Opinion
No. ED86106.
September 4, 2007.
Appeal from the Circuit Court of St. Charles County, Honorable Nancy L. Schneider.
Craig A. Johnston, Assistant Public Defender, MO, ATTORNEYS for appellant.
Shaun J. Mackelprang, Assistant Attorney General, MO, ATTORNEYS for respondent.
George W. Draper III, P.J., Robert G. Dowd, Jr., J., and Patricia L. Cohen, J. concurring. dissenting. not participating.
Introduction
Brian Fassero ("Defendant") appeals from the trial court's judgment entered in the Circuit Court of the St. Charles County upon his conviction by a jury of one count of child molestation in the first degree, in violation of Section 566.067 RSMo. Defendant contends that his conviction violated his right under the Fifth Amendment of the U.S. Constitution to be free from double jeopardy because his trial followed an improperly-granted mistrial in a previous trial for the same crime. Defendant also contends that the trial court abused its discretion when it: (1) failed to declare a mistrial after the prosecutor elicited inadmissible testimony regarding alleged prior bad acts and (2) permitted the prosecutor to read to the jury an Illinois indictment against Defendant during the penalty phase of the trial; (3) allowed a police officer to comment on the victim's credibility and (4) permitted trial to proceed on a date later than the next term of court following the earlier mistrial, violating Article I, § 19 of the Missouri Constitution. We affirm.
All statutory references are to RSMo 2000 unless otherwise noted.
Statement of Facts and Proceedings Below
Defendant's first trial occurred on June 15-18, 2004. The jury began deliberating at 10:15 a.m. on June 18, 2004. A little less than four and a half hours later, the jury sent a note to the judge stating that the "jury deliberated vigorously and came to a final vote of ten not guilty and two jurors voting guilty." The court did not send a response back to the jury or discuss the matter with the attorneys, but rather called the jury back to the courtroom. In the courtroom, with all parties present, the judge asked the foreperson whether further deliberation would result in a unanimous verdict. The foreperson responded that "no one is willing to change their decision." The judge then asked, "And so it's your opinion that you would not be able by continued deliberation in good faith to reach a unanimous verdict?" The foreperson agreed and the trial court asked the jurors to indicate by hand count whether further deliberation would be helpful. When all the jurors agreed that it would not, the trial court declared a mistrial.
The State re-tried Defendant over his objection on January 18-21, 2005. On the first day of trial, Defendant moved to dismiss the indictment, contending that re-trial following grant of a mistrial without his consent resulted in a violation of the Double Jeopardy Clause. The trial court denied Defendant's motion to dismiss.
Viewed in the light most favorable to the verdict, the evidence adduced during the second trial established that during the afternoon of February 3, 2003, A.A., at the time a ten-year old girl, and some of her relatives, spent the afternoon at Tumble Drum, an indoor children's play facility, in St. Peters, Missouri. Among those present were A.A.'s uncle and aunt, Paul and Mindy Dorenkamp, their children, Tyler and Katie, A.A.'s brother Austin, her cousin Sandra, and her grandmother, Sandra Lay. Defendant and his daughter also visited Tumble Drum on February 3, 2003. At some point, Defendant's daughter began to cry and Defendant went into the ball pit to comfort her. Although his daughter stopped crying, Defendant remained in the ball pit, and began playing with the other children. Defendant began grabbing Sandra and A.A. by their belt loops, pulling them down into the ball pit and tickling them. He then grabbed Sandra and A.A. by their legs and dragged them through the balls, causing them to sink underneath the balls. While he was dragging and tickling Sandra, Defendant's thumb went down the side of her pants.
Tumble Drum has slides, ball pits and rope swings for children. The ball pit has a vinyl bottom with springs underneath, nets all around, and plastic air-filled balls for children to jump and play in. The children access the pit by walking up some steps and entering a tunnel.
While this was occurring Mrs. Dorenkamp walked over and asked Mr. Dorenkamp what Defendant was doing in the ball pit. Mr. Dorenkamp replied that Defendant was just having fun, playing with the children. When Mrs. Dorenkamp again asked why Defendant was inside the ball pit, Paul replied that it seemed "innocent enough" to him. Mindy told her husband to keep an "eye out" because something did not feel right to her.
