State of Missouri v. Rodney A. Smith ( 2021 )

In the Missouri Court of Appeals
Eastern District
DIVISION FIVE
STATE OF MISSOURI, ) No. ED108626
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
) 1822-CR1759-01
vs. )
)
RODNEY A. SMITH, ) Honorable Clinton R. Wright
)
Defendant/Appellant. ) FILED: April 27, 2021
OPINION
Rodney A. Smith (“Defendant”) appeals from the Judgment upon his convictions
following a jury trial for two counts of statutory rape in the second degree, in violation of Section
566.034, RSMo 2000.1 Defendant was sentenced as a prior and persistent offender to two
concurrent terms of seven-years’ imprisonment, given a suspended execution of sentence, and
placed on probation for five years. We would affirm the Judgment of the trial court, but due to
the general interest and importance of the issues on appeal, we transfer the case to the Supreme
Court of Missouri pursuant to Rule 83.02.
Factual and Procedural Background
Viewed in the light most favorable to the verdict, the following evidence was adduced at
trial. On January 25, 2018, when Victim was sixteen years old, she told her mother that she and
1
Unless otherwise indicated, all further statutory references are to RSMo 2000 as amended.
Defendant, her mother’s boyfriend, were having sexual intercourse and oral sex. Victim stated
that the encounter had last occurred that morning. Victim went to the hospital the same day,
where she reported to the emergency-room physician that she had multiple sexual encounters
with her mother’s boyfriend over the past several months. Victim reported that her last
encounter with Defendant was that day, and that it included oral and vaginal penetration.
Victim then underwent a sexual assault examination, and swabs were taken for forensic
evidence from Victim’s body. The sexual assault kit was then delivered to a forensic lab for
further testing.
Detective Julie Johnson (“Detective Johnson”), the investigating officer, received a report
concerning Victim from the hospital and scheduled a forensic interview for Victim for the next
day. Victim later recanted her allegations to Mother, who in turn notified the police. Detective
Johnson spoke with Victim at her school on February 20, 2018, and Victim told her that she had
made up the allegations against Defendant because he had mistreated Mother and Victim wanted
him out of the house. Because Victim recanted, Detective Johnson canceled the “wanted” for
Defendant, but she did not close the case because she was still waiting on lab results from
Victim’s sexual assault kit. In March 2018, Detective Johnson received partial results from the
lab indicating that there was “seminal fluid” in some of the items from Victim’s sexual assault
kit, so Detective Johnson met with Victim again in April to collect a buccal swab from her.
On May 8, 2018, Detective Johnson learned that unknown sources of DNA were
identified from Victim’s sexual assault kit, which matched DNA from Defendant. After
receiving the lab results, Detective Johnson attempted to contact Defendant but was
unsuccessful. Detective Johnson then applied for criminal charges with the prosecutor’s office;
Defendant was arrested on August 2, 2018.
2
On August 14, 2019, Defendant was charged by substitute information with three counts
of statutory rape (Counts I, III, V) and three counts of statutory sodomy (Counts II, IV, VI).
Counts I and II charged that “on or about January 25, 2018,” the day Victim disclosed
Defendant’s abuse, Defendant committed statutory rape in the second degree by having sexual
intercourse with Victim (Count I) and statutory sodomy in the second degree by having deviate
sexual intercourse with Victim (Count II) when Victim was less than seventeen, in the City of St.
Louis. Counts III and IV charged Defendant with the same offenses of statutory rape in the
second degree and statutory sodomy in the second degree for conduct occurring between
September 1, 2017 and January 24, 2018, in the City of St. Louis. Counts V and VI charged that
Defendant committed the same offenses between January 1, 2017 and August 31, 2017, in the
City of St. Louis. Defendant’s trial was held from August 14-16, 2019.
At trial, the evidence presented against Defendant was the testimony of Victim, her
mother, Detective Johnson, the emergency-room physician and crime lab personnel. The crime
lab personnel who testified included the biological screener who conducted tests to determine the
possible presence of DNA on seized evidence, Anne Kwiatkowski (“Kwiatkowski”), and Eric
Hall (“Hall”). Kwiatkowski was the DNA Section Supervisor in the St. Louis Metropolitan
Crime Laboratory. She testified as to the testing on those samples. Hall was the Biology
Technical Leader for the St. Louis Metropolitan Crime Laboratory who conducted the tests on
the DNA samples and reached conclusions on those samples as presented in his lab report.
