IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT STATE OF MISSOURI, ) Respondent, ) ) v. ) WD83661 ) ANGELA R. HENDERSON, ) FILED: December 21, 2021 Appellant. ) Appeal from the Circuit Court of Buchanan County The Honorable Daniel F. Kellogg, Judge Before Division One: W. Douglas Thomson, P.J., and Alok Ahuja and Karen King Mitchell, JJ. Angela Henderson was charged in the Circuit Court of Buchanan County
with second-degree murder, armed criminal action, and tampering with physical
evidence. The charges arose from a murder in St. Joseph in December 2013.
Henderson was convicted of all three counts following a jury trial in July 2016. This
Court reversed Henderson’s convictions due to instructional error, State v.
Henderson, 551 S.W.3d 593 (Mo. App. W.D. 2018), and a second jury trial was held
in January 2020. The second trial again resulted in Henderson’s conviction on all
three counts, and the circuit court sentenced her to consecutive terms of life
imprisonment for murder, twenty-five years’ imprisonment for armed criminal
action, and three years for evidence tampering.
Henderson appeals. She argues that the circuit court erroneously admitted
the out-of-court statements of her adult son as a “vulnerable person” under
§ 491.075, RSMo, when the court had found him incompetent to testify at trial due to mental incapacity under § 491.060(1), RSMo. Henderson also contends that the court erred by failing to dismiss a juror, after Henderson presented evidence that
the juror had purportedly engaged in non-verbal communication with members of
the murder victim’s family in the gallery. We affirm.
Factual Background Clinton (“Sam”) Justice (the “Victim”) lived in an apartment in St. Joseph.
The Victim was murdered in his apartment in early December 2012.
Henderson dated the Victim “on-again, off-again” for seventeen years prior to
his death. Henderson’s son, Joshua Mollett, was in his early 20s at the time of the Victim’s murder, and spent a lot of time with him.
Kim Keith testified against Henderson at both her first and second trials.
The evidence indicated that Henderson had begun a romantic relationship with
Keith approximately three months before the Victim’s murder. Keith was a drug
dealer, who sold methamphetamine and other drugs. He was also addicted to
methamphetamine. Keith pleaded guilty to second-degree murder for the Victim’s
murder and was serving a fifteen-year sentence. As a condition of his plea
agreement, he was required to testify truthfully against Henderson.
Keith testified that late on the night of Friday, December 7, 2012, or in the
early morning hours of Saturday, December 8, he received a call from Henderson,
indicating that she wanted to buy an eighth of an ounce of methamphetamine from
Keith for $300. When Keith met with Henderson, she was accompanied by Mollett,
whom Keith had known since Mollett was a child. Henderson and Mollett did not
have the money to buy the drugs, so Keith accompanied them in their car to the
Victim’s apartment building, so that Henderson could get the necessary money from
him.
Keith testified that Henderson initially went in to the Victim’s apartment
alone, while Keith and Mollett waited in the car. After waiting for several minutes, Keith and Mollett went to the Victim’s apartment.
2 Keith testified that the Victim refused to give Henderson money for her to
purchase methamphetamine from Keith. Keith testified that, on a signal from
Henderson, Mollett walked behind the Victim and pulled his head back. Henderson
then cut the Victim across the throat with a knife.
Because she had not heard from the Victim, one of his daughters and her
husband went to his apartment on the evening of December 8 to check on him.
They found the Victim lying face down in a pool of blood in front of the recliner in
the living room. After not finding a pulse, the daughter’s husband called 911.
When police arrived, they found that the Victim had wounds to his neck,
chest, and right thumb. He had one sock on and one off. A bloody sock was stuck to
the wounds on his neck. The Victim had blood on the bottom of his bare foot and on
the bottom of the sock on the other foot. Police found blood and bloody footprints on
the carpet from the recliner to the front door and smears of blood on the front door.
The recliner’s right armrest was also saturated with blood. Blood splatter patterns
indicated that the Victim’s injuries had occurred in front of the recliner.
