In the Missouri Court of Appeals Western District
STATE OF MISSOURI, WD82846 Respondent, OPINION FILED: v. April 13, 2021 BRANDON B. HOWELL, Appellant.
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Joel P. Fahnestock, Judge
Before Division One: Alok Ahuja, P.J., Thomas H. Newton, and Thomas N. Chapman, JJ.
Following a jury trial in the Circuit Court of Jackson County, Brandon Howell
(“Howell”) was convicted of five counts of first-degree murder, four counts of armed criminal
action, one count of first-degree burglary, and one count of stealing. Howell raises four points
on appeal. Howell contends that the trial court erred in: (1) excluding counsel from observing
the initial juror qualification; (2) overruling Howell’s motion to use venirepersons’ names
instead of numbers in voir dire; (3) failing to grant Howell’s motion for judicial recusal; and (4)
admitting testimony regarding the likelihood that blood spatters found on Howell’s clothing
matched that of victims in this case. Finding no error, we affirm. Factual and Procedural Background1
George and Anna Taylor lived in a duplex in a cul-de-sac at 1 Woodbridge Lane. The
Taylors owned a tan Toyota Highlander SUV. Around 12:50 p.m. on September 2, 2014, a 911
call was made from a female caller who (before the call was disconnected) reported a party with
a shotgun at 1 Woodbridge Lane.
Around 1:00 p.m., Billie Simler, who lived at 111 Woodbridge Lane, was watching
television when he heard “two loud noises, bam, bam, like that.” Simler looked out to the cul-
de-sac and saw a tan Toyota Highlander SUV turning around in the cul-de-sac. At that point,
Simler heard a third bang.
Around 12:54 p.m., two officers with the Kansas City Police Department (“KCPD”) were
dispatched to 1 Woodbridge Lane, arriving around 1:05 p.m. The officers discovered a body
lying in the driveway at 3 Woodbridge Lane. The victim, Susan Choucron, was deceased from a
shotgun wound to the face.
Subsequently, a search was conducted of the residence at 1 Woodbridge Lane. In the
basement, George and Anna Taylor were found, not moving and with grave injuries. George
Taylor had suffered a fractured skull, several abrasions and hematomas to his face, and his
ribcage had broken away from his chest wall. He suffered from agonal respirations, which
signaled that he was close to death. Anna Taylor had an apparent puncture wound on the back of
her head and abrasions on her cheek and nose. George and Anna Taylor were transported to
separate hospitals. Both ultimately died of blunt force trauma injuries. Numerous blood stains
1 Howell does not challenge the sufficiency of the evidence to support his convictions. “The evidence is viewed in the light most favorable to the verdict.” State v. Anglin, 45 S.W.3d 470, 471 (Mo. App. W.D. 2001).
2 were found in the basement. A purse and a wallet were found on a table at 1 Woodbridge Lane,
neither of which contained any cash.
The bodies of Alice and Darrel Hurst were found in the driveway of 7 Woodbridge Lane.
Alice Hurst had died of a shotgun wound to the face. Darrel Hurst had died from a shotgun
wound to the chest. A red shotgun shell was found in the driveway.
A dispatch was put out for the beige-colored Toyota Highlander that had belonged to
Anna and George Taylor. The vehicle was found around 4:00 p.m. in North Kansas City, backed
into a restaurant parking space.
Later that evening, Howell was arrested about seven or eight blocks away from where the
Highlander was recovered. While Officer James Muhlbauer was on patrol, he received a
dispatch that a motorist reported seeing a possible homicide suspect walking southbound on
Interstate 29. Following the dispatch, Muhlbauer spotted a suspect, later identified as Howell,
walking down the breakdown lane of the interstate and “cupping” his right pant leg as if he was
holding something inside. Concerned Howell was the homicide suspect, Muhlbauer stopped
Howell. When Howell was asked to kneel, he bent his left knee but kept his right leg out to the
side, claiming he had leg cramps. When Muhlbauer frisked Howell, he found a 12-gauge
shotgun barrel and magazine tube inside Howell’s pant leg, at which point Muhlbauer placed
Howell in handcuffs.
