Opinion
No. 57595
Opinion Filed: June 5, 2001
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY THE HONORABLE JUSTINE E. DEL MURO, JUDGE.
Rosemary E. Percival, Kansas City, Missouri for appellant[s]
Gregory L. Barnes, Asst. Attorney General, Jefferson City, Missouri for respondent[s]
Before Spinden, C.J., Ulrich, Breckenridge, Smart, Jr., Ellis, Stith, Smith, Newton, Holliger, JJ., and Moran, SJ.
A jury convicted Bruce Thompson of second-degree murder, § 565.021, RSMo 1994, and armed criminal action, § 571.015. He was sentenced as a prior offender to consecutive terms of life imprisonment on the murder count and fifteen years on the armed criminal action count. On appeal, Bruce challenges the sufficiency of the evidence to support his conviction. He also claims that the trial court erred in limiting the subject of his opening statement to only the evidence which would be presented in the defense's case, rather than allowing him to discuss in his opening statement the evidence which he planned to elicit on cross-examination of the State's witnesses. Finally, Bruce argues that the trial court plainly erred in failing to declare a mistrial sua sponte when the State argued in its closing argument that the pager found in Bruce's car belonged to the victim. This court finds that (1) sufficient evidence supports Bruce's convictions; (2) the trial court's refusal to allow defense counsel to set forth in opening statement facts she intended to elicit on cross-examination of the State's witnesses was erroneous, but does not warrant reversal; and (3) the trial court did not plainly err in failing to declare a mistrial sua sponte during the State's closing argument. Therefore, the judgment of the trial court is affirmed.
All statutory references are to the Revised Statutes of Missouri 1994.
The defendant, the victim, and several of their family members discussed in this opinion have the last name Thompson. For clarity's sake, this court will refer to everyone by their first names. No disrespect is intended.
Factual and Procedural Background
Bruce Thompson and the victim, Lynn Thompson, who were not related by blood or marriage, began living together in late 1996 or early 1997. They lived together with their daughter, Raylynne, who was almost two years old. Lynn's two children from a prior relationship, Wesley, age thirteen at the time, and Sharday, age twelve at the time, also lived with them. In July 1997, Lynn and the children moved in with her mother. After a week, Lynn and Bruce made up, and she and the children moved back in with Bruce.
On the afternoon of Sunday, September 21, 1997, a neighbor saw Lynn and Raylynne outside washing a car in Lynn and Bruce's driveway sometime between 3:30 and 4:00 P.M. After they were done washing the car, Lynn and Raylynne both went inside the house. The neighbor did not see Lynn again; however, the neighbor did see Bruce and Raylynne leave the house around 7:00 P.M. The neighbor saw Bruce return to the house ten to fifteen minutes later, change cars, and drive away. Ten minutes after that, the neighbor again saw Bruce return to the house and then leave with a duffel bag.
Meanwhile, Lynn's mother, Betty, became concerned when Lynn did not arrive at Betty's house to pick up Wesley and Sharday, whose father had dropped them off there after his weekend visitation. Lynn was scheduled to pick up Wesley and Sharday between 6:00 and 6:30 P.M. Lynn was rarely late picking up the children after visitation with their father and, if she was going to be late, she always called Betty to let her know. Since Lynn was not there, Wesley and Sharday's father, Joe McLaughlin, took Sharday with him over to Lynn's house to check on Lynn, but they did not see Lynn's car in the driveway. They did notice that a television was on in the back bedroom, but no lights were on in the house. Since they could not locate Lynn, Wesley and Sharday spent the night at Betty's house.
At around 8:00 P.M., Bruce and Raylynne arrived at the home of Bruce's sister, Edwinna. Bruce asked Edwinna to watch Raylynne while he "made a run." According to Edwinna, Bruce would occasionally ask her to watch Raylynne for him for brief periods of time while he went to the store. Edwinna agreed to watch Raylynne while Bruce made a run. Bruce did not return to pick up Raylynne that night. Edwinna had never kept Raylynne overnight. The next morning, Monday, Edwinna discovered Bruce's Volvo parked to the side of her house.
