State of Missouri v. Robert Blake Blurton

Missouri, Respondent, STATE BLURTON, Appellant. Blake

Robert

No. SC Missouri,

Supreme Court

en banc. March 15,

Opinion issued 3,May

Rehearing Denied A. represented by Craig

Blurton was public Johnston defender’s office Columbia, (573) 777-9977. represented by The state N. Daniel general’s attorney McPherson of office (573) City, Jefferson 751-3321. Breckenridge, Patricia Chief Justice the trial court in denying did not err Blurton’s mistrial requests after the state áppeals his Robert Blurton convictions inadvertently displayed crime photo- scene three counts of the first graphs on three occasions because the dis- degree. Mr. Blurton was sentenced play of photographs intention- being guilty by death after found al and all of the photographs were later aunt, uncle, murdering his and their admitted into Accordingly, evidence. 16-year-old granddaughter. appeal, On - Court affirms Mr. Blurton’s Mr. Blurton convictions asserts Additionally, and sentences. after an refusing proffered erred in- lesser inde- instruction, pendent offense admitting cluded testi- review the proportionality of Mr; mony regarding phones finger- cell pursuant death sentences prints, excluding 665.035,1 someone section this Court finds that Mr. opportunity else the motive had Blurton’s death sentences were not exces- murders, excluding commit the bias evi- sive or disproportionate penalty to the im- dence, denying requests. mistrial Be- posed in similar cases. imposition

cause case involves the penalty, death this Court has .exclusive Background Factual and Procedural Const, jurisdiction appeal. over the Mo. uncle, Mr. Blurton’s aunt and Sharon V, art. sec. 3. Luetjen, and Donnie 16-year-old their This Court that- the trial finds court did granddaughter, Luetjen,2 Taron to- lived not err in rejecting Mr. Blurton’s prof- gether in Camp. Cole Mr. Blurton had fered lesser included offense instruction Luetjens’ been home about five because properly the instruction did not years, but he had visited their home as a conform requirements. Nor the MAI child Luetjens lived with the for a did the trial in admitting court err testimo- few months in 2004 after he was released ny from phone cell analyst state’s be- time, prison; from At Luetjens cause his testimony was within realm vehicle, helped him buy a a job, find layperson. of a not The also did apartment. and move into a new in admitting testimony err from the state’s On at p.m., June 10:15 a 911 call fingerprint analyst because court placed phone. was from Taron’s cell The sustained objections three Mr. Blurton’s operator disconnected the call after the objection and the fourth untimely. speak caller did 45 seconds. A not err in excluding did call from operator return the 911 was not evidence that someone else had the motive answered, operator and the 911 did not opportunity to commit the crimes be- trial, dispatch police. At the state cause Mr. Blurton not attempt pres- transcript original a of the submitted ent this evidence at trial. The trial court call, which included the in voices the back- also excluding did not in err a ground of the call: alleged against witness’s potential bias a potential witness because the .Dispatcher: witness was Nine One One where is Furthermore, to testify called at trial. your emergency? statutory All 1. Luetjens references are to RSMo custody were awarded rather unless otherwise Donnie, indicated. than Taron’s Because Shar- mother. on, surname, and Taron share the same each Luetjens 2. Taron lived with the after her fa- will be referred to or her his first name to ther, son, Luetjens’ died a car accident disrespect avoid No confusion. intended. in 1993 when Taron a few weeks old.

n on living mug a red travel found (unintelligible) —-were fingerprints room Mr. Blurton’s table. Ohhh. Female: DNA on the white discovered were you have One One do Dispatcher: Nine also not be mug.4 coffee could Mr. emergency. DNA excluded as a contributor I place ... will (unintelligible) Male: on found fabric used to bind the brown you. kill The DNA right Donnie’s hand. on Shar- Hello? Dispatcher: on’s male bindings also exhibited charac- three dollars I have hundred Female: teristics, results were inconclusive but the my purse. DNA was consistent as whether you. right there. I Set Male: heard enough with Blurton’s because Sharon, I’ll kill all right there. Set DNA developed data be could right I all liked guys. Set there. you binding The DNA on that was found. hand, me other you. Give char- right on Taron’s exhibited male hand (unintelligible) as a acteristics. Mr. Blurton was excluded contributor, could not ex- but Donnie be call in the was identified The male voice binding Tar- on the on cluded. The DNA Luetjens’ daughter by the Mr. Blurton’s on’s left male charac- hand also exhibited min- girlfriend.3 A few and Mr. teristics, Donnie but Blurton and call, at approximately the 911 after utes less, both excluded as contributors. neighbor, than p.m., a who lived 10:80 valley who often a across the half mile murders, police In addition to the found coming Luetjens’ from the heard sounds robbery. Donnie’s evidence of a wallet pistol shots from the heard three property, a were found beneath contents Luetjens’ house. direction body. pillow a chair His wallet near later, neighbor money although days he was contained no Two discovered n carry their Each Luetjens’ known Sharon’s least $200. bodies home.. floor in gagged, purse sitting on the the hall- lying found victim was facerdown living room, way their near bedroom. Her wallet had pillow with her bound, their also did not contain behind backs with been rémoved and hands n . canopy money. from Taron’s bed. fabric brown once the back had been shot Each bedroom, Luetjens’ dresser pistol. .22 caliber head with on sitting drawer their bed was with entry. usually no of contents out. The drawer found evidence forced Police dumped home, of cups change three cof- and white contained a amount large Inside the —a fee, Royals plastic cup, and Donnie’s collection. mug, a souvenir sizeable arrowhead daughter positive recognized fied she testified she she wás almost Luetjens' 3. The that stated, God, "Oh, voice percent certain that the my was 80 male Mr. Blurton's voice and Blurton’s when she listened to the was Mr. I can't When believe him.” she that’s later recording. certainty Her in- original 911 recording, she testi- listened to the enhanced percent when she listened to later creased any fied that was not that the there doubt recording of had some an enhanced that voice was Mr. Blurton's. Her cer- background noise filtered out. percent lis- tainty to 100 when she increased profile The on the coffee 4. found white DNA recording prior enhanced tened to a further cup with Mr. consistent Blurton’s that was girlfriend Mr. lis- When Blurton's trial. (cid:127) one in frequency quadril- DNA of 4.968 had a original recording, she tened to the population. lion the Caucasian first, listen- recognize After voices recording original again, ing she testi- to the remained, scene; Only change amount of a small and of Mr.-Blur- identification back-, missing. Mr. ton’s as the-male arrowheads voice voice and the were ground caught stealing-change of call. had been Blurton As for the motive murders, robbery and the state teenager. presented he from this drawer when was -a had, recently evidence that Blurton Luetjens’ A cabinet in the gun bedroom Mr. job lost his and been including- had asked to guns, and move open, three two was out home he had shared pistols, missing. with his .22 caliber were Taron’s girlfriend. girlfriend missing. also testified phone was cell Mr. Blurton had told her that he owed 27, 2009, daugh- on On June based people Moreover, money. she testified voice ter’s identification Mr. Blurton’s Mr. Blurton had told her that he recording the 911 DNA results on and the land, vehicle, would inherit 22 per- and scene, linking him crime Blur- Mr. cent million from Luetjens. $6.6 charged ton was arrested -and with three jury A Robert Blurton of convicted degree murder1 counts-of in the first under of murder in degree three the .first arrest, counts 565.020. section Prior to his Mr.' section At ..penalty under 565.020. girlfriend Blurton his to tell the asked presented phase, the state evidence of Mr. police night. was her that with prior conviction robbery Blurton’s telling her that Mr. Blurton lied her — degree, the first as well as convictions on at his boss’s house in he was Nevada his. forgery, burglary, stealing, posses- and night the murders but was unable sion of a controlled a depart- substance in because of severe drive home weather facility. ment also The state on corrections wife him. hitting because boss’s impact presented victim evidence from the His boss his boss’s wife later testified and. Luetjens’ daughter grandson. Mr. at trial that Blurton had been never Mr. (cid:127) - presented mitigating Blurton evidence girlfriend- their home. prisoners from his stepmother, two who. agreed police to tell the that Mr. Blurton previously him, with night incarcerated had been with her a psychologist who testified recanted, telling but murders later she unlikely that Mr. violent be police that Mr. Blurton asked her to prison. for him. lie trial,

At the state’s evidence included recommended a sentence showing' phone cell tower three death all counts. The phone following statutory aggravators: Mr. Blurton’s cell had traveled found the Garnett, Kansas, (1) prior Cole had a Camp serious assaul- between (2) conviction;5 and 9:59 p.m. p.m. 8:16 on the each night tive murder was com murders; the DNA evi- fingerprint' engaged mitted while he in the com (3) linking murders; Mr. Blurton dence crime mission of other two 1988, 5. Mr. of rob Blurton was convicted serifcms assaultive definition" conviction a when, bery degree the first and to sentenced 15 "nature of the in even the 569.020, years prison. robbery” in Under section in assault the is not sub- "[a] included (cid:127) person robbery commits the offense of in the mitted to the ás it "involves seri insofar instrument, degree forcibly property physical injury, dangerous first when he ous a steals .., Amrine, physical injury any weapon.” and serious deadly [clauses or a State v. 741 [ n (Mo. 665, 1987) (internal person!,] deadly weapon (cid:127) (cid:127) (cid:127) armed with a banc n [ujses omitted); quotations ... ... the immediate citations' see threatens and also Brooks, (Mo. dangerous against a any use of instrument 960 S.W.2d 1997), person[.]”- Robbery degree "by in the is first banc and, claim, Mr. Blurton cites this Court’s depravity mind involved

murders Jackson, result, in State v. outrageously recent decision murders were as a the horrible, obligated give held the court vile, trial is inhuman wantonly a lesser offense instruc- “nested” included or other- bound insofar as each victim party timely requests tion “a Blurton, when the helpless and Mr. wise rendered instruction,” is in the evi- “there a basis therefore, for disregard callous exhibited acquitting dence for the defendant life. The trial sanctity human all charged offense,” and is a basis in “there rejected Blurton’s motion for a court Mr. convicting for the evidence defendant trial, jury’s recommenda- accepted new for included which the the lesser offense tions, Mr. Blurton to death and sentenced requested.” instruction appeals Mr. Blurton now for each offense. 2014). state maintains convictions. his rejected the instruction be- properly appeal, Blurton asserts On Mr. proper cause not in the instruction was (1) rejecting prof- his by: trial court erred or, alternative, form that Mr. Blur- felony jury instruction murder fered by ton trial prejudiced was not court’s (2) allowing lay wit- degree; second rejection of the instruction. testify of the regarding location ness Jackson, his phone phone to which cell cell towers Unlike Blurton’s murders; (3) of the not a night connected1on the offense was “nested” lesser included i.e., offense, fingerprint analyst to allowing the state’s where the elements testify “qualified” lesser offense that two other examin- are subset elements Jackson, fingerprint higher ers had “verified” her identifi- offense. See laboratory’s Instead, part of her crime 404. cations as S.W.3d at Mr. Blurton’s process and peer degree review that “there wer- lesser offense of included second issues”;’ (4) excluding testimony felony any required proof en’t murder of additional required that Taron’s facts argument prove mother had from those higher motive and commit the and was opportunity offense “lesser included” (5) murders; excluding evidence that statute. See section denomination 556.046.1(2); 565.025.2(l)(a). daugh- It testimony of and Sharon’s section Donnie (6) not, biased; excluding testimony however, ter necessary to address Mr. Donnie about claim that entitled from and Sharon’s friend he was calls threatening submission of the offense of telephone Taron’s included lesser grandmother; felony rejec mother and maternal murder because court’s (7) denying times tion requests proffered three of a instruction mistrial should be inadvertently “[i]f state wit- court was correct showed affirmed White, graphic scene ... nesses reasonf.]” crime of the victims. photographs trial, objected At Blur- Rejecting Degree

