State of Missouri v. Nanette Sue Litherland

In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
STATE OF MISSOURI, ) No. ED101551
)
Respondent, ) Appeal from the Circuit Court
) of St. Francois County
vs. ) 10WA-CR00247-02
)
NANETTE SUE LITHERLAND, ) Honorable Kenneth Wayne Pratte
)
Appellant. ) Filed: September 29, 2015
Nanette Sue Litherland (“Defendant”) appeals the judgment entered upon a jury verdict
convicting her of first-degree assault with respect to the shooting of her father-in-law James
Litherland (“James Litherland” or “James”)1 and first-degree murder with respect to the shooting
and death of her husband Jerry Litherland (“Jerry Litherland” or “Jerry”). We reverse and remand
for a new trial.
I. BACKGROUND
On September 22, 2009, an officer with the Washington County Sheriff’s Office was
dispatched to the Litherland family farm because a shooting had taken place. When the officer
arrived, he found James Litherland being treated by emergency personnel for a gunshot wound to
the back of his head. After finding blood on the property, the officer believed James had been shot
on the premises.
1
Because many of the parties involved in this case are family members who share the same last name, we will often
refer to them by their first names for clarity and ease of reading. No disrespect is intended.
On November 8, 2009, three officers with the Missouri State Highway Patrol responded to
another crime scene at the Litherland family farm. The officers found Jerry Litherland dead on the
property, and the cause of death was later determined to be multiple gunshot wounds to the chest.
Subsequently, Defendant was charged with first-degree assault for acting knowingly in
concert with another or others to cause serious injury to James Litherland by aiding or encouraging
Jacob Feldman (“Jacob Feldman” or “Feldman”) to shoot James. Defendant was also charged with
first-degree murder for acting knowingly in concert with another or others to cause the death of
Jerry Litherland by aiding or encouraging Jacob Feldman to shoot Jerry. Although Defendant was
initially charged in the Circuit Court of Washington County, Defendant filed a motion for change of
venue. The motion was granted and the case was transferred to the Circuit Court of St. Francois
County, where a jury trial took place from June 10-11, 2013.
At the time James Litherland was shot and Jerry Litherland was shot and killed, Defendant
and Jerry were married but separated. M.L. was the daughter of Defendant and Jerry Litherland.
Defendant and M.L. lived together in a separate residence, while Jerry lived with his father James
on the Litherland family farm. Feldman, a friend of M.L.’s and the person who shot James and shot
and killed Jerry, also lived on the Litherland family farm. One of the State’s key witnesses, Gwen
Buhler (“Gwen Buhler” or “Gwen”), was married to Defendant’s son Thomas Buhler (“Thomas
Buhler” or “Thomas”) at the time the crimes took place.
At the time of Defendant’s trial, Jacob Feldman was incarcerated for first-degree murder for
the shooting and death of Jerry, having previously pled guilty to the crime. The State and the
defense do not dispute the evidence at trial demonstrated Jacob Feldman shot James on September
22, 2009 in the back of the head with the intent to kill and that Feldman caused Jerry’s death by
shooting him on November 8, 2009. However, the State and the defense do dispute whether the
evidence at trial demonstrated Defendant was involved in those crimes, i.e., whether Defendant
2
aided or encouraged Jacob Feldman to shoot James or aided and encouraged Feldman to cause the
death of Jerry by shooting Jerry.
A. Defendant’s Pre-Trial Motion for a Continuance
Prior to voir dire, the trial court held a pre-trial conference. The very first matter, raised by
defense counsel, was an oral motion for a continuance. When defense counsel told the court he was
going to make a motion for a continuance, and before counsel even told the court the basis of the
motion, the court stated, “. . . I’m going to go ballistic.” Defense counsel then explained to the
court that the only witness for the defense, M.L. (who was a possibly intimate friend of Feldman,
the person who shot and killed Jerry and shot James; the daughter of both the Defendant and Jerry,
the murder victim; the granddaughter of the assault victim, James; and the sister-in-law of Gwen
Buhler, a key witness for the State), was temporarily unavailable to testify because M.L. went into
labor.
