State v. Grim

403 of hearsay evidence of the circumstances court, Missouri, within prior accident. The trial Respondent, of STATE discretion, its foreclosed what could have v. into a been a substantial detour collateral issue. Jones v. Terminal Railroad See GRIM, Appellant. Robert

Association, 473, 242 S.W.2d No. 74892. 1951). If the Railroad had limited itself pointed questions, one clarifying, or two Missouri, Supreme Court that the first accident did not involve En Banc. vegetation, might issue of the trial court offer differently. The extensive ruled 25, May 1993. however, proof, indicated a desire 29, explore Rehearing Denied June the details of collision. if

Finally, even the trial court had abused discretion, prejudice

its no resulted. vegetation on the extent of solid,

clear, overwhelming. claim This

of error is without merit. Damages

C.

The Railroad there insuf- claims that damages

ficient supporting

awarded, and prejudiced alleged finding the other trial errors. A

of liability prerequisite finding is a

damages. Especially comparative case,

fault can- damages determination independent accompany- survive liability. determination of Because the

finding reversed, liability finding on damages must also reversed.1

V. reversed; judgment the case is for a

remanded new trial.

ROBERTSON, C.J., COVINGTON,

HOLSTEIN, LIMBAUGH, THOMAS

JJ., (CARL), Special and GAERTNER

Judge, concur.

PRICE, J., sitting. fault, Resorts, Inc., adoption comparative (Mo.App. 1. Since the 777 S.W.2d disagreed relationship cases have tween independent be 1989). 3) about Damages depend liability; a new 1) damages liability. Damages are should on all trial be held issues when a new damages liability; a new trial on See, required. liability e.g., trial on Brown v. will ordered a new not be due to trial on liabili King, (Mo.App.1991); 806 S.W.2d See, Diebler, e.g., ty. Havel v. 836 S.W.2d Courtney City City, Kansas 2) (Mo.App.1992). aggrieved party 505 choose either (Mo.App.1989). contrary opin Cases only liability new trial on or a longer no ion should followed. new trial on all See Chase issues. Kramer v. Wafer, review, all McKay, process due mandates that Deborah James St. S. Louis, appellant. supported at least to convictions part, the most we have extent. For Webster, Gen., L. Joan F. Atty. William anything required more than the constitu- Gummels, Gen., Atty. City, Asst. Jefferson tionally required employ minimum and respondent. for exception, One howev- Dulany standard. er, upon has cases based circum- been THOMAS, Judge. questions The State now stantial evidence. Grim was of second necessity Robert convicted of this different treatment murder, action, degree armed criminal reject to and asks us re-examine and degree burglary. appealed first his He circumstantial evidence rule. convictions, Appeals, and the Court of District, reversed, finding Eastern the evi- A. The Circumstantial Rule Evidence support jury’s dence insufficient to ver- The circumstantial rule granted We dicts. transfer and now decide originated higher which as standard to original appeal. the case as if on Mr. Grim evidence cases held. circumstantial were why offers four reasons convictions his Because a basic distrust of con criminal reversed; argu- should each be we treat upon victions based circumstantial evidence in turn judgment. ment and affirm the more, nothing required prosecu bur tion such cases meet a different I. SUFFICIENCY THE OF EVIDENCE rule, distrust took form in den. The Mr. argues Grim first evi ap which used both as a standard of does support dence convictions. his pellate and as a review instruction. The standard for appellate review form appellate its the rule stated: sufficiency of support evidence to “Where the conviction rests on circumstan by criminal conviction was stated evidence, the tial facts and circumstances 52, Dulany, Court State v. S.W.2d 781 guilt must be consistent with establish 1989): 55 banc other, guilt consistent each with the review, accepts On the Court as true defendant, and inconsistent rea state, all favorable to theory of his innocence.” v. sonable State including all favorable inferences drawn 1143, 794, Pritchett, Mo. 327 from the evidence disregards all evi- (1931). Although 796-97 this statement contrary. dence inferences to the rule, similar to our quite rule is modern reviewing a chal- [Citation omitted.] cir the older cases reveal the distrust of lenge to the sufficiency of the resulting cumstantial evidence and the appellate review is a determi- limited to higher standard. nation whether there evi- is sufficient up chain of Where a circumstances leads juror dence which a reasonable to and establishes state of fact incon- might have found the defendant any theory sistent with other than beyond a reasonable doubt. accused, guilt such evidence standard, Under this must re- Court weight as much other entitled to view evidence adduced and ex- at trial evidence; chain, kind of as it reasonably supported amine the inferences were, unbroken, must and the facts evidence to determine whether the and circumstances disclosed and relied proper. verdict is jury’s Dulany stan- upon must irreconcilable with process dard echoes the due an- standard the accused in innocence order Supreme nounced United States justify his conviction. 307, 443 U.S. Virginia, Court Jackson Pritchett, 2781, (quoting 39 S.W.2d at 797 (1979). 99 S.Ct. 61 L.Ed.2d 560 Mis- 43, 50, 1117, 196 Mo. might require Morney, choose to more evi- v. 93 S.W. souri appellate (1906)) (emphasis dence convictions on added in Pritch-ett ). lead to have rules one to confusion two If, hand, standard. other the two years, In more recent courts have come yield rules sometimes different results no to view circumstantial evidence as dif- case, problems arise.' same Because See, e.g., ferent from direct evidence. Hol- Dulany standard a constitutional States, land v. United U.S. foundation, no affirmed conviction can be (1954). 75 S.Ct. 99 L.Ed. 150 Mis- If when the evidence fails under this test. relaxed apply souri courts now a more ver- circumstantial evidence rule inter- Specifically, sion of the rule. we have re- preted require less evidence than the language tained the of the traditional stan- standard, Dulany then will lead to the dard but continue in the next sentence with violation defendants' constitutional a limitation the rule: rights rejected. If the and must be circum- the Where conviction rests circum- require evidence rule is used to stantial evidence, the circum- stantial facts and standard, Dulany more evidence than the guilt stances to establish must be consis- quantum of we must consider what added other, tent with each consistent with the convincing power and is contem- defendant, guilt of and inconsistent plated theory to “a overcome reasonable theory with reasonable of his inno- innocence,” how this differs the Du- cases, the cence. In such evidence need lany appellate standard for review and guilt, absolutely be conclusive of doubt,” phrase “beyond a reasonable nor must the evidence demonstrate the whether the circumstantial evidence rule impossibility innocence. applied consistently fairly by can E.g., Livingston, v. 801 State S.W.2d judges juries passing upon a diverse added). 1990) (emphasis 347 banc spectrum wide of facts and circumstances. To scrutiny Dulany withstand under the hurdles, overcoming these we must Even standard, i.e., minimum, process the due a ask there is to ourselves whether need supported by enough conviction must be hold evidence cases to a circumstantial taking juror, evidence that a reasonable all higher standard. light evidence in the most to favorable to perpetuate No reason remains State, beyond would be convinced reason- Any rule. distrust of cir- different societal able doubt. Under the circumstantial evi- long evidence has been aban- rule, cumstantial inquiry dence turn would longer doned. We no need to hold circum- whether theory there exists a reasonable higher stantial evidence cases standard is innocence that consistent all than If a direct evidence cases. theory likely evidence. The need not sobe doubt, so no convinced person that could discount it. long point, At as the meets the minimal the circumstantial evidence process, provides guidance appellate required by due rule no more and a re- standard court, simply we be- viewing juror, simply or de- need disturb result must depended wholly, mostly, case theory presented cide cause the whether rea- upon likely partially proof. sonable. as to a theo- circumstantial Confusion how ry has to be before it “reasonable” adds urges reject rule The State us regarding to the overall confusion rule. overwhelming “the majority” because sense, fact, jurisdictions already