No Error Second felony ton’s second mur- degree tendered Felony Jury Murder Instruction it ground der instruction that was form, proper stating Mr. Blurton claims first the.trial refusing prof- prop- didn’t is in [the instruction] erred submit “believe form, jury' proper accompanied fered includ- er or has the instruction for the lesser degree given are to be required ed. offense second instructions felony statutory under the notes use.” The trial court requirements because he met the of the in- giving for to submit lesser included support the instruction. refused

767 for[m], which- the and all of propositions, “[t]he struction because doubt each these tendered, you is is not cannot find proper instruction the that defendant has the request robbery not [form].”6 Mr. did committed in degree. the second modify proffered instruction in re- Second, that [Donnie/Sharon/Taron] n sponse ruling. court’s the trial killed,’ shot and reject not by A trial does err court Third, that [Donnie/Sharon/Taron] was ing improper jury instruction. State v. aas result of perpetration killed the of 31, Parkhurst, 845 S.W.2d robbery in the degree, that second 1992); Immekus, see State also v. you then will find guilty the defendant (Mo.App.2000); 432-33 State 5.W.3d under Count of in [I/II/III] murder (Mo. Binningtm, v. 978 S.W.2d n degree. second Powers, App.1998); State However, you unless find and believe Colson, 138, 142 (Mo.App.1996); beyond the evidence' from reasonable (Mo.App.1996). each and all of propositions, you doubt degree Mr. Blurton submitted second guilty find the must defendant of mur- not felony murder that instruction stated: degree der in the second under this in- (cid:127) [I/II/III], you As to if Count do not find struction, you but must then consider of in first guilty defendant murder he is guilty whether of in murder you degree, must consider whether he No._- degree second under Instruction guilty degree. of in the second murder requested that [I/II/III], you As to Count find and court submit instruction addition to beyond from believe the evidénce a reason- degree the instructions for first murder able doubt: degree and conventional second First, proffered' The trial day 10:17 PM on state. after the 7th June, 2009,' Elm, ruling was correct that the 'Cole instruc- South tion Camp, County Benton, proper form. Missouri, property defendant took party submitting degree The a second and, Luetjen Donnie was owned felony murder instruction must submit a so for purpose defendant separate instruction for underlying fel- withholding permanent- it from owner otherwise, ony is not in- ly, in doing and that so defendant used guilt structed to decide the defendant’s against physical on or [Donnie/Shar- force underlying 2(b), felony. on Use

768 2005); als oState Derenzy, is see v. 89 “guilty5? defendant banc of that the instead 472, (Mo. 2002).7 first of the 475 felony. paragraph Id. The S.W.3d felony murder instruction degree second however, argues, Mr. Blurton the instruction then

must .cross-reference a in jury his to proffer separate .failure felony. Id. underlying for the felony for the of rob underlying struction Court, degree bery inconsequen in his to this Mr. Blur- the second is In brief a tial because he included “all the elements proffer that he failed ton admitted in underlying for the fel would have been the cross-refer instruction separate paragraph As in degree. in the second enced instruction” first ony robbery proffered degree such, felony his second proffered jury instruc Mr. Blurton’s form it instruction. This assertion is incorrect. in an incorrect insofar- as tion was above, not As on Use 314.06. The stated court

769 robbery phone director for in the location of the cell The verdict towers to phone Blurton’s degree requires of Mr. cell second each element on the connected of night testimony the murders and felony separate to be listed in enumer from fingerprint analyst state’s who de- In paragraphs. ated MAI-CR 3d 323.04. Missouri highway -patrol scribed the state- following requirements, stead these Mr. of laboratory’s peer protocol crime review all included rob elements fingerprint latent analysis requiring as bery degree in the second in the first other, “qualified” “verify” her examiners felony of the paragraph degree second identifications. He further contends that enumerating instruction without murder (1) excluding: the trial court erred so, doing each Blurton’s element. Mr. or evidence someone élse motive proffered instruction blurs the distinction crime; (2) opportunity to commit the testi- and, therefore, between elements could mony Luetjens’ from the daughter or jury’s under have confused misled the she was safety concerned- due to her of what was standing required .it find telephone rumors calls from made Moreover, beyond a reasonable doubt. Taron’s mother and grandmoth- maternal description 3d 323.04 requires MAI-CR er; (3) testimony Luetjens’ from the alleged property the defendant the telephone friend about calls Tar- from Johnson, See also ly took. 457 . on’s mother and grandmother. maternal (Mo.1970). Blurton, 765 Mr. S.W.2d A trial however, has broad discre court, no description offered . tion to admit or exclude trial. evidence at alleged taken, property to have been but Hunt, (Mo. State v. 451 instead, merely .stated that the defendant Á trial banc court’s re decision property.” evidence was “took Because garding admissibility of thé exclusion.or presented trial of missing various items at evidence is reviewed for abuse dis an home, Luetjens’ including from the $200 A cretion. Id. trial court abuses discre its Luetjens’ wallet, change from his col Mr. only tion its decision to admit or exclude drawer, his lection from dresser his.arrow “clearly against logic evidence collection, guns, head three this failure circumstances then before the court and is alleged to specify property would not so unreasonable and arbitrary the.jury unanimously find required justice shocks the sense of indicates Mr. property what Blurton had taken. careful, deliberate lack consideration.” ten- Accordingly, because Mr. Blurton’s S.W.3d 448, BNSF Ry. Co., Lozano v. form, proper not in dered instruction 2014) (internal quotations rejecting the trial court did not err in Mr. omitted). of trial are Claims cburt error degree felony incorrect second prejudice, not error.” reviewed “for mere instruction. Clark, 2012) (internal omitted). quotations Admitting No Reversible Error in - will This Court reverse the trial court’s Excluding Evidence prob decision if there is -areasonable Mr. Blurton further asserts that tri- ability error that the affected the outcome admitting al court abused discretion in of a deprived of the the defendant ' excluding over his objection evidence fair Id. trial. present he evidence wished trial. Phone,Tower A. Cell Evidence Specifically, Mr. that the Blurton contends Blurton; in admitting trial court erred evidence and first asserts that-the from a testimony lay regarding admitting, -witness court abused its discretion drug he worked at the enforce- location objection, his over to which his cell ana- phone intelligence towers ment administration of the cell time, night lyst. During mur- to call on the went connected phone school, 7, 2009, Blur- ders, showing analyst training in- where he ’was June home in traveling analyze telephone Gar- records. structed how ton was Kansas, Camp. Mr. Blurton nett, analyst an working intelligence Cole After as required ex- this an that evidence at the years drug three enforcement asserts it was not within the administration, because he to an pert promoted op- witness lay person. of a expertise or knowledge sergeant supervising 12 other in- erations 2009, began telligence analysts. In he Expert opinion testimony is re analyst working intelligence a criminal as testifying mat the is “to if witness quired at the highway patrol. Missouri knowledge skill requiring ters special telephone perform analysis To toll on knowledge or under and is not within the calls, Mr. first ob- Blurton’s the witness generally[.]” of standing mankind spreadsheet tained an Excel of Mr. Blur- 12, Eaton, Ex (Mo.1973).. 504 S.W.2d ton’s records phone telephone from the upon a valid cell opinion “must based pert be obtaining company. After the records methodology and accepted scientific and telephone from he then company, sort- trier of in the determination assist the fact ¿d only those State, these records show calls Smulls v. 71 S.W.3d of an issue.” phone Mr. 2002). made Blurton’s cell (Mo. An to and 138, is expert banc of around the time the murders. The expert if provide opinion an qualified to provided each call also the exact expe record of knowledge from education or “he has of geographic location tower to will trier of cell aid the fact.” rience which Mallett, phone Blurtori’s was con- Mr. cell 1987). beginning nected at the and end of a wit qualifications “The information, Using call. this witness opinion an lie'within expert ness to render mapped then the location of each these trial court’s State v. Rut discretion.” using pro- mapping cell towers consumer ter, so, doing gram.- map In he created a in that The trial' court its. discretion abuses of' showed the times the calls and their admitting such “when rul respective phone cell clearly cir towers. ing against logic then so cumstances before the and is trial, objected At Mr. Blurton that the arbitrary as to and unreasonable shock the not testify witness could “about anal- [the] justice a lack of sense and indicate ysis of phone] cell records” [Mr. Id. careful consideration.” a -properly qualified ex- because “he’s as “no qualify expert pert” expertise To field at- an besides telephone analysis, tending [training] program.” toll the witness needed one specialized training objection. experience court overruled this - objected As a also that the witness would aid the trier fact. intelligence expert analyst properly qualified criminal Mis- as an cell patrol, highway routinely phone plotting. overruling souri the witness tower that, telephone analysis objection the trial al- performed toll on cell court stated calls, may though state not have been offer- phone including those night ing expert, an as state made received June the witness began “qualification^] 2009. that his were The witness testified showed he analysis telephone analysis telephone working telephone cellular analysis,” phone toll “then de- dant relation the cell tower .to what The trial court scribed that' was.” which the phone defendant’s cell connect- concluded, therefore, that the Patton, witness ed. An 130-31. “just testifying, any other clerk ... like expert required because such an identifi- task, they given assigned an requires cation broad inferences due task[.]” were told how to do phone’s cell ability to connect to a cell away tower “as far thirty miles as or as Although, there have been as thirty depending myriad close feet” sufficient evidence in the record before the weather, factors geography, such to, finding support phone cell itself. at 131. Accordingly, Id. expert qualified witness was the field to identify specific of location de- telephone analysis, toll was not neces fendant based on phone cell tower connec- sary for the trial to make a court such tions, expert an must witness make “an finding. that Missouri courts held expansive of inferences” range that re- “[rjeading of cell the coordinates sites quires of specialized experience “the aid or phone plotting from records them a and knowledge in of cellular the field communi- map is not a or procedure scientific tech Id. cations!.]” at 132. nique” phone because cell records are fac special tual records no skill is required Patton, For example, lay in a witness Patton, plot v. these records. State that testified at the time the crime the (Mo.App.2013); phone defendant’s cell was connected Ford, 407, 413-14 (Mo.App. cell tower near- the crime scene. Id. at 2015). Such can be introduced alleged 129. The defendant that he was at by lay lay long as witness as witness his cousin’s four house miles from the confines the to the con testimony facts crime scene. lay Id. at 132. The Patton, in the phone tained cell records. (cid:127)witness the inference drew that the cell Accordingly, 419 S.W.3d at 130. the trial phone proved records the defendant was admitting court did not err in the witness’s near the not crime scene at his cous- testimony telephone toll analysis about his in’s house because the defendant’s cell Mr. Blurton’s calls. phone was to the connected tower closest Blurton, nevertheless, Mr. that to the crime not a asserts scene and cell tower expert required an was this case be- near his Id. cousin’s house. at 132. The cause the re- of appeals state introduced evidence court that held garding the location of Mr. Blurton’s cell expert in not requiring present erred an. phone relative to the-tower which it this evidence when identification of connected. The admitted witness that defendant near the scene and not at crime expert determining was an his required cousin’s infer- house technical phone phone cell con- tower cell lay. ences outside a witness’s common nect to in a particular location based on Likewise, Ford, knowledge. Id. laya therefore, that, weather terrain Mr. witness improperly the de- testified phone Blurton’s cell been could have locat- fendant “near murder scene” was be- anywhere ed around radius the “whatever phone cause the defendant’s cell connected phone] covering[.]” tower was [cell to a nearby at 410-11. tower. again, expert required. Once Id. argument, this Mr. Blurton re at 414-15. prior holding lies on expert that an cases n however, case, required witness is if the In this attempts witness the state did identify specific attempt location location of defen- the exact Mr. show Fingerprint- B. Evidence to the cell in relation 'phone cell Blurton’s was connect- phone his cell to which tower Blurton Mr. next contends made, were and the at the time calls ed overruling court abused discretion testify the cell tower witness testimony to the of the state’s objection Blurton was analysis could show Mr. analyst. Blurton fingerprint latent Mr. Rather, house. Luetjens’- near testimony that to the objected witness’s off testimony that “based analysis fingerprint of her had the results Blurton, Mr. associated phone with “qualified” ex- “verified” another been made, the cell tower the calls time aminer, confident her which made her locations, high- of travel it shows a mode issues.” conclusions because weren’t “there Camp.” Cole way up highway 76—to testimony Blurton asserts Likewise, during closing argument, hearsay, inadmissible a violation map the witness referenced the had clause, improper confrontation bolster- argue reasonable inference created ing. traveled Gar- that Mr. Specifically, Mr. asserts that nett, Kansas, Camp that his Cole in admitting court erred times four off of’ phone “hit cell last two cell calls testimony. objections phone Camp. towers located Cole testimony that her to the witness’s results above, objection utiliza- “verified” As had been followed discussed witness’s proper state had a foun- not laid phone cell records to tion Mr. B.lurton’s finger- her identification dation phone tow- of the cell plot progression at found the crime scene. prints con- phone Mr. ers which Blurton’s cell witness, answers, to the questions her require special skill or did not nected objections, Blurton’s are follows: Mr. telephone knowledge expert. His n analysis a progression toll both showed objection:' First calls from 8:16 time between that, lab, Q: your And in addition to night 9:59 of the mur- p.m. p.m. you protocol have review peer do progression of and a corresponding ders you make an identification to various distance as his calls connected a case? along general phone cell towers located A: Yes. Camp. from route Garnett Cole Unlike review, Ford, Q: And what is what is peer in Patton lay in which witnesses your peer protocol? review the de- improperly attempted pinpoint geo- exact a small fendants’ location within identification, Anytime we A: have an area, graphic Cole is more than 125 Camp was, at at this all least the time nn away Garnett, Even if miles Kansas. to be verified identifications had phone Mr. Blurton’s cell connected through the going another examiner from his away cell tower 30 miles actual I com- process same I did when call, location at the the wit- time of each pared it it. and identified reasonably still Mr. Blur- ness cóuld infer fact, that, Q: done in-this And was general path ton’s of travel from Garnett case? Camp specialized using Cole without Yes, it A:. was. knowledge. Accordingly, skill or reviewers, court did admit- Q: many peer not abuse its How discretion other (cid:127) ting testimony. you know. evidence and official, I my primary A: verifi- objected next to the wit- er, I, I believe there were ness’s attempt identify two the second fin- individuals, other actually. gerprint found mug white coffee the crime scene. Following exchange Mr. Blurton ob- objection: Third jected grounds on the Crawford 36, 53-54, Q: Washington, you And did U.S. this through S.Ct. send (2004), peer same process 158 L.Ed.2d you which bars review the admission of described at the lab? out-of-court testimonial crime statements witnesses who do appear A: Yes. they unless are to testify. unavailable Cit- Well, Defense objection, counsel: your ing Crawford, objected Mr. Blurton to the Honor, that’s violation Crawford “relating analysts

