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State v. Bowens

Court of Appeals of Missouri, Eastern District, Third Division

March 27, 2018

STATE OF MISSOURI, Respondent,
v.
JOSEPH BOWENS, Appellant.

          Appeal from the Circuit Court of the City of St. Louis 1522-CR00223-01 Honorable David L. Dowd

          ROBERT M. CLAYTON III, Judge.

         Joseph Bowens ("Defendant") appeals the judgment entered upon a jury verdict convicting him of one count of first-degree murder, one count of first-degree robbery, and two counts of armed criminal action. We affirm.

         I. BACKGROUND

         Defendant was charged with the above crimes for his alleged involvement in the shooting death and robbery of Scott Knopfel ("Victim") that took place on January 15, 2015. The crimes occurred at the Drury Inn hotel located near Interstate 44 and Hampton Avenue in the City of St. Louis ("the Drury Inn" or "the hotel"). Defendant was represented by a public defender from shortly before he was arraigned until he retained private counsel approximately two weeks prior to trial. Defendant was tried by a jury from April 5-8, 2016, and he does not challenge the sufficiency of the evidence to support his convictions.

         A. Evidence Presented during the State's Case and Relevant Procedural Posture

         Viewed in the light most favorable to the verdict, the following evidence was presented by the State at Defendant's trial. In January 2015, Dasha Lindsey worked as a security guard at the Drury Inn. In the early morning of January 15, 2015, Lindsey was working the overnight shift and watching the parking lot of the hotel. Lindsey's fiancé, James Montgomery, was with her, and they both sat in their car in the parking lot. Around 3:00 a.m., Lindsey and Montgomery noticed a small black Hyundai drive around the parking lot and back up when it was not necessary. The driver of the car, who Lindsey and Montgomery later identified as Defendant, exited the car, and the person in the front passenger seat "hopped over the middle console" into the driver's seat.

         Defendant was wearing Nike Air Jordan shoes, a black and red Chicago Bulls hat, and a black leather jacket. Defendant looked at Lindsey and Montgomery, opened the back door of the car and got in the back seat, and sat in the back seat for about a minute while he kept looking at Lindsey and Montgomery. Defendant then exited the car and walked into the hotel, out of the sight of Lindsey and Montgomery. At this point, Lindsey used her walkie-talkie to try to contact Victim, the night auditor at the hotel, to warn him someone was coming inside. When Victim did not respond, Lindsey used her cell phone to call the front desk. The phone rang four or five times before it was picked up. Lindsey then heard a "pop" sound, and a very short time later, Defendant exited the hotel in a manner Lindsey described as "walking normally."

         Concerned for Victim, Lindsey had Montgomery drive their vehicle to the front of the hotel, and Lindsey went inside. Lindsey found Victim lying on the floor behind the counter, saw the cash register was open, and called 911.

         After the police arrived at the scene, they found Victim had a visible gunshot wound to his face and was deceased. A medical examiner later determined Victim died from gunshot wounds to the neck, chest, and abdomen. In addition, a Drury Inn employee later determined ninety-seven dollars was missing from the hotel cash register.

         The police collected one bullet and one shell casing at the hotel and downloaded video surveillance footage, which clearly showed the assailant's face and clothing. Detective Michael Herzberg of the St. Louis City Police Department distributed it to the media for dissemination to the public, hoping someone would recognize the person in the video, call the police, and identify him. Detective Herzberg also obtained video footage from a red light camera, which showed a small black sedan enter the hotel parking lot.

         After the hotel video surveillance footage was disseminated to the public, Detective Herzberg received phone calls from Tony Jones, who was the Chief of Police for Caruthersville, Missouri ("Chief Jones" or "Chief Tony Jones"), and Veneto Johnson, who was a resident of Caruthersville. Chief Jones and Johnson both identified Defendant as the man in the video. Johnson also provided a phone number for Defendant. Chief Jones testified at Defendant's trial, but Johnson did not testify. The information Johnson provided to police was solely adduced through the testimony of Detective Herzberg, and defense counsel did not object to the admission of testimony from Detective Herzberg regarding Johnson's identification of Defendant.

         Officers with the St. Louis City Police Department obtained historical GPS data for the phone number Johnson associated with Defendant. The GPS data showed Defendant's phone was traveling in the City of St. Louis and stopped in the area near the hotel in the minutes prior to Victim's murder.

         In the meantime, Officer Jason Morgan of the Poplar Bluff Police Department learned Defendant was wanted for the crimes at the Drury Inn. Two days after the murder and robbery took place, Officer Morgan conducted a traffic stop of a black, four-door Hyundai that Defendant's wife Connie Bowens ("Defendant's Wife" or "Wife") was driving. Officer Morgan told Defendant's Wife he was looking for Defendant, and she agreed to take the officer to his location. She then took Officer Morgan to an apartment located at 640 Lindsay Street in Poplar Bluff ("the apartment"), where the officer found Defendant standing outside. Defendant was subsequently placed under arrest. Defendant was wearing Nike Air Jordan shoes, the shoes were seized at the time of his arrest, and the shoes were admitted into evidence at trial without objection.

