State of Missouri v. Umar Muhammad

In the
Missouri Court of Appeals
Western District
STATE OF MISSOURI, )
)
Respondent, ) WD76966
)
v. ) OPINION FILED: October 27, 2015
)
UMAR MUHAMMAD, )
)
Appellant. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Peggy Stevens McGraw, Judge
Before Division One: Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge
and Cynthia L. Martin, Judge
Umar Muhammad ("Muhammad") appeals his convictions of second-degree
murder, first-degree assault, and two counts of armed criminal action following a jury
trial. Muhammad claims that errors during closing argument and in the admission of
evidence at trial made it less likely that the jury would accept his defense that he was not
the shooter, an essential element of his crimes. Finding no error, we affirm.
Factual and Procedural Background
Muhammad does not challenge the sufficiency of the evidence to sustain his
convictions. [Appellant's Brief, p. 14, n. 5] That evidence, viewed in the light most
favorable to the jury's verdict,1 was as follows:
On May 19, 2011, at approximately 3:45 a.m., Muhammad shot and killed
Mohamed Hussein ("Hussein") at a park in Kansas City, Missouri. Just prior to the
shooting, Hussein was in a car with Anwar Ali ("Ali"). Muhammad was near the park
entrance with two men when he saw Hussein and exclaimed "Bird, Bird, that's them."
The two men with Muhammad were Seneca Keith ("Keith"), whose nickname was
"Bird," and Jermaine Henderson ("Henderson"). Ali and Hussein heard Muhammad's
statement, which prompted Hussein to get out of the car and walk toward the three men.
Ali got out of the car to urge Hussein to return. Muhammad shot Hussein. Hussein
began running. Ali was five feet away at the time and saw Muhammad shoot Hussein.
Ali had met Muhammad on two prior occasions and recognized him. Ali did not know
the other two men with Muhammad.
After firing several more shots at Hussein, Muhammad began firing at Ali, who
ducked and took cover inside the car. After the shots stopped, Ali lifted his head and saw
Muhammad and the other two men running into the park.
Ali drove his car to the location where Hussein had fallen. Ali drug Hussein to the
car. Keith and Henderson (who had at first fled the scene) ran back to assist Ali.
1
In determining whether a criminal conviction is supported by sufficient evidence, we view the evidence in
the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. State v. Miller, 372 S.W.3d 455, 463 (Mo. banc 2012).
2
However, Hussein died at the scene. The bullets recovered from Hussein's body and
from Ali's car where determined to have been fired from the same weapon, although that
weapon was never recovered.
Muhammad and Hussein had been in a dispute just hours before the shooting at a
gas station close to the park. A police officer who responded to that scene observed that
Muhammad was wearing a black "do rag" and a black jacket with white "KC" insignias.
In a dash cam photograph of that scene, the officer could not distinguish the "do rag"
from a black baseball cap.
Ali told officers that Hussein's shooter was wearing a black hoodie and a black
baseball cap. Ali described the shooter as "the Egyptian dude." Muhammad is Egyptian.
Ali identified Muhammad as the shooter in a color photo lineup several hours after the
shooting. Ali also identified Keith as the person Muhammad had called "Bird" at the
scene. Ali testified at trial that he was "[one] hundred percent sure" that Muhammad was
the shooter.
Following his arrest, Muhammad first denied being at the park, then admitted
being at the park though at a different time than the shooting. Later, Muhammad
admitted being at the park almost every day. He admitted knowing Hussein and admitted
that he had been involved in an altercation with Hussein, though he claimed it had been
several days earlier. Muhammad claimed he was at his sister's at the time of the
shooting, though she never corroborated this alibi. Muhammad did not testify at trial, but
his defense at trial centered on suggesting that Keith was the shooter.
3
The jury convicted Muhammad and recommended sentences which the trial court
imposed.
Muhammad appeals.
Analysis
Muhammad raises four points on appeal. Three of the points claim error in
connection with the State's closing argument. One of the points claims error in the
admission of evidence. With respect to all four points, Muhammad concedes that there
was sufficient evidence to support his convictions but argues that, but for the errors
addressed in the points, the "defense may have carried the day or had a more significant
chance of success" in persuading the jury that Muhammad was not the shooter.
[Appellant's Brief, p. 14, n. 5] Because establishing that Muhammad was the shooter was
an essential element of his charged crimes, Muhammad claims he was prejudiced. We
address Muhammad's points individually.