witness what other versus Washington. about, to say about this evidence.” The Judge, State: I— trial court ruled: Court: Sustained as to the form of the should, Okay, she she testify should not question. as to somebody what else have skid Immediately following this exchange, that, anything like part but' as state, rephrased question. foundation, the helps was that process objection: Fourth conclusions, her reach I you’re her think is, Q: again, What the protocol of the her, going to ask that will be allowed. you’ve crime lab when made an identi- So, objection hearsay sustained. ,. , fication of a fingerprint? there, gotten She hadn’t I you but knew is, is, me, A: It excuse it’s verified anticipating go. that. Let’s ' qualified another examiner. Following ruling, the court’s the state Q: And was— again attempted question to the witness Well, objection, may Defense counsel: about the peer protocol. review approach? we objection: Second Court: Sure. And, Q: ma’am, peer pro- review Defense This counsel: not vio- only [ ] you cess that through, went that did lates Washington, versus Crawford know, you, help I don’t feel confident ' bolstering. but it’s also your you that conclusions reached Well, Judge— State: in this case. A: Defense counsel: Defense counsel: A: Sure. Court: Overruled. Q: way, what these folks weren’t as at And No, question’s, inor there were not. don’t, issues, a different manner. bench, I were there? Judge— same Objection, your mean, concluded, it’s matter, asked the same don’t tell me but there objection honor, Defense Court: n that she’s tion as to what was the foundation The Honor, but one use respect, language objection somebody Well, counsel: essentially telling for overruled the word what responsive chosen is that this else looked ^[***] —I’m sorry, your it boils particular verified, was, as to there protocol. to down bolstering. wasn’t witness, exhibit. it ques- to is said, Court: Overruled. yes, you’re right, that’s, being regard to message that’s sent With to ob second is the jection, objection Mr. Blurton’s was un jury. timely preserve anything to and did for you like for me Okay. Would Court: disregard last Mr. Blurton’s appellate her review. second the jury instruct overly I’m answer, only, objection I was only came after the witness had it, but the use of about questions. concerned two A trial court’s answered another, verified, word, that, I’ll do ruling on an objection preserved is asking for you’re if that. objection appellate review Yes, I request timely timely counsel: party Defense or the moved strike McFadden, it. the answer. State v. 2012); see also (Mo. v. Sykes, 372 S.W.2d waiting until Defense Are we counsel: 1963). objection An to testimony must be jury to lunch to instruct after possible opportunity made at the disregard they heard? earliest what the trial court to invoke allow remedial it, you, I’ll I’ll thank do it Court: do Borden, remedies. State v. right now. you. Thank

Defense counsel: witness, last Court: The answer Although court over respect protocol which was with objection, ruled Mr. Blurton’s second forming regarding the lab followed in objected only after the witness in- opinions, the offered some witness completely question: answered respect some formation with what peer protocol] help you, “[D]id said, [the review person other have done know, your I feel don’t confident conclu disregard is and the instructed answer, you An sions reached case?” not to con- portion objection you gives made after witness sider when retire deliberate responsive objectionable on the cáse. to an answer question usually timely. Sykes, This makes clear that the record exception is if at 27. first, Mr. Blurton’s sustained so that it im quickly witness answers objections to third and fourth the testimo possible object if the grounds for the ny. relief. He not ask further objection only apparent become when the the objection, After trial court the fourth Smith, given. answer State v. 90 could suggested it instruct the that 132, (Mo.App.2002); 139 S.W.3d asked disregard the answer. Mr. Blurton 486, Evenson, 35 491-92 so, (Mo.App. S.W.3d A that the trial court do did. 2000); Williams, v. see also 416 he State who has “received the relief defendant (Mo.1967). 71, S.W.2d In these circum 73 no claim requested ... has reversible stances, McFadden, opposing object attorney must v. error.” State In to the as soon as possible. none these answer Id. request that the instances did Mr. Blurton case, In grounds this for Mr. grant any him additional relief. court objection witness’s response to second

Accordingly, in Mr. Blurton’s third, apparent as first, answer were as soon fourth objections, question. question asked granted he the second court Mr. Blurton relief trial, little open-ended so trial was not more requested at was no there a rephrasing question than of the immedi- court error. it, tunity commit ately preceding which the witness had pretrial the crimes. A responsively hearing ad on Additionally, answered. motion limine focused testimony is not whether defense call objection over could the Lu- mission etjens’' neighbor testify that similar questions have she saw reversible error mother Luetjens’ Taron’s outside' of the with previously been asked and answered at p.m.- night house on the of the mur- objection. Taylor, out ders. The defense stated that (Mo.1966); Goins, neigh- see also State v. testify' bor would that she saw Taron’s (Mo.App.2010). Just home, “exit victims’ light “No, mother prior her answer: there were cigarette, talk on a- phone cell [issues],” pacing while she answered “sure” to- had minutes, back-and-forth for 10-15 extin- question: peer pro state’s “[T]he review cigarette guish her on the-bottom of her that you through, help cess went did that shoe, cigarette put jeans’ butt her ... you your feel confident conclusions flip phone shut, her pocket, and go back you that case.” Blur- reached Mr.- inside thé victims’ home[.]” Blurton at all object ton did not to this an first contends these actions outside the already swer. Because the witness had Luetjens’ -house 'directly were acts that process stated the -review -her made connected Taron’s mother to the murders conclusions, feel in her confident her re and that should have been' allowed to sponse question to the second argue she been involved grounds objection for apparent the murders. ques as the state asked the soon second Accordingly,

tion. Mr. Blurton’s second partially In sustaining the state’s motion objection timely and preserved was. limine exclude regarding nothing appellate review. Taron’s mother’s motive and opportunity crime, to commit the trial court ruled

