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State v. Hughes

Court of Appeals of Missouri, Eastern District, Second Division

August 30, 2016


         Appeal from the Circuit Court of the City of St. Louis Cause No. 1222-CR06450-01 Honorable Julian L. Bush

          Colleen Dolan, Judge

         I. Introduction

         Leland 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.[1] 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.

         II. Factual Background

         Defendant 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.

         At 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 arrest.

         The 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.

         III. Standard of Review

         Trial 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).

         IV. Discussion

         a. The trial court did not abuse its discretion in denying Defendant's motion to exclude testimony of co-defendant, Shawn Borders.

         "In 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).

         In 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[.]" Id.

         In the 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.[2] 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 ...

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