State v. Kleine, 330 S.W.3d 805

Appellant Theodore Kleine was convicted by jury of two counts of first-degree murder for killings in 1970.
The charges were initially tried in 1970 and the jury hung; case dismissed in 1976 for failure to prosecute.
In 2008, the State recharged Kleine with two counts of murder; he moved to dismiss for lack of prosecution.
The trial court overruled the motion; Kleine was convicted on December 5, 2009 and sentenced January 13, 2010 to life without parole on each count.
Appellant argues the delay violated his rights to a speedy trial and due process, and that prejudice affected testing of blood/DNA and live witness testimony.
Kleine also challenges the admission of a statement made during his marriage to his ex-wife under the marital privilege.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the delay in prosecution an abuse of discretion or due process violation?	Kleine claims pre-indictment delay violated due process and speedy-trial rights, causing prejudice.	State argues delay was not intentional to gain advantage and any prejudice was speculative or de minimis.	No abuse of discretion; no reversible prejudice shown.
Was Kleine's admission testified to under the marital privilege properly admitted or plain error?	Privilege barred testimony about confidential communications during marriage; admission violates section 546.260.	Section 546.260 allows such testimony when victim is under eighteen; no manifest injustice.	Testimony admissible; no plain error or manifest injustice.

Illinois v. Fisher, 540 U.S. 544 (Supreme Court 2004) (distinguishes preservation of potentially useful evidence; bad faith not required for due process violation)
Arizona v. Youngblood, 488 U.S. 51 (Supreme Court 1988) (failure to preserve evidence requires bad faith for due process violation)
Lovasco, 431 U.S. 783 (Supreme Court 1977) (due process limits on oppressive pre-indictment delay)
State v. Griffin, 848 S.W.2d 464 (Mo. banc 1993) (prejudice from delay requires showing of impairment and tactical advantage not shown here)
State v. Clark, 859 S.W.2d 782 (Mo. App. E.D.1993) (prejudice from delay must be demonstrated; unidentified witnesses/physical evidence insufficient)
State v. Weeks, 982 S.W.2d 825 (Mo. App. S.D.1998) (speculative prejudice is insufficient)
State v. Burns, 112 S.W.3d 451 (Mo. App. W.D.2003) (potentially useful evidence destruction analyzed under Youngblood framework)
State v. Goins, 306 S.W.3d 639 (Mo. App. S.D.2010) (preservation of objection-related theory required for appellate review)
State v. Alexander, 729 S.W.2d 486 (Mo. App. W.D.1987) (procedural application of marital privilege timing)
Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758 (Mo. banc 2007) (procedural retroactivity of substantive laws)
State v. Hopkins, 140 S.W.3d 143 (Mo. App. E.D.2004) (marital privilege scope and purposes)