The State attempted to introduce into evidence buccal swabs taken from Defendant
through witness Kwiatkowski. Kwiatkowski did not take the buccal swabs and was not present
for the taking of the buccal swabs. That testimony was objected to because there was no witness
to the taking of the swab from Defendant. During a discussion, out of the hearing of the jury, the
3
State informed the trial court that Hall, who had taken the buccal swabs, was “on paternity leave,
so he’s unallowed to testify. He’s not allowed to step into Court and work because he’s on
FMLA.2”
Through Kwiatkowski, the State introduced evidence that DNA was found on both a
cervical swab and a cutting from Victim’s underpants that matched an unknown male. The State
then informed the trial court that it intended to call Hall as a witness but that he was only
available to testify via live video feed where he would be available for cross examination and for
face-to-face confrontation with Defendant. Defendant objected to Hall’s testimony via a live
video feed.
Over Defendant’s objection, Hall provided testimony that he took buccal swabs from
Defendant. The buccal swabs were used to create the reference samples that were tested against
the DNA samples taken from evidence. Hall’s testimony provided evidence that the reference
samples were taken from Defendant. Hall further testified that the DNA from the buccal swabs
matched the DNA from the cervical swab and Victim’s underpants. Without Hall’s testimony
the only testimony in evidence would have been that the laboratory found DNA on a cervical
swab and on Victim’s underwear that belonged to an unknown male. Hall’s testimony was
projected into the Courtroom via a television.
At the conclusion of trial, the jury found Defendant guilty of Counts I and III, statutory
rape, and not guilty as to the remaining four counts. The trial court then sentenced Defendant,
who was previously found to be a prior and persistent offender, to two concurrent terms of
seven-years imprisonment, given a suspended execution of sentence, and placed Defendant on
probation for five years.
2
The Family Medical Leave Act.
4
Thereafter, Defendant filed a motion for new trial alleging that he was denied his right to
confrontation of witnesses in allowing witness Hall to testify via a video Zoom phone because
the confrontation right presumes that the witness will be present in the courtroom before the
defendant and the jury to allow the jury to determine witness credibility. Defendant further
alleged that Hall’s testimony was extremely prejudicial to Defendant because it was essential to
establish that DNA analysis had occurred which resulted in a finding of DNA that matched
Defendant on a swab of Victim’s cervix and underpants. A hearing was held on the motion. At
the hearing on the motion for new trial, the prosecutor informed the trial court that the State had
served a subpoena on Hall, prior to trial, but that it had been returned non-est. The trial court
subsequently denied the motion. This appeal follows.3
Hearsay Testimony
In Point I, Defendant argues the trial court plainly erred in not excluding Detective
Johnson’s testimony that Defendant’s DNA matched an unknown source found in Victim’s
sexual assault kit because the testimony was offered for the truth of the matter asserted and was
therefore inadmissible hearsay. Defendant contends that the testimony went beyond that
required to explain subsequent police conduct and was outcome determinative. We disagree.
We typically review a trial court’s evidentiary rulings for an abuse of discretion but
determining whether a criminal defendant’s rights were violated under the Confrontation Clause
is a question of law that this Court reviews de novo. State v. Ivy, 531 S.W.3d 108, 120 (Mo.
App. E.D. 2017). The Confrontation Clause provides that “in all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const.
Amend. VI. The Confrontation Clause prohibits “admission of testimonial statements of a
3
To avoid unnecessary repetition, additional facts relevant to each of Defendant’s points on
appeal will be set forth, as needed, in the discussion section below.
5
witness who did not appear at trial unless [the witness] was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.” State v. Kemp, 212 S.W.3d135,
147 (Mo. banc 2007) (citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004)). “The
testimonial nature of a statement is what makes the declarant a ‘witness’ that the accused has a
right to confront.” Id. at 47-48.
Here, Defendant concedes that he did not object to Detective Johnson’s testimony during
trial or include this claim in his motion for new trial. “For an allegation of error to be considered
preserved and to receive more than plain error review, it must be objected to during the
trial and presented to the trial court in a motion for new trial.” State v. Walter, 479 S.W.3d 118,
123 (Mo. banc 2016). Rule 30.20 authorizes us to review, in our discretion, “plain errors
affecting substantial rights. . . when the court finds that manifest injustice or miscarriage of
justice has resulted therefrom.” Under Rule 30.20, plain error review involves a two-step
process. State v. Flemons, 144 S.W.3d 877, 881 (Mo. App. W.D. 2004); State v. Dudley, 51
S.W.3d 44, 53 (Mo. App. W.D. 2001). First, we determine whether or not the claimed error
“facially establishes substantial grounds for believing that ‘manifest injustice or miscarriage of
justice has resulted[.]’” State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995). We must
determine “whether, on the face of the claim, plain error has, in fact, occurred.” Dudley, 51
S.W.3d at 53. Errors are plain if they are evident, obvious, and clear. State v. Hawthorne, 74
S.W.3d 826, 829 (Mo. App. W.D. 2002). In the absence of such error, we should decline to
exercise our discretion to review the claimed error under Rule 30.20. If we find plain error on
the face of the claim, we may proceed, at our discretion, to the second step to consider whether
or not a miscarriage of justice or manifest injustice will occur if the error is left uncorrected.