The Victim had been stabbed in the upper chest, striking a rib and cutting
his carotid artery. A knife wound to the Victim’s neck sliced the jugular vein and
created a small hole in the trachea. In addition to the neck and chest wounds, the Victim had a defensive wound to his right thumb. He died from massive blood loss.
According to his daughters, the Victim was meticulous about his apartment
and kept it very clean at all times. Although he no longer smoked, the Victim
allowed others to smoke in his apartment. His daughters testified, however, that
the Victim would always empty and wash the ashtrays immediately after his guests
were done smoking. Police found three cigarette butts in an ashtray in the living
room of the Victim’s apartment. Henderson’s DNA was found on one of the butts.
Mollett’s DNA was found on the other two cigarette butts, and on a cup found in the apartment. Given the Victim’s housekeeping habits, the presence of these cigarette
3 butts suggested that Henderson and Mollett had been in the Victim’s apartment
shortly before his murder.
Henderson spoke with police twice shortly after the Victim’s body was found,
and gave them inconsistent stories about when she had last seen him. Henderson
denied that she was present when the Victim was murdered.
Becky Osborn was a close friend of the Victim’s family, and also knew
Henderson and Mollett well. In March 2013, almost four months after the murder,
Osborn saw Mollett and Henderson in her old neighborhood. When Henderson
went into a building, Osborn spoke to Mollett about what he had witnessed on the
day of the murder. Mollett “just kind of emotionally broke down.” He told Osborn
that he and Henderson were present when Keith killed the Victim. Osborn then
contacted the investigating detective and told him what she had just heard.
On April 2, 2013, police arrested Henderson and Mollett and interviewed
them separately. Mollett told detectives that he and Henderson were at the
Victim’s apartment one afternoon when Keith called Henderson and showed up
shortly thereafter. About twenty to thirty minutes later, Keith and the Victim
began arguing because the Victim said he did not have money that he owed Keith
for drugs. Mollett said that he saw Keith stab the Victim in the neck. He said that after being stabbed in the neck, the Victim attempted to use a sock to staunch the
blood flow and save himself, but it was too late. (The police had closely guarded the
fact that the Victim had used one of his socks in this manner.) Mollett said that
Keith gave him the murder weapon, a distinctive “scorpion” knife belonging to the
Victim. Mollett and Henderson left walking in one direction and Keith in another.
After walking approximately twenty minutes, Henderson told Mollett to dispose of
the knife, so he threw it in some bushes. The knife was later located by two men in
their side yard and retrieved by police. The Victim’s DNA was found on the blade of the knife.
4 In her interview that day, Henderson told detectives that she did not know
Keith at the time of the murder but started dating him in January 2013. She said
that after she broke up with Keith in February, Mollett told her that Keith had
admitted to killing the Victim.
In July 2013, a psychologist and certified forensic examiner conducted a
competency examination of Mollett in connection with his own criminal prosecution.
The psychologist diagnosed him with mild mental retardation, with deficits in
reasoning, problem solving, abstraction, and judgment. A general adult psychiatrist
at Family Guidance Center testified that Mollett had been a patient there for
various mental illnesses between 2001 and 2012. During his time at the Center,
Mollett had been diagnosed with bipolar mood disorder Type 1, attention-deficit/
hyperactivity disorder (ADHD), and either borderline intellectual functioning (IQ
between 71 and 84) or mild mental retardation (IQ between 55 and 70). Mollett was
found incompetent to stand trial in his own prosecution in July 2014. The charges
against him were ultimately dismissed without prejudice, and he was committed to
a mental-health facility.
While in the Buchanan County jail, Henderson was recorded on October 23,
2013, saying during a phone call, “They have charged [Mollett] with robbery. Why did they charge him with robbery?” A female on the other end of the line said,
“They say he took [the Victim’s] pills.” Henderson responded, “No. I know who took
– who got [the Victim’s] pills.” The unknown female said, “You need to shut the f***
up.” Henderson was recorded during a later call asking a female on the other end,
“You got the paperwork that I sent you in the yellow envelope?” The female asked
“What paperwork is that?” Henderson replied in a low voice, “Testimony. Yours.”
