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State v. Emerson

Court of Appeals of Missouri, Eastern District, Fourth Division

April 2, 2019

STATE OF MISSOURI, Respondent,
v.
CARL E. EMERSON, Appellant.

          Appeal from the Circuit Court of Monroe County Honorable David C. Mobley

          KURT S. ODENWALD, PRESIDING JUDGE

         Introduction

         Carl E. 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.

         Factual and Procedural History

         On the 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.

         The 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.

         During 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.

         The 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 night.

         At the 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 stated:

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.[1] on March 27, 2016 and 2:30 o'clock a.m. on March 28, 2016. On that issue, you are instructed as follows:
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.

         The 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.

         The 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.

         In its 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, stating:

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." You know.
Those are intentional words. That ups the level of seriousness to assault in the first degree. That's a ...

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