State v. Blackwell

978 S.W.2d 475, 1998 Mo. App. LEXIS 1752, 1998 WL 689944
CourtMissouri Court of Appeals
DecidedOctober 6, 1998
DocketNo. 73324
StatusPublished
Cited by4 cases

This text of 978 S.W.2d 475 (State v. Blackwell) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Blackwell, 978 S.W.2d 475, 1998 Mo. App. LEXIS 1752, 1998 WL 689944 (Mo. Ct. App. 1998).

Opinion

KAROHL, Judge.

The State charged defendant, Leroy L. Blackwell, with first degree burglary, section 569.160 RSMo 1994,1 armed criminal action, section 571.015, unlawful use of a weapon, section 571.030.1(1), resisting arrest, section 575.150, and possession of a controlled substance, section 195.202. A jury found him guilty on all counts. The court sentenced defendant in accordance with the verdicts. Defendant argues that trial court error supports reversal on the armed criminal action charge because there was insufficient evidence to support a conviction. He also argues the trial court: (1) abused its discretion by excluding or limiting defendant’s right to cross-examine; and, (2) as a matter of plain error, abused its discretion in permitting the State’s reference to defendant’s failure to testify and allowing minimization of the jury’s responsibility in the imposition of sentence during closing arguments. We affirm.

There was evidence to support finding the following facts. On September 24, 1996, defendant and two companions entered a house, belonging to Robert Elliott, in search of marijuana. A neighbor saw them enter the back porch of the home. He called police. Detective Raus responded to a dispatch of burglary in progress. He approached the house, weapon drawn. He saw defendant and two other individuals standing in the kitchen. He saw defendant holding a small caliber rifle in his right hand. Defendant ran; Raus pursued. Detective Raus tackled defendant. He found a pint jar of marijuana in defendant’s coat pocket. Elliott testified that a .22 Remington semiautomatic rifle was missing from his home, but denied owning the marijuana.

In his first point on appeal, defendant challenges the sufficiency of the evidence only on the charge of armed criminal action. He submits that the gun he possessed was not used to aid or assist commission of the burglary. The trial court found there was evidence to support a finding that defendant committed burglary by, with or through the use, assistance or aid of a dangerous instrument or deadly weapon, thereby completing the ci'ime of armed criminal action. Section 571.015(1). We review the evidence together with all reasonable inferences favorable to the verdict and we will ignore evidence or inferences contrary to the verdict. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993); State v. White, 798 S.W.2d 694, 697 (Mo. banc 1990).

The evidence was more than sufficient to support a conviction of armed criminal action, based on the appropriate standard. Detective Raus testified he saw defendant in the house and defendant was holding a small caliber riñe in his light hand. He identified himself and ordered defendant to stop and drop the gun. During a pursuit that followed he again ordered defendant to stop and drop the gun. Defendant faced and pointed the gun at Detective Raus. He ordered defendant to drop the gun. Defendant complied. Raus wrestled defendant to the ground. Defendant thereafter reached for the gun. Raus told defendant to stop or he would shoot. There was evidence that defendant stole the gun, later determined to be a loaded .22 semiautomatic rifle, from the Elliott residence. This evidence is sufficient in itself to support finding defendant guilty of armed criminal action.

Moreover, defendant does not appeal the sufficiency of the evidence on the burglary first charge, only the armed criminal action. The charge of burglary in the first degree required evidence to support finding defendant entered an inhabitable structure for the purpose of committing a crime therein and “in effecting entry or while in the building or [478]*478inhabitable structure or in immediate flight therefrom, he or another participant in the crime ... [was] armed with explosives or a deadly weapon.” Section 169.160. The evidence that defendant was armed while in the building supported a finding that he was guilty of burglary in the first degree and, therefore, the same evidence supports a finding he was guilty of armed criminal action. Point denied.

In his second point, defendant argues the court erred by excluding or limiting his cross-examination of Detective Raus and Assistant Police Chief Turner regarding drugs. He had hoped to elicit evidence to support a finding there had been no investigation of Elliott, the owner of the residence from which marijuana was allegedly taken. Specifically, defendant argues the court curtailed his effort to explore bias or prejudice of these witnesses. This point fails for two reasons.

First, defendant made no offer of proof in order to preserve this issue for appellate review. This court has held that when an objection is sustained on proffered evidence, the offering party must make an offer of proof to properly preserve for appellate review. State v. Fleer, 851 S.W.2d 582, 595 (Mo.App. E.D.1993). “An offer of proof must demonstrate the relevance of the testimony offered, must be specific, and must be definite.” State v. Seiter, 949 S.W.2d 218, 224 (Mo.App. E.D.1997); Fleer, 851 S.W.2d at 595 (emphasis added). There was no' such offer of proof. Defendant attempted to cross-examine both witnesses regarding who had the responsibility to order an investigation into the ownership of the marijuana. The court sustained two relevancy objections to this evidence. Defendant never attempted to make a specific offer of proof or explain relevancy. The trial court gave defendant every opportunity, short of testimony before the jury, to demonstrate the purported bias to the court.

Second, in fact, the evidence supports a finding that defendant had the benefit of the opportunity to cross-examine both witnesses. As a matter of law, defendant is entitled to an opportunity to cross-examine. “Generally, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent the defense might wish.” State v. Baker, 859 S.W.2d 805, 809 (Mo.App. E.D.1993).

The tidal transcript contains the following cross-examination. Defendant asked Turner if there had been an investigation done on the owner of the house. Turner said no. Defendant asked if Turner directed anyone in the police department to investigate. Turner said no. He said it was the detective’s responsibility to investigate the crime scene. Defendant cross-examined Turner further:

Q. You can not direct him as Assistant Chief of Police to investigate Robert Elliott?
A. He was investigating the crime. Uhm, I did not direct him to do so because he was doing that and by our city ordinance he has full responsibility of a felony crime scene. We do not have the right to direct him at a crime scene.
Q. Well, would the Chief of Police have a right to do that?
A. No, he does not.
[State]. Your Honor, I’m going to object as to the relevancy of any of this.
[Court]. Sustained as to that question.

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Related

State v. Harrell
342 S.W.3d 908 (Missouri Court of Appeals, 2011)
State v. Faulkner
103 S.W.3d 346 (Missouri Court of Appeals, 2003)
Blackwell v. State
45 S.W.3d 502 (Missouri Court of Appeals, 2001)
State v. Bolds
11 S.W.3d 633 (Missouri Court of Appeals, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
978 S.W.2d 475, 1998 Mo. App. LEXIS 1752, 1998 WL 689944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-blackwell-moctapp-1998.