The trial court sustained Mr. Blurton’s present that Mr. could evidence to first, objections third and fourth that Taron’s mother was “at him granted all the relief he requested. near scene of the homicide.” Addition- Accordingly, the trial court did not err. ally, the trial court stated instance in the trial court of proof could make an offer evi- overruled his objection, directly that would dence connect Taron’s alleged not err un- because the error was act mother overt in the commis- “with preserved due to the untimeliness of the homicides, than sion rather her objection testimony and because similar prior mere the scene sometime presence already objec- been admitted without If the commission the homicides.” tion. favorably ruled this offer present Mr. Blurton proof, could C. Evidence Someone Had Else jury alongside argument to the evidencé Opportunity a Motive or that Taron’s mother committed the mur- the Crime Commit noted, The trial court “This is a ders. Mr. Blurton asserts that trial next the interlocutory motion limine. or- in It’s an its discretion in partially abused der, reviewed[.]” and be can granting motion in to state’s limine the As prohibit arguing pre- correctly Mr. Blurton stated the trial or court, senting in estranged ruling evidence that Taron’s a on a motion limine is responsible interlocutory mother subject could for vic- and to modification be at Cole, 163, 175 tims’ to her oppor- deaths due motive and trial. See polygraph a test. and did take 2002). Accordingly, agreed “motion to (Mo. banc later, itself, appeals Mr. Blurton preserves is discussed limine, of noth As in in preserve proof of To claim denial of offer for Id. the trial ing appeal.” court’s review, testimony. Mr. Blurton Blurton Mr. appellate of the .friend’s of error attempt .present to required to trial court’s denial appeal of does Despite the id. at trial. See sergeant’s evidence of testimo- proof his offer of . could ruling that Mr. trial court’s attempt Blurton did not ny. Because Mr. Taron’s moth testimony regarding present testimony neighbor from the present to house,. Luetjens’ Mr. at the presence er’s of trial or make an offer mother at Taron’s any of attempt present- to Blurton did testimony, pre- of their he did proof by calling either -the this evidence at trial the trial appeal his claim serve testify mother to or Taron’s neighbor Tar- excluding in evidence that court erred toas their testimo proof an offer of make to opportunity on’s had motive mother not at ny. Specifically, Mr. the crimes. commit testimony tempt neighbor’s to present Taron’s mother exit Lu- that she saw Daughter of D. Victims’ Bias light p.m., 8:00 home around etjens’ at that the Mr. Blurton next contends phone, place the cigarette, talk on her cell excluding court abused its discretion pocket, extinguished cigarette her then Luetjens’ daughter felt that the 10 to 15 minutes later. went inside safety from- Taron’s concerned for her Instead, directly con- attempt an of rumors about Taron’s mother because murders, Mr. to the nect Taron’s mother threatening telephone call and a mother the testi- proof offers of Blurton made grandmother to the from' Taron’s maternal mony Luetjens’ daughter, the Lu- argués that Luetjens’ Mr. Blurton friend: friend, Each etjens’ police sergeant. Luetjens’ daughter’s fear Taron’s during a recess proof offer was made daughter may have caused mother Each took soon after each testified. had identify Taron’s mother’s be reluctant stand, Mr. Blurton and the n murders. Mr. Blurton involvement them. question each opportunity had daughter’s further asserts fear daughter the friend both testified The mother have caused Taron’s grand- that Taron’s mother and maternal pressure -identify daughter feel after telephone mother made calls them Blur- the 911 call. Mr. Blurton’s voice Tar- of the calls from the murders. One denial appeal does ton not. court’s to the grandmother on’s maternal friend daughter’s proof of his offer of Taron’s mater- threatening insofar as testimony ground that it would on the grandmother nal stated that the friend mother act from Taron’s show an overt happened tell had did not' her what her to the directly connected murders. “you’ll up just Taron like her.” end dead Instead, appeals Mr. Blurt sergeant that he had accused testified proof his offers of court’s denial of being in the Taron’s mother of involved testimony ground on the daughter’s during police interview. She murders daughter’s testimony have shown sergeant denied these accusations. testify untruthfully. motive to her bias and really Tar- testified that he did not believe trial, daughter testified crime, After oris mother was involved proof of her Blurton made an offer throughout Taron’s mother the interview proof, testimony. In the offer of reasonable, had not remained that she was concerned involved, daughter and testified way had indicated she

777 two, biases, possible or three safety days for her because to prejudices, “reveal[ ] or heard rumors that after murders she ulterior they motives may witness as going try to to “[Taron’s mother] was come directly relate to or personalities issues [them], body from take so Taron’s attempt at hand” in an to impeach case [they] bury family,” couldn’t her with [her] Alaska, the witness’s Davis credibility. v. daughter also stated she was . 308, 316, 415 U.S. 1105, 94 S.Ct. 39 during a call from present telephone Tar- (1974); L.Ed.2d 347 see also State v. John grandmother on’s to maternal the Lu- son, (Mo. 815, 1985). 817 banc Mend, etjens’ although she did not Here, the trial court not err did because conversation, the hear the friend told her not call Taron’s did mother to grandmother that Taron’s maternal made testify trial,, at nor call -the Lu- “along something threat to the lines etjens’ neighbor allegedly who saw Taron’s .thing hap- [as same had effect.of Luetjens’ mother outside home on going happen to to pened Taron] [was] to day such, As murders. Mend].” [the daughter’s- testimony about the rumors telephone calls asserts that this is- have re is not preserved, because Mr. Blurton vealed an or against per sue biases issue argued Davis, to sonality the trial court “that he the case. See 415 U.S. question daughter].as wanted to .part [the at 94 S.Ct. 1105. develop regarding his effort to evidence suspect” mother] as an alternative

[Taron’s to offering addition daughter’s not that the fear of Taron’s daughter’s testimony to show that her fear “might to mother have motivated her dis of Taron’s may mother have caused her to exaggerate testimony.” tort or For her identify be‘reluctant Taron’s mother’s allegation of preserved be error murders, involvement Mr. Blurton review, appellate pre the error must be sought daughter’s also admit testi to or sented court. decided mony as evidence of her motive falsely Davis, (Mo. S.W.3d testify hearing about voice 2011). preserved This banc issue be admissible, on the 911 call. To evi be cause, regardless of whether Mr. Blurton logically must legally dence be both expressly daughter’s testimony offered the 521; Taylor, relevant. State v. S.W.3d bias, trial to show her the trial court logical “Evidénce issue, stating ruled that “[t]hose if it ly relevant tends make the' exis questions and .answers would be allowed or tence of fact more less proba .material ,. against show bias of this witness legally Id. ble.” Evidence is relevant who, assuming I’m m[a]y testify.” witness probative when the value After Mr. Blurton that he stated did not outweighs prejudice, confusion of “unfair to call testify, intend Taron’s mother to issues, jury, misleading undue de however, the trial court reversed its deci cumulativeness,” lay, time, waste of sion. State, Johnson v. 2013) (internal omitted). daughter’s proffered quotations

While testimony may A trial court “limit exclude the use could have relevant been testify impeachment prejudicial show her evidence whose untruthfully motive to mother, about Taron’s Taron’s effect far mother was out-distances value personality” determining an “issue or as an credibility.” the case. aid Johnson, A defendant a witness cross-examine at 818.. the mur her with directly connected no presented

Mr. Luetjens’ daugh to the moth- or as relevant of Taron’s ders daughter’s fear linked objec Taron’s mother. In its identify fear of falsely- ter’s motive for er to a her daughter’s proof, offer The to the 911 call. tion Blurton’s voice on the testimony fear, objected to friend’s there- daughter’s testimony her being argued that was was, to because the state fore, logical of tenuous relevance argument that Tar- support a motive to offered daughter show opportunity motive or Accordingly, on’s mother had falsely accuse Blurton. - and because commit the murders its discretion trial court did not abuse Taron’s maternal had come from Luetjens’ threat testimony. excluding directly Taron’s and not grandmother testimony Taron’s daughter’s about .moth- expréssly denied value The trial probative mother. have of little er-would been of- these same reasons. proof for determining the offer to assist these of ad likely Accordingly, because theories credibility would daughter’s court, missibility were decided or misled the confused the have issues Johnson, preserved. is this issue at 902. jury. 406 S.W.3d trial, Mr. testified at After the friend Threatening

E. Evidence of her proof an offer of Blurton made Telephone Calls testimony. proof, she testi- In the offer also asserts that the Mr. Blurton Luetjens’ day the bodies fied that on the' it exclud- court abused discretion discovered, her sister had conversa- n Luetjens’ friend testimony from the ed tion Taron’s mother and the friend -with telephone calls from Taron’s mother about ma- had several conversations with Taron’s grandmother. Mr. and maternal grandmother. ternal The friend testified testimony would have contends grandmother called that Taron’s maternal daughter’s and corroborated confirmed Taron, happened to her to ask what had for her testimony that she felt concerned The friend granddaughter. her telephone calls and safety because- During one any information: disclose the Lu- Taron’s mother about rumors her, grand- Taron’s calls to maternal these supT etjens’ testimony friend’s you “If not tell' me mother stated: do abput testimony neighbor ported the of a up my granddaughter, about end you’ll Lu- seeing Taron’s mother outside over- just like her.” friend also dead day etjens’ home on the of the murders. her sister had with heard the conversation her Taron’s mother. She overheard sister that this argues The state issue mother to call the sheriffs tell Taron’s never preserved Mr. Blurton because to Taron happened office to find out what admissibility to presented these theories provide sister refuse to and heard her allegation trial court. For an of error infor- with additional Taron’s mother review, the preserved appellate to be mation. The friend’s sister told friend to or presented error must be decided hung up the then that Taron’s mother Davis, the trial court. at 770. telephone. Regardless of failure Mr. Blurton’s admissible, previously, to be As noted specify why offering friend’s legally logically and ruled evidence must be both testimony, expressly the trial court at 528. Taylor, 466 S.W.3d relevant. testimony whether that was admissible if it logically relevant tends Taron’s “Evidence evidence related to whether of a material fact more mother overt act make existence have committed an