Dudley, 51 S.W.3d at 53.
6
“Hearsay statements, or out-of-court statements used to prove the truth of the matter
asserted, generally are inadmissible.” State v. Hartman, 488 S.W.3d 53, 57 (Mo. banc
2016). However, “otherwise inadmissible evidence can become admissible if its purpose is to
explain subsequent police conduct.” State v. Shockley, 410 S.W.3d 179, 194 (Mo. banc 2013);
State v. Loper, 609 S.W.3d 725, 738 (Mo. banc 2020) (officer’s testimony that unidentified
doctor told him victim’s wrist injury was not self-inflicted was admissible to demonstrate
subsequent police conduct). Statements explaining relevant background information and
continuity constitute subsequent police conduct. State v. Dunn. 817 S.W.241, 243 (Mo. banc
1991).
Here, Detective Johnson’s testimony constituted subsequent police conduct and provided
background and continuity to the jury. At trial, Detective Johnson testified that after Victim
recanted her allegations against Defendant in February 2018, she canceled the “wanted” that had
been placed on Defendant after Victim’s initial allegations and that law enforcement were not
actively pursuing Defendant in the case at that point. The jury also heard testimony from Victim
and Mother that Victim had recanted her allegations in February. At the time Victim recanted
her allegations, Detective Johnson had not received any results from the rape kit. Detective
Johnson testified that after she received results in May 2018 that Defendant’s DNA matched the
source located in Victim’s sexual assault kit, she attempted unsuccessfully to contact Defendant
and ultimately brought charges against him. Defense counsel did not object to this line of
questioning. However, during an exchange at the bench about a different topic during Detective
Johnson’s testimony, defense counsel said that she had been letting “a lot of hearsay in with the
anticipation that the evidence would eventually come in through the next two witnesses and the
lab stuff.” Defense counsel asked that further hearsay be limited because the witness was
7
beginning to “testify to things that she has no personal knowledge.” The prosecutor responded
that Detective Johnson testified only “that she had received a match,” and that it was “not being
offered for the proof of the matter asserted but subsequent conduct, which was applying for a
warrant. The trial court then asked the prosecutor, “You do intend to bring a witness forward
who will, in fact, discuss it?” and the prosecutor responded, “Yes, I have DNA.”
Defendant argues that Detective Johnson’s testimony went beyond what was necessary to
explain her subsequent conduct. “[W]hen such out-of-court statements go beyond what is
necessary to explain subsequent police conduct, they are hearsay, unless they qualify as non-
hearsay on another basis.” State v. Douglas, 131 S.W.3d 818, 824 (Mo. App. W.D. 2004). “If
an officer is permitted to narrate the details of an investigation in a way that unnecessarily puts
incriminating information about the defendant before the jury, the testimony violates the
defendant’s right to confrontation.” State v. Cole, 483 S.W.3d 470, 474 (Mo. App. E.D. 2016).
However, as the State correctly points out, in the instant case without Detective Johnson’s
testimony that DNA matching Defendant was found in Victim’s sexual assault kit, the jury
would be confused and would have to speculate about why Defendant was charged in a case that
police had not been actively pursuing for months following Victim’s recantation. Moreover, the
State here introduced other evidence to support the elements of the charged crime, including the
emergency room physician’s testimony. The State presented testimony from Victim that she had
sexual intercourse with Defendant during the charged periods. Additionally, the State called
three laboratory analysts who testified extensively to the processes they followed in collecting
DNA evidence from Victim’s sexual assault kit and in comparing the profile found in those
samples to Defendant’s known DNA standard. The State also admitted a laboratory report,
8
Exhibit 28, into evidence that identified Defendant as the source of DNA found in Victim’s
sexual assault kit.
Because Detective Johnson’s testimony was necessary to provide background and
continuity to the course of her investigation and to explain her decision to seek charges against
Defendant despite Victim’s recantation, it was admissible to show subsequent police conduct and
not for the truth of the matter asserted. We find no error plain or otherwise. Point I is denied.
Sixth Amendment Confrontation Rights
In Points II, III, and IV, Defendant raises three interrelated claims regarding the
admissibility of DNA evidence at trial. For ease of discussion, we address these points together
and out of order.
In Point II, Defendant argues that the trial court plainly erred in admitting Exhibit 28, a
DNA laboratory report prepared by Hall, into evidence through the testimony of Kwiatkowski,
Hall’s supervisor. In Point III, Defendant argues that admission of Hall’s testimony via two-way
live video violated his right to confront witnesses against him and violated Section 561.031. In
Point IV, Defendant argues that the admission of Hall’s virtual testimony violated his rights to
confrontation and due process because Hall was “not unavailable” and had not previously been
subject to cross examination in the presence of Defendant. We first address the propriety of
Hall’s virtual testimony (Points IV and III), which in turn affects the admissibility of the report
he drafted (Point II).