By Monday morning, Betty had still not heard from Lynn. On normal weekdays, Lynn would drive Wesley, Sharday, and Raylynne over to Betty's house between 6:15 and 6:30 A.M. Wesley and Sharday would catch the bus from their grandmother's house, and Raylynne would stay with Betty during the day while Lynn worked. When Lynn did not show up at her mother's house with Raylynne or show up at work, Betty called Joe, who came over and got Wesley. Joe and Wesley went over to Bruce and Lynn's house. All of the doors were locked. Because only Bruce and Lynn had keys to the house, Joe and Wesley knocked on the door and called out for Lynn, Bruce, and Raylynne. When no one answered, Joe and Wesley went to the homes of various relatives to try to find Lynn. Joe and Betty then decided to call the police.
Joe and Wesley met the police at Bruce and Lynn's house. The police noted that there were no signs of forced entry into the house. Since two of the front windows of the house were open, the police suggested that Wesley go in through one of the windows and unlock the front door. Wesley did so, and the police searched the house. Eventually, the officers found Lynn's body, covered by a sheet, in the basement near the door to the washroom. Lynn had been stabbed eight times. Two of the stab wounds would have been fatal. Additionally, she had cuts and bruises on the front and back of her head, and she had cuts and bruises on her neck that indicated she had been strangled. Lynn's purse and its contents were on the floor of the washroom, along with pieces of freshly-broken wood and one of Lynn's earrings.
Lynn's body was lying on contact paper. Underneath her body, and leading away from her body towards the basement door, the police found very large bloody shoeprints. The bloody shoeprints continued out of the basement door and on to steps that led up to the garage. The police also found drops of blood on the doorknob of the basement door, at the top of the stairs from the basement to the garage, on the garage floor, on a trash bag in the garage, on the doorway between the garage and the kitchen, on the kitchen floor, on the bathroom floor, and in a plastic bag in the bathroom trash can.
Because they had found Lynn's body, the police asked the media to broadcast that they were looking for Bruce and Raylynne. That evening, after Edwinna heard on the news that her brother and Raylynne were missing, she notified the police to let them know that she had Raylynne. The police came over to her house, and searched Bruce's Volvo. The police found a pager in the Volvo. There was no evidence that Bruce carried a pager. Lynn, however, had relied on a pager to let her know when people were trying to contact her because she and Bruce did not have telephone service at their house.
Within days after Lynn's death, Bruce called Edwinna, who told him that the police were looking for him. Bruce also had contact with their brother, Gregory Thompson. The police searched Gregory's home, and found a large knife. A test to detect for the possible presence of blood on the knife resulted in a "fairly significant" positive reaction.
Prior to Lynn's death, Edwinna saw Bruce two to three times a week and sometimes on the weekend. After Lynn's death, Edwinna did not see her brother from the time he dropped off Raylynne until the day before he surrendered himself to the police on November 10, 1997, forty-nine days after Lynn's body was discovered. After waiving his Miranda rights, Bruce told detectives that the last time he saw Lynn was on Sunday, September 21, 1997. He also told the police that he did not know what had happened to Lynn. During the interview, the police noticed what appeared to be scars and healed lacerations on both of Bruce's hands.
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The police took a sample of blood from Bruce to compare to blood spots found throughout the house. Although there was not enough blood on several of the drops found throughout Bruce and Lynn's house to perform the type of DNA test that was currently being performed in Kansas City, the police were able to conduct DNA testing on the blood spots found on the basement doorknob, the garage floor, the bathroom floor, and the plastic bag in the bathroom trash can. The DNA tests showed that the blood spots found in these places matched Bruce's blood.
Bruce was subsequently charged as a prior offender with one count of murder in the second degree and one count of armed criminal action. Following a jury trial, Bruce was convicted of both counts, and sentenced to consecutive terms of life imprisonment on the murder charge, and fifteen years on the armed criminal action charge. This appeal followed.
