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State v. Whittier

Court of Appeals of Missouri, Eastern District, Third Division

October 1, 2019

STATE OF MISSOURI, Plaintiff/Respondent,
VICTOR C. WHITTIER, Defendant/Appellant.

          Appeal from the Circuit Court of the City of St. Louis Honorable Thomas C. Clark II.

          Sherri B. Sullivan, Judge.


         Victor C. Whittier (Appellant) appeals from the trial court's judgment entered after a jury trial convicting him of first-degree murder. We affirm.

         Facts and Background

         Appellant was convicted of murdering his estranged girlfriend (Victim) by shooting her from outside of her window at night. Victim was in her apartment she shared with her younger brother, Reggie Jackson (Reggie), who was 13 years old at the time of his sister's shooting. On the evening Victim was shot, Reggie was in the living room playing video games. Reggie testified he heard Appellant yell "F__you" followed by gunshots. Reggie testified he was familiar with the sound of gunshots in their neighborhood, and usually when he heard them his sister would yell for him to get down. That night, Reggie did not hear his sister yell, so he went to her room to check on her. Reggie entered his sister's room and saw blood everywhere, and then ran from their apartment to a neighbor's house.

         Emergency services responded, finding Victim dead at the scene. She had been shot four times from outside the apartment; it was not clear how many shots had been fired in total.

         Police interviewed Reggie at the scene. Reggie recounted what he had observed. He told police Victim had a restraining order against Appellant, who was the individual he heard yell before Victim was shot.

         Police accessed security camera footage from the apartment complex. The footage depicted a male subject pacing around the complex shortly before the shooting. The subject was wearing a dark shirt and jeans with distinctive tearing and bleach marks. The shooting itself was not shown, but the individual stalked the area outside of Victim's window sometime before the shooting, and then suddenly ran away.

         Investigators spoke with a neighbor who had witnessed an individual walking around the apartment complex that night. The neighbor recognized the individual as a man who been at the complex on numerous occasions, and who drove a noisy car with engine troubles. While dating Victim, Appellant had been to the apartment complex numerous times. At trial, Reggie testified about Appellant's battered car with noisy engine troubles.

         Police obtained the restraining order Victim had recently obtained against Appellant from Victim's apartment. Investigation led police to a residence in St. Louis where Appellant had been staying. A vehicle connected with Appellant was located outside the residence. Inside the residence police found a box containing Appellant's belongings, including his driver's license. In the closet of a bedroom occupied by another individual, police found a .38 caliber revolver with five spent shell casings. An examination of the revolver could not conclusively determine whether the bullets that killed Victim were fired from it, nor could fingerprints be identified. However, examiners were able to conclude the revolver was the same caliber as the murder weapon. Examiners also concluded the revolver had the same eight-right barrel rifling that would produce the same type of lands and grooves as were found on the slugs fired into Victim's apartment. Appellant was arrested wearing clothes similar to the subject depicted in the surveillance footage.

         Additional facts will be adduced as necessary.

         Points on Appeal

         Appellant brings three points in this appeal. Point I claims the trial court erred by excluding evidence of an alternative suspect. Point II claims the trial court erred by admitting into evidence the security camera footage from the apartment without a proper foundation. Point III claims the trial court erred by admitting into evidence the revolver found in the closet at the residence where Appellant was staying.

         Point I

         At trial, Appellant sought to introduce evidence that Nelson Hall, Jr. (Hall), an individual Victim had dated before Appellant, was the actual shooter. The State of Missouri (State) filed a motion in limine to exclude such evidence. At a pretrial hearing on the State's motion in limine, Appellant told the trial court he wished to introduce evidence of a number of violent incidents between Victim and Hall, including one incident where Hall brandished a gun and punched a hole in Victim's wall. Appellant also stated he wished to elicit testimony from Reggie that Hall continued to appear at Victim's and his apartment after Hall and Victim broke up, including one instance where Reggie saw Hall lingering outside their window. The State argued there was no evidence placing Hall at the scene of the shooting that night, and all the other evidence was thus inadmissible. When the trial court asked whether Appellant had any evidence directly connecting Hall to the shooting, Appellant stated he did not. The trial court ruled evidence regarding Hall as an alternative suspect was inadmissible.

         At the conclusion of Reggie's testimony, Appellant made an offer of proof consisting of testimony from Reggie regarding Hall. At the end of the offer of proof, Appellant asked Reggie whether the voice he heard yell "F__ you" the night his sister was shot could have been Hall's, and Reggie replied, "Maybe."

         Standard of Review

         "The trial court is vested with broad discretion to exclude or admit evidence at trial." State v. Wright, 551 S.W.3d 608, 616 (Mo. App. E.D. 2018), citing State v. Bowman, 337 S.W.3d 679, 686 (Mo. banc 2011). "We review the trial court's evidentiary rulings for an abuse of that broad discretion." Id. An abuse of discretion occurs when the trial court's decision is so against the logic of the circumstances then before it, or so unreasonable and arbitrary, that it shocks one's sense of justice and indicates a lack of careful consideration. State v. Shegog, 521 ...

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