State v. Wolfe

DUANE BENTON, Judge.

Defendant Danny R. Wolfe was convicted of two first-degree murders, two counts of armed criminal action, and one count of first-degree robbery. He received two death sentences, and three terms of life imprisonment. This Court has exclusive jurisdiction of the appeal. Mo. Const., art. V, sec. 3. Affirmed.

I.

On review, this Court accepts as true all evidence favorable to the State, including all favorable inferences from the evidence, and disregards all evidence and inferences to the contrary. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993); State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). This Court does not sit as a thirteenth or super juror, voting “guilty” or “not guilty” on the charge. Grim, at 413, 414.

On February 19, 1997, defendant went to the home of a co-worker in Camdenton, and asked to leave a bag there. Agreeing, the co-worker placed the bag in the laundry room. Another man staying at the house looked in the bag and saw what looked like a gray or white wig.

That evening, defendant went to a bar in Lake Ozark. He met Jessica Cox, introduced himself as “Danny,” and played a game of pool with her. Afterward, they sat at the bar and talked.

Defendant asked Cox if she was “into drugs.” She said yes. Defendant asked if she could “get rid of’ some drugs for him. She agreed.

When the bar closed, defendant and Cox left in his pick-up. Defendant said that he would give her a ride home and could get her the drugs. The two then stopped by defendant’s room at a motel for about 20 minutes.

*253Defendant said that they should go to Camdenton. He drove them to the coworker’s house, where he retrieved the bag left earlier. They then returned to the motel.

Defendant told Cox that they would have to go to Greenview to “pick up some money,” but could not leave until 4:30 a.m. Cox asked defendant to take her home. Defendant replied that it would be worth her wait. She decided to stay.

Defendant took some silver handcuffs from the bag. Cox asked why he had them. Defendant said not to worry, he wasn’t going to use them on her. The pair watched television and talked for about two hours.

Around 4:30 a.m. on February 20, the two drove into Camdenton. Defendant stopped at a gas station. Handing over $6, he told her to buy a pair of jersey gloves - which she bought.

They headed toward Greenview on Highway 7, by the home of Leonard and Lena Walters. After about a quarter mile, defendant pulled into a gravel road, turned the truck around, and parked facing the highway. It was about 5:15 a.m.

Defendant announced that he planned to rob the Walters, whom he described as “loaded.” Defendant had been to the house before and said that the Walters had a car for sale. He had indicated that he would return with his girlfriend. Defendant instructed Cox to test-drive the car with Mr. Walters for about 15 minutes, while he would stay behind, handcuff Mrs. Walters, and rob them. Defendant told Cox to call him “Sam” around the Walters and to use “Jo-Jo” for herself.

Defendant was wearing black, shiny, parachute pants and a camouflage jacket, which he had changed into at the motel. He took out the handcuffs, put on the jersey gloves, and polished the handcuffs. Defendant gave Cox a pair of gloves that were already in the truck.

After waiting in the truck for about two hours, defendant drove back to the Walters’ house and pulled into the driveway. He then knocked on the front door. Mrs. Walters came to the door, wearing what “looked like a nightgown.” Defendant entered the house and came back out with Mr. Walters. They walked to a red Cadillac in front of the house.

Cox joined them at the Cadillac. Mr. Walters invited Cox to test-drive it. Defendant asked Mr. Walters if he was going along. Mr. Walters replied there was no reason to. Cox said she would appreciate it, to tell about the car. Mr. Walters then got in the front passenger seat. As Cox put the car in drive, defendant jumped into the passenger side back seat, saying, “Let’s go, Jo-Jo.”

Cox drove toward Greenview. Mr. Walters and defendant discussed the car. After driving a while, Cox turned around, returning toward the Walters’ house.

Hearing a “loud bang,” Cox swerved and glanced over to see Mr. Walters’ head fall forward with blood coming out of his mouth. Defendant had shot Mr. Walters in the back of the head. Cox then saw defendant pull what looked like a gun away from Mr. Walters’ head.

Defendant directed Cox to keep driving. He patted down Mr. Walters and pulled out his wallet. Opening it, he said, “This guy’s loaded.” Cox looked over and saw a large amount of cash.

As Cox pulled into the driveway, defendant told her to park the car where it had been earlier. Before the car fully stopped, defendant jumped out and walked straight to the house. He told Mrs. Walters that he needed to use the phone because Mr. Walters had had a heart attack.

Once in the house, defendant shot Mrs. Walters in the chest with a shotgun while she crouched in front of him. This wound did not kill her. Defendant then stabbed Mrs. Walters - once on the left side, and four times on the right side - while she begged, “Please God, no, no, no.” The fatal stab was to the heart. Mrs. Walters *254did not die immediately, remaining conscious for another three minutes.

Cox heard a “loud bang,” “a bunch of ruckus” from the house, and then silence for about ten minutes. Defendant left the house carrying a safe, which he loaded in the back of the truck. As they left, Cox asked if defendant was going to kill her. He replied that she was his partner, so he was not going to kill her.

Defendant pulled off the road, unloaded the safe, opened it with some tools, and rummaged through it, discarding some contents but stuffing others in his pockets. Defendant then climbed into the truck and drove away. Shortly, he turned the truck around, and retrieved his tools.

Defendant then drove to a subdivision, where he had worked as a painter. Defendant said he was going to get rid of the gun. After getting a key from one house, defendant drove to another area and left the truck for about 10 or IB minutes. When he returned, he was in painter’s clothes. Cox did not see the black, nylon pants he was wearing earlier. Defendant told Cox he had thrown the gun into the lake.

