State of Missouri, Plaintiff/Respondent v. Reno Whitt, Jr.

 
In the Missouri Court of Appeals
Eastern District
DIVISION TWO

STATE OF MISSOURI, ) ED101663
)
Plaintiff/Respondent, ) Appeal from the Circuit Court
) of St. Louis County
v. )
)
RENO WHITT, JR., ) Honorable Colleen Dolan
)
Defendant/Appellant. ) Filed: April 14, 2015

Introduction

Reno Whitt, Jr. (Appellant) appeals from the judgment entered by the trial court upon the

jury verdicts of guilty on the charges of resisting arrest and first-degree tampering, three counts.

We affirm.

Factual and Procedural Background

Appellant contests the sufficiency of the evidence to support his convictions for

tampering. Viewed in the light most favorable to the verdicts, the following evidence was

adduced at trial.

At approximately 2:00 a.m. on August 14, 2012, Officer Joshua Little received a call

regarding males breaking into cars at the Normandy Court apartment complex. A similar call

came in at that time from the Knoll Wood apartment complex, approximately three miles from

the Normandy Court complex. Officer Robert Gerholdt received a call with a description of four

black males in dark clothing in a red Pontiac Grand Prix at both the Normandy Court and Knoll
Wood apartment complexes. After arriving at the Knoll Wood apartment complex, Officer Little

and Sergeant Gerald Fitzgerald laid out spike strips between their cars to stop any vehicle

attempting to pass between them.

Officer Little was standing outside his car with the driver’s side door open, lights

activated. He saw a red Grand Prix, driven by Appellant with three passengers, moving slowly

toward him and Sergeant Fitzgerald with its headlights off, so he got back in his car and moved it

back. Appellant made an abrupt left turn, hitting Officer Little’s car door and slamming it shut,

then drove up onto the sidewalk. Officer Little and Sergeant Fitzgerald pursued the red Grand

Prix, putting out a “be on the lookout” call for it. Officer James Sieve heard the call and pursued

the vehicle after it passed him. Appellant was driving the Grand Prix at approximately 90 mph

on McDonnell Boulevard when he swerved, lost control of the car, and crashed into a pole.

Officer Sieve called for an ambulance. Appellant and his three passengers were trapped in the

crashed car. Appellant’s front passenger, Ricky Nelson, Jr., died the next day from injuries

sustained in the accident.

Inside the car, police found two screwdrivers, one or two cell phones, and a small DVD

player. Appellant and his passengers were wearing white gloves at the time of the accident.

The State charged Appellant, as a prior and persistent offender, with second-degree

murder, resisting arrest, second-degree assault on a law enforcement officer, and three counts of

first-degree tampering. The three counts of tampering were for defacing (1) Rodney Campbell’s

(Campbell) Dodge Ram, (2) Alice Timlin’s (Timlin) Chrysler Sebring, and (3) Marvin King’s

(King) Chevy Impala.

A jury trial on Appellant’s charges was held April 21-23, 2014. At trial, several

witnesses from the Normandy Court apartment complex and surrounding area testified to the

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defacement and break-ins of their cars on the night of August 14, 2012, and the personal items

stolen from them.

Campbell testified his Dodge Ram 1500 truck was damaged on August 14, 2012 at

Normandy Court, with a hole about the size of a screwdriver punched below the door lock on the

driver’s side and a broken steering column and ignition cylinder, with damage totaling $1,270.

Timlin, who lived in a condominium near Normandy Court, testified that on August 14,

2012, her 2001 Chrysler Sebring had the ignition switch removed from the steering column and

laid on her car seat. Her door lock had also been pried out. Damage to her car totaled about

$1,500.

King testified his 2010 Chevrolet Impala was broken into on August 14, 2012, at

Normandy Court with a screwdriver, resulting in damage to his door lock and his door: “My

driver’s side door had got -- they had, I guess, used a screw driver or whatever and popped the

lock on it.” King testified his TomTom GPS and his Bible were taken from the car.

Appellant was the only witness to testify on his own behalf. At trial, he admitted he

knew the Grand Prix was stolen. He also admitted he wore the white gloves to wipe his

fingerprints off the steering wheel. He admitted to tampering with cars on many occasions.

The jury found Appellant guilty of resisting arrest and the three counts of first-degree

tampering, and acquitted Appellant of the assault charge. The jury was deadlocked on the

murder charge, so the trial court declared a mistrial on that charge and entered judgment in

accordance with the jury’s verdicts on the remaining counts.

The trial court sentenced Appellant to seven years’ imprisonment on the resisting arrest

charge and fifteen years’ imprisonment for each of the three tampering counts, sentences to run

concurrently with each other but consecutively to an unrelated case wherein Appellant’s

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probation had been revoked, for a total of twenty years’ imprisonment. This appeal follows.

Appellant presents three points on appeal.

Point I

In his first point, Appellant maintains the trial court erred in overruling his motion for

judgment of acquittal on the three tampering charges because sufficient evidence was not

presented from which a reasonable juror could have found Appellant broke into the three cars

that were the subject of the charges, since no one claimed to have seen Appellant or the other

men in the car driven by Appellant breaking into the cars, and there was no evidence presented

that anything found in the car Appellant was driving had been taken from the cars that were the

subjects of the tampering charges.

In reviewing a sufficiency of the evidence claim, we accept as true all of the evidence

favorable to the State, including all favorable inferences drawn from the evidence, and disregard

all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo.banc

1993). Our review is limited to a determination of whether there is sufficient evidence from

which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. Id.

Section 569.080, Tampering in the first degree, provides in pertinent part:

1. A person commits the crime of tampering in the first degree if:
…
(2) He or she knowingly … defaces, destroys or unlawfully operates an
automobile … without the consent of the owner thereof.
…

Here, the State charged Appellant with three counts of first-degree tampering based on

his or his accomplices’ defacing the three vehicles belonging to Campbell, Timlin and King.

The jury heard evidence from the three vehicles’ owners, Campbell, Timlin and King,

who lived at or adjacent to the subject apartment complexes, attesting to the damage their

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vehicles sustained the same night four black males were reported by at least three complex

residents to be wearing dark clothes, driving a red Grand Prix, and breaking into cars.

Upon arrival at the Knoll Wood complex in response to the complaints of tampering with

cars, Sergeant Fitzgerald and Officer Little saw Appellant and his three passengers, four black

males in a red Grand Prix, as described by the callers, driving slowly through the complex with

their headlights off. Upon seeing Fitzgerald and Little, Appellant fled in the Grand Prix, led the

police on high-speed chase, and crashed the vehicle into a pole, killing his front seat passenger.

Two screwdrivers were found by the police in the red Grand Prix. Appellant and his passengers

had white gloves on, which Appellant admitted he put on after seeing the police in order to wipe

his fingerprints from the car he was driving, which he knew was stolen. Appellant admitted he

had done this kind of thing many times before. On cross-examination, the State asked Appellant

why he was driving the stolen red Pontiac Grand Prix:

Q. Okay, all right, so Ricky and Keith pick you up in the stolen red Grand Prix and
Haquis says he wants you to drive?

A. Yes.

Q. Even though it’s not his stolen Grand Prix?

A. Yes.

Q. Okay, so, then Keith and Ricky just abide by whatever Haquis wants?

A. No.

Q. Well, it’s their stolen car. Why did they let somebody else drive it? Do you know?

A. Because he don’t trust him driving. He trusts me.

Q. Okay, so you’re the better getaway driver?

A. Yes.

Q. You’ve done this before?

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 A. Yes.

Q. Lots of times?

A. Yes.

The foregoing constitutes sufficient evidence from which to conclude Appellant’s guilt of

tampering. Appellant’s presence at the scene in the manner described, with the additional

circumstances noted earlier and with his own actions, suggests inferences sufficient to a finding

of guilt. State v. Wheeler, 802 S.W.2d 517,518-19 (Mo.App. E.D. 1989). While each fact, taken

separately, may seem innocuous, a conviction may rest upon accumulated, interdependent facts.

Id. at 519. Moreover, Appellant’s behavior before, after or during the offense are circumstances

from which his participation may be implied. Id. Taken together, the facts and the logical

inferences of those facts were sufficient, if believed by the jury, to support the verdict. Id.

Appellant, his passengers, and the car they were in matched the description of the

complaints of the individuals breaking into vehicles at the two apartment complexes. They were

at one of the complexes on the night and at the time of the complaints, driving slowly with their

headlights off. They fled from police. They had screwdrivers in their car. The vandalized cars

had damage consistent with screwdriver tampering. They all had gloves on admittedly to wipe

off their fingerprints.

