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State v. Graham

Court of Appeals of Missouri, Eastern District, Third Division

September 19, 2017

STATE OF MISSOURI, Respondent,
v.
RECARDO R. GRAHAM, Appellant.

         Appeal from the Circuit Court of St. Louis County 14SL-CR08877-01 Honorable Kristine A. Kerr

          GARY M. GAERTNER, JR, PRESIDING JUCLGE

         Introduction

         Recardo R. Graham (Defendant) appeals from a sentence and judgment of conviction for) assault in the second degree and armed criminal action. He argues on appeal that the trial court I erred in excluding evidence in violation of the rule of completeness. We affirm.

         Background

         The State charged Defendant as a prior and persistent offender with one count of first-degree assault and one count of armed criminal action stemming from an incident on October 14, 2014, when Defendant shot Leodis Tucker (Victim), inflicting serious physical injury. The j following evidence was adduced at the 2016 trial, viewed in the light most favorable to the verdict.'

         Defendant was formerly in a relationship with Andrea Evans (Evans) and is the father of f her adult children, and Victim is Evans' current boyfriend. Victim testified to the following. State v. Twittv. 506 S.W.3d 345, 346 (Mo. Banc 2017). Victim and Defendant knew each other, and while they had not had specific problems in the past, Defendant did not like Victim to come to the home Evans shares with her and Defendant's daughter and grandchildren. Early in the morning of October 14, 2014, Evans arrived at Victim's house shortly after midnight, and Victim informed Evans her adult son, Jared Graham (Graham), had been trying to reach her by telephone. Evans called Graham and about fifteen minutes later, Graham and Defendant arrived at Victim's house in a pickup truck. Both men exited the vehicle, and Graham and Evans began arguing in Victim's driveway. Victim, who was standing on his porch, asked them to leave. Defendant moved to the driver's seat of the truck and backed the truck out of Victim's driveway, but he remained parked in front of Victim's house. Graham approached Defendant in the truck stating, "Dad, give me that thing." Victim looked at Defendant and saw a flash of gunfire coming from the driver's side of the truck, and at the same time he felt a bullet strike his elbow. Defendant sped away in the truck.

         Evans also testified that she witnessed Defendant shoot Victim after stating, "I don't like that MF no way." Immediately after Defendant shot Victim, Evans heard Graham exclaim, "Daddy, why did you shoot?" and "Daddy, why did you do that?" Similarly, Victim's neighbor testified to the following. He witnessed a truck pull into Victim's driveway, and a younger man and an older man exited the truck. The older man was carrying a gun in his hand. The older man reentered the truck and moved it to the street, and then the neighbor heard a gunshot come from the truck, after which the truck drove away.

         The State introduced a short excerpt of a February 27, 2016, recorded conversation between Graham and Defendant while Defendant was incarcerated and awaiting trial in the St. Louis County jail, as follows.

Defendant: And your momma said 1 stood outside the truck and fired the shot.
Graham: Man, I don't -
Defendant: I shot him from inside the truck.

         In response, Defendant introduced a different excerpt from the same recording in which he stated, "we ain't shot nobody."

         Defendant also sought to admit excerpts from a different conversation recorded on December 3, 2015, also between Defendant and Graham at the St. Louis County jail (the December 3rd recording). The trial court excluded the December 3rd recording as inadmissible hearsay. The trial court clarified that under the rule of completeness, Defendant could introduce mitigating portions of the same February 27th conversation for the purpose of giving context, but he could not introduce portions of different conversations because the State's excerpt from a single recording did not "open[] the door to every single jail phone call made by your client." Defendant made an offer of proof for the December 3rd recording, which included the statement: "See, ...


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