In the Missouri Court of Appeals Eastern District DIVISION FIVE
STATE OF MISSOURI, ) No. ED110076 ) Respondent, ) Appeal from the Circuit Court ) of St. Louis County vs. ) ) Honorable Brian H. May KEVIN FIELDS, ) ) Appellant. ) FILED: July 25, 2023
Introduction
Kevin Fields (“Fields”) appeals his convictions following a jury trial for murder in the
first degree, armed criminal action, robbery in the first degree, and domestic assault in the second
degree of Tami Allen (“Victim”). Fields raises three points on appeal. Fields contends that the
trial court abused its discretion in allowing lab reports, which were prepared by the State’s
experts and admitted into evidence, to be sent to the jury during its deliberations because the
exhibits were testimonial in nature. Fields next argues the trial court erred in admitting Victim’s
statements to police after Fields assaulted her in a prior incident and statements related to an
order of protection against Fields on the grounds that the evidence was inadmissible hearsay and
denied Fields his right to confront and cross-examine all witnesses.
Because the lab reports were not testimonial for the purpose of allowing the jury to
review them during its deliberations, we deny Point One. Because the State showed that Fields intended to make Victim unavailable to testify against him in the pending domestic assault case,
the evidence relating to Victim’s protection order and police statement were properly admitted
under the doctrine of forfeiture by wrongdoing, and we deny Points Two and Three.
Accordingly, we affirm the trial court’s judgment.
Factual and Procedural History
Viewed in the light most favorable to the verdict, the following evidence was adduced at
trial:
On January 5, 2016, Victim called her stepfather (“Stepfather”) and asked if he would
“get [Fields] out” of her home because he was calling her names. When Fields heard Victim
asking for Stepfather’s help, he tried to snatch Victim’s cell phone from her hands. Fields started
hitting Victim after he failed to grab her phone. Before Stepfather could hang up the phone,
Victim said “Dad, he’s hitting me. He’s hitting me.” Shortly thereafter, Victim called 911 and
stated that Fields just beat her up. Fields was outside the house during the 911 call, but went
back inside and assaulted Victim again.
Following the January 5 assault, Victim stayed with Stepfather for three weeks and
changed her locks to prevent Fields from using his key to access her home. Victim gave a
written statement to the police describing the January 5 assault, which included the following:
[Fields] began to call me a hoe and a b**** so I called [Stepfather]. When [Fields] heard me ask [Stepfather] to come over and talk to him, he immediately ran from the kitchen to the living room where I was and attempted to snatch the phone out of my hand; when he wasn’t successful at that he began to punch me in my face repeatedly. I ran to my bedroom and as he walked out the front door he threw the t.v. on the floor and broke it. I stayed in my bedroom and called 911. Then [Fields] came back in the house[,] busted down the bedroom door and began to punch me in my face and body. Then as he was leaving[,] he said, “When I come back. I’m f***ing your a** up! On Me!”
On January 8, 2016, Victim obtained an order of protection against Fields. The petition
for that protection order alleged that Fields caused or attempted to cause Victim physical harm 2 and that Fields placed or attempted to place Victim in apprehension of immediate physical harm.
The petition also alleged that Fields had threatened to coerce, stalk, harass, sexually assault, and
unlawfully imprison Victim, and followed her from place to place. Victim’s statements in the
petition mirrored her statements to police. Specifically, Victim stated in the petition that “Kevin
[Fields] repeatedly punched me in my face several times. I ran to my room to call 911. And he
came in by busting down the door and began to punch me in my face and arm (right arm). As he
was leaving, he said, ‘When I get back, I’m whooping your a** … on me!’” Victim further
stated that “Kevin [Fields] has been physically and verbally abusing me. I am afraid of him
because he has access to firearms. And I have children in my home.” There is no indication in
the record that Victim served Fields with the order of protection.
In the accompanying domestic violence court risk assessment form, Victim indicated that
Fields called her names, criticized her, and had been possessive or inappropriately jealous.
Victim also indicated that Fields made threats to scare and/or intimidate her, including
threatening to harm himself or her; used physical violence against her, such as slapping, hitting,
pushing, kicking, choking, biting, restraining; destroyed her property and personal belongings;
used or threatened to use a weapon such as a gun, knife, or other object against her; and drove
recklessly when she and her children were in the car. Victim wrote on the assessment form:
“Kevin [Fields] repeatedly punched me in my face while my [seven-year-old] daughter was in
the house. He also punched me several times in my face, head, and right arms within that same
night.”