In a is whether the done so. In issue Du- have jurisdictions lany many standard and the circumstantial evi- have ceased follow rule, require quantum including dence rule a different federal courts. Of course, If do evidence to a conviction. we not decide our cases based upon lead identical two rules results all which rule wins favor most cases, is no need to the circum- That courts have there retain states. other reached stantial evidence rule since it could same conclusion reinforces our decision but brief, (1906). pointed 1. As out the State in its See, 199 Mo. S.W. 11 other 98 Francis, e.g., examples abound. State v.

407 problems pointed require say does not Suffice it to also out a number that it. gave analytical we are not the first court to reach the construct rise to. issue, reject Texas, the first to appellate place nor are we the rule led courts to reasoning rule. Those interested of a posture themselves “in the ‘thirteenth employed by profit- other courts find Also, juror’.” the rule had Id. at 159. able an recent deci- examination two appellate served as a source of confusion Ohio, sions—one from the other from Tex- courts as to should be con- what evidence Jenks, as. Oh.St.3d rule, light applying sidered in what (1991); State, N.E.2d Geesa v. in, and evidence should be viewed what (Tex.Crim.App.1991). S.W.2d 154 given result should case. Id. at reject- Consequently, 160. the Texas court Jenks, Supreme reject- the Ohio Court rule, many noting juris- ed the other ed the rule as an circumstantial evidence dictions had done the same. Id. at n. juries appellate instruction to as an sufficiency standard of of the evidence. Jenks, so, doing 574 N.E.2d 492. Before argues, recognize, The State many court the law of states reviewed Missouri’s circumstantial evidence rule is and the federal courts. Id. at 498-502. causing many problems of the same previous The court then overruled decisions experienced. might Texas courts We question upheld that had examined the and try problems by chosen to these solve the use of a circumstantial evidence in- redefining phrase theory “reasonable aside, struction. Id. at 503. Almost as an way of innocence” in such a as to make it the court disposed then of the rule as a clear that the circumstantial evidence rule gauge sufficiency of the evidence. Id. equivalent Dulany to the rule. Such a conclusion, In reaching its Ohio court disposed redefinition would of the have “[cjircumstantial noted first that evidence remnants of our distrust circumstantial inherently and direct possess evidence might evidence and aided in eliminat- Hence, probative same value.... canwe However, ing confusion. maintenance of a discern no reason to require- continue the test, designed pro- different even one ment that circumstantial evidence must be results, entirely duce identical never could any irreconcilable with theory reasonable surrounding end the confusion the rule. of an sup- accused’s innocence in order to Thus, unnecessarily rather an than suffer port finding guilt.” Thus, Id. at 502. upon restrictive standard an outdat- based view, in the court’s the instruction to the ed view of circumstantial evidence or invite

jury longer was no warranted. “Proceed- by adopting further confusion error ing proper to consider ap- standard of yet another version of circumstantial pellate review, where evidence is either rule, reject evidence the circumstantial we direct, circumstantial or we conclude that reviewing evidence rule as standard for inquiry appeal relevant is whether sufficiency of the evidence. any reasonable trier fact could have found guilty beyond the defendant a rea- The also asks us to end the sonable doubt.” at 503. Id. practice giving jury portion to the of the circumstantial evidence instruction import