A permissible inference of guilt may be drawn from acts or conduct of an accused

subsequent to an offense if they tend to show a consciousness of guilt by reason of a desire to

conceal the offense or role therein. State v. Fitzgerald, 778 S.W.2d 689, 691 (Mo.App. E.D.

1989). Appellant’s flight from police was admissible to show a consciousness of guilt on his

part. State v. Johns, 34 S.W.3d 93, 112 (Mo.banc 2000). Coupled with other evidence of guilt,

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flight can be considered in support of a conviction. State v. Harrison, 698 S.W.2d 564, 566

(Mo.App. E.D. 1985).

This direct and circumstantial evidence, and reasonable inferences derived therefrom,

was sufficient for a reasonable jury to find Appellant guilty beyond a reasonable doubt of the

three charges of tampering. Point I is denied.

Point II

In his second point, Appellant claims the trial court abused its discretion in not granting

his request for a mistrial on the resisting arrest count during jury deliberations because, at the

time Appellant asked for the mistrial, the jury had already informed the court multiple times that

they could not reach a verdict and the court’s repeated instruction to continue with deliberations

coerced the jury into a guilty verdict.

We review the denial of a motion for mistrial for abuse of discretion. State v. Johnson,

901 S.W.2d 60, 62 (Mo.banc 1995). A mistrial is a drastic remedy, which should only be

employed in the most extraordinary of circumstances. State v. Clemons, 946 S.W.2d 206, 217

(Mo.banc 1997). The trial court is in the best position to determine whether a mistrial is

appropriate. State v. Dewitt, 924 S.W.2d 568, 570 (Mo.App. E.D. 1996).

The jury began their deliberations of the six counts against Appellant at 12:45 p.m. At

2:55 p.m., 130 minutes later, they sent out a note that they could not agree on the resisting arrest

charge. Both defense counsel and the State asked the court to send the jury a note telling them to

continue deliberating, which they did. At 4:25 p.m., 90 minutes later, the jury again sent a note

regarding the resisting arrest charge indicating they were “deadlocked, 11 to 1.” The court

asked if they had reached verdicts on any of the six counts. At 4:52 p.m., the jury responded

they had reached verdicts on three of the six counts. The trial court announced, after

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consultation with counsel, it would accept the three verdicts reached, dismiss the jury for the day

and instruct them to return the following morning to resume deliberations on the three remaining

counts. No one objected. The jury announced they found Appellant guilty of the three

tampering counts, which the trial court accepted.

The jury returned the next day and resumed their deliberations on the three remaining

counts at 9:07 a.m. At 9:24 a.m., the jury asked the court if the charge of murder could be

reduced to a lesser charge and if they could find Appellant guilty of resisting arrest and not guilty

of murder. The court responded to the jury they must be guided by the evidence as they recall it

and the court’s instructions. Although defense counsel did not object to the court giving this

response to the jury, he requested a mistrial on the murder, resisting arrest, and assault counts,

which the court denied.

At 11:16 a.m., the jury sent the court a note asking for a definition of “felony murder

second degree” and informing the court that they may have reached a verdict on counts two and

three, the resisting arrest and assault charges. Defense counsel again asked for a mistrial on the

murder count, which was denied. The court informed the jury that it could not answer their

questions about the definition of felony murder second degree and instructed them to continue

deliberating.

At 11:45 a.m., the jury informed the court they had reached verdicts on the resisting

arrest and assault charges and asked to render those without the felony murder count, on which

they continued to be deadlocked. The court accepted the jury’s verdicts of guilty of resisting

arrest and not guilty of assault. The court declared a mistrial as to the murder count.

Appellant maintains the court coerced the jury into rendering a verdict on the resisting

arrest count. Appellant claims the fact that the court told them to continue deliberating, even

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after reaching verdicts on three of the six counts, clearly implied to the jury that they were going

to be kept in deliberations until they reached a verdict on all of the counts. This assertion is

belied by the fact that the court eventually accepted the jury’s deadlock on the second-degree

murder charge. The last time the court asked the jury to continue the deliberations, they

indicated they “may have” reached a verdict on the resisting arrest charge, and it was the murder

charge on which they remained deadlocked.

Additionally, the jury deliberated on six charges for a total of less than seven hours. This

is not an exceptional or unreasonable amount of time to spend deliberating on numerous charges,

especially charges serious in nature. Furthermore, the jury frequently announced their failure to

reach verdicts after relatively short spans of deliberation. Finally, in spite of the court’s frequent

admonitions to resume deliberations, the jury ultimately failed to reach a unanimous verdict on

the second-degree murder charge, which indicates they were not subject to coercion by the court

to reach a verdict when they could not unanimously do so.

