IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT STATE OF MISSOURI, ) ) Respondent, ) ) v. ) WD81606 ) DAIRIAN E. STANLEY, ) Opinion filed: September 15, 2020 ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE CHARLES H. MCKENZIE, JUDGE
Division Two: Karen King Mitchell, Presiding Judge, Anthony Rex Gabbert, Judge and W. Douglas Thomson, Judge
Dairian Stanley (“Stanley”) appeals from his convictions of murder in the first
degree and armed criminal action following a jury trial. On appeal, Stanley claims
the trial court plainly erred in: (1) compelling Victim1 to testify over her assertion of
marital privilege; (2) allowing Stanley to represent himself while his phone privileges
were revoked; (3) admitting the testimony of Officer Brian Arant (“Officer Arant”)
about Victim’s identification of Stanley as the shooter; (4) allowing the State to
question Victim about prior alleged acts of domestic violence against her by Stanley;
1Pursuant to section 595.226.1 RSMo 2016, we have used the term “Victim” to protect the identity of the victim. (5) overruling Stanley’s objection and allowing Tonya Stanley (“Tonya”)2 to testify;
and (6) seating juror venirepersons 24, 44, and 41. We affirm.
Factual and Procedural History3
Stanley does not challenge the sufficiency of the evidence to support his
convictions. In September 2016, Victim, Stanley’s ex-girlfriend, was in a romantic
relationship with Torrance Evans (“Evans”). On the evening of September 24, 2016,
Evans celebrated his birthday with Victim and his friends including Leonard
Edwards (“Edwards”) and Gary Jones (“Jones”). After celebrating, they all spent the
night at the home of Jones. The next morning, Victim had a phone conversation with
Tonya, Stanley’s mother, in which Tonya expressed concern that Stanley might be
suicidal. Thereafter, Victim left Jones’s home and called Stanley. Victim arranged
to meet Stanley at a gas station. At the gas station, Stanley got in Victim’s vehicle
where he questioned her about her whereabouts, exhibited a gun, and threatened to
hit and shoot Victim. Stanley took Victim’s phone and questioned her about her
relationship with Evans. After Victim admitted to a sexual relationship with Evans,
Stanley hit her in the face. When Victim tried to exit her vehicle, Stanley put her in
a chokehold and threatened to shoot her if she tried to escape. Stanley took Victim’s
keys, got out of Victim’s vehicle and went to move his vehicle. Once Stanley was gone,
Victim got out of her vehicle and ran to a nearby McDonald’s. Before Victim could
get to the McDonald’s, Stanley had gotten back in her vehicle, approached her and
2Because Tonya Stanley shares a surname with Dairian Stanley, we refer to her by her first name for purposes of clarity. No familiarity or disrespect is intended. 3“On appeal from a jury-tried case, we view the facts in the light most favorable to the jury’s
verdict.” State v. Rice, 504 S.W.3d 198, 200 n.3 (Mo. App. W.D. 2016).
2 threatened that if she did not get back in her vehicle with him, he would shoot her.
Stanley found Jones’s address in Victim’s phone but did not know how to get there.
While driving around, Stanley told Victim that she was going to watch Stanley kill
Evans and then he would kill her. Victim started crying and Stanley hit her in the
face again. Stanley instructed Victim to call Evans and drive them to Jones’s home.
When they got to Jones’s house, Evans came out, and Victim escaped from her vehicle.
Stanley shot Evans from Victim’s vehicle and then drove off without Victim.
Edwards and Jones heard gunshots from inside Jones’s home and ran outside.
Edwards and Jones found Evans had been shot and was lying in the street. Evans
said, “He shot me, he shot me.” Edwards and Jones saw Victim who was crying.
Jones asked Victim who shot Evans and she said Stanley. Victim also said that
Stanley was going to kill her children.
Evans was shot seven times, causing his death. Police located Victim’s vehicle
in the driveway of a vacant house near the gas station where she had met Stanley.
GPS mapping of Stanley’s cell phone records showed it was connecting to cell towers
in the vicinity of the crime scene and gas station at times relevant to his meeting with
Victim and the shooting of Evans. Stanley’s cell phone records also tracked Stanley’s
travel from Kansas City to Tulsa, Oklahoma after the shooting. On September 27,
2016, Stanley was arrested in Tulsa, Oklahoma. Stanley was charged as a prior
offender with murder in the first degree, armed criminal action and kidnapping in
the first degree.
