Court of Appeals of Missouri, Eastern District, Fifth Division
from the Circuit Court of St. Francois County 14SF-CR00709-01
Honorable Randall Head
P. PAGE, JUDGE
D. Gray ("Defendant") appeals the judgment entered
upon his conviction of first-degree involuntary manslaughter
in violation of Section 565.024 RSMo (Cum. Sup. 2008) and
second-degree assault in violation of Section 565.060 RSMo
(Cum Supp. 2006). Defendant asserts multiple points on appeal
relating to alleged errors at trial. Defendant also filed a
supplemental point on appeal challenging the trial
court's denial of his motion for new trial following an
evidentiary hearing to consider newly discovered evidence as
mandated by this court upon remand. We affirm.
evening of January 16, 2013, Defendant, Kasey Stevens
("Stevens"), her brother Michael Petty
("Petty"), her boyfriend Robert Radford
("Radford"), and Radford's friend Dale Ingram
("Ingram") spent the evening drinking. When Radford
passed out, Stevens took the keys to his van so she, Ingram,
and Defendant could buy drugs. As they were driving, the van
skidded through a curve and rolled over. Some unknown time
later, in the early morning of January 17, Missouri Highway
Patrol Corporal Andrew Woods ("Corporal Woods") was
dispatched to the single-vehicle accident scene. Upon arrival
he observed the van upside down with Ingram trapped inside.
Defendant and Stevens were unconscious and bleeding outside
the van. They were ultimately transported via helicopter to a
trauma center in St. Louis County where Stevens died from her
injuries. At the scene, Ingram informed Corporal Woods that
Defendant was driving and lost control of the van.
was charged with first-degree involuntary manslaughter and
second-degree assault. He was released to the St. Francois
County jail after a lengthy stay in a rehabilitation center.
Corporal Woods met Defendant at the jail where he gave
conflicting reports about whether he was driving. Initially,
Defendant told Corporal Woods that Petty was driving the van.
He also stated, "It wasn't me. I ain't going to
lie to you. I got nothing to hide." However, he later
said, "I think maybe I might have drove. I don't
know. I might be going nuts." According to Corporal
Woods, Defendant seemed incoherent and confused.
trial, the defense strongly disputed that Defendant was, in
fact, driving the van the night of the accident. There was
significant testimony presented, including accident
reconstructionists for both the State and Defendant, as well
as other fact witnesses who testified about potential
evidence that Petty was actually driving that night. A jury
convicted Defendant of both counts and he was sentenced to
fifteen years in prison for each count, to be served
concurrently. Defendant appealed his conviction.
asserted three points in his initial June 9, 2017 brief. He
claimed the trial court erred in denying his motion to
suppress because blood drawn while he was unconscious at the
hospital - absent a warrant - violated his Fourth Amendment
rights. Defendant also claimed the trial court erred in
denying the motion to suppress statements he made to Trooper
Woods while Defendant was in jail following the accident
because the State failed to establish Defendant knowingly and
intelligently waived his right to remain silent. Finally,
Defendant argued the trial court erred in sustaining the
State's objection excluding the testimony of Robert
Fucetola, M.D. ("Dr. Fucetola") regarding
Defendant's general intelligence.
his appeal was pending, Defendant filed a motion to remand
the case to the trial court to consider newly discovered
evidence. He alleged that in May 2017, after the time
available to file a motion for new trial, he learned of a
witness named Jill Johnson who claimed she overheard a
conversation in which Petty, Steven's brother, admitted
he was driving the van the night of the accident. On October
5, 2017, we granted the motion and remanded the cause to the
trial court to conduct a hearing "on whether the newly
discovered evidence warrants a new trial."
the trial court failed to conduct the mandated hearing by
denying Defendant's motion to continue for additional
time to produce Johnson. The court then denied his
supplemental motion for new trial. Defendant filed a
supplemental brief, arguing that the trial court abused its
discretion in denying his motion for continuance to allow him
to present newly discovered evidence. We granted
Defendant's point and reversed the trial court's
decision to deny his motion for continuance in contravention
to our October 5, 2017 mandate. State v. Gray, 2018
remand, the trial court heard the testimony of Jill Johnson
and denied the motion. Defendant filed a supplemental point
on appeal, in addition to the three points initially
asserted, challenging the trial court's decision to deny
his motion for new trial based on the newly discovered
initial points one and two on appeal concern the trial
court's denial of his motions to suppress and the
admission of certain evidence at trial. We review the trial
court's ruling on a motion to suppress to determine
whether the decision is supported by substantial evidence.
State v. Fortner, 451 S.W.3d 746, 750-51 (Mo. App.
E.D. 2014). We reverse the ruling only if it is clearly
erroneous. Id. at 751. We consider both the evidence
presented at the pre-trial hearing and any ...