State of Missouri v. Travon Dornay Johnson ( 2020 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
STATE OF MISSOURI, ) No. ED107732
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
) Hon. Steven R. Ohmer
TRAVON DORNAY JOHNSON, )
) Filed:
Appellant. ) June 23, 2020
Travon Johnson (“Defendant”) appeals from the judgment entered after a jury trial on
multiple convictions stemming from a drive-by shooting. We affirm as modified.
In September of 2014, Lamont Hamm was in the car with his girlfriend Layla White and
their three-year old son. It was approximately 4:00 p.m., daylight, and White was driving when a
dark colored Chevy Impala began chasing them. Hamm saw two men lean out of the Impala’s
front and rear passenger windows and begin shooting at them, injuring White. Hamm identified
the shooters as Defendant and Trevon Jackson (“Codefendant”); the Impala was driven by a third
unknown person. Hamm said he and Defendant used to be friends, but that Defendant was upset
with him because a friend of Hamm’s had broken into Defendant’s home. Hamm told police he
was tired of Defendant shooting at him, referring to an incident in August of 2014 in which Hamm
and another man were shot at; the other man died, and initially Hamm did not identify Defendant
as the shooter to police, but now that “innocent” people were involved Hamm said he was willing
to divulge Defendant’s involvement in that earlier incident.
In addition to Hamm’s eyewitness account of the September shooting, there was cell phone
evidence showing that Defendant had received several calls just before 4:00 p.m. on that day at
locations near where the incident occurred. When Defendant and Codefendant were arrested after
trying to flee in Defendant’s blue Chevy Impala the day after the September shooting, the police
found two guns in the car, one of which was a 9mm identified by ballistics evidence as the gun
used in the shooting. Defendant admitted the guns were his. Unspent ammunition of the same
caliber was also found in a search of Defendant’s home.
Defendant and Codefendant were jointly charged for the September shooting with three
counts of assault in the first degree (one for each of the three victims in the car), one count of
unlawful use of a weapon and four associated armed criminal action counts. Defendant was also
charged individually with murder, assault, unlawful use of a weapon and associated ACAs for the
August incident and individually for resisting a lawful stop, resisting arrest and assault of a law
enforcement officer stemming from the car chase prior to his arrest in September. At the joint trial
with Codefendant, Defendant presented an alibi defense, claiming he was helping his girlfriend
move the day of the September shooting, and Codefendant presented no evidence. Defendant was
found not guilty on all counts relating to the August incident, guilty on all counts involving his
September arrest and guilty on all counts relating to the September shooting. Codefendant was
found not guilty. Defendant was sentenced to a total of 90 years imprisonment. Defendant appeals
only the convictions relating to the September shooting.
Inconsistent Verdicts
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In his first point on appeal, Defendant contends the court plainly erred in accepting guilty
verdicts for Defendant on the same counts for which Codefendant was found not guilty. On each
of the counts for which Defendant and Codefendant were jointly charged, the jury received two
sets of verdict-directors: one set regarding the requirements for finding Defendant guilty and one
set regarding the requirements for finding Codefendant guilty. Each verdict-director for each
defendant on each count had two components. The first component was to determine the actus
reus: in each set, the jury was instructed that if it found that either Defendant or Codefendant
engaged in the requisite acts constituting the crime—so, for assault in the first degree, knowingly
causing serious injury by shooting—then it must find that the crime occurred. The second
component of each verdict-director instructed the jury to determine the requisite mens rea: in
Defendant’s set of instructions, the jury was directed to find Defendant guilty if it found that “with
the purpose of promoting or furthering the commission of” that crime, Defendant acted together
with Codefendant in the requisite acts; similarly, to find Codefendant guilty, the jury had to find
that “with the purpose of promoting or furthering the commission of” that crime, Codefendant
acted together with Defendant in the requisite acts.
Defendant insists that Codefendant’s not guilty verdicts were dependent on a finding that
Codefendant did not “act together” with Defendant and since Defendant’s guilty verdicts were
necessarily dependent on the opposition conclusion, the verdicts are inconsistent. But this logic
ignores the individualized mens rea element. Codefendant was only guilty of the crime if he acted
together with Defendant with the purpose of promoting or furthering the commission of the crime.