After Mrs. Dorenkamp walked away, Defendant asked A.A. to get up on his back for a piggyback ride. After A.A. got on Defendant's back, he fell back on top of her, and her legs were around him with Defendant lying between her legs. It appeared as if Defendant was holding her down and teasing her. Defendant then put his hand underneath and inside A.A.'s underwear and felt A.A.'s "private part," sticking one of his fingers inside her vagina. After a period of time, Defendant asked A.A. if she wanted another piggyback ride. The same incident occurred, except Defendant did not insert his finger because A.A. kicked him and pulled his hand away. Defendant remained on top of A.A. for approximately 4 or 5 minutes, until Mr. Dorenkamp heard A.A. say something like, "Hey, stop, you are hurting me." Eventually, Mr. Dorenkamp yelled at Defendant to get up and then they all got up and came out of the ball pit.
Mr. Dorenkamp told A.A.'s grandmother, Mrs. Lay, about his observations about what occurred in the ballpit. As Mr. Dorenkamp and Mrs. Lay were discussing the incident, the children began filing back into the ball pit, with A.A. last in line. Defendant jumped in line behind her. Mrs. Lay went over to talk to Defendant and, when she was standing about two feet away, saw Defendant's hand on A.A.'s buttocks and wrist as he accompanied her into the ball pit.
Mrs. Lay grabbed Defendant and pulled him off the steps. She confronted him about touching her granddaughter and warned him never to touch her again. Defendant denied knowing what Mrs. Lay was talking about.
Mrs. Lay then asked the girls to tell her what had occurred. They both started crying, and A.A. told her that Defendant had put his hand down her pants. Sandra mentioned that Defendant had tried to put his hand down her pants, but her pants were too tight. Mrs. Lay then noticed Defendant putting his daughter's shoes on her so they could leave. Following an argument between Mrs. Lay and Defendant, a Tumble Drum manager called the police.
Officer Lori Lake of the St. Peters Police Department responded to the scene and interviewed A.A. in the manager's office. In the presence of Mrs. Dorenkamp, Sandra, and a Tumble Drum employee, Officer Lake asked A.A. what had happened and A.A. indicated that while she and Defendant were in the ball pit, Defendant had reached down the front of her pants into her underwear and touched her "private parts." Thereafter, Officer Lake placed Defendant in custody and another officer transported him to the station.
At the station, Officer Lake interviewed A.A. again. A.A. reiterated that Defendant had inserted part of his finger inside of her. A.A. also said that Defendant put his hand on her rear end. A.A. then gave a written statement to Officer Lake.
Following a police interview, Defendant admitted to playing with the children, but denied touching any of them inappropriately. He contended that when A.A. was riding piggyback on his back, he fell into the balls backwards and they both ended up on their backs under the balls, and they "got stuck" for a few minutes. Defendant continued, under repeated questioning, to deny the allegations against him and offered to submit to a DNA test.
A jury found appellant guilty of first degree child molestation and recommended a sentence of fifteen (15) years in prison. On February 15, 2005, Defendant timely filed his Motion for a New Trial. The trial court overruled the Motion for a New Trial and sentenced Defendant to fifteen years incarceration. Defendant appeals.
Discussion
A. Double Jeopardy
1. Facts Concerning Declaration of Mistrial
On his first point on appeal, Defendant contends that the trial court violated his Constitutional right to be free from double jeopardy when the trial court denied his Motion to Dismiss on the first day of his re-trial. More specifically, he asserts that the trial court failed to exhibit the conscientious scrutiny necessary prior to declaring a mistrial in the first trial and therefore, the mistrial lacked "manifest necessity."
The jury began its deliberations at 10:15 a.m. on June 18, 2004. (L.F. 35). A little over four hours later, the jury sent a note to the judge stating that "The jury deliberated vigorously and came to a final vote of 10 not guilty and 2 jurors voting guilty." The trial court neither sent a response back, nor showed the note or discussed the matter with the attorneys. Instead, the following colloquy took place:
The Court: Back on the record in State of Missouri v. Brian Fassero. Let the record show it is now 2:35 p.m. The jury has been deliberating a little over four hours. Mr. Raymond, are you the Foreperson of the jury?
Juror Raymond: Yes, your Honor.
The Court: I was handed a note from the jury a few minutes ago that says basically the jury deliberated vigorously and is not at this time able to reach a unanimous verdict; is that correct?
Juror Raymond: That's correct, your Honor.
The Court: All right. And I don't want you to make any statements about how many votes there were for guilty or how many votes for not guilty, and we are not going to ask each of you what your vote is at this time, but according to the note that you sent me, the jury is split ten to two; is that correct?
Juror Raymond: That's correct.
The Court: All right. And it's been a few minutes since you gave me this. We had to get everybody back in the courtroom. Has there been any changed in that split since you wrote this note to me about fifteen minutes ago?