Defense counsel told the court M.L. went into the hospital “today . . . at 3:00 a.m.” to give
birth and would be in the hospital for three days (exceeding the duration of the two-day trial)
because of a condition called toxemia pre-eclampsia which resulted in M.L. “going early” into
labor. Counsel further stated, “[M.L.] literally is our only witness” and “we believe we can
convince the jury that [Defendant] did not commit these offenses . . . [b]ut [we] do need this
witness.”
Defense counsel explained to the court the State’s theory of the case which was that the
Litherland family farm was “in dire straights economically,” and Defendant orchestrated a
conspiracy for Jacob Feldman to kill Jerry and then use proceeds from Jerry’s life insurance benefits
to pay debt owed on the farm. Counsel argued M.L.’s testimony could support an alternative theory
that Feldman had a motive of his own to kill Jerry, because Feldman was in love with M.L. and in a
relationship with her. According to defense counsel, M.L. had a journal which indicated she was in
3
love with Feldman, and M.L. would provide important testimony that Defendant wanted to rekindle
her marriage with M.L.’s father Jerry, which would rebut the State’s argument that Defendant killed
Jerry to obtain money from his life insurance benefits. Counsel also argued M.L.’s testimony
would contradict Gwen Buhler’s testimony at trial that she overheard incriminating conversations
involving Defendant. Finally, defense counsel told the court that although he previously took
M.L.’s deposition, it would be an inadequate substitute for her live testimony because with a
deposition the jury would not be apprised of M.L.’s “non-verbals.”
In response to Defendant’s motion for a continuance, the State conceded that M.L.’s
deposition, which was taken just over a week before trial, could be used at trial if it conformed to
the rules of evidence. However, the State objected to a continuance of the trial, expressing concerns
that the case was three and one-half years old and stating, “[we] got a family that’s been waiting for
justice for a long time.” The State also argued, “we have . . . for the last nine months been aware as
a possibility that [M.L.], who may be the only witness for the defense, maybe [sic] under this
condition.”
The trial court denied Defendant’s motion for a continuance, stating only, “It should have
been pretty obvious to everybody, [at M.L.’s] late deposition, that you might have to rely on that.
That with [M.L.’s] condition, you never know. We’re going to try this case.”
B. Defendant’s Jury Trial
Defendant did not testify or present any evidence at her jury trial. The State called eleven
witnesses,2 with Gwen Buhler and Jacob Feldman providing the bulk of the testimony presented at
Defendant’s trial.3 In addition to calling Jacob Feldman as a prosecution witness during the trial,
2
The State’s eleven witnesses consisted of five officers who had investigated the crimes; a 911 dispatcher; two of
Feldman’s friends; Gwen and Thomas Buhlers’ neighbor; Gwen Buhler; and Jacob Feldman.
3
Gwen and Feldman’s testimony at trial combined accounted for more than 60% of the approximately 349 pages of
total testimony in the transcript; Gwen’s testimony is set forth in approximately eighty pages of the transcript, and
Feldman’s testimony is set forth in approximately 133 pages of the transcript.
4
the State also played for the jury over ninety-nine minutes of videotaped excerpts of an interview
Feldman had with police and videotaped excerpts of a proffer made by Feldman. Feldman stated in
his proffer that he was testifying against Defendant in exchange for the State not pursuing the death
penalty against Feldman for his role in Jerry’s murder.
1. The State’s Theory Regarding the Shooting of James Litherland
With respect to the shooting of James Litherland, the State’s theory at trial was that
Defendant encouraged Feldman to shoot James by telling him James had been molesting M.L. (who
was Defendant’s daughter, Feldman’s friend, and James’ granddaughter). The State argued in
closing argument that “[the] molestation stories . . . were fake,” “[Defendant] knew how much
[Feldman] cared for [M.L.], so what better way to press the buttons,” and “[Defendant] encouraged
him to do the [shooting] by feeding [Feldman] these fake stories.” The State’s theory regarding
Defendant’s involvement in the shooting of James was primarily supported by Gwen Buhler’s
testimony and videotaped excerpts of Feldman’s interview with police and Feldman’s proffer.
