State of Missouri, Respondent v. Earl M. Forrest

Missouri Supreme Court Case Number: SC86518

In December 2002, Earl Forrest, who had been drinking, went to Harriet Smith's home and demanded that she fulfill her part of a bargain to buy a lawn mower and a mobile home for Forrest in exchange for Forrest introducing her to a source for methamphetamine.

During the ensuing melee, Forrest shot a guest of Smith's, Michael Wells, in the face, killing him. Forrest also shot Smith six times, killing her. He took $25,000 worth of methamphetamine from Smith's home and returned to his own home, where he had a shootout with law enforcement officers. He shot and killed Deputy Joann Barnes. He also shot his girlfriend, Angela Gamblin, and Sheriff Bob Wofford, both of whom survived.

He was charged with three counts of first-degree murder, and the jury found him guilty on all three counts. The jury subsequently recommended a death sentence for each of the three murders.

Opinion

Supreme Court of Missouri

Case Style: State of Missouri, Respondent v. Earl M. Forrest, Appellant.

Case Number: SC86518

Handdown Date: 10/01/2006

Appeal From: Circuit Court of Platte County, Hon. Owens Lee Hull, Jr.

Counsel for Appellant: Janet M. Thompson

Counsel for Respondent: Robert J. Ahsens

Opinion Summary:

In December 2002, Earl Forrest, who had been drinking, went to Harriet Smith's home and demanded that she fulfill her part of a bargain to buy a lawn mower and a mobile home for Forrest in exchange for Forrest introducing her to a source for methamphetamine. During the ensuing melee, Forrest shot a guest of Smith's, Michael Wells, in the face, killing him. Forrest also shot Smith six times, killing her. He took $25,000 worth of methamphetamine from Smith's home and returned to his own home, where he had a shootout with law enforcement officers. He shot and killed Deputy Joann Barnes. He also shot his girlfriend, Angela Gamblin, and Sheriff Bob Wofford, both of whom survived. He was charged with three counts of first-degree murder, and the jury found him guilty on all three counts. The jury subsequently recommended a death sentence for each of the three murders. Forrest appeals.

AFFIRMED.

Court en banc holds:

(1) The court properly admitted the testimony of two police officers. Although their testimony about the shootout at Forrest's home was hearsay, it was not so prejudicial as to require reversal. Forrest offers nothing other than speculation in his claim of prejudice, and there is no evidence to support his contention that the statements affected the trial's outcome. He also does not prove, even if the statements constituted improper bolstering, how the statements would have prejudiced his case in light of the overwhelming evidence of his guilt.

(2) The court properly admitted evidence of Forrest's alleged possession and distribution of illegal drugs in California. Although Forrest was not charged with any crimes for this alleged conduct, the state was permitted to introduce it during the penalty phase trial as evidence of Forrest's character. In addition, the court properly admitted victim impact testimony during the penalty phase trial. It did not constitute impermissible hearsay because it was not offered for the truth of the matter, and there is no evidence that these statements prejudiced the jury or rendered Forrest's trial fundamentally unfair. The trial court properly instructed the jury how to consider the victim impact testimony.

(3) The trial court sustaining the state's objection to certain arguments Forrest made during the penalty phase did not deprive the jury of evidence in mitigation and did not prejudice Forrest's case. Certain statements the prosecutor made during closing arguments were within the scope of a party's latitude in drawing inferences from the record, were appropriate inferences based on the record and did not constitute prejudicial misconduct.

(4) The information charging Forrest with first-degree murder was not defective, and the court properly instructed the jury using instructions patterned after model approved instructions that in no way shift the burdens of proof to the defense or preclude the jury from giving proper effect to the burden of proof.

(5) The trial court did not err for not admonishing the prosecutor and for not declaring a mistrial after the prosecutor objected to recognizing two of Forrest's witnesses as experts. The court certified both as experts for their testimony and properly instructed the jurors that objections are not evidence.

(6) The evidence was sufficient to support the jury's statutory aggravator finding that Smith's murder was committed during Wells' murder without also finding that Wells' murder was committed during Smith's murder. Wells was murdered first, and it was reasonable for the jury to find that Smith's murder was committed during that unlawful homicide. Forrest offers no authority to support his proposition that multiple murders must be committed simultaneously as opposed to during the same criminal transaction to establish this statutory aggravator.

(7) A full review of the transcript shows that the court did not abuse its discretion in striking from the jury pool two potential jurors who objectively appeared to be unable to consider the full range of punishment, including the death penalty.

(8) The prosecutor did not define or argue the issue of Forrest's deliberation improperly. The record shows that the prosecutor did not make the determination of deliberation in place of the jury but rather argued that the evidence of multiple victims, multiple wounds and the timing between gunshots warranted a proper inference that Forrest deliberated.

(9) This Court repeatedly has rejected claims that section 565.021, RSMo, is unconstitutionally vague because it does not distinguish adequately first-degree murder from second-degree murder.