Juror Raymond: No, there hasn't.
The Court: And the jury has at this time deliberated for about four — about five and a half hours. My suggestion to you at this time is whether or not you believe any further — maybe its four and a half hours, I am sorry, whether or not you believe any further deliberation would result in the jury being able to reach a unanimous verdict in this case?
Juror Raymond: We discussed it and, no, no one is willing to change their decision.
The Court: And so it's your opinion that you would not be able by continued deliberation in good faith to reach a unanimous verdict?
Juror Raymond: That's correct.
The Court: Everyone who agrees with the statement that your Foreperson just made, please raise your hand at this time. For the record, the Court notes that each and every juror has raised his or her hand. Thank you, and agreed with Mr. Raymond that further deliberations by the jury would not result in a unanimous verdict. Therefore, ladies and gentlemen, the Court will honor that statement and will excuse you from any further service at this time. . . (The jury has been excused.)
The Court declares a mistrial in this case and orders that the defendant be remanded to the custody. Counsel for the State and the defendant will contact the clerk next week with exclusionary dates so we may reset the case for trial.
State: Thank you, your Honor.
Defense: Your Honor, have you declared a mistrial?
The Court: I just did.
Defense: I didn't hear it.
The Court: YES
Defense: Will we be able to inspect the note?
The Court: Frankly, I am not sure what is permitted.
Defense: Would you think about it, maybe we could have a discussion?
The Court: Yes. When I next see both of you together or when you come in to give your exclusionary dates, let me know if you think it's permissible for the court to share, you know, the vote of the jury was ten to two.
Defense: What I was concerned about, your Honor is that I understand from you that there was information that gave me (sic) more detail concerning that.
The Court: They have put in that note only the ten to two split but which of those was for a guilty verdict and which of those was for acquittal. That's what I am not prepared at this time to divulge, but I will consider that in speaking with counsel.
2. Standard of Review
"A mistrial is a drastic remedy, granted only in extraordinary circumstances." State ex. rel. Kemper v. Vincent, 191 S.W.3d 45, 49 (Mo. banc 2006). The decision to grant a mistrial is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Id. A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the senses of justice and indicate a lack of careful consideration. Id.
3. General Principles Governing Double Jeopardy
The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution provides that no person shall be "subject for the same offense to be twice put in jeopardy of life and limb." U.S. Const. amend. V. "The right not to be placed in jeopardy more than once is a vital safeguard in out society. If such great constitutional protections are given a narrow, grudging application they are deprived of much of their significance." United State v. Dixon, 913 F.2d 1305, 1309 (8th Cir. 1990). The Double Jeopardy Clause "represents a constitutional policy of finality for the defendant's benefit" in criminal proceedings.Id.
While both the Missouri and U.S. Constitutions protect against double jeopardy, the Missouri Double Jeopardy provision applies only to retrial after an acquittal. Mo. Const. art. I, § 19.
"The discretion to discharge the jury before it has reached a verdict is to be exercised only in very extraordinary and striking circumstances. For the prohibition of the Double Jeopardy Clause is not against being twice punished, but against being twice put in jeopardy."Downum v. United States, 372 U.S. 734, 736 (U.S. 1963) (internal citations omitted), see also State ex. rel. Kemper, 191 S.W.3d at 49 (holding that a mistrial is a drastic remedy that should only be granted in extraordinary circumstances), State v. Irving, 559 S.W.2d 301, 309 (Mo.App.St.L.D. 1977) ("The power of a trial court to declare a mistrial must be exercised with the greatest caution, only under urgent circumstances and only for very plain and obvious reasons.") As the Supreme Court has reasoned, "If that right to go to a particular tribunal is valued, it is because. . . the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial." United States v. Jorn, 400 U.S. 470, 485 (U.S. 1971) (plurality opinion). This right is valued because even if the "first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which the accused is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted." Dixon, 913 F.2d at 1310 (citing Washington, 434 U.S. at 503-05).