Of similar is the Texas Court of appellate that mirrors the circumstantial Appeals Geesa, Criminal decision in evidence rule. Because we conclude that Texas, S.W.2d 154. In the circumstantial the circumstantial evidence rule is confus evidence had already instruction been re- judges State, lawyers, who make a jected in Hankins v. 646 S.W.2d 191 shoveling career out of the smoke of Thus, Geesa, ab (Tex.Crim.App.1983). ideas, ignore stract the fact that Texas court determine cannot had to whether the confuse, mislead, “reasonable-hypothesis-of-innocence the rule has to often analyt- lay jurors. Everything ical construct” we have said con validity retained as a cerning Noting appellate standard of review. the theo- circumstantial evi retical disappeared applies equal basis for the rule dence with rule with force to the instruction, the demise of language jury same court found in the instruc- tion, repeated honed answered the bell or knocks on MAI-CR3d 310.02.2 We have legal our instruction the front door. reasonable doubt analysis brought on decades of defen- Upon investigation, further Officer Scott coming every point dants’ attacks standing open found the door and the back compass. believe the reasonable We eye latched. The screen door shut but not fully accurately doubt instruction in- arrangement normally and hook used to non-persua- structs the the risk of latch the screen door had been broken loose sion. The circumstantial instruc- lying and was on the floor. Officer Scott longer purpose no tion serves the same stepped through the back door and into the did when we reaffirmed its use State v. short, hallway kitchen. In the lead- narrow Lasley, 583 S.W.2d banc bedroom, ing from the kitchen to the front 1979) (explaining abrogation of the Officer Scott found Ms. Bradford’s nude proper only jurisdictions rule was body. defining had an instruction ensuing part As a homicide investi- doubt). paragraph The second of MAI- gation, police photographs took longer given. 310.02 shall no CR3d fingerprints and searched for scene might requiring less The rule be seen as body other evidence. Ms. Bradford’s than, the same amount of evi- morgue removed to the for the as, dence or more evidence than the Dula- conducting autopsy. police an seized ny standard. No conviction can be af- attempt numerous items of evidence Dulany firmed on less evidence than re- killed Ms. Bradford. to determine who had quires. stating A rule the same different from the scene evidence was removed confusing standard is and redundant. testing. for further examination and previous justifications requiring more Many photographs admitted were evidence have been abandoned. Under showing into evidence for the interpretation quantum of the of evidence house, layout of the the scene of the required by the circumstantial evidence crime, position body. of the The and rule, longer the rule is no valid. It should photos also revealed the amount and loca- be, is, rejected. and spattered and smeared on the tion blood

Having rejected could the circumstantial evi- walls and floors which rule, dence draw inferences as to nature of we must now determine wheth- photos attack. The of the bedroom show adequate er the state’s case is under the bedspread, on the sheets and A bloodstains Dulany standard. brief narration of the puddle on the floor next to the of blood relevant evidence is in order.

bed, shoeprints. bloody and a few addi- B. The Evidence at Trial pictures shoeprints, tion to the show a bloody print many made foot and bare place City in The crime took of St. away drops of blood on the floor a trail evening July Louis. The Cora from the and the hall. Also bed toward her Bradford’s niece became worried when pictures pieces in the are a few visible repeated telephone aunt failed to answer floor, newspaper some scattered about police calls. The niece called the and asked spots have of blood on them. of which Bradford, elderly them to check on Ms. hallway alone. When photos woman who lived Officer The show Ms. investigate, body Scott arrived to he found the as it was found Bradford’s down, police pointed front door of the house No one head towards locked. —face 2. The full is as You should not find the defendant instruction follows: proved unless the facts and circumstances are proof evidence of facts Circumstantial is rise give guilt or circumstances that with each other and the to reasonable consistent defendant, inference facts of other that tend to show the reason- and inconsistent guilt or innocence of the Circum- defendant. theory able of his innocence. by you stantial evidence should be considered paragraph second about which the State It is the together with all the other complains. arriving your case in at verdict. kitchen, drying, they temperature the effects of the bedroom and feet towards the angle laying at an so that it extended detected and classified even after could be the other. body. from one side the hall to long a month outside of the as Anyone traveling the hall from the down Thus, enzymes likely to were most kitchen to the bedroom would forced to on the items taken discernible blood step body. pictures over the The show enzymes from the house. Each of the five legs streaks of blood on Ms. Bradford’s types. possible had three Ms. Owens tested pool her face and feet and of blood under example, enzyme abbreviated ESD For pictures chest. The also reveal a number one, two-one, type type type could be drops Ms. of blood on the floor around Any particular person’s blood would two. body. pictures show two Bradford’s Other Thus, types. one of these Ms. small areas of blood on the walls above comparison enzymes points served as hall, sides of the Bradford’s feet both sample directly between the blood taken mostly spots in these areas is blood body from Ms. Bradford’s blood though areas drips, there are some found on evidence seized from the house. that look smeared. percent Ms. Owens testified that fourteen pictures population of the kitchen show a table of the black St. Louis has it, including a with a number of items on types enzymes same for these five as Ms. wallet, like it has stains which looks Bradford did. Pictures of the more on it. floor reveal addition, some of Ms. Owens tested bloody pieces newspaper and a few shoe- pieces of to determine wheth- prints, including one on the sill of the back them, they er had traces of blood on wheth- door. human, er the and whether the blood was autopsy showed that Ms. Bradford enzymes matched Ms. Bradford’s. Not all died from a wound to the left side of her had marks or stains of the evidence seized chest that severed her aorta and her tra- important piece of evi- to be tested. Each chea. The medical examiner concluded dence discussed turn. will be

