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State v. Pitchford

Court of Appeals of Missouri, Eastern District, Fourth Division

March 28, 2017


         Appeal from the Circuit Court of the City of St. Louis 1522-CR01737-01 Honorable Thomas J. Frawley



         Perry I. Pitchford, Jr. (Pitchford) appeals from the trial court's judgment and sentence following a jury's verdict of guilty. He asserts the trial court plainly erred in admitting excerpts of recorded phone calls Pitchford made in jail that were not disclosed to the defense until the morning of trial, in giving each juror a copy of a specific instruction, in admitting evidence of uncharged and prior bad acts, and in allowing the State to suggest special knowledge of facts during voir dire. We affirm.

         Background and Procedure

         The State charged Pitchford as a prior and persistent offender with one count of the class A felony of robbery in the first degree, in violation of Section 569.020, RSMo. (2000), and one related count of armed criminal action (ACA). At trial, the following occurred.

         Just before the start of trial on Monday, February 22, 2016, counsel for Pitchford announced the State had just provided him with four disks containing hundreds of hours of recorded telephone calls Pitchford had made from the St. Louis City Justice Center (Justice Center), and the State had informed him of its intention to introduce several redacted excerpts of conversations. Counsel objected to this evidence, complaining of surprise. The State responded that it had informed counsel in August of 2015 that all of Pitchford's telephone calls from the Justice Center were being recorded and were available to be subpoenaed. Moreover, the State had not intended to subpoena the telephone calls until the Thursday before trial when the complaining witnesses brought potential witness tampering to the State's attention. Only at that point did the State subpoena the records, receiving them on Friday afternoon. The State listened to the recordings all weekend and around 11:00 p.m. on the evening before trial discovered the incriminating statements it was now seeking to admit. Pitchford again objected to the evidence as prejudicial "without further opportunity to conduct discovery and have a chance to sit down and listen to all these tapes and understand the context and the source and the whole totality." The trial court overruled Pitchford's objection to the specific statements the State was seeking to introduce, but it reserved ruling on any additional recordings. The court also overruled Pitchford's implied request for continuance.

         Trial commenced, and Jessica Harmony (Victim) testified to the following. She and a female friend, K.D., were celebrating K.D.'s birthday at Nara, a bar on Washington Avenue in St. Louis, Missouri. Pitchford and a male friend joined their table and spent the evening with them. At one point, Pitchford and K.D. went outside to smoke marijuana, and Victim obtained Pitchford's telephone number so she could contact K.D. outside. When the bar closed, Pitchford offered to drive the women to Victim's car. Victim and K.D. entered Pitchford's car, where they found Pitchford, his friend from the bar, and a third man they did not know. Pitchford parked his car behind Victim's car, and they all sat for a while smoking marijuana. Pitchford then drove away from Victim's car at a high rate of speed with the women still in the backseat. When Pitchford pulled over, the front passenger pulled out a handgun and pointed it at Victim and K.D. while Pitchford demanded Victim's purse. Victim refused, and Pitchford grabbed the purse off Victim's wrist, unzipped it, and removed her money, $600 in cash. Victim and K.D. exited the car and ran away while Pitchford drove off. Victim reported the robbery to the police, who were able to locate Pitchford through the telephone number he had given Victim earlier in the evening. Victim identified Pitchford in both a photograph and a physical line up.

         Pitchford testified in his own defense to the following. The front passenger, a man named Christopher Bronson, a.k.a. C4 (C4), was the person who drew a handgun, demanded money from Victim, and took Victim's purse off her wrist. After the women ran away, C4 pointed the gun at Pitchford and demanded that he drive. A couple blocks away, C4 exited the car and then shot Pitchford's vehicle as he drove away, leaving two bullet holes in the fender. Pitchford was not aware before C4 brandished the weapon that C4 was armed, and he did not plan the robbery with C4. In the State's rebuttal evidence, the owner of Nara testified that Pitchford had originally entered the bar with three friends, but one was turned away because he was armed with a gun.