Gwen Buhler, Defendant’s daughter-in-law, testified against Defendant in exchange for
Gwen pleading guilty to a felony charge of hindering prosecution and the State recommending a
sentence of probation. Gwen testified that Feldman told her Defendant wanted him to shoot James
because James was “groping” and molesting M.L. Gwen also testified she had overheard Feldman
and Defendant arguing after the shooting; Feldman was angry because Defendant drove him to the
Litherland family farm but failed to pick him up, while Defendant was angry Feldman failed to kill
James.
Jacob Feldman’s videotaped interview with police and his videotaped proffer also
implicated Defendant in James’ shooting. Feldman stated Defendant approached him and told him
he needed to kill James. Feldman also stated Defendant drove him to the Litherland family farm on
5
the day of the shooting, dropped him off knowing he was planning to kill James, and Feldman
called Defendant after the shooting to let her know it was done.
2. The State’s Theory Regarding the Shooting and Death of Jerry Litherland
With respect to the shooting and death of Jerry Litherland, the State’s theory at trial was that
Defendant wanted Jerry killed because Defendant was in debt and wanted to collect proceeds from
Jerry’s life insurance benefits. Business records were admitted at trial including a document
showing Defendant owed approximately $239,000 on a mortgage at the time of Jerry’s murder and
a document showing Defendant sought a lump sum payment from Jerry’s life insurance benefits in
the amount of approximately $204,000 following Jerry’s death.
According to the State’s theory, Defendant encouraged Jacob Feldman to shoot and kill
Jerry by offering him money she would receive from Jerry’s life insurance benefits and by telling
Feldman that Jerry had been molesting M.L. As with the allegations that James Litherland was
molesting M.L., the State argued to the jury that “[the] molestation stories [involving Jerry] . . .
were fake,” “[Defendant] knew how much [Feldman] cared for [M.L.], so what better way to press
the buttons,” and “[Defendant] encouraged him to do the murder[ ] by feeding [Feldman] these fake
stories.” The State’s theory regarding Defendant’s involvement in the shooting and death of Jerry
was primarily supported by the testimony of two of Feldman’s friends, the testimony of Gwen
Buhler, and videotaped excerpts of Jacob Feldman’s interview with police and Feldman’s proffer.
Justin Messex, a friend of Jacob Feldman’s, testified Feldman told him that Defendant was
going to use life insurance benefits she would receive after Feldman killed Jerry Litherland to pay
off her house and to pay Feldman for the murder. Jonathan Hand, another friend of Jacob
Feldman’s, testified at trial that he had a conversation with Defendant and Feldman where “they
were looking for Jerry to be killed.” Hand stated he was offered $10,000 to kill Jerry, it was Hand’s
understanding that the money would come from life insurance benefits, and he declined the offer.
6
Gwen Buhler, Defendant’s daughter-in-law, testified at trial she was interviewed three or
four times by the police before she was arrested for Jerry’s murder, and during those interviews she
never told police Defendant was responsible for Jerry’s death. After Gwen was charged with
Jerry’s murder and was incarcerated, she told police Defendant had planned the crime. Gwen said
she initially lied to police in order to protect her husband Thomas Buhler, Defendant, and Feldman.
Gwen testified at trial that a few days before Jerry’s murder she overheard Defendant telling
Feldman he needed to “hurry up” and “get it done” because Jerry was supposed to change the
beneficiaries on his life insurance policy. Gwen also stated she overheard Defendant tell Feldman
she would “take care of him” if he got caught. Gwen testified Defendant had told Feldman and
others that Jerry was molesting M.L., but Gwen later learned the molestation claims were untrue.