4. Manifest Necessity
Manifest necessity means that a "high degree" of necessity is required before a "mistrial is appropriate." Washington, 434 U.S. at 506,see also Somerville, 410 U.S. at 471 (declaration of mistrial "where jeopardy has attached is not. . . to be lightly undertaken"). In determining whether manifest necessity existed for a mistrial in a case of juror deadlock, factors to consider include: a jury's own statement that it cannot agree, the length of deliberations, the length of the trial, the complexity of the issues presented to the jury, the jury's communication to the judge, and the impact that further, forced deliberations might have on the verdict. Escobar, 943 F.2d at 717. "The jury's own statement that it is unable to reach a verdict is the most critical factor." United States v. Salvador, 740 F.2d 752, 755 (9th Cir. 1984), United States v. Lansdown, 460 F.2d 164, 170 (4th Cir. 1972),United States v. Byrski, 854 F.2d 955, 961 (7th Cir. 1988). Where the trial court is faced with a jury statement that it is unable to reach a verdict, the trial court should "question the jury in such circumstances, either individually or through its foreman, on the possibility that its current deadlock could be overcome by further deliberations." United States v. See, 505 F.2d 845, 847 (9th Cir. 1975).
The hung jury remains the prototypical example of manifest necessity.Kennedy, 456 U.S. at 672, see also State v. Fitzpatrick, 676 S.W.2d 831, 835 (Mo. banc 1984). A trial judge's determination of manifest necessity in cases of jury deadlock is entitled to great deference because the "determination is based on such factors as the judge's observation of the jurors during voir dire, his familiarity with the evidence, the background of the case on trial, and the tone of the argument delivered and its effect on the jurors."Camden v. Circuit Court of Second Judicial Circuit, 892 F.2d 610, 614 n. 5 (7th Cir. 1989).
5. Faithful, Sound, and Conscientious Exercise of Discretion
The "conclusion that a trial judge's decision to declare a mistrial. . . is entitled to great deference does not, of course, end the inquiry." Washington, 434 U.S. at 514. "In order to ensure that this interest is adequately protected, reviewing courts have an obligation to satisfy themselves that. . . the trial judge exercised 'sound discretion' in declaring a mistrial." Id. A trial court will have abused its discretion if granting a mistrial "amounts to an irrational or irresponsible act." Gilliam, 75 F.3d at 894 (citingWashington, 434 U.S. at 514). If the record reveals that the trial court has failed to exercise the "sound discretion" entrusted to it, the "reason for such deference by an appellate court disappears."Washington, 434 U.S. at 510 n. 28.
The record here indicates that the trial court exercised sound discretion in declaring a mistrial. After the court received the jury's note indicating a deadlock, the court questioned both the foreperson and polled the individual jurors in open court with all parties present. Both the foreperson and the individual jurors firmly indicated that further deliberations would not result in an unanimous decision. Point denied.
B. Evidence of Other Crimes
In his second point on appeal, Defendant contends that the trial court abused its discretion by failing to declare a mistrial after the prosecutor elicited testimony from Defendant's ex-wife that she did not trust Defendant with their daughter because she believed he was molesting her. Defendant asserts that the trial court's failure to declare a mistrial violated his right to due process as guaranteed by the Fourteenth Amendment to the U.S. Constitution and Article I, § 10 of the Missouri Constitution as the evidence was improper opinion testimony regarding uncharged prior bad acts.
During the State's rebuttal, Defendant's ex-wife testified that Defendant had a bad reputation in the community for truthfulness and veracity. On cross-examination, defense counsel asked her whether, on the day in question, she trusted Defendant with their then six-year old daughter. The ex-wife replied that she did not. Then, during the State's redirect examination, the following colloquy occurred:
State: [W]hy is it that you do not trust the defendant with your daughter?
Witness: After we were separated, but before we were divorced, Natalia started making comments that were kind of strange about her dad
Defense Counsel: Your Honor, I would object. I would ask to approach.
The Court: Well I am not going [to] allow her to repeat any of those statements, they would be hearsay statements
State: Why is it that you didn't trust Mr. Fassero with your daughter?
Defense Counsel: Your Honor, I would object to any statement that she makes, based on hearsay.
The Court: Answer the question, ma'am, without giving us hearsay statements by someone out of court.
Witness: So it's just my personal opinion, okay?
The Court: What you saw and what you observed not what someone else said to you.
Witness: Okay. Natalia was very upset about going to her dad's for a while. And she was scared and would cry, and so I can say that stuff, I think
Defense Counsel: I can't hear
The Court: Wait for another question. Just wait for a question. I can't really answer your question. The attorney has to ask you the question.
State: What were your feelings at the time that caused you not to trust the defendant to be with your daughter?
Defense Counsel: Objection, your honor, irrelevant. She stated her opinion.
The Court: Sustained as to what her feelings were.
State: What was your opinion as to why you didn't trust Mr. Fassero with your daughter at that point?
Defense Counsel: Objection, your Honor, based on in part on hearsay.
The State: Judge, he asked her opinion. He opened the door to it, Judge.
The Court: I am going to allow her to give her opinion without hearsay.