Shortly before midnight on February 4, 2016, Torence Smith (“Smith”) received text
messages from Victim saying that someone was in her house and that she was afraid to talk.
Later, officers discovered that Victim had texted someone or a group of people asking them to
3 call 911 and provided her address. Smith arrived five minutes after receiving the text messages
and then he called 911 because he could hear a “commotion” inside the house. When police
officers arrived, they found Victim in the living room lying on her back with her head partially
jammed through the drywall baseboard. Victim had suffered multiple injuries. Victim was
semiconscious, but she could not communicate with anyone. Victim had numerous traumatic
injuries to her face and had penetrating wounds to her chest, neck, head, face, abdomen, arm,
hand, back, thigh, and buttocks. When paramedics attempted to intubate Victim, she went into
full cardiac arrest. Victim was pronounced dead after arriving at the hospital. An autopsy
revealed that her cause of death was multiple stab wounds to her neck and chest, and the manner
of death was homicide.
The next morning, police officers found a navy-blue skull cap and a wallet/cell phone
holder in the backyard of a residence about three blocks from Victim’s home. Both items had
reddish-brown stains, later determined to be blood. The wallet/cell phone holder contained a
card with Victim’s name on it, along with Victim’s cell phone. Police officers found a trail of
blood on chain-link fences leading from Victim’s residence to where the skull cap and wallet/cell
phone holder had been recovered.
Police officers identified Fields as a suspect after learning that he was issued a citation
with a return court date for the January 5 assault and that Victim had sought an order of
protection against him. Additionally, police officers recovered from Victim’s residence a
bloodstained EBT card issued to Fields.
Fields’s sister (“Sister”) testified that she talked to Fields on the day Victim was
murdered. Fields was upset because Victim “had pressed charges on him because of a recent
4 fight they had.” Previously, Victim told Sister that she was going to end her relationship with
Fields because she “didn’t want to get beat up anymore.”
During the time of the incident leading to the murder charges, Fields was living with his
cousin, Lavonda Logan (“Logan”). Logan told police that on the night Victim was murdered,
Fields was not home when she went to sleep around 10:00 p.m. or 10:30 p.m. When she woke
up at 3:00 a.m. that morning, Fields was sleeping on a couch in the basement. At Logan’s home,
police found blood on a wall in her home near the bathroom.
Fields evaded police until February 18, 2016. Detectives Joseph Percich (“Det. Percich”)
and Justin Adams (“Det. Adams”) helped apprehend Fields after he barricaded himself inside of
a house. Fields eventually gave himself up.
On February 18, 2016, Officer Rebecca Gardiner (“Officer Gardiner”) went to the
residence in which Fields had barricaded himself and found a key and a key fob. Officer
Gardiner met Det. Adams at a tow lot where Fields’s car was being kept and used the key to
unlock Fields’s car. Officers tested the interior of the car for blood. The center console, center
console armrest, the driver’s seat, and the brake pedal all indicated the presence of blood.
The State charged Fields with murder in the first degree, armed criminal action, robbery
in the first degree, and domestic assault in the second degree. The first three counts were alleged
to have occurred on or about February 4, 2016, and the domestic-assault count was alleged to
have occurred on or about January 5, 2016.
Prior to trial, the State moved to admit Victim’s hearsay statements under the doctrine of
forfeiture by wrongdoing. Over Fields’s objection, the trial court granted the State’s motion,
noting the State showed by clear and convincing evidence that it would be able to demonstrate at
trial that Fields intended to make Victim unavailable as a witness in the domestic-assault case,
5 which was pending at the time of her death. The trial court further ordered that the State would
be permitted to offer evidence related to the following: statements made by Victim to her
Stepfather during the January 5 phone call; the circumstances surrounding the January 5, assault;
Victim’s statements to police officers regarding the January 5 assault (“Victim’s Police
Statements”); Victim’s statements contained in the ex parte order for protection and its
associated domestic violence court risk assessment form (“Victim’s Protection-Order
Statements”); and other information related to the domestic-assault charge, including the
issuance of a summons and a court date scheduled for March 2, 2016.
At trial, the State offered testimony from expert witnesses Kyra Groeblinghoff
(“Groeblinghoff”) and Jesse Quinlan-Freihoff (“Freihoff”) (collectively the “Expert Witnesses”)
regarding the blood and DNA evidence collected during the police department’s investigation.