With respect to Point IV, the trial court did not abuse its discretion in admitting Hall’s
testimony via two-way live video over Defendant’s objection that the testimony violated his right
to confront the witnesses against him.
9
Here, the constitutional challenge is based on the confrontation clause of the Sixth
Amendment of the United States Constitution and Article I, Sec. 18(a) of the Missouri
Constitution. There is some difference in the wording of the two constitutional provisions. The
federal provision grants the right “to be confronted with the witnesses against him.” Missouri’s
provision grants the right “to meet the witnesses against him face to face.” State v. Justus, 205
S.W.3d 872, 878 (Mo. banc 2006). Ultimately, “[t]he confrontation rights protected by the
Missouri Constitution are the same as those protected by the Sixth Amendment of the United
States Constitution.” Id.
In Coy v. Iowa, 487 U.S. 1012 (1988), the United States Supreme Court, in addressing
the confrontation clause of the Sixth Amendment, stated that it guarantees “the defendant a face-
to-face meeting with witnesses appearing before the trier of fact.” Id. at 1016. Decisions on the
issue of what constitutes denial of face-to-face confrontation generally hold that significant
obstruction of the defendant’s view of the witness constitutes a violation. The Coy Court
found, for example, the use of a screen between a child victim and the defendant, “was
specifically designed to enable the complaining witnesses to avoid viewing appellant as they
gave their testimony, and the record indicates that it was successful in this objective.” Id. at
1020. This procedure was held to violate the defendant’s right to face-to-face confrontation. Id.
The Supreme Court allowed that “rights conferred by the Confrontation Clause are not absolute,
and may give way to other important interests,” but did not decide whether any exceptions
existed to the physical “face-to-face” confrontation right articulated by the Court. Id. at 1020-21.
If such exceptions existed, however, the Court reasoned that they must “surely be allowed only
when necessary to further an important public policy,” and would need to be shown by
10
“individualized findings that these particular witnesses needed special protection,” not just a
“generalized” policy of protecting children from trauma. Id. at 1021.
In Maryland v. Craig, 497 U.S. 836 (1990), the Supreme Court revisited the topic of
“face-to-face confrontation” and upheld a state procedure allowing one-way closed circuit
television testimony by a child abuse victim outside the defendant’s physical presence. It upheld
the procedure because the statutory procedure preserved all elements of the confrontation right
except physical presence, specifically: the child witness must be competent to testify and must
testify under oath; the defendant retains full opportunity for contemporaneous cross-examination;
and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and
body) of the witness as he or she testifies. Id. at 846. The Court explained that, while “face-to-
face confrontation” is at the core of the Confrontation Clause, “it is not the sine qua non” of that
right. Id. The Court recognized that the “‘the Confrontation Clause reflects a preference for
face-to-face confrontation at trial,’” one that “‘must occasionally give way to considerations of
public policy and the necessities of the case[.]’” Id. at 849. In other words, in order to utilize
such a procedure there must be a finding of necessity. Id. at 850. The Court thus concluded that
“use of the one-way closed circuit television procedure, where necessary to further an important
state interest, does not impinge upon the truth-seeking or symbolic purposes of the Confrontation
Clause” and that necessity in Craig was the protection of the welfare of the child. Id. at 852-53.
The Supreme Court found the Maryland statute required that level of emotional trauma by its
requirement that the child witness will suffer “serious emotional distress such that the child
cannot reasonably communicate.” Id. at 856. The holding in Craig can therefore be summarized
as follows: although the Confrontation Clause contemplates, and usually requires, face-to-face
confrontation, there are circumstances in which something less than physical confrontation will
11
satisfy the constitutional requirement, such as when it is necessary to prevent additional trauma
to a child victim of sexual abuse.
Before either Coy or Craig were decided, the Missouri Supreme Court held in Kansas
City v. McCoy, 525 S.W.2d 336 (Mo. banc 1975), that an expert witness’s testimony via two-
way video during a proceeding in which the defendant was charged with violating a municipal
ordinance did not violate the Confrontation Clause. Id. at 337, 339. Like Craig, McCoy
suggests that the Missouri Supreme Court recognized that virtual testimony preserved many of
the “elements” of the confrontation right. Id. at 339. However, the Court emphasized that the
case was about a municipal-ordinance violation, which was civil in nature, and that the
procedures ensured the reliability of the testimony. Id. The instant case is distinguishable
because it involves a felony, not a municipal-ordinance violation, and it was decided before
Craig, so the McCoy court did not have the opportunity to address the necessity-finding
requirement.