(10) In its independent proportionality review of Forrest's death sentences, this Court concludes there is no evidence to suggest that the jury imposed the punishment as a product of passion, prejudice or any other arbitrary factor. The evidence supports, beyond a reasonable doubt, the jury's finding of three statutory aggravating factors as a basis for considering the death sentence, which is neither excessive nor disproportionate to the penalty imposed in similar cases.

Opinion Author: Ronnie L. White, Judge

Opinion Vote: AFFIRMED. All concur.

Opinion:

I.

A jury convicted Appellant, Earl M. Forrest, of three counts of first-degree murder and recommended three death sentences. Judgment was entered consistent with the jury's recommendation. Appellant seeks reversal raising thirteen points of error. This Court has jurisdiction pursuant to Mo. Const. art. V, sec. 3. Affirmed.

II.

The facts, which this Court reviews in the light most favorable to the verdict, are:

On December 9, 2002, Appellant, who had been drinking, and his girlfriend, Angelia Gamblin, drove to Harriett Smith's home. Appellant and Smith apparently had a falling out over a dishonored agreement with Smith to purchase a lawn mower and a mobile home for Appellant in exchange for Appellant introducing Smith to a source for methamphetamine. Appellant demanded that Smith fulfill her part of the bargain. During the ensuing melee, Appellant shot Michael Wells, a visitor at the Smith residence, in the face killing him. He also killed Smith, shooting her a total of six times.

Appellant removed a lockbox from Smith's home containing approximately $25,000 worth of methamphetamine and returned to his home with Gamblin, where a shootout with the police ensued. Appellant shot Sheriff Bob Wofford in the abdomen wounding him. He killed Deputy Sharon Joann Barnes, shooting her once in her chest and a second time in the back of her head. Appellant sustained a bullet wound to his face. Gamblin was shot twice, once in her shoulder and once in her back.

Appellant finally surrendered and was charged with three counts of first-degree murder for the deaths of Smith, Wells and Barnes. The jury found Appellant guilty on all three counts.

During the penalty phase, the jury found the presence of multiple statutory aggravators to support its unanimous recommendation for a death sentence for each of the three murders. With regard to the murder of Harriett Smith, the jury found that: (1) her murder was committed while Appellant was engaged in the commission of another unlawful homicide, that of Michael Wells; and (2) Appellant murdered Smith for the purpose of receiving something of monetary value. The statutory aggravator found in relation to Michael Wells's murder was that he too was murdered for pecuniary gain. The murder of Joann Barnes carried the statutory aggravator of being committed against a peace officer while engaged in the performance of her official duty.

III.

Appellant raises three points claiming evidentiary errors; points I, II, and XIII. Appellant contends that the trial court erred when admitting the testimony of two police officers that Appellant believed was hearsay and improper bolstering of other testimony during the guilt phase trial. He also alleges error with the trial court's admission of prior unadjudicated criminal conduct and victim impact testimony during the penalty phase trial.

"A trial court has broad discretion to admit or exclude evidence at trial." "This standard of review compels the reversal of a trial court's ruling on the admission of evidence only if the court has clearly abused its discretion."

"[T]hat discretion is abused when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration." Additionally, on direct appeal, this Court reviews the trial court "for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial.

The disputed testimony of the two officers involved their rendition of the shootout that occurred at Appellant's residence. A review of the transcripts reveals that the officers' testimony was repetitious when they were asked to describe some of the events that transpired when additional officers arrived on the scene and when Ms. Gamblin was shot. The statements involved whether other officers had stated if they heard gun shots coming from the house and whether Gamblin had stated that the Appellant was the first to shoot when the police arrived. Appellant objected to these statements at trial solely on the basis of being hearsay. Consequently, the Court applies abuse of discretion review to the hearsay argument but reviews the bolstering claim for plain error.

"A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value." The testimony in question was clearly hearsay. However, the admission of the testimony, while being error, was not so prejudicial as to require reversal. To the "extent a declarant is available for live testimony, under oath, the dangers of hearsay are largely non-existent."

The declarants in this instance did provide direct testimony and were subject to cross-examination. Moreover, Appellant offers nothing other than speculation in his attempt to claim prejudice, and there is no evidence to support the contention that the statements affected the outcome of trial.

"Improper bolstering occurs when an out-of-court statement of a witness is offered solely to duplicate or corroborate trial testimony." "However, if the out-of-court statement is offered for relevant purposes other than corroboration and duplication . . . there is no improper bolstering." Even assuming, arguendo, that the statements in question constituted improper bolstering, and that they did not have independent value or were merely cumulative, Appellant fails to demonstrate how the admission of these two statements would have prejudiced his case. Not only would simple prejudice be required under plain error review for this claim, but that prejudice must rise to the level of manifest injustice or a miscarriage of justice to rise to the level of reversible error.

Because the evidence of Appellant's guilt was overwhelming, no manifest injustice or miscarriage of justice has been shown that would entitle Appellant to relief under the plain error rule.

Appellant also claims error with the trial court's admission of evidence concerning his alleged drug possession and distribution of illegal drugs in California -- alleged crimes that were never adjudicated. "[T]his Court has repeatedly held that both the state and the defendant may introduce any evidence pertaining to the defendant's character in order to help the jury assess punishment in a penalty phase setting, even where that evidence constitutes unadjudicated bad acts." Appellant's claim of error is devoid of merit.