Following Howell’s arrest, a search of Howell revealed two 12-gauge shotgun shell
casings and a set of keys. The following items were also seized from Howell’s possession: a pair
of Adidas athletic shoes, a dark green Carhartt brand jacket, a pair of blue pants, a ski mask, a
pair of gloves, two towel strips, and $269.25 in cash.
3 The two shotgun shell casings recovered from Howell were fired from the same shotgun
as the shell that was recovered in the driveway at 7 Woodbridge Lane, where the bodies of Alice
and Darrel Hurst were found. All three shell casings were fired from the shotgun Howell was
carrying when he was arrested.
One of the keys in Howell’s possession unlocked the door of the Toyota Highlander that
belonged to George and Anna Taylor. The sole of Howell’s right shoe matched a shoe print
found in the garage at 1 Woodbridge Lane. Clothing fibers similar to Howell’s clothing were
found in the Toyota Highlander.
Blood on the driver’s side floorboard of the Toyota Highlander matched Susan
Choucron’s DNA profile. George Taylor was a possible contributor of DNA to a blood stain on
the back of Howell’s ski mask. Susan Choucron was a possible contributor of DNA to the t-shirt
Howell was wearing. George Taylor was a likely contributor of DNA found on Howell’s shoes.
Susan Choucron’s DNA profile was found in a stain on the front of Howell’s jacket.
Howell was charged as a prior offender by amended information in lieu of indictment
with five counts of first-degree murder, four counts of armed criminal action, one count of first-
degree burglary, and one count of stealing. The jury found Howell guilty on each of these
charges. Howell was sentenced to life imprisonment without the possibility of parole on the
murder counts; life imprisonment on the armed criminal action counts; ten years’ imprisonment
on the burglary count; and one year for stealing. Howell now appeals to this court.2
2 Additional facts relevant to the points Howell raises on appeal are provided in our analysis of those points.
4 Analysis
Howell raises four points on appeal. Howell contends that the trial court erred in: (1)
excluding counsel from observing the initial juror qualification; (2) overruling Howell’s motion
to use venirepersons’ names instead of numbers in voir dire; (3) failing to grant Howell’s motion
for judicial recusal; and (4) admitting testimony regarding the likelihood that blood spatters
found on Howell’s clothing matched that of victims in this case.
Point One
In his first point on appeal, Howell asserts that the trial court abused its discretion in
denying defense counsel’s request to be present for juror qualification because observing the
venirepersons and their responses to the trial court was necessary for counsel to properly exercise
for-cause and preemptory strikes.
The voir dire process in this matter was initially planned with the understanding that the
State would be seeking the death penalty. With that understanding, a pretrial conference was
held in which the parties provided input on the content of a questionnaire that would be given to
potential jurors at a preliminary qualification of said jurors. The apparent purpose of this
questionnaire was to eliminate prospective jurors with no real potential of being seated prior to
the general voir dire due to concerns regarding seating a full panel of death-qualified jurors and
the possibility that potential jurors may have been exposed to pretrial publicity. The trial court
explained that the prospective jurors would complete the questionnaire at the qualification and
that the trial court would discuss statutory qualification issues, such as whether the panel could
read, write, and understand English, with the prospective jurors. The trial court also indicated
that it would be available to discuss hardship issues with potential jurors at the initial
qualification. The trial court indicated that the attorneys would not participate in the preliminary
5 qualification. After the initial qualification, the completed questionnaires would be provided to
the attorneys who would have the opportunity to provide the court with agreed-upon strikes
based on the questionnaire. The parties would then engage in small group voir dire that would
result in a death-qualified panel. A traditional voir dire would then take place at the beginning of
trial.
During the hearing, Defense counsel requested to have a representative present at the
qualification to observe the court’s preliminary questioning of the panel. Counsel did not wish to
participate or be identified, but wished to have someone sit in the courtroom and quietly take
notes. The trial court told counsel that it would consider that request, which was ultimately
denied.