         On cross-examination, Pitchfoi'd denied asking his wife to contact Victim while he was incarcerated. Although he agreed he and his wife had talked about trying to pay off Victim and K.D., he stated it was just talk and they did not intend to actually contact the women and he did not give his wife Victim's number. The State on rebuttal introduced Exhibit 20, which purported to be a recording of a telephone call Pitchford made from the Justice Center. Pitchford's counsel did not object to its admission. The State then introduced Exhibit 20A, which purported to be a redacted copy of the relevant portions of the longer conversation to play for the jury. Pitchford's counsel objected to Exhibit 20A, arguing that the redacted copy took statements in the conversation out of context. He requested instead that the State play the entire conversation in Exhibit 20 for the jury, which the trial court ordered.[1]

         The jury found Pitchford guilty on both counts. The trial court sentenced Pitchford in an amended judgment to concurrent sentences of thirty years in the Missouri Department of Corrections for the robbery count and fifty years for the ACA count. This appeal follows.


         Pitchford raises four points on appeal, claiming errors in the admission of evidence, jury instruction, and improper statements by the prosecution. He concedes that because he did not file a motion for new trial, none of the points on appeal are preserved for appellate review. He thus requests plain-error review under Rule 30.20. Under plain-error review, we will reverse only if a plain error affecting substantial rights results in manifest injustice or a miscarriage of justice. State v. McClearv. 423 S.W.3d 888, 896 (Mo. App. E.D. 2014). We review for plain error using a two-step analysis. First, we determine whether the record facially establishes substantial grounds to believe plain error occurred, which is error that is evident, obvious, and clear, resulting in manifest injustice or a miscarriage of justice. If so, we may then consider whether the error actually resulted in manifest injustice or a miscarriage of justice. Id. Plain-error review requires that the alleged error have a decisive effect on the verdict. Id.

         Point I

         In his first point on appeal, Pitchford argues the trial court plainly erred in denying his request to exclude the recordings of telephone calls he made from the Justice Center because the late disclosure on the morning of trial resulted in manifest injustice and a miscarriage of justice by preventing meaningful efforts to prepare a strategy to address that evidence, which included an incriminating statement. We disagree.

         Our review of an alleged discovery violation consists of two questions: first, whether the State's failure to disclose evidence violated Rule 25.03, and second, if the State violated Rule 25.03, what is the appropriate sanction the trial court should have imposed. State v. Henderson, 410 S.W.3d 760, 764 (Mo. App. E.D. 2013) (citing State v. Zetina-Torres, 400 S.W.3d 343, 353 (Mo. App. W.D. 2013)). Here, because the issue is not preserved and we review only for plain error, not only must Pitchford show the State failed to comply with discovery rules, but also that this failure resulted in manifest injustice or a miscarriage of justice. See State v. Tripp, 168 S.W.3d 667, 674 (Mo. App. W.D. 2005). He can meet neither burden.

         Rule 25.03 provides that "the state shall, upon written request of defendant's counsel, disclose to defendant's counsel such part or all of the following material and information within its possession or control designated in said request: ... (2) Any written or recorded statements and the substance of any oral statements made by the defendant or by a co-defendant." Rule 25.03(A)(2). "The duty to disclose includes not only information known to the prosecutor, but also information that she may learn through reasonable inquiry." Henderson, 410 S.W.3d at 764. The purpose of Rule 25.03 is to prevent surprise and to give the defendant the opportunity to prepare his case in advance of trial. Zetina-Torres, 400 S.W.3d at 353-54. Rule 25.03's protection extends to preventing surprise from learning not only of the existence of unknown evidence, but also to the State's possession of and plans to use evidence known to the defendant. See Henderson. 410 S.W.3d at 765 (finding unfair surprise from State's failure to disclose defendant's ...

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