In the Missouri Court of Appeals
Eastern District
DIVISION FIVE
STATE OF MISSOURI, ) No. ED102488
)
Respondent, ) Appeal from the Circuit Court
) of St. Louis County
vs. )
) Hon. Richard C. Bresnahan
TYRONE BENEDICT, )
) Filed:
Appellant. ) April 19, 2016
Tyrone Benedict (“Defendant”) appeals from the judgment entered after a jury trial on his
convictions for murder in the first degree and arson in the first degree. We affirm.
The sufficiency of the evidence at trial is not challenged on appeal. Viewed favorably to
the verdicts, the evidence established the following. The victim was forty-year old Mark Woods
(“Victim”). He was paralyzed when he was twenty years old after a car accident. Victim had
limited use of one arm, could not use either of his hands or legs and was confined to a
wheelchair, which he operated with a joystick. He was able to sign his name by holding a pen in
his mouth, and he could use his cell phone and computer. He worked in information technology
both at home and at an office.
Victim employed several caregivers to assist him with various basic functions of daily
life. Defendant was one of Victim’s caregivers; he usually worked from about 4:30 a.m. until
about 11 a.m. or noon. One of Defendant’s duties was to review all of the caregivers’
timesheets. By most accounts, Victim was very detail-oriented, frugal with his money (though
he made a very good salary) and was sometimes difficult to work for. Victim’s mother testified
that she observed Defendant and Victim arguing often and once overheard Defendant tell Victim
“you’ll be sorry.”
Victim’s neighbor testified that at about 4:00 a.m. on February 23, 2011, he awoke to the
sound of a slammed door. He looked out the window and saw a person “with flames” on his
body or something he was holding come out of Victim’s apartment and run towards the parking
lot. The neighbor went back to bed, thinking it was a cooking incident. He heard another door
slam about five minutes later, but did not get up.
Defendant’s roommate testified that Defendant left his apartment for work at the usual
time that day. Phone records showed that Defendant placed a call to Victim from a location near
Victim’s apartment at 4:14 a.m. and made another call from the same location about a minute
later. Defendant was back at home by 4:59 a.m., when he made a call from his home to another
one of Victim’s caregivers, David Brandenberger. Brandenberger testified that Defendant said
he could not make it to work and asked Brandenberger to go in for him. Defendant also placed
another call to Victim at 5:01 a.m. from Defendant’s home. Defendant’s roommate testified that
when Defendant arrived home, she heard him throw up. He told her he came home from work
because he was sick. Defendant told her not to get near him because he was sick, but after he
showered, he got back into bed with her.
Around this same time, 5:00 a.m., Victim’s neighbor awoke again and smelled smoke.
He went outside, saw smoke coming from Victim’s door and went back to his apartment to get a
fire extinguisher. While there, he also told his mother to call 911. The neighbor then went back
to Victim’s apartment and tried to go in to help, but the smoke was too thick.
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By the time Brandenberger arrived at Victim’s apartment shortly before 6:00 a.m.,
emergency personnel were already there responding to the fire. Brandenberger called Defendant
at home at 5:57 and told him about the fire. According to Defendant’s roommate, Defendant was
“worried excited” when the phone rang and, after talking to Brandenberger, turned on the TV to
see if there was a news story about it.
Emergency personnel testified that they found Victim dead in his bedroom with four stab
wounds on his face and one on his neck, but his cause of death was determined to be carbon-
monoxide toxicity from smoke inhalation. A bloodstained knife and a gas can were found in the
living room. Victim’s apartment also smelled of gasoline, which was found on numerous items
in the apartment, including Victim’s bed and bedding. It was determined the fire was
intentionally set.
Defendant came to Victim’s apartment later that morning, at the request of police. He
agreed to go to the police station to talk with the investigating officers further, though the
officers testified Defendant was not a suspect at that time. Initially, Defendant claimed he had
stopped at a convenience store near his home in Maryland Heights on the way to work,
determined he was not feeling well and decided to go back home. He claimed he called the
Victim twice from his home to tell him he was sick. The officers examined his phone records,
which showed that those two calls to Victim were actually made from a location near Victim’s
home in South St. Louis County. At that point, the officers determined Defendant was a suspect.
