State v. DelancyState v. Delancy
OPINION
Christopher Delaney appeals the judgment entered upon a jury verdict convicting him of robbery in the second degree. We affirm.
I. BACKGROUND
On September 7, 2005, Delaney met Ab-doulaye Diallo (“Victim”), a shoe salesman who buys shoes in bulk then resells them from his van, at a gas station. Victim gave Delaney his business card, which included Victim’s cell phone number. Two days later, Delaney called Victim and told him he was interested in buying some shoes. Delaney asked Victim if they could meet to discuss a purchase. Delaney called Victim a second time to say that he had a friend who also wanted to buy shoes. Victim agreed to meet Delaney and his friend at an intersection in a St. Louis City neighborhood.
After Victim arrived, and as Delaney’s friend began trying on shoes, two men came out of the dark from a nearby park. Before Victim could get a good look at the men, they grabbed him and started punching him. The men held Victim’s arms while Delaney punched Victim in the head.
Victim was able to break free and run away while the group who attacked him took several cases of shoes from his van. After the group ran away, Victim returned to his van and noticed a cell phone lying on the ground under the van. The cell phone contained a list of recently called numbers, including calls to Victim’s cell phone earlier that evening.
Police detectives used information from the numbers saved in the cell phone tо locate Delaney. Delaney was identified by Victim as one of the people involved in the robbery, which led to his arrest, jury trial, and conviction of robbery in the second degree.
During voir dire, Delaney’s counsel asked the prospective jurors whether testimony from one eye-witness would automatically be enough to convince them that Delaney was one of the perpetrators. The State objected on the basis that Delaney’s counsel was getting into the facts of the case and seeking a commitment from the jurors. The trial court sustained the State’s objection. Delaney’s counsel then asked the jurors whether they would listen to the rest of the evidencе in the case. All the prospective jurors indicated they would by raising their hands.
Later in the trial, while presenting its case-in-chief, the State asked two of its witnesses about the cell phone Victim found near his van after the robbery. First, the State questioned police officer Michael O’Keefe about his handling of the cell phone oncе Victim turned it over to him. Officer O’Keefe explained that he took the phone into evidence, packaged it and placed it in the property room.
The State then asked detective Terrell Robinson about his use of the cell phone to locate Delaney. Detective Robinson testified that he found an entry for “Granny” in thе number index on the phone. He traced the phone number to the address of a woman named Carolyn Wade, and she gave him the names of her grandsons, including Delaney. Detective Robinson further testified that he was able to cross-reference Delaney’s name with two of the phone numbers listed in the cell phone, including one identified as “home.”
Thе State told Detective Robinson to “look at the phone for a minute” and asked
The State also mentioned the contents of the seized cell phone during closing argument. Delaney objected, arguing that the State was referring to facts not in evidence. The trial court overruled Delaney’s objection.
At the conclusion of trial, the jury found Delaney guilty of robbery in the second degree. This appeal follows.
II. DISCUSSION
A. Restriction of Delaney’s Voir Dire Examination
In his first point, Delaney argues that the trial court abused its discretion when it prevented him from asking prospective jurors whether they would automatically believe an eye-witness’s identification testimony. According to Delaney, the trial court’s ruling prejudiced him and deprived him of his rights to duе process, a fair and impartial jury, and a fair trial because he was unable to discover whether the jurors could fairly and impartially consider whether Victim’s identification of him was mistaken.
Because a defendant is entitled to a fair and impartial jury as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 18(a) of the Missouri Constitution, he must be given the opportunity to adequately voir dire and identify unqualified jurors.
State v. Clark,
But the trial court is vested with the discretion to judge the appropriateness of specific questions and the conduct of voir dire.
State v. Oates,
Delaney relies on
Clark, supra,
and
State v. Finch,
Specifically, in
Clark,
the trial court would not allow the defendant to ask any questions concerning the age of the murder victim, who was three-years-old.
Id.
at 145-46. The Missouri Supreme Court held that the trial court abused its discretion in preventing the defendant from dis
In
Finch,
the defendant was on trial for attempted forcible rape and first degree sexual abuse.