The female responded, “Well, yeah, I got everything you sent me.”
On January 28, 2015, the State moved for the circuit court to enter an order allowing Mollett to testify at Henderson’s first trial. In the alternative, the State
5 requested that, if the circuit court found Mollett to be incompetent, that the court
allow his out-of-court statements to be admitted under §491.075, RSMo. The circuit
court denied the State’s motion to allow testimony from Mollett, finding that Mollett
was incompetent to testify due to mental incapacity under § 491.060(1), RSMo. The
circuit court scheduled a hearing on March 9, 2015, to determine if Mollett’s out-of-
court statements to Rebecca Osborn and Detectives Gregg Lewis and Scott Coates
were admissible. During the hearing, the court heard testimony from Osborn, and
from Detectives Lewis and Oates, regarding the statements made by Mollett and
the circumstances in which those statements occurred. The court also received a
number of exhibits into evidence, including a video recording of Mollett’s police
interrogation, a transcript of Mollett’s January 15, 2015 deposition, and reports of
two forensic evaluations conducted in Mollett’s own criminal prosecution.
On March 18, 2015, the circuit court ruled that Mollett’s out-of-court
statements made to Osborn and Detectives Lewis and Coates were admissible
under § 491.075.
The jury in Henderson’s first trial found her guilty of second-degree felony
murder, armed criminal action, and tampering with physical evidence. The trial
court sentenced her as a prior and persistent offender to consecutive terms of life, twenty-five years, and three years’ imprisonment, respectively.
Henderson appealed. We reversed her convictions based on instructional
error, and remanded the case for retrial. State v. Henderson, 551 S.W.3d 593 (Mo.
App. W.D. 2018).
In a pretrial hearing on January 23, 2020, the circuit court ruled that it
would adhere to its previous rulings that Mollett was “a vulnerable person and also
. . . unavailable[le] because of his mental capacity, incapacity, and all. So the Court
is going to stand by the rulings that were made previously.”
6 On the third day of Henderson’s retrial, the circuit court interviewed Jurors
18 and 33 regarding an incident in which Juror 18 witnessed a person in the gallery
who was associated with Henderson pointing to the jury and saying words to the
effect of “she’s stupid.” Juror 18 told Juror 33 what she had seen, and Juror 33
suggested that Juror 18 speak with the bailiff about it. When the circuit court
asked if hearing about the incident from Juror 18 would affect Juror 33’s ability to
be unbiased, Juror 33 responded that “[e]verybody handles difficult situations
differently. Some people try to cover it up with humor, or you know what I’m
saying? They find a coping mechanism to deal with a very difficult situation.” The
circuit court found that there was no risk of bias from the interaction.
On the next day (the last day of trial) Megan Cogdill, a friend of Henderson’s
daughter, reported that she had seen Juror 33 making eye contact, winking, and
smirking at a member of the Victim’s family in the gallery. The circuit court did not
question Juror 33 about Cogdill’s accusations. The court refused to remove Juror 33
from the jury. The court stated that Juror 33 had “made a very good record on
about she knows [how] emotions run, and so she’s pretty much trying to keep an
even keel through all of this.”
The jury in Henderson’s second trial once again found her guilty on all three counts. The circuit court again sentenced her to consecutive terms of life
imprisonment, twenty-five years, and three years.
Henderson appeals.
Discussion Henderson asserts two Points Relied On. In the first, she argues that the
circuit court erred in admitting Mollett’s out-of-court statements under § 491.075,
RSMo, because those statements did not bear “sufficient indicia of reliability” under
§ 491.075.1(1), given the court’s finding that Mollett was incompetent to testify due to mental incapacity under § 491.060(1), RSMo. In her second Point, Henderson
7 challenges the circuit court’s refusal to dismiss Juror 33 after Henderson’s
accusation that Juror 33 had committed misconduct by engaging in nonverbal
communication with members of the Victim’s family.