In other words, Codefendant’s not guilty verdicts could be based on the finding that he acted
together with Defendant, but not for that criminal purpose. See State v. McGee, 284 S.W.3d 690,
708–09 (Mo. App. E.D. 2009) (holding that, on instructions similar to this case, jury could find
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defendant was present but did not act with requisite purpose). The jury could have found that
Codefendant and Defendant acted together, but that only Defendant acted with the requisite mens
rea. The resulting guilty verdicts for Defendant and not guilty verdicts for Codefendant are,
therefore, not inconsistent. See id.
Sufficiency of the Evidence
In his second point relied on, Defendant purports to challenge the sufficiency of the
evidence, essentially raising the same argument as his first point: that the not guilty verdicts for
Codefendant “evidences a failure of proof” on the “acting together” element as it is set out in the
verdict-directors. This argument completely misses the point of a sufficiency of the evidence
challenge. A claim that the evidence was insufficient is actually a challenge to the trial court’s
ruling on the motion for judgment of acquittal at the close of evidence, which is filed before the
case is submitted to the jury. State v. Myles, 479 S.W.3d 649, 660 (Mo. App. E.D. 2015). Thus,
the real question is whether by the close of evidence the State has presented sufficient evidence to
submit the case to the jury, which is reviewed without regard to the verdict-director. Id.; see also
State v. Young, 369 S.W.3d 52, 54 n. 3 (Mo. App. E.D. 2012). And to succeed on a sufficiency
claim, an appellant must (1) identify the element of the crime he claims was not proven, (2) set
forth the evidence in the record tending to prove that element and (3) show why such evidence and
the reasonable inferences therefrom are so non-probative that no reasonable fact-finder could have
found that element was sufficiently proven. State v. Finch, 398 S.W.3d 928, 929 (Mo. App. S.D.
2013) (discussing three analytical steps required to challenge sufficiency). But here Defendant
does not identify any evidence, much less explain how it is not probative of the “acting together”
element. His argument is, instead, solely based on the jury’s conclusion under the verdict-director.
Not only is this argument wholly misplaced in a sufficiency challenge, it is without merit as
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discussed above: Codefendant’s acquittal does not necessarily demonstrate a lack of evidence that
he and Defendant acted together. Defendant’s sufficiency challenge fails on its face.
Admission of Evidence
In his third point relied on, Defendant contends the court abused its discretion by admitting
into evidence the unused ammunition seized from his home. Defendant relies on the general
proposition that weapons and ammunition unconnected with the crime or the defendant are
inadmissible because they lack probative value and are prejudicial. See generally State v. Hosier,
454 S.W.3d 883, 895 (Mo. banc 2015). But this ammunition was not unconnected: it was found
in Defendant’s home and was of the same caliber as the ammunition used in the shooting.
Moreover, Defendant only challenges the admission of the ammunition itself, not the testimony
from the police officer describing the ammunition he found in Defendant’s home. “[A] defendant
is not prejudiced by the admission of allegedly improper evidence when the same facts were
established without objection by other evidence.” State v. Riggs, 520 S.W.3d 788, 798 (Mo. App.
S.D. 2016); see also State v. Jones, 369 S.W.3d 77, 81 (Mo. App. E.D. 2012). In other words, to
the extent the fact that Defendant had a “cache” of ammunition in his home was prejudicial, as he
claims, that is attributable to the officer’s testimony, not the admission of the ammunition itself.
See State v. Edwards, 31 S.W.3d 73, 82 (Mo. App. W.D. 2000) (finding no additional prejudice
from admission into evidence of knives found in defendant’s home where officer previously
testified without objection to finding knives in defendant’s home, which was not challenged on
appeal). It was not an abuse of discretion to admit the ammunition into evidence at trial.
In his fifth point on appeal, Defendant contends the court clearly erred by denying his
motion to suppress and admitting into evidence statements he made to police. Defendant argues
that he immediately requested counsel when he was taken into custody and, though initially there
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was no interrogation, a few hours later the police began interrogating him without counsel present.