3 On December 19, 2016 while Stanley was being held in the Jackson County
Detention Center, the State filed a motion requesting an order to prohibit Stanley
from having any contact with Victim. The State alleged Victim had been visiting
Stanley at the detention center. On January 9, 2017, the trial court granted the
State’s motion and prohibited any jail visits or phone calls between Stanley and
Victim. On March 9, 2017, the State filed a motion to deny Stanley’s phone privileges
altogether, alleging he attempted to call Victim 292 times since the trial court’s
January 9, 2017 order. On March 22, 2017, the trial court entered an order
completely revoking Stanley’s phone privileges while incarcerated during the
pendency of this case.
On December 9, 2017, Stanley’s attorney filed a motion to withdraw as
requested by Stanley. After a hearing, during which Stanley testified and executed
a waiver of counsel form, the trial court entered its order granting the motion to
withdraw finding Stanley’s waiver of the right to counsel timely, unequivocal,
knowing, and intelligent.
On January 10, 2018, a jury trial commenced after which Stanley was found
guilty of murder in the first degree and armed criminal action and sentenced to
consecutive sentences of life imprisonment without parole and life imprisonment.
Stanley was acquitted on the charge of kidnapping. Stanley filed an amended motion
for leave to file a motion for new trial out of time which was denied by the trial court.
Stanley appeals. Additional facts will be developed as they become relevant to
Stanley’s points.
4 Standard of Review
Stanley requests plain error review because he failed to properly preserve his
claims for review by filing a timely motion for new trial.4 To preserve a claim for
appellate review, an appellant must include the specific allegation of error in the
motion for new trial. State v. Nickels, 598 S.W.3d 626, 633 (Mo. App. E.D. 2020).
Nevertheless, we have discretion to review claims that are not preserved by inclusion
in a motion for new trial. Id.
“When analyzing an issue for plain error, this Court must find ‘manifest
injustice or a miscarriage of justice resulting from the trial court’s error.’” State v.
Ellis, 538 S.W.3d 335, 337 (Mo. App. W.D. 2017) (quoting State v. Celis-Garcia, 344
S.W.3d 150, 154 (Mo. banc 2011)). “The review for plain error is a two-part test. First,
this Court must determine whether ‘an evident, obvious, and clear error’ has occurred
that ‘facially establishes substantial grounds for believing that manifest injustice or
a miscarriage of justice’ has occurred.” Id. (quoting State v. Baumruk, 280 S.W.3d
600, 607 (Mo. banc 2009). “Second, “[i]f an error is found, the court must determine
whether the error actually resulted in a miscarriage of justice or manifest injustice.”
Id.
Analysis
Stanley raises eight claims on appeal. Stanley claims the trial court plainly
erred in: (1) compelling Victim to testify over her assertion of marital privilege; (2)
allowing Stanley to represent himself while his phone privileges were revoked; (3)
4Additionally, Points II, III, IV, VI, VII, and VIII were not preserved due to a lack of objection at trial.
5 admitting the testimony of Officer Arant about Victim’s identification of Stanley as
the shooter; (4) allowing the State to question Victim about prior alleged acts of
domestic violence against her by Stanley; (5) overruling Stanley’s objection and
allowing Tonya to testify; and (6-8) seating juror venirepersons 24, 44, and 41.
Point I – Assertion of Spousal Privilege
In Point I, Stanley argues that the trial court plainly erred in compelling
Victim to testify over her assertion of the spousal privilege because this ruling
violated sections 451.0405 and 546.260 in that Victim and Stanley entered into a valid
marriage ten months before trial. We disagree.
At trial, the State called Victim to testify and she invoked the spousal privilege.
Out of the presence of the jury, the trial court held a hearing regarding the validity
of the marriage between Victim and Stanley. Victim testified that she married
Stanley on March 8, 2017. Victim stated that she arranged to meet Natalie
Remington (“Remington”) at the Jackson County Detention Center on March 8, 2017,
for the purpose of marrying Stanley. Remington is an ordained wedding minister,
performing weddings under the business name, Your Magical Day. Upon meeting
Remington, Victim gave Remington the marriage license and certificate. Remington
signed the documents and gave them back to Victim. Soon thereafter, a prosecutor
came to the detention center and informed them that there was not going to be a
marriage that day. Victim and Remington were not allowed to see Stanley due to the
trial court’s no contact order. Nonetheless, Victim testified that Remington told her
5All statutory references are to RSMo 2016 as currently updated, unless otherwise noted.