As to the question of “unavailability,” Missouri courts have found that “unavailability”
for purpose of admitting witness’ deposition is not limited to situations where witness is absent
from courtroom, such as where witness is deceased, or beyond range of subpoena, or cannot be
found; it also includes circumstances where witness is, or could be, present in courtroom but, for
some legitimate reason, testimony is unavailable, such as where witness claims privilege against
self-incrimination, or could not testify by reason of loss of memory. State v. Naucke, 829
S.W.2d 445, 450-51 (Mo. banc 1992). Here, the trial court’s conclusion that FMLA made Hall
unavailable as a witness, when considered in light of Missouri’s cases as to the meaning of
“unavailability,” convinces us that the trial court’s finding meets the requirements of Craig. Id.
12
at 450; see also Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284, 289 (1945) (a witness is
unavailable “whenever the testimony of the witness is unavailable as a practical proposition”).
As to the question of “necessity,” the case law diverges as to whether two-way video is
treated differently than one-way video. Without controlling precedent on this issue, by either the
United States or Missouri Supreme Courts, we consider case law from other jurisdictions for
guidance.
A majority of courts have extended the holding in Craig to procedures involving two-way
video feed and require a showing that the procedure is necessary to further an important public
policy and that the reliability of the testimony is otherwise assured. See United States v. Yates,
438 F.3d 1307, 1314 (11th Cir. 2006); United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir.
2005); State v. Rogerson, 855 N.W.2d 495, 506 (Iowa 2014); United States v. Cotto-Flores, 970
F.3d 17, 25 (1st Cir. 2020); United States v. Carter, 907 F.3d 1199, 1206 (9th Cir. 2018); United
States v. Abu Ali, 528 F.3d 210, 240 (4th Cir. 2008); Haggard v. State, 612 S.W.3d 318 (Tex.
Crim. App. 2020); State v. Thomas, 376 P.3d 184, 194 (N.M. 2016); State v. Stock, 256 P.3d
899, 904 (Mont. 2011); Bush v. State, 193 P.3d 203, 215 (Wyo. 2008); Harrell v. State, 709 So.
2d 1364, 1369 (Fla. 1998).
Other courts recognize that two-way video is materially different than one-way video
because it permits the witness and the defendant to see each other as the witness testifies. In
United States v. Gigante, 166 F.3d 75 (2d Cir. 1999), for example, the Court held that, “upon a
finding of exceptional circumstances, ... a trial court may allow a witness to testify via two-way
closed-circuit television when this furthers the interest of justice.” Id. at 80. The Court held that
a two-way video system “preserved the face-to-face confrontation” because the witness testified
under oath, was subject to cross-examination, the fact-finder could observe the witness’s
13
demeanor, and the witness gave his testimony “under the eye of [the defendant] himself.” Id.
The Court found that the use of two-way videoconference technology was consistent with the
Confrontation Clause and concluded that:
two-way closed-circuit presentation of [the witness’s] testimony afforded greater
protection of Gigante’s confrontation rights than would have been provided by
a Rule 15 deposition [that was later introduced at trial]. It forced [the witness] to
testify before the jury, and allowed them to judge his credibility through his
demeanor and comportment; under Rule 15 practice, the bare transcript of [the
witness’s] deposition could have been admitted, which would have precluded any
visual assessment of his demeanor. Closed-circuit testimony also allowed
Gigante’s attorney to weigh the impact of [the witness’s] direct testimony on the
jury as he crafted a cross-examination. Id. at 82.
Courts citing Gigante note that two-way video is “more protective” of confrontation
rights than the one-way video procedure used in Craig. See U.S. v. Abu Ali, 528 F.3d 210, 242
(4th Cir. 2008) (finding no Confrontation Clause violation under the Craig analysis, but noting
that the “two-way link” used in that case “meant that the witnesses were able to view the
defendant as they testified, a protection not present in Craig”); People v. Beltran, 110 A.D.3d
153, 162 (N.Y. App. Div. 2013) (finding that the standards enunciated in Craig were met and
further finding that the use of the “two-way closed circuit television” allowed the witness and the
defendant to see each other during the witness’s testimony, unlike in Craig); People v. Wrotten,
923 N.E.2d 1099, 1102 (N.Y. 2009) (court “assum[ed] without deciding that two-way video does
not always satisfy the Confrontation Clause’s ‘face-to-face meeting’ requirement” citing the
Craig necessity standard, but cross referenced Gigante as holding that the use of “two-way video
‘preserved the face-to-face confrontation’”).
Following the reasoning in Gigante, we too conclude that the two-way live testimony in
this case “preserved the face-to-face confrontation” element of the Sixth Amendment.
Therefore, because Hall was “unavailable” and the live, two-way video procedure used by the
14
trial court preserved all of the elements of Defendant’s confrontation rights, the trial court did not
abuse its discretion nor was there manifest injustice in admitting his virtual testimony.
With respect to Point III, any alleged violation of Section 561.031 did not constitute a
manifest injustice because, as we determined above, Defendant’s confrontation rights were
adequately protected by the live two-way video procedure.