I. Henderson’s first Point contends that Mollett’s out-of-court statements could
not bear “sufficient indicia of reliability” under § 491.075.1(1), RSMo, because the
court had found Mollett to be incompetent as a witness under § 491.060(1), RSMo.
Henderson essentially argues that out-of-court statements cannot be admitted from any person declared to be incompetent under § 491.060(1), RSMo, because – as a
matter of law – such statements cannot be found sufficiently reliable under
§ 491.075.1(1), RSMo.
At the outset, the State argues that we should not consider Henderson’s
challenge to the admissibility of Mollett’s out-of-court statements, because those
statements were admitted in Henderson’s first trial, and she did not challenge the
admissibility of Mollett’s statement in her first appeal. According to the State, the
admissibility of those statements is the “law of the case,” which Henderson cannot
now challenge.
The law of the case doctrine provides that the previous holding in a case constitutes the law of that case and precludes re-litigation of the same issue in a subsequent appeal. The doctrine not only precludes re-litigation of claims that were actually raised in a prior appeal, but also any claims that arose prior to the first adjudication and might have been raised but were not. Pursuant to this doctrine, the failure to raise a claim in a prior appeal means that the court hearing a subsequent appeal need not consider the claim. But appellate courts do have discretion to consider an issue where there is a mistake, a manifest injustice or an intervening change in the law. State v. Kelly, 43 S.W.3d 343, 347 (Mo. App. W.D. 2001) (citations omitted); see also
State v. Deck, 303 S.W.3d 527, 545 n.2 (Mo. 2010).
8 We are not aware of any Missouri decision applying the “law of the case”
doctrine to an evidentiary ruling made in a prior trial, in circumstances similar to
this case – where Henderson won a reversal of her conviction in her first trial, and
therefore it would not have been necessary for this Court to address the evidentiary
issue, even if she had raised it. Evidentiary rulings are generally understood to be
dependent on the specific context in which the evidentiary issues arise during trial.
Thus, it is well-established in Missouri law that a trial court’s pretrial limine
rulings are only interlocutory, and that “[a]dditional information produced at trial
may prompt the trial court to alter its pretrial ruling.” Elliott v. State, 215 S.W.3d
88, 92 (Mo. 2007) (citation omitted); see also, e.g., State v. Evans, 517 S.W.3d 528,
543 n.9 (Mo. App. S.D. 2015) (despite a pretrial limine ruling concerning the
admissibility of evidence, trial judges must “be given an opportunity to reconsider
their prior rulings against the backdrop of the evidence actually adduced [during
the trial itself,] and in light of the circumstances that exist when the questioned
evidence is actually proffered”). We therefore question whether evidentiary rulings
made in the context of an earlier trial would generally constitute the “law of the
case” binding the court and the litigants in a subsequent retrial, where the relevant
evidentiary context may be materially different. We recognize that, in Deck, the Missouri Supreme Court applied the “law of
the case” doctrine to an evidentiary ruling from a prior trial. 303 S.W.3d at 545.
But in Deck, in an earlier appeal the Supreme Court affirmed a jury verdict finding
the defendant guilty of capital murder in his first trial; in the course of affirming,
the Court specifically rejected the evidentiary argument which the defendant sought
to renew in a later appeal (the later appeal was taken after a jury reimposed the
death penalty in a penalty-phase retrial). See State v. Deck, 994 S.W.2d 527, 535-36
(Mo. 1999). This case is distinguishable – in Henderson’s prior appeal this Court vacated the result of her first trial, without addressing the admissibility of Mollett’s
9 statements. Moreover, we also note that Henderson’s objections to the admission of
Mollett’s out-of-court statements in her second trial depended, at least in part, on
the circuit court’s refusal to permit Henderson to re-depose Mollett, or subpoena
him to testify at trial. Those circumstances did not exist at the time of Henderson’s
earlier appeal.