Defendant then stopped by a cigarette store where he was painting later that day. The owner testified that defendant said he had to go get some paint.

After leaving the cigarette store, defendant handed Cox a large amount of cash. He said it was enough to keep her quiet; if she told the police, she would be charged as an accessory to murder; or if she got bail, she would be killed.

Cox asked to be dropped off at the hospital. There, Cox called her fiancé between 8:30 and 9:30, saying she had been kidnapped, the kidnapper had been caught, and it was all over. Cox’s fíancé’s truck was broken, so he told her to call her friends. Two friends testified that they received phone calls from Cox around 9:00, asking them to pick her up.

After dropping Cox off, defendant purchased paint from a supply store, at 9:12 a.m. (according to the invoice).

Cox claims she lied about the kidnapping story because her life would be in danger if she told the truth. Cox told the kidnapping story to at least three other people. The story spread and became the “talk of the town.”

Later that week, a local bartender called Cox’s fiancé. He said that a man resembling Cox’s kidnapper had come in, and someone had recognized him and attacked him. The man attacked was, in fact, defendant. The police were called, and Cox admitted to her fiancé that she fabricated the kidnapping story.

Cox then told her fiancé that she had witnessed one, and maybe two, murders and feared for her life. She consulted an attorney. Through negotiations with the prosecuting attorney, Cox received immunity in exchange for her testimony.

Cox detailed to the police what happened to the Walters. She took them to where defendant rummaged (and left) the safe. Investigating the scene, police examined the safe, and found loose change (including quarters) and other contents strewn about the area. She showed them defendant’s motel room and truck. She identified the house where they picked up the bag. She confirmed a photograph of defendant. She pointed out the subdivision where defendant changed clothes.

When defendant was arrested, three sets of silver handcuffs were in his room. Defendant waived his Miranda rights. At the beginning of the interview, defendant was calm, showing little emotion. As police related Cox’s details, defendant became nervous and apprehensive.

Police searched the subdivision where defendant changed clothes. In a storage area, they discovered a pair of black pants, and tennis shoes with the same pattern as shoeprints on the floors of the Walters’ house. From defendant’s truck, they *255seized a pair of jersey gloves, and a pry bar.

In the dumpster at defendant’s motel, police retrieved a .25 caliber cartridge, consistent with a misfire from a .25 caliber gun. Also in the dumpster were a bag with a camouflage jacket and a synthetic “wig or beard,” another bag containing two boxes of .25 caliber rounds, three ring boxes, and various papers with defendant’s name on them.

Mr. Walters was shot with a .25 caliber gun. A spent cartridge was found on Mr. Walters’ back collar and a live round on the back seat of the Cadillac.

The Walters’ bedroom was in shambles, with drawers open, items littering the room, a shotgun on the floor, and a .22 rifle laying across the bed. A live .25 cartridge lay on the kitchen floor, near a six- to eight-inch fillet knife. Footprints, in dried dirt, also appeared on the kitchen floor. Mrs. Walters’ body was face down in the hallway, with cuts consistent with the fillet knife. She also had a shotgun wound to the chest.

In addition to Cox’s testimony, the State called Paul Hileman, who was in the Camden County Jail at the same time as defendant. Hileman testified that defendant bragged to him about the murders, relating several details. At the time of trial, Hileman was in prison for first-degree property damage. Hileman had two prior convictions of burglary and stealing, two prior forgery convictions, and two prior interference-with-custody convictions. The defense presented two impeachment witnesses against Hileman.

The local bartender also testified that about a week before the murders, defendant offered to sell him a .25 caliber handgun. He then testified that about a week after the murders, defendant “sold” him a bag full of loose quarters.

After deliberating for 12 hours, the jury returned a guilty verdict. It later returned two death sentences, finding five statutory aggravating circumstances as to Mr. Walters, and six aggravators as to Mrs. Walters.

II.

Defendant claims that the circuit judge wrongly allowed the State to question Cox about the immunity agreement. Defendant argues that the prosecutor implied to the jury that he was monitoring Cox’s testimony, knew she was testifying truthfully, and thus effectively vouched for her truthfulness.

During direct examination, Cox testified that she did not know what “immunity” was when she first spoke with her attorney, nor initially ask him about immunity as a precondition to telling her story. Cox’s direct examination took 95 transcript pages, of which three or four questions mention immunity. The immunity agreement was not mentioned in direct examination.

On cross-examination, Cox noted that it was her attorney who contacted the prosecutor and obtained the immunity for her. Cox said that when she talked to the police, she understood that she would not be charged with a crime.

On redirect, the State offered the immunity agreement into evidence. Cox acknowledged reading it before giving her statement, testifying at the preliminary hearing, or being deposed.

Defense counsel objected to introduction of the agreement, renewing an earlier motion to exclude any evidence that the State’s agreement was for “truthful testimony.” The State responded that defense had opened the door, by inquiring about the agreement. The State further claimed that Cox’s state of mind was at issue, which the agreement tended to prove.

Defense counsel countered that because the agreement specifically referenced Cox’s promise to give “truthful testimony,” it invaded the province of the jury, and further, improperly bolstered Cox’s testimony.

*256The trial court overruled the objections, admitted the agreement, and allowed publication to the jury.