Defendant argues that admission of Hall’s testimony violated “rights of confrontation and
due process” extended to him by Section 561.031 and requests plain error review, as he did not
raise a specific objection at trial regarding the applicability of the statute.
Section 561.031 provides in pertinent part that
1.…[W]hen the physical appearance in person in court is required of any person,
such personal appearance may be made by means of two-way audio-visual
communication, including but not limited to closed circuit television or
computerized video conferencing; provided that such audio-visual communication
facilities provide two-way audio-visual communication between the court and the
person:
(1) First appearance before an associate circuit judge on a criminal complaint;
(2) Waiver of preliminary hearing and preliminary hearing with consent of the
defendant;
(3) Arraignment on an information or indictment where a plea of not guilty is
entered;
(4) Arraignment on an information or indictment where a plea of guilty is entered
upon waiver of any right such person might have to be physically present;
(5) Any pretrial or posttrial criminal proceeding not allowing the cross-
examination of witnesses;
(6) Sentencing after conviction at trial upon waiver of any right such person might
have to be physically present;
(7) Sentencing after entry of a plea of guilty;
(8) Any civil proceeding other than trial by jury;
(9) Any civil or criminal proceeding which is not required to be a matter of
record; and
(10) Any civil or criminal proceeding by the consent of the parties.
2. This section shall not prohibit other appearances via closed circuit television
upon waiver of any right such person held in custody or confinement might have
to be physically present.
3. Nothing contained in this section shall be construed as establishing a right for
any person held in custody to appear on television or as requiring that any
15
governmental entity or place of custody or confinement provide a two-way audio-
visual communication system. Section 561.031.
Even assuming, without deciding, that the procedural requirements of Section 561.031
were not met here, the use of two-way video for Hall’s testimony adequately protected
Defendant’s confrontation rights. Hall was placed under oath, he was subjected to full cross-
examination by defense counsel, the jury was able to assess Hall’s demeanor as he testified, and
Hall and Defendant were able to see each other through the two-way video. Consistent with
Gigante and Craig, the live two-way video procedure preserved all of the elements of
confrontation and Defendant has not shown that his constitutional rights were violated. Having
determined that the two-way video procedure used for Hall’s testimony adequately preserved
Defendant’s right to confrontation under the Sixth Amendment, noncompliance with Section
561.031 did not result in a manifest injustice, as it did not deprive him of his constitutional
rights. See Guinan v. State, 769 S.W.2d 427, 431 (Mo. banc 1989) (Use of two-way closed
circuit television in postconviction hearing did not deny defendant his right to fair trial under
Section 561.031; defendant was able to confer privately with counsel, cameras used provided
clear picture of witnesses, examiners and others present during proceedings, and clearly and
effectively conveyed both text and content of testimony and demeanor of persons testifying).
Finally, with respect to Point II, the trial court did not plainly err in admitting Exhibit 28
into evidence through the testimony of Kwiatkowski.
The Sixth Amendment bars the admission in criminal cases of testimonial out-of-court
statements where the declarant does not testify, except in cases where the declarant is
unavailable and the accused has had a prior opportunity to cross-examine the witness. Crawford,
541 U.S. at 53-54. The Missouri Supreme Court determined in State v. March, 216 S.W.3d 663
(Mo. banc 2007) that, if a laboratory report prepared for the sole purpose of prosecution is
16
admitted into evidence, a defendant’s rights under the Confrontation Clause are violated unless
the author is subject to cross-examination at trial or is unavailable and the accused had a prior
opportunity to cross-examine. State v. March, 216 S.W.3d 663, 667 (Mo. banc 2007).4
However, if an expert other than the author of the report testifies to his or her own opinion
derived from the factual matters contained in the report, the Confrontation Clause is not violated.
State v. Ivy, 531 S.W.3d 108, 121-22 (Mo. App. E.D. 2017); State v. Sauerbry, 447 S.W.3d 780,
785 (Mo. App. W.D. 2014); State v. Fulton, 353 S.W.3d 451, 455 (Mo. App. W.D. 2011).
Here, Exhibit 28 was admitted for limited purposes and the DNA Section Supervisor,
Kwiatkowski, testified that she did her own analysis on the raw data and drew her own
conclusions. At trial, the following exchange occurred concerning the DNA evidence submitted
by the State:
Q. [By Prosecutor:] Ms. Kwiatkowski, we were talking about the DNA
analysis that was completed in this case. And, again, just to kind of refresh the
jurors, will you please explain your involvement in the comparison in this case?
A. So I received all the raw data from DNA analyst Erik Hall. I performed
my own analysis on it and then I compared my results to his results to make sure
that we agree, and then I also did things like make sure there were no typos in the
report.
Q. And in performing your review and the analysis that was done by Erik
Hall, did the lab receive the buccal swab as a reference standard of [Victim] that
was collected by Detective Julie Johnson?