that the wounds were consistent with stab large knife in police found a kitchen sharp probably object, wounds from a most backyard of the house. some weeds a knife with a blade more than four inches The size of the knife was consistent with long. All of the wounds on the left were being weapon. murder The knife was body, appearing side of the one on the left fingerprints, no identifi- examined for arm. He characterized the wound to the Although prints present. there able were i.e., wound;” arm as a “defensive one suf- knife, Ms. stains on the were no visible attempt in fered to ward off a blow. a scraped the blade and handle with Owens opinion The medical examiner was of the paper and to obtain a piece of test was able twenty- that Ms. Bradford died seven to sample. sample proved The very small body four hours her found. He before was tested to too small be blood but was that, explained range his while this was human blood or it was determine whether approximation, best the actual time of cutting meat animal such as death could extend out of this seventeen poultry. range. samples Blood taken hour were compari- body from the for the pieces of the police seized some stains on seized son with blood The three newspaper from the house. from the scene. newsprint admitted into evidence pieces of partial footprint. One had at least a each samples The blood were delivered to the complete print made paper had a piece of Margaret crime lab. Criminalist Owens pieces of other two by a foot. The respect bare “type” tested the blood to it with them, shoeprints Crimi- paper had on which approximately en- five of the one hundred came from Harold Messier testified zymes present in human Because nalist blood. no evidence There was enzymes these more resistant to two sets of shoes.3 five were pieces pattern Both of the shoeprints honeycomb from a Reebok shoe. 3. Some of the were of a prints compared Mr. She further testified that she could wallet. as how definitely on her visual examina- prints say, Ms. tested the based Grim’s shoes. Owens tion, in on the insert. they were made that there was blood and determined that However, blood, blood, fingerprint human would been that the blood was enzyme destroyed if tests had conducted to types that all matched been five conclusively print enzyme types Ms. Bradford’s blood. determine whether enzymes blood and whether was important piece most present that matched Ms. Bradford’s were table. the wallet found on kitchen was destroy finger- than blood. Rather positively Ms. Bradford’s niece could preserved print using print, Ms. Owens aunt’s, identify the wallet her but she as glue” “super process. a picture identified a inside wallet husband, a finger- A Police being who had been St. Louis officer her aunt’s expert print from the FBI both testified thirty-eight years dead for at the time conclusively fingerprint shut matched the murder. The wallet could held and, right FBI strap snap a of Mr. thumb.4 The by a short fastened with Grim’s fingerprint it is opened, paper specialist had a for mon- also testified that when section place coins, snapped impossible fingerprint to leave a dried ey; a for which also However, shut; con- there no evidence pictures and a section for blood. was photos. length of time it takes blood to plastic tained insert to hold the about amounts, such dry, had a dark on the whether small as was wallet few smears amounts, outside, wallet, larger each or in such as and there were stains around on the found in the bedroom and the hall- snaps parts that held the various of were Kroeck, body. way, under the Officer the wallet shut. Ms. Owens tested arrive at the flap coin and first evidence technician to stain on the wallet scene, dry blood, testify that found it that it human did the blood was that was was there, blood, got 11:34 enzymes he but that was at and that four of the five when body test about an hour after the p.m., matched those of Ms. Bradford. The inconclusive; enzyme for the fifth discovered. type enzyme did not reveal what was. Following arguments based on this Owens,