Sufficient Evidence Supports Bruce's Convictions
In his first point, Bruce argues that the evidence is insufficient to support his convictions. In determining whether sufficient evidence supports the verdict, this court determines whether sufficient evidence exists from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Grim , 854 S.W.2d 403, 405 (Mo.banc 1993). This court accepts as true all the evidence favorable to the State, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary. Id . This court does not reweigh the evidence, nor does it determine the reliability or credibility of the witnesses. State v. Broseman , 947 S.W.2d 520, 524 (Mo.App. 1997).
The evidence supporting Bruce's convictions is the fact that approximately two months before Lynn was murdered, Lynn moved herself and the children out of the house and into her mother's house. After staying with her mother for a week, she and Bruce made up, and Lynn and the children moved back in with Bruce. From that evidence, the jury could reasonably infer that Lynn and Bruce had been having problems in their relationship.
Other evidence supporting Bruce's convictions is the timing of Lynn's death. The medical examiner who performed the autopsy on Lynn's body determined that Lynn died sometime between 4:00 P.M. on Sunday and 7:15 A.M. on Monday. Lynn was last seen alive by her neighbor sometime between 3:30 and 4:00 P.M. on Sunday. After that time, the only persons the neighbor saw entering and exiting the house that night were Bruce and Raylynne, who left the house the first time at 7:00 P.M. By this time, however, Lynn was already half an hour to an hour late picking up her children from her mother's house. Lynn was rarely late picking up the children at her mother's house, and if she was going to be late, she always called her mother. She did not call her mother that night. The jury could reasonable infer that Lynn had already been murdered by 6:00 or 6:30 P.M., the time that she was due to pick up her children at her mother's house. Thus, the evidence indicates that not only was Bruce in the home at the time of Lynn's death, but, in fact, he was the only person besides two-year-old Raylynne who was in the home at the time of Lynn's death.
After leaving the home, Bruce took Raylynne to his sister Edwinna's house, and asked Edwinna to watch Raylynne while he "made a run." Edwinna had occasionally watched Raylynne for brief periods of time while her brother went to the store, but she had never watched Raylynne overnight. Without telling Edwinna that he planned to be gone for longer than the time it takes to run an errand, Bruce left, went to his house and retrieved a duffel bag, and never returned to pick up his daughter. He also left his car at Edwinna's house. A few days after Lynn's death, Bruce did call Edwinna, who informed him that the police were looking for him. The police were unable to find Bruce until he finally surrendered himself fifty days after Lynn's death. The jury could reasonably infer that Bruce had fled the jurisdiction, and evidence that a defendant fled the jurisdiction after the crime indicates the defendant's consciousness of guilt. State v. Vaughn , 11 S.W.3d 98, 104 (Mo.App. 2000).
Further evidence of Bruce's guilt is the trail of blood drops leading from the basement, where Lynn's body was found, to the bathroom of Bruce and Lynn's house. John T. Wilson, the chief criminalist at the Kansas City, Missouri Police Department, testified that in stabbing cases such as this one, it is not uncommon to find two different types of blood — the victim's and the assailant's — at the crime scene, as assailants commonly cut themselves during the stabbing. Moreover, Mr. Wilson testified that it is common to find a trail of the assailant's blood leading from the victim's body to the bathroom, where assailants go to clean up and tend to their wounds. From the fact that the DNA tests performed on several of the blood spots along the blood trail leading from Lynn's body to the bathroom showed that the blood matched Bruce's blood, the fact that the police noticed what appeared to be scars and healed lacerations on both of Bruce's hands at the time Bruce finally surrendered to the police fifty days after the murder, and the fact that the police found a large knife, which tested positive for the possible presence of blood, at the home of Bruce's brother, whom Bruce had contacted after Lynn's death, the jury could reasonably infer that Bruce had stabbed Lynn, and had cut himself during the stabbing.
Bruce argues that there are innocent explanations for his leaving his daughter and his car at his sister's house and fleeing for fifty days after the murder, and for the existence of drops of his blood leading from the basement to the bathroom of the house. In so arguing, however, Bruce ignores this court's standard of review. Viewing the evidence and the inferences therefrom in the light most favorable to the verdict, there was sufficient evidence from which a reasonable juror could have found Bruce guilty beyond a reasonable doubt. Bruce's first point is denied.