Groeblinghoff testified that Victim was the source of DNA samples collected from several
locations, including Victim’s home, a knife found in Victim’s home, Fields’s car door handle,
Logan’s home, and on the fences leading to the yard where Victim’s cellphone and the skullcap
were recovered. Groeblinghoff further testified that several samples contained a mixture of
DNA from different sources and explained that while Fields was included as a possible source in
some samples, many samples were inconclusive or completely excluded him. Freihoff testified
that several brown or red stains on several pieces of evidence were positively identified as blood.
Fields had objected to all testimony regarding DNA or blood analysis and to the admission into
evidence of the lab reports (the “Lab Reports”) prepared by the Expert Witnesses, which
comprised the DNA and blood analysis reports. The trial court admitted the reports over Fields’s
objections. During its deliberations, the jury requested certain reports of blood and DNA
analysis the Expert Witnesses had prepared. Fields objected to providing the jury with the Lab
6 Reports, arguing that the Lab Reports were testimonial in nature and thus improper to send to the
jury. The trial court determined that the Lab Reports were not testimonial and allowed the
reports to be reviewed by the jury. To avoid unnecessary length and repetition, further details
about the contents of the Lab Reports will appear later in the opinion.
The jury found Fields guilty on all counts. Fields filed a motion for new trial alleging,
among other claims, that the trial court erred in admitting the exhibits of Victim’s hearsay
statements under the forfeiture-by-wrongdoing doctrine and in permitting testimony about those
exhibits. Fields further alleged that the Lab Reports were testimonial exhibits that should not
have been given to the jury during deliberations. The trial court overruled the motion for new
trial and sentenced Fields to life imprisonment without parole for murder in the first degree, two
terms of life imprisonment for armed criminal action and robbery in the first degree, and one
term of seven years for domestic assault in the second degree, with all counts ordered to run
consecutively. This appeal follows.
Points on Appeal
Fields raises three points on appeal. In his first point, Fields argues the trial court abused
its discretion in sending the Lab Reports to the jury during deliberations. Fields maintains the
Lab Reports were testimonial in nature, and by allowing the jury to have the physical reports
during deliberation, the testimony of the Expert Witnesses was unduly bolstered and emphasized,
and the jury was allowed to give such testimony undue weight. In his second and third points,
Fields contends the trial court erred in allowing the State to introduce and elicit testimony
regarding certain hearsay statements by Victim prior to her death because the evidence was
inadmissible hearsay, denied Fields his rights under the Confrontation Clause, and was not
admissible under the doctrine of forfeiture by wrongdoing.
Discussion 7 I. Points Two and Three—Admission of Victim’s Hearsay Statements
A. Standard of Review
“Typically, this Court reviews evidentiary rulings for an abuse of discretion.” State v.
Smith, 636 S.W.3d 576, 579 (Mo. banc 2022) (citing State v. March, 216 S.W.3d 663, 664 (Mo.
banc 2007)); State v. Hosier, 454 S.W.3d 883, 896 (Mo. banc 2015) (citing State v. Bell, 950
S.W.2d 482, 484 (Mo. banc 1997)). “Whether a criminal defendant’s rights were violated under
the Confrontation Clause[,] however, is a question of law this Court reviews de novo.” Smith,
636 S.W.3d at 579 (citing State v. Justus, 205 S.W.3d 872, 878 (Mo. banc 2006)). Our review is
for prejudice, not mere error, therefore we will reverse the trial court’s decision only if the error
was so prejudicial as to deprive the defendant of a fair trial. State v. McLaughlin, 265 S.W.3d
257, 262 (Mo. banc 2008).
B. Analysis
Generally, the Confrontation Clause of the U.S. and Missouri Constitutions prohibit the
admission of testimonial statements of a witness who did not appear at trial unless the witness
was unavailable to testify and the defendant had a prior opportunity for cross-examination.
Crawford v. Washington, 541 U.S. 36, 53–54 (2004); see Smith, 636 S.W.3d at 579 (citing U.S.
Const. amend. VI; Mo. Const. art. I, section 18(a)). For purposes of the Confrontation Clause, a
statement is considered to be testimonial if it was given while there was no emergency in
progress and was made for the purpose of establishing or proving past events potentially relevant
to later criminal prosecution. Davis v. Washington, 547 U.S. 813, 822, 829 (2006).