According percent to Ms. seventeen six deliberated about population shares black St. Louis verdict on the hours and returned enzyme types. these four reported burglary they had count but partial finger- charges. other Inside the wallet not reached verdicts instruction,5 receiving “hammer” plastic directly oppo- insert After left on the further they hus- went back to deliberate picture site the Ms. Bradford’s late A finger- two counts. little more than five Ms. Owens testified that the other band. later, guilty they returned verdicts print appeared to be in blood that looked hours criminal action the the on the on the murder and armed same as rest print every to paper part honeycomb You make reasonable effort of had at least of a should verdict, that reach a as it desirable there piece paper in on it. The of found the kitchen you every of a verdict case. Each should shoeprint pattern. in also a with a waffle had jurors respect opinions your of fellow as the yours, you respect in a fingerprints them and experts no two would have 4. Both testified that understanding spirit fingerprints of endeav- more tolerance are alike and that when jury bring the similarity or to the deliberations of whole eight points expert an than of agreement upon Do to an a verdict. not properly prints the conclude that the are from change your opinion if the person. afraid to discus- request prosecutor, the the same At of persuades you you But a police many sion that should. St. the Louis officer counted as agree juror vio- similarity should not to a verdict that points 16. of as he could and found Court, nor find as points similarity. lates the instructions the specialist The FBI found 25 his a fact under the evidence and that which instruction, beyond a rea- on the current conscience he does believe 5. based then 312.10, to be version read follows: sonable doubt true. MAI-CR3d First, found charges.6 jury wheth- the could have that We must now determine guilty principal. as a Essen Mr. Grim was supports er the evidence the verdicts. jury tially, required instruction to 1) Bradford Mr. Grim Ms. to find stabbed Sufficiency of the to C. Evidence 2) purpose it was his to cause death and Degree Prove Murder Second injury The testi physical serious or death. considering the evi whether directly sup mony the medical examiner jury’s support dence is sufficient ported conclusion that someone stabbed verdict, must look to we the elements to death. The second ele Ms. Bradford consider Under crime and each turn. supported the crime is because the ment of standard, required to Dulany we are sup attack evidence of the nature of the light favor take the evidence most ports conclusion attacker in grant and to State all able to the State phys cause Ms. serious tended to Bradford inferences from the evidence. reasonable person stabbing elderly a an injury; ical inferences, disregard contrary unless We sharp object four woman times with a they a exten logical are such natural and scarcely anything could intend less. The juror sion of the evidence a reasonable remaining there issue is whether is suffi disregard would be unable to Tak them. cient evidence a conclusion that light, the evidence consider we it was Mr. Grim who stabbed Ms. Bradford. juror whether a find each reasonable could thumbprint regarding The evidence beyond of the elements a doubt. reasonable provides support on for conclud- the wallet ing Mr. Grim was the one who stabbed case, In this we believe a reasonable fingerprints Bradford. are Ms. Because juror beyond could find doubt experts unique, possible it is for to com- degree Mr. Grim was of second object pare print found latent on murder. The State chose to submit prints identity file and establish charge degree of second in the murder person print. who left the latent disjunctive, permitting jury convict if case, experts thorough were it found that Mr. Grim aided and encour- explanation fingerprints their of how aged person committing another found on the worked how murder or if it found that Mr. com- Grim matched the of Mr. Grim. wallet thumb mitted the murder himself.7 the sake For clarity, will disjunc- presence discuss fingerprint prove the two A can also at separately. place tive theories particular prints because are left First, 28, 1988, Actually, jury 6. July this was the second consider that on or about charges against Louis, Missouri, these Mr. first Grim. The City of St. State of the defen- eight spread deliberated for about hours over person dant or another caused death of days concluding they two before could her, by stabbing Bradford Cora reach a verdict. After a declared mistrial was Second, that it was the defendant’s or an- hung jury, because of the under trial now person’s physi- purpose to cause serious other newly jury. review was conducted with a chosen injury to or to cause death of Cora cal Bradford, Actually, argued the State submitted first you the offense then are instructed that well, degree murder as but the found Mr. occurred, degree murder the second guilty of Grim not not that crime. elected The State you believe and if further find and from the proceed felony-murder theory degree doubt submitted a second murder instruction that, Third, part, promoting in relevant read as that with the follows: furthering responsible of that murder person commission A conduct his own responsible degree, and he is also in the second the defendant acted for the conduct of person committing encouraged together another in if an offense he with or another aided or offense, purpose acts with committing with the him common person committing in that offense, if, purpose that or for the you will find the under then defendant offense, committing that he or encour- aids degree. Count I of murder in the second ages person committing the other it. I, you As if to Count find and from the believe evidence a reasonable doubt: blood,

