                 In the Missouri Court of Appeals
                         Eastern District
                                                  DIVISION II

STATE OF MISSOURI,                                         )    No. ED103131
                                                           )
         Respondent,                                       )
                                                           )    Appeal from the Circuit Court
                                                           )    of the City of St. Louis
         vs.                                               )    Cause No. 1222-CR06450-01
                                                           )
LELAND HUGHES,                                             )    Honorable Julian L. Bush
                                                           )
         Appellant.                                        )    Filed: August 30, 2016

                                                  I.          Introduction

         Leland Hughes, (“Defendant”), appeals his conviction of first-degree burglary, first-

degree robbery, two counts of kidnapping, five counts of armed criminal action, and one count of

forcible rape for which he received a sentence of 43 years.1 Defendant claims the trial court erred

in denying his motion to strike his co-defendant’s testimony, thereby denying Defendant his

Sixth Amendment right to confrontation, and his rights under the Fourteenth Amendment to due

process and right to a fair trial. Defendant additionally claims the trial court erred in denying his

motion for judgment of acquittal on Counts XIX and XX (the forcible rape and accompanying


1
 The trial court sentenced Defendant to serve 15 years for Count I (burglary first degree), 16 years for Counts II and
IV (armed criminal action), 15 years for Counts III, VII, and VIII (kidnapping), 16 years for Count IX (robbery first
degree), 17 years for Count X (armed criminal action), 21 years for Count XIX (forcible rape), and 22 years for the
accompanying armed criminal action, Count XX. The court ordered Defendant’s felony sentences to run
concurrently for 22 years, with the sentence of rape to run consecutively for 21 years, giving Defendant a total
sentence of 43 years.

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armed criminal action), arguing there was insufficient evidence to find him guilty. We affirm the

trial court’s decision.

                                       II.    Factual Background

        Defendant was convicted after a two-day bench trial on July 22 and 23, 2014. Evidence

at trial demonstrated on November 21, 2012, Defendant and co-defendant, Shawn Borders, broke

into the home of Bryan Richardson and robbed him, forcing him, his guest Alfred Barton, and

Richardson’s fiancée, T.A., to the floor, while the two defendants demanded money. Defendant

took Richardson’s expired debit card and left Borders to stand guard over the three victims while

he attempted to withdraw money from a nearby ATM. When Defendant returned he took T.A.,

who was in her second trimester of pregnancy, into the bedroom and raped her at gunpoint. The

defendants then led Richardson and Barton into the bedroom and Richardson told them he had

$800.00 in his jacket pocket. Subsequently, the defendants took turns removing valuables from

the apartment and standing guard over the prisoners. Before they left, the defendants covered the

victims’ heads with dresser drawers and ordered them to count down from one thousand.

        At trial, Kenneth Allen, Borders’s grandfather and Defendant’s step-grandfather, testified

the defendants stored the goods at his home and identified Defendant. Each of the victims

testified to the series of events, including the rape, and items that were stolen. Borders pleaded

guilty to the charges and testified as a hostile witness, admitting he was with Defendant on

November 21, and together they robbed the apartment. Borders initially refused to answer

questions implicating Defendant in the robbery, when posed by both the prosecutor and defense

counsel. However, after instruction by the judge to answer defense counsel’s questions and a

break, Borders testified Defendant was with him during the home invasion on cross-examination.




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Borders also testified they were together on November 23, 2012, when they were arrested after

fleeing the police. Borders stated Defendant was driving and crashed the car prior to their arrest.

        The State also called several police officers to the stand, including the first responders

who testified about the evidence seized from the car. These items included two t-shirts with the

names of the victims and a gun with laser sights that T.A. identified as the gun used during the

robbery. The State also called forensic experts who testified Defendant’s DNA was found on a

glove left inside the apartment by the assailants. At the close of evidence the court found

Defendant guilty of burglary, robbery, two counts of kidnapping, five counts of armed criminal

action, and one count of forcible rape, and sentenced him to serve a total sentence of 43 years.

                                        III.    Standard of Review

        Trial courts have broad discretion to admit or exclude evidence and this Court will only

reverse upon a clear showing of abuse of discretion. State v. Moffett, 474 S.W.3d 248, 250 (Mo.