Point One
In his first point on appeal, Muhammad argues that the trial court abused its
discretion when it allowed the State to argue during its rebuttal closing, and over
Muhammad's objection, that a key witness's trial testimony implicating Keith had not
been previously reported to the police.
We review a trial court's decisions in the control of closing arguments for an abuse
of discretion. State v. Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006). Improper closing
argument will not support reversal, however, unless the error is prejudicial. Id. To be
"prejudicial," the improper argument must have had "'a decisive effect on the jury's
4
determination.'" State v. Armentrout, 8 S.W.3d 99, 111-12 (Mo. banc 1999) (quoting
State v. Hall, 982 S.W.2d 675, 683 (Mo. banc 1998)). Muhammad has not met this
burden. State v. Steele, 314 S.W.3d 845, 851 (Mo. App. W.D. 2010) (observing that a
defendant has the burden to establish prejudice associated with improper closing
argument).
The portion of the State's rebuttal closing about which Muhammad complains
involved a discussion of the trial testimony of Tyra Anderson ("Anderson"). To afford
context to the rebuttal closing, and to Muhammad's objection, we must first summarize
Anderson's trial testimony.
The State called Anderson as a witness during its case-in chief. On direct
examination, Anderson testified that she lived in an apartment building near the park
where Hussein was killed. Anderson knew Keith, having previously dated him.
Anderson also knew Muhammad and Henderson. Anderson testified that on the morning
of the shooting, she awoke to loud voices, leaned out her bedroom window, and could
clearly see Muhammad, Keith, and Henderson near the park entrance. She heard
gunshots and ducked. She then saw Keith run from the scene in one direction, while
Muhammad and Henderson ran in a different direction. Anderson did not testify that she
saw who shot Hussein. Anderson did, however, see Hussein fall to the ground and saw
Ali drive to that location, where Ali got out of the car crying. Anderson testified that she
ran outside and then spoke with the police when they arrived at the scene. She testified
that she later went to police headquarters where she made a statement and identified
Muhammad, Keith, and Henderson from a photo lineup. The State did not ask Anderson
5
any further questions about the content of her statements to the police at the scene or
police headquarters.
On cross examination, Muhammad established through Anderson that Keith was
wearing a black hoodie at the time of the shooting and that Anderson saw Keith return to
the scene to assist Ali with Hussein after first running away. Muhammad then asked
Anderson the following:
Q: Shortly after the shooting, you hear [Keith] yell something, correct?
A: Yes.
Q: And what you hear him yell is -- and I don't [sic] that this is
offensive, but you hear him yell, "Bitch ass nigga, I got you, I got you?"
A: Yes.
Q: And he was saying this towards the direction of the car or [Hussein]?
A: Correct.
Mohammad did not ask Anderson whether she told the police about Keith's statement.
The State did not redirect Anderson.
During closing argument, Muhammad argued:
[T]he State is asking you to find [Muhammad] guilty of murder.
Everything you heard yesterday--you heard within hours of [Hussein] being
shot and killed over two years ago, Officer Moore arrived at the scene and
from the moment he got there, he was told that [Keith] was involved, that
the shooter was wearing a black pullover hoodie and a black baseball cap
and [Keith] is arrested . . . right there. Officer Moore spoke with
[Anderson] at the scene. She was available to them immediately. They
want you to rule out [Keith] because Officer Moore told you that he was
never charged and a case was never submitted to the prosecutor's office
because they didn't have any evidence which linked [him] to the shooting.
Ladies and gentlemen, they had everything that you saw yesterday. And
I've been able to point out to you two things now that the evidence points
6
to [Keith] overwhelmingly more than it points to [Muhammad]. But they
let [Keith] go. . . . Ladies and gentlemen . . . you cannot be firmly
convinced in this case. . . . [Keith] is the shooter. He should be the person
who is sitting in court today.
(Emphasis added.) The plain implication of Muhammad's closing was that Anderson had
told police at the scene of the shooting everything about which she had testified at trial,
including the statement she heard Keith make as he fled the scene.