through physical people logi- source of contact between other reasonable things. adequate If there is and sound inference from the evidence cal person object of where the was when the flap that the on the coin was blood print, print left the is evidence that the Ms. Bradford’s. The conclusion wallet was person place. same was The wallet thumbprint in Ms. Brad- that the was made was found inside Ms. Bradford’s house fol- ford’s from this conclusion blood follows lowing her picture murder contained a testimony fin- because Ms. Owens’ long of her dead husband. Prom these gerprint as the looked same blood jury facts the could conclude that the wal- supports the rest of the the conclu- wallet murder, let was in the house before the same; i.e., sion that it was the it was blood murder, during the and after the murder and it was Ms. Bradford’s blood. addi- police until the took it to the lab. This tion, directly Ms. Owens testified based conclusion is all the more reasonable be- upon her visual examination that there was overwhelmingly improbable cause it is that Though testimony on the insert. this blood anyone breaking into Ms. Bradford’s home might weight not have the chemical bring along containing would wallet blood, performed tests on the other on re- picture of her late husband and then leave view we consider the evidence favorable police it behind for the to find. This con- Thus, print the State to be true. supports clusion in turn the conclusion that made in Ms. Bradford’s blood. Mr. Grim was inside the house he left when Suppose police caught had Mr. print. Grim the house minutes after the mur- itself, fingerprint, by normally proves A testimony police der. officers that identity presence. little more than Mr. had on his hands would Grim blood However, in some cases circumstances showing for the admissible surrounding print peculiar or the location Mr. Grim committed the murder. The fact or fingerprint provide nature of the addi- that there was blood on Mr. Grim’s thumb how, when, tional why or prove that Mr. commit- would tend Grim person object. example, touched the For ted the murder. Other inferences would be Boyington, 831 S.W.2d 642 possible; having on his thumb would blood App.1992), bloody palmprint was found trying consistent to assist Ms. also be with on the inside of a car trunk that contained trying to determine whether Bradford corpse. a bullet-riddled This sort of loca- However, she was dead. it is left to the print tion of a tends to show that jury to resolve which is true. person making print was involved the murder print case, both because the was in testimony there is no direct this print blood and because the was inside the his that Mr. Grim had the victim’s blood on body. trunk with the However, hands. there is evidence from jury Mr. which the could conclude that case, jury In this could conclude that standing only a few feet from Grim print was made in Ms. Bradford’s body print the dead he left a matter, blood. As a preliminary course, we are not de- victim’s blood. Of could conclude that the blood on the wallet ciding admissibility of evidence. was Ms. Bradford’s. Ms. Bradford was Rather, question are faced stabbed to death and found face down in a thumbprint enough whether pool of blood. There was blood on the that Mr. the conclusion Grim floor in the bedroom and some blood on the Ms. Bradford. That the stabbed body. walls near her Given the nature of murder, inferences. supports in blood a number of could conclude that all Mr. One reasonable inference is that Grim surrounding body the blood belonged Further, knife got to Ms. Bradford. blood on his thumb as he held the laboratory tests in the chest and indicated that the blood on the coin stabbed Ms. Bradford flap of the wallet matched arm. Another inference is that Mr. Grim Ms. Bradford’s blood, murder, at least as to the enzymes four came into the house after the were dry, testable on the wallet. some Absent before the blood was touched blood, and, thus, support wet and then touched the inside of ford was sufficient to However, theory wallet. we are bound to the conviction under the first consider the inferences favorable to the degree second murder. contrary State unless the inference such upon theory The second was based give it would necessarily rise to a liability aiding Mr. Grim’s and encour juror’s reasonable doubt aging participating in the murder. Es mind. Dulany, See 1) sentially, had to find someone thumbprint Nor should we consider this Bradford, 2) person else stabbed Ms. in isolation from the other circumstances. phys acted the intent to cause serious blood, pools person To reach 3) injury, ical and with the of fur coming through the back door would have murder, thering the commission of the Mr. step body over the and walk into the together Grim acted with or aided en bedroom, or would have to reach under Ms. couraged person. the other The first two Bradford’s head or chest. Even blood adequately supported by elements are on the floor and walls is confined to areas evidence; by Ms. Bradford was stabbed immediately body around the and is in rela- someone, and whoever did it intended seri tively Further, small amounts. the testi- physical injury. ous The third element was mony fingerprint that a cannot be made in supported by the evidence that the thumb limits, extent, dried blood to a certain print inwas Ms. Bradford’s blood. One during time might which Mr. Grim piece inference from this reasonable of evi wandered print. into the house and left his actually dence was that Mr. Grim stabbed These persuasive circumstances reduce the Ms. Bradford. Another reasonable infer argument force of the that Mr. Grim came helped person ence is that he that had got in later and blood on his thumb in some the knife. The same “innocent” inferences way by other participating than in the kill- respect theory described with to the first ing. Further, his was left inside a are, again, merely are relevant here but wallet that was found If closed. he came possible necessary inferences and not ones. later, along Mr. Grim chose to thumb juror A could have reasonable concluded through wallet, Ms. Bradford’s close the beyond a reasonable doubt that Mr. Grim

wallet, lay table, it on the and leave with- degree committed the crime of second mur telling anyone out about the crime. While der, through by either his own actions or permissible inference, this is a question assisting another in the crime. of which version of actually hap- the facts pened precisely the sort of issue that line of the bottom dissent’s reason- should be left to a to decide. ing is that the inference to be drawn present the evidence that Mr. Grim was bloody thumbprint inside Ms. Brad- before and at the time the murder was gives ford’s wallet rise to a reasonable equal validity committed is of in- with the inference that Mr. Grim was involved the ference that sometime after the murder murder. There are potential other infer- dried, but before the defendant ences, they are not so believable and backyard, wandered into Ms. Bradford’s inescapable they convince us that door, open saw the entered and was con- give would rise to a reasonable doubt in the scene, fronted the murder in some man- mind juror. The surround- thumb, acquired opened ner blood on his circumstances further reduce the be- thumbprint, billfold and made then lievability validity and the of the “inno- closed the billfold and left. We believe cent” inferences. If jurors we voted as there are two fallacies in the dissent’s ra- judges, might rather than well vote not First, charge, on this tionale. these two inferences are not but our role is fixed valid, equally being unique the rule from the latter so Dulany. Wé decline to implausible; and, force into posture ourselves of a thir- and unusual as to be juror. second, teenth ig- We hold that the we think that the dissent has this case was requirement sufficient to the con- nored the “the ac- Court clusion that Mr. Grim stabbed Ms. Brad- cept as true all the evidence favorable ] state, situation, including the all inferences such a this Court held that the favorable drawn the Dulany, supported jury’s evidence....” the verdict. evidence 781 S.W.2d at 55. to the Even closer case at bar State v. up appellate If an court sets itself to Gales, (Mo.App.1974). In acceptable two or in- select between more Gales, elderly woman who lived alone in ferences, it ceases to function as a court city the Louis was found murdered in St. rather juror, actually and functions as a fingerprint her home. The defendant’s “super juror” powers. veto It is not house, jewelry the was found on a box in the function of the to decide court the and the the defen- evidence established that facts; disputed it is rather the court’s func- property in dant had some of the victim’s in jury, finding tion to assure that the the possession shortly body his before her was facts, specu- does do so based sheer print was not discovered. The defendant’s bloody lation. The the thumbprint de- blood, print probative so the was less adequate fendant is and sufficient evidence the issue of involvement in the murder.8 presence defendant’s Ms. Brad- Although police house locked the found the ford’s house at the time her murder. up open break and had to a back door to single physical Given that fact and the evi- body, and enter the house discover the case, dence in this it is reasonable for a jury in still had to find that Gales juror beyond conclude present during the defendant had been doubt that the defendant was Gales, posses- murder. In defendant’s degree second murder. property sion of some of the victim’s was upon While have based decision our probative issue of the de- on the whether Dulany unique law as stated fendant had inside the house but did been case, facts of this our decision not entire- in the not bear on the issue when he’was ly unprecedented; two cases decided under equivalent essentially house. On evidence the circumstantial evidence rule are sub- case, i.e., present finger- to that in Maxie, stantially In similar. found, print, sup- and the evidence (Mo.1974), S.W.2d a division that, ported finding occurred the death Court faced a case with facts similar robbery. The evi- connection with upheld sufficiency of the evidence to support dence in this case was sufficient support degree Maxie, In second murder. degree Mr. for Grim’s conviction second thumbprint was defendant’s found on a murder. top apartment cardboard box victim’s papers amid various and debris scattered Sufficiency D. of the Evidence to around the scene. While the defendant in Prove Armed Criminal Action blood, print