Gwen also stated she overheard Feldman say Defendant wanted him to shoot and kill Jerry, and
Feldman also said he was going to shoot Jerry because Defendant “told him about all the things that
Jerry was doing to [M.L.].”
Gwen also testified Defendant and Jacob Feldman decided Gwen’s husband Thomas would
drive Feldman in their neighbor’s car to the Litherland family farm where they planned for Feldman
to shoot and kill Jerry. Gwen testified that on the day of Jerry’s murder she saw Feldman get into
the car with Thomas’ .22 rifle, observed Thomas leave with Feldman, and then saw Thomas return
home alone. Gwen stated Thomas subsequently received a telephone call, and Thomas left the
house again and returned with Feldman.
Jacob Feldman’s videotaped interview with police and his videotaped proffer also
implicated Defendant in Jerry’s murder. Feldman stated Defendant approached him, Defendant told
Feldman he needed to kill Jerry, and Defendant told Feldman she would give him insurance money
if he did. Feldman said he told Defendant it was her decision whether she wanted Jerry killed, and
Defendant told Feldman to kill Jerry but she did not want to know how it was done. Feldman stated
7
Thomas and Gwen also knew about the murder, Feldman took Thomas’ .22 rifle to the Litherland
family farm, and Thomas drove him there to kill Jerry. Feldman said that when he arrived at the
farm, it was too dark to use Thomas’ gun, so Defendant found another rifle in the house and used it
to shoot and kill Jerry.
3. The Defense Theory with Respect to Both Crimes
The defense theory at trial was that Defendant had no involvement in James’ shooting or
Jerry’s murder and Feldman shot James and killed Jerry on his own. In support of its theory, the
defense relied on Jacob Feldman’s trial testimony and argued the State’s witnesses were not
credible.
Although Feldman was a prosecution witness at Defendant’s trial, Feldman became an
adverse witness on the stand and recanted his previous statements from his videotaped interview
with police and his videotaped proffer which implicated Defendant in James’ shooting and Jerry’s
murder. Feldman testified at trial he was not telling the truth when he implicated Defendant in his
videotaped interview with police and in his proffer and “thought that that [sic] was a way of saving
of [sic] my own life.”
Feldman testified at trial that Defendant never asked him to kill James, and Feldman said he
shot James on his own because James touched M.L. inappropriately on multiple occasions and
because Feldman loved M.L. Feldman also testified Defendant never asked or encouraged him to
kill Jerry and Defendant did not offer Feldman money to kill Jerry. Feldman stated he killed Jerry
on his own out of love and respect for M.L., because of how Jerry treated and threatened M.L.
Feldman testified that on the night of the murder, Thomas Buhler had driven him to the Litherland
family farm so Feldman could get some drugs. Once Feldman got there, he waited for Jerry to
come home, and when Jerry arrived, Feldman confronted Jerry about what he was doing to M.L.
8
Feldman testified he told Jerry to get his things and leave, and Jerry responded in a way which
prompted Feldman to shoot and kill Jerry.
Feldman testified at trial it was not true he confided in Justin Messex about the murder and
denied he told Messex Defendant had offered him money to kill Jerry or that Defendant would get
life insurance benefits if Jerry was killed. Feldman also stated it was not true he and Defendant
tried to hire Jonathan Hand to murder Jerry or that they offered him life insurance money. Feldman
stated he had asked Hand, a friend who would do whatever Feldman asked, to testify to those things
to corroborate Feldman’s story in his videotaped interview and proffer and to help Feldman avoid
the death penalty for killing Jerry.
At Defendant’s trial, defense counsel argued the State’s witnesses were not credible. The
defense argued Gwen Buhler’s trial testimony was not credible because, (1) Gwen admitted she
gave prior inconsistent statements to the police where she did not implicate Defendant; and (2)
Gwen admitted she was testifying against Defendant in exchange for a deal with the State where
Gwen would plead guilty to felony hindering prosecuting and the State would recommend a
sentence of probation.