6 that she and Stanley were married and Victim filed the marriage license with
Jackson County. Victim testified that the marriage license was not signed by any
witnesses. She talked to Stanley on the phone later that day and told him they were
married even though they were not allowed to see him, to which he was surprised.
Remington never spoke to Stanley, had not seen him until the day of trial, nor
was she able to recall his name at trial. She never confirmed with Stanley that he
wanted to be married to Victim. She acknowledged that there was no marriage
ceremony. Remington explained that she signs the marriage license and certificate
before prison weddings because the prisons do not allow her to bring in a pen.
Remington did not attempt to retrieve the marriage license and certificate from
Victim because she believed that was the prosecutor’s responsibility because she “was
out of the equation.” The following question and answer took place:
Q (by Prosecutor): So you thought it was the prosecutor’s responsibility to take back paperwork that you signed before you solemnized a marriage?
A (by Remington): Yes, I did.
Remington further stated that she told Victim that she was married because
Remington signed the marriage license. Remington testified that now she
understands that Missouri does not permit marriages where one of the people to be
married is not present.
The trial court found that the marriage was not valid because it was not
solemnized. The trial court found that “[t]o solemnize . . .is to perform a formal
ceremony such as a marriage ceremony before witnesses as distinguished from a
7 clandestine ceremony. It’s defined as a formal act before witnesses.” The trial court
found that the section 193.185 requires witnesses. After hearing the audio recording
of the call in which Victim tells Stanley that he is married, the trial court concluded
that “his response to the situation did not appear to be someone that recognized they
were married.” The trial court also noted that the marriage license says “Return of
person solemnizing marriage. It appears that [Remington] shouldn’t have signed this
document until afforded the opportunity to solemnize the marriage. She did not
solemnize the marriage.” The trial court read section 451.040.1, which stated, “no
marriage contracted shall be recognized as valid unless the license has been
previously obtained and unless the marriage is solemnized by a person authorized by
law to solemnize marriages.” The trial court ordered Victim to testify because there
was no valid marriage; that the spousal privilege does not apply. We agree with the
trial court’s findings.
Section 546.260 which provides for the spousal privilege states, in pertinent
part, “no person on trial or examination, nor wife or husband of such person, shall be
required to testify[.]” Implicit in this right to invoke the spousal privilege is existence
of a valid marriage. See State v. Nolan, 316 S.W.2d 630, 635-36 (Mo. 1958) (no
privilege if two people are not legally married because a license was not obtained);
State v. Byrd, 676 S.W.2d 494, 500-01 (Mo. banc 1984) (no privilege where one party
to the purported marriage is married to a third party); State v. Hankins, 642 S.W.2d
606, 611-12 (Mo. banc 1982) (no privilege where purported common law marriage
does not qualify as a legal marriage). “‘The party claiming a privilege must show it
8 is applicable.’” State v. Davies, 330 S.W.3d 775, 795 (Mo. App. W.D. 2010) (citation
omitted). Therefore, the burden is on Stanley to demonstrate a valid marriage exists
to provide a basis for Victim to assert the spousal privilege not to testify against
Stanley.
In determining whether a valid marriage exists, this court looks to see if
Stanley and Victim complied with the statutorily proscribed requirements. Nelson v.
Marshall, 869 S.W.2d 132, 134 (Mo. App. W.D. 1993). As a part of Missouri’s laws
regulating marriage, section 451.040.1 requires a license be obtained and the
marriage be solemnized. Section 451.040.1 provides:
Previous to any marriage in this state, a license for that purpose shall be obtained from the officer authorized to issue the same, and no marriage contracted shall be recognized as valid unless the license has been previously obtained, and unless the marriage is solemnized by a person authorized by law to solemnize marriages.
Additionally, section 193.185.3 governing the marriage certification requires, “Each
person who performs a marriage shall certify the fact of marriage and return the
license to the official who issued the license within fifteen days after the ceremony.
This license shall be signed by the witnesses to the ceremony.” And, section 451.080.3
requires that the person solemnizing the marriage shall certify the marriage on the
license and return it to the recorder within fifteen days after issuance.
The general rule when interpreting a statute is to ascertain the legislative intent from the statute's language, to give effect to that intent if possible, consider the words in their plain and ordinary meaning, and when the language is unambiguous, we are afforded no room for construction. In determining whether the language is clear and unambiguous, the standard is whether the statute's terms are plain and clear to one of ordinary intelligence.
