Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Gannaway

Court of Appeals of Missouri, Southern District, First Division

August 4, 2016

STATE OF MISSOURI, Plaintiff-Respondent,
v.
RAYMOND ROBERT GANNAWAY, II, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Calvin R. Holden

          OPINION

          MARY W. SHEFFIELD, C.J.

         Raymond Robert Gannaway, II, ("Defendant") appeals his convictions, following a jury trial, for first-degree statutory sodomy, see Section 566.062, and attempted statutory rape, see Sections 566.032, 564.011.[1] His first point claims his due process rights were violated when the trial court allowed jurors to submit questions to witnesses. His second point claims there is not sufficient evidence to support his convictions. Because his first point is not preserved for appellate review, and sufficient evidence supports his convictions, we affirm.

         Point One: Defendant's Constitutional Argument is Not Preserved

         Defendant's first point claims the trial court erred in overruling his continuing objection to the process of allowing jurors to submit questions, filtered through the court, to witnesses at trial. Defendant does not argue that any specific question was improper or prejudicial nor that any question solicited improper or prejudicial information from a responding witness. Rather, Defendant argues that the process of allowing jurors to submit questions to witnesses in a criminal case, by itself, violated Defendant's rights to due process and equal protection of the law such that he was deprived of a fair trial.

         Before addressing the merits of Defendant's argument that the process used by the trial court violated his constitutional rights, it must first be determined whether the claims were preserved for appellate review.

This Court has clearly set out that in order to preserve a constitutional issue for appeal a party must (1) raise the constitutional issue at the first available opportunity, (2) specifically designate the constitutional provision claimed to have been violated by express reference to the article and section of the constitution or by quoting the provision itself, (3) state the facts showing the violation; and (4) preserve the constitutional question throughout for appellate review.

State v. Williams, 904 S.W.2d 103, 105 (Mo. App. E.D. 1995) (internal quotations omitted); see also State v. Knifong, 53 S.W.3d 188, 192 (Mo. App. W.D. 2001) (applying standard to constitutional challenge of jury instruction).

Because an appellate court is not a forum in which new points will be considered, but is merely a court of review to determine whether the rulings of the trial court, as there presented, were correct, a party seeking the correction of error must stand or fall on the record made in the trial court, thus it follows that only those objections or grounds of objection which were urged in the trial court, without change and without addition, will be considered on appeal.

State v. Davis, 348 S.W.3d 768, 770 (Mo. banc 2011) (quoting State v. Thomas, 969 S.W.2d 354, 355 (Mo. App. W.D. 1998)).

         A few days prior to trial, the court advised both parties he intended to allow jury questions.[2] Then after voir dire, Defendant objected to the juror questioning procedure for a "couple" of reasons. First, Defendant argued that the process was "a violation of due process and a violation of [Defendant's] rights under both the United States Constitution and the Missouri." In support, Defendant argued that jurors could potentially form negative inferences against Defendant if a question they posed was not asked.

         Defendant also claimed error because there was no "MAI approved instruction for criminal procedure" that allowed jurors to pose questions to witnesses. The court overruled Defendant's objections reasoning that allowing jurors to ask questions "increases their ability to remember the evidence and follow the evidence."

         Defendant argues now that he was exposed to various risks that other defendants do not face as a result of this questioning, and that the resulting "disparate treatment" violated Defendant's rights to "procedural due process and to equal protection of the laws as guaranteed by the 14th Amendment to the U.S. Constitution and article I, Section 2 of the Missouri Constitution[.]"

         For several reasons, Defendant's constitutional challenge to the process used by the trial court is not preserved for our review. First, Defendant did not alert the trial court to the particular constitutional provision that he claimed was being violated by providing either citations to the specific article and section or simply quoting the provision. See Knifong, 53 S.W.3d at 193 (holding that a challenge as to a verdict director being unconstitutionally vague was not sufficiently specific where counsel argued the verdict director "violates defendant's due process rights" but did not discuss a specific provision of the Missouri or United States Constitution); State v. Tisius, 362 S.W.3d 398, 405 (Mo. banc 2012) (a constitutional claim of error must include citation to a specific constitutional section to be preserved for appellate review). He merely ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.