They began recording the interrogation, and the resulting video was played at trial. The officers
read Defendant his Miranda rights, which he stated he understood. Defendant told the officers
he had not been to Victim’s apartment that morning. When presented the phone records,
Defendant changed his story and said he had actually gotten close to Victim’s home before
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deciding to turn around and go home. About an hour later, Defendant asked for an attorney, and
the officers ceased the interrogation. Defendant was not released, and later indicated he wanted
to tell the officers what really happened. He denied killing Victim or starting the fire, but
admitted that he had in fact gone to Victim’s apartment that morning. He claimed it was already
on fire and that he tried to rescue Victim. He claimed he did not call 911 because he was scared
and wanted to separate himself from the incident.
During the interrogation, police observed burn marks on Defendant’s nose, which he
claimed was herpes, and on his hand, which he tried to conceal from the officers and then
claimed was from cooking Ramen noodles. Later, he claimed he had been burnt trying to rescue
Victim, and the officers observed other burn marks on his back and buttocks. They also found a
melted lighter in Defendant’s pocket. Gasoline was later detected on clothing at Defendant’s
home, and Defendant’s roommate’s nephew testified that the gas can found at Victim’s
apartment was one that was missing from Defendant’s garage.
Defendant also told the officers that he had written himself checks from Victim’s
checkbook in the week before the fire, two for approximately $960 each and one the day before
the fire for $2500. Defendant claimed he had permission to write the checks, but none of them
appeared in Victim’s check register—which was otherwise up to date—and the checks were
taken from the back of Victim’s checkbook. Defendant also signed Victim’s names to the
checks himself, though, as Brandenberger and Victim’s mother testified, Victim was capable of
signing his name himself. Defendant told his roommate that Victim had given him a large cash
advance.
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The jury convicted Defendant of murder in the first degree, for which he was sentenced
to life imprisonment without probation or parole, and of arson in the first degree, for which he
received a life sentence. The sentences were to be served consecutively. This appeal follows.
In his first point, Defendant challenges the exclusion of alternative perpetrator evidence.
The State filed a motion in limine before trial to exclude evidence that Defendant’s co-worker,
Brandenberger, had an opportunity or motive to commit this crime. At the pre-trial hearing on
that motion, the State explained that Brandenberger said in a deposition that he was very
frustrated by Victim and told his aunt a week before Victim’s death: “I’d like to see him on fire
in his wheelchair.” Defendant argued that this statement was relevant to show that the police did
not adequately investigate other suspects in this crime and also that it would show
Brandenberger’s “bias and interest” as a State witness. The court took the motion under
submission. Then, on the first day of trial, the court took up the matter again. In addition to
being admissible as alternative perpetrator evidence, Defendant argued, he should be allowed to
cross-examine Brandenberger about his interest “in keeping these things from the cops because
he doesn’t want to be labeled as a suspect.” The court concluded that its “preliminary ruling is
made permanent” but then clarified that it was “still interlocutory, but I’m finding there is not an
act directly connecting [Brandenberger] to this event.” The court granted the State’s motion in
limine and prohibited Defendant from mentioning the statement made by Brandenberger
regarding seeing Victim on fire.
When Brandenberger testified, there was no attempt to introduce this statement into
evidence either substantively as alternative perpetrator evidence or to impeach. The State
contends this issue was, therefore, not preserved and can only be reviewed, if at all, for plain
error. Defendant argues that because the court made a definitive ruling that the statement did not
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constitute an act directly connecting Brandenberger to this crime, it would have been futile to
again attempt to introduce the statement on cross-examination. It is unlikely, he claims—even
though the trial court’s ruling was interlocutory—that the court would have changed its ruling
under these circumstances. We need not decide whether the claim was properly preserved
because 1) there was no error, plain or otherwise, in excluding Brandenberger’s statement as
substantive evidence of an alternative perpetrator and 2) any error in prohibiting Defendant from
impeaching Brandenberger with that statement was harmless and does not warrant reversal under
either a prejudice or a plain error standard.