779 or probable.” legally less Id. Evidence Although the-trial court had probative relevant when the value of the the grant discretion to Mr. Blurton’s mis outweighs prejudice, “unfair con- trial requests, a mistrial “is a drastic reme issues, misleading jury, fusion of dy the the and should employed be only in the time, delay; undue waste of or cumulative- extraordinary most circumstances.” State Johnson, (inter- ness.” 902 S.W.3d at Taylor, omitted). 2009) quotations (internal

nal quotations omitted). “This decision is left to the discretion of the trial proffered testimony was not court, as it is in the best position to deter logically relevant to material fact at mine whether the incident had a prejudi issue the case at trial. The trial court cial effect on jury.” Ward, the properly Luetjens’ excluded the daughter’s A trial testimony that she feared Taron’s mother court-abuses its grant discretion to a mis daughter and that the was with the friend only if “its ruling is clearly against and her sister when Taron’s mother and logic the of the-circumstances before it and grandmother telephone maternal the made ruling when the arbitrary so and unrea calls to them. The trial court ruled that as to shock the appellate sonable court’s evidence was relevant. Because justice sense and indicate lack of daughter’s proffered the testimony was careful Id. A consideration.” mistrial excluded, properly neighbor’s the testimo should be “in those extraordi used ny daughter’s relevant without the nary circumstances in prejudice which the - testimony. Additionally, because Mr. (cid:127) to the defendant cannot otherwise be re Blurton attempt neigh call the moved.” Id. A trial court grant also allegedly bor who saw out Taron’s mother mistrial if the evidentiary, error is inten side the Luetjens’ day home on the of-the tionally injected into the trial. State v. trial, murders as a witness at the friend’s Aguilar, (Mo.1972). testimony was not relevant without neighbor’s testimony. Accordingly, During the state’s direct examination of trial court did not abuse its discretion Luetjens’ daughter, in- state first denying proof. the friend’s offer of advertently showed her a photograph bound hands one of the victims Rejecting

No Request Error Mistrial of a photograph instead of a vehicle owned error, In his final claim of Blurton Luetjens. investigator An in the asserts that the trial court its public abused- dis- defender’s office testified at hear- cretion in denying requests ing for a mis- on Mr. Blurton’s motion for a new trial after the inadvertently state jurors showed that several reacted tb photo- separate three witnesses and -the graphs jolting leaning forward graphic crime photographs chairs, scene mouths, their covering their wid- victims calling up pho- when state was ening eyes. juror their One also said tographs on presentation. expletive.' PowerPoint Mr. Blurton almost immediate- Mr. Blurton evidentiary contends this er- ly asked the trial to approach ror a mistrial sidebar, warranted because the unex- During bench. the state ex- pected viewing gruesome photo- plained that all of photographs graphs “triggered against organized excess emotions into a presentation PowerPoint [Mr. and “caused Blurton]” on a laptop [Mr. Blurton’s] computer, which was then dis- imposed sentence to be under the influence played large on a' television screen of passion.” courtroom. To a photograph, access denial, request- photograph’s ex- type in the al. After this press then enter. ed instruct number and

hibit inadvertently displayed photographs. in- the tri- disregard When state had Mr; so, typed agreed it either in al court photograph do correct request the trial court typed exhibit number or had before the incorrect withdrew number, enter, that then “if press not act because he was the a could afraid in did seeing going high- anything, just in After court it’s typed says number. another daughter began cry light to. than it’s photograph, hap- the it even more the here jury. of asked view the The trial court then the pened.” on the stand while Mr, mistrial, photographs a which it could requested Blurton state show the using paper Mr. Blurton also form of the poster .court or instead the trial denied. PowerPoint, a grant agreed the to do trial court recess'to so. state asked the herself, daughter compose its allowing Before the to resume allow the state warped examination, denied after the trial court also ask- direct the trial court a it to daughter “really if she wanted to take it ing happen [didn’t] the want again either”’ break she declined. inadvertently then the The state showed publica The state’s inadvertent crime daughter’s a series of ex-husband crime photographs tion the did scene rapid it photographs fashion when scene remedy not a mis require the extreme attempted display photograph a no presents trial. Mr. Blurton investigator The testi- Luetjens’ house. intentionally state showed the the it had that the less than jury reacted fied Luetjens’ daughter or the other witnesses was photograph the first inadver-

when Additionally, the -all of photographs. the a displayed few of the tently but inadvertently photographs shown either forward, their mouth jurors leaned covered into had or were evi been- later admitted hands, lowered their heads. with their or jury. Although and shown to- dence the that it start- explained time the This state photographs gruesome may were Power- the first photograph ed with triggered jury, have from the emotions rapidly presentation flipped Point photographs gruesome were “because it through photographs, until reached State v. crime was gruesome.” itself .Mr. Blurton the correct photograph. Johnson, (Mo. S.W.3d banc requested arguing mistrial again 2008). grue produce “Gruesome crimes inflammatory “highly photo- [the for. some, yet probative, photographs, and a graphs] to the shown be may brutality escape defendant not trial court type fashion.” The denied Strong, his own actions.” State v. request. Mr. 2004) (internal omitted). Moreover, inadvertently quotations Mr. Lastly, showed body to the trial photograph Donnie’s declined court’s offer Donnie’s four jury, photo instruct acquaintance disregard three seconds. that, although attempt investigator graphs prej in an testified remove through by some udicial effect means other than a there been reaction jurors, clearly not Accordingly, evi- mistrial. reactions in denying dent time. Mr. abuse discretion Mr. moved Blurton’s, mistrial, asserting photographs requests. mistrial because the “negative logic jury.” ruling against [the] effect request for a careful mistri- circumstances and showed consid court denied Lastly, attempt.by and an propor eration Blurton’s sentence is penalty tional to .any prejudice. imposed potential to remove similar cases, crime, considering the strength evidence and the defendant. In a Death Not Excessive Sentence is factually case, similar the death penalty Disproportional imposed the defendant mur Blurton, Although requested elderly dered victim who had her hands section required this'Court 565.035to bound, head, had been shot and was independently Mr. Blurton’s review death Ramsey, robbed. review, In its sentence. this Court deter- penal 325-27 The death ’’ mines: ty imposed has been when the defendant s (1) Whether' the death was sentence ha helpless rendered his' victim before imposed pas- the of under influence murdering McFadden, the victim. 369 sion, 'prejudice, any other or arbi- 754-55; Anderson, at v. S.W.3d State 306 factor; trary and 529, (Mo. 2010); 544 banc S.W.3d State v. (2) Tisius, supports (Mo. 751, Whether the evidence the 92 S.W.3d 766 banc 2002).

jury’s finding or judge’s This Court has affirmed sentences statuto- ry aggravating circumstance as enu- of death in cases when the defendant had prior 2 one merated in serious assaultive of.section conviction. subsection circumstances, Hosier, 454 883, 891, v. State 565.032 other 900 .any and S.W.3d (Mo. 2015); Sidebottom, v. found; banc State 753 (Mo. 915, 1988); 926 S.W.2d banc State v. (3) Whether of death is the. sentence ’ Kinder, 313, (Mo. 942 331-32 S.W.2d banc disproportionate or excessive to the 1996). penalty The death has been im , cases, imposed in similar penalty has posed the defendant murdered crime, considering both the Driskill, person. moré than one State v. strength of the evidence and de- (Mo. 412, 2015); 459 S.W.3d banc 432-33 fendant. Hosier, 899-900; 454 at S.W.3d State v. Section 565.035.3. 248, (Mo. Wolfe, 2000), 13 S.W.3d 265 banc First, in nothing abrogated grounds by on other sug record Mitchell v. Kardesch, 667, (Mo. 313 670 gests' banc recommended the 2010); Johnson, 123, State v. 968 S.W.2d penalty death of pas under influence (Mo. Mease, 1998); sion, banc v. State prejudice, any'arbitrary or factor. statutory (Mo. 1992). Second, banc following found (cid:127) penalty imposed death’ has been when the ag (1) gravators: Mr. Blurton had a at least one defendant murdered victim conviction; (2) prior serious assaultive perpetrated robbery or burglary. each murder was while he committed Driskill, 432; Deck, commission:, S.W.3d at engaged in the of two other 2010); 303 S.W.3d banc 532-33 murders;- (3) the murders involved Gilbert, v. State 745-46 result, depravity and, as a mind Williams, 2003); outrageously murders were wantonly S,W.3d 462, 466-67, 475 (Mo,, vile, horrible, and inhuman insofar as each victim was or bound otherwise rendered After the. considering statutory all fac- helpless and, therefore, tors, Mr. Blurton exhib -the imposition penalty the death disregard ited callous sanctity Blurton’s murder convictions was all statutory human life. of these Each or to not disproportionate excessive aggravators supported penalty imposed in similar cases. record. attempt present Blurton did not to