After the State waived the death penalty, a hearing was held regarding how the waiver
would affect jury selection and how the questionnaire would be updated, with Howell having
submitted an updated questionnaire. The State argued that the questionnaire was no longer
necessary and stated its preference that jury selection simply be done the more traditional way.
Howell argued that the use of the questionnaire would help the parties and the court ferret out
problems with pretrial publicity. The trial court decided to go forward with using the
questionnaire in the initial qualification, believing it to be a time-saving measure.
At a subsequent pretrial conference, the trial court explained how jury selection would
be conducted:
Voir dire. As you know, I will be doing the hardships this week. Here’s how this is going to go. The jury room is pulling in around 170 tomorrow. They will show up, they will fill out questionnaires at that time. I will meet with anybody, any juror who wants to meet with me to discuss hardship issues and qualification issues only.
Once that is done, we will submit the questionnaires to you all. Any agreed-upon strikes, we will strike. We talked about having a day where we have them in to
6 discuss publicity issues only if you all cannot agree on those, which is fine. After we go through that process, we will submit the final list to the jury room and they will randomly pull 80 for our voir dire on Monday, April 8th.
On Thursday of this week, we’re going to do the exact same process, to get a separate panel of 80 in the exact same fashion that we will have on standby for Tuesday, April 9th, in case something would happen on Monday. So they will be two separate panels, no recycled folks as of – we’ll just have a backup.
And so the normal jury process that we always do every time will still be in effect, we’re just pulling in a special panel for this case.
After the initial qualification, counsel for the State and Howell provided the trial court
with a list of agreed upon strikes based on the questionnaires submitted by the potential jurors.
The trial court held a hearing in which jurors were struck by agreement of the parties based on
the questionnaire responses. The trial court also considered arguments by Howell and the State
regarding strikes that were not agreed to by the parties. Prior to the general voir dire, the trial
court provided the parties with an opportunity to question individual jurors based upon responses
to questions on the questionnaire regarding pre-trial publicity. A general voir dire was then
conducted on a panel of 82 prospective jurors who were sworn in and questioned by the State
and Howell.3 At the end of this process, a petit jury was selected.
“A defendant is entitled to a fair and impartial jury.” State v. Oates, 12 S.W.3d 307, 310
(Mo. banc 2000). “A necessary component of a guarantee for an impartial jury is an adequate
voir dire that identifies unqualified jurors.” Id. A trial judge “is generally vested with wide
discretion in the conduct of voir dire.” Id. We review the trial court’s rulings regarding the
conduct of voir dire for an abuse of discretion. State v. Baumruk, 280 S.W.3d 600, 614 (Mo.
banc 2009). “An appellate court will find reversible error only where an abuse of discretion is
3 From the jury list in our record, it appears that the general venire was comprised of 85 prospective jurors, 82 of whom were actually present at the voir dire.
7 found and the defendant can demonstrate prejudice.” Oates, 12 S.W.3d at 311. “A trial court
abuses its discretion when its ruling is clearly against the logic of the circumstances and is so
arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful
consideration.” State v. Johnson, 207 S.W.3d 24, 40 (Mo. banc 2006). “Where reasonable
persons can differ about the propriety of the action taken by the trial court, no abuse of discretion
will be found.” Id. “The defendant bears the burden of showing that there is a ‘real probability’
that he was prejudiced by the abuse of discretion.” Id.
As an initial matter, although Howell characterizes the court’s initial juror qualification
as part of voir dire, his claim of error ultimately relates to the trial court’s actions prior to the
selection of the general venire panel. Howell argues that he was prejudiced by the exclusion of
his counsel from the initial juror qualification, because the observation of the venirepersons in
responding to questions regarding statutory qualifications was necessary for his counsel to
properly exercise for-cause and peremptory strikes at the conclusion of the general voir dire. It
is not clear from the record precisely what questions were asked of the prospective jurors at the
initial qualification, though the record indicates that these questions were to relate to statutory
qualification issues and hardships only. Our record does not contain the contents of the
questionnaire that was filled out by prospective jurors. Our record likewise contains no
information regarding what jurors, if any, were excluded at the initial qualification, or why they
may have been excluded.
