Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of the City of St. Louis Honorable
Mark H. Neill
S. ODENWALD, Judge
Shelton ("Shelton") appeals from the judgment of
the trial court following his conviction by a jury on one
count of second-degree drug trafficking. Shelton raises three
points on appeal. First, Shelton claims that the trial court
erred by refusing to declare a mistrial after a veniremember
purportedly opined on the credibility of the State's
witnesses. Point Two charges the trial court with plain error
for allowing the State to mischaracterize the testimony of a
defense witness during closing argument. In Point Three,
Shelton avers that he is entitled to a new trial based on
newly discovered evidence.
the veniremember's comment was not so prejudicial and
inflammatory as to taint the entire panel, the trial
court's refusal to declare a mistrial was not erroneous.
Nor did the trial court plainly err in not limiting the
State's closing argument as the evidence supported the
State's characterization of the defense witness's
testimony. Finally, Shelton was not entitled to a new trial
because he did not establish that the newly discovered
evidence was credible or that he used due diligence in
obtaining such evidence. Accordingly, we affirm the judgment
of the trial court.
and Procedural History
State charged Shelton with one count of the Class A felony of
second-degree drug trafficking in violation of Section
195.223.The State alleged that Shelton, a
persistent offender and a persistent drug offender, knowingly
possessed more than ninety grams of a substance containing
heroin. The case proceeded to a jury trial.
few introductory remarks during voir dire, the prosecuting
attorney asked the venire if any of its members recognized
her. Veniremember Prost ("Prost") answered that,
because he was a lieutenant with the city's police
department, he recognized the prosecuting attorney. Prost
said that his employment with the police department would not
affect his ability to remain impartial.
thereafter, the prosecuting attorney advised the venire that
she would recite the names of potential witnesses for the
State and then ask if any of the veniremembers were
acquainted with the recited witnesses. The prosecuting
attorney then expressly identified Prost, stating "Mr.
Prost, I understand you probably know a lot of them, and
I'll ask you a question after we get done." The
witnesses were listed, and subsequently the prosecuting
attorney addressed Prost:
Q: [I] knew I would get back with you, Mr. Prost. All of the
people that I listed, like I said, I'm sure you know a
handful of them.
Q: Any one of the people that I listed do you have a personal
relationship with where it would be hard for you to listen to
the evidence that they present given your-
A: Three of the names-three of the names you put out there,
Detective [Thomas] Mayer, Detective Lila Payne, Detective Joe
Shipp, have all worked for me in the past in some sort of
Q: They've worked for you?
A: I was their supervisor.
Q: Right. Okay. And do you feel because you were their
supervisor at some point you wouldn't be able to listen
to them as a witness on the stand and take their testimony as
they give it in this case, evaluate their testimony based on
that and not your personal relationship with them?
A: Taking the personal relationship out of it and make it
strictly professional, all three of those detectives having
worked for me, I trust their-
counsel interrupted Prost's answer and requested to
approach the bench. Before defense counsel specified the
nature of his objection, the trial court sustained the
objection. The trial court directed the prosecuting attorney
to move on from questioning Prost. The parties then
approached the bench, and the trial court further admonished
the prosecuting attorney that "[y]ou have to be
extremely careful in asking any policeman about how he-you
know, how he feels about other people. He just started to
comment on the testimony, and that's why we can't go
counsel moved for a mistrial, which the trial court denied.
The trial court informed defense counsel that the situation
may warrant a curative instruction. Defense counsel never
requested a curative instruction. The trial court struck
Prost for cause, but permitted Prost to remain seated with
the venire during the rest of voir dire. In voir dire, the
other veniremembers were extensively questioned regarding any
potential bias pertaining to the testimony of police
officers. The parties selected a jury from the venire.
Joe Shipp ("Det. Shipp") testified that, on
September 5, 2013, he was driving westbound on Interstate 70
in downtown St. Louis. Shortly before 1:OO p.m., Det. Shipp
observed a white GMC Yukon Denali ("the SUV") with
tinted windows on the interstate. Det. Shipp believed that
the tinted windows on the SUV violated state law.
running the SUV's license plates, Det. Shipp discovered
that the license plates were registered to a Toyota
automobile. Det. Shipp followed the SUV off 1-70 and onto an
exit for Branch Street. As the car turned onto Branch Street,
Det. Shipp activated his roof lights in order to conduct a
traffic stop. The SUV accelerated at a high rate of speed and
fled westbound on Branch Street. Det. Shipp did not pursue
the SUV as department policy prohibited chases for traffic
Shipp stopped his car, deactivated his roof lights, and
transmitted an all-points bulletin describing the SUV.
Hearing the all-points bulletin, Det. Thomas Mayer
("Det. Mayer"), a detective for the St. Louis
Police Department, pulled his vehicle alongside Det.
Shipp's car. The two officers began conversing about the
attempted traffic stop. After a short while, the SUV
reappeared and began driving the wrong way-eastbound-down
Branch Street directly towards the officers.
reaching the officers' location, the SUV turned south
onto 20th Street and stopped. The officers immediately
followed the SUV and pulled their vehicles within a short
distance behind the SUV. The officers exited their respective
vehicles. Det. Mayer approached the driver's side of the
SUV, while Det. Shipp approached the passenger's side. At
trial, Det. Mayer identified Shelton as the driver and sole
occupant of the SUV. Det. Mayer observed Shelton emerge from
the SUV, drop a plastic bag from his right hand to the
"threshold" of the vehicle, and then flee on foot.
Det. Mayer recalled that Shelton, from about a car length
away, turned and looked over his shoulder at the detective
for a couple seconds. Det. Mayer's view of Shelton was
unobstructed. Det. Mayer said he could "clearly
see" Shelton's face. From the passenger's side
of the SUV, Det. Shipp could not identify the driver of the
SUV, but recalled that the man wore blue jeans and a blue
shirt. Shelton eluded capture and was not apprehended at the
Shelton fled, Det. Mayer secured the dropped plastic bag. The
plastic bag contained about 116 grams of heroin. The officers
found items in the SUV pertaining to Shelton and Jerome
Carter-Moore ("Carter-Moore"). Det. Mayer viewed
pictures of both men in a police database, and identified
Shelton as the driver of the SUV. Carter-Moore was the owner
of the SUV.
police impounded and searched the SUV. Evidence technicians
found the following evidence linking Shelton to the vehicle:
(1) a suitcase with a luggage tag containing Shelton's
name; (2) a check made payable to Shelton; (3) mail addressed
to Shelton; (4) a banking receipt containing Shelton's
information; (5) fingerprints and DNA matched to Shelton that
were extracted from the SUV; and (6) a business card for
Shelton*s probation officer.
contacted Shelton's probation officer, who confirmed that
Shelton had checked into her office earlier that morning.
Video surveillance of the probation office showed that
Shelton was wearing a blue or gray shirt ...