1 STATE OF MISSOURI, ) ) Plaintiff

- Respondent, ) )

vs. ) No. SD35306 ) MARTIN AKEEM DANIEL
, ) Filed : April 30, 2019 ) Defendant

- Appellant. )

APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY

Honorable Scott T. Horman, Associ ate Circuit Judge

AFFIRMED
A jury found Martin Akeem Daniel (“ Defendant ”) guilty of possession of more
than five grams of marijuana with the intent to distribute, and of felony resisting arrest.

The trial court sentenced Defendant as a prior and persis tent offender to ten years and
seven years for these offenses respectively with the sentences to run concurrently.
Defendant appeals claiming in two points that the trial court (1) abused its discretion in
admitting evidence of uncharged misconduct by Def endant , and (2) plainly erred in
failing to grant Defendant allocution. We d eny both points

.2 Relevant Testim ony at Trial
The State called Detective John Blakely with the city of Sikeston as its first
witness. Detective Blakely told the jury the foll owing. In the evening o n June 30, 2016,
Detective Blakely went to a house in Sikeston “looking for a female by the name of

Rhonda Franklin, and I was told th at ’ s where she had moved to. So I needed to go speak
with her about a case I was following up on. ” As he and other officers walked up to the

house, Ms. Franklin “came out” of the house. Defendant and his brother were inside the

home. Detective Blakely patted

- down Defendant’s brother and Detective Penrod patted

down Defendant for officer safety . De tective Blak ely observed Detective Penrod remove
a clear “Ziploc Baggie” from Defendant’s “back pocket” in the course of the pat

- down.
The baggie h ad “several” “smaller [b]aggies of marijuana” inside.
Later that evening and “close to midnight,” Detecti ve Blakely executed a search
warrant at the house. In the course of the search, Detective Blakely located a set of

scales, some b aggies with t he corners missing and identification belonging to Defendant.

The id entification was “ found in the southwest bed room.” The baggies were found “in

the trash i nside” the house, and were the same type of baggie as those found with the

mari juana in Defendant’s pocket. Detective Blakely only found a few. The individual
baggies in the large baggie that Detective Penrod removed from Defendant’s back pocket

were “ all packaged for dime sacks or $10 bags of weed .”
Narcotics detective Bobby Penrod then testified. Early in his direct testimony, the
following exchange occurred:
Q. Detective, I want to ask, were you ca lled to an address on West Gladys in Sikeston on June 30 of last year?

A. Yes.3 Q. And what was that for?
A. Detective Blakely asked me to go with him for an investigation he was doing in reference to a burglary.
Q. Okay.

[Defense counsel]: O bjection, Your Honor. May we approach?

THE COURT: You may.
(At this time counsel approached the bench, and the following proceedings were had:)
[Defense counsel]: That was covered in one of my pretrial motions.

. . . . THE COURT: Any response to that, [prosecutor]?
[Prosecutor]: Judge, he never implicated the defendant being part of that investigation, and it can be very cleared up with one question, was he the suspect in a burglary. The answer is no.

THE COURT: I’ m going to overrule the objection. You need to clean that up with that question.
(Proceedings returned to open court.)

BY [prosecutor]:
Q. Detective, to be clear, the defendant was not at all part of the investigation for the burglary, correct?

A. At the time I was ask ed to go there, I knew

-- Nobody was

-- I didn’ t know wh o the suspects were, and I didn’ t really know why we was [sic] going there besides that.

Q. Okay. So you never wrote any reports about the defendant being involved in anything else, correct?

A. No.4 Defendant did not object further, and Detective Penrod’s testimony then shifted to the

events that occurred when the officers first ar rived at Ms. Franklin’s house. There was
further testimony from law enforcement regarding the marijuana baggies and scale, but
nothing regarding the burglary investigation that brought the officers to the house that
evening.

Sentencing
At sentencing on December 20, 2017 , defense counsel acknowledged she had
“gone over” the sentence assessment report with Defendant an d suggested corrections to

the report, and then presented argument on an appr opriate sentence

. The trial court then imposed sentence stating:

So what I’ m going to do with regard to your case, [Defendant]
, allocution and sentence as to Count I, I am go ing to sentence you in this case to 10 years to serve in the Department of Corrections. As to Count II, I will impose an allocution and sentence of 7 years. That will be concurrent to Count I. And I will order these sentences to be executed.

Analysis

Point I

– Uncharged Misconduct

In his first point, Defendant asserts that the trial court “abused its discretion in
admitting Officer Penrod’s testimony about the burglary investigation at Ms. Franklin’s
house, in violation of [Defendant’s] rights to be t ried only for the offense charged . . . ,”
“in that Officer Penrod’s testimony of this uncharged criminal offense created an
inference that [Defendant] was a possible suspect in the burglary investigation, this
evidence was neither logically nor legally re levant to [Defendant’s] charged offenses, and
this evidence prejudiced [Defendant] by creating an impermissible inference that he had a
propensity to commit serious criminal offen ses.” Defendant has not preserved the issue5 raised in his first point. Defe ndant’s motion for a new trial argues that the trial court
erred “in failing to grant the defendant’s request for a mistrial.” The record shows that
Defendant only made an objection to Detective Penrod’s testimony, and did not request a

mistrial. Further , Defendant did not request any specific relief based on the objection,
and did not object further or request additional relief following the trial court’s ruling and
instruction to the prosecutor to clarify that Defendant was not a suspect in a burglary. As
a result, it appears Defendant waived any claim of error for this issue on appeal. State v.

McMilian , 295 S.W.3d 537, 539 n.2 (Mo.App. W.D. 2009).

Point II

– Allocution

In his second point, Defendant argues that the trial court “plainly erred in fail ing
to grant [Defendant] allocution before pronouncing sentence,” “which resulted in a
manifest injustice to [Defen dan t].” “[‘P]lain error can only serve as the basis for granting

a new trial on direct appeal if the error was outcome determinative.[’] St ate v. Baxter , 204 S.W.3d 650, 652 (Mo. banc 2006) (quoting Deck v. State , 68 S.W.3d 418, 427 (Mo.

banc 2002)).” State v. Mendez

- Ulloa , 525 S.W.3d 585, 590, 595 (Mo.App. E.D. 2017).
Outcome determinative means that the error more likely than not altered the outcome of

the trial. Deck v. State , 68 S.W.3d 418, 426

- 27 & n.5 (Mo. banc 2002). Rule

29.07(b)(1), Missouri Court Rules (2018), provides:
Allocution and Imposition of Sentence . Sentence shall be imposed without unreasonable delay. When the defend ant appears for judgment and sentence, he must be informed by the court of the verdict or finding and asked whether he has any legal cause to show why judgment and sentence should not be pronounced against him; and if no sufficient cause be shown, the cour t shall render the proper judgment and pronounce sentence thereon. If the defendant has been heard on a motion for new trial, and in all cases of misdemeanor, the requirements of this subparagraph are directory and the omission to comply with them shall n ot invalidate the judgment or sentence.6 Our Supreme Court also has acknowledged:
“As early as 1689, i t was recognized that the court’ s failure to ask the defendant if he had anything to say before sentence was imposed required reversal.” Green [v. United States] , 365 U.S. [301,] 304, 81 S.Ct. 653 [(1961)]. Eight members of the Supreme Court of the United States, in Green , agreed that Rule 32 of the Federal Rules of Criminal Procedure “requires a district judge before imposing sentence to afford every

con victed defendant an opportunity personally to speak in his own behalf.” Hill v. United States , 368 U.S. 424, 425

– 26, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). The Supreme Court held in Hill , however, that “[t]he failure of a trial court to ask a criminal defen dant represented by an attorney whether he has anything to say before sentence is imposed . . . is an error which is neither jurisdictional nor constitutional.” Id . at 428, 82 S.Ct. 468.

State v. Taylor , 466 S.W.3d 521, 533 (Mo. banc 2015) (footnotes omi tted).
Assuming without deciding that the trial court erred in failing to ask Defendant if
he had any legal cause why sentence should not be pronounced, Defendant does no t point
us to (or even allege) any legal cause why sentence should not have been prono unced or

any mitigating evidence 1 that Defendant would have raised if given an opportunity (or
that he would like to raise on remand for resentencing). As a result, we deny Defendant’s

second point because he fails to demonstrate any prejudice, much less a manifest
injustice.

Defendant had the benefit of a sentence assessment report that contained

informati on relevant to sentencing. D efense counsel advocated on Defendant’s behalf for

an appropriate sentence
, was fully aware Defen dant’s motion for a new tr ial had been
denied without a hearing before sentencing and chose not to request reconsideration of

th at motion. Defendant , however, fa ils to persuade us that the error resulted in prejudice

1 Our Supreme Court has suggested that allocution also inclu des a defendant’s right personally “to speak and to present mitigating evidence prior to sentencing.” State v. Taylor , 466 S.W.3d 521, 534 (Mo. banc 2015) ; see also State v. Thompson , 538 S.W.3d 390, 395 n.6 (Mo.App. W.D. 2018)

.7 to Defendant. At trial, defense counsel affirmatively requested that the trial court impose

a sentence, and Defendant did not ask to present any legal cause or mitigating evidence to

the trial court that was not included in his previously denied motion for a new trial, the
sentence assessment report, or defense counsel’s advocacy for an appropriate sentence.

In this appeal, Defendant has not identified any legal cause why sentence should not have

bee n pronounced or a ny mitigating evidence that Defendant would have raised if given
an opportunity (or that he would like to raise on remand for resentencing). The trial
court’s error simply did not result in any demonstrable prejudice to Defendant or alter the
outcome of Defendant’s sentencing

.
Point II is denied.

T he trial court’s judgment is affirmed. 2

Nancy Steffen Rahmeyer, J.

– Opinion Author

Don E. Burrell, P.J.

– Concurs
Gary W. Lynch, J.

– Concurs

2 Defendant filed with us a motion to remand the case to the trial court to consider newly discovered evidence based on the findings of a master in a n unrelated habeas corpus proceeding that Detective Blakely was not credible in that proceeding

. There is no allegation that Detective Blakely testified falsely or otherwise engaged in wrongful conduct in this case. We took the motion with the appeal, an d now deny the motion. The new evidence is “merely of an impeaching nature,” and, in light of the uncontested evidence that Defendant had seven individual bags of marijuana on his person and fled from officers and the unanimous testimony of three police o fficers that the packaging and number of individual bags alone indicated an intent to distribute the marijuana, the new evidence is not “so material that it is likely to p roduce a differen[t] result at a new trial.” See State v. Terry , 304 S.W.3d 105, 109
, 109

- 11 (Mo. banc 2010) (mandatory elements that a movant must show to obtain a new trial on the basis of newly discovered evidence ; newly discovered DNA evidence wa s not “merely of an impeaching nature” because it showed conclusively that the challenged witness committed perjury in the defendant’s trial ) ; State v. Williams , 504 S.W.3d 194, 197

- 98 (Mo.App. W.D. 2016) ( allegedly newly discovered impeachment evidence insufficient to show manifest injustice necessary to support plain error review where the ch allenged witness neither recanted nor was shown conclusively to have committed perjury in the defendant’s trial) ; and State v. Nylon , 311 S.W.3d 869, 877

- 78 , 875 (Mo.App. E.D. 2010) (where the prosecution “ was based entirely on the testimony ” of two office rs, newly discovered evidence that the prosecutor’s office subsequently had

“ d ropped ” other criminal cases involving these two officers because of concerns about the officers’ credibility was merely of an impeaching nature )

.