Cox then testified:

PROSECUTOR: Have you had an opportunity to read all of [the agreement]?
COX: Yes, sir.
Q: And did you read all of that before you signed it?
A: Yes, sir.
Q: And did you have an opportunity to ask your attorney any questions before you signed it?
A: Yes, sir.
Q: Prior to signing it and after having read that letter, were there any terms of that letter which you did not understand?
A: No, sir.
Q: Were there any terms of the immunity agreement which you did not understand?
A: No, sir.
Q: Were there any terms of the immunity agreement which you did not take seriously?
A: No, sir.
Q: After signing that letter and prior to speaking to law enforcement, did you have any doubt that you would be subject to prosecution if you did not tell the truth?
A: Yes, sir. No, sir. Can you repeat that question? I didn’t quite understand it.
DEFENSE COUNSEL: Your Honor, I’m going to continue to object based on improper bolstering.
THE COURT: Overruled. You may continue ...
PROSECUTOR: When you signed that letter and before you talked to law enforcement, you read the letter and in the letter - everyone has read it now and you just read it, and it states that you’ll be prosecuted if you don’t tell the truth?
A: Correct.
Q: Did you have any doubt that was true?
A: No.
DEFENSE COUNSEL: Objection.
[BENCH DISCUSSION HELD]
[[Image here]]
COURT: Overruled.
[[Image here]]
A: No, I had no doubt.
Q: Did you have any doubt that if you lied, as the letter states, the deal was off?
A: I had no doubt.

On recross, Cox stated that as part of the deal, she had to satisfy the prosecutor. Cox acknowledged that the agreement stated that she could answer the same question with the same answer, regardless of how many times it was asked, as long as she told the truth.

Vouching

Although defense counsel never specifically objected to “vouching” at trial, she did renew a pre-trial motion that raised the issue of vouching. Vouching - sometimes called “personal vouching” - occurs when a prosecutor implies that he or she has facts that are not before the jury for their consideration. State v. Mease, 842 S.W.2d 98, 109 (Mo. banc 1992), cert. denied 508 U.S. 918, 113 S.Ct. 2363, 124 L.Ed.2d 269 (1993).

That did not occur here. The jury had all the facts about the immunity agreement. After all, an immunity agreement not only supports the witness’ credibility by showing an interest to testify truthfully, but also impeaches the witness’ credibility by showing an interest in testifying favorably for the government, regardless of the truth. United States v. Drews, 877 F.2d 10, 12 (8th Cir.1989). By the end of Cox’s testimony, the jury could consider her credibility in light of the agreement. See *257State v. Hanes, 729 S.W.2d 612, 618 (Mo.App.1987).

Defendant invokes the Sixth Circuit’s opinion in United States. v. Francis, 170 F.3d 546 (6th Cir.1999). There, the prosecutor explained during opening statement that if two witnesses testified truthfully, she would recommend lighter sentences for them. Id. The prosecutor told the jury that her recommendation depended on whether she personally believed them. Id. at 551. During direct examination, the prosecutor questioned one witness in detail about the negotiation of the plea agreement, emphasizing that the agreement materialized only after the prosecutor believed the witness. Id. The Francis court, however, concluded that the testimony about agreements might have been “harmless error” if it were the only prosecutorial impropriety in that case. Id. at 552 n. 2. See United States v. Kroh, 915 F.2d 326, 331-32 (8th Cir.1990) (en banc).

Here, Cox already had a full grant of immunity and was not subject to the prosecutor’s recommendation in a pending case. During opening statements, the prosecutor mentioned, only once in passing, that Cox had “full immunity for her complete cooperation and truthful testimony.” Moreover, the prosecutor never elicited details of the negotiation, or related his personal belief in her account of the murders. The prosecutor did not state that her immunity was subject to his independent judgment of whether she was telling the truth.

Nor is this case like State v. Bohannon, 361 Mo. 380, 234 S.W.2d 793 (1950). Bo-hannon prohibits the prosecutor from reading to the jury the charges and the jurat - the prosecutor’s affidavit - stating that the facts in the information were true, according to the prosecutor’s best information and belief. Id. at 797. In this case, the prosecutor did not directly vouch for the truthfulness of the charge.

Bolstering

The specific objection at trial was for “improper bolstering.” Improper bolstering occurs when an out-of-court statement of a witness is offered solely to duplicate or corroborate trial testimony. State v. Ramsey, 864 S.W.2d 320, 329 (Mo. banc 1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994). However, if the out-of-court statement is offered for relevant purposes other than corroboration and duplication - such as rehabilitation - there is no improper bolstering. Id.

Defense counsel cross-examined Cox in detail (for 105 transcript pages) in an attempt to impeach her credibility. Four impeachment witnesses testified against Cox’s reputation in the community for truthfulness.

The State was entitled to attempt to rehabilitate her on redirect examination. The introduction of the agreement was not improper bolstering. See United States v. Willis, 997 F.2d 407, 415 (8th Cir.1993).

Publication

Defendant also complains that the trial court erred in allowing each member of the jury to view a copy of the agreement. Jury examination of evidence is within the sound discretion of the trial court. Nugent v. Owens Corning Fiberglas, Inc., 925 S.W.2d 925, 931 (Mo.App.1996), citing Sparks v. Consolidated Aluminum Company, 679 S.W.2d 348 (Mo.App.1984). See also State v. Roberts, 948 S.W.2d 577, 596-97 (Mo. banc 1997) (sending exhibit to jury during deliberation is within discretion of trial court). An abuse of discretion exists only if the trial court’s decision was clearly against reason and resulted in an injustice to defendant. Id. That did not happen here.