Generally, a defendant may introduce evidence tending to show that another person
committed the charged offense, unless the probative value of the evidence is substantially
outweighed by its costs, such as undue delay, prejudice or confusion. State v. Bowman, 337
S.W.3d 679, 686 (Mo. banc 2011); State v. Barriner, 111 S.W.3d 396, 400 (Mo. banc 2003).
“When the evidence is merely that another person had opportunity or motive to commit the
offense, or the evidence is otherwise disconnected or remote and there is no evidence that the
other person committed an act directly connected to the offense, the minimal probative value of
the evidence is outweighed by its tendency to confuse or misdirect the jury.” Bowman, 337
S.W.3d at 686 (emphasis added). Evidence is not admissible just to cast bare suspicion on
another person. State v. Speaks, 298 S.W.3d 70, 86 (Mo. App. E.D. 2009). Rather, evidence of
an alternative perpetrator is admissible only if there is also proof that the other person committed
some act directly connecting him with the crime. Id.; see also State v. Wise, 879 S.W.2d 494,
510 (Mo. banc 1994). The defendant must establish “a clear link” between the alleged
alternative perpetrator and a “key piece of evidence” in the crime. State v. McKay, 459 S.W.3d
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450, 458 (Mo. App. E.D. 2014); State ex rel. Koster v. McElwain, 340 S.W.3d 221, 249-250
(Mo. App. W.D. 2011).
Brandenberger’s statement that he wanted to see Victim on fire in his wheelchair was not
an act directly connecting Brandenberger to the crime. We disagree with Defendant’s argument
that this statement should be interpreted as the beginning of a plan to murder the victim.
Regardless of how precisely the expression of his desires matched the crime as it actually
happened, the statement is not an act directly connecting Brandenberger to the crime. Without
other evidence directly linking him to this crime, Brandenberger’s statement at best shows that
he may have had a motive for this arson and murder. Motive alone has been repeatedly held not
to be admissible. See, e.g., Speaks, 298 S.W.3d at 86 (evidence that someone “had been seen
looking for a hitman on the internet” would not alone directly connect that person to charged
murder); Bowman, 337 S.W.3d at 688-89 (evidence that one was a suspect in similar murders
did not directly connect him to charged murder, where no physical evidence linked him to
crime); State v. Rousan, 961 S.W.2d 831, 848 (Mo. banc 1998) (suspicions that victims’ son was
involved in their disappearance and evidence that he struggled with victim in business did not
directly connect him to their murders); State v. Chaney, 967 S.W.2d 47, 55 (Mo. banc 1998)
(evidence that pedophile lived near victim and lied to police regarding whereabouts at time of
murder did not establish a direct connection between him and child’s murder).
Defendant cites to State v. Woodworth in support of his argument that the trial court
misapplied the direct connection rule. In Woodworth, the victim testified at trial that he had not
seen his assailant. 941 S.W.2d 679, 690 (Mo. App. W.D. 1997). The defense attempted to
introduce evidence that the victim had actually told various individuals after the shooting that a
certain person—not the defendant—was the assailant. Id. The appellate court found the
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evidence admissible as a prior inconsistent statement, both to impeach and as substantive
evidence, which in turn constituted direct evidence linking that other person to the crime. Id.
That case is clearly distinguishable from ours, as Defendant has made no argument that
Brandenberger’s statement was admissible as a prior inconsistent statement. Moreover, a victim
identifying someone other than the defendant is significantly more probative of the existence of
an alternative perpetrator than is someone else’s mere desire to see the victim harmed.