During rebuttal closing argument, the State argued:
[F]or [Muhammad] to get up here and say everything that was presented
here in front of you yesterday, the police department knew the night this
happened, is not true. [Muhammad's counsel] talked to you about what
[Anderson] said when she talked to Officer Moore. Two years ago when
this case occurred . . . and [Anderson] was standing right there, she is not---
At this point, Muhammad objected: "[f]acts not in evidence. We didn't say anything
about what [Anderson] told [Officer Moore]." The State responded that its argument was
"retaliatory" (responsive) to Muhammad's argument that "they had everything" because
"[Anderson] did not say that to Officer Moore. She did not tell that to police the night of
the homicide." In response, Muhammad argued: "Which there is no evidence of. You
can't argue facts not in evidence." The trial court overruled Muhammad's objection. The
State continued its rebuttal argument as follows:
[Anderson] did not tell the police that she heard [Keith] say that. Two
years ago, she did not tell the officer that [Keith] said, "I got you" . . . . Two
things, right? That statement . . . and this clothing thing. And I'll get to the
clothing thing in a minute. But when she is coming in here and she is
saying it now and she is going to say well the police department knew that
and they let the real killer go . . . . You cannot expect the police department
or the prosecutor's office or the law to take care of [Keith] when all of the
sudden we are going to hear this two years later.
7
It is the State's rebuttal closing following the trial court's denial of Muhammad's
objection about which Muhammad complains on appeal.
On appeal, Muhammad raises two distinct concerns with the State's rebuttal
argument. First, Muhammad argues that the State's rebuttal closing argument addressed
facts not in evidence, thus depriving him of his constitutional right to confront witnesses.
Second, Muhammad complains that the State's argument was not truthful because it was
contrary to information in the State's possession.
With respect to the first issue, the trial court did not abuse its discretion in
overruling Muhammad's objection that the State's rebuttal closing addressed "facts not in
evidence." The State explained that its argument was "retaliatory" or responsive to
Muhammad's closing where Muhammad clearly argued that Anderson had spoken with
police at the scene and had told them everything the jury heard from her at trial. In fact,
neither the State nor Muhammad elicited any evidence from Anderson about what she
told the police, whether at the scene or in her later statement at police headquarters.
However, because Muhammad's closing suggested this had been the evidence, it was
within the trial court's discretion to permit the State to make a responsive argument.
State v. Bryant, 741 S.W.2d 797, 799 (Mo. App. E.D. 1987) ("[I]t is well recognized that
a prosecutor is permitted to exceed the normally recognized limits of closing argument in
retaliation to defense counsel's argument."); State v. Parker, 886 S.W.2d 908, 922 (Mo.
banc 1994) ("A prosecutor has considerable leeway to make retaliatory arguments at
closing.") On appeal, Muhammad's point relied on supplements his trial objection with
the additional argument that in overruling his objection, the trial court deprived him of
8
his constitutional right to confront a witness. This constitutional claim was not raised at
trial and is not preserved for our review. Moreover, though Muhammad mentions the
constitutional argument in his point relied on, he fails to develop the claim in the
argument portion of his Brief, thus abandoning the claim. State v. Nunley, 341 S.W.3d
611, 623 (Mo. banc 2011).
Muhammad's second concern is that the State's rebuttal closing was factually
inaccurate. Muhammad explains in his Brief that in fact Anderson did tell the police
about Keith's statement during her video-taped statement given hours after the shooting at
police headquarters. Though this additional basis for objecting to the State's rebuttal
closing was raised in Muhammad's motion for new trial, it was not raised as an objection
at trial, and is thus not preserved. State v. Letica, 356 S.W.3d 157, 167 (Mo. banc 2011);
Nelson v. Waxman, 9 S.W.3d 601, 605 (Mo. banc 2000) ("A party is not permitted to
advance on appeal an objection different from that stated at trial."). At best, Muhammad
is entitled to plain error review of this unpreserved claim of error. Id.; Rule 30.20.2
"This Court will exercise its discretion to conduct plain error review only when the
appellant's request for plain error review establishes facially substantial grounds for
believing that the trial court's error was 'evident, obvious, and clear,' and 'that manifest
injustice or miscarriage of justice has resulted.'" State v. Jones, 427 S.W.3d 191, 195
(Mo. banc 2014) (quoting State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2007)).
During argument on Muhammad's motion for new trial, the State defended
Muhammad's claim that its rebuttal closing was contrary to available evidence by arguing
2
All citations to the Rules are to Missouri Court Rules Volume I--State (2015).