9 Nelson, 869 S.W.2d at 134 (internal quotation marks and citations omitted).
It is undisputed that a license was obtained by Victim.6 Thus, the only issue
regarding compliance with section 451.040.1 is whether the marriage was
solemnized; it was not. The language “no marriage hereafter contracted shall be
recognized as valid . . . unless the marriage is solemnized by a person authorized by
law to solemnize marriages” is unambiguous on its face. The plain language of the
statute requires solemnization for a valid marriage contract. However, section
451.040 does not define the term solemnization. In Chervitz v. Bi-State Development
Agency, 11 S.W.3d 714, 717 (Mo. App. E.D. 1999), the Court stated, “‘to solemnize
means nothing more than to be present at a marriage contract, in order that it may
have due publication, before a third person or persons, for the sake of notoriety and
the certainty of its being made.’” (quoting Dyer v. Brannock, 66 Mo. 391 (1877)).
Solemnization is defined as “the performance of a formal ceremony (such as a
marriage ceremony) before witnesses, as distinguished from a clandestine ceremony.”
Black’s Law Dictionary (11th ed. 2019). These definitions are both consistent with the
requirement of witnesses set forth in section 193.185.3.
Here, it is undisputed that there was no ceremony of any kind and that Victim
and Stanley never appeared together before a third person. It is also undisputed that
the license was not signed by any witnesses as required by section 193.185.3 and that
it was not returned to the recorder by Remington as required by section 451.080.
6 Section 451.040.2(1) requires an incarcerated marriage license applicant submit an affidavit to the recorder of deeds. State’s exhibit D reflects such an affidavit was executed by Stanley and submitted to the recorder of deeds.
10 In his brief, Stanley argues that the prosecutor in a criminal case has no
standing to challenge the validity of his purported marriage to Victim. However, at
oral argument, Stanley conceded that the State has standing to challenge Victim’s
assertion of the spousal privilege. As such, Stanley’ s standing argument is deemed
abandoned.
Stanley cites Meister v. Moore, 96 U.S. 76 (1877), where it was held that the
form of the ceremony--or even if all ceremony was dispensed with--took second seat
to the intent of the parties to be married. That case is not helpful here as it involved
the approval of a common law marriage in Michigan. Missouri does not recognize
common law marriages and implemented solemnization and license requirements to
eliminate common law marriages. Nelson, 869 S.W.2d at 134.
Stanley cites Chervitz but it is not helpful to his case in that, there, it was
undisputed that the couple appeared before a minister and a ceremony was
performed. 11 S.W.3d at 716. The issue in Chervitz was that the minister who
performed the ceremony failed to sign the marriage license. Id. Stanley notes that
the Court in Chervitz cited Dyer, 66 Mo. at 410, for the statement that “to solemnize
means nothing more than to be present at a marriage contract, in order that it may
have due publication, before a third person or persons, for the sake of notoriety and
the certainty of its being made.” 11 S.W.3d at 717. This definition does not help
Stanley’s case either as he was not present with Victim before a third person.
Finally, Stanley cites the Virginia case Levick v. MacDougall, 805 S.E.2d 775
(Va. 2017) for the statement that Virginia law does not require the parties to
11 marriage be in the presence of each other or in the presence of the officiant. The law
of Virginia is not instructive or compelling here.
Because it is undisputed that the parties did not comply with the statutory
requirements for a valid marriage, we cannot find “‘an evident, obvious, and clear
error’ has occurred that ‘facially establishes substantial grounds for believing that
manifest injustice or a miscarriage of justice’ has occurred.” Ellis, 538 S.W.3d at 337
(citation omitted). Therefore, the trial court did not plainly err in determining that
there was no valid marriage between Stanley and Victim and, thus, the spousal
privilege did not apply.
Point I is denied.
Point II – Ability to Investigate the Case
In Point II, Stanley argues that the trial court plainly erred in allowing him to
represent himself because his waiver could not be voluntary, unequivocal, knowing
and intelligent because the trial court failed to give Stanley the ability to investigate
his case since his phone privileges from the jail were totally denied.7
The Sixth Amendment right to counsel implicitly embodies a correlative right to dispense with a lawyer’s help. This right applies to the states through the Due Process Clause of the Fourteenth Amendment. The circuit court has no discretion to force an attorney upon a defendant who validly waives the right to counsel. Nevertheless, for a waiver of counsel to be effective, due process requires that the waiver be made knowingly and intelligently.