Witness: I believe that he was molesting her.
Defense Counsel: Your Honor, I would move for a mistrial.
The Court: I am going to deny that request. Do you have any cross-examination — or recross of this witness?
Defendant renewed his request for a mistrial. The trial court denied the request, reasoning that Defendant had opened the door to the testimony by asking the witness whether she trusted Defendant with their child. The day following the request for mistrial, defense counsel asked the court to instruct the jury to disregard Defendant's ex-wife's testimony. The trial court stated as follows:
Ladies and gentlemen, at this time the court will advise the jury that only the following question asked and answer given by [the witness] be disregarded. QUESTION: What was your opinion as why didn't you trust Mr. Fassero with your daughter at that point? ANSWER: I believe that he was molesting her.
As a general rule, the state may not use evidence of uncharged crimes, wrongs or acts to "elicit an inference that defendant also committed the crime for which he is charged." State v. Sheridan, 188 S.W.3d 55, 65 (Mo.App.E.D. 2005). When the defendant, however, brings the evidence into the case, the state is allowed to pursue that evidence without treading upon the defendant's rights. State v. Crenshaw, 59 S.W.3d 45, 50 (Mo.App.E.D. 2001). Here, defense counsel asked whether the witness trusted Defendant with their daughter. On re-direct, the State on rebuttal asked the witness why she did not trust Defendant with her daughter and she responded by testifying about prior bad acts. Therefore, counsel "opened the door" by inquiring whether the witness had a specific opinion about Defendant. Once the witness replied in the negative, the State was free to inquire as to why. Accordingly, the trial court did not abuse its discretion by allowing the State to cross the threshold and inquire further.
Even if the trial court had erred in allowing the inquiry, however, the trial court gave the Defendant relief in the form of a curative instruction. A jury is presumed to follow a trial court's instructions to disregard any improper comments and Defendant has failed to articulate why the instruction failed to cure any prejudice created by the testimony. Albanese, 9 S.W.3d at 55. Point denied.
C. Illinois Indictment
In his third point on appeal, Defendant contends the trial court abused its discretion in allowing the State to introduce — during the penalty phase of his trial — a copy of a 2003 Illinois indictment against Defendant for two counts of aggravated criminal sexual abuse of an unnamed child under thirteen. Defendant contends that the admission of the indictment violated his rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Defendant further asserts that a copy of an indictment is inadmissible under Section 557.036 because it does not contain sufficient reliability, absent a witness to establish the allegations therein, to reflect upon Defendant's "history or character" as required by the statute.
We will reverse a trial court's decision to admit or exclude evidence only upon finding an abuse of discretion. State v. Simmons, 944 S.W.2d 165, 178 (Mo. banc 1997). "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 at 40.
Prior to the penalty phase, the State revealed its intention to admit an authenticated copy of an indictment from the Circuit Court of Madison County, Illinois, showing that Defendant had been indicted on two felony counts of aggravated criminal sexual abuse of an unnamed child under thirteen. Defendant objected to the relevancy of the amended indictment, asserting that it did not go to his "history or character" under Section 557.036 and violated confrontation rights under the Sixth Amendment to the U.S. Constitution. The trial court overruled the objection and during the penalty phase, the State introduced the Illinois indictment into evidence and published it to the jury. During its closing, the State then specifically referenced the Illinois indictment and argued that the evidence showed that other children had been "at risk" and that Defendant should be held "accountable for those crimes." The jury recommended the maximum punishment under the law — fifteen years incarceration — and the trial court sentenced Defendant in accord with the jury's recommendation.
The Illinois indictment alleged that between August 2000 and August 2002, Defendant fondled the vaginal area of a child who was less than thirteen and the breast of another child who was less than thirteen.
Section 557.036 "provides for criminal trials to be bifurcated, or conducted in two stages: a guilt phase and a penalty phase." State v. Berry, 168 S.W.3d 527, 536 (Mo.App.W.D. 2005). In most cases, the jury hears both phases of the trial. Id. Section 557.036.3 provides, in pertinent part:
Evidence supporting or mitigating punishment may be presented. Such evidence may include, within the discretion of the court, evidence concerning the impact of the crime upon the victim, the victim's family and others, the nature and circumstances of the offense, and the history and character of the defendant.
§ 557.036.3, RSMo Cum.Supp. 2004 (emphasis added).
