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State v. Pennington

Court of Appeals of Missouri, Western District, Second Division

July 26, 2016

STATE OF MISSOURI, Respondent,
v.
EDWARD H. PENNINGTON, JR., Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Justine E. Del Muro, Judge.

          Before Karen King Mitchell, Presiding Judge, and Cynthia L. Martin and Gary D. Witt, Judges

          Karen King Mitchell, Presiding Judge

         Edward H. Pennington, Jr., appeals, following a jury trial, his convictions of felony resisting arrest, § 575.150, [1] and possession of a controlled substance, § 195.202, for which he was sentenced to concurrent two-year sentences. Pennington raises two claims on appeal; he argues that the trial court erred in both limiting his opening statement and admitting a State's exhibit without a proper chain of custody. Finding no reversible error, we affirm.

         Background[2]

         On April 4, 2011, around 11:35 p.m., Detective Hobart Price and Officer Vincent Lolly of the Kansas City Missouri Police Department were on patrol when they noticed a silver Lexus drive by. The Lexus caught their attention because the rear driver-side door opened and closed while the vehicle was traveling 35-40 miles per hour. The officers began following the vehicle. While doing so, they saw the door open again, and Detective Price could hear a female voice screaming for help. The Lexus slowed to almost a stop, the door opened again, and a woman in the backseat leaned out, again screaming for help.

         When the Lexus was nearly stopped, Detective Price jumped out of the patrol car and yelled at the driver, through the open door, to stop the car. The driver, later identified as Pennington, "took off, " so Detective Price got back into his patrol vehicle, activated the lights and siren, and pursued the car. Pennington ran numerous stop signs and drove at speeds exceeding 70 miles per hour through residential neighborhoods. At one point, the Lexus crested a hill, driving in the oncoming traffic lane, at a speed in excess of 70 miles per hour, and sparks flew from underneath the car when it came down. During the entire pursuit, the woman in the backseat was waving her arms and asking for help.

         Other officers joined the pursuit, and one was able to deploy a stop stick, which struck one of the tires of Pennington's vehicle. When Pennington attempted to turn right, he lost control and slammed the car into a tree. Pennington then jumped from the car and fled on foot. He was eventually caught by the officers, but he continued to resist by struggling and refusing to put his hands behind his back. One officer deployed a taser to obtain compliance, and the officers were able to take Pennington into custody.

         Pennington was then transported to police headquarters for booking. When the booking officer placed Pennington's socks in a property bag, she felt something hard, so she shook the sock upside down, and a clear baggie with a white, rock-like substance fell out, onto the counter. The booking officer placed the baggie inside an envelope and gave it to her supervisor. The supervisor requested the arresting officer's name, so the booking officer indicated it had been Detective Price. The supervisor then contacted dispatch to have Detective Price return to the detention area. The supervisor performed a field test on the substance, which showed positive for crack cocaine. Detective Price then placed the substance in a bag, heat-sealed it, and marked it with his initials, the case number, and the date and time of the sealing. Detective Price placed the sealed evidence in the locked property bin where it remained until it was transported by an evidence courier to the Kansas City Regional Crime Lab and placed into a secured vault. Zachary Skinner, a Forensic Specialist 4 in the Drug Analysis Unit, removed the sealed bag from the vault, broke Detective Price's seal, and tested the substance. His testing revealed the rock-like substance to contain .016 grams of cocaine.

         Pennington was charged as a persistent felony offender with felony resisting arrest, § 575.150, and possession of a controlled substance, § 195.202. Before trial, the State filed a motion in limine, seeking to exclude testimony from Dr. Marilyn Hutchinson, Pennington's endorsed expert witness whom he intended to call to support a diminished capacity defense. The State argued that Dr. Hutchinson's opinion regarding Pennington's diminished capacity was based upon Pennington's own voluntary drug intoxication. The trial court sustained the State's motion insofar as it precluded Dr. Hutchinson from testifying that Pennington's diminished capacity was related to voluntary drug intoxication but allowed Dr. Hutchinson's opinion to the extent it was based upon any mental health diagnoses independent of drug usage.

         During Pennington's opening statement, trial counsel advised the jury that Pennington "suffers from several mental health issues: [m]ajor depression, P.T.S.D., paranoia and personality disorder." Trial counsel noted that Pennington's medications had been cut off at the beginning of 2011, and he had not received medication for nearly four months when the charged crimes occurred. Trial counsel suggested that Dr. Hutchinson would testify that, on April 4, 2011, "Mr. Pennington was not thinking rationally because he was without his meds for so long." Trial counsel began to tell the jury that, once Detective Price encountered Pennington, Pennington's "mental health issues really began to show themselves." Trial counsel started, "Dr. Hutchinson will tell you that his P.T.S.D. came back in the fear-"; but counsel was cut off by an objection from the State, arguing that this was not "appropriate testimony of Dr. Hutchinson" and was "not in her report." In response, trial counsel advised the court: "I expect her to testify that the reason that he ran from him, ran from the-" but the State again interposed, arguing, "That's not what she says in her report." The court then advised trial counsel, "You have to stick to what's mentioned in her report. I'm afraid if it's not in there then we can't do that, okay?" Trial counsel acknowledged the court's ruling and then continued her opening statement, advising the jury: "Now Dr. Hutchinson will come in and she will testify about his mental health issues and how that affected his thinking on April 4th of 2011." She concluded the opening statement by asking the jury to "find [Pennington] not guilty of resisting of a lawful stop because of his irrational thinking and diminished capacity that Dr. Hutchinson will be testifying to."

         During Dr. Hutchinson's testimony, she indicated that Pennington suffered from post-traumatic stress disorder (PTSD) as a result of witnessing a murder during a prior term of incarceration. Dr. Hutchinson further testified that, in her medical opinion, Pennington was not thinking rationally when he fled from police. On cross-examination, Dr. Hutchinson acknowledged that Pennington told her the reason he fled was because he believed that outrunning the police would give him time to "help out" his daughter before he was arrested.

         In closing argument, trial counsel suggested to the jury that Pennington's PTSD is what caused him to flee from the police, "feeling the fear of going back to prison because of the murder he witnessed there." The jury found Pennington guilty as charged, and the court sentenced him to concurrent two-year sentences. Pennington appeals.

         Analysis

         Pennington brings two points on appeal. First, he argues that the trial court erred in limiting his opening statement by sustaining the State's objection when Pennington tried to tell the jury what he believed Dr. Hutchinson would say in her testimony. Second, he argues that the court erred in admitting State's Exhibit 7 (the crack cocaine) because there was an insufficient ...


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