We find that both cases are distinguishable. Unlike the victims in
Clark
and
Finch,
the victim in this case is not part of a рarticular class of witnesses who may engender bias in favor of their testimony or prejudice against the defendant. Although the fact that Victim was an “eyewitness” to Delaney’s alleged actions may have made the case more difficult to defend, this obstacle to the defense did not rise to the level of a critical fact that necessitated allowing the defense to probe the venire panel.
See Oates,
Delaney’s voir dire question instead appears to be more оf an improper attempt to obtain a commitment from the prospective jurors. “It is well established in Missouri that counsel may not extract a commitment from a venireperson to a particular course of action.”
State v. Twitty,
B. Admission of the Call Log Contained in the Cell Phone
In his second point, Delaney argues that the trial court erred in allowing Detective Robinson tо testify about numbers stored in the incoming or recent call lists contained in the State’s Exhibit # 4, the cell phone Victim found after the robbery. Al
The determination of whether the State violated a rule of discovery is within the sound discrеtion of the trial court.
State v. Greer,
1. No Discovery Violation Occurred
Rule 25.03(A) requires the State, upon written request from the defendant, to disclose material and information within its possession or control, including any papers, documents or objects, which the State intends to introduce into evidence at trial, or which were obtained from оr belong to the defendant. See Rule 25.03(A)(6). Delaney concedes that the State timely disclosed the cell phone in compliance with Rule 25.03(A). Additionally, he does not argue that the State possessed a separate document describing or listing the information contained within the cell phone that it failed to timely disclose. Instead, Delanеy contends that the State violated Rule 25.03(A) when it presented evidence of the call log contained in the cell phone. Delaney argues that, even in the absence of separate phone records, the call log contained in the cell phone was distinct, discoverable information. We disagree.
While there are instances where a cell phone’s contents are treated as a separate source of information from the actual cell phone,
see, e.g., U.S. v. Finley,
We further find that Delaney failed to demonstrate fundamental unfairness. To the extent Delaney claims he was surprised by the State’s use of the record of Victim’s phone number in the сell phone, he has not shown he would have dealt with the record differently had the State disclosed it earlier. Delaney also fails to explain how Detective Robinson’s testimony that Victim’s phone number was included in the cell phone’s recent calls list somehow altered his ability to prepare for his defense. Because Delaney has failed to show that there is a reasonable likelihood that an earlier disclosure of the call log would have affected his defense or the result of the trial, he has failed to demonstrate that fundamental unfairness occurred as a result of the alleged discovery violation.
See State v. Kilgore,
3. Conclusion as to the Admission of the Call Log
The trial court did not abuse is discretion in allowing the State to elicit testimony about the call log contained in the cell phone for two reasons. First, no discovery violation occurred because the State’s timely disclosure of the actual cell phone was sufficient to give Delaney the opportunity to adequately prepare in advance of trial and avoid surprise with regard to the call log, which was easily accessible and displayable on the cell phone, and was not separately documented. Secondly, Delaney has failed to demonstrate fundamental unfairness occurred as a result of the alleged discovery violation. Delaney’s second point is denied.
C. References to the Call Log During the State’s Closing Argument
In his third and final point, Delaney argues that the trial court abused its discretion when it allowed the State, over his objection, to discuss the outgoing calls made from the cell phone. He asserts that the outgoing calls were facts not in evidence and thus an improper subject for closing argument.
The trial court has considerable discretion in controlling closing аrguments. State
v. Bearden,
Delaney bases his final argument that the State argued about facts not in evidence on the erroneous prеmise in his second point that the list of outgoing calls contained in the cell phone was separate evidence that had to be admitted independently. We have already found that the trial court did not abuse its discretion in admitting the call log contained in the cell phone. Because the State was commenting on facts that wеre properly admitted, Delaney’s argument is without merit. His third point is denied.
III. CONCLUSION
The judgment is affirmed.
Notes
. All references to Rules are to Missouri Supreme Court Rules (2008).
. We are mindful that there may be instances where information stored in a phone is no longer accessible through simple commands (such as accessing a list of recent calls, missed calls, incoming calls, or text messages) and can no longer be displayed. To the extent the data at issue is no longer displayable and requires additional means for recovery, it would be subject to Rule 25.03, especially since the data recovered would likely be recorded separately from the particular cell phone in such circumstances. In this case, however, the cell phone’s call log was displayed directly on the phone.