App. S.D. 2015). “An abuse of discretion exists when the trial court ruling ‘clearly offends the

logic of the circumstance or appears arbitrary and unreasonable.’” State v. Patton, 419 S.W.3d

125, 133 (Mo. App. E.D. 2013) (internal quotations omitted). An appellate court will only reverse

a conviction due to evidentiary error if it “was so prejudicial that it deprived the defendant of a fair

trial.” State v. Evans, 455 S.W.3d 452, 455 (Mo. App. E.D. 2014). Errors are prejudicial when “the

errors are more likely than not to have affected the outcome.” Patton, 419 S.W.3d at 133. While

the admissibility of evidence is reversed only when a court finds a clear abuse of discretion,

“whether a defendant’s rights were violated is a question of law reviewed de novo.” State v. Aaron,

218 S.W.3d 501, 505 (Mo. App. W.D. 2007).




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                                               IV.       Discussion

a. The trial court did not abuse its discretion in denying Defendant’s motion to exclude

      testimony of co-defendant, Shawn Borders.

         “In all criminal prosecutions the accused shall enjoy the right…to be confronted with the

witnesses against him.” U.S. Const. Amend. VI. A defendant’s Sixth Amendment right to

confrontation is “one of the safeguards essential to a fair trial.” United States v. Cardillo, 316

F.2d 606, 613 n. 4 (2d Cir. 1963). “Cross-examination of a witness is a matter of right…and its

allowance is especially important in the case of a witness who is himself an admitted violator of

the law.” Id. (internal quotations omitted).

         In 1982, the Missouri Supreme Court adopted the Second Circuit’s holding in Cardillo

regarding the confrontation clause and witnesses who invoke the Fifth Amendment privilege

against self-incrimination. See State v. Blair, 638 S.W.2d 739, 754 (Mo. banc 1982). In Cardillo,

the Second Circuit held a “conviction will be reversed if the cross-examination of government

witnesses has been unreasonably limited.” Cardillo, 316 F.2d at 611. “However, reversal need

not result from every limitation of permissible cross-examination and a witness’ testimony may,

in some cases, be used against a defendant, even though the witness invokes his privilege against

self-incrimination during cross-examination.” Id. A witness’s testimony should be stricken in

whole or in part “if the witness by invoking the privilege precludes inquiry into the details of his

direct testimony[.]” Id. This is because a defendant who is deprived of the right to test the

truthfulness of an adverse witness’s direct testimony faces “a substantial danger of prejudice[.]”

Id.

         In the present case, co-defendant, Borders, initially refused to implicate Defendant when

asked questions about the home invasion by the prosecution. Borders did not invoke the Fifth



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Amendment at any point and freely answered questions about his own involvement. He would

not testify as to whether he was telling the truth when he made a statement to the police that

implicated Defendant.2 Under cross-examination, Borders again refused to answer any questions

implicating Defendant, stating clearly it was not because he was being asked questions by

Defendant’s attorney. At sidebar, Defense counsel made its first request to strike Borders’s

testimony from direct examination, alleging Defendant’s right to confrontation had been

violated. The court stated it would entertain that request if defense counsel asked the court to

direct Borders to answer questions on cross, and Borders continued to refuse. The court then

ordered Borders to answer defense counsel’s questions and Borders asked, “If I refuse to answer

the question, is that an answer?” to which the court responded:

          “That’s a response. That’s not an answer…You might refuse to answer the
         question. You might say I don’t remember, or you can still refuse even though I’m
         telling you, you must answer. You should answer yes, no, or I don’t remember. You
         should answer the questions truthfully. If you refuse to give an answer to the
         question, if that’s your response as it has been before, then you will be in contempt
         of court, and I might impose a fine or I might place you in prison for contempt of
         court. That will be up to me. He’s going to ask you a question. If you know the
         answer, I direct you to answer the question. If you don’t know the answer, you can
         say you don’t know the answer. You should make one of those responses.”

         After this instruction, Borders answered many of the defense counsel’s questions with “I

don’t know.” He told defense counsel he was with Defendant on the night of their arrest November

23, 2012, and Defendant was driving the car they were in when they were arrested. However, he

continued to refuse to answer whether Defendant was with him on the night of the home invasion,

November 21, 2012. After extensive questioning, with no change in Borders’s testimony, the




2
  Toward the end of his direct examination, when asked what he meant when he said he was concerned with his
safety, Borders replied “I’m in jail. I’m in jail. The reputation. I don’t care about what a person think about me or
none of that. Them type of stuff in jail don’t fly. I don’t expect you to understand. I don’t expect you to understand
to know where I’m coming from. I don’t mean no disrespect whatsoever.”

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defense moved again to strike the entirety of his testimony under Defendant’s Sixth Amendment

right to confrontation.