Conclusion The trial court did not trial.. jury instruction requested Mr. Blurton’s excluding the Lu- abuse discretion offense of statutory lesser included on the testimony' etjens’ daughter’s being about properly not conform felony did mother fearful Taroris due rumors 2(b) in Notes on Use requirements threatening telephone call 314.06, court was trial 3d MAI-CR Luetjens’ testimony friend because incorrect in- submit an obligated show logically relevant err did struction. The against testify daughter’s bias motive instruction refusing improper to submit untruthfully Taroris mother when about jury. to the not a “personality” mother was Taroris also not err admit- trial court the case as a witness at even called trial over Mr. ting evidence at probative and was little value show admit- properly objection. The falsely daughter’s identify motive location testimony regarding the ted Mr. Blurton on call. The trial to which Mr. Blurtoris phone cell towers court did not its discretion abuse exclud- night of on the connected phone cell ing testimony Luetjens’ from the friend murders, including testimony that this telephone from Taroris about calls mother phone Mr. Blurton’s cell analysis showed grandmother and maternal because this in home Gar- traveling path on his a testimony only been admissible nett, Kansas, Camp. The witness’s Cole support testimony the trial court that testimony analysis toll of telephone of his Blurton properly excluded that Mr. did not re- calls did phone Mr. Blurtoris cell not offer at trial. his testi- expert testimony because quire reject- The trial in court also did'not err of a mony layperson. was the realm within requests mistrial Moreover, ing Mr. analysis Blurtoris after that his statement inadvertently gruesome the showed of trav- general path Blurtoris showed-Mr. from the photographs during crime scene inferences only was on common el based testimony the of three witnesses. No evi- experi- ordinary of within the.realm the was state inten- presented dence the also layperson. The trial court ences tionally photographs these showed the admitting testimony from not err in Moreover, Luetjens’ family.. con- friends all analyst her fingerprint state’s photographs shown of these were later other ana- clusions had been verified jury, gruesome they were because the three lysts. trial court sustained The gruesome, was and Mr. granted him crime de- objections and Mr. Blurtoris offer clined court’s to instruct and, sought, in the all relief he disregard photographs. objection in over- instance was ruled, the did not err because An independent review Court untimely objection Blurtoris was and Mr. finds that record not show does testimony been admit- already similar imposed the death were sentences under objection. ted without passion, prejudice or any the influence arbitrary Additionally, in exclud- the evi- court also did not err factor. supports jury’s finding that claim ing at trial. Mr. Blurtoris dence Mr. prior evi- serious assaultive con- excluding in Blurton had a that the trial court erred viction, that each murder was presence mother’s outside committed dence Taroris engaged in Luetjens’ day while he was the commission of home murders, that-the two other and murders preserved was not because murders and, struction, depravity of mind as a involved even if.it were tendered result, outrageously required by the murders were and form the Notes on Use vile, horrible, inhuman. wantonly and MAI-CR 314.04 and Regardless, 314.06. Moreover, this Court finds that Blur- not prejudiced by Blurton was the failure or dispro- second-degree ton’s excessive give felony sentence to' in . portionate penalty imposed simi- struction. State v. McLaughlin, (Mo. lar 257, cases. 2008); 270-71 banc State Hall, (Mo. v. 982 S.W.2d banc Accordingly, judgment is affirmed. 1998); Kinder, v. State 942 S.W.2d Russell, J., J., concurs; Fischer, concurs 330 filed; J., opinion Wilson, separate Background Factual and Procedural Fischer, opinion J,; Draper,

concurs J., separate concurs result in opinion charged with counts three Teitelman, filed; JJ., concur Stith of first-degree murder for killing his aunt opinion Draper, J. 15-year-old uncle their grand- Donnie, Sharon, daughter. Police found Fischer, Judge, concurring. M. Zel Luetjen and Taron dead in their home. Blurton appeals Robert three first-de shot Each had been once in the back gree murder convictions and sen death lying head. Each found face down I concur in opinion in principal fences. floor, pillow, head on hands their including principal respects, opin all were bound behind their backs. Donnie’s explanation spe ion’s Jackson lay empty nearby, .wallets and Sharon’s cifically with dealt “nested” lesser-included change and valuable items and miss- offenses,1 ing from room. no another There was 2014), holding circuit sign entry. of a forced State did required- to give court was lesser- or, robbery charge matter, any for that included offense instruction on second-de underlying felony. presented no Blurton felony gree murder. this Court is Because during guilt phase evidence the of trial. sentences, affirming three death will did, however, no The of doubt receive further review this file a “Notice courts, the Intent Death sepa Penalty.” Court and I to Seek the The federal write that, view, rately explain purpose filing to in my put the this the defen- to. in circuit court would not on notice of potential have erred refus dant the aggravating ing second-degree in felony might try the murder factors to prove during the State right jury’s 1. It is clear Jackson any part dealt with "nested” disbelieve [T]he to all or evidence,, lesser-included offenses: right and its draw to refuse inference, question presented any in case in The this needed is a basis sufficient give whether court can refuse justify giving any in- lesser request- lesser included offense instruction cluded offense instruction the offenses when ed the defendant under section 556.046 separated only by one differential element are the lesser offense consists a subset proof. for which the state bears the burden charged the elements offense and at Id. 401. (i.e., the differential element element required charged for the offense but not for dealing When with "nested” lesser included offense) is one on which the lesser impossible "it is offenses ... commit answer, proof. bears burden of un- greater committing necessarily without equivocally, is no. lesser.” at 392. (emphasis original). in Id. at 404 not, jury ted error. The circuit court did of the trial. The there penalty phase instructed, during pen- fore, ultimately Blurtoris rejecting err in second-de trial, - alty-phase of to-consider whether gree Op. instruction. felony murder n 767.- engaged perpe- in the “the defendant was proper Blurton sec Had tendered'a No. 25. robbery.” Instruction tration of instruction, ond-degree murder felony verdict, jury.found According to the in refusal to that instruction was ac give existed, listing factors aggravating several prior first-degree cord with this Court’s form, jury on the writing verdict them penalty murder cases. death engaged it Blurton was but not find Blurton, the other had defendants matter, or, felony it robbery for that cases, requested done the above cited other than murder. was asked consider instruction, second-degree felony mur- on- first- to an instruction addition give court refused to der. circuit degree murder, requested the State objected The State proffered instruction.2 instruct circuit court to find (1) that the grounds: on three instruction second-degree if murder guilty form proper accompanying lacked the and knowingly Luetjens’ caused the deaths required under the II, III], Third, Sharon, I, [Donnie, you if As to and find and Taron] and [Counts beyond Luetjen evidence a reason- lulled believe from the of the [were] result perpetration robbery able doubt: of that in the second June, First, day the 7th degree, about] of [on Benton, County of ... in the State of you guilty then defendant will find the under Missouri, property defendant I, took II, of murder in [Counts III] the second and property owned Donnie Lu- which was degree. and, etjen defendant did so However, you find and believe from unless Withholding it from owner purpose of beyond a reasonable evidence doubt each doing permanently, defendant you propositions, all find of these must against on physical so force [Don- used guilty of murder in defendant not Sharon, nie, Luetjen for the Taron] instruction, degree you second under this but preventing purpose resistance to the tak- of guilty must whether is then consider of you ing property, then will of the find degree murder in the second Instruc- under robbery has committed in the No_” the defendant tion However, degree. you second unless find ruling the bench was 3. The as follows: beyond believe from charged any with [T]his each and all of these reasonable doubt defendant felony underlying propositions, you the de- whatsoever. The tendered cannot find that indicating required by verdict in on MAI- jury’s this case the Notes Use for Moreover, presented was not sufficient evidence CR 314.04 and 314.06. there neither robbery. Blurton, principal opinion, that Blurton committed a sep- nor the opinion Judge arate of Draper, cite to a all guilty found on single case in which this Court permitted, three three counts and recommended required,' let alone submission sentences, which the circuit court death second-degree felony murder instruction directly to this imposed. appeals on uncharged felony. based Further- Court, has jurisdiction. See Mo. which more, jury in this case did not-find that Const, art; V, § 3. proved engaged the State that Blurton was Analysis4 . robbery or felony. in a other requires 556.046 circuit Section courts Even if Blurton Had an In- Tendered requested give a offense .lesser-included Felony Second-Degree there, struction on basis is a evi-

instruction Murder in Accordance with the acquit the imme- dence to defendant on MAI-CR 314.04 picks felony support a the instruction that defendant facts case do not picks, charge. that the State did not The giving techni- felony that murder. More defense, instruction, on this has tendered felony. cally degree, in the second —murder picked robbery degree. By in the second language also It is with the inconsistent offense, picking underlying isit inconsis- request respect to the defense with the did alibi, I tent with and think the defense type alibi "A” is refused. information. be, maybe argue is allowed to inconsistent theories, asserting innocence. Statutory Supp. 4. to RSMo citations áre [form], which [sic] foreman the instruc- except where otherwise indicated. tendered, proper tion as is —the Hall, McLaughlin acknowledges that the McLaughlin argues Mr. next Mr. submitting distinguishable first* that it is be- argues erred in but court trial n second-degree degree prosecution conventional did cause that case- the submit refusing to also felony murder and submit the that underlies also He notes second-degree felony murder. felony charge, murder whereas here raped argued that he prosecutor submit both murder in which he in the incident same victim rape., argues that and forcible He also counts her murdered and submitted least, at option, should have he rape first-degree mur- forcible both choosing second-degree which form that Mr. jury in fact found der. to submit murder situation. McLaughlin forcibly raped the victim prosecution in Hall did While Therefore, her. and that he murdered felony, case underlying submit 'the court McLaughlin argues, Mr. relied, Kinder, it on did submit felony so submitted murder should have first and conventional second-de- both if argued that that he could have in the gree rape, just murder as the victim jury killed found Thus, directly point. case at bar. it is convict rape, it should furtherance pattern Kinder held because felony murder second-degree him require the jury criminal instructions murder. first-degree rather than of first- jury guilty to find defendant not trial McLaughlin that a Mr. is correct second-degree degree and conventional obligated charge jury court is felony considering murder before respect to offenses with lesser-included instruction, no could prejudice murder evidence, so supported by that are failing felony from mur- result submit beyond either give as to choice third Kinder, 942 330. der. at S.W.2d Beck first-degree murder. acquittal 625, 637-38, Alabama, v. 447 U.S. , course, McLaughlin is correct Of 392, (1980); S.Ct. L.Ed.2d that the court could have submitted Hall, felony-murder rather than or in addition 1998); 556.046, Felo- 2000. See. RSMo submitting second-de- conventional is a offense ny murder lesser-included gree committing murder without error first-degree murder. Sec. supported by both evidence. 565.025.2(l)(a). Conventional second-de- But, issue is the trial court not what gree murder also lesser-included done, prejudice could have but whether murder, however. first-degree offense of felony resulted from to submit failure reason, McLaughlin rec- For this Hall, Kinder, murder. and numerous ognizes, it was not error Hall held that prejudice cases hold no re- other so felony to refuse submit murder1 refusing felony sults submit sec- long as the did submit murder instruction where a conventional murder, ond-degree when “a second-degree instruction was murder after first-degree murder convicts sufficiently latter given because the second-degree having been instructed on by giv- the evidence of deliberation tests murder, prejudice there no convicting ing option by the to submit defendant refusal of a offense. This defendant lesser second-degree instruc- felony holdings. Court reaffirms these Hall, 682, (quoting tion.” (some Kinder, 313, omit- citations v. Id. 270-71 internal 1996)). ted). (Mo. banc

Likewise, Hall, felony Court held as murder.” jury When a convicts follows: degree on first murder after having been instructed

Hall on both first by degree asserts-the trial'court erred and murder, degree second refusing jury submit an in- there is no prej- by for udice to the struction the offense' defendant second-de- refusal to n , submit a gree felony degree felony murder. “Under section second murder 556.046.2, 1986, instruction. This RSMo the trial is the exact court is scenario ease, obligated to current charge jury respect with thus Kinder was by not prejudiced to a lesser trial court’s included offense when» refus- there al is a to submit his acquitting degree basis a verdict him of second felony murder charged convicting offense instruction. him of the included offense.” (citations omitted). 942 S.W.2d at 330 consistently held, that when We And likewise in Griffin, this again Court jury “a on first-degree convicts murder expressly held: after having been on instructed both point Defendant’s next is his assertion degree second-degree murder, first jury that the should have been instruct- prejudice there is no the defendant ed lesser included offense of sec- degree refusal submit a second degree felony ond respect with murder felony murder instruction.” The trial to each count. Trial courts are obligat- court did not err. Point denied. toed instruct on lesser included offenses (citations omitted). 982 S.W.2d at 682 supported the evidence. Section Kinder, 556.046, Likewise in this Court unani- RSMo 1986. See also Beck mously Alabama, held 635-43, as follows: 447 U.S. (1980). S.Ct.