We need not definitively decide whether Henderson’s first Point is precluded
by the “law of the case” doctrine, however, because her Point lacks merit in any
event. We emphasize at the outset what Henderson’s first Point does not argue.
Henderson does not challenge the circuit court’s determination that Mollett was
incompetent as a witness due to mental incapacity within the meaning of
§ 491.060(1), RSMo. Nor does Henderson challenge the circuit court’s
determination that, because Mollett was incompetent to testify, he was therefore
“unavailable as a witness” within the meaning of § 491.075.1(2)(b), and thus his out-
of-court statements could be admitted under § 491.075 despite Mollett’s failure to
testify at Henderson’s trial. Further, Henderson does not argue that the admission
of Mollett’s statements independently violated Henderson’s rights under the
Confrontation Clause found in the Sixth Amendment to the United States
Constitution. Although Henderson’s Brief cites the Confrontation Clause and caselaw applying it, her only argument concerning the Confrontation Clause asserts
that her confrontation rights were violated because Mollett’s statements were
inadmissible under § 491.075.1(1), RSMo. Thus, her Confrontation Clause
argument is derivative of her argument that Mollett’s statements were inadmissible
because they lacked “sufficient indicia of reliability” under § 491.075.1(1).
Even with respect to the “reliability” question, Henderson’s argument is
limited. Generally, the “reliability” inquiry requires a court to consider all of the
facts and circumstances surrounding a child’s or a vulnerable person’s out-of-court statement.
10 For purposes of § 491.075, courts determine the reliability of a child's out-of-court statements by evaluating the totality of the circumstances. In evaluating the totality of the circumstances, the court considers a non-exclusive list of factors, including: (1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) the lack of motive to fabricate; and (4) knowledge of subject matter unexpected of a child of similar age. Interviewing techniques are also an important factor to be considered as part of the court's totality of the circumstances analysis. State v. Barker, 410 S.W.3d 225, 232-33 (Mo. App. W.D. 2013) (citations and
internal quotation marks omitted).
In this case, to assess reliability under the totality-of-the-circumstances
standard, this Court would be required to consider the testimony offered by Osborn,
and by Detectives Lewis and Coates, at the § 491.075 hearing conducted before
Henderson’s first trial, as well as the exhibits admitted at that hearing (which
included a video recording of Mollett’s police interrogation, the transcript of his
January 2015 deposition, as well as reports of two competency examinations).
Henderson’s briefing does not describe the circumstances surrounding Mollett’s out-
of-court statements in any detail, nor has she provided this Court with the exhibits
admitted at the § 491.075 hearing. Although Henderson’s Brief states that “the
evidence adduced at the 491 hearing [failed to] demonstrate[ ] that Josh’s
statements demonstrated sufficient indicia of reliability necessary under Section 491.075,” Henderson fails to discuss any of the evidence from the § 491.075 hearing
in her argument, or otherwise support her conclusory assertion that the evidence
was somehow insufficient to establish reliability. Rather than challenging the
circuit court’s conclusion that Mollett’s statements were reliable in light of the
totality of the circumstances, Henderson makes a more categorical argument: that
Mollett’s out-of-court statements lack “sufficient indicia of reliability” – as a matter
of law – because Mollett was declared to be “incompetent to testify” under § 491.060(1), RSMo.
11 Henderson offers minimal argument that a finding of incompetency because a
witness is “mentally incapacitated at the time of his or her production for
examination” under § 491.060(1), RSMo, necessarily equates to a finding that the
witness’ out-of-court statements lack “sufficient indicia of reliability” under
§ 491.075.1(1), RSMo. Although Henderson essentially asks this Court to find the
two standards to be equivalent, her briefing does not even cite caselaw interpreting
the standards applied under the two statutes.