         Thereafter, Wife consented to a search of the apartment and to a search of her car. In a bedroom of the apartment, the police found and seized a black leather jacket matching the description of the jacket worn by Defendant during the crimes and a pair of pants. The jacket and pants were admitted into evidence at trial without objection.

         DNA testing performed on the jacket found in the apartment revealed the presence of a mixture of Defendant's DNA and Victim's DNA. DNA testing performed on Victim's left hand also revealed the presence of a mixture of Defendant's DNA and Victim's DNA. In addition, a swab of a stain found between an air conditioning vent and the radio in Defendant's Wife's car tested presumptively positive for blood.

         The police learned Defendant was an avid gambler, and officers went to the Lumiere Casino in the City of St. Louis to obtain video surveillance footage from the morning of the crimes. The video showed a man matching Defendant's description in the casino at 2:22 a.m., which was approximately forty minutes before the Drury Inn robbery and murder.

         B. Evidence Presented during Defendant's Case and Relevant Procedural Posture

         Defendant called four witnesses in his defense. Defendant's daughter Latasha Taylor ("Defendant's Daughter" or "Daughter") testified that on the morning of the crimes, Defendant was with her in Poplar Bluff, he was sick, and she was taking care of him. Defendant's Wife testified she spoke with her Daughter on the phone on the morning of the crimes and Daughter was taking care of Defendant. Defendant also called Lindsey as a witness and attempted to show, inter alia, that the black car she saw at the hotel was a Honda rather than a Hyundai. Finally, Defendant called Detective Herzberg and questioned him regarding, inter alia, his collection of DNA buccal swabs from Defendant.

         At the conclusion of the presentation of Defendant's case, his attorney Celestine Dotson ("Ms. Dotson") told the court she wanted to present evidence regarding three gas-station armed robberies committed in the St. Louis area by a person the media referred to as the "Bulls Hat Bandit." The State made an oral motion to exclude the evidence, and the trial court granted the State's motion.

         C. Other Relevant Procedural Posture

         Prior to trial, Defendant made a motion for a continuance on the grounds his private counsel, whom Defendant retained approximately two weeks prior to trial, needed more time to prepare. Defendant also filed a pre-trial motion to suppress the evidence seized during the search of the apartment in Poplar Bluff. The trial court denied both motions after holding pre-trial hearings.

         After hearing all of the evidence, including that which is set out above in Sections I.A. and I.B., the jury found Defendant guilty of one count of first-degree murder (Count I), one count of first-degree robbery (Count III), and two counts of armed criminal action (Counts II and IV). Defendant then filed a motion for a new trial, alleging in relevant part that the trial court erred in excluding evidence regarding the Bulls Hat Bandit, the trial court erred in denying his motion for a continuance, and the trial court erred in denying Defendant's motion to suppress. However, Defendant's motion for new trial did not allege the trial court erred in admitting Detective Herzberg's testimony regarding Johnson's identification of Defendant as the person in the hotel's video surveillance footage.

         The trial court denied Defendant's motion for a new trial and entered a judgment in accordance with the jury's verdict. The court then sentenced Defendant as a prior and persistent offender to life imprisonment without the possibility of parole for Count I and twenty years of imprisonment for Counts II-IV. The trial court ordered the sentences for Counts I-III to run consecutively with each other but concurrently with the sentence for Count IV; in other words, Defendant was sentenced to a total sentence of life imprisonment without the possibility of parole plus forty years of imprisonment. Defendant appeals.[1]

         II. DISCUSSION

         Defendant raises four points on appeal. In his first point, Defendant contends the trial court committed reversible error in denying his motion to suppress and admitting into evidence the black leather jacket and pants seized during the search of the apartment located at 640 Lindsay Street in Poplar Bluff. In his second point, Defendant asserts the trial court erred in excluding evidence regarding three gas-station armed robberies committed in the St. Louis area by a person the media referred to as the "Bulls Hat Bandit." In his third point, Defendant argues the trial court erred in admitting Detective Herzberg's testimony regarding Veneto Johnson's identification of Defendant as the person in the hotel video surveillance footage that was released to the media. And in his fourth point, Defendant claims the trial court erred in denying his motion for a continuance.

         A. The Trial Court's Denial of Defendant's Motion to Suppress and Admission of Evidence Seized in the Apartment

         In Defendant's first point on appeal, he contends the trial court committed reversible error in denying his motion to suppress and admitting into evidence the black leather jacket and pants seized during the search of the apartment located at 640 Lindsay Street in Poplar Bluff. This claim was not properly preserved for appeal, because although Defendant filed a motion to suppress and included this issue in his motion for a new trial, he did not object to the black leather jacket and pants when they were offered into evidence at trial. See State v. Reed, 422 S.W.3d 495, 498 (Mo. App. E.D. 2014); see also State v. Walter, 479 S.W.3d 118, 123 (Mo. banc 2016).