C. Relevant Procedural Posture
After deliberating for almost three hours, the jury found Defendant guilty of first-degree
assault and first-degree murder. The court entered a judgment in accordance with the jury’s verdict
and sentenced Defendant to life imprisonment for first-degree assault and to life imprisonment
without the possibility of probation or parole for first-degree murder, with the sentences to run
consecutively.
Subsequently, Defendant filed a motion for a new trial asserting the trial court erred in
denying her pre-trial oral motion for a continuance based on the temporary unavailability of her sole
9
defense witness, M.L., due to M.L. going into labor on the morning of trial. After a hearing, the
trial court denied Defendant’s motion for a new trial. This appeal followed.
II. DISCUSSION
In Defendant’s sole point on appeal, she asserts the trial court committed reversible error in
denying her pre-trial oral motion for a continuance based on the temporary unavailability of her sole
defense witness, M.L., due to M.L. going into labor on the morning of trial. For the reasons
discussed below, we agree.
A. General Standard of Review
The decision to grant or deny a motion for a continuance is within the sound discretion of
the trial court. State v. Salter, 250 S.W.3d 705, 712 (Mo. banc 2008). Nevertheless, whether a trial
court committed reversible error in denying a motion for a continuance is determined by
considering the circumstances of each case. State v. Kauffman, 46 S.W.2d 843, 846 (Mo. 1932); see
State v. Blocker, 133 S.W.3d 502, 505 (Mo. banc 2004) (finding the trial court committed reversible
error in denying a motion for a continuance “[u]nder the circumstances of this case”). A trial
court’s decision denying a motion for a continuance will be reversed only if there is a strong
showing that the trial court abused its discretion and that prejudice resulted from the denial of the
motion. Salter, 250 S.W.3d at 712.
B. Whether the Trial Court Abused its Discretion in Denying Defendant’s Motion for a
Continuance
An abuse of discretion occurs when a trial court’s decision “is clearly against the logic of the
circumstances then before it and is so arbitrary and unreasonable as to shock the sense of justice and
indicate a lack of careful consideration.” State v. Wolf, 91 S.W.3d 636, 645 (Mo. App. W.D. 2002).
“If a continuance is not likely to result in the presence of the witness at trial, the court will not be
held to have abused its discretion in denying the continuance.” Blocker, 133 S.W.3d at 504.
10
In this case, defense counsel requested a continuance based on the temporary unavailability
of Defendant’s sole defense witness, M.L., due to M.L. going into labor at 3:00 a.m. on the morning
of trial. Defense counsel explained to the court that M.L. would be in the hospital for three days
(exceeding the duration of the two-day trial) because of a condition called toxemia pre-eclampsia
which resulted in M.L. “going early” into labor. Although defense counsel had taken M.L.’s
deposition just over a week before trial, counsel told the court it would be an inadequate substitute
for M.L.’s live testimony because with a deposition the jury would not be apprised of M.L.’s “non-
verbals.”
The State objected to a continuance of the trial, expressing concerns that the case was three
and one-half years old and stating, “[we] got a family that’s been waiting for justice for a long
time.” The State also argued, “we have . . . for the last nine months been aware as a possibility that
[M.L.], who may be the only witness for the defense, maybe [sic] under this condition.” The trial
court denied Defendant’s request for a continuance, stating only, “It should have been pretty
obvious to everybody, [at M.L.’s] late deposition, that you might have to rely on that. That with
[M.L.’s] condition, you never know. We’re going to try this case.”
Rule 25.134 permits a defendant to use a witness’s deposition at trial, stating in relevant part:
. . . [A]ny deposition obtained in accordance with Rules 25.12, 25.14 and 25.15, so
far as it is otherwise admissible under the rules of evidence, may be used by
defendant [at trial] if it appears that the witness . . . (c) [i]s unable to attend or testify
because of sickness or infirmity . . . or (f) [i]s otherwise unavailable and the
defendant has made a good faith effort to obtain the presence of the witness at the . . .
trial, but has been unable to procure the attendance of the witness.