We do not find any necessary link between the two statutory standards. The
definition of “vulnerable person” in § 491.075.5, RSMo, includes a “person who, as a
result of an inadequately developed or impaired intelligence or a psychiatric
disorder that materially affects ability to function, lacks the mental capacity to
consent.” Plainly, the General Assembly understood that the “vulnerable persons”
whose extrajudicial statements would be admissible might include persons with
seriously impaired intellectual or cognitive functioning – yet it authorized the
admission of statements from such “vulnerable persons” nonetheless. Further, we
note that in State v. Chandler, 429 S.W.3d 503, 507 (Mo. App. E.D. 2014), the
Eastern District held that a finding that an individual was a “vulnerable person”
under § 491.075.5, RSMo, did not mandate a finding that the individual was incompetent to testify under § 491.060(1) – thus suggesting that the two standards
are not identical.
Moreover, caselaw interpreting the competency standard found in
§ 491.060(1), RSMo suggests several features of the competency inquiry which may
not be relevant to the reliability of an extrajudicial statement under § 491.075.1(1).
For example, § 491.060(1) refers to an individual’s mental capacity “at the time of
his or her production for examination.” (Emphasis added.) Thus, the competency
question focuses on a putative witness’ mental state at the time their testimony is sought. For this reason, “[a] prior adjudication of mental incompetence or a record
12 of confinement in a mental hospital is not conclusive.” State v. Robinson, 835
S.W.2d 303, 307 (Mo. 1992) (quoting State v. Beine, 730 S.W.2d 304, 307-08 (Mo.
App. E.D. 1987)); accord State v. Newton, 963 S.W.2d 295, 297 (Mo. App. E.D. 1997).
In this case, Mollett’s extrajudicial statements were made in March and April 2013,
while the circuit court first ruled him incompetent to testify in February 2015 –
almost two years later. Notably, in arguing that the circuit court should revisit its
determinations about Mollett’s competency prior to the retrial, defense counsel
himself emphasized that the passage of time could be relevant to the competency
determination:
[A]s we stand here today, we – three years have passed, almost four years have passed, Your Honor, since the last trial. And as we stand here today, we don't know how vulnerable Joshua is. We don't know what the impact of his testimony might have on him psychologically or otherwise. A witness’ competence to testify, years after making extrajudicial statements, does
not necessarily govern the reliability of the earlier statements themselves.
Besides the time lapse between Mollett’s extrajudicial statements and the
court’s ruling finding him incompetent as a witness, the competency standard also
involves consideration of factors which do not easily translate to the “reliability”
inquiry required by § 491.075.1(1), RSMo. A witness is competent to testify if the witness shows “(1) a present understanding of, or the ability to understand upon instruction, the obligation to speak the truth; (2) the capacity to observe the occurrence about which testimony is sought; (3) the capacity to remember the occurrence about which testimony is sought; and (4) the capacity to translate the occurrence into words.” Robinson, 835 S.W.2d at 307 (quoting State v. Feltrop, 830 S.W.2d 1, 10 (Mo. 1991));
see also Newton, 963 S.W.2d at 297. The one forensic evaluation report contained in
the record on appeal reflects that Mollett was able to converse with the examiner concerning his possible upcoming trial, but that he had limited understanding of the
13 manner in which the criminal proceeding would be conducted, or concerning the
roles of various trial participants. The circuit court may well have found Mollett
incompetent to testify as a witness based on his inability to understand the
obligation of a witness to comply with their oath and testify truthfully – not based
on any inability to observe, remember, or relate events.
Finally, the caselaw involving competency provides that, if an individual is
confined to a mental-health facility at the time of a competency determination (as
Mollett was), then that individual will be presumed to be incompetent, and the
burden falls on the proponent of their testimony to prove otherwise. Robinson, 835
S.W.2d at 307. The circuit court’s competency determination may reflect only that
Henderson failed to carry her burden to prove him to be competent.