7Regarding standard of review, we note that a “self-represented defendant’s failure to object at trial regarding the knowing, voluntary, and intelligent nature of his waiver of the right to counsel is generally excused,” however, the defendant is bound to raise the claim in a motion for new trial. State v. Kunonga, 490 S.W.3d 746, 759-60 (Mo. App. W.D. 2016). Here, Stanley did not raise this claim at trial or in a motion for new trial and, therefore, it is not preserved for review. Id. Thus, like the other points raised on appeal, it is subject to plain error review only. Id.
12 Missouri has two requirements that must be satisfied before the circuit court can conclude that a defendant has effectively waived the right to counsel. First, there must be a thorough Faretta8 evidentiary hearing that establishes that the defendant understands exactly what rights and privileges he is waiving, as well as the dangers associated with waiving constitutional rights. Second, the defendant must be given the opportunity to sign the written waiver of counsel form mandated by Section 600.051.
Looking first at the adequacy of the waiver of counsel hearing, we note that there is no specific litany required for a Faretta hearing. Instead, whether a Faretta hearing establishes that a waiver of counsel is knowingly and intelligently made depends on the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. The defendant’s knowledge of all relevant facts need not appear in the trial record to support a finding that the waiver of counsel was proper.
....
Section. 600.051.1 outlines the required contents of [the written waiver of counsel,] which is to be signed before and witnessed by the judge or clerk of the court and read by or to the defendant before signing . . . . The written waiver required by this section provides objective assurance that the defendant’s waiver is knowing and voluntary.
State v. Ndon, 583 S.W.3d 145, 154-56 (Mo. App. W.D. 2019) (internal citations
and quotation marks omitted).
Here, the trial court conducted a Faretta hearing, and Stanley executed a
written waiver of counsel form pursuant to section 600.051. On December 9, 2017,
defense counsel filed a motion to withdraw upon Stanley’s request to proceed pro se.
On December 13, 2017, the trial court held a Faretta hearing and heard evidence on
defense counsel’s motion to withdraw. The trial court heard testimony from Stanley
and the trial court prepared the section 600.051 written waiver of counsel. The trial
8Faretta v. California, 422 U.S. 806 (1975).
13 court questioned Stanley extensively regarding his right to legal representation, his
appointed counsel, his education, the reasons why he wanted to represent himself,
the possibility of stand-by counsel, the responsibilities and risks of representing
himself at trial, his legal knowledge, the range of punishment he was facing, the court
rules, and whether he has any mental or physical impairments. Although the trial
court advised Stanley that it would consider it a mistake for him to proceed pro se,
Stanley said he understood but still wanted to represent himself.
The written waiver complied with the requirements set forth in section
600.051, including that it was read to and signed by Stanley and witnessed by the
trial court. The trial court found that Stanley’s waiver of the right to counsel is
“timely, unequivocal, knowing, and intelligent” and granted his request to represent
himself. Over defense counsel’s and Stanley’s objections, the trial court ordered
defense counsel to remain in the case as stand-by counsel and to be present at the
trial of the case. The trial court continued the case to January 8, 2018. The trial
court granted Stanley an additional eight hours per week in the law library at the
Jackson County Detention Center.
At a pretrial conference on December 18, 2017, the trial court inquired if
Stanley still wished to represent himself to which Stanley responded affirmatively.
The trial court granted stand-by counsel’s motion to withdraw. At this hearing, after
Stanley advised he still wished to represent himself, Stanley made an oral motion
requesting that the trial court rescind its March 22, 2017 order revoking his phone
privileges because it was hindering his trial preparation. During this hearing,
14 Stanley volunteered that even though his phone privileges had been ordered revoked,
he had still managed to gain telephone access and had contacted Victim in violation
of the trial court’s no-contact and no-telephone-access orders, thus defying two,
separate orders of the trial court. The trial court advised Stanley that it would not
rescind an order which he admitted violating and denied Stanley’s motion. After
denying said motion, the trial court stated it would call Stanley back to the stand and
“have a little bit more of the Faretta hearing because this could have a material
impact on [Stanley’s] decision” to represent himself. Stanley testified that the trial
court’s decision not to rescind its order regarding his phone privileges did not change
his decision to represent himself. In its order the trial court stated:
After issuing its ruling, the Court again questioned the Defendant under oath regarding his decision to proceed Pro Se. The Defendant remained steadfast that he intended to proceed Pro Se. Based on the Defendant’s continued invocation of his constitutional right to represent himself, the Court permits the Defendant to proceed Pro Se.