Chapter 494 of the Revised Statutes of Missouri provides a number of statutory jury
selection requirements, including that certain categories of persons shall be disqualified from
serving as a petit or grand juror, see generally section 494.425; and that certain categories of
persons shall be excused from service upon timely application to the court, see generally section
8 494.430.4 Section 494.430.2 provides that a judge of the court for which the individual was
called to jury service “shall make undue or extreme physical hardship determinations.”
Howell cites to no legal authority that guarantees him the right to have counsel observe
the process of qualifying the general venire with respect to statutory disqualifications and
statutory hardship excusals that take place prior to the selection of the general venire. These
matters are regularly conducted through written correspondence with the trial court, which would
not allow a party the ability to observe prospective jurors respond to such questions. See e.g.
State v. Anderson, 79 S.W.3d 420, 431 (Mo. banc 2002) (finding no substantial failure to comply
with the jury selection statutes when hardship determinations were made through written
correspondence);5 see also Jackson County Circuit Court Rule 52.1.1 (providing that prospective
jurors are to fill out informational questionnaires online).
Howell does not argue that any statutory requirements or court rules were violated in the
selection of the general venire panel, and in any case, section 494.465 provides the exclusive
procedure “by which a party may challenge a jury on the ground that the jury was not selected in
conformity with statutory jury selection procedures.” § 494.465.3. Section 494.465.1 provides
that a party may move to stay the proceedings or for other appropriate relief if a substantial
failure to comply with the statutory jury selection procedures occurred; however, such motion
must be made prior to the time when the petit jury is sworn or within fourteen days after the
party could have discovered the grounds supporting the motion. Howell took no steps to
challenge the selection of the general venire panel prior to the swearing in of the petit jury.
4 Unless otherwise indicated, all statutory references are to RSMo 2016, as supplemented. 5 The jury selection statutes contained in Chapter 494 have changed significantly since Anderson.
9 With respect to whether the trial court abused its discretion in excluding Howell’s
counsel from the initial juror qualification, there is a paucity in the record regarding precisely
what occurred, what information was reflected in the questionnaire, and what jurors, if any, were
struck prior to the delivery of the completed questionnaires to the attorneys. However, it is
unnecessary for us to speculate because, in order for us to find reversible error, Howell must
demonstrate that he was prejudiced by the trial court’s action. Oates, 12 S.W.3d at 311. Howell
has not established such prejudice.
The only allegation of prejudice that Howell makes is that he would have had a greater
opportunity to observe the venirepersons. However, Howell makes no specific allegations of
prejudice but instead relies on the unsupported conclusion that such additional observation was
necessary in order to make for-cause and peremptory strikes after the general voir dire. Howell
makes no arguments that the general venire was not properly drawn. Howell does not assert that
any juror that was seated was not fair and impartial. He does not allege that he was prejudiced
by the improper exclusion of any potential juror or jurors during qualification. He likewise
makes no arguments regarding what, if anything, might have been observed during qualification
that could not have been observed at the general voir dire.
Although Howell is correct that he is entitled to an adequate voir dire to identify
unqualified jurors, Oates, 12 S.W.3d at 310, the record indicates that his voir dire was adequate.
The trial court exercised its discretion to allow Howell extensive opportunities to strike
venirepersons based on disqualifying biases even before the general voir dire. In addition to the
agreed-upon strikes resulting from the questionnaire, Howell was allowed to make arguments
with respect to the prospective jurors’ questionnaire responses, and the trial court considered
strikes based on these arguments. Howell was allowed to question prospective jurors regarding
10 pretrial publicity prior to the general voir dire. Howell was given ample opportunity to question
the general venire at the general voir dire. We find that Howell failed to make a timely effort to
address his claimed flaw in the jury qualification process (such as seeking a stay as provided
under section 494.465.1 were he making a statutory challenge); and further that he also failed to
establish that he was prejudiced by the trial court’s action.
Point one is denied.
Point Two
In his second point on appeal, Howell asserts that the trial court abused its discretion in
overruling defense counsel’s motion to use the venirepersons’ names instead of numbers because
the jury would have interpreted the use of numbers as a protective measure, causing them to fear
for their safety from Howell.