Here, prior to Fields’s trial for Victim’s murder, Victim gave statements to police officers
and others that Fields abused and assaulted her. Victim pursued an order of protection arising
out of the January 5 domestic-assault incident, among other allegations of verbal and physical
threats and abuse. Because Victim’s Police Statements and Victim’s Protection-Order 8 Statements were relevant to Fields’s criminal prosecution and Fields never had an opportunity to
cross-examine her, the exhibits constituted testimonial hearsay. See Crawford, 541 U.S. at 53–
54; Davis, 547 U.S. at 822, 829. Over Fields’s objections, the trial court admitted Victim’s
hearsay statements under the forfeiture-by-wrongdoing doctrine. The forfeiture-by-wrongdoing
doctrine provides that “if a witness is absent by [defendant’s] own wrongful procurement, [the
defendant] cannot complain if competent evidence is admitted to supply the place of that which
he has kept away . . . [because] [t]he Constitution does not guarantee an accused person against
the legitimate consequences of his own wrongful acts.” McLaughlin, 265 S.W.3d at 271 (first
alteration in original) (internal quotation omitted). Fields argues that Victim’s statements were
not admissible under the forfeiture-by-wrongdoing doctrine.
The application of the forfeiture-by-wrongdoing doctrine is conditioned on the State
“show[ing] that the defendant engaged in the wrongdoing with the intent to prevent the witness
from testifying.” McLaughlin, 265 S.W.3d at 272 (emphasis added) (citing Giles v. California,
554 U.S 353, 359–66 (2008)).1 Giles specifically discussed the application of the forfeiture-by-
wrongdoing doctrine to domestic violence cases in which defendants allegedly murdered the
victims:
1 The Missouri legislature has since codified the forfeiture-by-wrongdoing doctrine as follows: 1. A statement made by a witness that is not otherwise admissible is admissible in evidence in a criminal proceeding as substantive evidence to prove the truth of the matter asserted if, after a hearing, the court finds, by a preponderance of the evidence, that: (1) The defendant engaged in or acquiesced to wrongdoing with the purpose of causing the unavailability of the witness; (2) The wrongdoing in which the defendant engaged or acquiesced has caused or substantially contributed to cause the unavailability of the witness; (3) The state exercised due diligence to secure by subpoena or other means the attendance of the witness at the proceeding, or the witness is unavailable because the defendant caused or acquiesced in the death of the witness; and (4) The witness fails to appear at the proceeding. 2. In a jury trial, the hearing and finding to determine the admissibility of the statement shall be held and found outside the presence of the jury and before the case is submitted to the jury.
Section 491.016, RSMo (Cum. Supp. 2021).
9 Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.
Id. (quoting Giles, 554 U.S. at 377).
McLaughlin applied the forfeiture-by-wrongdoing doctrine in a capital murder case in
which the victim attempted to end her romantic relationship with the defendant before the
defendant killed her. Id. at 260. McLaughlin affirmed the trial court’s determination that the
defendant’s murder of the victim showed his intent to make the victim unavailable as a witness
in the burglary and domestic-abuse cases against him and thus properly admitted testimonial
hearsay statements into evidence. Id. at 271–272. Indeed, the defendant’s intent to procure the
victim’s unavailability as a witness was supported by “ample evidence” in that:
[Victim]’s statements prior to her death about defendant’s stalking of her, threats to her, and abusive conduct were made during the time that she was attempting to break from the relationship and had filed for orders of protection and sought protection from the police so that she could safely go from work to home. The police were prosecuting [defendant] for burglary of her home less than a month prior to the murder, and during the succeeding month [defendant] was seen watching her home. The latest order of protection had been entered the very day of her death, November 20, 2003, and a hearing on the order of protection had been set for the very next day.
Id. at 273 n.10; see also Hosier, 454 S.W.3d at 897 (relying on Giles and McLaughlin to find that
a murder-victim’s statements found in an unfiled order-of-protection application were admissible
under the forfeiture-by-wrongdoing doctrine because there was ample evidence that the
defendant’s actions were intended to cause the victim to be unavailable to testify in his burglary
case). Giles, McLaughlin, and Hosier all support the trial court’s evidentiary ruling in this case.
10 Here, the trial court conducted a hearing and determined that the State showed with clear
and convincing evidence that Fields intended to procure Victim’s unavailability to testify against
him in the pending domestic-assault case. See McLaughlin, 265 S.W.3d at 271–72. Fields
argues that the facts before us are significantly distinguishable from the facts in Giles,
McLaughlin, and Hosier and suggests that we should be guided by this Court’s ruling in State v.