         1. Standard of Review

         Where, as in this case, a defendant fails to preserve an issue for appeal, his claim may only be reviewed for plain error at this Court's discretion, which we choose to exercise here. See State v. McKay, 411 S.W.3d 295, 304 (Mo. App. E.D. 2013); Missouri Supreme Court Rule 30.20 (2017).[2] Under the plain-error standard of review, we will only grant a defendant relief if we find an error occurred and the error affected his rights so substantially that a manifest injustice or miscarriage of justice resulted. Id.; State v. Brown, 996 S.W.2d 719, 732 (Mo. App. W.D. 1999). A plain error is one that is evident, obvious, and clear, and our Court determines whether such an error exists based on the circumstances of each case. McKay, 411 S.W.3d at 304-05. The defendant has the burden of demonstrating a manifest injustice or miscarriage of justice resulted from the trial court's alleged error. Id. at 304.

         At a hearing on a motion to suppress, the State has the burden of establishing by a preponderance of the evidence that the motion should be denied. Reed, 422 S.W.3d at 498. In reviewing the trial court's ruling on the motion to suppress, an appellate court considers the evidence presented at the pre-trial hearing and at trial to determine whether the trial court's decision is supported by sufficient evidence. Id. Our Court views the evidence and all reasonable inferences therefrom in the light most favorable to the trial court's decision, and we disregard any contrary evidence and inferences. State v. Davis, 505 S.W.3d 401, 404 (Mo. App. E.D. 2016); Reed, 422 S.W.3d at 498. In addition, this Court defers to the trial court's factual findings and credibility determinations. Reed, 422 S.W.3d at 498. However, we review questions of law, including whether police conduct allegedly violates the Fourth Amendment, de novo. Davis, 505 S.W.3d at 404; State v. Nylon, 311 S.W.3d 869, 884 (Mo. App. E.D. 2010).

         2. Relevant Evidence and the Trial Court's Findings

         In this case, Officer Morgan of the Poplar Bluff Police Department testified he conducted a traffic stop of the vehicle Defendant's Wife Connie Bowens was driving, she took the officer to Defendant's location outside the apartment on Lindsay Street in Poplar Bluff, and Defendant was placed under arrest without incident. Wife then gave Officer Morgan consent to search the apartment by signing a written consent-to-search form, and she went with Officer Morgan and Captain David Sutton inside the apartment.

         Defendant's Wife, Officer Morgan, and Captain Sutton then went into the bedroom Wife occupied, which contained some of her personal items. In the bedroom, the officers found and seized the black leather jacket matching the description of the jacket worn by Defendant during the crimes and a pair of pants; both of these items were admitted into evidence at trial without objection.

         Officer Morgan testified he believed Defendant's Wife had the authority to consent to the search of the apartment because she told him she lived there, she said she paid a portion of the rent and had personal property in one of the bedrooms, she had a key, and she immediately pointed out her own laundry that was sitting in the kitchen when they first walked into the apartment. Officer Morgan testified he only had contact with Defendant's Wife in the relevant timeframe leading up to the search of the apartment, and he did not remember having Wife call her Daughter Latasha Taylor to attempt to gain her consent. The officer further testified there was no debate as to whether he would need to gain access to the apartment by getting the consent of Defendant's Daughter, and he never talked to Daughter.

         Defendant's Daughter gave a different version of the events during her testimony at the pre-trial hearing on the motion to suppress. She testified that on the day of the search of the apartment, she stepped outside barefoot and officers approached her. The officers asked Daughter to search the apartment, but she refused to give consent. Defendant's Daughter then went to the store to buy some shoes, and while she was gone, Officer Morgan had her mother call her to try to get Daughter to consent to a search but she said "no." When Defendant's Daughter returned from the store, she found the officers had entered and searched the apartment. She testified that although she was the only person on the lease of the apartment and her mother did not live there, her mother occasionally stayed overnight in the guest bedroom and had personal property in the room.

         After hearing the preceding testimony, the trial court denied Defendant's motion to suppress, finding in relevant part:

The [c]ourt does find the testimony of Poplar Bluff Police Officer Jason Morgan to be credible. The [c]ourt further finds that the facts available to Officer Morgan and the other Poplar Bluff police officers, specifically that [Defendant's Wife] indicated that she lived at 640 Lindsay . . . that she paid part of the rent there, she had a key to the apartment, she had personal property inside the apartment, [she] had her own bedroom, I think supports the officers' reasonable belief that [Defendant's Wife], ...

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