Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of the City of St. Louis Cause No.
1222-CR06450-01 Honorable Julian L. Bush
Colleen Dolan, Judge
Hughes, ("Defendant"), appeals his conviction of
first-degree burglary, first-degree robbery, two counts of
kidnapping, five counts of armed criminal action, and one
count of forcible rape for which he received a sentence of 43
years. Defendant claims the trial court erred in
denying his motion to strike his co-defendant's
testimony, thereby denying Defendant his Sixth Amendment
right to confrontation, and his rights under the Fourteenth
Amendment to due process and right to a fair trial. Defendant
additionally claims the trial court erred in denying his
motion for judgment of acquittal on Counts XIX and XX (the
forcible rape and accompanying armed criminal action),
arguing there was insufficient evidence to find him guilty.
We affirm the trial court's decision.
was convicted after a two-day bench trial on July 22 and 23,
2014. Evidence at trial demonstrated on November 21, 2012,
Defendant and co-defendant, Shawn Borders, broke into the
home of Bryan Richardson and robbed him, forcing him, his
guest Alfred Barton, and Richardson's fiancée,
T.A., to the floor, while the two defendants demanded money.
Defendant took Richardson's expired debit card and left
Borders to stand guard over the three victims while he
attempted to withdraw money from a nearby ATM. When Defendant
returned he took T.A., who was in her second trimester of
pregnancy, into the bedroom and raped her at gunpoint. The
defendants then led Richardson and Barton into the bedroom
and Richardson told them he had $800.00 in his jacket pocket.
Subsequently, the defendants took turns removing valuables
from the apartment and standing guard over the prisoners.
Before they left, the defendants covered the victims'
heads with dresser drawers and ordered them to count down
from one thousand.
trial, Kenneth Allen, Borders's grandfather and
Defendant's step-grandfather, testified the defendants
stored the goods at his home and identified Defendant. Each
of the victims testified to the series of events, including
the rape, and items that were stolen. Borders pleaded guilty
to the charges and testified as a hostile witness, admitting
he was with Defendant on November 21, and together they
robbed the apartment. Borders initially refused to answer
questions implicating Defendant in the robbery, when posed by
both the prosecutor and defense counsel. However, after
instruction by the judge to answer defense counsel's
questions and a break, Borders testified Defendant was with
him during the home invasion on cross-examination. Borders
also testified they were together on November 23, 2012, when
they were arrested after fleeing the police. Borders stated
Defendant was driving and crashed the car prior to their
State also called several police officers to the stand,
including the first responders who testified about the
evidence seized from the car. These items included two
t-shirts with the names of the victims and a gun with laser
sights that T.A. identified as the gun used during the
robbery. The State also called forensic experts who testified
Defendant's DNA was found on a glove left inside the
apartment by the assailants. At the close of evidence the
court found Defendant guilty of burglary, robbery, two counts
of kidnapping, five counts of armed criminal action, and one
count of forcible rape, and sentenced him to serve a total
sentence of 43 years.
Standard of Review
courts have broad discretion to admit or exclude evidence and
this Court will only reverse upon a clear showing of abuse of
discretion. State v. Moffett, 474 S.W.3d 248, 250
(Mo. App. S.D. 2015). "An abuse of discretion exists
when the trial court ruling 'clearly offends the logic of
the circumstance or appears arbitrary and
unreasonable.'" State v. Patton, 419 S.W.3d
125, 133 (Mo. App. E.D. 2013) (internal quotations omitted).
An appellate court will only reverse a conviction due to
evidentiary error if it "was so prejudicial that it
deprived the defendant of a fair trial." State v.
Evans, 455 S.W.3d 452, 455 (Mo. App. E.D. 2014). Errors
are prejudicial when "the errors are more likely than
not to have affected the outcome." Patton, 419
S.W.3d at 133. While the admissibility of evidence is
reversed only when a court finds a clear abuse of discretion,
"whether a defendant's rights were violated is a
question of law reviewed de novo." State v.
Aaron, 218 S.W.3d 501, 505 (Mo. App. W.D. 2007).
The trial court did not abuse its discretion in denying
Defendant's motion to exclude testimony of co-defendant,
all criminal prosecutions the accused shall enjoy the
right…to be confronted with the witnesses against
him." U.S. Const. Amend. VI. A defendant's Sixth
Amendment right to confrontation is "one of the
safeguards essential to a fair trial." United States
v. Cardillo, 316 F.2d 606, 613 n. 4 (2d Cir. 1963).
"Cross-examination of a witness is a matter of
right…and its allowance is especially important in the
case of a witness who is himself an admitted violator of the
law." Id. (internal quotations omitted).
1982, the Missouri Supreme Court adopted the Second
Circuit's holding in Cardillo regarding the
confrontation clause and witnesses who invoke the Fifth
Amendment privilege against self-incrimination. See State
v. Blair, 638 S.W.2d 739, 754 (Mo. banc 1982). In
Cardillo, the Second Circuit held a "conviction
will be reversed if the cross-examination of government
witnesses has been unreasonably limited."
Cardillo, 316 F.2d at 611. "However, reversal
need not result from every limitation of permissible
cross-examination and a witness' testimony may, in some
cases, be used against a defendant, even though the witness
invokes his privilege against self-incrimination during
cross-examination." Id. A witness's
testimony should be stricken in whole or in part "if the
witness by invoking the privilege precludes inquiry into the
details of his direct testimony[.]" Id. This is
because a defendant who is deprived of the right to test the
truthfulness of an adverse witness's direct testimony
faces "a substantial danger of prejudice[.]"
present case, co-defendant, Borders, initially refused to
implicate Defendant when asked questions about the home
invasion by the prosecution. Borders did not invoke the Fifth
Amendment at any point and freely answered questions about
his own involvement. He would not testify as to whether he
was telling the truth when he made a statement to the police
that implicated Defendant. Under cross-examination, Borders again
refused to answer any questions implicating Defendant,
stating clearly it was not because he was being asked
questions by Defendant's attorney. At sidebar, Defense
counsel made its first request to strike Borders's
testimony from direct examination, alleging Defendant's
right to confrontation had been violated. The court stated it
would entertain that request if defense counsel asked the
court to direct Borders to answer questions on ...