When the general voir dire began, the trial court explained to the panel of prospective
jurors that the jurors’ numbers would be used instead of their names for the purpose of keeping a
clean record.
As you see, you have been given these numbers. We are going to refer to you, sorry, by number only and that is to help [the court reporter] take a clear record. It is so much easier for her to do that if we just refer to you by number. So we’re sorry if that’s a little bit impersonal, but we have found that that makes our record better and clearer.
We find it was within the trial court’s discretion to use numbers rather than names during
voir dire. The record reveals that the reason for using the venirepersons’ numbers instead of
names was to create an efficient record, rather than to make any kind of signal relating to a
danger posed by Howell. Moreover, when the selected jurors were seated for trial, they were
seated by their names.
11 In support of his contention that using the potential jurors’ numbers was an abuse of
discretion, Howell cites to a case from the United States Court of Appeals for the Seventh
Circuit, in which the use of anonymous jurors was found to be in error. United States v.
Mansoori, 304 F.3d 635, 651 (7th Cir. 2002). However, Mansoori provides little support for
Howell’s contention because an anonymous jury was not used in his case. In this matter, the jury
that was selected was not anonymous, but was seated by name. When selected jurors were
announced, the trial court stated: “If I call your name, please come forward to be seated in the
jury box, you have been selected as a juror in this case[.]” (emphasis added). The trial court then
proceeded to read aloud and on the record the names of the selected jurors. Given these
circumstances, the jury that was seated would not be led to believe that voir dire was conducted
by their numbers as a measure to protect their identity, since the selected jurors’ names were
revealed at the end of the process. Rather, the jurors would reasonably believe that the trial court
used numbers during the voir dire process for precisely the reasons the trial court explained – to
aid the court reporter in making an efficient and accurate record. The trial court’s decision was
not “clearly against the logic of the circumstances and [] so arbitrary and unreasonable as to
shock the sense of justice and indicate a lack of careful consideration.” Johnson, 207 S.W.3d at
40.
Point two is denied.
Point Three
In his third point, Howell argues that the trial court abused its discretion in failing to
grant his motion for judicial recusal which claimed that the judge’s impartiality could be
reasonably questioned, in that the judge had ex parte communications with jail personnel about
12 Howell and then, based on those communications, made its pretrial rulings requiring Howell to
wear restraints.
At a pretrial hearing in the judge’s chambers on January 5, 2015, the trial court reported
to counsel that the jail guards reported to her that they were having difficulties dealing with
Howell. These difficulties had required the guards to expend additional resources in transporting
Howell to court. The trial court wanted to make counsel aware of this information. The trial
court told counsel that it would continue to allow Howell to dress in civilian clothing and appear
in court without handcuffs. However, the trial court told counsel that if Howell continued to
cause problems with the jail guards, that it might reconsider that ruling.
At a pretrial hearing on October 24, 2016, the trial court informed counsel that it had
received an email from the jail from the officer in charge of transporting inmates to the jail. The
trial court then read the email to counsel which provided:
Judge, I would like to inform you that inmate Brandon Howell has been found with shanks multiple times during shake down. I’m asking if you would reconsider the court order for Brandon Howell to not be in restraints during his court appearances. Mr. Howell is definitely a security and safety threat at this point in the process. Your consideration would be greatly appreciated on this issue.
The trial court then explained to counsel that it wanted to give counsel notice of the
communication and that it had decided to change its prior order and would require Howell to
appear in full restraints at future court appearances. Defense counsel stated its opposition to
Howell not being brought to court with civilian clothes and noted that Howell would be treated
differently based on allegations by a jail guard. The court responded:
That’s fine. Just so you’re aware, he has been treated differently than any other defendant only in that he is the only one that ever dresses out and is not chained. Everyone else brought over here is. So, you know, that was a courtesy that was provided to him, which is very different than we normally handle folks who are in
13 court. And beyond that, when I entered that order, I let you all know that if something changed, I would give you notice of it and that my order would change.