In his third claim of evidentiary error, Appellant claims multiple errors in association with the admission of the victim impact testimony from Joann Barnes's family members. Appellant contends that the court admitted hearsay; evidence ascribing blame to Appellant for the unrelated deteriorating health of two brothers; inappropriate evidence of the family's desire that Appellant receive the death penalty; and finally that the jury lacked instruction or guidance in how to consider and weigh this evidence or what standard of proof to apply to this evidence.

Victim impact evidence is admissible under the United States and Missouri Constitutions. "[J]ust as the defendant is entitled to present evidence in mitigation designed to show that the defendant is a uniquely individual human being, the State is also allowed to present evidence showing each victim's uniqueness as an individual human being." Victim impact evidence violates the constitution only if it "is so unduly prejudicial that it renders the trial fundamentally unfair."

The alleged hearsay statements concerned the observations of one witness as to how Barnes's nieces and nephews reacted to her death. The transcripts reveal that the witness stated that the nieces and nephews talked about their Aunt Joann's death and that they couldn't believe what happened. There is no testimony as to what exactly what the nieces and nephews stated. This testimony was not offered for the truth of the matter asserted and does not constitute improper hearsay.

With regard to the testimony mentioning Barnes's brothers, one brother died subsequent to Ms. Barnes's murder and one experienced multiple strokes, there was no testimony directly linking, or even suggesting, that their deteriorating health was in any way related to Ms. Barnes's murder. "It is not necessary that every piece of victim impact evidence relate to the direct impact of the victim's death on the witness."

The witness in question was testifying as to the many hardships the family endured following Barnes's murder. There is no evidence that supports the proposition that the jury was incapable of understanding the court's instructions during the penalty phase when it returned a recommendation for the death sentence.

The jury found, beyond a reasonable doubt, the statutory aggravators necessary to support its recommendation. There is absolutely no evidence that these statements prejudiced the jury and no evidence that the admission of this evidence renders Appellant's trial fundamentally unfair.

The statement calling for the imposition of the death penalty was made to the judge, after the penalty phase, during the sentencing hearing. There is no possible way that this statement could have influenced the jury's recommendation. Even if the statement was improper, "judges are presumed not to consider improper evidence during sentencing," and Appellant has provided no evidence to surmount that presumption.

Appellant's last contention that the jury was not properly instructed on how to consider victim impact testimony or what standard of proof to apply to that evidence is also lacking in merit. Similar claims have been repeatedly rejected by this Court, and having ruled on these issues previously, and having examined this claim thoroughly and finding no error of law, an extended opinion on these issues would have no precedential value.

IV.

In Appellant's points III and IX he raises several claims of trial court error in association with the guilt and penalty phase closing arguments. First, he asserts that sustaining the State's objection to his penalty phase argument that Appellant's family and friends would be "very, very, very distraught" if the jury recommended a death sentence deprived the jury of relevant evidence that would have rebutted or mitigated the victim impact evidence put on by the State. Appellant also claims that multiple statements made by the prosecution during the guilt and penalty phase closing arguments constituted prosecutorial misconduct and prejudiced his case.

"A trial court maintains broad discretion in the control of closing arguments." "The rule is that unsworn remarks of counsel in opening statements, during the course of trials or in arguments are not evidence of the facts asserted." "Although courts are to be careful to refrain from unduly restricting closing arguments, they have the power to confine the arguments to issues raised by the pleadings and the evidence." "A party may argue inferences justified by the evidence, but not inferences unsupported by the facts." "Review of the trial court's rulings during closing argument is for abuse of discretion." "An argument does not require reversal unless it amounts to prejudicial error."

"Defense counsel should have wide latitude in drawing inferences from the record." "If the court prevents defense counsel from making a point essential to the defense, the court has abused its discretion," and "[t]he court should exclude only those statements that misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or otherwise tend to confuse the jury."

Appellant's claim that sustaining the State's objection to his penalty phase argument somehow deprived the jury of evidence in mitigation is erroneous. The argument was not evidence. The argument was an attempt by Appellant to draw an inference from testimonial evidence that was properly admitted and before the jury to consider. While the trial court sustained the objection, the State did not request, and the court did not sua sponte deliver, a limiting instruction to the jury telling them that they could not consider Appellant's argument. Even assuming, arguendo, that the trial court abused its discretion when sustaining the objection, the jury, having the argument to consider and having not been deprived of the actual evidence from which the inference was drawn, was not prejudiced towards Appellant's case.

Appellant also contends that numerous statements made by the prosecutor during the guilt and penalty phase closing arguments constituted prosecutorial misconduct and prejudiced his case. In situations involving prosecutorial misconduct, the test is the fairness of the trial, not the culpability of the prosecutor. "Where prosecutorial misconduct is alleged, the erroneous action must rise to the level of 'substantial prejudice' in order to justify reversal." "The test for 'substantial prejudice' is whether the misconduct substantially swayed the judgment."

The prosecutor's statements that Appellant claims constitute prejudicial misconduct are:

Guilt Phase: