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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, Associate 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 persistent 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 Defendant, and (2) plainly erred in 

failing to grant Defendant allocution. We deny both points. 
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Relevant Testimony at Trial

The State called Detective John Blakely with the city of Sikeston as its first 

witness. Detective Blakely told the jury the following. In the evening on 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 that’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 patteddown Defendant for officer safety. Detective Blakely observed Detective Penrod remove 

a clear “Ziploc Baggie” from Defendant’s “back pocket” in the course of the pat-down. 

The baggie had “several” “smaller [b]aggies of marijuana” inside. 

Later that evening and “close to midnight,” Detective Blakely executed a search 

warrant at the house. In the course of the search, Detective Blakely located a set of 

scales, some baggies with the corners missing and identification belonging to Defendant. 

The identification was “found in the southwest bedroom.” The baggies were found “in 

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

marijuana 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 called to an address on West 

Gladys in Sikeston on June 30 of last year?

A. Yes.
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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]: Objection, 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 asked to go there, I knew -- Nobody was -- I 

didn’t know who 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.
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Defendant did not object further, and Detective Penrod’s testimony then shifted to the 

events that occurred when the officers first arrived 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 and suggested corrections to 

the report, and then presented argument on an appropriate 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 going 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 tried 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 relevant to [Defendant’s] charged offenses, and 

this evidence prejudiced [Defendant] by creating an impermissible inference that he had a 

propensity to commit serious criminal offenses.” Defendant has not preserved the issue 
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raised in his first point. Defendant’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 failing 

to grant [Defendant] allocution before pronouncing sentence,” “which resulted in a 

manifest injustice to [Defendant].” “[‘P]lain error can only serve as the basis for granting 

a new trial on direct appeal if the error was outcome determinative.[’] State 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 defendant 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 court 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 not 

invalidate the judgment or sentence.
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Our Supreme Court also has acknowledged:

“As early as 1689, it 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 

convicted 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 defendant 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 omitted).

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 not point 

us to (or even allege) any legal cause why sentence should not have been pronounced or 

any mitigating evidence1 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 

information relevant to sentencing. Defense counsel advocated on Defendant’s behalf for 

an appropriate sentence, was fully aware Defendant’s motion for a new trial had been 

denied without a hearing before sentencing and chose not to request reconsideration of 

that motion. Defendant, however, fails to persuade us that the error resulted in prejudice

 1 Our Supreme Court has suggested that allocution also includes 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).
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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 

been pronounced or any 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. 

The 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 an 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, and 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 officers 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 

produce 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 was 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 challenged 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 officers, newly discovered evidence that the prosecutor’s office subsequently had 

“dropped” other criminal cases involving these two officers because of concerns about the officers’ 

credibility was merely of an impeaching nature).