III.

While cross-examining Cox, defense counsel requested to question her about fabricating a kidnapping story when she was 12 years old, which resulted in another *258person’s arrest. The trial court did not allow the inquiry. Defendant believes this evidence would have impeached Cox’s credibility.

Trial courts have discretion to determine the relevancy of evidence, and appellate courts will reverse that determination only upon a showing of abuse of discretion. State v. Shum, 866 S.W.2d 447, 457 (Mo. banc 1993).

An adverse party may ask a witness about prior criminal convictions, whether felony or misdemeanor. Section 491.050 RSMo 1994.1 A witness’ credibility may not be impeached with evidence of a mere arrest, investigation, or criminal charge, not resulting in a conviction. State v. Wise, 879 S.W.2d 494, 510 (Mo. banc 1994). A witness cannot be impeached by proof of a bad reputation for morality or proof of any specific act indicating moral degeneration. State v. Williams, 337 Mo. 884, 87 S.W.2d 175, 182 (1935). The impeaching testimony should be confined to the real and ultimate object of the inquiry, which is the reputation of the witness for truth and veracity. Id. In other words, specific acts of misconduct, without proof of bias or relevance, are collateral, with no probative value.2

As for bias, the general ban on impeachment of witnesses through proof of prior (unconvieted) misconduct has three exceptions: where the inquiry shows (1) a specific interest; (2) a possible motivation to testify favorably for the State; or (3) an expectation of leniency. State v. Lockhart, 507 S.W.2d 395, 396 (Mo.1974).

None of the “bias” exceptions apply here. First, the alleged prior incident does not demonstrate a specific interest of Cox in the present case. The juvenile incident did not demonstrate a specific bias against defendant. See State v. Johnson, 700 S.W.2d 815, 817 (Mo. banc 1985), cert. denied, 476 U.S. 1119, 106 S.Ct. 1980, 90 L.Ed.2d 663 (1986) (bias of accusing witness is never irrelevant); State v. Hedrick, 797 S.W.2d 823, 827 (Mo.App.1990) (or collateral).

Second, the juvenile incident is not evidence of a possible motive to testify favorably for the State, based on past arrest, investigation, or charge. See State v. Simmons, 944 S.W.2d 165, 179-80 (Mo. banc 1997), cert. denied, 522 U.S. 953, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997).

Third, although Cox received immunity in the present case, it did not relate to her acts as a 12-year-old. Moreover, it is not error to exclude offers to impeach on immaterial or collateral matters. State v. Taylor, 486 S.W.2d 239, 244 (Mo.1972).

As for relevance, the trial court properly exercised its discretion in excluding evidence of Cox’s fabrication of a kidnapping story when she was 12 years old. As Cox was about 23 at the time of trial, over 10 years had passed since she supposedly lied about being kidnapped as a child. The juvenile incident was collateral to the issues in the trial, and too remote in time to be relevant. See State v. Brotherton, 266 S.W.2d 712, 715 (Mo.1954); State v. Nasello, 325 Mo. 442, 30 S.W.2d 132, 140 (1930).

The dissenting opinion relies on State v. Williams, 492 S.W.2d 1, 6-7 (Mo.App.1973) to argue that a false report to police is admissible regardless of how remote in time. In Williams, the false report occurred “recently” before trial. Id. at 3. False reports to police are evaluated for relevance the same as other evidence. The trial judge did not abuse her discretion in refusing to admit evidence of the juvenile incident.

*259IV.

Defendant asserts that the trial court should have prohibited the prosecutor from discussing Cox’s testimony with her during an overnight recess, in the middle of her direct examination.

Prosecutors may discuss testimony with their witnesses during overnight recesses. See State v. Rack, 318 S.W.2d 211, 217-18 (Mo.1958); cf. State v. Futo, 932 S.W.2d 808, 814-15 (Mo.App.1996), cert. denied, 520 U.S. 1143, 117 S.Ct. 1313, 137 L.Ed.2d 476 (1997) (defendant’s right to consult with counsel during overnight recess). No error occurred here.

V.

Defendant maintains that the trial court should have excluded Paul Hileman as a witness for the State. Hileman testified that while in the Camden County Jail, defendant confessed the murders to him, in detail.

On April 14, 1997, defendant requested the State’s witness list and the substance of any oral statement by defendant. About January 13, 1998, Hileman wrote a letter to a jail sergeant, describing defendant’s confession.

Seven months later, on August 17, 1998, the State endorsed Hileman as a witness, informing defense counsel that defendant confessed to Hileman. On September 4, the State disclosed the letter to the jail sergeant to defense counsel. On October 19 - about three weeks before trial - the State disclosed various other letters written by Hileman, which were used to impeach him on the stand.

The State concedes that it did not timely disclose Hileman and his testimony. The State clearly violated Rule 25.03(A)(2). See State v. Rousan, 961 S.W.2d 831, 843 (Mo. banc 1998), cert. denied, 524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998).

The trial court has discretion whether to impose sanctions for violation of the discovery rules. State v. Whitfield, 837 S.W.2d 503, 507 (Mo. banc 1992). The trial court must tailor the remedy to alleviate harm to the defense. Id. Rule 25.16 makes sanctions permissive, not mandatory. Id. An abuse of discretion exists only if the denial of a sanction results in fundamental unfairness to the defendant. Rou-san, at 843. Fundamental unfairness exists if there is a reasonable likelihood that the failure to disclose affected the result of the trial. Id.