(emphasis added). Although Rule 25.13 provides a defendant may use a deposition under certain
circumstances, including those in the preceding sentence, we can find no precedent requiring the
use of a deposition where, as here, a defendant’s sole defense witness is temporarily unavailable to
testify. Similarly, this Court can find no precedent suggesting a defendant is required to proceed
4
All references to Rules are to Missouri Supreme Court Rules (2015).
11
with a trial and use a witness’s deposition instead of her live testimony where, as in this case,
defense counsel knew his sole defense witness was pregnant at the time of her deposition, the
witness went “early” into labor on the morning of trial, and the witness was expected to be out of
the hospital after three days. Accordingly, to the extent the trial court’s denial of a continuance was
based upon the fact defense counsel had taken M.L.’s deposition before trial and knew she was
pregnant at that time, the trial court’s decision denying the continuance was an abuse of discretion,
i.e., was clearly against the logic of the circumstances then before it and was so arbitrary and
unreasonable as to shock the sense of justice and indicate a lack of careful consideration. See
McBurney v. Cameron, 248 S.W.3d 36, 48 (Mo. App. W.D. 2008) (indicating that deposition
testimony is different than live testimony because there is no opportunity to demonstrate a
contradiction of the witness and deposition excerpts may not adequately reveal the credibility of the
witness); Wolf, 91 S.W.3d at 645 (defining abuse of discretion).
The trial court’s denial of Defendant’s motion for a continuance was also an abuse of
discretion because the motion was based on the temporary unavailability of a key witness for
Defendant’s defense against serious felony charges. Similar circumstances existed in State v.
Blocker, 133 S.W.3d 502 (Mo. banc 2004). In that case, defense counsel learned the Sunday before
the Monday trial that a key witness for defendant’s defense to serious felony charges was
temporarily unavailable to testify due to a family emergency. Id. at 503, 505. Defense counsel filed
a motion for a continuance based on the temporary unavailability of the witness, the trial court
denied the motion, and defendant was convicted. Id. at 503-04. Defendant appealed, arguing the
trial court erred in denying his motion for a continuance. Id. at 504. The Missouri Supreme Court
agreed, holding “[defendant] was entitled to a continuance until he could secure [the key witness’s]
testimony” and that the trial court abused its discretion in denying defendant the opportunity to
introduce the evidence in support of his defense. Id. at 505.
12
Here, like in Blocker, defense counsel learned right before trial that M.L., a key witness for
Defendant’s defense to serious felony charges, was temporarily unavailable to testify due to a
matter outside of defense counsel’s control. See id. at 503, 505. In this case, it was undisputed
M.L., Defendant’s sole defense witness, went into labor at 3:00 a.m. on the morning of trial and was
expected to be out of the hospital after three days.
When defense counsel told the court he was going to make a motion for a continuance, and
before counsel even told the court the basis of the motion, the court stated, “. . . I’m going to go
ballistic.”5 While the record does not reflect the precise reasons why the trial court was upset with
counsel and counsel’s motion for a continuance before the court even heard the basis of the motion,
the trial court may have shared the State’s concerns that the case was three and one-half years old
and that the victims’ family had “been waiting for justice for a long time.”
This Court recognizes the importance of cases being decided as efficiently as possible and
the importance of justice being served to victims, their families, and society as a whole. However,
those principles should not override a defendant’s constitutional right to present a defense, see
Crane v. Kentucky, 476 U.S. 683, 690 (1986), especially in a case such as this where a defendant is
defending a charge of first-degree murder subject to a sentence of life imprisonment without the
possibility of probation or parole. See section 565.020.2 RSMo 2000 (discussing the mandatory
punishment for first-degree murder). “[C]ourt[s] must remember that one of the fundamental rights
of due process afforded to a defendant is the right to present witnesses in his defense.” State v.
