STATE OF MISSOURI v. CHERYL ANNA PATRICK

STATE OF MISSOURI, )
)
Respondent, )
)
vs. ) No. SD32549
)
CHERYL ANNA PATRICK, ) FILED: January 5, 2015
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY
Honorable Stanley Moore, Judge
AFFIRMED
Convicted of abusing and murdering a two-year-old, Cheryl Patrick appeals,
raising two preserved evidentiary challenges and a plain error claim. None have
merit. We affirm the convictions.
Background
The victim (A.W.), her father, and Patrick lived together. The father went to
work, leaving A.W. in Patrick’s care, and returned to find his daughter stiff and
unresponsive in her playpen. She died in the hospital two days later from head
injuries due to non-accidental, abusive trauma. A subdural hematoma, retinal
hemorrhaging, and other injuries were consistent with A.W. having been severely
shaken, thrown, or pushed into something while she was with Patrick, who does not
challenge the sufficiency of proof supporting her convictions.
Point I – Admission of Patrick’s Statement
After Patrick was arrested and booked into jail, she was taken to an interview
room. She signed a waiver of Miranda1 rights and gave a statement which the trial
court refused to suppress and admitted at trial over Patrick’s objection.
Patrick claims error, alleging that she unequivocally invoked her right to
counsel prior to the statement and did not reinitiate discussions thereafter.
Under the Fifth Amendment, Patrick had a right to have counsel present
during custodial interrogation. State v. Lanos, 14 S.W.3d 90, 94 (Mo.App. 1999).
To invoke this right, she had to make an unambiguous, specific, and unequivocal
request for counsel. State v. Norman, 431 S.W.3d 563, 569 (Mo.App. 2014). If
Patrick made such a request, questioning had to stop until counsel was made
available or Patrick herself reinitiated discussions with the officers. Id.Thus, Patrick’s Point I requires her to show that she (1) unambiguously,
unequivocally, and specifically requested counsel; and (2) did not knowingly,
voluntarily, and intelligently waive her previously invoked right by initiating further
communication. Id.Patrick argues step two, but treats step one as a given. For example, her brief
asserts that she “clearly made an unambiguous, unequivocal and specific request for
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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counsel,” repeatedly refers to “her previously invoked right” to counsel, and even
states that “the trial court below accepted that Ms. Patrick’s initial request was
unequivocal ….”
These ignore the trial court’s express step-one finding against Patrick – that
her “assertion that she wanted an attorney was equivocal.” This effectively
unchallenged finding ends our inquiry. If Patrick “did not make an unambiguous
and specific request for counsel in dealing with a custodial interrogation, [s]he did
not invoke [her] right to counsel, and no further analysis is required.” Lanos, 14
S.W.3d at 94. Point denied.
Point II – Admission of Blood and DNA Evidence
Patrick charges that blood and DNA evidence recovered from the playpen was
neither logically nor legally relevant.
Logical Relevance
“The greatest failing of the evidence in this regard,” Patrick argues, “is that no
one could testify as to when A.W.’s blood was left on the play pen pad.” This
assertion confuses logical relevance with evidentiary weight.2 It would be a rare
murder trial where the victim’s DNA-matched blood, found near where she lay
dying, bore no logical connection to the case. The evidence was logically relevant.
2 “Logical relevance refers to the tendency to make the existence of a material fact
more or less probable.” Johnson v. State, 406 S.W.3d 892, 902 (Mo. banc 2013)
(internal quotation marks omitted). Weight of the evidence refers to the probative
and persuasive values of evidence. Ivie v. Smith, 439 S.W.3d 189, 206 (Mo. banc
2014).
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Legal Relevance
Patrick next claims this evidence was unduly prejudicial and thus legally
irrelevant. See Johnson, 406 S.W.3d at 902.
Specifically, her point charges that this evidence was “extremely prejudicial”
in that it was used “to corroborate that Ms. Patrick physically abused A.W. causing
her death.” Her supporting argument is similar: that the blood and DNA evidence
“permitted the jurors to find evidence of Ms. Patrick’s guilt of the offenses for which
she was on trial.”
These sound more like reasons to admit evidence than to exclude it. Evidence
is not “prejudicial” merely because it hurts one’s case. Point II fails.
Point III – No Plain Error Review
Finally, Patrick takes issue with the state’s closing argument that she “beat
[A.W.] to death,” noting that she was charged with shaking and pushing A.W., not
beating her. She admits this claim was not preserved and can be reviewed only for
plain error.
Plain error relief as to closing argument is rare and, for good reason, usually
denied without explanation. State v. Lovell, 414 S.W.3d 577, 579 & n.4 (Mo.App.
2013). We do not see, nor does Patrick offer, any good reason to depart from this
practice. We deny Point III and affirm the convictions.
DANIEL E. SCOTT, J. – OPINION AUTHOR
JEFFREY W. BATES, J. – CONCURS
WILLIAM W. FRANCIS, JR., P.J./C.J. – CONCURS
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