Limitation of Defense Counsel's Opening Statement Was Erroneous But Not Prejudicial
In his second point, Bruce claims that the trial court abused its discretion in limiting his defense counsel's opening statement to only evidence that would be presented in the defense's case-in-chief. Bruce argues that, because he chose not to present any direct evidence, the court's ruling essentially prohibited him from making a meaningful opening statement. He contends that, as a result, the jury was left with the false impression that the defense had no favorable evidence.
Following voir dire, the State filed a motion in limine seeking to limit the defense's opening statement to evidence that the defendant expected to produce, and prohibiting him from commenting on the State's evidence or witnesses. In response, defense counsel argued that several of the State's witnesses could be for both sides, and that she had in fact subpoenaed these witnesses and planned to call them in the defense's case. Defense counsel claimed that after defense counsel notified the State of her intention to call these witnesses, however, the State also endorsed them as witnesses. Defense counsel contended that simply because the State was able to call witnesses first, she should not be prohibited from discussing in her opening statement the potentially exculpatory factual evidence she planned to elicit from certain of the State's witnesses on cross-examination. Specifically, defense counsel argued that she planned to elicit exculpatory evidence from crime scene technicians, who would testify that the police searched Bruce's car for forensic evidence linking him to the murder but did not find any, and that fingerprints found by the police near the crime scene did not match Bruce's; a criminalist, who would testify that the police were unable to match the bloody shoeprints found at the crime scene with Bruce's shoes; and Bruce's sister, Edwinna, who saw Bruce on the night of the murder and thought he was acting normal.
In ruling on the State's motion, the trial court stated that it was required to follow "the current status of the law." The court stated that the current status of the law is that defense counsel is not entitled to an opening statement if the evidence defense counsel plans to discuss in opening is elicited through cross-examination of the State's witnesses. The trial court, therefore, sustained the State's motion. After the State gave its opening statement, defense counsel again asked the court for permission to discuss evidence she planned to elicit in cross-examination of the State's witnesses, and she incorporated all of the arguments she had made during the hearing on the motion in limine. The trial court denied defense counsel's request. Defense counsel then gave the following opening statement:
There's much more; there's much more. We ask you to wait, listen, and then decide. The evidence will not add up, so you will not be able to find Bruce Thompson guilty of this offense because he is not.
The State stated, "Your Honor, I'm going to object," and defense counsel said, "Thank you. I'm through." The trial court then sustained the objection.
Rule 27.02(f) provides that in felony trials, after the attorney for the State makes an opening statement, "[t]he attorney for the defendant may make an opening statement. . . ." A "landmark case" discussing the purpose of opening statements is Best v. District of Columbia , 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882 (1934). Leonard Decof, Art of Advocacy — Opening Statement § 2.01 (1994). In Best , the United States Supreme Court stated that "[t]he opening statement of counsel is ordinarily intended to do no more than to inform the jury in a general way of the nature of the action and defense so that they may be better prepared to understand the evidence." Best , 291 U.S. at 415, 54 S.Ct. at 489 . The Missouri Supreme Court has echoed this principle, stating that "[t]he primary purpose of an opening statement is . . . to inform the judge and the jury in a general way of the nature of the action so as to enable them to understand the case and to appreciate the significance of the evidence as it is presented." Hays v. Missouri Pac. R. Co . , 304 S.W.2d 800, 804 (Mo. 1957). See also State v. Murray , 744 S.W.2d 762, 774 (Mo.banc 1988). In criminal, as in civil trials, both sides may use the opening statement for this purpose. See State v. Brooks , 618 S.W.2d 22, 24 (Mo.banc 1981).
In keeping with this purpose, opening statements "`should be confined to statements based on facts which can be proved and should not include facts which are plainly inadmissible.' 23 C.J.S. Criminal Law Sec. 1085." State v. Feger , 340 S.W.2d 716, 724 (Mo. 1960). Opening statements should also not include argument. State v. Arrington , 375 S.W.2d 186, 190 (Mo. 1964).