Maxie did not leave his he case, charge of armed he testified that had never seen the outside criminal was submitted reference action apartment building, the inside of the for As we to the instruction murder. have victim, scene, apartment, the the crime or just explained, adequate the evidence was top. explanation As the box degree the conviction for second top, argued on the box the defendant liability. theory murder either under picked piece might up he of card- For the for armed criminal ac conviction trash, it in put board and from which sup tion had to proper, to be victim her husband could have port finding the additional murder picked up brought it into their home. through “by or with or committed essentially pos- left with two dangerous happened, use or assistance or aid of a sible conclusions as to what believability in this case the trial became contest. instrument.”9 II, death; thus, you 8. The if believe from victim not stabbed As to Count find and print. there was not blood in which to make a doubt: the evidence First, the offense that defendant committed degree, as part the second submitted of murder in 9. The relevant actual instruction was No. follows: Instruction murder, during supported the Ms. Bradford in the house and the conclusion that sharp object, probably evidence that the latch was broken was stabbed with a The fact that Mr. Grim’s sup- a knife. the screen door. That evidence is sufficient thumbprint supports is on the wallet in the port the additional element contained intent to conclusion that Mr. Grim had the crime of armed criminal action. it steal when he entered the house because supports the inference that he looked for Sufficiency E. of the Evidence to in things of value while the house. Degree Burglary Prove First degree burglary third element of first noted, fingerprint usually proves As because, supported explained also presence person little more than of a in a regards charge, murder the fact that to the Sometimes, particular place. however, sup- in is Ms. Bradford’s blood presence particular place in a is a violation ports partici- the conclusion that Mr. Grim of the criminal code. There are a number pated in the murder. If Mr. Grim fingerprint of cases supplemented where a being the house Ms. Bradford while with little else has been held sufficient to stabbed, then Mr. in the house Grim was focusing a conviction for a crime while Ms. Bradford was the house. The primarily presence of the defendant degree burglary conviction first suf- place. See, e.g., forbidden v. State ficiently supported that not disturb we will Schleicher, (Mo.1969)(bur- 442 S.W.2d 19 appellate it on review. Because Mr. Grim’s glary); Anderson, State v. 671 S.W.2d 383 adequately supported by convictions were (Mo.App.1984)(burglary); State Sand- deny point his first ers, 619 344 (Mo.App.1981)(burgla- S.W.2d turn to the second. ry); Clemmons, State v. 579 S.W.2d 682 (Mo.App.1979)(tampering); State v. Par- II. ADMISSIBILITY OF THE KNIFE ker, 535 (Mo.App.1976)(burgla- S.W.2d 126 point appeal Mr. Grim’s second ry)- admission, has to do with the over his ob charge As to the degree of first jection, of the knife found in Ms. Brad burglary, had beyond to find backyard. ford’s Mr. Grim claims there 1) reasonable doubt that Mr. Grim know was no evidence to connect the knife to him ingly unlawfully entered Ms. Bradford’s and, therefore, charged or to the crime house, 2) that he did purpose so for the prejudicial was irrelevant and to him. It is stealing, 3) that while Mr. Grim was in mentioning passing knife worth house, Ms. Bradford was there too and charged was relevant to the crimes in that element, was still alive.10 The first part body unlaw it formed a of the crime. entry, supported ful by pro the evidence knife Insofar as the was not tied to Mr. thumbprint vided any way, that Mr. Grim was Grim it tends to weaken the Second, person part defendant or another 10. The relevant of the actual instruction through committed that offense or with or was as follows: dangerous the use or assistance or aid of a III, you As to Count if find and believe from instrument, beyond the evidence a reasonable doubt: you then are instructed that the offense of First, 28, 1988, July that on or about in the. armed criminal action in connection with the Louis, Missouri, City of St. the defen- degree offense of murder in the second knowingly unlawfully dant entered in an in- occurred, you and if further find and believe habitable located structure at 3133 Rolla Place from the evidence a reasonable doubt: Bradford, . possessed by Cora Third, promoting that with the Second, pur- that defendant did so for the furthering the commission of that armed pose committing stealing the crime of criminal action in connection with the offense therein, and degree, of murder in the second the defendant Third, that while the defendant was in the together encouraged acted with or aided or pres- inhabitable offense, structure Cora Bradford was person committing another ent in the you structure and Cora Bradford was guilty then will find the defendant under crime, participant not a Count II of armed criminal action in connection you with the offense of murder then in the second de- will find the defendant under gree. burglary degree. Count II of in the first sent to the tently left out of the exhibits against State’s case Mr. Grim rather than Thus, not discovered un- jury. The omission was strengthen it. there would be little when jury’s deliberations if til well into the any prejudice if to Mr. Grim even questions. jury asked two point knife is denied. were irrelevant. jury’s questions were “Was III. CLAIM DEPRIVAL OF BATSON found inside thumbprint of Robert Grim point of error re Mr. Grim’s third Bradford’s blood?” and the wallet Cora way