"As a general rule, the trial court has discretion during the punishment phase of trial to admit whatever evidence it deems to be helpful to the jury in assessing punishment." State v. Clark, 197 S.W.3d 598, 600 (Mo. banc 2006). Therefore, both the State and the defendant may introduce any evidence relating to the defendant's character that might assist the jury in assessing punishment. Id. (citing State v. Jaco, 156 S.W.3d 775, 781 (Mo. banc 2005)). "A jury may hear evidence of a defendant's prior unadjudicated criminal conduct in the punishment phase of a trial, because during the punishment phase, the jury is entitled to full information about the defendant and his previous conduct." State v. Petary, 781 S.W.2d 534, 539 (Mo. banc 1989).
Initially, Defendant argues that the admission of the indictment during the penalty phase of the trial violated his Sixth Amendment right to confront witnesses against him. Defendant cites no cases in support of this specific proposition and candidly acknowledges that "most courts addressing the issue have held that the Confrontation Clause does not apply to the punishment phase." Beyond asserting that this Court "should hold that that [C]onfrontation [C]lause applies in the sentencing phase of a noncapital jury trial," Defendant provides no persuasive basis for this court to so hold. Point denied.
Next, Defendant contends that the trial court erred in allowing the State to admit and publish the indictment, because the State should have presented the information through witnesses who could then be available for cross-examination. More specifically, Defendant asserts that: "evidence of an indictment, without any evidence or witnesses presented to support that indictment, is. . . not reliable or relevant in establishing the facts set out in the indictment, and the danger of unfair prejudice substantially outweighs its probative value."
Although Defendant does not explicitly characterize his argument as a challenge to the hearsay nature of the indictment, or provide any support for such an argument, this appears to be the thrust of his assertion. Indeed, Defendant stated in his Motion for a New Trial that the "trial court erred in allowing the jury to see the Amended Indictment from Illinois in the sentencing phase as it was prejudicial, hearsay, not a conviction or probative of defendant's character." However, Defendant failed to object on the basis of hearsay at trial. "In order to properly preserve an evidentiary issue for appellate review, an objection must be made upon introduction of the evidence; that objection must be reasserted as error in a motion for new trial; and the issue must be briefed on appeal." State v. Robinson, 194 S.W.3d 379, 380 (Mo.App.W.D. 2006). Accordingly, because Defendant failed to preserve for review the question of whether the trial court improperly allowed hearsay when it admitted the Illinois indictment and because Defendant has neither sought nor established a basis for plain error review, we decline to consider his alternative argument. Point denied.
Hearsay is inadmissible during the penalty phase of a capital trial. See e.g., State v. Glass, 136 S.W.3d 496, 519 (Mo. banc 2004);State v. Barnett, 980 S.W.2d 297, 307 (Mo. banc 1998); State v. Clay, 975 S.W.2d 121, 132 (Mo. banc 1998); Phillips, 940 S.W.2d at 518. With respect to non-capital criminal trials, in State v. Berry, the Western District determined that in a sentencing proceeding under Section 537.036, "hearsay that does not qualify under an exception to the rule should be excluded as it would be in any other jury proceeding." 168 S.W.3d 527, 539 (Mo.App.W.D. 2005) at 539.
At trial, defense counsel objected to the introduction of the indictment as follows: "Well your Honor, I would like to indicate that the objection goes to the use of this amended indictment, and that it deprives the defendant of the due process as it's his right under the sixth amendment to a fair trial and confrontation of witnesses."
D. Improper Bolstering of Victim
In his fourth point, Defendant argues that the trial court plainly erred in failing to sua sponte intervene and declare a mistrial or issue a curative instruction when Officer Lake testified that, in her opinion, the alleged victim would not lie about allegations of sexual molestation and that Officer Lake believed the victim's story. Defendant contends that Officer Lake's testimony invaded the province of the jury by improperly bolstering the victim's credibility. As a result, Defendant asserts, Officer Lake's testimony denied Defendant his rights to due process as guaranteed by the Fourteenth Amendment to the U.S. Constitution and Article I, § 10 of the Missouri Constitution resulting in a manifest injustice.
As a preliminary matter, we note that Defendant made no objection to Lake's answers to defense counsel's questions — and in fact, invited the testimony — and did not ask the trial court for any relief such as requesting a curative instruction, asking that the answer be stricken or moving for a mistrial. Recognizing that his allegation is not preserved for review, Defendant requests that we review pursuant to Rule 30.20 to determine if the trial court's failure to act sua sponte amounted to plain error.