Simonton, 49 S.W.3d 766, 781 (Mo. App. W.D. 2001) (emphasis added) (quotations omitted).
5
The trial court’s statement “. . . I’m going to go ballistic,” made by the court before it even heard the basis of
Defendant’s motion for a continuance, is concerning because it indicates the trial court may have had a predisposition
to rule against Defendant regardless of the merits of Defendant’s motion. In light of the context of the trial court’s
statement, this Court is compelled to emphasize it is necessary for courts to consider the merits of parties’ arguments
before ruling on an issue.
13
Here, the trial court denied Defendant’s motion for a continuance although M.L.,
Defendant’s sole defense witness to serious felony charges, went into labor at 3:00 a.m. on the
morning of trial and was expected to be out of the hospital after three days. We find that under
these circumstances, Defendant was denied her constitutional right to present witnesses in her
defense, “[Defendant] was entitled to a continuance until [s]he could secure [M.L.’s] testimony,”
and the trial court abused its discretion in denying Defendant the opportunity to introduce M.L.’s
testimony in support of her defense. Blocker, 133 S.W.3d at 505.
C. Whether Defendant Was Prejudiced By the Denial of Her Motion for a Continuance
In order to find the trial court committed reversible error in denying Defendant’s motion for
a continuance, we must also find Defendant was prejudiced as a result of the trial court’s ruling.
Salter, 250 S.W.3d at 712. Here, the State does not dispute M.L. would have testified as defense
counsel claimed at the pre-trial hearing on the motion for a continuance and M.L.’s testimony
would, (1) indicate she was in love with Feldman; (2) provide Defendant wanted to rekindle her
marriage to M.L.’s father Jerry; and (3) contradict Gwen Buhler’s testimony at trial that she
overheard incriminating conversations involving Defendant.
The State argues Defendant suffered no prejudice from the trial court’s denial of her motion
for a continuance because M.L.’s proposed testimony regarding her relationship with Feldman and
regarding Defendant’s feelings towards Jerry was merely cumulative to testimony of witnesses for
the prosecution. The State cites to portions of the trial transcript where, (1) various witnesses for
the State testified Feldman was in love with M.L. and that Feldman believed M.L. was being
molested; (2) one State witness testified Feldman told him he shot James because James had made
sexual comments or had done things to M.L.; and (3) one of the officers investigating the case
testified for the State that Defendant told him she still loved her husband Jerry and wanted to get
back together with him.
14
Courts have found no prejudicial error results from the denial of motion for a continuance
based on the unavailability a defense witness where the witness’s testimony would have been
cumulative to that of another defense witness. See, e.g., State v. Morin, 873 S.W.2d 858, 871 (Mo.
App. S.D. 1994); State v. Martin, 515 S.W.2d 802, 803-04 (Mo. App. 1974). Those are not the
circumstances present in this case, however, and we reject the State’s contention that Defendant
suffered no prejudice from not being able to present testimony from her only defense witness
because some of the testimony may have been cumulative to that of witnesses for the prosecution.
Instead, we find Defendant was prejudiced by not being allowed to secure M.L.’s testimony
at Defendant’s trial because M.L. was a vital witness whose testimony could have been more
significant than testimony from witnesses for the prosecution, and because M.L.’s testimony could
have affected the outcome of the case. See Simonton, 49 S.W.3d at 783-85 (finding defendant was
prejudiced from the exclusion of a doctor’s testimony even though it may have been cumulative to
that of another doctor because the excluded witness’s testimony was more significant and could
have affected the outcome of the case). M.L. was a vital witness not only because she was the only
witness for the defense, but also because she was in the unique position of having relationships with
all of the principal players involved in this case – she was a possibly intimate friend of Feldman, the
person who shot and killed Jerry and shot James; the daughter of both the Defendant and Jerry, the
murder victim; the granddaughter of the assault victim, James; and the sister-in-law of Gwen
Buhler, a key witness for the State. In addition, she was the only member of her family who was
not allegedly involved in her father’s murder or who was not a victim. As previously discussed, it
is undisputed M.L. was temporarily unavailable to testify because she went into labor at 3:00 a.m.
on the morning of trial and was expected to be out of the hospital after three days. Prejudice from
the denial of a continuance or recess “usually occurs in a situation where a vital witness is
temporarily unavailable.” State v. Wilson, 732 S.W.2d 186, 188 (Mo. App. W.D. 1987).