Kinder’s L.Ed.2d 392 Al- next claim is that the trial though degree felony second court murder is refusing erred his second de- not a lesser gree instruction, included offense of felony first murder which degree murder under traditional “el- patterned after MAI-CR the. 3d 313.06. test,” ements it specifically has been disagree. We de- The trial court did submit such, 556,046 §§ nominated see Kinder’s conventional degree second 565.025,RSMo 1986. instruction, murder patternéd which was after MAI-CR 3d 313.04. Under As the evidence case defen- § 556.046.2, RSMO conclusive, dant's state mind was obligated charge jury with re- support an instruction on second spect to a lesser included offense degree felony murder and the trial court there acquitting basis verdict should have so jury. instructed De- however, charged fendant, defendant of the offense not prejudiced by convicting him of the of- included the court’s failure to this. do fense. degree Murder is a was instructed second the lesser-included lesser-included offense of degree murder offense of second conventional degree. 565.025.2(l)(a). § first degree In re- murder. is a second It conven- viewing claims, similar instruction, this Court has murder tional not a sec- held that appropriate degree felony instruction, “[t]he MAI-CR 3d ond murder requires that sufficiently find the jury’s defendant tests a belief guilty degree of first murder and of the crucial facts for a conviction then degree degree conventional second first murder— The jury had before it may degree consider second opportunity to convict defendant of essarily conventional but result in the second- degree murder conviction

second murder, degree in this felony An case additional instruction not do so. did felony require proof beyond a reasonable murder would would degree on second uncharged, felony. jury of an difference. doubt have made no specifically to whether was asked consider added) (some (emphasis at 485 underlying demonstrated State had omitted). internal citations of of felony robbery in context consid- case, choice jury given was a In this ering aggravating purposes of factors for acquittal: murder capital other than jury a punishment. The did find rob- second-degree It murder. conventional bery any felony or it instructed was guilty first-degree of to find Blurton chose except consider had been committed three him to death based murder sentenced n - first-degree murders. proved that the on its determination conclusion, principal I concur in the aggravating factors all submitted affirming except: opinion judg- the circuit court’s second-degree ment the instruction murdered “4. the defendant Whether felony not in murder was form proper Luetjen' for' the [Donnie/Sharon/Taron] and, therefore, the circuit court did err receiving mon- purpose of the defendant refusing give it as For tendered. thing monetary of any or other value ey above, additional reasons articulated it Luetjen or anoth- from [Donnie/Sharon] reject would have been error er.” second-degree felony murder instruction [Don “6. Whether murder if it compliance even was tendered in with Luetjen commit nie/Sharon/Taron] the Notes on Use MAI-CR 314.04 and engaged the defendant was while ted 314.06.5 búrglary. person A perpetration of burglary commits crime when the III, George Draper Judge, W. knowingly unlawfully enters or person concurring in result. knowingly unlawfully in a remains build pur ing inhabitable structure I diverge principal from the opinion’s committing pose stealing.” First, analysis aspects. I several would murder [Don- “7. Whether required that a trial to submit find Luetjen commit- riie/Sharoh/Taron] any requested by lesser-included offense engaged ted while the defendant was Second, I defendant. would find the trial robbery. person A perpetration to instruct court failed robbery commits crime of when sécond-degree offense' of lesser-included forcibly property.” steals felony murder Robert Blake Blurton “Blurton”) (hereinafter, requested the in- Conclusion struction sup- instruction was trial, Second-degree felony presented is not ported but requires proof of a prop- “nested lesser” due Blurton’s failure to submit If felony erly request or to addition murder. worded instruction part modify instruction, opportunity chose all disbelieve Third, acquittal prejudice. evidence it result in no there State’s there was first-degree Derenzy, not nec- murder and would no need overrule error, assuming Griffin, presumption even 5. But was an has overcome the State, Hall, Kinder, McLaughlin, prejudice. itas

789 (Mo. 2002), sub 565.025.2(l)(a), S.W.3d 472 banc 2000,2 silentio. RSMo provides that Accordingly, only. I concur result felony murder and conventional second- degree murder both are lesser-included required court is to instruct offenses of first-degree murder. The re on the lesser-included offense quirement of 556.046.1(2) section is met. point first appeal alleges, 556;046 Section next contemplates when give “The trial failed to court a lesser- a trial court is required to a jury instruct (felony included offense instruction mur on a offense. lesser-included Section der) that was supported by the evidence 556.046.2 states that the trial court is not theory and was the primarily argued‘by required to jury instruct the ” a lesser- defense Review a trial court’s offense “unless is included there a basis give decision whether to requested jury a for a verdict acquitting the defendant of pursuant 556.046, instruction to section the offense charged and convicting him [or 2002,1 Supp. RSMo is de novo. State v. Further, her] the included offense!” Jackson, (Mo. 390, 433 395 S.W.3d banc provides section 556.046.2 “charged that a 2014). When statutory requirements “the is offense” one that is included in the giving met, for such are a instruction indictment or information or “is an offense giye requested failure to a instruction is jury submitted is because there reversible Id. error.” basis for a verdict acquitting the defendant Section 556.046.1 sets forth situa- three of the charged convicting offense tions an offense wherein “in- considered Here, defendant the included offense.” in another cluded” offense. An offense is presented the state evidence that there considered to abe- lesser-included offense (cid:127)was missing property from the victims.' when: Accordingly, this subsection is met. (1) It proof by established , Finally, section provides

same or less -556.046.3 required than all facts establish, court is “obligated jury commission the of- instruct the with respect, to a charged; particular fense included of- fense is a there basis in the (2) evi- It is specifically denominated acquitting dence the defendant of the degree statute as lesser of the offense immediately .higher included offense and charged; or- is a there basis the evidence for convict- (3) It consists of an to- attempt commit ing the defendant of particular includ- charged offense or to commit an ed offense.” offense otherwise included therein. Section 556.046.1. “The decision of what be second-degree

While felony murder does lieve or belongs disbelieve solely Pierce, meet the traditional “elements' test” jury.” as State v. 433 S.W.3d 432 forth in Blockburger States, 2014). set v. United The trial “is re 299, 304, 284 U.S. 52 quired S.Ct. L.Ed. decide what facts reasonable (1932), it is specifically jury may evidence, denominated from the but isit find offense our permitted lesser-included Missouri never go further and decide legislature. Griffin, (Em what facts the must Id. find.” phasis original). Section A may 1. All further references to this section are 2. All further references to this are section , Supp. RSMo 2002. RSMo 2000. by limiting inqui offense in that the “disbelieve all duty jury’s

usurp the part concerning the evidence ry. Pierce, differential element.” Here, requested the instruc- Jackson, (citing at 404- less- first-degree murder and the tions 06). Further, that this Court stated a of second- offense conventional er-included only not to defendant not does need accepted degree murder. evidence, [or introduce affirmative Thereby, implicitly instructions. both does have to ‘cast doubt’ over she] upon a basis which recognized there state’s via cross-examina- the evidence of acquit Blurton first-de- jury the could explain or to or judge jury tion the jury it instructed the gree murder because precisely why jury how the can disbe- of second- offense on the lesser-included him acquit and so [or lieve evidence additionally re- degree murder. greater of her] the offense and convict second-degree instruction the quested him her] of the lesser. [or aas lesser- felony be submitted murder Yet, Jackson, court re- the trial included offense. S.W.3d at 401-02. request. Blurton’s fused the lesser-included at While instruction not a issue in this is “nested” instruc- submitting on case prohibition There is no tion, it is a It still lesser-included instruction instructions. is lesser-included two it has as second-degree because been denominated such conventional clear that both by ignore legis- than second-degree statute. Rather our felony murder murder and 556.046, I jury to as lesser- lators’ directive in section may be the submitted requirements first-degree statutory murder. find the included offenses and, Jackson, just quali- met Note 5. find MAI-CR 314.06 a 3d submitting obligated is jury all lesser-included court instruct the fication in offense, on provided must be a basis a lesser-included that there instructions is a support the instructions “there is basis the con- the evidence evidence “requested by victing particular are one of that instructions defendant parties or the court.” Section included offense.” Section 556.046.3. whether to concerning “Doubts instruct on 565.025.3. a lesser-included offense should be re- progeny Court Jackson instruction, including in favor of solved offense that found that lesser-included Jackson, leaving jury it to the to decide.” test” as meets the traditional “elements (quoting Derenzy, at 399 Blockbwrger of- set forth in “nested” 474-75). jury Should requirement section fense and meets defendant, it will on believe the convict reviewing 556.046.1. whether the When “higher” regard without offense in failing court to instruct erred instruction. Inclusion lesser-included offense as re- jury the lesser-included requested, lesser-included instruction that .3, by Jackson quired section 556.046.2 legislators’ with our complies mandate in a trial Pierce determined given. section 556.046 should be failing error in commits reversible in- lesser-included, Here, submitted struct evidence during supported This occurs state the sub- “nested” offense. because requested sufficient to second-de- convict mission offense, charged gree felony prove instruction. To greater defendant of the murder, felony con- there must always sufficient evidence to be evidence there is showing during that the homicide occurred vict the the lesser-included defendant However, attempted commission or point commission need not be resolved Agee, a felony. 350 S.W.3d at this time. case, (Mo.App.S.D.2011). 91-92 In this places “great Missouri emphasis on evidence, presented state legally instructions, correct and this Court may' jury, be believed that a made it has clear criminal defendants robbery occurred at victims’ home. be freely should argue allowed their Further, ormay may not believe arising contentions from the facts.” State that there was an opposed intent kill as Westfall, (Mo. banc Each, merely committing robbery. of 2002). The presumption of prejudice, two types second-degree these murder which arises from the failure provide equal status, are and Blurton enti- instruction, can be overcome if the ’ to tled submit both theories to the I jury. clearly establishes the error did not result find that would in erred prejudice. Id. “An appellate court will failing requested to submit the lesser-in- not remand a new trial oh thé basis cluded instruction. While the trial court an error that did not violate defendant’s failing committed reversible error to constitutional rights unless ‘there is a rea requested submit a lesser-included instruc- probability sonable the' trial court’s tion, reversal of the underlying conviction ” error affected' the outcome of' the trial.’ only is mandated when the trial court’s Jackson, 433 at 424 n. 4 (quoting S.W.3d prejudicial error was to the defendant. Forrest, 218, (Mo. State v. 183 224 S.W.3d Deck, 527, (Mo. State v. 303 S.W.3d 548 2006)). banc 2010). banc I believe that under the circumstances case, of this Blurton prejudiced was not by