9
that the rebuttal closing responded only to Muhammad's suggestion that Anderson had
reported Keith's statement to Officer Moore at the scene of the shooting. No available
evidence indicated that to be the case. The trial court sought clarification and asked the
State "was 'that statement' [ever] given to the police?" The State responded that "[i]t was
given to the police later on that evening in the video-taped statement down at
headquarters. It was not given at the scene."3 [Tr. 643-44] The trial court denied the
request for a new trial.
On appeal, the State once again argues that its rebuttal closing only responded to
Muhammad's suggestion that Anderson told Officer Moore about Keith's statement at the
scene of the shooting, an argument that was not inconsistent with the available evidence.
Though that may well have been the State's intent at the time of trial, a plain reading of
the State's rebuttal closing reveals that the State argued the broader proposition that
Anderson never told authorities about the statement she attributed to Keith and first
reported Keith's statement two years after the shooting during her trial testimony. This
argument was not consistent with the available evidence.
However, that fact alone does not establish a basis for plain error review. In
arguing his motion for new trial, Muhammad conceded that Anderson's video-taped
statement was "evidence that was available" to everyone prior to trial. [Tr. p. 644] We
3
In its Brief on appeal, the State emphasizes that though Muhammad has the burden to prove trial court
error, and despite the apparent importance of Anderson' video-taped statement to his claims of error, Muhammad did
not submit the video-tape to the trial court in connection with his motion for new trial and did not include the video-
tape in his record on appeal. Ordinarily, we are permitted to infer from the failure to include items in the record on
appeal that are essential to a claim of error that the missing information would not be favorable to the appellant's
claim of error. State v. Brumm, 163 S.W.3d 51, 56 (Mo. App. S.D. 2005). Here, however, the State conceded that
Anderson reported Keith's statement to the police during her video-taped statement given hours after the shooting.
10
are left to speculate why Muhammad did not use or refer to the video-taped statement
during his cross-examination of Anderson, or why Muhammad did not simply ask
Anderson on cross-examination whether and when she reported to the police what she
heard Keith exclaim. More to the point, we are left to speculate why Muhammad failed
to object that the State's rebuttal closing was contrary to the available evidence, an
objection that is materially different from an objection that closing argument exceeds the
facts actually in evidence. Muhammad has not established the facial showing of evident,
obvious, or clear error, and we thus decline to review for plain error under Rule 30.20.
Jones, 427 S.W.3d at 195-96. It is highly relevant to our conclusion that although
Muhammad admits that Anderson's video-taped statement was available evidence at the
time of trial, he never referred to the statement during Anderson's testimony, he did not
object to the State's rebuttal closing by referencing the statement, and he never provided
the trial court or this court with Anderson's statement, suggesting a strategic motivation.
State v. Johnson, 284 S.W.3d 561, 573 (Mo. banc 2009) (holding that "[r]arely is plain
error relief granted for a closing argument claim, absent an objection, because it may be a
strategic decision by counsel").
Even were we to presume evident, obvious, and clear error based solely on the fact
that the State's rebuttal closing misstated the evidence available to both the State and the
defendant, reversal would not be warranted unless the error resulted in a manifest
injustice or a miscarriage of justice. State v. Severe, 307 S.W.3d 640, 642 (Mo. banc
2010). "Plain error review of a closing argument . . . will be considered only if there is a
sound, substantial manifestation, a strong, clear showing, that injustice or miscarriage of
11
justice will result if relief is not given." Johnson, 284 S.W.3d at 573 (quotation omitted).
This standard has not been met. Ali testified that he was 100% certain that Muhammad, a
man he had met twice before, and a man who shot Hussein and shot at Ali from five feet
away, was the shooter. Muhammad concedes that this evidence was sufficient to support
his convictions. Several witnesses placed Muhammad at the scene of the shooting,
including Anderson, despite Muhammad's reports to the police that he had an alibi and
was not in the park when Hussein was shot. Muhammad fled the scene after the
shooting, while Keith and Henderson returned to assist Ali and Hussein. Muhammad
denied having been involved in an altercation with Hussein just hours before the shooting
even though police had dash cam video from that scene which captured Muhammad
wearing clothes similar to those later described by Ali. The fact that Keith was wearing a
black hoodie at the time of the shooting, and that Ali had been unable to positively
identify Muhammad from a black and white photo array during his deposition two years
after the shooting, were developed and emphasized by Muhammad's counsel at trial in an
effort to suggest that Keith was the shooter. The jury heard Anderson's testimony about
Keith's statement as he fled the shooting. Yet, the jury was not persuaded to disregard
Ali's testimony that he was "100% sure" that Muhammad was the shooter. Though we do
not condone the State's rebuttal closing,4 we simply are not persuaded that the State's
rebuttal closing had a "decisive effect on the jury's determination" or resulted in a
manifest injustice or a miscarriage of justice warranting reversal based on plain error
4
We are not suggesting that the State's mischaracterization of the available evidence during its rebuttal
closing was purposeful, and Muhammad has never suggested or demonstrated otherwise. Whether or not
purposeful, the State's rebuttal closing was not proper argument.