Buechting, 633 S.W.3d 367 (Mo. App. E.D. 2021). In Buechting, we held that “the record is
simply devoid of the evidence found in McLaughlin and Hosier, that the crime was intended to
prevent Victim from reporting abuse or crimes against her.” Id. at 378. Rather, the evidence
suggested the victim “was not yet ready to exit the abusive relationship, much less prepared to
cooperate with authorities in prosecuting her abuser.” Id. at 378 n.7. That scenario is simply not
present here. The record shows that Victim clearly expressed her desire to end her relationship
with Fields. Victim had begun cooperating with the police by reporting the January 5 domestic
assault to law enforcement and in seeking an order of protection against Fields based upon that
assault and other abusive conduct he committed against her. Fields suggests that Victim did not
pursue the order of protection and argues that a dismissal of the order of protection weighs
against applying the forfeiture-by-wrongdoing doctrine. Even assuming the cause for the order
of protection was dismissed, the State convincingly argues that the record contains no evidence
that Fields even knew that the order of protection was dismissed. In fact, the record does not
show that Fields was served with the order. Regardless, Hosier is dispositive. See Hosier, 454
S.W.3d at 897. In that case, an unfiled application for an order of protection was found in
Victim’s purse when she was killed by the defendant. See id. The Missouri Supreme Court held
that evidence supported the application of the forfeiture-by-wrongdoing doctrine, even though
there was no active order of protection or pending charges for other offenses committed by the
11 defendant against the victim at the time she was killed. See id. The facts before us are even
more compelling than in Hosier. Here, the record indicates not only that Fields had a court
appearance scheduled for his January 5 domestic-assault against Victim, but that Victim also
initiated separate proceedings to obtain an order of protection against him. Whether or not the
proceedings to obtain a protective order may have been dismissed is not determinative of this
appeal. We hold that under the guidance of Hosier, the record before us demonstrates that the
trial court did not err by admitting Victim’s hearsay statements into evidence. See id.
Fields additionally maintains that there is no evidence that he intended to prevent Victim
from testifying against him. Fields’s assertion is plainly contravened by the record. At the
motion hearing and at trial, the State presented evidence that Fields attempted to prevent Victim
from seeking help from Stepfather on January 5 by trying to knock her cell phone out of her
hand. Fields then broke down Victim’s bedroom door and assaulted her after she called 911.
Victim then sought and obtained an order of protection, citing the January 5 assault, among other
threats and instances of abuse. Fields was issued a summons and notified of a pending court
appearance relating to the January 5 assault at which Victim was expected to testify.
Importantly, on the day Victim was murdered, Fields told Sister that he was angry with Victim
because she “had pressed charges on him.” This evidence amply supports the trial court’s
finding that Fields intended to procure Victim’s unavailability to testify against him. See id.
(quoting Giles, 554 U.S. at 377) (noting “[e]arlier abuse or threats of abuse, intended to dissuade
the victim from resorting to outside help would be highly relevant to this inquiry, as would
evidence of ongoing criminal proceedings at which the victim would have been expected to
testify.”) (emphasis omitted); McLaughlin, 265 S.W.3d at 271. Therefore, the trial court did not
abuse its discretion in admitting Victim’s hearsay statements under the forfeiture-by-wrongdoing
12 doctrine. See Hosier, 454 S.W.3d at 896 (citing Bell, 950 S.W.2d at 484). Points Two and
Three are denied.
II. Point One—Allowing the Jury to Review Exhibits during Deliberations
“The decision to send an exhibit to the jury room during deliberations lies within the
sound discretion of the trial court.” State v. Barnett, 980 S.W.2d 297, 308 (Mo. banc 1998)
(internal citation omitted). “An abuse of discretion occurs only when the trial court’s decision to
exclude an exhibit from the jury room ‘was clearly against reason and resulted in an injustice to
the defendant.’” Id. (citing State v. Roberts, 948 S.W.2d 577, 596–97 (Mo. banc 1997)). “An
objecting party has the burden of showing the prejudicial result of sending exhibits to the jury.”
State v. Smith, 90 S.W.3d 132, 142 (Mo. App. W.D. 2002) (quoting State v. Sullivan, 925
S.W.2d 483, 485 (Mo. App. E.D. 1996)).