A. Yes.
[Defense Counsel]: May I approach, Your Honor?
THE COURT: You may.
Q. [By Prosecutor:] All right. I’m handing you what’s been marked as
State’s Exhibit 20. And what is that?
A. These are the buccal swabs of [Victim].
Q. And you were testifying earlier about the little balls that are in there.
Can you explain again what that is?
4
Similar to March, Defendant also cites to Bullcoming v. New Mexico, 564 U.S. 647, 663
(2011) (report of analyst who certified defendant’s blood-alcohol content for purpose of
prosecution on driving while intoxicated charge was testimonial) and Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 312 (2009) (evidence affidavits reporting the results of forensic
analysis which showed that material seized by the police and connected to the defendant was
cocaine were testimonial).
17
A. They are called molecular CyDs. They keep any moisture from
collecting in the bag and that maintains the DNA.
Q. And is that sample in substantially the same condition as it would be
stored in the lab?
A. Yes, it is.
[Prosecutor]: The State moves to admit Exhibit 20 into evidence.
[Defense Counsel]: No objection to 20.
THE COURT: It will be admitted.
Q. [By Prosecutor:] And you testified that you completed a report in this
case; is that correct?
A. I didn’t complete the report. I approved his report.
Q. And so you signed off on that report?
A. Yes, I did.
Q. And as well as the conclusions that you compared to your own
conclusions?
A. Correct.
Q. Are the conclusions contained in that report consistent with your own
conclusions –
A. Yes, they are.
Q. -- and analysis? Thank you. All right. I’m handing you what’s been
marked as State’s Exhibit 28. Do you recognize that?
A. I do.
Q. And what is it?
A. This is the report that Erik Hall wrote and that I reviewed.
Q. And is this report a fair and accurate copy of the report containing your
conclusions in this case?
A. Yes, it is.
[Prosecutor]: Move to admit State’s Exhibit 28, Your Honor.
[Defense Counsel]: Same objection as we discussed at sidebar, Judge, as
to foundation.
THE COURT: All right. It will be admitted.
[Defense Counsel]: And if I can just expand on that a little bit. Objection
as to foundation and right to confrontation under the Sixth Amendment of the
United States Constitution.
THE COURT: All right.
[Defense Counsel]: Thank you.
THE COURT: It will be admitted pursuant to the limitations we also
described.
[Prosecutor]: Thank you, Your Honor.
Here, the trial court admitted the report during Kwiatkowski’s testimony “pursuant to the
limitations” that were discussed off the record. The next day, trial court clarified that Exhibit 28
had been “admitted with the limitations that it could be used by the State, but not offered for the
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jury to view. Portions could be used by the State.” The prosecutor stated her understanding that
the report was “offered and then the publication or use to the jury would depend on the testimony
offered by the State today.” The trial court agreed, “Based upon testimony today, portions of it
upon request could be published to the jury, but we have not yet discussed the entire report. So
there is still limitations on it,” and the trial court said they would take it up after Hall’s
anticipated Zoom testimony offered that day.
Even assuming that Exhibit 28 was a testimonial report, the trial court did not plainly err
in admitting it into evidence because the author, Hall, testified at trial. Crawford, 541 U.S. at 53-
54. Hall testified via Zoom about his involvement in the case, including getting a buccal swab
from Defendant and performing the DNA analysis, and he testified about the conclusions he
made from that analysis. Further, defense counsel had full opportunity to cross-examine Hall
about the conclusions in his report. Even if the admission of Exhibit 28 through Kwiatkowski’s
testimony was somehow improper because she did not prepare the report, Defendant did not
suffer a manifest injustice from any limited admission of the report through Kwiatkowski, as
Hall did eventually testify, thereby ensuring that Defendant had the opportunity to cross-examine
the report’s author.
In conclusion, the trial court’s decision to admit Hall’s testimony via live two-way video
conference was not an abuse of discretion and did not violate Defendant’s rights under the
Confrontation Clause. By extension, the admission of Hall’s report (Exhibit 28) was not plainly
erroneous, and any alleged failure to comply with Section 561.031’s procedural requirements
was neither plain error nor a manifest injustice. Points II, III, and IV are denied.
Prosecutorial Misconduct
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In Point V, Defendant argues that the trial court plainly erred” in failing to sua sponte
declare a mistrial due to “prosecutorial misconduct.” Specifically, Defendant contends that the
prosecutor failed to preserve Hall’s testimony by deposition through Rules 25.14 and 25.16, and
thereby “set into motion a slew of cascading constitutional violations” that substantially
prejudiced him. We disagree.
“In situations involving prosecutorial misconduct, the test is the fairness of the trial, not
the culpability of the prosecutor.” State v. Forrest, 183 S.W.3d 218, 227 (Mo. banc 2006).