Defendant also cites to McKay, which is equally distinguishable. The evidence regarding
an alternative perpetrator in that case—which the appellate court held should have been
admitted—included not only the victim’s recognition that someone other than defendant
resembled the man who robbed her, but also other evidence directly connecting that alternative
perpetrator to the crime. 459 S.W.3d at 458. The alternative perpetrator owned the same type of
gun as the one used in the robbery; clothes matching the victim’s description of the robber’s
clothes were found concealed in his sofa; the victim’s stolen cell phone was used to call his
girlfriend shortly after the robbery; his girlfriend had possession of the stolen phone later and had
been told by the alternative perpetrator that he stole it from a white person; and he was identified
by eyewitnesses as the person who sold the victim’s stolen phone. Id. There was no similar
evidence linking Brandenberger to the arson and murder in this case. In McKay, the alternative
perpetrator had also stolen a cell phone in the immediate vicinity eight days after the charged
robbery, and there is no such evidence in this case. Id. Finally, the fact that the State conceded
in McKay that there was enough evidence to establish a direct connection between the alternative
perpetrator and the crime also sets that case apart from ours. Id. at 460 n.5.
Defendant also contends that, regardless of its admissibility as evidence of an alternative
perpetrator, this statement should have been admitted for the purpose of impeaching
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Brandenberger because it showed his interest in the case and bias. In criminal cases, interest is
shown by evidence that the witness has a stake in the outcome of the proceeding. State v.
Winfrey, 337 S.W.3d 1, 7 (Mo. banc 2011). Bias includes “all varieties of hostility or prejudice
against the opponent personally or of favor to the proponent personally” and “circumstances of
the witness’s situation that make it probable that he or she has partiality of emotion for one
party’s cause.” State v. Clark, 364 S.W.3d 540, 544-45 (Mo. banc 2012) (internal quotation
marks and citations omitted). Brandenberger’s statement that he wanted to see Victim on fire
revealed that he may have had a motive to commit the crime, which may have made him a
suspect. As a result, he was biased toward the State’s cause and had an interest in testifying for
the State to ensure Defendant was convicted so as to divert attention away from any suspicion of
Brandenberger’s own involvement. “Cross-examination about any issue is permissible if it
shows the bias or interest of the witness because a witness’s bias or interest could affect the
reliability of the witness’s testimony on any issue.” Winfrey, 337 S.W.3d at 8 (internal quotation
marks and citation omitted). Therefore, it was error not to allow Defendant to impeach
Brandenberger with this statement.
But the error was harmless beyond a reasonable doubt because there was no prejudice
resulting from Defendant’s inability to use the statement to show Brandenberger’s bias and
interest. Unlike cases in which courts have found prejudice resulting from the refusal of
impeachment evidence, Brandenberger’s testimony was not crucial to this case. In Winfrey, for
example, the witness testified about the circumstances in which the defendant acquired the
unrecovered murder weapon. Id. That witness had previously told someone that he had actually
committed the charged murder. Id. Thus, the Court found that evidence showing this witness
had an interest to lie about circumstances surrounding the defendant’s involvement in the crime
9
was crucial to the conviction could have affected the jury’s verdict. Id. In Clark, the Court
found that the defendant was prejudiced by his inability to cross-examine one of the two main
State witnesses because, if impeached, the jury may have disregarded all of that witness’s
testimony and relied only on the other main witness, whose testimony was plagued with
credibility problems of its own and standing alone may not have been insufficient to convict the
defendant. 364 S.W.3d at 545. Thus, in both of those cases the witness’s credibility was critical
to the defendant’s conviction.
In this case, it was not the credibility of Brandenberger that determined whether
Defendant would be convicted of murder and arson. The only incriminating portion of
Brandenberger’s testimony related to Victim’s ability to sign his own checks. Brandenberger
testified that he would fill out his paychecks, but Victim would sign them, and then he would
register the amount in Victim’s check register. He testified that Victim was a stickler and was
very particular about what he wanted Brandenberger to do. This testimony tends to show
Defendant did not have permission to write and sign the checks to himself as he claimed because
if he had permission, Victim would have signed them himself and, being a stickler for details,
would have ensured that they got recorded properly. The remainder of Brandenberger’s
testimony has little to do with the other “admittedly strong” evidence supporting the conviction:
Defendant’s burn marks, the gasoline on his clothing, the lighters found in his pockets and the
phone records showing his proximity to the scene at the time the fire was set. Moreover, the fact
that Victim was detail-oriented and capable of signing his own name was also in evidence from
other testimony. Thus, even if Defendant had been allowed to expose Brandenberger’s interest
and bias and the jury had discredited the entirety of his testimony, there still would have been
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sufficient other evidence to support the conviction. Excluding that impeachment evidence was
harmless error.
