State v. Williams

958 S.W.2d 87, 1997 Mo. App. LEXIS 2216, 1997 WL 783139
Missouri Court of Appeals·Decided December 23, 1997·No. Nos. 66946, 71727·Published·Cited by 5 cases

Opinion

KAROHL, Judge.

A jury convicted defendant, Cashawn Williams, of trafficking in the second degree, Section 195.223 RSMo 1994, and unlawful use of a weapon, Section 571.030.1(1) RSMo 1994. Defendant appeals the judgments on the convictions of trafficking in the second degree, Section 195.223 RSMo 1994 and unlawful use of a weapon, Section 571.030.1(1) RSMo 1994. Defendant also appeals the decision from the denial of his Rule 29.15 motion without an evidentiary hearing. This issue has not been briefed. The judgments are affirmed.

One of the issues discussed at a pretrial conference concerned the testimony of defendant’s brother as a witness for defendant. Defendant told the court his brother was supposed to testify concerning a statement the brother made to an investigator which, if believed, would: (1) refute the state’s only evidence of defendant’s guilt; and, (2) implicate the brother as true possessor of the weapon and drugs. However, defendant’s brother chose to invoke his Fifth Amendment rights against self-incrimination because of threats made against him by one of the arresting officers, Detective Sperber. The prosecutor responded she had questioned the detective about the threatening statement, and he denied making it in that context. The court decided to voir dire defendant’s brother. During voir dire, he invoked his Fifth Amendment rights, and stated his invocation of the Fifth Amendment was not induced by threat. Defendant’s attorney offered a tran[89]*89script of a taped statement of defendant’s brother as an incriminating statement of an unavailable witness. Defendant’s brother was unavailable because he invoked his Fifth Amendment rights. The court ruled it would not admit the tape into evidence. After the court’s ruling, defendant requested an opportunity to call his brother to invoke his Fifth Amendment rights before the jury. The trial court also denied this request.

During the state’s case, it offered the testimony of Officer Kevin Clinton. He testified that he and Officer Gary Sperber were on patrol in the 2200 block of Indiana, in the City of St. Louis, on August 25,1993, around 4:00 p.m. While on patrol, the officers saw and recognized defendant. Defendant’s conduct appeared suspicious to the officers. Defendant began to run. The officers followed him down an alley and into the backyard of his mother’s residence. Officer Clinton observed defendant drop a semi-automatic handgun and a plastic bag containing crack cocaine. When Officer Clinton first saw defendant, he did not see a weapon on him. The officers continued to chase defendant, but they lost sight of him. They knocked on the front door of his mother’s house. Defendant’s brother answered the door. He told the officers defendant was not at home. He left the house and allowed the officers to come in and search the house. After their unsuccessful search for defendant, the officers left. They received an anonymous tip which brought them to the location of defendant. The officers placed defendant under arrest. Officer Clinton’s testimony and expert testimony concerning the cocaine is sufficient to support a finding by the jury of all the elements of the charges.

Defendant attempted two offers of proof in an effort to obtain the testimony of defendant’s brother, or if he refused to testify, to admit his taped statement into evidence as an admission because it represented a statement against his penal interest. The first offer was attempted during the pretrial conference. Defense counsel called defendant’s brother to testify. He asserted his Fifth Amendment privilege not to testify. Defense counsel then informed the court “on the grounds he previously implicated himself, I do have a tape to that effect ... why don t we mark the tape.” He then offered the tape as defendant’s Exhibit A. The prosecutor objected, and the court sustained the objection. Thereafter, the state made a motion in limine to “keep out references by the defense with regard to this witness or anything he may have said ... and I anticipate the defense may question my police officer with regard to [the witness] when it’s irrelevant to this case and anything they would say would be hearsay.” The court agreed and sustained the motion in limine. Defendant made an additional effort to have the benefit of his brother’s testimony or to establish a reason for his unavailability. Defendant asked “to make an offer of proof outside the hearing of the jury with Detective Sperber that I can question him then as to those matters outside the jury.” The court denied the request. The reason for the court’s denial is unclear and unavailable.

Defendant’s second offer of proof came during defendant’s evidence. Defendant attempted to call his brother to testify in front of or outside the presence of the jury to make an offer of proof. The court denied his request, so he offered the tape into evidence for the purpose of making a record. The court rejected the offer of proof even though defense counsel stated he wanted to enter “these matters into the record for purposes of the Court of Appeals.” The reason for the court’s denial is unclear and unavailable.

During defendant’s case, defendant’s mother, Gerry Boyd, testified that on August 25, 1993, she was sitting in her bedroom watching television with two friends and three of her children. She opened the door of her bedroom and saw one detective at the top of the steps inside her home and one at the bottom. Both had their guns drawn. According to her testimony, the police asked her to give them “the gun.” Officer Clinton searched her bedroom and then searched the house while Officer Sperber remained in the bedroom with her. Within a few minutes Officer Clinton returned. He said he found drugs and a gun in the back room of her house. The search of the back room occurred outside the presence of defendant’s [90]*90mother. She also testified that she did not see defendant at any time that day.

Defendant offered witnesses to support an alibi defense. Marvin Rice, an employee of Stan’s Pawn Shop, testified that defendant pawned four rings at his place of business on August 25, 1993, the day of defendant’s arrest. He could not recollect the time of day defendant came into the shop. Landers Wilbert, a friend of defendant, testified that she was with defendant and Ronald Stevenson on August 25,1993, when they went to the pawn shop around 12:00 p.m. Ronald Stevenson testified he was with defendant the entire day of August 25, 1993. However, he was uncertain whether Landers Wilbert accompanied them to the pawn shop.

Defendant argues two points on appeal. First, he argues the court erred by not allowing the defense to call defendant’s brother to. testify or to offer his taped statement as a declaration against penal interest if he refused to testify because it would have exonerated defendant and wholly rebutted the state’s evidence. Second, there was insufficient evidence adduced at trial to support a conviction on the unlawful use of a weapon charge.

We reject defendant’s second point. He argues the evidence was insufficient to support his conviction for unlawful use of a weapon, Section 571.030.1(1) RSMo 1986. The standard of review for sufficiency of the evidence is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found defendant guilty beyond a reasonable doubt. State v. Hunter, 939 S.W.2d 542, 544 (Mo.App. E.D.1997).

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State v. Williams, 958 S.W.2d 87, 1997 Mo. App. LEXIS 2216, 1997 WL 783139 (Mo. Ct. App. 1997).

958 S.W.2d 87 (State v. Williams) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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