Stanley does not allege any deficiencies with either the Faretta hearing or the
written waiver. Stanley’s sole argument is that because the trial court would not
reinstate his phone privileges, he could not investigate his case for trial, and
therefore, the trial court should not have allowed counsel to withdraw.
Stanley relies solely on People v. Finkelstein, 68 N.E.3d 64, 67 (N.Y. App. 2016),
where the New York court of appeals held that the trial court did not infringe on
defendant’s constitutional right to represent himself by ruling that he forfeited his
right of self-representation during pretrial proceedings where defendant had abused
his privileges of phone and library access in such a way that jeopardized his ability
15 to prepare for trial. Stanley fails to demonstrate Finkelstein’s application to the facts
of this case. We find Finkelstein neither controlling nor instructive in that the facts
of Finkelstein are clearly distinguishable. Finkelstein was already proceeding pro se,
after which time the court determined he had abused his phone and library privileges,
thereby jeopardizing his ability to prepare. Id. Here, Stanley had already lost his
phone privileges when he exercised his right to represent himself. He was questioned
at length, twice, by the learned trial judge, as well as signing the written waiver of
counsel. Both times, Stanley ultimately chose to represent himself despite the
concerns expressed by the court.
We find that the trial court’s Faretta hearing elicited ample evidence that
Stanley’s waiver of his right to counsel was voluntary, unequivocal, knowing, and
intelligent even after his December 18, 2017 motion to reinstate his phone privileges
was denied. Stanley also signed the written waiver of counsel which “provides
objective assurance that the defendant’s waiver is knowing and voluntary.” Ndon,
583 S.W.3d at 156. Therefore, we do not find evident, obvious, and clear error by the
trial court in allowing Stanley to represent himself.
Point II is denied.
Point III – Admissibility of Officer Arant’s Testimony
In Point III, Stanley argues that the trial court plainly erred in admitting
testimony of Officer Arant about Victim’s identification of Stanley as the shooter to
Officer Kaylee Lull (“Officer Lull”) in violation of Stanley’s right to confrontation
16 because Victim’s statements were testimonial and did not fall under the excited
utterance exception.
At trial, Officer Arant testified that on September 25, 2016, he was a field
training officer supervising Officer Lull. Officer Arant stated he and Officer Lull were
riding in the same squad car when they responded to the scene of the shooting.
Officer Arant stated he was with Officer Lull when she interviewed Victim who was
visibly upset, shaking, and crying. Officer Arant testified that he heard Victim tell
Officer Lull that she had picked up Stanley in her vehicle; that Stanley had her drive
back to this location; that Stanley had her call Evans to come out of the house; and
that Stanley shot Evans.
Stanley argues that Victim’s identification of him as the shooter to Officer Lull
was testimonial hearsay that did not qualify under the excited utterance exception.
In his argument, Stanley sets out the testimony of Jones and Edwards where they
testified that Victim identified Stanley as the shooter at the scene. Stanley argues
that even if Victim’s identification of Stanley as the shooter to Jones and Edwards
qualified as excited utterances, her identification of Stanley as the shooter to Officer
Lull did not because she had the opportunity to calm down by the time she spoke to
Officer Lull.
Even if we found that it was error to admit Officer Arant’s testimony, which
we do not, we cannot find that the admission of this testimony resulted in a
miscarriage of justice or a manifest injustice because this evidence was cumulative.
“‘An allegedly wrongful admission of hearsay testimony does not constitute plain
17 error if such testimony is merely cumulative to other evidence properly admitted.’”
State v. Lucio, 247 S.W.3d 131, 135 (Mo. App. S.D. 2008) (quoting State v. Goodwin,
43 S.W.3d 805, 818 (Mo. banc 2001)). Here, State’s exhibit 3, the dash cam video
recording of Officer Lull’s interview of Victim in which Victim states that Stanley was
the shooter, had already been admitted into evidence and played for the jury.
Moreover, Victim identified Stanley as the shooter in State’s exhibit 71, her video
recorded statement to police which was also admitted into evidence and played for
the jury. Furthermore, as Stanley sets out in his argument, Jones and Edwards each
testified at trial that Victim identified Stanley as the shooter at the scene.
Stanley also argues that the admission of Officer Arant’s testimony violates
the Confrontation Clause without any further explanation. Stanley cites Crawford
v. Washington, 541 U.S. 36 (2004), for the statement, “Admission of testimonial
hearsay where there is no opportunity to cross-examine the declarant violates the
Confrontation Clause.” Here, Stanley’s argument fails on its face because Victim
testified at trial and was subject to cross-examination by Stanley.