12
review. Johnson, 284 S.W.3d at 573-74 (holding that plain error during closing requires
the defendant to prove that the argument had a decisive effect, established by reviewing
the whole record and not just an isolated segment of the record).
Point One is denied.
Point Two
In his second point on appeal, Muhammad argues that the trial court committed
plain error when it failed to declare a mistrial or to give a curative instruction during
closing argument after the State made a reference to what Muhammad was going to "say
two years later" to address whether he was present at the scene of the shooting. When the
State made this statement, Muhammad timely objected, and the State immediately agreed
it "shouldn't have said 'say,'" and asked to "rephrase," which the trial court permitted it to
do. The State continued its argument "on unobjectionable lines." [Appellant's Brief, p.
28] Muhammad did not ask for a mistrial or for a curative instruction.
"Our review for plain error of a trial court's failure to sua sponte declare a mistrial
is extremely limited." State v. Durham, 371 S.W.3d 30, 37 (Mo. App. E.D. 2012). Here,
the State's comment about what Muhammad was going to say, two years after the
shooting, about whether he was in the park at the time of the shooting must be viewed in
context. The comment followed the State's summary of the testimony of several
witnesses who placed Muhammad in the park, at which point the State commented on
Muhammad's requested instruction that mere presence at the scene is not enough to
convict by saying "well which is it? Was the defendant there or wasn't he? Now is he
going to say two years later that he was there?" The jury had heard police officer
13
testimony that Muhammad repeatedly denied being in the park at the time of the
shooting. The State's closing argument was not a direct reference to Muhammad's failure
to testify at trial but was instead a comment on the relative weakness of Muhammad's
case. See State v. Richardson, 923 S.W.2d 301, 314 (Mo. banc 1996).
The trial court did not commit plain error in failing to sua sponte declare a mistrial
or provide a curative instruction during the State's closing argument.
Point Two is denied.
Point Three
In his third point on appeal, Muhammad claims the trial court erred when it
permitted the State during its closing argument, and over Muhammad's objection, to
discuss the meaning of "reasonable doubt" by suggesting that the jury use common sense
in weighing the evidence.
During closing, the State argued as follows:
Now, we have all heard about reasonable doubt in jury selection to [sic]. I
just want to remind you that this is a doubt based on reason and common
sense. We ask you to leave your outside prejudices and things that you
have known from outside and things that you might think you know about
the area or life experiences, leave this at the door. But don't check your
common sense. When you go into deliberation . . . .
Muhammad objected that the State's argument misstated the law and improperly reduced
its burden of proof. The State responded that it was simply arguing the reasonable doubt
jury instruction. Muhammad's objection was overruled. The State's argument continued:
So use your common sense. That is what the instruction says to do. Use
your common sense when you are looking at all the evidence. In addition,
you need to be firmly convinced while using your instructions and your
collective memory of the evidence.
14
Muhammad claims on appeal that the State's argument misstated the law and
improperly reduced its burden of proof. "An attorney is free to discuss reasonable doubt
during closing argument, but he cannot attempt to define reasonable doubt." State v.
Williams, 659 S.W.2d 778, 781 (Mo. banc 1983) (internal citations omitted). Here, the
jury was instructed on reasonable doubt as follows:
A reasonable doubt is a doubt based upon reason and common sense after
careful and impartial consideration of all the evidence in the case.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced
of the defendant's guilt. The law does not require proof that overcomes
every possible doubt. If, after your consideration of all the evidence, you
are firmly convinced that the defendant is guilty of the crime charged, you
will find him guilty. If you are not so convinced, you must give him the
benefit of the doubt and find him not guilty.