And so that’s kind of where I’m at. But that being said, I’m happy to hear from you further when we bring him over here.
On November 7, 2016, Howell filed a motion for judicial recusal arguing that the
nonpublic manner in which the judge had addressed security concerns created an appearance of
prejudice and impropriety. Howell sought recusal under Rule 2-2.11(A). The trial court denied
this motion.
On March 26, 2019, the trial court indicated that it had received information that it
needed to share with counsel. The trial court stated that it had received a call from Amber
Ledbetter at population control, who informed the court that on the way back to the jail from the
court the previous day, Mr. Howell had been scanned on x-ray. Jail personnel spotted what they
believed to be a metal object in Howell’s rectum. Howell was taken to a hospital for a CT scan
and nothing was found. However, when the van that transported Howell was searched, a steel
hook was found covered in fecal matter. The trial court stated:
So as a result of that, I’m just requesting the jail to please scan him when he’s coming from the jail to the courthouse and from the courthouse back to the jail and making that request. I’m also requesting that they keep him in restraints in elevators and in the hallways until he gets here to the courtroom.
I have made arrangements with the jail that during trial, Mr. Howell be kept in the holding cell, as we previously discussed, until all the jurors are present up in the jury room and accounted for and we can keep them in the division and then have Mr. Howell walked to the courtroom.
I will say again that while in the courtroom, I’ve never had any issues with Mr. Howell. And I’ve not had any concerns about safety and security. That being said, I do have an obligation to keep the courtroom safe for everybody including Mr. Howell. So I just want to be upfront with the defense team and Mr. Howell that if issues keep arising, I may well have to revisit the use of restraints or even ultimately his presence. My goal is to, of course, have him present and actively participating and not having restraints on in the courtroom. That’s the goal.
14 And at this point, I don’t see a need to change that. But I have enough concern that I am going to be monitoring the situation, I have asked the jail to please keep me informed. As always, whatever information I have, I will make a record of, make a record on and pass on to you all. So that’s where we stand right now. Okay?
Howell then renewed his prior motion for recusal, arguing that it was inappropriate for
the trial judge to have communications with jail personnel regarding Howell’s behavior outside
of the courtroom. Howell contended that such communications deprived him of the presumption
of innocence and could influence the court in making a sentencing determination.
The court then stated:
Any communications I’ve had, I have, as soon as I’m able, I have brought to counsel. I don’t regularly have discussions with the jail other than the discussions that I have disclosed.
This situation was brought to me because it’s not about me monitoring Mr. Howell’s behavior in the jail. It was brought to me because this piece of metal was a safety and security concern for the courtroom.
….
I have an obligation. There is no other way for us to proceed without having those types of discussions whether it’s me, or another judge. Those discussions have happened, and they’re going to happen. So me recusing, which I see absolutely no reason to do whatsoever, because as you know, part of our job as judges is to consider things when appropriate and disregard things when it is not appropriate to consider them, that is the nature of what we do.
If Mr. Howell is engaging in certain behaviors, he is making that choice to do so. And he does so and that causes these situations to happen. And when a defendant is making choices in creating a situation, he cannot use that situation and those choices to manipulate the process by getting a new judge or delaying the trial. That is not how this works.
At that point, the trial court denied Howell’s renewed motion for recusal.
We review a trial court’s denial of a motion for change of judge for an abuse of
discretion. State v. White, 462 S.W.3d 915, 917 (Mo. App. W.D. 2015). “There is a
15 presumption that a judge acts with honesty and integrity and will not preside over a trial in which
he or she cannot be impartial.” Worthington v. State, 166 S.W.3d 566, 579 (Mo. banc 2005).
“Rule 2-2.11(A) sets the standard for when a judge should recuse in a proceeding.”
