Opinion
WD84644
12-13-2022
STATE OF MISSOURI, Respondent, v. CEDRICK OLIVER RUSSELL, Appellant.
Gregory L. Barnes, Jefferson City, MO for Respondent. Jeannie Marie Willibey, Kansas City, MO for Appellant.
Appeal From: Jackson County Circuit Court The Honorable Kevin D. Harrell, Judge
Gregory L. Barnes, Jefferson City, MO for Respondent.
Jeannie Marie Willibey, Kansas City, MO for Appellant. 1
Before Judges: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge, and Anthony Rex Gabbert, Judge
OPINION
Anthony Rex Gabbert, Judge
Cedrick Russell appeals his conviction following jury trial in the Jackson County Circuit Court for first degree murder, first degree sodomy, second degree burglary, stealing, first degree tampering, and tampering with physical evidence. He argues in six points on appeal that the trial court erred in failing to strike a jury member, excluding the public from voir dire, failing to grant a mistrial, submitting the stealing count, failing to grant an acquittal, and in the sentence given for sodomy.
AFFIRMED AS CORRECTED.
Division Three holds:
1. Where a juror stated she assumed the defendant would testify and was confused about why he would not, the juror was sufficiently rehabilitated where she stated that she was one hundred percent certain that she could put the defendant's decision to not testify out of her mind and follow the court's instructions and that she would presume the defendant was innocent unless proven otherwise
2. Defendant's right to a public trial was not violated where the only two people who claim to have been excluded from the courtroom never tried to open the courtroom doors, no evidence was presented that something indicated that the public was not permitted to open the doors and walk inside, the doors were unlocked, and at least one other person used them to enter the room once voir dire had begun.
3. Trial court did not abuse its discretion in not granting a motion for a mistrial when testimony contained a singular statement that a member of the career criminal squad was part of the law enforcement investigation into the case where the statement was not caused by the prosecutor, it was singular and isolated, the reference to career criminal squad did not make specific reference to crimes committed by the defendant, the court did not promptly sustain defense counsel's objection and instruct the jury to disregard because no such objection or request was made, and there was a significant amount of evidence establishing guilt. 2
4. Where trial court granted motion for acquittal for felony stealing but did not acquit on misdemeanor stealing, submission of the lesser included misdemeanor stealing was not error even though the court initially refused such submission but later changed allowed it.
5. Sufficient evidence was presented that defendant's concealment, suppression, or destruction of the victim's phone impaired or obstructed a prosecution or defense of a felony as required by section 575.100.2, RSMo, where the physical phone almost certainly would have yielded more in depth and insightful information in this case than the phone records alone did and where the information contained in the victim's phone was highly relevant to the charges against defendant.
6. Where all parties agree and the record reflects that the defendant was not convicted of sodomy in the first degree as an aggravated sexual offense, the judgment is corrected to remove any reference to the conviction being an aggravated sexual offense.
This summary is UNOFFICIAL and should not be quoted or cited. 3