During its closing argument, the State referenced the ability to use common sense as well
as the jury's obligation to be firmly convinced of Muhammad's guilt. We see nothing in
the State's closing argument other than a proper reference to "reasonable doubt" as the
jury was instructed. This case is distinguishable from Williams where the State argued
that the jury need only determine whether the evidence established guilt "beyond reason
and common sense," and that the jury need only determine whether "common sense" told
the jury that sexual intercourse with a victim was with consent or by force. 659 S.W.2d
at 781. In contrast, in this case, though the State properly referenced the jury's right to
rely on its common sense, as the instruction so directs, the State did not in any manner
suggest that the jury could do so to the exclusion of its obligation to be firmly convinced
of Muhammad's guilt.
15
Point Three is denied.
Point Four
In his fourth point on appeal, Muhammad argues that the trial court erred when it
failed to sua sponte declare a mistrial or give a curative instruction after it allowed a
police detective to testify that charges were not sought against two other suspects in
Hussein's murder.
During its case-in-chief, the State questioned Police Detective Matthew Williams
("Williams") as follows:
Q: Henderson and . . . Keith are both arrested that night?
A: Yes.
Q: And they are transported down to headquarters?
A: Correct.
Q: [T]hey [are] talk[ed] to either by you or other detectives in your
squad?
A: Yes.
Q: [Were] they fully investigated as potential suspects in this case?
A: I would say so.
Q: And were requests for charges ever presented to the prosecutor's
office on either . . . Keith or . . . Henderson?
A: No.
Q: Why not?
16
A: Because we developed other evidence to say they were not involved
[as the shooter].
Muhammad argues that Williams's testimony deprived him of a fair trial because it
violated mandatory criminal jury instructions MAI-CR 300.02 and MAI-CR 302.04.
Both MAI-CR 300.02 and MAI-CR 302.04 provide that "[t]he charge of any offense is
not evidence, and it creates no inference that any offense was committed or that the
defendant is guilty of an offense." Muhammad claims on appeal that Williams's
testimony created the inference that Muhammad committed second-degree murder, first-
degree assault, and armed criminal action because he was charged with those crimes and
other suspects were not. Muhammad did not object to Williams's testimony at trial on
this or any other basis. Muhammad acknowledges in his brief that this point is not
preserved for appellate review and can only be reviewed, if at all, for plain error. We
have already described our standard for plain error review.
Muhammad has not established that Williams's testimony injected evident,
obvious, and clear error into his trial. Muhammad has presented no authority for the
proposition that testimony about whether charges were sought against other suspects who
are neither witnesses nor co-defendants violates jury instructions MAI-CR 300.02 and
MAI-CR 302.04. Indeed, a plain reading of MAI-CR 300.02 and MAI-CR 302.04
indicate both instructions refer only to charges filed against the defendant on trial.
Even were we to presume evident, obvious, and clear error, Williams's testimony
did not result in manifest injustice or a miscarriage of justice. Muhammad relied on the
same testimony during his closing argument to argue that police investigators rushed to
17
justice in concluding that Muhammad murdered Hussein. Muhammad cannot claim a
manifest injustice or a miscarriage of justice occurred from Williams's purportedly
inadmissible testimony when he relied on the same testimony to bolster his defense that
Keith was the shooter. "A trial court does not plainly err when it fails to sua sponte
prohibit the introduction of objectionable evidence when the totality of the surrounding
circumstances reflect a clear indication that trial counsel strategically chose not to object
to the evidence." State v. D.W.N., 290 S.W.3d 814, 825 (Mo. App. W.D. 2009).
In any event, even if, as Muhammad suggests, the jury did infer that Muhammad
committed the crimes because other suspects were not charged, MAI-CR 300.02 and
MAI-CR 302.04 cured that negative inference. Both jury instructions specifically state
that "[t]he charge of any offense is not evidence, and it creates no inference that any
offense was committed or that the defendant is guilty of an offense." Accordingly, "we
assume the jury obeyed the trial court's directions and followed its instructions."
Christian v. State, 455 S.W.3d 523, 528 (Mo. App. W.D. 2015) (internal quotations
omitted). It is hard to fathom how a sua sponte curative instruction regarding Williams'
testimony would have aided the jury since the curative instruction would have recited
essentially the same directive to the jury already found in MAI-CR 300.02 and MAI-CR
302.04.
Point Four is denied.
Conclusion
Muhammad's convictions are affirmed.
18
__________________________________
Cynthia L. Martin, Judge
All concur.
19