The trial court did not plainly err in admitting the testimony of Officer Arant.
Point III is denied.
Points IV – Prior Acts of Domestic Violence
In Point IV, Stanley argues that the trial court plainly erred in allowing the
State to question Victim regarding prior alleged acts of domestic violence against her
by Stanley because this line of questioning violated Stanley’s rights to due process
and to be tried only for the crime with which he was charged in that any probative
18 value that this improper propensity evidence may have had to shed light on any
material issue was clearly outweighed by its prejudicial impact. We disagree.
“‘[A] defendant has the right to be tried only for the offense for which he is on
trial, and . . . evidence of other crimes committed by [the] defendant is normally
inadmissible.’” State v. Berwald, 186 S.W.3d 349, 358 (Mo. App. W.D. 2005) (citation
omitted). “While evidence of a criminal defendant’s prior bad acts is generally
inadmissible, a defendant is not in a position to complain of the State inquiring about
matters brought into the case by his own question.” State v. Fassero, 256 S.W.3d 109,
118 (Mo. banc 2008). “In other words, a defendant may not provoke a reply to his
own argument and then claim error.” Id.
Here, Stanley does not allege that the State inquired of prior bad acts on direct
examination and complains only of the State’s questioning on re-direct examination.
Stanley, however, opened the door to this evidence by asking Victim on cross-
examination about any prior domestic violence in their relationship. Stanley asked
Victim, “Was there any physical or domestic abuse in the home while you and
[Stanley] was [sic] together?” Victim answered, “No.” Victim also denied that she
had told law enforcement that there was abuse in the home. On redirect, the State
asked Victim about physical abuse by Stanley in their relationship. In response,
Victim stated that she did not remember describing domestic abuse to law
enforcement. At no time during its direct examination of Victim did the State seek
to elicit testimony of Stanley’s violence against Victim. It was only after Stanley
opened the door on cross-examination for such evidence to be elicited and after
19 Victim’s denial of domestic violence on redirect examination, that the State played
Victim’s recorded interview in which she described the prior acts of violence
committed by Stanley against her. Therefore, we cannot find evident, obvious and
clear error as Stanley opened the door to this line of questioning.
Point IV is denied.
Point V – Stanley’s Mother is a Proper Witness
In Point V, Stanley claims that the trial court plainly erred in overruling his
objection and allowing Tonya to testify because the State served her with a subpoena
in the middle of trial, surprising Stanley in violation of his right to due process, fair
trial and to present a defense because the late disclosure prevented Stanley from
having sufficient time to prepare to meet the State’s case. We disagree.
It is undisputed that Tonya was endorsed as a witness prior to trial. However,
the State was unable to serve her a subpoena to testify until she brought Stanley
lunch during the trial. Nonetheless, the trial court gave Stanley the opportunity to
interview Tonya before she testified, which he rejected.
Rule 25.03(b)(2) provides that the State must disclose to defendants the
witnesses it intends to call at trial, together with their written or recorded
statements.
Stanley concedes in his argument that this was not a discovery violation and
that Tonya had been endorsed as a witness by the State. Stanley cites authority
regarding discovery violations which is inapplicable in light of his concession that no
discovery violation took place here. If Stanley believed that Tonya’s testimony still
20 amounted to a surprise for which he was unable to prepare, he would have accepted
the trial court’s invitation to interview her before she took the stand, a remedy
Stanley rejected. State v. Boss, 577 S.W.3d 509, 516 n.11 (Mo. App. W.D. 2019).
Further, a subpoena is not required for a witness to provide competent
testimony, it merely compels the attendance of the properly-served witness at trial.
Stanley’s claim of surprise is without merit as Tonya was disclosed as a witness
during discovery. The fact that Tonya was not served until mid-trial does nothing to
affect her competency as a witness because of the State’s proper disclosure during the
discovery phase of the case.
Thus, we cannot find evident, obvious, and clear error by the trial court in
allowing a properly endorsed witness to testify.
Point V is denied.
Points VI, VII, and VIII – Court’s Failure to
Strike Venirepersons sua sponte
In Points VI, VII, and VIII, Stanley claims that the trial court plainly erred in
seating juror venirepersons 24, 44, and 41. Stanley did not request that any of these
venirepersons be struck. Stanley claims the trial court plainly erred in failing to sua
sponte prevent these three members of the venire panel from serving as jurors. We
disagree.
