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State v. Hygrade

Court of Appeals of Missouri, Eastern District, Second Division

January 9, 2018

STATE OF MISSOURI, Respondent,
v.
DAVID HYGRADE, Appellant.

         Appeal from the Circuit Court of the City of St. Louis 1522-CR04750-01 Honorable Michael F. Stelzer

          Lisa P Page, Presiding Judge

         David Hygrade ("Defendant") appeals his conviction for two counts of unlawful possession of a firearm, in violation of Section 571.070 RSMo Cum Sup. 2010. Defendant claims the trial court: (1) plainly erred in failing to sua sponte order a mental examination of Defendant; (2) erred in overruling his objection to the State's questioning during voir dire; and (3) erred in overruling Defendant's motions for judgment of acquittal and for new trial because there was insufficient evidence to support his conviction. For reasons set forth below, we find no error and affirm the judgment of conviction.

         BACKGROUND

         On September 1, 2015, Officer Jennifer Nemeth and her partner Officer David Wilson responded to a call of shots fired at a residence. They arrived in a marked police vehicle wearing uniforms. Officer Nemeth observed five people on the front porch, including Defendant, who went into the house. According to Officer Nemeth, Defendant was holding his right arm against his right side, and she observed a bulge under his clothing. Detective James Bain also responded to the residence to assist Officers Nemeth and Wilson. He observed Defendant leave the porch and go into the residence. Detective Bain also noted something bulging through Defendant's shirt, which he believed to be a firearm because he could see the butt of the gun. Detective Bain received permission from the homeowner to enter the residence. The homeowner informed Detective Bain she did have a small firearm in a locked bedroom in her residence. He went into the basement where he found Defendant in a closet under the stairs. Defendant exited the closet with his hands up. Detective Bain observed dust on Defendant's face, shirt, and hands. He also noticed the butt of a gun inside the drop ceiling tile inside that closet. He ultimately retrieved two firearms, a semiautomatic rifle and a 9mm handgun, from the ceiling and neither matched homeowner's description of a "small firearm."

         Defendant was placed under arrest and charged with two counts of unlawful possession of a firearm. A jury convicted him of both counts, and Defendant was sentenced to fifteen years' imprisonment for each count, the sentences to be served concurrently. The present appeal followed.

         DISCUSSION

         Point I - The trial court did not err in failing to order a competency examination, sua sponte

         In his first point on appeal, Defendant alleges the trial court erred in failing to sua sponte order a competency examination of Defendant after reviewing the Sentencing Assessment Report ("SAR"). According to Defendant, several factors were present in the SAR to give the trial court reasonable cause to question Defendant's competency to stand trial. We disagree.

         Standard of Review

         Defendant did not raise the issue of his competency prior to trial or sentencing. Defendant did not challenge the trial court's failure to order an examination in his motions for judgment of acquittal at the close of State's evidence, the close of all evidence, nor in his motion for new trial. Thus, the issue has not been preserved for appeal and we review his claim for plain error. Pursuant to Missouri Supreme Court Rule 30.20, we will review for plain error if we find that manifest injustice or a miscarriage of justice has resulted from the alleged error. See Holman v. State, 88 S.W.3d 105, 110 (Mo. App. E.D. 2002) (trial court's failure to sua sponte order mental examination would be reviewed for plain error). However, Defendant contends this issue does not "fall into one neat category of standard of review." In support of his claim, Defendant cites to State v. Tilden, 988 S.W.2d 568, 576 (Mo. App. W.D. 1999), arguing the court in Tilden set forth a different standard of review for an unpreserved allegation of error that the trial court failed to sua sponte order a competency exam. We disagree.

         In Tilden, as in the present case, the issue of competency was not raised. Id. at 576. Defendant claims the court applied a different standard of review than plain error. Not so. The court merely began its thorough analysis with the general legal standard under which we review the trial court's duty to order an examination of a defendant when the issue is raised by motion and preserved for review - specifically, whether or not the trial court's determination of competency was supported by substantial evidence. Id. However, the court then very clearly distinguished the different, and more difficult, procedural posture presented in Tilden's appeal where a determination of competency was not requested and/or denied, nor was a hearing denied after an examination was conducted. Id. Instead, as here, the Tilden court was required to effectively review a "non-decision" of the defendant's competency. Id. In doing so, the court held if a trial court is presented with sufficient facts to form reasonable cause to question a defendant's competency, then the court must order a mental examination of the defendant. Id.

         Nevertheless, this decision does not change the fact we review only for plain error when error is unpreserved at the trial court level. Holman, 88 S.W.3d at 110. Rule 30.20. Moreover, Rule 30.20 provides the authority for this plain error review only to determine whether manifest injustice or a miscarriage of justice would result if the unpreserved error is left uncorrected. The Tilden court concluded that several critical factors were before the trial court which gave rise to well-founded concerns regarding Tilden's competency, and the failure of the trial court to sua sponte ...


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