Anderson v. State, 402 S.W.3d 86, 91 (Mo. banc 2013). Rule 2.2-11(A) provides that a “judge
shall recuse himself or herself in any proceeding in which the judge’s impartiality might
reasonably be questioned[.]” Recusal is required “when a reasonable person would have factual
grounds to find an appearance of impropriety and doubt the impartiality of the court.” Anderson,
402 S.W.3d at 91 (internal quotations omitted).
Whether a fact requires recusal depends on the factual context, which gives meaning to the kind of bias that requires disqualification of a judge. Specifically, a disqualifying bias or prejudice is one that has an extrajudicial source and results in an opinion on the merits on some basis other than what the judge learned from the judge’s participation in a case. In cases requiring recusal, the common thread is either a fact from which prejudgment of some evidentiary issue in the case by the judge may be inferred or facts indicating the judge considered some evidence properly in the case for an illegitimate purpose.
Id. (quoting Worthington, 166 S.W.3d at 579).
In this matter, the factual basis that Howell asserts gave rise to the appearance of
impropriety involved the trial judge’s communications with jail personnel regarding security
issues related to transporting Howell to and from the courtroom. The trial judge is responsible
“for the conduct of the trial, the safety of all persons in the courtroom, and the prevention of
escape.” State v. Endicott, 881 S.W.2d 661, 663 (Mo. App. W.D. 1994). Here, the information
the trial judge received related specifically to the judicial function of maintaining the security of
the courtroom and the safety of the persons within it. In fulfilling that obligation, the trial judge
expressed a willingness to hear information directly related to safety issues affecting the judge’s
courtroom. There is simply no indication in the record that the trial judge used the information
16 she received to prejudge a substantive or evidentiary issue at trial. Likewise, the fact that the
judge received information relevant to the safety of persons in the courtroom does not reasonably
give rise to the appearance of impropriety, as the judge had an obligation to ensure courtroom
safety. Based on the record before us, it is unreasonable to find that the trial judge used these
communications for any purpose other than to ensure the safety of all persons in the courtroom.
Although Howell asserts that the trial judge’s communications with jail personnel were
ex parte and characterizes these contacts as improper, he disregards the Supreme Court Rule
governing ex parte communications. Rule 2-2.9 provides:
(A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter, except as follows:
(1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided:
(a) the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and
(b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond.
In this matter, the challenged communications between the trial judge and security/jail
personnel related directly to matters affecting courtroom security. The trial judge is responsible
for the conduct of the trial, the safety of all persons in the courtroom, and the prevention of
escape. Endicott, 881 S.W.2d at 663. As the trial judge has an administrative obligation to
ensure the security of persons in the courtroom, the trial judge is not per se prohibited from
considering information that weighs directly on courtroom security (rather than the substantive
matters of the case) when the circumstances require it, provided that the judge reasonably
17 believes that no party will gain an advantage as a result of the communication, and provided that
the judge promptly notifies the parties of the substance of the communications and gives the
parties an opportunity to respond. See Rule 2-2.9.
In this matter the trial judge followed the requirements of Rule 2-2.9. The challenged
communications weighed directly on courtroom security – a matter that the judge was obligated
to control. There is no indication from the record that the State received an advantage (or that
the trial judge would reasonably believe that such an advantage was received) based on the trial
judge’s communications about security matters related to Howell. The trial judge also complied
with the obligation to promptly notify the parties about the content of the information it had
received related to security issues and provided the parties an opportunity to be heard regarding
the communications.
There is no indication in the record that the trial judge harbored any bias or prejudice
toward Howell. We likewise find no facts that would cause a reasonable person to find the
appearance of impropriety. Rather, the record indicates that the trial judge approached this
matter with the unwavering goal of ensuring Howell received a fair trial and the benefit of the
presumption of innocence to which Howell was entitled.
Point three is denied.
Point Four
In his fourth point on appeal, Howell argues that the trial court plainly erred in admitting
testimony from DNA analyst Andrew Atkinson about likelihood ratios contained in a report from
the Cyber Genetics lab. These reports contained information regarding the likelihood that DNA
found on Howell’s clothing matched that of victims in this case as opposed to an unrelated
individual. Howell argues that the analyst’s testimony used numbers many times greater than the
18 number of human beings on the planet; therefore, according to Howell, this testimony was more
prejudicial than probative because the jury would have no way to place these numbers into
context. Howell concedes that no objection to this testimony was made at trial and that the issue
was not raised in Howell’s motion for new trial. Thus, this allegation of error was not properly
preserved for appeal. Howell requests that we review his fourth point for plain error.