“The general rule is that exhibits that are testimonial in nature cannot be given to the jury
during its deliberation.” State v. Evans, 639 S.W.2d 792, 795 (Mo. banc 1982). “The reason
often given for [this] rule is that testimonial exhibits tend to unduly emphasize some of the
testimony, thus raising the possibility the jury would give it undue weight.” State v. Reed, 21
S.W.3d 44, 46 (Mo. App. S.D. 2000) (citing Evans, 639 S.W.2d at 795). The test for
determining whether exhibits are testimonial for purposes of providing them to the jury during
deliberation is distinct from determining whether such evidence is testimonial relating to the
Confrontation Clause. Rather, more narrowly, “[t]he rationale for this rule is simple: a
deposition is introduced at trial in place of the live testimony of the same witness[;] [i]t is thus
considered to be testimonial in nature and so, like a transcript of live testimony, is not given to
the jury during deliberations.” O’Neal v. Pipes Enters., Inc., 930 S.W.2d 416, 421 (Mo. App. 13 W.D. 1995) (citing State v. Brooks, 675 S.W.2d 53, 57 (Mo. App. S.D. 1984)) (noting the
rationale for excluding such testimonial evidence from jury deliberations applies equally in both
criminal and civil cases). Missouri courts are generally concerned with asymmetry, in that
repetition of a portion of trial testimony [causes] that portion to be emphasized by reiteration, which in turn ‘might lead to interminable confusion or to an unwarranted advantage to one party over the other,’ and which further would invade a juror’s duty to solely determine the facts according to his or her memory alone.
Id. (quoting Isreal v. Fanchon & Marco, 58 S.W.2d 774, 778 (Mo. App. K.C. 1933)).
Fields argues that the Lab Reports were testimonial for the purpose of submitting them to
the jury during its deliberations under State v. March, 216 S.W.3d 663 (Mo. banc 2007).
Fields’s contention is misguided in the context of the present case because March applied the test
for testimonial evidence under the Confrontation Clause. See March, 216 S.W.3d at 667
(holding a laboratory report created for the purpose of prosecuting a criminal defendant may not
be admitted without the testimony of its preparer unless the witness is unavailable and there was
a prior opportunity to cross examine). The matter before us presents no Confrontation Clause
issue because the Expert Witnesses who prepared the Lab Reports testified at trial and were
subject to cross-examination. See id. Except for one conclusory statement, Fields does not
elaborate why March applies to the issue pending before us. We must determine whether the
Lab Reports are to be treated as testimonial for purposes of sending said reports to the jury
during deliberations. See Evans, 639 S.W.2d at 795.
No existing Missouri jurisprudence has considered whether lab-report exhibits are
testimonial for the purpose of allowing the jury to review them during deliberations. However,
Missouri courts have made clear that transcripts or audio/video recordings of depositions and
trial testimony are testimonial and thus barred from the jury room. See e.g., Brooks, 675 S.W.2d
at 57 (finding a written deposition was testimonial because it was read to the jury in lieu of live
14 testimony); O’Neal, 930 S.W.2d at 420–22 (finding the trial court prejudicially erred in allowing
the jury to take into the jury room the videotaped testimony of a witness).
In contrast, an exhibit that summarizes an expert witness’s findings has been found not to
be testimonial for purposes of being provided to a deliberating jury. Hobbs v. Harken, 969
S.W.2d 318, 326–27 (Mo. App. W.D. 1998). In Hobbs, the Court distinguished the summary
exhibit sought to be given to the jurors during deliberation from the videotaped deposition in
O’Neal:
Unlike [the summary exhibit here], the videotape at issue in O’Neal contained the actual testimony of a witness. [The appellant] cites us to no authority, nor do we find any, that an exhibit such as [the summary exhibit], which simply sets out certain of the conclusions and calculations testified to by a witness, should also be characterized as a testimonial exhibit. To the contrary, many exhibits contain opinions or facts also testified to by witnesses. Many such exhibits are used by witnesses during their testimony in order to help explain the witness’[s] testimony, or as a way of assisting the jury in understanding complicated issues or summarizing lengthy records. We agree with [the respondent] that such exhibits are not the type of testimonial exhibit which O’Neal said could not go to the jury room. Because the exhibit at issue here did not constitute a prior trial transcript or deposition, but was rather simply a summary of calculations made by the witness, it was not a testimonial exhibit and the trial court was not prohibited from sending it to the jury.