Stanley’s failure to challenge these venirepersons for cause “results in a waiver
of review.” State v. Skinner, 494 S.W.3d 591, 594 (Mo. App. W.D. 2016). “The
requirement of contemporaneous objections to the qualification of jurors is a well-
21 founded rule that minimizes ‘the incentive to sandbag in the hope of acquittal and, if
unsuccessful, mount a post-conviction attack on the jury selection process.’ Post-
conviction challenges to jury selection, therefore, are ‘highly suspect.’” Id. (citations
omitted).
Stanley’s request for plain error review fails because:
Missouri courts have consistently held that a trial court is under no duty to remove any venire member sua sponte. Where the trial court is under no duty to strike a venire member on its own motion, there is no evident, obvious, or clear error, and therefore no plain error. Because there is no plain error, this Court need not proceed to the second step of determining whether the claimed error resulted in manifest injustice or a miscarriage of justice.
Id. (citations and internal quotation marks omitted).
Nonetheless, we find that even if the trial court did have a duty, each of
Stanley’s claims with regard to these venirepersons fail. Stanley argues that
venireperson 24 should have been struck because she stated that she could not be fair
and impartial due to the murder of her sister. Upon review of the record, it appears
that an error in the transcript was made where, in fact, it was venireperson 42, not
24, that stated she could not be fair and impartial due to the murder of her sister.
Venireperson 42 was struck for that reason. The record reflects that in response to
the State’s question regarding whether anyone had been a victim of a violent crime,
venireperson 24 responded that she was at the Boston Marathon bombing. The State
then noted that it saw three other hands and called on venireperson 42, who
answered that her sister was murdered. The excerpt from the transcripts reflects the
line of questioning and the typographical error:
22 Venireperson No. 24: I was at the Boston Marathon bombing.
State: And is there anything about that experience that you believe would prevent you from being fair and impartial in this case?
Venireperson No. 24: No.
State: I saw three other hands. Juror No. 42, yes, ma’am?
Venireperson No. 24 [sic]: My sister was murdered.
The conversation continues about the murder and concludes with that
venireperson stating that she thinks it would prevent her from being fair and
impartial in this case. Later, at the conference on strikes, the State moved to strike
Venireperson 42 for cause because “[t]his individual was the one that had a sister
that was murdered . . . and said she could not be fair and impartial.”
Stanley claims that venireperson 44 should have been struck because he was
unable to say unequivocally that he could be fair and impartial. We disagree. The
record reflects that venireperson 44 responded affirmatively to the State’s inquiry to
the panel as to whether they had previously heard of this case. In response to further
questioning, venireperson 44 stated that he had read an article that may have been
about this case. The State, the Court, and Stanley questioned venireperson 44.
Ultimately, in response to whether he could set aside what he had read and be guided
by the evidence that he heard during the trial, venireperson 44 stated, “I believe I
could do it” and “I would do my best.”
Similarly, Stanley claims venireperson 41 should have been struck because she
was unable to say unequivocally that she could be fair and impartial. Venireperson
41 responded that her sister had been murdered and she had been a victim of
23 domestic violence. When asked if she could set aside those experiences and be fair
and impartial, she stated, “I believe so.”
Venirepersons 44 and 41 did not state that they could not be fair and impartial.
In fact, both jurors stated that they believed they could be fair and impartial. Stanley
cites State v. Hopkins, 687 S.W.2d 188 (Mo. banc 1985) which is factually
distinguishable. First, the alleged error in Hopkins was the trial court’s failure to
grant the defendant’s challenge for cause to a venireperson who struggled with
uncertainty as to his ability to be impartial. Here, Stanley made no such challenge
and instead relies on plain error review. Second, in finding reversible error in
Hopkins, the Supreme Court noted that not once did the venireperson unequivocally
state he could try the case impartially, only that he would try to be impartial. Id. at
191. Here, both venirepersons stated that they believed they could be impartial, not
that they merely hoped to or would try to be impartial.
Because the trial court is under no duty to strike a venire member on its own
motion, we find no evident, obvious, or clear error in the trial court for seating
venirepersons 24, 44, and 41. Skinner, 494 S.W.3d at 594.
Points VI, VII, and VIII are denied.
Conclusion
We affirm the trial court’s judgment.
__________________________________________ W. DOUGLAS THOMSON, JUDGE All concur.