No fundamental unfairness occurred here. The trial court properly overruled defendant’s motion to exclude Hileman - made about three months before trial - because defendant stated that he had enough time to investigate.

Defendant also made two subsequent motions for continuance, which were denied by the trial court. The State agreed to assist with the investigation, and defendant did not object. Defendant has not shown that any relevant evidence would have been discovered or admissible had continuances been granted. The court did not abuse its discretion in overruling these motions.

Defendant argues that he did not have sufficient time to prepare for trial. Despite the State’s failure to follow Rule 25.03(A)(2), no prejudice resulted. Three months was sufficient time to prepare for Hileman’s testimony. See State v. Chambers, 891 S.W.2d 93, 100 (Mo. banc 1994).

Further, although defendant had only three weeks’ notice of the other Hileman letters, he had two months to investigate potential impeachment after Hileman’s endorsement and before disclosure of the letters. That two witnesses impeached Hi-leman shows that there was enough time to perform an investigation. Defendant offered nothing but speculation as to other relevant evidence that, with more time, he could have produced. Likewise, during the two months between the verdict and the hearing on the motion for new trial, defendant produced no new exculpatory or impeachment evidence.

*260The trial court did not abuse its discretion in addressing the violation of Rule 25.03(A)(2). No fundamental unfairness occurred.

VI.

Defendant contends that the trial court wrongly refused to compel disclosure of material that would impeach Hileman: (1) information on his uncharged crimes and (2) questionnaires from an investigation of the Camden County Jail.

Uncharged Crimes

The trial court did not forbid inquiry into Hileman’s past conduct. See Simmons, at 179, citing State v. Joiner, 823 S.W.2d 50, 53 (Mo.App.1991). Impeachment evidence was presented. Hile-man, on cross-examination, admitted to a variety of letters, some implicating him in drug use.

Defendant asserts that he was entitled to additional “information on all uncharged crimes that could be brought against Hile-man,” to prove that Hileman had a bias to testify for the State in exchange for not being charged. This broad request does not specify what information is being sought, or which “uncharged crimes” the trial court should have ordered disclosed.

Defendant may request the trial court to compel disclosure of information on a witness, not otherwise required by Rule 25.03. Rule 25.0⅛. If the request is reasonable, the court may order the State to disclose the information. State v. Simmons, at 179. This decision is subject to review for abuse of discretion, and reversible only if there is a reasonable likelihood that the denial affected the result of the trial. Id.

The court’s refusal to compel further disclosure of Hileman’s uncharged crimes did not affect the outcome of the trial. Defense counsel was able to impeach Hile-man’s testimony with evidence of his extensive convictions, drug use, lies to his probation officer (and others), and attempts to tamper with a witness. More evidence of Hileman’s illegal activities “could hardly have had a negative impact on the jury’s view of his character given what they already knew.” Id.

Breen Questionnaires

Hileman mailed marijuana from inside the Camden County Jail to the local newspaper and various officials, in an attempt to expose corruption. The Highway Patrol investigated, and defense counsel received a copy of the investigation report. However, defense counsel did not receive copies of questionnaires that Sergeant Breen circulated to personnel of the Jail. Defendant claims that the questionnaires likely contained or would lead to admissible evidence against Hileman. After inspecting the questionnaires in camera, the trial court overruled defendant’s request to examine them.

Defendant moves this Court to provide the questionnaires to defense counsel, or in the alternative, to review them to determine if they should have been disclosed at trial. (The State does not object to this Court’s in camera review of the questionnaires.)

This Court reviews for abuse of discretion to determine if there is a reasonable likelihood that the denial affected the result of the trial. Id. This Court has examined the questionnaires, in camera, and finds no evidence (or material likely to lead to admissible evidence). See Simmons, at 180 n. 4. The trial court did not err in overruling defendant’s motion.

VII.

Defendant claims that the trial court abused its discretion by not publishing to the jury 13 letters written by Hile-man to various people.

The decision to publish evidence to the jury is within the discretion of the trial court. Nugent v. Owens, at 931. An abuse of discretion exists only if the trial court’s decision was clearly against reason *261and resulted in an injustice to defendant. Roberts, at 597.

Hileman acknowledged each letter, the number of letters, and their substance. The trial court admitted them into evidence “for purposes of the record.” No abuse of discretion occurred.

VIII.

Defendant asserts that the trial court should have admitted an affidavit by a friend of Cox, stating that Cox had told her that she and two men - not including defendant - murdered the Walters.

The friend did not appear at court. Defense counsel told the judge that she had been trying to contact the friend, but no one had seen her in weeks. Defendant orally requested a continuance. The State replied that it also could not find the friend. The trial court denied a continuance.

Defense counsel then moved to introduce the affidavit into evidence. The State objected because it never had the opportunity to question the witness, and the affidavit was not subject to cross-examination.

Oral Motion for Continuance

Continuance is within the sound discretion of the trial court. State v. Thompson, 985 S.W.2d 779, 785 (Mo. banc 1999). The ruling will be reversed only upon a very strong showing of abuse of discretion. Id.

By Rule 24.10(b), a motion for continuance based upon an unavailable witness must show “reasonable grounds for belief that the attendance or testimony of such witness will be procured within a reasonable time.” There was no evidence that the friend could be located within a reasonable time. The trial court properly denied defendant’s oral motion for continuance.