Id. at 326–27 (emphasis added) (citing O’Neal, 930 S.W.2d at 421–22). The relevant
caselaw in Missouri has narrowly characterized “testimonial” evidence for purposes of jury
deliberations as recorded testimony, whether written or video/audio recorded, such as the
transcript of a deposition read at trial. See Brooks, 675 S.W.2d at 57. We find the
reasoning in Hobbs instructive here, as Fields has also not cited to any Missouri caselaw
indicating that the Lab Reports are the type of testimonial exhibit that Evans, Brooks, and
O’Neal prohibit from being sent to the jury room.
We acknowledge that Fields provided caselaw from Georgia to support his contention
that the Lab Reports are testimonial. See Harris v. State, 309 S.E.2d 431, 434 (Ga. App. 1983)
15 (finding the submission to the jury of a polygraph examiner’s office report, which was merely a
written reiteration of the examiner’s testimony that the defendant was lying, was reversible
error, in that such report had an unfair advantage over oral testimony by speaking to the jury
more than once). Even if we were bound by Harris, which we are not, we find the case
distinguishable because the polygraph examiner’s report at issue was described as a word-for-
word reiteration of the witness’s live testimony. See id. In that regard, the expert report at issue
in Harris is akin to the deposition testimony deemed “testimonial” by Missouri courts. We are
unpersuaded that the Lab Reports rise to a prohibited level of testimonial repetition. Instead, the
Lab Reports list and summarize the technical and scientific results from examining pieces of
evidence tested for blood and DNA. For example, the Lab Reports stated the following
regarding the sample taken from the mid-section of the knife handle in Victim’s kitchen:
A female DNA profile was detected. [Victim] is the source of this DNA profile.
Male quantitation results from this item do not meet the Missouri Highway Patrol Laboratory’s required threshold for Y-STR analysis. No additional testing will be performed at this time.
When asked to testify regarding that particular sample Groeblinghoff stated as follows:
[STATE]: Did you analyze the swab of the red-brown stain on the midsection of the knife handle?
[GROEBLINGHOFF]: Yes . [STATE]: And what -- what was your result?
[GROEBLINGHOFF]: This result, a female DNA profile was detected. [Victim] is the source of this DNA profile.
[STATE]: And what was the likely rarity?
[GROEBLINGHOFF]: Again, it was rarer than 1 in 310 billion.
[STATE]: Okay. All right . . . was male DNA detected or found . . . what was going on with that?
16 [GROEBLINGHOFF]: So earlier when I mentioned the quantitation steps, there are cases where we may detect male DNA at that step, but in the actual DNA profile, we don’t detect male. So in this particular item, male quantitation results were obtained, but just not in the DNA profile.
[STATE]: Okay. So could that result from a wiping of the knife?
[GROEBLINGHOFF]: It’s possible.
The Expert Witnesses testified about the contents of the Lab Reports and the processes
implemented in creating them, and then opined as to the conclusiveness and accuracy of their
analysis. It is clear from the record, however, that the Lab Reports are not a prepared summary
of the Expert Witnesses’s live testimony. Nor do the Lab Reports parrot the testimony of the
Expert Witnesses so as to be deemed a strict reiteration of their live testimony. See Brooks, 675
S.W.2d at 57. Crucially, the Lab Reports did not provide the jury with a transcript or other
recording of the Expert Witnesses’s live testimony.
Because Missouri caselaw narrowly defines “testimonial” in the context of providing
otherwise properly admitted exhibits to the jury during deliberation, we find that the Lab Reports
were not testimonial evidence that the trial court was barred from sending to the jury during
deliberations.2 See Brooks, 675 S.W.2d at 57; O’Neal, 930 S.W.2d at 421; see also Hobbs, 969
S.W.2d at 326–27. Therefore, the trial court did not abuse its discretion in allowing the jury to
review the Lab Reports during deliberation. See Barnett, 980 S.W.2d at 308 (citing Roberts, 948
S.W.2d at 596–97). Point One is denied.
2 Our holding here should not be understood to encompass all “expert reports,” as there are certainly conceivable situations where an expert’s report would be properly admitted into evidence and also could be determined to be testimonial. We simply do not find that to be the case here.
17 Conclusion
The judgment of the trial court is affirmed.
_________________________________ KURT S. ODENWALD, Judge
Michael E. Gardner, P.J., concurs. Renée Hardin-Tammons, J., concurs.