Prejudice provide trial court’s failure to in- an for second-degree felony struction proffered in- lesser-included predicated was upon robbery be- comply struction failed to with MAI-CR jury explicitly cause the rejected the facts 3d 323.04 because his instruction did not that would have robbery established the description contain a property by rejecting applicable those aggravating allegedly he took. giving “The or failure ‘ Further, factors penalty phase. give, an instruction or form in verdict request did hot an opportunity to of this violation Rule 28.02 or any applica- modify proffered his comply instruction to error, ble Notes On Use shall constitute Hence, MAI. with the while was error to prejudicial the error’s judicial- effect to be determined_” instruction, not submit the lesser-included 28.02(f). ly Rule While Blurton is unable to he demonstrate required court was not give an prejudiced by this error. instruction comply failed with the MAI, the law is unclear toas whether the Derenzy’s Validity trial court provided should have opportunity modify proffered result, his reaching principal opin- overruled, instruction to comply with the MAI by ion implication, before the holding tendering the instructions to jury.3 Deremy, plain allowed error re- especially 3. This is so in this case as Additionally, MAI-CR 3d 323.04. Blurton did objection state’s that the instruction was record, request, modify prof- on the proper in the form or proper had the comply fered instruction order to with the accompanying spe- instructions. There nowas proper form. cific reference comply to the failure to with 792 to limit this instruc- There no need Court’s improperly worded

view of ability n. that result in 7. I believe the review mani Op. tions. at 767-69 errors interpret- injustice. overreached in Plain review opinion fest is discre principal error 28 and ing mandatory intersection between tionary; Rule it is not review. Rule holding Derenzy. 30.20; Taylor, v. 466 see also State S.W.3d 2015) (Mo. v. banc Derenzy found that because the defen (Mo. Collings, banc an incorrect dant submitted lesser-includ 2014). instruction, the defendant ed offense mandatory himself of to avail unable A of this “decision Court should not be Derenzy, in Rule 28. review included lightly Eighty Clay Hundred overruled.” that, Derenzy recognizes S.W.3d at 475. Revenue, Corp. ton Dir. not commit “A does error 2003). 409, 411 m Stare deci- mis rejecting instruction either stability in the “promotes sis law en states the law confused precedents.” couraging courts adhere the, However, defen jury.” Id.. because Honeycutt, could, advantage of Rule 28 dant take review, plain error receive could to determine whether was a review there consistently, recently, This Court failing injustice to instruct plain allowed error review of instruc- manifest has requested, lesser-included in on the tions clear that the “when is that struction. Id. The Court found then so has failed instruct the misdirected submitting requested lesser- because injustice miscarriage jury that manifest mandatory instruction included Hunt, justice has resulted.” State v. acquitted defendant could 2014) .been (citing offense, plain greater on the there was Ousley, submitting proper error in not lesser- 2013)). I not limit this Court’s instruction. offense Id. included ability plain error provide relief when , injustice there a manifest results there is no conflict in believe I. I prejudice to defendant. see need to .no general Derenzy principles our between holding in Derenzy diminish this Court’s Derenzy review and Rule instructional 28. guidance further footnote without provides guidance regarding clear review litigants explanation to future and defen- worded, incorrectly less- requested, implications of dants as to the that deci- analy- This instruction. er-included the. ' sion. and, I sis should be followed believe concurrence, I demon- detailed same strated could be reach the used Conclusion opinion’s By principal result. asser- I concur with the Accordingly, principal tion Derenzy’s provided by review opinion only. in result proposition Rule 28 is conflict with the a trial court does not commit error instruction, submitting an incorrect opinion Derenzy sub

principal overrules

silentio. , I justice requires, believe that as always

Court be invoke should able to

plain error review as Rule allows. 30.20 Notes purpose preventing on/Taron] 3d 314.06. separate instruc- MAI-CR taking resistance to the property, felony for the underlying must be tion you then will that the find defendant has to a identical verdict director the un- degree. robbery committed the second felony it derlying except must be unless, However, you find arid believe to state must modified find beyond felony the evidence reasonable “committed” the defendant felony support 6. also it .stated that was refus- dence did murder in- ing degree felony Although Mr. Blurton’s second mur- Mr. Blurton claims these struction. ruling grounds der instruction because the state for the trial court were errone- ous, charged underlying unnecessary Mr. Blurton with the felo- to consider these al- ny robbery degree, robbery leged ruling in the second errors where the trial court’s can White, degree grounds. second be See inconsistent with affirmed other defense, . Blurton’s alibi evi- the facts in S.W.2d at 794. .

Notes

violated Notes does and, in refusing err a flawed instruction giving have erred trial court would accordingly, this Court need not consider jury- instruction. See incorrect proffered Livingston, 801 348 whether instruction v. S.W.2d State 1990) (“The prejudicially have or misled the giving of an instruc confused n Jaco, jury if at under submitted. 156 S.W.3d tion in violation Notes Use of the error[.]”). But, if this Court to con Because 782. even' MAI-CR constitutes prejudicial proffered effect compelled- give not an sider is court instruction, in proffered Mr. Blurton’s and does not err incorrect instruction instruction, a it is not nec struction would have confused misled flawed refusing jury properly whether because did not enu essary proffered consider robbery prejudicially merate the elements instruction would con degree See second not describe the fused misled the submitted. Jaco, alleged to have been taken. property S.W.3d 782. Derenzy, Derenzy to find court In at Court Court in that the trial 7. S.W.3d this that, submitting although rejection plainly correcting in not a trial court’s erred held properly apply incorrectly lesser offense worded instruction should an worded included mandatory, an instruction is proffered instruction defendant even case, error,” requested. as in Der- “not court's failure to correct when not an in properly enzy, submit the lesser included is worded instruction instruction requested plain resulting -in must be rather than nonetheless error struction that injustice.” reasoning As deci an instruction trial court is mandated to' "manifest for its Jackson, sion, 28.02(a), Derenzy give. There re See 396. Rule which at cited. fore, 28.02(a) provision in quires jury in Rule cited a trial court to "instruct upon arising Derenzy support writing questions of does not all law Court necessary plainly the trial court erred in case that informa conclusion that are their 28.02(a) giving correcting improperly ap Rule the defendant’s tion verdict.” mandatory plies instruction to those that are worded lesser included instructions requested by at this Court’s usual rule that the even if odds with defendant. Derenzy, commit reversible error lesser included instruction at issue in trial court does not however, give by refusing incorrect instruction. was not an instruction that was 37; i.e., Parkhurst, information, necessary jury’s S.W.2d at see also for the Imme 432-33; kus, mandatory non-mandatory Binnington, A at instruction. 776; 142; Powers, governed by S.W.2d at lesser included instruction court, Colson, 28.02(b), requires S.W.2d at 883. The trial Rule counsel here, obligated to "submit to' the instructions correct and submit and verdict (Em felony requests given.” properly lesser included mur party that the be worded forms added). applied phasis by the der instruction. The rationale

instructions Notes (“conventional” sec premeditation without 314.06; (2) Use for and MAI-CR 314.04 murder). The ond-degree request State’s may this not have defense this particular lesser- solely instruct evidence; (3) supported by been and line included offense with mutually that the defense exclusive express holdings previous Court’s the alibi defense that inserted Kinder, Hall, and State McLaughlin, into circuit the case. The court’s decision S.W.2d 475, 485 Griffin, second-degree felony to refuse murder proffered instruction Blurtoris instruction is in with this accord Court’s on Use for the Notes MAI-CR violated first-degree penalty death cases 314.04 ‘314.06. Had circuit and affirming under similar approach fac- proffered, incorrectly given Blurtoris also in worded, commit tual It is instruction would scenarios.3 accord with I, II, III], robbery you committed 2. "As do not fendant has [Counts sec- guilty degree. find murder in the first ond the defendant Sharon, Second, [Donnie, degree, you must consider he is whether Taron] killed, guilty degree. Luetjen second of murder'in shot [were]

Notes Use higher diately included offense and convict 314.06, Prejudicial included, It Was Not An is of the lesser. offense when Refuse to the Instruction Submit by proof is established the same or “[i]t required less than all the facts establish circuit assuming Even court erred the. charged,” the commission the offense by refusing second-degree to instruct on 556.046.1(1) words, § ele- other —in case, felony murder in this has not ments of lesser offense are subset been, demonstrated, held in this Court higher offense, or .elements McLaughlin that the State had overcome Jackson, See at 392. “nested.” presumption this same prejudice is An also offense deemed included within ,a McLaughlin, factual unani- scenario. charged specifical- “[i]t the offense Stith, mous authored Judge decision ly by' denominated statute as a lesser de- .case,..the on point. directly In that de- gree charged.” of the offense Section charged first-degree fendant with 556.046.1(2). type This second lesser- murder, rape, forcible and armed criminal necessarily requires proof included offense action. 260-61. de- elements,' other than the additional requested an instruction sec- fendant 565.025.2(l)(a), §§ higher offense. murder, ond-degree felony on the based 565.021.1(2),RSMo 2000. charge, rape but refused the circuit court explained principal opinion, give As in the con- it.and.instead instructed give circuit court’s refusal to Blurton’s sec- ventional Id. second-degree .at murder. ond-dégree felony instruction was fol- opinion 261. Court’s states This ...as not in form error because was lows:

Case Details

Case Name: State of Missouri v. Robert Blake Blurton

Court Name: Supreme Court of Missouri

Date Published: Mar 15, 2016

Citation: 484 S.W.3d 758

Docket Number: SC93648

Court Abbreviation: Mo.