Exclusion of Affidavit

An affidavit may be admitted upon stipulation by both parties. State v. Zimmerman, 886 S.W.2d 684, 691 (Mo.App.1994). In this case, the State “vehemently oppose[d]” the introduction of the affidavit.

Therefore, the general ban on hearsay evidence applies. On cross-examination, defense counsel asked Cox about the friend:

Q: Before the time that you went and spoke with your attorney on Thursday, did you ever tell [the friend] that you had been with two men when the Walters were murdered?
A: No, ma’am.
[[Image here]]
Q: Did you see [the friend] between the time of the murders and Thursday when you go and talk to your attorney?
A: No, ma’am.
Q: You didn’t see her at a convenience store or a gas station?
A: No, ma’am.
Q: Never talked to her - have you ever talked to her about these murders?
A: No, ma’am ...

The affidavit alleged that Cox had spoken about the murders at a “Jiffy Stop” with the friend, who advised her to go to the police. Defendant claims that the affidavit contained a prior inconsistent statement by Cox. The foundation for a prior inconsistent statement is an inquiry of the witness (1) whether she made the statement and, (2) whether the statement is true. State v. Bowman, 741 S.W.2d 10, 14 (Mo. banc 1987), cert. denied, 488 U.S. 829, 109 S.Ct. 83, 102 L.Ed.2d 60 (1988). While defense counsel asked Cox if she made the statement, counsel never asked if the “prior inconsistent statement” was true. A proper foundation for impeachment did not occur.

Moreover, before a document may be received in evidence, it must meet other foundational requirements, such as authentication and hearsay. Hadlock v. Director of Revenue, 860 S.W.2d 335, 337 *262(Mo. banc 1993). First, because the friend was not present to introduce or authenticate the affidavit or the statement, there was no foundation from personal information. Second, because the affidavit was an out-of-court statement itself, and contained yet another out-of-court statement, it was hearsay within hearsay. Hearsay within hearsay is admissible only where both hearsay statements are within exceptions to the hearsay rule. State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997).

In sum, the affidavit was never subject to cross-examination. There was no opportunity to examine the statement for credibility. State v. Logan, 344 Mo. 351, 126 S.W.2d 256, 259 (1939). The court did not abuse its discretion in excluding the affidavit.

IX.

Defendant argues that the court wrongly admitted evidence of three ring boxes and rings, found in the dumpster at defendant’s motel. Defendant asserts that nothing linked the rings or boxes to defendant or the Walters.

Admission of evidence is evaluated for abuse of discretion. Roberts, at 596-97. The ring boxes were found with other items in the dumpster that were associated with the defendant and linked to the murders.

If evidence is logically relevant to a fact in issue, it may be admissible if its probative value outweighs its prejudice. State v. Gray, 887 S.W.2d 369, 386 (Mo.banc), cert. denied, 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995). Here, the probative value outweighed any prejudice to defendant.

Although no direct evidence linked the rings or ring boxes to the Walters, they were admissible because they were found with other evidence. The general ban on evidence of uncharged crimes or wrongful acts does not bar evidence of the circumstances or the sequence of events surrounding the offense charged. State v. Morrow, 968 S.W.2d 100, 107 (Mo. banc), cert. denied, 525 U.S. 896, 119 S.Ct. 222, 142 L.Ed.2d 182 (1998). This evidence is admissible to present a complete and coherent picture of the events that transpired. Id.

Finally, any prejudice was minimal, as the State did not dwell on the rings or ring boxes, at any time during trial. See State v. Wright, 582 S.W.2d 275, 279 (Mo. banc 1979). No abuse occurred.

X.

Defendant claims the trial court wrongly allowed the State, during the guilt phase, to argue that (1) there was no evidence that Cox had been listening to a police scanner at the “safe house,” and (2) that the jury should place themselves in Cox’s position when considering how she “handled” the situation. Both points were preserved.

Police Scanner at the Safe House

Cox’s cross-examination included this exchange:

DEFENSE COUNSEL: Was there a scanner available at the safe house?
COX: I believe so, yes.
DEFENSE COUNSEL: And you were able to hear some of the investigation that was going on?
COX: Yes.

Defense counsel then summarized in closing argument, “She listens to a scanner that is there and is able to hear of the investigation and arrest of [defendant].” In rebuttal, the State argued, “There was no evidence that Jessica Cox was at the safe house listening to a scanner about the details of the investigation.” Defense objected, but was overruled.

The State concedes error. Review, however, is not for error, but for prejudicial error. State v.Walls, 744 S.W.2d 791, 797-98 (Mo. banc), cert. de*263nied 488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988).

First, defense counsel misstated the evidence as well. Cox was able to hear only “some of the investigation.”

Second, defendant was not prejudiced by the prosecutor’s misstatement of the evidence. Before going to the safe house, Cox told the same basic story as at trial about defendant, the crimes, the crime scene, and other related scenes.

Defendant frames the misstatement of evidence as a constitutional violation (due process, confrontation clause, right to present a defense, right to access justice through the courts of Missouri, right to a reliable verdict and sentencing, cruel and unusual punishment). Under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), this Court has the duty to decide whether the prosecutor’s comments resulted in error that was harmless beyond a reasonable doubt State v. Kilgore, 771 S.W.2d 57, 62 (Mo. banc 1989); State v. Dexter, 954 S.W.2d 332, 340 n. 1 (Mo. banc 1997). This Court finds that the comments were harmless error beyond a reasonable doubt.