       At side bar, the attorneys explained their positions to the court. The prosecution felt the

witness was answering questions, and defense counsel asserted he was parroting the responses the

court informed him he could say “like refuse to answer and I don’t know.” Defense counsel

admitted, “We’re not getting any useful testimony from him whatsoever,” and felt there was no

way he could effectively cross-examine Borders and admitting any of his testimony as evidence

against his client would violate the confrontation clause as well as Defendant’s rights to due

process and a fair trial. The court pointed out, “He’s answered more of your questions than [the

prosecutor’s]. I’m not sure what [the State] got of value.”

       After lunch, and a conversation with his attorney, Borders was recalled to the stand and did

answer defense counsel’s questions, stating Defendant was with him on November 21st and went

inside the home. Borders stated under oath he lied when he wrote an affidavit stating, “the things

I said against [Defendant] wasn’t true.” On re-direct he was again ambiguous about whether he

lied in his statement to the police stating, “[T]here’s some truth to it.”

       The purpose behind excluding testimony under the Confrontation Clause is to safeguard a

Defendant’s right to a fair trial. Cross-examination is of premier importance in our jurisprudence

and “It is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5

Wigmore, Evidence § 1367 (3d ed. 1940). Cross-examination is an essential right and one of the

safeguards to a fair trial. Cardillo, 316 F.2d at 613 n. 4. It is unfair for government witnesses to

freely answer questions on direct then refuse to answer questions about the same subject matter on

cross-examination because this leads to the substantial risk of prejudice to the defendant. Id. at




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611. “Since the right to cross-examine is guaranteed by the Constitution, a federal conviction will

be reversed if the cross-examination of government witnesses has been unreasonably limited.” Id.

           We find the court did not err in denying defense counsel’s request to exclude the witness’s

testimony under the Confrontation Clause because Defendant’s cross-examination of Borders was

not unreasonably limited. The record shows Borders initially refused to implicate Defendant under

both direct and cross-examination and, when he finally implicated Defendant, it was on cross-

examination. The Confrontation Clause guarantees only the meaningful opportunity for effective

cross-examination and not “cross-examination that is effective in whatever way, and to whatever

extent, the defense might wish.” United States v. Owens, 484 U.S. 554, 559 (1988). It was not an

abuse of discretion for the court to allow Borders’s testimony after defense counsel was able to

effectively cross-examine him. Additionally, the trial court did not err by giving Defendant every

reasonable opportunity to elicit the truth from the State’s witness. Point denied.

b. Even if allowing Borders’s testimony into evidence did violate Defendant’s Constitutional
   Rights, the error was harmless beyond a reasonable doubt.

           In order for a federal constitutional error to be held harmless, “the court must be able to

declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S.

18, 24 (1967). In State v. Degraffenreid, the Missouri Supreme Court held “error in the admission

of evidence should not be declared harmless unless it is so without question.” 477 S.W.2d 57, 64

(Mo. banc 1972) (overruled in part on other grounds in State v. Harris, 711 S.W.2d 881, 884 (Mo.

banc 1986)). “The concurring opinion [in Degraffenreid]…made it clear that in Missouri the court

must examine each case to determine if the error was harmless and hence not prejudicial.” State v.

Brown, 549 S.W.2d 336, 345 (Mo. banc 1977).3




3
    The concurring opinion in Degraffenreid was written by Justice Finch and with five Judges concurring. Id.

                                                           7
       An examination of the evidence in this case reveals the inclusion of Borders testimony

against Defendant was harmless error. The evidence against Defendant included the testimony of

the three victims, who identified Defendant at trial, in photo line-ups, and one live line-up. There

was the testimony of the police officers and forensic experts who responded to the scene of the

defendants’ car accident and bagged evidence from their car including a gun with laser sights and

two t-shirts with the first names of Bryan Richardson and his fiancée, T.A. T.A. identified the gun

from a photograph as the one used during the robbery, as well as the shirts as items that were in

their apartment prior to the home invasion and missing afterwards. And Defendant’s step-

grandfather identified him and testified both Defendant and his grandson, Borders, stored goods

at his home matching the description of goods taken from Bryan Richardson’s apartment.

Defendant’s DNA was also found on a glove left inside the apartment by the assailants.

        The record shows Borders was not a strong witness for the government. Defendant wants

the testimony excluded because Borders initially refused to answer questions on cross-

examination. However, Borders initially refused to implicate Defendant on both direct and cross-

examination. When directed by judge to answer defense counsel’s questions, he did admit to being

with Defendant and robbing Richardson’s apartment with “someone” and that other person took

T.A. into the bedroom. After a break, Borders admitted under cross-examination that Defendant

was with him on November 21, 2012, and Defendant went inside the home of Bryan Richardson

with him. Based on the overwhelming evidence implicating Defendant, in addition to the reluctant

testimony of Borders, we find that even if the court’s inclusion of Borders’s testimony violated

Defendant’s Sixth Amendment and Fourteenth Amendment rights, that it was harmless beyond a

reasonable doubt.