Thus, he contends, the statements he made during that interrogation were illegally obtained and
inadmissible. But Defendant acknowledges that the challenged statements were not played during
the State’s case in chief, only during cross-examination of Defendant to impeach him after he
testified inconsistently with those statements and in the State’s rebuttal to Defendant’s assertion
of an alibi that was not mentioned in his statements. A statement obtained illegally in violation of
the rules regarding interrogation after a request for counsel can be used to impeach a defendant or
on rebuttal. See generally Oregon v. Hass, 420 U.S. 714, 722 (1975); State v. Thomas, 698 S.W.2d
942, 948 (Mo. App. S.D. 1985); State v. Engel, 859 S.W.2d 822, 829 (Mo. App. W.D. 1993). “To
hold otherwise would . . . permit a constitutional shield to be perverted into a license to use perjury
by way of a defense, free from the risk of confrontation with prior inconsistent utterances.”
Thomas, 698 S.W.2d at 949 (internal quotation marks and citation omitted). Thus, even if they
were illegally obtained, it was not error to admit Defendant’s statements for purposes of
impeachment and rebuttal, and Defendant has provided no argument to suggest otherwise.
Exclusion of Evidence
In his fourth point on appeal, Defendant argues the court abused its discretion in excluding
testimony that an alternative person, Vincent Perry, had a motive and the opportunity to commit
this crime. Missouri follows the “direct connection rule”: evidence that another person had an
opportunity or motive to commit the charged crime is only admissible if there is also proof that
the other person committed some act directly connecting him with the crime. State v. McKay, 459
S.W.3d 450, 458 (Mo. App. E.D. 2014); State v. Nash, 339 S.W.3d 500, 513 (Mo. banc 2011). In
other words, the directly-connected act is a threshold requirement for the admission of other
evidence tending to show that the person had motive and opportunity. McKay, 459 S.W.3d at 45.
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The act must clearly and directly link the other person with the corpus delicti. Id.; Nash, 339
S.W.3d at 513. “Disconnected and remote acts, outside the crime itself cannot be separately
proved for such purpose; and evidence which can have no other effect than to cast a bare suspicion
on another, or to raise a conjectural inference as to the commission of the crime by another, is not
admissible.” Nash, 339 S.W.3d at 513 (quoting State v. Rousan, 961 S.W.2d 831, 848 (Mo. banc
1998)).
Defendant sought to introduce evidence that Perry had a motive to shoot at Hamm because
Hamm had stolen Perry’s guns. Defendant claims the threshold act directly connecting Perry to
the shooting is that on the day of this crime, Perry was driving Defendant’s blue Chevy Impala
and had access to the guns that were in that car. The testimony Defendant relies on, however, was
merely that Perry “had” Defendant’s car that day. The only testimony that he was seen “driving”
that car was limited to some unspecified point later in the day after dark, when Perry arrived at
Defendant’s sister’s home in the car. This amounts to nothing more than speculation that Perry
was driving that car at any other point during that day, much less at the time or place of the
shooting. It is not an act that clearly and directly connected Perry to the crime itself. There is no
more than a conjectural inference and bare suspicion that Perry committed the crime. Thus, it was
not an abuse of the trial court’s discretion to exclude evidence of Perry’s alleged motive.
In his sixth point, Defendant argues that the court erred by prohibiting him from inquiring
into Hamm’s pending federal charges. As a general rule, a witness may not be impeached with a
pending criminal charge unless a foundation is laid clearly demonstrating one of the following
exceptions: (1) a specific interest of the witness; (2) the witness’s motivation to testify favorably
for the State; or (3) the witness is testifying with an expectation of leniency. State v. Moore, 252
S.W.3d 272, 276 (Mo. App. S.D. 2008). The key in laying this foundation is to show the witness’s
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perception of expectancy of favorable treatment. Id. Speculative or theoretical motives for
testifying are not sufficient to show the necessary connection between the witness’s pending
charges and the giving of his trial testimony. See id.; see also State v. Watts, 813 S.W.2d 940, 943
(Mo. App. E.D. 1991). In other words, “unrelated pending charges” are inadmissible when there
is nothing in the record to demonstrate the witness’s “perception of either favorable treatment if
he testified favorably to the State or harsh treatment if he testified unfavorably.” Moore, 252
S.W.3d at 277.
Defendant has made no record in this case as to Hamm’s perception of how his testimony
in this case might impact his treatment in the federal case. First, Defendant made no attempt to
introduce this evidence at trial after the court granted the State’s motion in limine to exclude
evidence of the pending federal charges, much less make an offer of proof upon its continued
exclusion. See State v. Hunt, 451 S.W.3d 251, 263 (Mo. banc 2014) (“To preserve a claim of
improperly excluded evidence, the proponent must attempt to present the excluded evidence at
trial and, if it remains excluded, make a sufficient offer of proof”). Second, Defendant relies
entirely on counsel’s narrative in response to the motion in limine to demonstrate the content of
the excluded evidence and prove its admissibility. Reliance on counsel’s assertions instead of a
traditional offer of proof runs the risk that those assertions will be insufficient to accomplish the
purpose of an offer of proof, namely to demonstrate the content, purpose and other facts necessary
to establish the admissibility of the excluded evidence. State v. Murphy, 534 S.W.3d 408, 415
(Mo. App. E.D. 2017). That is precisely the problem here. Counsel’s narrative merely attests to
the existence of the federal indictment and counsel’s speculative belief that the federal case might
be impacted by Hamm’s testimony in this case. There is absolutely nothing in this narrative about
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whether Hamm believed that or expected leniency or was motivated to testify in a way that Hamm
believed might impact his federal case.
The cases Defendant cites in support of this point are clearly distinguishable. In State v.
Joiner, the pending charges against the witness were brought by the same prosecutor trying the
defendant’s case. 823 S.W.2d 50, 53 (Mo. App. E.D. 1991). The holding in Joiner has been
expressly limited to that circumstance, which is not present in this case. See State v. Nettles, 10
S.W.3d 521, 528 (Mo. App. E.D. 1999). In State v. Clark, there was an offer of proof in which
the witness stated he hoped he would reap a benefit in sentencing on another case by testifying
against the defendant. 364 S.W.3d 540, 544 (Mo. banc 2012). But here, there is nothing in the
record connecting Hamm’s perceptions about the federal case and his testimony in this case. Thus,
Defendant has wholly failed to demonstrate an exception to the general rule that pending charges
are inadmissible and there was no error, therefore, in excluding that evidence here.
In his seventh point, Defendant claims the trial court erred when it prohibited him from
asking Layla White about Hamm’s reputation for lying. A person can testify as to another
witness’s reputation for truthfulness and veracity if that person is familiar with “the general
reputation of the witness in the neighborhood or among the people with whom the witness
associates.” State v. Smith, 314 S.W.3d 802, 811 (Mo. App. E.D. 2010) (internal quotation marks
and citation omitted). But one’s personal opinion about another witness’s truthfulness is irrelevant
and inadmissible. See State v. Smith, 314 S.W.3d 802, 811 (Mo. App. E.D. 2010).
The only attempt by Defendant to solicit evidence about Hamm’s reputation for lying is as
follows:
Q: Do you know the community that Lamont lives in generally?
A: Yes.
Q: Do you have an opinion about his reputation for truthfulness?
PROSECUTOR: Objection.
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COURT: Sustained.
DEFENDANT’S COUNSEL: Judge, I'll leave it at that. 1
Again, Defendant made no offer of proof as to White’s answer, instead relying on the assertion in
his motion for new trial that in a deposition White had said Hamm had a very bad reputation for
lying. But even assuming that “he has a very bad reputation for lying” would have been White’s
answer at trial, it was not shown that White was familiar with Hamm’s general reputation in the
community—only that she “know[s] the community”—and the question asked only for White’s
opinion about Hamm’s reputation. Defendant’s question would not have solicited proper evidence
of Hamm’s poor reputation for truthfulness. Having “left it at that” and failing to make an adequate
offer of proof, Defendant has provided no record to establish the admissibility of the challenged
testimony, and it was not error to exclude it.
Moreover, as Defendant himself admits, the veracity of Hamm’s testimony was “already
highly questionable” based on other unchallenged evidence admitted at trial to impeach Hamm’s
credibility, including his extensive criminal history, prior gang affiliation and his admission that
he lied to police about an earlier shooting incident in August of 2014. Defendant contends that
because the jury acquitted him of the counts relating to the August incident, had these two
additional pieces of impeachment evidence—Hamm’s reputation for lying and his pending federal
charges—been admitted that “might reasonably have tipped the balance of the scales” in his favor
on the other counts. But because the jury already knew Hamm was a liar and a criminal, there is
no reasonable probability that disclosure of two additional pieces of evidence demonstrating that
he was a liar and a criminal would have affected the outcome of the trial.
1
Defendant also cites another line of questioning in which White testified that Hamm had “lied to her before” and
was asked whether he “lies about a lot of things,” which drew an objection from the State that was also sustained. But
this exchange occurred during Codefendant’s cross-examination of the witness and, in any event, has nothing to do
with Hamm’s reputation, only White’s personal experience with Hamm.
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Written Sentence
In his eighth and final point on appeal, Defendant argues the trial court plainly erred in
entering a written sentence on two counts that are materially different than the sentences imposed
during the court’s oral pronouncement on those counts. In general, where an oral pronouncement
of a defendant’s sentence is materially different than the written sentence, the oral pronouncement
controls if it is unambiguous. State v. Wolford, 590 S.W.3d 324, 330 (Mo. App. E.D. 2019).
Here, the court orally pronounced the sentence as follows:
Counts VII and VIII, assault first and ACA, 25 years each. “Those sentences run
concurrent with each other for a total sentence of 25 years.”
Counts IX and X, assault first and ACA, 25 years each. “The sentence in Count X
runs concurrent with the sentence in Count IX for a total sentence of 25 years. But
those sentences, again, IX and X run consecutive to the sentences in VII and VIII,
for a total sentence of 50 years.”
Counts XI and XII, assault first and ACA, 25 years each. “Those sentences run
concurrent with each other for a total sentence of 25 years, but consecutive to
Counts VII and VIII, and consecutive to Counts IX and X, for a total sentence there
of 75 years.”
Counts XIII and XIV, unlawful use of a weapon and ACA, 25 years each. “Those
sentences run concurrent with each other for a total sentence of 25 years. Those
sentences also run concurrent with Counts VII, VIII, IX, X, XI and XII.”
Count XV, assault second on a law enforcement 15 years, and Count XVI and XVII,
resisting stop and resisting arrest, 7 years each. “Those sentences run concurrent
with each other for a total sentence of 15 years, but those sentences also run
consecutive to Counts VII, VIII, IX, X, XI, XII, XIII, and XIV, for a total sentence
of 90 years.”
The written judgment accurately reflects this oral pronouncement except as to Count XIV.
For that count, the court checked the “concurrent” box and wrote in Count XIII next to it. But the
court also checked the “consecutive” box and wrote in Counts VII through XII next to that. Thus,
the written judgment indicates that Count XIV is to run concurrent with Count XIII, which is
consistent with the oral pronouncement, but consecutive to Counts VII through XII, which is
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materially different than the oral pronouncement that XIV would run concurrent with all of those
earlier counts. The State concedes the “consecutive” box was inadvertently marked on Count XIV.
Defendants asks us to remand for the trial court to fix the discrepancy, but we may correct this
type of error in the written judgment without remand. See Wolford, 590 S.W.3d at 332–33.
Defendant contends the written judgment on Count XIII contains the same problem, but on
that count the court checked only the “concurrent” box and wrote in Counts VII through XII.
Although those counts are written near the “consecutive” box, the box itself is unchecked and there
is no indication that Count XIII is to run consecutively to those earlier counts. Thus, the written
judgment is the same as the oral pronouncement, and there is no error to correct on that count.
Conclusion
Defendant’s eighth point on appeal is granted, and all other points are denied. The
judgment and sentence is modified as follows: on Count XIV, Defendant was sentenced to 25
years in prison to be served concurrently with the sentence on Counts VII through XIII. The
judgment and sentence is affirmed as modified herein.
ROBERT G. DOWD, JR., Judge
Robert M. Clayton III, P.J. and
Michael E. Gardner, J., concur.
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