Improper Personalization Claim

Defendant contends that the State improperly personalized the argument. In closing argument, defense counsel attacked Cox’s credibility, stressing her decision not to flee defendant and the crime scene, concluding that “she got away with the murder of Lena and Leonard Walters.”

In rebuttal, the State argued:
And the big question is: Why didn’t Jessica try to run? And I think all of us sitting here in this comfortable courtroom with all of these officers protecting us, we could probably ask that question. Why didn’t she run.. Sure, now we know he was gone for ten minutes.
You just saw that man - look at him, that man - you just saw him shoot an old man in the back of the head and he’s got a gun and you’re out in the middle of nowhere at Port Valero, so why don’t you get up ...
[[Image here]]
Do you make a run for it or are you going to try to appease him, agree to his instructions not to go to the police, take his money to keep, quote-unquote, your mouth shut? ...

Defense counsel objected, as improper personalization. The judge overruled the objection.

The use of the word “you” does not necessarily mean improper personalization. State v. Richardson, 923 S.W.2d 301, 323 (Mo. banc 1996). The prosecutor’s use of the word “you” has no special significance when the argument is considered in context. Id.

An argument is personalized only when it suggests a personal danger to the jury or their families. State v. Rhodes, 988 S.W.2d 521, 528 (Mo. banc 1999). None of the prosecutor’s statements suggest personal danger to the jury or their families. No error occurred.

XI.

Defendant asserts that the trial court, during sentencing phase, improperly allowed into evidence a 3-foot by 4-foot “blowup” of photographs of the victims, after 8½ by 11 inch photographs had already been introduced. Defendant claims the blowup inflamed the jury’s passions.

The State responded:
Yes, Your Honor, the State does intend to prejudice the defendant with these photographs. These photographs reveal the result of his conduct, and we’re now to the sentencing phase of this case. The blowups of photographs which have already been admitted and passed to the jury. This will allow me to make reference to them during my argument with *264them on the tripod without having to interrupt my closing by passing it.

The court overruled the objection.

During closing argument, the State referred to the blowup, “And I don’t show you this photo to gross you out. You’ve actually already seen it, but I don’t want to have to pass it around to everybody. But when you’re deciding what the appropriate punishment is for Mr. Wolfe, you have to remember what he did, what he left behind.”

Gruesome crimes produce gruesome, yet probative, photographs, and a defendant may not escape the brutality of his own actions. State v. Feltrop, 803 S.W.2d 1, 11 (Mo. banc), cert. denied 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991).

The issue is relevance, which lies in the trial court’s discretion. State v. Shaw, 636 S.W.2d 667, 672 (Mo. banc), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982). Photographs may be used in the sentencing phase of a capital case to establish the aggravating circumstances. State v. Brooks, 960 S.W.2d 479, 501 (Mo. banc), cert. denied, 524 U.S. 957, 118 S.Ct. 2379, 141 L.Ed.2d 746 (1997); State v. Sandies, 740 S.W.2d 169, 177 (Mo. banc), cert. denied, 485 U.S. 993, 108 S.Ct. 1303, 99 L.Ed.2d 513 (1987).

Because the jury had already seen smaller versions of the photographs during the guilt phase, and because they served legitimate purposes in closing argument, there was no abuse of discretion.

XII.

Defendant objects to the definition of “reasonable doubt” in MAI-CR3d 302.04 and 313.30A. This Court again rejects this argument. State v. Harris, 870 S.W.2d 798, 811 (Mo. banc), cert. denied, 513 U.S. 953, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994).

XIII.

This Court determines whether: (1) the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) the evidence supports the finding of a statutory aggravating circumstance; and (3) the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering the crime, strength of the evidence, and the defendant. Section 565.035.3(1) - (3).

After independent review of the record, this Court finds that the death sentences in this case were not imposed under the influence of passion, prejudice, or any other arbitrary factor.

This Court further determines that the evidence supports the statutory aggravating circumstances. In this case, the jury found the following statutory aggravating circumstances as to Leonard Walters: (1) murder committed while engaged in another murder; (2) murder committed for purpose of obtaining money or things of monetary value; (3) murder committed during first-degree robbery; (4) murder committed because of potential witness status; and (5) defendant had one or more serious assault-style criminal convictions. The following statutory aggravating circumstances were found as to Lena Walters: (1) murder committed while engaged in another murder; (2) murder committed for purpose of obtaining money or things of monetary value; (3) murder committed during first-degree robbery; (4) murder committed because of potential witness status; (5) defendant had one or more serious assault-style criminal convictions, and (6) murder involved depravity of mind, and was outrageously and wantonly vile, horrible and inhuman.

Finally, this Court determines that the death sentences were not excessive or disproportionate to the penalties imposed in similar cases. The issue in proportionality review is not whether any similar case can be found where the jury imposed a life sentence, but rather wheth*265er the death sentence is excessive or disproportionate in light of similar cases. State v. Parker, 886 S.W.2d 908, 934 (Mo. banc), cert. denied, 514 U.S. 1098, 115 S.Ct. 1827, 181 L.Ed.2d 748 (1994); State v. Shurn, 866 S.W.2d 447, 468 (Mo. banc), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1993); State v. Mallett, 732 S.W.2d 527, 542 (Mo. banc), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987).