For the foregoing reasons, we reject Henderson’s argument that the circuit
court’s finding that Mollett was incompetent to testify under § 491.060(1), RSMo,
necessarily meant that his extrajudicial statements were unreliable, and therefore
inadmissible under § 491.075, RSMo. Point I is denied.
II. Henderson’s second Point argues that the circuit court abused its discretion
in failing to dismiss Juror 33 from the jury panel, when Henderson presented
testimony from a family friend who was attending the trial that Juror 33 had been
making eye contact, winking, and smirking at members of the Victim’s family in the
courtroom gallery.
“[T]rial court decisions regarding alleged juror misconduct will not be
disturbed on appeal absent a finding of abuse of discretion.” State v. Hicks, 959
S.W.2d 119, 122 (Mo. App. S.D. 1997) (citing State v. Brown, 939 S.W.2d 882, 883
(Mo. 1997)). If jury misconduct is found, the State must “‘affirmatively sho[w] that
the jurors were not subject to improper influences.’” State v. Chambers, 891 S.W.2d 93, 102 (Mo. 1994) (quoting State v. Babb, 680 S.W.2d 150, 151 (Mo. 1984)).
14 However, “juror misconduct must first be established by the defendant.” Hicks, 959
S.W.2d at 122 (citation omitted).
The circuit court has the responsibility to “determin[e] the existence of bias or
prejudice with regard to a juror.” Id. at 123. Missouri law “does not always require
juror testimony once misconduct is alleged.” Chambers, 891 S.W.2d at 101. In
Chambers, the Missouri Supreme Court held that a circuit court had not abused its
discretion in rejecting a new-trial motion when the defendant presented testimony
that jurors had been overheard speaking about the defendant’s previous conviction
for murder. Id. Similar to this case, the trial judge in Chambers did not receive
testimony from any of the affected jurors before denying the defendant’s motion for
new trial. Id.
The circuit court did not err in rejecting Henderson’s motion to remove Juror
33. The circuit court was entitled to reject the testimony of Cogdill, a family friend
of Henderson’s, without calling Juror 33 to testify again. As the prosecutor argued
in response to Henderson’s motion, no one else in the courtroom had apparently
seen the non-verbal communication which Cogdill claimed to have witnessed.
Moreover, the circuit court had examined Juror 33 on the prior day concerning a
separate issue, and found her to have been perceptive concerning the stakes at issue in the trial, and as someone who was “trying to keep an even keel” during the
emotionally charged proceeding. In light of the court’s own observation of Juror 33,
it was entitled to disbelieve Cogdill’s testimony that Juror 33 had engaged in
improper behavior.
Further, even if the court had believed Cogdill’s testimony, there is no
evidence that any eye contact between Juror 33 and a member of the audience was
a comment on the merits of the trial. This Court has held that a circuit court does
not abuse its discretion when it allows a juror to remain after that juror had a conversation with a prosecution witness that, “while improper, was casual, brief
15 and totally unrelated to anything associated with the trial.” State v. Lasley, 731
S.W.2d 357, 360 (Mo. App. E.D. 1987) (citing State v. Martin, 624 S.W.2d 879, 882
(Mo. App. E.D. 1981)). Cogdill testified that she witnessed Juror 33 in her
peripheral vision, “making . . . eye contact . . . winked, kind of smirked” in the
direction of the side of the courtroom where the Victim’s family was sitting. Cogdill
could not say who, specifically, Juror 33 may have been looking at, and she
admitted that she did not know the exact positioning of the Victim’s family in the
courtroom: “I try not to look at them. I try out of respect not to look at them or
associate with them.” Cogdill’s testimony was not specific enough to determine if
Juror 33’s purported facial expressions constituted improper communication
concerning the merits of the case. The evidence produced by Henderson did not
require the circuit court to exercise its discretion to dismiss Juror 33, even if the
court believed that evidence.
Point II is denied.
Conclusion The judgment of the circuit court is affirmed.
Alok Ahuja, Judge All concur.