In applying the Supreme Court's prohibition against argument in opening statements, however, both the Eastern District and this court have created an absolute rule that any evidence defendants intend to elicit on cross-examination of the State's witnesses constitutes argument, and, therefore, cannot be mentioned in opening statements. In State v. Gibson , 684 S.W.2d 413, 415 (Mo.App. 1984) and State v. Bibbs , 634 S.W.2d 499, 501 (Mo.App. 1982), the trial court denied defense counsel's request to outline in opening statement favorable evidence that defense counsel intended to develop on cross-examination of the State's witnesses. The Eastern District affirmed the trial court's ruling in these cases, finding that a defendant's opening statement based upon evidence elicited through cross-examination amounted to an attack on the credibility of the State's witnesses. Id .
Likewise, in State v. Nelson , 831 S.W.2d 665, 666-67 (Mo.App. 1992), this court labeled as argument any evidence defense counsel intends to elicit on cross-examination. In Nelson , defense counsel wanted to state in opening statement the fact that the victim of a forcible rape who was cut with a knife did not remember when her hands were cut or whether the defendant had a knife in his hands. The trial court sustained the State's objection to defense counsel's proffered opening statement on the basis that defense counsel was commenting on facts he hoped to elicit on cross-examination. Id . at 666.
This court affirmed the trial court's ruling regarding defense counsel's opening statement on two grounds. First, this court found that defense counsel was attempting to argue the competency of the State's evidence and the victim's credibility. Id . Second, this court found that defense counsel was attempting "to use facts which he anticipated eliciting during cross-examination of the victim." Id . at 667. The court stated that "[s]uch anticipated evidence is a matter of argument and improper." Id .
Thus, the court in Nelson found that the proposed opening statement was improper both because it commented on the credibility of a witness and the competency of the State's evidence, and because it discussed facts the defendant intended to elicit on cross-examination. In so holding, this court relied on State v. Hamilton , 740 S.W.2d 208 (Mo.App. 1987). In Hamilton , the defendant argued that his counsel should have been allowed to discuss in his opening statement evidence that one of the State's witnesses against him was caught stealing, and that another of the State's witnesses had given inconsistent statements to the police and had a motive to cooperate with the police. 740 S.W.2d at 209-11. This court rejected his claim, finding that the defendant's proposed opening statement constituted argument. Id . at 211.
Rather than rule on whether the defendant's proposed opening statement commented on the credibility of the State's witnesses, the court in Hamilton based its holding on the general concept that what defense counsel plans to develop on cross-examination is "a matter of argument" at the opening statement stage of the trial. Id . at 211. This court went on to state that an opening statement setting forth that which a party intends to elicit on cross-examination of the other side's witnesses "transcends the purpose of the opening statements[,] which is to inform the court and jury what each party expects to prove by introduction of evidence in support of the charge or defense." Id . This court recognized the effect that an absolute prohibition against setting forth cross-examination testimony in an opening statement might have on the defendant's ability to make an opening statement:
Although where a defendant will not testify and has no other evidence or testimony there may be no basis for an opening statement on his part, the ruling does not prevent the statement of what he expects to prove as a defense if he will have evidence.
Id . Thus, according to Hamilton and Nelson , any testimony the defendant intends to elicit on cross-examination is not evidence, but is merely argument.
Facts the defendant intends to elicit on cross-examination of witnesses the defendant would have otherwise called, however, constitute evidence the defendant expects to prove. See United States v. Hershenow , 680 F.2d 847, 858 (1st Cir. 1982). In discussing the scope of cross-examination permissible in Missouri, the Supreme Court recently reiterated that Missouri follows a modified English rule. State v. Gardner , 8 S.W.3d 66, 71 (Mo. banc 1999). Pursuant to this modified English rule, where "a witness is sworn and gives `some evidence,' however formal or unimportant, the witness may be cross-examined as to all matters in the case." Id . Thus, because witnesses may be cross-examined about all the issues in the case, the defendant may establish a defense through its cross-examination of the State's witnesses without calling witnesses in the defendant's case-in-chief. See id . (citing Fulton Bank v. Stafford , 2 Wend. 483, 485 (N Y 1829)).