As in State v. Barnett, 980 S.W.2d 297, 310 (Mo. banc), cert. denied, 525 U.S. 1161, 119 S.Ct. 1074, 143 L.Ed.2d 77 (1998), defendant deliberately attacked, killed and robbed an older couple in their own home, showing a callous, deliberate disregard for human life. See also State v. Walls, 744 S.W.2d 791 (Mo. banc), cert. denied, 488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988); State v. Mathenia, 702 S.W.2d 840 (Mo. banc), cert. denied, 477 U.S. 909, 106 S.Ct. 3286, 91 L.Ed.2d 574 (1986); State v. Battle, 661 S.W.2d 487 (Mo. banc), cert. denied, 464 U.S. 1306, 104 S.Ct. 567, 78 L.Ed.2d 538 (1983).

This Court has upheld death sentences where the defendant murdered multiple victims, for pecuniary gain, to eliminate possible "witnesses, or to burglarize the victim’s home. State v. Parker, 886 S.W.2d 908, 916 (Mo. banc 1994), cert. denied, 514 U.S. 1098, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995); State v. Griffin, 756 S.W.2d 475 (Mo. banc 1988), cert. denied, 490 U.S. 1113, 109 S.Ct. 3175, 104 L.Ed.2d 1036 (1989); State v. Murray, 744 S.W.2d 762 (Mo. banc), cert. denied, 488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988); State v. Schneider, 736 S.W.2d 392 (Mo. banc 1987), cert. denied, 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 871 (1988); State v. Lingar, 726 S.W.2d 728 (Mo. banc), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987); State v. Bucklew, 973 S.W.2d 83 (Mo. banc), cert. denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1998).

In numerous other cases, the death penalty was imposed on defendants who murdered more than one person. State v. Johnson, 968 S.W.2d 123 (Mo. banc), cert. denied, 525 U.S. 935, 119 S.Ct. 348, 142 L.Ed.2d 287 (1998); State v. Clemons, 946 S.W.2d 206 (Mo. banc), cert. denied, 522 U.S. 968, 118 S.Ct. 416, 139 L.Ed.2d 318 (1997); State v. Ramsey, 864 S.W.2d 320 (Mo. banc), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1993); State v. Mease, 842 S.W.2d 98 (Mo. banc), cert. denied, 508 U.S. 918, 113 S.Ct. 2363, 124 L.Ed.2d 269 (1992); State v. Hunter, 840 S.W.2d 850 (Mo. banc), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 732 (1992); State v. Ervin, 835 S.W.2d 905 (Mo. banc), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1992); State v. Powell, 798 S.W.2d 709 (Mo. banc), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1990); State v. Reese, 795 S.W.2d 69 (Mo.banc), cert. denied, 498 U.S. 1110, 111 S.Ct. 1025, 112 L.Ed.2d 1106 (1990); State v. Sloan, 756 S.W.2d 503 (Mo. banc), cert. denied, 489 U.S. 1040, 109 S.Ct. 1174, 103 L.Ed.2d 236 (1988); State v. Young, 701 S.W.2d 429 (Mo. banc), cert. denied, 476 U.S. 1109, 106 S.Ct. 1959, 90 L.Ed.2d 367 (1985).

In addition, a sentence of death was upheld when the murder involved acts of brutality and abuse that showed depravity of mind. State v. Kinder, 942 S.W.2d 313 (Mo. banc), cert. denied, 522 U.S. 854, 118 S.Ct. 149, 139 L.Ed.2d 95 (1996); State v. McMillin, 783 S.W.2d 82 (Mo. banc), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990); State v. Sidebottom, 753 S.W.2d 915 (Mo. banc), cert. denied, 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988); State v. Walls, 744 S.W.2d 791 (Mo. banc), cert. denied, 488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988); State v. Roberts, 709 S.W.2d 857 (Mo. banc), cert. denied, 526 U.S. 1013, 119 S.Ct. 1160, 143 L.Ed.2d 225 (1986).

The dissenting opinion compares this case to State v. Chaney, 967 S.W.2d 47 (Mo. banc), cert. denied, 525 U.S. 1021, 119 S.Ct. 551, 142 L.Ed.2d 458 (1998). There, this Court held the death sentence dispro*266portionate because “the strength of the evidence” was not comparable to evidence in similar cases imposing the death penalty, and “the defendant” had no prior convictions. Id. at 60. In this case, there is an eyewitness, contrary to Chaney’s, express reliance on the absence of an eyewitness. Id. Also, the defendant here has a criminal record: two convictions of second-degree burglary, one conviction of felony stealing, and one conviction of armed robbery.

Defendant filed a “motion for examination and evaluation of procedures and methods utilized for the Court’s proportionality review under section 565.035.” The State filed a motion to strike this motion. Both motions were taken with the ease, and both are now overruled.

Contrary to defendant’s motion, this Court’s proportionality review is constitutional. Proportionality review is not constitutionally mandated, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), and this Court has repeatedly rejected identical claims. State v. Rousan, 961 S.W.2d 831, 854-55 (Mo. banc 1998). Proportionality review is an additional safeguard against arbitrary and capricious sentencing and promotes the even-handed, rational, and consistent imposition of death sentences. Id. at 855. Missouri’s statute is constitutional. Id. at 855.

Affirmed.

PRICE, C.J., LIMBAUGH, COVINGTON and HOLSTEIN, JJ., concur. WOLFF, J., dissents in separate opinion filed. WHITE, J., concurs in opinion of WOLFF, J.

. All statutory citations are to RSMo 1994, unless otherwise indicated.

. The rules on proof of uncharged misconduct by a defendant are different. See e.g. State v. Bernard, 849 S.W.2d 10 (Mo. banc 1993); State v. Dunn, 577 S.W.2d 649 (Mo. banc 1979).