show good cause. See id.; State

ex rel. Phelps v. McQueen, 296 S.W.2d 85, 89 (Mo. banc 1956). Although Millens

did generally allege in his motion for new trial that juror number 23 knew him,

those allegations did not include any factual allegations indicating when, where,

or how juror number 23 knew him. Indeed, Millens’s motion did not contain any

factual allegations beyond that he recognized juror number 23 after the trial had

ended. Millens did not allege how he knew juror number 23, or that she had any

reason to know him. What caused him to realize post-trial that he knew juror

number 23?

8 In arguing against the motion to quash at sentencing, Millens’s counsel

further asserted that Millens recognized that juror number 23 had lived near him

and his mother “at one point.” In response, the State argued that Millens failed to

allege sufficient facts indicating that juror number 23 actually knew him. After

hearing the arguments, the court granted the motion to quash.

Millens does not support his sparse allegations of juror misconduct with

relevant caselaw or additional facts in the record; rather, he argues at length that,

assuming his subpoena was enforceable, his inability to call juror number 23 to

testify caused the circuit court to inappropriately deny his motion for new trial

without hearing any evidence. This argument does not remedy the lack of good

cause shown to enforce the subpoena, and it ignores that Millens or his mother, if

available, could have testified to their relationship with juror number 23, or

Millens could have deposed juror number 23 prior to the hearing. The argument

also ignores that Millens could have included far greater allegations of fact from

his own experience of allegedly knowing juror number 23 to show why the

subpoena should be enforced. With only a single, vague factual allegation

supporting an inference that juror number 23 knew Millens for the court to

consider, we find that the court did not abuse its discretion in granting the State’s

motion to quash the subpoena. Moreover, because Millens subsequently failed to

produce any evidence to support his contention of juror misconduct, the court did

not abuse its discretion in denying his motion for new trial on this basis. Point III

is denied.

9 In Point IV, Millens contends that the circuit court committed a clerical error

in its written sentence that requires correction. At sentencing, the circuit court

pronounced that Millens was to be sentenced to life imprisonment for second-

degree murder. The circuit court’s written judgment, however, imposes a

sentence of “999 Years.” The parties agree that the oral pronouncement controls

under these circumstances and that the judgment does not accurately reflect the

actual sentence imposed. See Johnson v. State, 446 S.W.3d 274, 276 (Mo. App.

2014). The parties further agree that the appropriate remedy is an order nunc pro

tunc under Rule 29.12(c) to correct the error in the judgment. State v. Bjorgo, 571

S.W.3d 651, 660-61 (Mo. App. 2019) (where we issued a “limited remand” with

instructions for the circuit court to correct its judgment to reflect the sentence

actually imposed). Rule 29.12(c) proscribes, “Clerical mistakes in judgments,

orders or other parts of the record and errors in the record arising from oversight

or omission may be corrected by the court at any time after such notice, if any, as

the court orders.”

The sole disagreement between the parties is the appropriate procedure for

correcting the judgment. The State argues that we need not issue a limited

remand and that we may correct the judgment ourselves under Rule 84.14, a

procedure that we utilized in Pittman v. State, 331 S.W.3d 361, 368 n*2 (Mo. App.

2011). In Pittman, however, we noted that the “unusual” decision to amend the

judgment under Rule 84.14 was made in light of the case’s unique procedural

10 circumstances, which are not present here.1 Id. Accordingly, we find a limited

remand for the purpose of correcting the written sentence appropriate under the

circumstances in this case. See Bjorgo, 571 S.W.3d at 660-61. Point IV is granted.

CONCLUSION

The judgment is affirmed; however, we issue a limited remand with

directions that the circuit court enter an order nunc pro tunc correcting the written

sentence and judgment with respect to Millens’s conviction for second-degree

murder to reflect a sentence of life imprisonment rather than “999 Years.”

____________________________________ LISA WHITE HARDWICK, JUDGE ALL CONCUR.

1 The appeal in Pittman arose from the denial of a Rule 24.035 post-conviction motion in which the defendant requested that the circuit court issue an order pro nunc tunc to correct his sentence. Pittman, 331 S.W.3d at 368 n*2. The defendant’s request was ultimately abandoned by his post- conviction counsel, however, so the circuit court did not consider it. Id. On appeal, we found no error in the circuit court’s failure to issue an order nunc pro tunc, and expressed concern that our affirmation of the circuit court’s denial of the Rule 24.035 motion would amount to a final adjudication of the request to correct the sentence, which may have then precluded the defendant from obtaining relief under Rule 29.12. Id. Here, Millens directly appeals his sentence, and thus avoids the procedural uncertainties present in Pittman. Under similar procedural circumstances to the case before us, we have found a limited remand to be the appropriate remedy. See Bjorgo, 571 S.W.3d at 660-61.