Since the purpose of opening statements is to allow both sides to outline the anticipated proof and the significance of the evidence presented, an absolute prohibition against mentioning in opening statement any facts elicited in cross-examination operates to penalize a defendant whose witnesses will be called first by the State. In that situation, the defendant is effectively denied the opportunity to make an opening statement. L. Timothy Perrin, From O.J. to McVeigh: The Use of Argument in the Opening Statement, 48 Emory L.J. 107, 131 (1999). The defendant, therefore, is denied the opportunity to do exactly that which the U.S. Supreme Court and the Missouri Supreme Court intended counsel do in opening statements — inform the jury of the nature of the defense so as to enable the jurors to appreciate the significance of the evidence as it is presented. See Best , 291 U.S. at 415, 54 S.Ct. at 489 and Murray , 744 S.W.2d at 774 .
An absolute rule that effectively denies defendants the opportunity to make an opening statement simply because their witnesses will be called first by the State is unnecessary, however. The trial court is able to distinguish between argument and factual evidence that tends to prove the defense's theory of the case. The difference between the two is apparent in this case. Here, the cross-examination evidence defense counsel wanted to set forth in opening statement consisted of testimony from crime scene technicians regarding the fact that the police searched Bruce's car for forensic evidence linking him to the murder but did not find any, and the fact that fingerprints found by the police near the crime scene did not match Bruce's; testimony from a criminalist that the police were unable to match the bloody shoeprints found at the crime scene with the shoes Bruce was wearing at the time he turned himself in; and testimony from Bruce's sister, Edwinna, who saw Bruce on the night of the murder and thought he was acting normal.
None of this testimony was in the nature of argument, however. Rather, this cross-examination testimony consisted of factual evidence that tended to support the defense's theory of the case. Moreover, as with any matters the parties set forth in opening statement, if defense counsel mentions in opening statement facts it intends to elicit on cross-examination of the State's witnesses and then it fails to elicit such facts, the State may point this out to the jury in its closing argument. See State v. Mease , 842 S.W.2d 98, 110 (Mo. banc 1992).
Because defense counsel's proposed opening statement in this case did not include evidence relating to the credibility of the State's witnesses, this court will not address whether an opening statement concerning such evidence constitutes impermissible argument.
This court is not ruling on the admissibility of this evidence, since the State never questioned its admissibility, and, in fact, this evidence was later admitted without any objection from the State. The sole basis for the State's objection to defense counsel's discussing this evidence in opening statement, and the sole basis for the court's prohibiting defense counsel from doing so, was that it was evidence defense counsel intended to elicit in cross-examination of the State's witnesses.
This court is aware that the trial court has discretion regarding the scope of opening statements, and the appellate court is not to disturb the trial court's ruling absent an abuse of that discretion. Brooks , 618 S.W.2d at 24 . Here, however, the trial court's ruling was not based on discretion, but rather was based upon the trial court's following case law that essentially prohibits the trial court from exercising its discretion in ruling on the scope of opening statements where defense counsel's evidence consists of facts it intends to prove in cross-examination of the State's witnesses. See Wright v. United States , 508 A.2d 915, 919 (D.C.App. 1986). Because this court finds that the absolute rule prohibiting defense counsel from mentioning in its opening statement factual evidence that it intends to elicit on cross-examination of the State's witnesses goes beyond a prohibition against argument in opening statements, the cases from this district court that espouse such a rule, including State v. Flaaen , 863 S.W.2d 658, 660 (Mo.App. 1993), Nelson , 831 S.W.2d 665 , and Hamilton , 740 S.W.2d 208 , should no longer be followed.