Point I is denied.
In his second point, Defendant challenges the admission of statements he made to the
police after he invoked his right to counsel. His motion to suppress these statements was denied
before trial, and the video of his interrogation was played for the jury and a transcript thereof
admitted into evidence. In our determination of whether the evidence was sufficient to support
the trial court’s ruling, we consider both the evidence at the suppression hearing and at trial.
State v. Norman, 431 S.W.3d 563, 568-69 (Mo. App. E.D. 2014). Here, that evidence was
uncontroverted as to the following facts, which are also not disputed on appeal.
After Defendant was read his Miranda rights and waived them, he spoke to the police for
several hours. About three and half hours into the interrogation, Defendant stated “it’s time—it’s
time—it’s time to get an attorney.” The officers stopped questioning him immediately and left
Defendant alone in the interview room, after escorting him on a bathroom break. About an hour
and forty-five minutes later, two other officers came in and asked Defendant to stand up; they
testified they were going to take photographs of Defendant’s burns. They also asked if he had
anything in his sweater. Defendant said “No. Do you want to know what really happened?” The
officer said “If you want to tell us,” and Defendant said “Have a seat.” The officer then
explained that he would have to get the interviewing officers back in the room. Defendant said
“I didn’t kill him.” The interviewing officers then came back in the room, and Defendant began
telling how he arrived after the apartment was on fire and went in to try and rescue Victim.
After the suppression hearing, the trial court concluded that Defendant had not actually
made an unambiguous, unequivocal and specific request for counsel at any point during the
11
interrogation and thus all the statements made therein were admissible. The determination of
whether a suspect invoked his Fifth Amendment right to counsel is a question of law, and we
need not defer to the trial court’s conclusion on such questions. See State v. Homan, 2016 WL
930940 *1-2 (Mo. App. S.D. March 11, 2016).1 Rather, we will review the issue de novo. Id. A
suspect’s statement invoking his right to counsel must be sufficiently clear “that a reasonable
police officer in the circumstances would understand the statement to be a request for an
attorney.” Norman, 431 S.W.3d at 569. Here, the uncontroverted testimony of the officer
indicated that he understood Defendant was invoking his right to counsel when he said “it’s time
to get an attorney,” which prompted them to cease the interrogation. We agree that Defendant
invoked his right to counsel at that time.
Defendant admits that after he asked for counsel, he voluntarily reinitiated the
conversation with police when he said “Do you want to know what really happened?” But he
argues that the police were required to re-Mirandize him after he reinitiated the conversation
before talking to him any further. We disagree.
The Fifth Amendment protection against self-incrimination affords any suspect the right
to have an attorney present during police interrogation. Miranda v. Arizona, 384 U.S. 436
(1966). Therefore, a suspect who has expressed a desire to deal with the police only through
counsel cannot be subject to further interrogation until counsel has been made available, unless
the suspect initiates further conversations with the police. Edwards v. Arizona, 451 U.S. 477,
1
Moreover, the parties proceed with this appeal on the assumption that Defendant had invoked his right to counsel
and only ask this Court to resolve whether Defendant thereafter knowingly and intelligently waived that right when
he reinitiated the conversation with police. As discussed infra, we find that he waived that right and affirm on this
theory rather than on the theory that he never invoked his right to counsel in the first place. See State v. Jackson,
436 S.W.3d 576, 578 (Mo. App. S.D. 2013) (appellate court can affirm denial of motion to suppress on any
plausible theory).
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485 (1981). The initiation of further conversation by the suspect does not itself show waiver of
the previously-asserted right to counsel. Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983).
Rather, when the suspect reinitiates conversation and further interrogation follows, the burden
remains upon the State to show that subsequent events indicated a knowing and intelligent
waiver of the right that had been previously invoked. Oregon, 462 U.S. at 1044. Thus, whether
statements made after a suspect has invoked his right to counsel are admissible is a two-step
inquiry: did the suspect initiate further discussion with police and did he waive the previously-
invoked right. Id.; see also Smith v. Illinois, 469 U.S. 91, 95 (1984); Edwards, 451 U.S. at 492
n.9.
Defendant’s contention that there is, or should be, a rule requiring the police to renew
Miranda warnings when a suspect reinitiates his interrogation after invoking his right to counsel
has been rejected by federal courts. See United States v. Muhammad, 196 F. App’x 882, 887
(11th Cir. 2006). The failure to re-administer Miranda rights in this situation “is not fatal.” Id.
Though courts have recognized that it might be preferable to renew the Miranda warnings when
a suspect reinitiates after invoking his rights, a repetition of the warnings is not required to
protect Fifth Amendment rights in that circumstance. See Moore v. Dugger, 856 F.2d 129, 133-
34 (11th Cir. 1988); see also Jacobs v. Singletary, 952 F.2d 1282, 1295 (11th Cir. 1992). Rather,
courts look at the totality of the facts and circumstances in a particular case to determine whether
a suspect’s rights have been knowingly and intelligently waived. See Muhammad, 196 F. App’x
at 887; Oregon, 462 U.S. at 1046; Edwards, 451 U.S. at 492 n.9; State v. Pennington, 687
S.W.2d 240, 242-43 (Mo. App. W.D. 1985).
Defendant’s reliance on State v. Bannister is misplaced. In Bannister, the suspect
invoked his right to counsel, then initiated further interrogation and was re-Mirandized before the
13
police took further statements from the suspect. 680 S.W.2d 141, 147-148 (Mo. banc 1984).
While the renewed warnings may have been an important factor in determining that the
previously-invoked right to counsel had been knowingly and intelligently waived, it was only
one of the totality of circumstances the Court considered: it relied on the suspect’s “repeated
expressions of willingness to talk in the absence of counsel, his volunteered statements to
officers about the shooting, his response that he understood his rights, as well as his action in
signing the waiver form, show a valid waiver.” Id.
Simply because Bannister and other cases have relied in part on the fact that the police re-
advised the suspect of his rights does not mean that re-Mirandizing is required. Rather, it is still
possible to find a knowing and intelligent waiver of a previously-asserted right when the police
have not re-Mirandized the suspect. We can do so here. After invoking his right to counsel, the
police properly ceased all questioning and left the room. The officers that came in later to take
photographs said and did nothing improper to prompt Defendant to ask them if they wanted to
know what really happened. Once the interviewing officers returned to the room, Defendant
immediately started talking. This all occurred less than four hours after he was first given
Miranda warnings, which he said he understood and which he had just invoked less than two
hours earlier when he asked for an attorney. There is no argument that Defendant forgot those
rights in that short time period or did not still understand them when he chose to voluntarily start
talking to police again. There is no argument on appeal that Defendant was not capable of
understanding those rights or that any physical force, threats, promises or coercive tactics were
used to obtain the statements at issue. They were properly admitted at trial.
Point II is denied.
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In his third point on appeal, Defendant claims the court plainly erred in failing to sua
sponte grant a mistrial or issue a curative instruction when the State elicited testimony referring
to Defendant’s request for an attorney. If a defendant exercises his right to remain silent or
requests an attorney after being given Miranda warnings, the State may not use that silence
against him. See Doyle v. Ohio, 426 U.S. 610, 618 (1976). The State may not use silence or the
request for counsel either as affirmative proof of a defendant’s guilt or to impeach his testimony.
State v. Steger, 209 S.W.3d 11, 17 (Mo. App. E.D. 2006). Defendant asserts that the State was
attempting to use Defendant’s request for an attorney as proof of his guilt, but that bare assertion
is not supported by the record.
There are three references by the State that Defendant claims are Doyle violations. First,
the interviewing officer was asked on direct examination about how Defendant changed his story
after being shown a conflict between his claimed whereabouts at the time he made calls on the
morning of the fire and his phone records:
Q: Okay what happened after that? Did you keep talking about it and
asking him questions?
A: Yes.
Q: And did he appear to not want to talk to you anymore at the point?
A: Yes.
Q: Okay. In fact, detective, did he even ask for an attorney at some
point?
A: Yes, he did.
Q: Okay. When he asked for an attorney, what did you do?
A: We left—Myself and [the other officer] ended the interview and
left the room.
Q: And that’s what you’re trained to do, right?
A: That’s right.
Q: If a suspect asks for an attorney and says, I don’t want to talk
anymore, basically you have to stop, right?
A: Yes.
The officer then explained how the interview resumed after Defendant indicated he wanted to tell
the officers what really happened.
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The second reference was made during redirect examination of that same officer. The
State asked him about Defendant’s suggestion during cross-examination that it was the officers’
pushing that led Defendant to change his story:
Q: And so that wasn’t really—you didn’t have to push, really, to get
him to change his story. He just changed it when he saw the
evidence in front of him, right?
A: That’s correct.
Q: And then eventually at some point we saw on the video, he asked
for an attorney, correct?
A: Yes.
Q: Which I think within seconds you and [the other officer] stood up
and left the room.
A: Yes.
Q: Okay. And then isn’t it true that eventually when [another officer]
came back in the room, the defendant and the defendant alone
reinitiated that interview process by saying, do you really want to
know what happened.
A: Yes.
Q: So that wasn’t from pushing. That was him reinitiating, correct?
A: That’s correct.
The State mentioned the request for counsel again in closing. After arguing that the
officer “was professional in every way” and recounting the manner in which Defendant’s
statements changed during the interrogation when confronted with the phone records, the State
pointed out that the officers properly responded when Defendant said it was time to talk to an
attorney.
There is nothing in the above-referenced testimony of the officer or the State’s closing
argument that was improper under Doyle. There was no specific question the officer asked
Defendant that he declined to answer by invoking his rights, nor did the officer indicate that
Defendant was dodging his questions by requesting counsel. Nothing in the officer’s testimony
or the State’s questions or argument can be interpreted as suggesting to the jury that it should
find Defendant less credible because he invoked his right to an attorney or that it should draw an
16
inference of his guilt based upon his invocation of that right. See State v. Stites, 266 S.W.3d
261, 267-68 (Mo. App. S.D. 2008) (questions and testimony were without direct or even
reasonably inferable suggestion that defendant’s silence had anything to do with guilt or
innocence). Rather, the references were made in the State’s attempt to explain the course of the
interview and to rebut suggestions raised by Defendant that his statements were not entirely
voluntary. Testimony that the officers properly responded when Defendant asked for counsel
and only continued talking to him after he reinitiated the conversation counters Defendant’s
theory that their interrogation tactics were improper. Moreover, when a defendant makes
statements voluntarily after waiving a previously-invoked right to an attorney, the officer is
allowed to testify about the fact that an attorney was requested. See State v. Nastasio, 957
S.W.2d 454, 461 (Mo. App. W.D. 1997) (state could ask about request for attorney when
statements made voluntarily after request).
Even if these references amounted to Doyle violations, we would not conclude that they
had a decisive effect on the jury based on the entire record in this case. State v. Dexter, 954
S.W.2d 332, 340 (Mo. banc 1997). There was overwhelming evidence of Defendant’s guilt:
phone records placed him near the scene of the crime at the relevant time; his gas can was found
at the scene; he had burn marks on his skin, gasoline on his clothing and two lighters in his
pocket; he admitted to disposing of his charred shoes; and he stole money from the victim days
before the murder.
Point III is denied.
In his final points, Defendant claims the trial court erred by failing to include in the
verdict-director for first-degree murder the punishment paragraph required by Missouri
Approved Instruction 314.02. That MAI provides that, in certain circumstances, the following
17
paragraph “should be used” in the verdict-director for murder in the first degree: “If you do find
the defendant guilty (under Count __) of murder in the first degree, you are to assess and declare
the punishment at imprisonment for life without eligibility for probation or parole.” The Notes
on Use explain that the above paragraph is to be used only when the death penalty has been
waived and only if the jury is to assess and declare punishment:
If the death penalty has been waived, the inclusion of the reference to punishment
will depend on whether the jury will assess and declare the punishment. If the
jury is to assess and declare punishment, the last paragraph of the instruction will
be used. A second stage proceeding is not necessary because there is no range of
punishment for murder in the first degree. If the last paragraph is included in the
verdict director, special verdict forms must be added.
MAI 314.02, Notes on Use 3. It is then further explained that if the death penalty has been
waived, “there will be no second stage proceedings,” as is directed by Section 565.030.1, and a
special verdict form shall be used on which the jury assesses both guilt and the mandatory life
sentence without parole. MAI 314.02, Notes on Use 4.
Here, the State did not seek the death penalty, and the jury was to assess punishment. But
this trial did not proceed in a single stage. Rather, it was bifurcated into a guilt phase and a
punishment phase, presumably because of the other charges submitted, including the lesser
offense of second-degree murder and voluntary manslaughter, as well as first-degree arson. The
verdict-director did not include the paragraph regarding punishment when the jury retired to
deliberate at the end of the guilt phase. No one objected at that time, and Defendant seeks plain
error review regarding the giving of that instruction without the punishment paragraph. After the
verdicts were returned, but before the sentencing phase began, Defendant asked the court to
vacate the murder verdict because of this omission in the verdict-director. He seeks review of
the court’s refusal to vacate as a preserved error. Under both reviews, we find that the
inadvertent omission of this paragraph from the verdict-director in this case could not have
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adversely influenced or misled the jury and is, therefore, not a reversible error. See State v.
Drisdel, 417 S.W.3d 773, 782-83 (Mo. App. E.D. 2013).
Defendant contends that had the jury known that life without parole was the only
sentence that could be imposed if they found him guilty of first-degree murder, it is likely they
would have considered the lesser offenses of second-degree murder and voluntary manslaughter
that had also been submitted. We disagree. First, the jury was aware that the mandatory
sentence for first-degree murder was life without the possibility of probation or parole because
that was discussed during voir dire, just days before they retired to deliberate on guilt. No
prospective jurors expressed any concern with that being the mandatory punishment for first-
degree murder. Though it is not a court instruction, it is entirely proper for the jury to be
informed in voir dire of the proper range of punishment for an offense. Id. at 783. It is mere
speculation to assume that including the same information in the verdict-director would have
resulted in a different verdict.
Realistically, the issues of guilt and punishment are often interrelated in jury
compromises, particularly where several grades of offenses are submitted for consideration. But
that is not the purpose of the MAI’s requirement for including the punishment paragraph in
certain situations. In other words, the punishment information is not given to the jury in order to
inform its decision on guilt. That would be quite contrary to the notion that the jury is not to
consider punishment when assessing guilt. See State v. Ware, 793 S.W.2d 412, 415 (Mo. App.
E.D. 1990) (arguments by counsel that jury should determine guilt, or level of guilt, on basis of a
desired punishment have been consistently treated as improper and prejudicial). Rather, as the
Notes on Use reveal, inclusion of the punishment paragraph is necessary for logistic purposes:
when the trial is not bifurcated and the jury is assessing the mandatory punishment at the same
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time as guilt, the guilt and sentencing information must be included in the same verdict-director
and verdict form. But the jury is still to determine guilt first. See State v. Hunter, 586 S.W.2d
345, 348 (Mo. banc 1979). “While it may be within reason that a jury might consider the
punishment concurrently with guilt, such reasoning does not compel the conclusion that a jury
would decide to convict on a felony submission, not on the basis of guilt, but on the basis that it
could control the assessment of punishment.” Id. at 348. Thus, even if the jury did not recall
from voir dire that first-degree murder carried a mandatory life sentence without parole, it is
mere speculation that such information on the verdict-director would have caused them to
convict, not on the basis of guilt, but in order to control and impose a lesser sentence.
Points IV and V are denied.
The judgment is affirmed.
ROBERT G. DOWD, JR., Judge
Lisa Van Amburg, C. J. and
Lawrence E. Mooney, J., concur.
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