Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable David C.
found Marlo B. Hodges ("Defendant") guilty of
burglary in the first degree, robbery in the first degree,
and two counts of armed criminal action, see
sections 569.160, 569.020, and 571.015,
respectively. On appeal, Defendant argues that
"[t]he trial court abused its discretion in preventing
[Defendant] from asking Detective Barb, 'You waited five
weeks to talk to the defendant?'" Because the
alleged error is not preserved for our review,
Defendant's argument is rejected and the trial
court's judgment of his convictions is affirmed.
and Procedural Background
does not challenge the sufficiency of the evidence to support
his convictions. In short, the evidence, in the light most
favorable to the verdict, State v. Lammers, 479
S.W.3d 624, 632 (Mo. banc 2016), was that on May 23, 2011,
Defendant, while wearing a mask, ran into Leonard
Rogers's ("Victim") home, put a pistol to
Victim's face, hit Victim in the head with the gun
repeatedly, and said "Where is the drugs [sic] at?"
Defendant then took off the mask and Victim recognized him as
someone that he had had drug transactions with in the past.
Victim did not have any drugs to give to Defendant so he gave
him all of the cash that he had, $75.00. Defendant handcuffed
Victim and searched Victim's home before leaving.
the jury's guilty verdict, the trial court sentenced
Defendant to 15 years' imprisonment for burglary, 15
years' imprisonment for armed criminal action, 30
years' imprisonment for robbery, and 30 years'
imprisonment for armed criminal action with all sentences to
run concurrently. Defendant timely appeals.
sole point relied on states:
The trial court abused its discretion in preventing
[Defendant] from asking Detective Barb, "You waited five
weeks to talk to the defendant?", in violation of
[Defendant's] right to present a defense, to due process,
and to a fair trial, guaranteed by the 6th and 14th
Amendments to the United States Constitution and Article I,
§§ 10 and 18(a) of the Missouri Constitution, in
that counsel's question was designed to attack the
credibility of both Det. Barb and his investigation and
elicit evidence that the detective's delay resulted in
the loss of crucial defense evidence, and the court's
ruling that the question would cause the jury to ask,
"Where is that interview?" was arbitrary,
unreasonable, and clearly against the logic of the
circumstances, was prejudicial to [Defendant's] right to
present a defense, and the state cannot prove that the error
was harmless beyond a reasonable doubt.
contends that the trial court's alleged error is
preserved for our review under Rule 29.11(d) because his
after trial motion raised the issue and it was denied. While
that satisfies one preservation requirement, it alone is not
sufficient. Preservation of an alleged error in excluding
evidence also requires an offer of proof.
Barb, a detective with the Springfield Police Department,
testified on direct examination that the case was assigned to
him on May 30, 2011. Before cross examination and outside the
presence of the jury, Defendant's counsel sought to
clarify with the court whether he was precluded from
impeaching Detective Barb "by mentioning the fact that
he interviewed [Defendant.]" Specifically, Defendant
wanted to ask, "'You waited five weeks to talk to
trial court ruled:
All right. This is what I'm going to permit. I think it
is beyond the scope, and I think there is a provision that we
have to stick to the scope, but let's assume that
you're correct on that. I'll allow you to ask,
"Did you interview Che?" I'll allow you to ask
if he interviewed Doug Shockley. I'll permit those
things. I think, when you ask the question, though, "Did
you interview Marlo Hodges?" you're going to have
the jury sitting out there saying, "Where is that
interview?" and I'm not going to permit that. Okay?
I'll allow you to ask if you interviewed such and such
and such and such. I 'm not going to allow you to ask
about an alibi because that would be bringing up basically
self-serving statements from Mr. Hodges that he gave an
alibi, and I'm not going to permit that; but I will allow
you to ask, "Did you interview this person? Did you
interview that person?"
the trial court's ruling, Defendant requested a mistrial
but took no further action.
claim of trial court error in preventing him from asking the
question "'You waited five weeks to talk to the
defendant?'" is premised upon Defendant's
implicit assumption in his point and argument that Detective
Barb would have given an affirmative answer to that question.
Otherwise, in the absence of a purported answer with which to
give the question evidentiary value and context, there can be
no trial court error in merely preventing the asking of a
question. This is so because a question posed by counsel,
standing alone, is not evidence. Storey v. State,
175 S.W.3d 116, 153 (Mo. banc 2005); In re Cozart,
433 S.W.3d 483, 489 (Mo.App. 2014). Nothing in the trial
record supports that Detective Barb would have given ...