“Where prosecutorial misconduct is alleged, the erroneous action must rise to the level of
‘substantial prejudice’ in order to justify reversal.” Id. (quoting State v. Peterson, 833 S.W.2d
395, 398 (Mo. App. S.D. 1992)). “The test for ‘substantial prejudice’ is whether the misconduct
substantially swayed the judgment.” Id. (quoting Peterson, 833 S.W.2d at 398). “Misconduct
means transgression, dereliction, unlawful, or wrongful behavior, or impropriety that is willful in
nature.” In re Conard, 944 S.W.2d 191, 201 (Mo. banc 1997); In re Baber, 847 S.W.2d 800, 806
(Mo. banc 1993) (defining misconduct in the context of judicial discipline proceedings by
reference to Black’s Law Dictionary). “Willful” is defined as “proceeding from a conscious
motion of the will; ... deliberate. Intending the result which actually comes to pass; ...
intentional, purposeful; ... done with evil intent, or with bad motive or purpose, or with
indifference to the natural consequences, unlawful....” Black’s Law Dictionary 1599 (7th ed.
1999).
Here, Defendant fails to show that the prosecutor’s alleged errors constituted a “willful”
transgression, dereliction, or impropriety, or that it constituted unlawful or wrongful behavior.
Defendant first complains that the State made no attempt to document its subpoena of
Hall, or of the subpoena’s return. The State did not attempt to follow Rule 25.14 and preserve
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Hall’s testimony in advance, prior to his paternity leave, nor did it attempt to follow Rule 25.16
to determine if such deposition offered by the State was admissible at trial. Finally, Defendant
argues that the State did not seek Defendant’s consent to stipulate to the DNA results, or to
taking Hall’s testimony via Zoom. But the record shows that the prosecutor believed
Kwiatkowski, Hall’s supervisor, who had been able to testify to the same facts subject to
Defendant’s objections in prior cases could testify to the DNA evidence in the present case, and
elected to call her rather than seek a deposition of Hall or a continuance to secure his presence at
trial.
Defendant next alleges that the prosecutor elicited “inadmissible hearsay” from Detective
Johnson about Defendant’s DNA. As discussed earlier, the prosecutor’s questions to Detective
Johnson were to show subsequent police conduct, and were admissible for that purpose.
Moreover, the record shows that the prosecutor secured witnesses who testified to the underlying
DNA and therefore there is no evidence that the prosecutor was attempting to introduce
inadmissible hearsay.
Defendant next argues that the State attempted “to get around the fact” that Hall “was not
unavailable” by introducing his DNA report through Kwiatkowski. As discussed earlier,
however, the record shows the State intended to call Hall as witness and to present his testimony
at trial. However, the prosecutor believed that Hall was unavailable to testify in person under his
employer’s FMLA leave policy, and believed Kwiatkowski could testify to the report as Hall’s
supervisor. Again, even if mistaken, there is no evidence the prosecutor’s actions were a willful
or intentional transgression or impropriety.
Finally, Defendant complains that Hall’s testimony by Zoom violated his due process and
confrontation rights. We have already found that the use of Hall’s virtual testimony in this case
21
did not violate Defendant’s constitutional rights, but even if it did, there is no indication that the
State knowingly sought to do so. Rather, the record shows that the prosecutor attempted to call
Kwiatkowski to testify rather than seeking a continuance to secure Hall’s testimony because
Defendant had invoked his right to a speedy trial, and the prosecutor reasonably believed it
would be impractical to create any further delays. Therefore, this challenged action does not
constitute misconduct.
Defendant finally attempts to aggregate all of these alleged errors to argue that they
amounted to “misconduct” that resulted to substantial prejudice to him. As previously discussed,
however, there was no prosecutorial misconduct in any of the prosecutor’s challenged actions;
therefore, together they did not amount to misconduct either. See State v. Cook, 5 S.W.3d 572,
578 (Mo. App. W.D. 1999) (rejecting complaints of “prosecutorial misconduct” where defendant
attempted to bundle the averred errors into an argument that, cumulatively, amounted to
prosecutorial misconduct). Nor were the prosecutor’s actions intentional misrepresentations.
See State v. Hammonds, 651 S.W.2d 537, 539 (Mo. App. E.D. 1983) (prosecutor’s statement to
the jury that a witness in the court room did not testify for fear of perjury was an intentional
misrepresentation and constituted plain error where prosecutor had precluded witness’ testimony
on the basis of late disclosure). We find no error plain or otherwise. Point V is denied.
We would affirm the Judgment of the trial court, but because the use of two-way video
testimony in a criminal trial raises important questions of general interest in the State of
Missouri, we transfer the case to the Supreme Court of Missouri pursuant to Rule 83.02.
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Conclusion
For the foregoing reasons, the case is ordered transferred to the Missouri Supreme Court.
____________________________
Mary K. Hoff, Chief Judge
Sherri B. Sullivan, Judge and Angela T. Quigless, Judge: Concur
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