"Plain error review is used sparingly and is limited to error that is evident, obvious and clear." State v. Reeder, 182 S.W.3d 569, 574 (Mo.App.E.D. 2005). Under the plain error standard, we will only grant relief when alleged errors so "substantially affect a defendant's rights that a manifest injustice or a miscarriage of justice results if left uncorrected." State v. Presberry, 128 S.W.3d 80, 85 (Mo.App.E.D. 2003). The defendant bears the burden of proving a miscarriage of justice or manifest injustice. State v. Louis, 103 S.W.3d 861, 864 (Mo.App.E.D. 2003). "Because this is a direct criminal appeal, we note that plain error cannot serve as a basis for granting Defendant a new trial, as requested, unless we find that the alleged error was outcome determinative. Reeder, 182 S.W.3d at 574.
Officer Lake, as the primary responding officer to the police call, initially interviewed A.A. at the scene. During defense counsel's cross-examination of Officer Lake, he repeatedly questioned the thoroughness of Officer Lake's investigation, observing that Officer Lake did nothing more than interview A.A. before arresting Defendant:
Q: What you did is you managed to conclude that you had probable cause for an arrest while you were at Tumble Drum without talking to anyone, other than the victim, and never talking to the accused?
A: At that point you have got to understand, number one, ten year old little girl is not going to lie about something like that. There is no reason for her to tell me an untruth.
Q: Was that your operating premise?
A: As far as?
Q: The way you conducted your investigation?
A: When I am in a situation like that, I conduct my investigation the same way. It does not matter if we go on a domestic disturbance scene, if there are injuries, that type of thing, and then we act on that at that point. What she was telling me, I believed her and that was her word, and that was enough to make an arrest.
In arguing that the trial court plainly erred, Defendant relies uponState v. Churchill, in which the Missouri Supreme Court held that a trial court abused its discretion in overruling an objection to an examining physician's testimony that sexual abuse described by a minor "was real." 98 S.W.3d 536, 539 (Mo. banc 2003). The Churchill Court reversed the defendant's conviction because the testimony invaded the province of the jury and violated the defendant's due process rights.Id. Churchill, however, is distinguishable. First, Churchill involved a challenge to an erroneous evidentiary ruling reviewed under an abuse of discretion, rather than a plain error, standard. Id. at 538, see also State v. Artis, 215 S.W.3d 327, 340 (Mo.App.S.D. 2007) (holdingChurchill distinguishable in a plain error case because of the differing levels of scrutiny involved in the standards of review). Second, inChurchill the purpose and effect of the testimony was to highlight the victim's credibility, while here it was an attempt to illustrate that the police department had failed to properly investigate the incident in order to establish reasonable doubt. Id. Finally, inChurchill, the State, rather than the defendant, elicited the opinion testimony bolstering the victim's credibility. Id. See also Artis, 215 S.W.3d at 340 ("Unsolicited statements that are brief and limited in substance do not amount to reversible error in the absence of evidence that the prosecutor intentionally tried to inject unfair prejudice into the trial").
While it is true that the Due Process Clause prevents witnesses from giving their opinion about the veracity of another witness' statement because such vouching invades the province of the jury, bolstering the victim was neither the purpose nor effect of defense counsel's questioning. Churchill, 98 S.W.3d at 538-39. Moreover, even if such were the purpose, a "defendant may not take advantage of self-invited error nor complain about matters he himself brings into the case." State v. Crenshaw, 59 S.W.3d 45, 50 (Mo.App.E.D. 2001). Here, defense counsel's initial question prompted Officer Lake to defend her arrest of Defendant after only speaking with the victim. Defense counsel's questioning was a part of Defendant's trial theory — suggesting that the police had failed to perform a thorough investigation but instead had jumped to conclusions and acted hastily. Thus, Defendant invited Officer Lake's testimony by calling into question the competency and thoroughness of her investigation. Point denied.
E. Jurisdiction
In his final point on appeal, Defendant asserts that the trial court lacked jurisdiction to retry him after it declared a mistrial in his first trial. More specifically, Defendant contends that Article I, § 19 of the Missouri Constitution states that if a jury fails to return a verdict, the trial court may discharge and recommit the prisoner for trial "at the same or next term of court." According to Defendant, here the trial court failed to recommit the Defendant for trial at the same or next term of court thereby depriving the trial court of jurisdiction.
On June 18, 2004, Defendant's first trial ended in a mistrial due to a hung jury. On August 24, 2004, the trial court reset Defendant's cause for a jury trial on January 18, 2005. The court retried Defendant on January 18-21, 2005. Defendant moved to dismiss the second trial on double jeopardy grounds, but the trial court denied the motion. The record does not reflect that Defendant objected to the timing of his retrial or argued that his trial setting violated Article I § 19 of the Missouri Constitution.
