Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of Monroe County Honorable David C.
S. ODENWALD, PRESIDING JUDGE
Emerson ("Emerson") appeals from the trial
court's judgment after a jury convicted him of
second-degree assault, first-degree assault, and armed
criminal action. Alleging four points of error, Emerson
contends the trial court abused its discretion in (1)
overruling Emerson's objection to the State's voir
dire question on whether the use of a racial epithet
justifies violence; (2) denying Emerson's request for a
writ of body attachment; (3) refusing Emerson's proffered
verdict directors; and (4) overruling Emerson's objection
to the State's reference in closing argument that the
lesser-included offense of third-degree assault is a
misdemeanor. Because the State's inquiry in voir dire was
relevant to revealing potentially disqualifying biases in the
venire panel, we find no error in the trial court's
handling of voir dire. Because Emerson did not effect valid
service on the witness, the trial court lacked the authority
to issue a writ of body attachment. Further, the trial court
committed no prejudicial instructional error because the
evidence and instructions at trial clearly show the verdict
directors contravened the alibi instruction and did not
impair Emerson's alibi defense. Lastly, the record
demonstrates Emerson was not prejudiced by the State's
errant but isolated and fleeting reference to sentencing
classifications. Accordingly, because we find no abuses of
the trial court's discretion, we affirm the judgment of
the trial court.
and Procedural History
evening of March 27, 2016, Emerson was at the home of an
acquaintance ("Witness") and overheard Victim using
the N-word while telling a story about a relative who was a
member of a white supremacist gang. Emerson confronted Victim
about the use of the racial epithet and proceeded to punch
and kick him. Emerson retrieved a pistol, loaded bullets, and
shot Victim, injuring him. Emerson threatened to shoot
everyone present, saying he was not going to leave any
witnesses. Emerson shot and injured two other individuals
before fleeing the scene. The police pursued Emerson and
arrested him after a brief standoff.
State charged Emerson with first-degree assault and armed
criminal action for each of the three shooting victims. The
six charges were consolidated, and the case proceeded to a
jury trial. During voir dire, the State asked the venire
panel: "You're going to hear evidence of a story
that was being told that involves the use of the N-word.
Everybody knows what I mean. Does anyone here think that that
justifies shooting somebody?" Emerson objected on the
basis that the question called for a legal conclusion and
sought commitment from the jury. The trial court overruled
the objection. The State inquired whether the venire panel
understood the question and noted that no venirepersons
raised their hands.
the trial, one of the shooting victims testified about
sending Facebook messages to a person identified as T.W. The
victim identified T.W.'s Facebook name and profile
picture, but denied sending Facebook messages to T.W. stating
that someone else, not Emerson, was the shooter. Emerson
subpoenaed T.W. to appear as a witness at trial to
authenticate the Facebook messages. Emerson served T.W. the
subpoena by having the subpoena read aloud to her over the
phone. After T.W. failed to appear in court, Emerson
requested a writ of body attachment to compel her appearance.
Following an offer of proof by Emerson, the trial court
denied the request to issue a writ of body attachment,
determining both that T.W.'s testimony would not lay a
foundation for the Facebook messages and that Emerson did not
effect valid service of the subpoena upon T.W.
State's evidence of the timeline of the offenses included
testimony from the victims that Emerson was at Witness's
home when they arrived between 10 p.m. and midnight. Around
1:00 a.m., the police received a report of shots fired.
Emerson presented an alibi defense through testimony from
Cory Culp ("Culp). Emerson's alibi was that he could
not have committed the shootings at Witness's home
because Emerson was at his grandmother's home at the time
of the shootings. In support of Emerson's alibi, Culp
testified that around 8:00 p.m., he and Emerson were at
Centerville Apartments, where Emerson talked with Witness.
Culp and Emerson left Centerville Apartments at about 9:30
p.m. and drove around town. Culp then drove Emerson at 11:30
p.m. to Emerson's grandmother's home at the Mark
Twain Senior Apartments, where Emerson stayed the entire
jury instruction conference, Emerson objected to the verdict
directors proffered by the State on the basis that the
instructions did not track verbatim the date, time, and place
set forth in the alibi instruction pursuant to the Notes on
Use for Missouri Approved Instructions- Criminal
("MAI-CR") 4th 408.04. The alibi instruction
One of the issues in this case is whether the defendant was
present at 1021 Fulton Avenue, Hannibal, Missouri between
11:30 o'clock p.m. on March 27, 2016 and 2:30 o'clock
a.m. on March 28, 2016. On that issue, you are instructed as
1. The state has the burden of proving beyond a reasonable
doubt that the defendant was present at the time and place
the offense is alleged to have been committed.
2. If the evidence in this case leaves in your mind a
reasonable doubt that the defendant was present at 1021
Fulton Avenue, Hannibal, Missouri between 11:00 o'clock
p.m. on March 27, 2016 and 2:30 o'clock a.m. on March 28,
2016, then you must find the defendant not guilty.
verdict directors for the assault charges, including the
lesser-included charges, and armed criminal action charges
instructed the jury to find Emerson guilty if it found that
Emerson committed the charged conduct "on or about March
28, 2016 in the City of Hannibal, Township of Mason, County
of Marion, State of Missouri[.]" The trial court
overruled Emerson's objection and refused Emerson's
proffered verdict directors tracking the precise date, time,
and place of the alibi instruction.
trial court proceeded to read the instructions to the jury.
The trial court instructed the jury that the attorneys'
closing arguments are intended to help in understanding the
evidence and applying the law, but are not evidence. The
trial court also instructed the jury not to single out
certain instructions and disregard others.
closing argument, the State argued that the jury should
convict Emerson of first-degree assault rather than either of
the lesser-included offenses of assault in the second or
third degree. The State reasoned the evidence supported
finding Emerson acted with the mental state required for
first-degree assault as opposed to third-degree assault,
STATE: Now so far as assault in the third degree . . .
. . . .
So how can you say it was just reckless?
How can you not say that it was not knowingly when he
intentionally said-think of the words that were said.
"Heart still beating?" You know. "This is for
cops." You know. "You're going to get it."
Those are intentional words. That ups the level of
seriousness to assault in the first degree. That's a