Defense counsel should have been allowed to discuss in opening statement the factual evidence she intended to elicit from the State's witnesses, and the trial erred in refusing to permit her to do so. Nevertheless, in deciding whether reversal is warranted in a particular case, this court looks "`for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.'" State v. Hall , 982 S.W.2d 675, 680 (Mo.banc 1998) (quoting State v. Morrow , 968 S.W.2d 100, 105-06 (Mo.banc 1998)). In cases in which defendants have erroneously been denied the opportunity to make an opening statement, no prejudice has been found where defense counsel was able to thoroughly cross-examine the witnesses regarding the facts underlying the defense theory and emphasize the significance of those facts in closing argument, and where the defense's theory was not so complex as to require "advance elucidation." See Hershenow , 680 F.2d at 859; Wright , 508 A.2d at 921 .
Examining the record in this case for prejudice, this court first notes that testimony concerning the lack of forensic evidence in Bruce's car linking him to the murder, the fact that fingerprints found by the police near the crime scene did not match Lynn's or Bruce's fingerprints, and the fact that the police were unable to match the bloody shoeprints found at the crime scene with the shoes Bruce was wearing at the time he turned himself in was elicited more than once — during both the State's direct examination and defense counsel's cross-examination of the crime scene technicians and the criminalist. Defense counsel also thoroughly cross-examined Edwinna regarding her observations of Bruce's behavior on the night of the murder.
Second, the testimony elicited on these subjects during direct and cross examination was not complex or confusing. Regarding the absence of forensic evidence in Bruce's car, the testimony established that while the crime scene technician's Luminol test produced positive results for the possible presence of blood on the steering wheel, trim, and on the front seat, the criminalist who conducted further testing was not able to identify any blood on those items. Additionally, a Luminol test on the inside of the trunk of Bruce's car produced negative results for the possible presence of blood. As for the unidentified fingerprints, the evidence was that there was a partial palm print found on the trunk lid of Lynn's brother's car, which was parked in the garage, and a different partial palm print found on the exterior side of the front glass storm door. The crime scene technician testified that she compared the two prints to both Lynn's and Bruce's prints, and they did not match either of them. Regarding the footprints, the testimony was that large bloody footprints were found around Lynn's body and leading away from the crime scene. The footprints did not match the tread on the shoes Bruce was wearing on the day he surrendered to the police. On the issue of Bruce's behavior on the night of the murder, his sister Edwinna testified on cross-examination that Bruce was acting normal and did not seem disturbed. Additionally, she did not notice any scratches on him.
This testimony, combined with defense counsel's closing argument in which she emphasized the significance of this evidence, adequately apprised the jury of what defense counsel considered weaknesses in the State's case. See Hershenow , 680 F.2d at 859; Wright , 508 A.2d at 915 . Moreover, the defense's theory — that the absence of forensic evidence in his car linking him to the crime, the presence of fingerprints and shoeprints not matching Lynn's or Bruce's near the crime scene, and Edwinna's assessment of the normalcy of her brother's behavior on the night of the murder exculpated him — was not too complicated or difficult for the jury to understand without having had it explained to them in advance. See Wright , 508 A.2d at 921 . Therefore, based upon the record, this court cannot say that the trial court's refusal to permit defense counsel to discuss in opening statement the factual evidence she planned to elicit on cross-examination — albeit erroneous — resulted in prejudice warranting reversal in this case. Bruce's second point is denied.
No Plain Error in Failing to Declare a Mistrial Sua Sponte
In his final point, Bruce argues that the trial court plainly erred in failing to declare a mistrial sua sponte when the State made the following arguments connecting Lynn's pager to the pager found in Bruce's car:
What about this, this pager? If you look in those photographs, there was no pager, no pager recovered by [a crime scene technician]. Where was the pager? Well, I don't know. Look at the pictures. That Volvo [Bruce's car] that they processed, on the floor in the front by the passenger side, there was a pager laying there. Why would he take something like that? What happens when the pager is going off? It starts making noise, right? Who is going to be paging Lynn Thompson? The people who are looking for her. There was no phone service at the house. The pager is how they do it, how they get a hold of her. Again, that's another thing that he removes, just kind of thinks: Oh, I had better get rid of that because I don't want anybody to find her real quick because somebody is going to be looking at her real soon. Again, we have the time frame problem he has.
