State v. Ousley, 2013 Mo. LEXIS 307

In 1999 a 14‑year‑old (L.M.) was raped; DNA later matched Jerry Ousley, who was indicted for forcible rape. Trial occurred after a decade when Ousley’s DNA entered a database.
Three weeks before the alleged rape Ousley suffered a gunshot wound; he disclosed emergency medical records and, shortly before trial, sought to endorse his mother and grandmother to testify about his limited mobility after the shooting.
The court excluded the mother and grandmother from Ousley’s case‑in‑chief as a discovery sanction for late disclosure, but admitted the medical records and allowed the records custodian to testify.
During the State’s rebuttal the treating physician (Dr. Aft) testified that Ousley’s injuries would not have prevented ambulation and that he should have recovered within three weeks; she conceded she had no personal knowledge of his condition on the date of the offense.
Ousley sought to call his mother and grandmother in surrebuttal to contradict Dr. Aft and corroborate his claim he was physically incapable of forcible compulsion; the trial court excluded them from surrebuttal, the jury convicted, and Ousley appealed.
The Missouri Supreme Court reversed, holding the excluded surrebuttal testimony should have been admitted, and also found the court abused its discretion by restricting a specific voir dire question (though it remanded on the surrebuttal error alone).

Issue	Plaintiff's Argument (Ousley)	Defendant's Argument (State)	Held
Exclusion of mother/grandmother from surrebuttal	Their testimony rebutted State rebuttal (Dr. Aft), was admissible in surrebuttal, and was the best evidence of his post‑shooting condition	Exclusion was proper as a discovery sanction for late endorsement and admission would be an "end run" around disclosure rules; testimony would be cumulative	Reversed: trial court erred. Discovery rules do not bar surrebuttal; once State introduced new rebuttal evidence contradicting a central defense, defendant entitled to admissible surrebuttal that directly rebuts it.
Restriction of voir dire on teenage consensual sex bias	Defense should be allowed to ask venire whether they could consider the possibility two teenagers had consensual sex (to probe for disqualifying bias)	Question was argumentative and sought improper commitment from jurors	Court held prohibition was an abuse of discretion — the question probed a critical fact and was proper (but reversal not required on this ground because surrebuttal error alone warranted new trial).
Alleged instructional error (verdict director omitted “knowingly”)	Trial used MAI‑CR 2d director but MAI‑CR 3d requires “knowingly”; omission allegedly relieved State of proving mental state	No preserved objection at trial; any error should be reviewed for plain error	Denied: appellant failed to show manifest injustice or miscarriage of justice under plain error review.

State v. Forsha, 88 S.W. 746 (Mo. 1905) (purpose of surrebuttal is to allow defendant to respond to State’s rebuttal)
State v. Huff, 454 S.W.2d 920 (Mo. 1970) (trial court has discretion over rebuttal/surrebuttal scope)
State v. Curtis, 544 S.W.2d 580 (Mo. banc 1976) (discovery rules do not apply to rebuttal/surrebuttal witnesses)
State v. Sawyer, 365 S.W.2d 487 (Mo. 1963) (surrebuttal need not be strictly limited to pure rebuttal but must respond to rebuttal evidence)
State v. Clark, 981 S.W.2d 143 (Mo. banc 1998) (adequate voir dire includes probing critical facts with potential for disqualifying bias)
Morgan v. Illinois, 504 U.S. 719 (1992) (voir dire may require revelation of facts to expose juror bias)
State v. Reed, 282 S.W.3d 835 (Mo. banc 2009) (abuse of discretion standard for denial of surrebuttal)