Based on the foregoing, we find the trial court did not coerce the jury into reaching their

verdict on the resisting arrest charge and did not abuse its discretion in not granting a mistrial.

Accordingly, Point II is denied.

Point III

In his third point, Appellant asserts the trial court erred and abused its discretion in not

allowing Appellant to ask potential jurors about the defense of duress during voir dire, because

the question was within the proper scope of voir dire as an attempt to determine whether the

potential jurors had any preconceived biases regarding his theory of defense.

The trial judge is vested with the discretion to judge the appropriateness of specific

questions, and is generally vested with wide discretion in the conduct of voir dire. State v.

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Oates, 12 S.W.3d 307, 310 (Mo. banc 2000). The trial judge is in the best position to determine

whether questions raised in voir dire assure the presence of a fair and impartial jury without

amounting to a prejudicial presentation of the evidence. State v. Hunter, 179 S.W.3d 317, 321

(Mo.App. E.D. 2005). Accordingly, we review a trial court’s decision to disallow certain

questions during voir dire for abuse of discretion. Id. The party asserting abuse has the burden

of demonstrating a real probability that he was thereby prejudiced. Id.

During voir dire, defense counsel presented the venire panel with hypothetical situations

involving accomplice liability and felony murder to test their understanding and opinion of the

concepts. However, when defense counsel presented the panel with a hypothetical situation

involving the defense of duress, the State objected, arguing the hypothetical was getting into the

territory of the law, which was within the purview of the court when giving instructions to the

jury. The court sustained the objection. Prior to their deliberations, the jury did receive an

instruction regarding the defense of duress. 

Appellant’s defense to the resisting arrest charge was that he initially wanted to surrender

to the police at Knoll Wood, but one of his friends in the back seat put a gun to his back and told

him to drive. As such, Appellant argued, he only fled from the police in the Grand Prix because

he was under duress to do so. Appellant maintains some individuals on the jury panel might

have been predisposed to be biased against the concept of duress and so he was entitled to obtain

the individual prospective jurors’ reaction to his hypothetical. His hypothetical posed a situation

in which two individuals rob a store, the police arrive, one wants to surrender, but the other holds

a gun to his back and orders him to flee in the getaway car.

The purpose of exposing prospective jurors to critical facts of the case during voir dire is

to discover bias, not to create bias; questions may not be phrased in such a way as to attempt to

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elicit a co
ommitment from
f jurors on
o how they
y would reacct to hypotheetical facts orr seek to

predisposse jurors to react
r a certaiin way to an
nticipated eviidence. Statte v. Ousley,, 419 S.W.3dd 65,

74 (Mo.b
banc 2013). Appellant’ss last hypotheetical, whichh was identiccal to Appellant’s testim
mony

at trial, appears to bee an attempt to
t elicit a co
ommitment ffrom jurors aas to how theey were goinng to

react to th
he evidence and Appellaant’s defensee theory at trrial. The quuestions askeed by defensee

counsel here
h were no
ot designed to
t uncover biias, but ratheer were arguumentative inn that they w
were

intended to inject Ap
ppellant’s arg
gument into the voir diree examinatioon. State v. Womack, 9967

S.W.2d 300,
3 302 (Mo
o.App. W.D. 1998). Phrrasing a voirr dire questioon in such a manner, whhich

precondittions the pan
nel memberss’ minds to react,
r even suubconscioussly, in a partiicular way too

anticipatee evidence iss an abuse of counsel’s privilege
p to eexamine proospective jurrors. Id. Whhen

the inquiry includes questions
q ph
hrased or fram
med in suchh a manner thhat they requuire the one

ng to speculaate on his ow
answerin wn reaction to
o such an exxtent that he tends to feell obligated too

react in th
hat manner, prejudice caan be created
d. State v. G
Garrett, 627 S
S.W.2d 635,, 642 (Mo.baanc

1982). That
T is not accceptable voiir dire, and the
t trial courrt did not abbuse its discrretion in

curtailing
g it. Point IIII is denied.

Conclusion
C

The
T trial courrt’s judgmen
nt is affirmed
d.

Sherrri B. Sullivaan, P.J.

Mary K. Hoff, J., andd
Philip M. Hess, J., co
oncur.

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