He takes the pager.
* * *
She's due at her mother's house, like she is every other Sunday. She hasn't shown up. He knows that they're counting on her being there and that they're going to miss her as soon as she doesn't show up. He has got to leave the house at seven o'clock. It's past time for her to be there. He has got to move. He has got to get the baby out of there. He has got to get rid of the murder weapon, his shoes, clothes, anything that may have any blood on it, towels, paper towels, anything like that; he has got to get rid of that stuff and get out of there.
What does he do? He wants to buy as much time as he can. He takes the pager, covers her body, puts the pager in the car, shuts the car door, locks it, runs and takes the child to his sister's. Then he took off.
* * *
Defense counsel did not object to any of this argument. Thus, Bruce requests plain error relief. Plain error relief is appropriate only if this court determines that Bruce has suffered a "manifest injustice or a miscarriage of justice" as a result of the alleged error. Rule 30.20. "Relief should rarely be granted on assertions of plain error committed during closing arguments." State v. Barnett , 980 S.W.2d 297, 306 (Mo.banc 1998). This is "because, `in the absence of objection and request for relief, the trial court's options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention.'" State v. Silvey , 894 S.W.2d 662, 670 (Mo.banc 1995) (quoting State v. Clemmons , 753 S.W.2d 901, 907-08 (Mo.banc 1988)). Improper comments made during closing argument usually do not affect the substantial rights of a defendant. State v. Strubberg , 616 S.W.2d 809, 818 (Mo.banc 1981). The improper argument must have had "a decisive effect on the jury's determination" to constitute plain error. State v. Hall , 982 S.W.2d 675, 683 (Mo.banc 1998). Moreover, a court should declare a mistrial sua sponte only in exceptional circumstances. State v. Clay , 975 S.W.2d 121, 134 (Mo.banc 1998). Such circumstances are those in which there is no other way to remove the prejudice to the defendant. State v. Scurlock , 998 S.W.2d 578, 589 (Mo.App. 1999).
In closing argument, both the State and the defendant "are entitled to argue reasonable inferences from the evidence." State v. Middleton , 995 S.W.2d 443, 455 (Mo.banc), cert. denied , 528 U.S. 1054, 120 S.Ct. 598 (1999). Here, there was not any conclusive evidence that the pager found in Bruce's car was Lynn's pager. The only evidence concerning a pager was that Lynn carried a pager, and a pager was found in Bruce's car after the murder.
Even assuming, arguendo, that the State's closing argument went beyond that which could be reasonably inferred from this evidence, however, Bruce has failed to demonstrate that the argument had a decisive effect on the jury's verdict. In support of his claim of prejudice, Bruce points to the fact that during deliberations, the jury asked the court whose pager was found in Bruce's car. The court responded by saying that the jury was "required to remember the evidence as presented in the trial." Bruce argues that since the court did not tell the jurors "the truth," i.e., that no evidence was presented that the pager belonged to Lynn, the State's argument must have had a decisive effect on the jury's verdict.
This court first notes that defense counsel did not object to the court's response to the jury's question, which appropriately instructed the jurors to remember the evidence. Furthermore, any assertion that the question indicated the jury believed the State's argument that Lynn's pager was found in Bruce's car, and that belief played a "decisive role" in the jury's finding him guilty, is purely speculative and does not logically follow from the content of the jury's question. See State v. Deck , 994 S.W.2d 527, 541-43 (Mo.banc), cert. denied , 528 U.S. 1009, 120 S.Ct. 508 (1999) (rejecting as speculative the defendant's claim that the jury's requests for a definition of "mitigating" and for a dictionary indicated that the jurors believed they were prohibited from considering certain facts or circumstances as "mitigating"). It is also unpersuasive in light of this court's finding that there was substantial evidence of Bruce's guilt outside of any evidence regarding the pager. As Bruce has failed to demonstrate that he suffered a manifest injustice as a result of the court's failure to declare a mistrial sua sponte because of the State's closing argument, his third point is denied.
The judgment of the trial court is affirmed.
All concur.