Generally, we review a trial court’s admission of evidence for an abuse of discretion. Where there was no objection to the admission of the evidence, our review, if any, is for plain error only. Rule 30.20 authorizes this Court, in its discretion, to review plain errors affecting substantial rights . . . when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.
State v. McElroy, 520 S.W.3d 493, 495 (Mo. App. W.D. 2017) (internal citations and quotations
omitted).6
“Plain error review is waived when counsel has affirmatively acted in a manner
precluding a finding that the failure to object was a product of inadvertence or negligence.”
State v. Johnson, 284 S.W.3d 561, 582 (Mo. banc 2009) (internal quotations omitted). “Plain
error review does not apply when a party affirmatively states that it has no objection to evidence
an opposing party is attempting to introduce or for a trial strategy reason.” Id. (internal
quotations omitted).
In this matter, the record indicates that the parties had stipulated to the foundation and
admission of the Cyber Genetics report. Neither the report nor the precise language of the
stipulation appears in the record outside of references to the stipulation in the trial transcript. At
a bench conference held outside of the hearing of the jury during the State’s direct examination
6 Although Howell requests that we review this allegation for plain error, his brief fails to delineate our standard of review for plain error or how that standard was met in this instance.
19 of Atkinson, Defense counsel attempted to reserve the right to argue that the Cyber Genetic
reports should not go back to the jury:
[Defense Counsel]: The Cyber Genetic reports, which are by stipulation, but we do reserve the right to raise if these reports go back to the jury.
Later, Defense counsel objected to the phrasing of a question the State asked Atkinson and the
following exchange occurred:
[Defense Counsel]: It’s a likelihood ratio, it is not the standard probability determination.
[The State]: You can ask him about that.
[Defense Counsel]: The report is a likelihood ratio.
[The State]: What’s that?
[Defense Counsel]: The report is a likelihood ratio, he read the report.
[The State]: Right.
[Defense Counsel]: There’s another way of saying it, which I think was scientifically accurate, that’s my objection. They testify as to between this –
The Court: I can’t hear you.
[Defense Counsel]: Per the stipulation that the expert has read, the result and the terminology used by the laboratory that that’s all this expert is expected to do. He has sort of rephrased that back to the terminology that reflects the more traditional DNA type that was done at the lab, that’s our objection.
[The State]: I’ll just grab the stipulations.
The Court: Okay.
[The State]: All right. Number 10, this is the stipulations for the record. Defense stipulates the foundation and admission of the Cyber Genetics report to, I did it to [exhibit] 209, defense counsel also agrees Atkins had testified competently without objection as to the interpretation of the results.
[Defense Counsel]: Let me add that he was deposed and asked about that. He said I can testify as to their results, he’s done that, it’s competent, but what he’s doing
20 now is forming the question of saying, it’s phrasing it trying to show probability terms.
The Defense’s objection to the phrasing of the question asked by the State was overruled.
As relevant to Howell’s point on appeal, it appears that Howell stipulated to the admissibility of
the Cyber Genetics report, and specifically to testimony regarding the likelihood ratios contained
in the report. Howell now argues that testimony regarding the likelihood ratios contained in the
Cyber Genetics report was plainly inadmissible. However, that position appears to be contrary to
the position affirmatively taken by counsel at trial. Although the Cyber Genetics report is not
part of the record on appeal, the record does indicate that Howell’s counsel affirmatively had no
objection to Atkinson testifying to “the result and the terminology used by the laboratory” in
creating the report, which apparently included the likelihood ratios contained in the report. We
find that the failure to object to the admission of this evidence was not the result of inadvertence
or neglect. Accordingly, plain error review of this point has been waived. See Johnson, 284
S.W.3d at 582.
Point four is denied.
Conclusion
The judgment of the trial court is affirmed.
/s/Thomas N. Chapman Thomas N. Chapman, Judge
All concur.