15
M.L.’s testimony could have affected the outcome of the case because it involved and could
affect important jury questions which related to the State’s ability to prove its case; specifically, her
testimony could have a direct bearing on the issues of motive and whether Defendant was involved
in incriminating conversations about the crimes. See Blocker, 133 S.W.3d at 504, 505 (implicitly
finding defendant was prejudiced by the denial of a motion for a continuance based on temporary
unavailability of a witness where witness’s testimony involved and could affect jury questions
which related to the State’s ability to prove its case). If Defendant was allowed to secure M.L.’s
testimony at trial, M.L. could have testified as to specific details of her relationship with Feldman
and whether she was molested by James and/or Jerry. This could have shed light on whether,
according to the defense, Feldman had a motive of his own to shoot James and shoot and kill Jerry
which was based on fact, or, as contended by the State, Defendant aided or encouraged Feldman to
commit the crimes by feeding Feldman false stories about M.L. being molested by James and Jerry
Litherland. Additionally, M.L.’s testimony that Defendant wanted to rekindle her marriage with
M.L.’s father Jerry could potentially rebut the State’s theory that Defendant aided or encouraged
Feldman to kill Jerry to obtain money from his life insurance benefits.
With respect to the potential impact of M.L.’s testimony on testimony from Gwen Buhler
that Defendant was involved in incriminating conversations regarding James’ shooting and Jerry’s
murder, we find M.L.’s testimony would not merely impeach Gwen’s testimony but instead bear
directly on the guilt or innocence of Defendant. Cf. State v. Brown, 762 S.W.2d 471, 475 (Mo.
App. E.D. 1998) (“[w]here testimony of an absent witness would not bear directly on the guilt or
innocence of a defendant, but would simply impeach the testimony of another witness, it is not error
to deny a continuance”). Gwen’s testimony was a significant part of the State’s case because she
was the only member of Defendant’s family who testified at trial, Gwen implicated Defendant in
the crimes, and Gwen claimed she and Defendant were both involved in Jerry’s murder. However,
16
Gwen, like Jacob Feldman, gave inconsistent statements about whether Defendant was involved in
James’ shooting and Jerry’s murder and only implicated Defendant in exchange for deals with the
State. Because of the issues relating to Gwen’s credibility at trial and because M.L. was such a vital
witness, we find M.L.’s testimony contradicting Gwen Buhler’s testimony that she overheard
incriminating conversations involving Defendant could have affected the outcome of the case.
Based on the foregoing potential impact of M.L.’s testimony at trial, we find Defendant was
prejudiced by the denial of her motion for a continuance based on the temporary unavailability of
M.L. as a witness.
D. Conclusion
While this Court is mindful of the delay in justice to all parties associated with this case,
considering many years have passed since the commission of the underlying crimes, it should be
noted that a one-week continuance of the trial date would have addressed the uncontroverted
scheduling needs of Defendant's sole witness. Under the circumstances of this case, the trial court
abused its discretion in denying Defendant’s motion for a continuance based on the temporary
unavailability of M.L. as a witness due to M.L. going into labor on the morning of trial. In addition,
Defendant was prejudiced as a result of the denial of her motion. Therefore, the trial court
committed reversible error in denying Defendant’s motion for a continuance. Salter, 250 S.W.3d at
712. Point granted.
III. CONCLUSION
The judgment of the trial court is reversed and the case is remanded for a new trial.
ROBERT M. CLAYTON III, JUDGE
Patricia L. Cohen, P.J., and
Roy L. Richter, J., concur.
17