The trial court discussed the trial setting with the parties at a bond reduction hearing on September 13, 2004. Defense counsel expressed concern about the publicity generated by the mistrial, maintained that he preferred a later trial date because of the publicity, and stated explicitly that he did not "have any problem with the trial date" and that "the date of January is no problem for me." When the court denied the motion to reduce bond, the trial court asked if defense counsel was requesting an earlier trial date and counsel stated, "No, I am not, absolutely not."
Recognizing that his allegation is not preserved for review, Defendant requests that we review whether the trial court's failure to recommit him within the same or next term of court constituted plain error. The State, however, argues that Defendant waived his constitutional claim because he did not raise it at the earliest opportunity.
"To preserve appellate review, constitutional claims must be made at the first opportunity, with citations to specific constitutional sections." State v. Chambers, 891 S.W.2d 93, 104 (Mo. banc 1994). A constitutional question is waived if not raised at the earliest opportunity. State v. Plummer, 860 S.W.2d 340, 351 (Mo.App.E.D. 1993) (citing State v. Anthony, 837 S.W.2d 941, 945 (Mo.App. 1992)). Because Defendant raised this argument for the first time on appeal, this contention has therefore been waived.
Defendant asserts that a violation of Article I, § 19 of the Missouri Constitution implicates the trial court's jurisdiction, and thus he should be permitted to raise this issue for the first time on appeal. In support, Defendant relies upon State v. Whitmore, 948 S.W.2d 643, 649 (Mo.App.W.D. 1997) and State v. Mauldin, 669 S.W.2d 58 (Mo.App.E.D. 1984). In Whitmore, the court of appeals held that a "claim of double jeopardy is an assertion of a constitutional grant of immunity which is significantly different than other constitutional guarantees pertaining to procedural rights." Id. Defendant's claim, however, does not rely upon the Missouri Double Jeopardy Clause, but rather the speedy trial provision of the Missouri Constitution section. In Mauldin, the court considered a statute that has since been repealed. Significantly, the court noted that under the statute at issue the accused must show that the failure to commence trial within the statutory period was occasioned by the state. Id. at 59. The court further explained that "delays are not considered occasioned by the state where the defendant acquiesced or benefited from the delay of his trial." Id.
Even if we were to consider this issue, the record clearly demonstrates that defense counsel expressly told the trial court that he preferred a later trial date because of the publicity generated by the mistrial in the first case, and stated that he had no problem with the trial date and would not be requesting an earlier trial date. Given Defendant's acquiescence to — if not outright request for — a trial later than the next term of the court, the record does not establish error "evident, obvious and clear". Point denied.
Conclusion
The judgment of the trial court is affirmed.
George W. Draper III, P.J., Concurs
Robert G. Dowd, Jr., J., Concurs
OPINION SUMMARY
Brian Fassero ("Defendant") appeals from the trial court's judgment entered in the Circuit Court of the St. Charles County upon his conviction by a jury of one count of child molestation in the first degree, in violation of Section 566.067 RSMo. Defendant contends that his conviction violated his right under the double jeopardy clause of the Fifth Amendment to the U.S. Constitution because his trial followed an improperly-granted mistrial in a previous trial for the same crime. Defendant also contends that the trial court abused its discretion when it: (1) failed to declare a mistrial after the prosecutor elicited inadmissible testimony regarding alleged prior bad acts and (2) permitted the prosecutor to read to the jury an Illinois indictment against Defendant during the penalty phase of the trial; (3) allowed a police officer to comment on the victim's credibility and (4) set the trial on a date later than the next term of court following the earlier mistrial, violating Article I, § 19 of the Missouri Constitution.
AFFIRMED.
Division Two Holds: The trial court did not err in declaring a mistrial following juror deadlock because the jury firmly indicated that further deliberations would not result in an unanimous verdict. The trial court did not err in failing to declare a mistrial upon the introduction of opinion testimony regarding Defendant's prior bad acts because Defendant invited the error and the trial court's curative instruction cured any prejudice created by the testimony. The trial court did not violate Defendant's rights under the Confrontation Clause when it permitted the State to introduce a pending indictment against Defendant in the penalty phase because the Confrontation Clause does not apply to the penalty phase of a non-capital criminal trial. The trial court did not plainly err in admitting testimony discussing the victim's credibility when its purpose was not to bolster the witness and the error was invited. The trial court did not plainly err in failing to recommit Defendant for trial at the same or next term of court when Defendant acquiesced to the trial date.