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c. The court did not err in overruling Defendant’s motions for judgment of acquittal as to
   Count XIX and Count XX, the felony rape and accompanying armed criminal action,
   based on the victims’ identification.

         Our review of a trial court’s denial of a motion for judgment of acquittal is limited to a

determination of whether there is sufficient evidence from which a reasonable juror could have

found the defendant guilty beyond a reasonable doubt. State v. Bowman, 337 S.W.3d 679, 688

(Mo. banc 2011).4 An appellate court gives great deference to the trier of fact and does not act

“as a ‘super juror’ with veto powers.” State v. Wolfe, 13 S.W.3d 248, 252 (Mo. banc 2000)

(abrogated in part on other grounds by Mitchell v. Kardesch, 313 S.W.3d 667, 678-679 (Mo.

banc 2010)). When reviewing the sufficiency of evidence supporting a criminal conviction, this

Court accepts as true all favorable evidence to the state and all favorable inferences that can be

drawn from the evidence, and disregards all contrary evidence and inference. Bowman, 337

S.W.3d at 688.

         Identification testimony will only be excluded when the procedure is so suggestive that

there is a very substantial likelihood of misidentification. State v. Hornbuckle, 769 S.W.2d 89, 93

(Mo. banc 1989). Reliability is the “‘linchpin’ in determining the admissibility of identification

testimony.” Cothran v. State, 436 S.W.3d 247, 251 (Mo. App. W.D. 2014) (quoting Hornbuckle,

769 S.W.2d at 93). Reliability is assessed by a trial court under the totality of the circumstances.

Id. The factors to be considered include:

         (1) the opportunity of the witness to view the subject at the time of the crime; (2)
         the witness’ degree of attention; (3) the accuracy of any prior description of the
         criminal given by the witness; (4) the level of certainty demonstrated by the witness
         in making the identification; and (5) the length of time between the crime and the
         identification procedure. State v. Conrick, 375 S.W.3d 894, 897 (Mo. App. W.D.
         2012).



4
 In a bench trial, the court’s findings of fact shall have the force and effect of the verdict of a jury. Missouri
Supreme Court Rule 27.01(b) (2016).

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       Defendant argues on appeal that his convictions for forcible rape and armed criminal action

should be overturned because there was insufficient evidence for a reasonable trier of fact to find

beyond a reasonable doubt that Defendant, and not Borders, committed the acts.

       During the trial, T.A. testified she recognized Hughes “by the eyes” and when she heard

his voice. She said she had seen Hughes twice before; once when he came to the door of their

apartment looking for her husband, and a second time shortly before the home invasion when T.A.

and Richardson were in their car and stopped to talk to Defendant in another car.

       T.A. testified to specific acts each of the defendants did while they were in the apartment.

T.A. stated Defendant had a white scarf or cloth around the lower part of his face and wore a gray

hoodie. T.A. said she and the other two victims were left alone with Borders while Hughes left

with her husband’s bank card for five or ten minutes. She said that Borders forced her up and

walked her around the apartment asking where money was and then went into the bathroom and

squeezed and choked her puppy. She stated Defendant, Hughes, was the one who took her into the

bedroom and raped her at gunpoint. When asked how she knew it was Defendant, and not someone

else, she stated she saw his upper face and heard him talking, when she looked behind her as he

held the gun to her back and forced her into the room. She said he told her he was going to blow

her brains out and she pleaded with him to stop because she was pregnant. T.A. identified

Defendant and Borders from photo lineups, and also identified Defendant in a live lineup as the

person who raped her.

       The evidence shows T.A. had the opportunity to observe and was able to distinguish the

two defendants from each other. At no point during her testimony and identification of the

defendants did she seem confused about who they were or what they had each done in the




                                                10
apartment. A reasonable trier of fact could find, based on all the evidence, T.A. identified the man

who raped her as Defendant and not Borders, beyond a reasonable doubt.

       From this evidence and the reasonable inferences therefrom, a reasonable fact-finder

could have found Defendant forcibly raped T.A. at gunpoint. Therefore, there was sufficient

evidence to support his conviction for forcible rape under Count XIX and the accompanying

armed criminal action under Count XX. Accordingly, the trial court did not err in denying

Defendant’s motions for judgment of acquittal. Point denied.

                                           V.        Conclusion

       For the foregoing reasons we affirm the trial court’s decision.



                                              _______________________________
                                              Colleen Dolan, Judge

Sherri B. Sullivan, P.J., concurs.
Roy L. Richter, J., concurs.




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