lates to the the trial court dealt with on the outside of the wallet “Was the blood attorney in Mr. Grim’s his Batson claim. responded The court Cora Bradford’s?” prosecu that the dicated that he believed jury guided must the evi- that the be peremptory tion had exercised its strikes However, it it. it was at dence as recalled contrary discriminatory manner to the prosecutor time that the discovered teachings Kentucky, 476 U.S. Batson v. jury. the 60 had not been sent to Exhibit (1986). L.Ed.2d 69 106 S.Ct. situation, pro- court Faced with this the if the motion judge The trial indicated that by sending the exhibit posed remedy to it made, jury and quash were he would jury. objected Mr. counsel to the Grim’s Apparently the trial start from scratch. prejudicial sending the exhibit effect attorney operat question, court and Mr. Grim’s were immediately after so assumption proper sending under the another delayed court the exhibit quash attorney is to still twenty relief for a violation Batson minutes. Mr. Grim’s contrary, proper irregular procedure, reme but jury. objected To the to this appeal,. as- dy discriminatory peremptory for use of On Mr. Grim was overruled. reversing quash permit this error as a reason for strikes is to the strikes serts him new granting those of the venire stricken for his convictions members if trial. discriminatory jury reasons to sit on the they otherwise Because all con would. though irregularity, hold that the We proper cerned misunderstood the relief un avoided, not guarded against and der Mr. attor Batson because Grim’s sufficiently to Mr. Grim that it prejudicial ney thought jury better for Mr. the other evi- reversal. Given warrants jury might Grim than the have been including testi- jury, dence before selected, he panel chosen if a new were enzymes, and mony regarding the blood ar

withdrew his motion. Mr. Grim now counsel, any given arguments made gues court was that this action of the trial given weight jury may have additional improper. irregularity was because of the the exhibit likely to made a difference their have point properly pre- has not This been another one deliberated verdicts. served, however. Mr. Grim was entitled to coming back and one-half hours before prosecution challenge the strikes of the but and then an burglary conviction with attorney not do so. Had Mr. Grim’s did returning the before additional five hours objected to the asked for relief and then and armed crimi- guilty verdicts for murder dealing trial court’s means of impossible to tell nal action. While point adequately problem, the would given exactly weight the exhibit was what preserved for our review. irregular pre- exactly effect the what had, remain uncon- sentation IV. IMPROPER PRESENTATION Mr. Grim was prejudice vinced that the EXHIBIT 60 OF STATE’S of the convic- sufficient to warrant reversal point his fourth of er Finally, as tions. ror, trial court Mr. Grim claims that the judgment is affirmed. committed an error when it sent the 60, a chart of the blood State’s Exhibit HOLSTEIN, BENTON, COVINGTON, enzyme types found on different items concur; LIMBAUGH, JJ., PRICE and showing Ms. Bradford’s house and ROBERTSON, C.J., separate enzyme types. dissents The chart had been opinion was inadver- filed. admitted into majori- Justice, I ROBERTSON, dissenting. Respectfully, believe viction. Chief duty today. ty fails in that of the Four- The Due Process Clause protections embodied United States constitutional teenth Amendment presumption innocence and prohibits the conviction of Constitution “except upon proof beyond requirement defendant fairly to for mor- simply a conclusion are reserved sufficient doubt blameless, has been every ally they element of crime nor reserved are Rather, “[ujnder “easy” a reasonable doubt.” established use cases. 314-15, Virginia, 443 U.S. thief system justice, Jackson of criminal even a our 2781, 2786-87, 61 L.Ed.2d complain 99 S.Ct. he has been entitled (1979). respect to [Emphasis With unconstitutionally imprisoned convictedand added.] majority, against 323-24, case Rob- State’s burglar.” Id. 443 U.S. at aas far ert Grim falls short of this standard. at S.Ct. 2791. convictions, affirming majori- By these pre- holds that the evidence majority consequences ty rescues the State from the sup- sufficient to sented this case was having charged it could of crimes murder, degree for second port convictions is not role of prove. I submit that such degree action first bur- armed criminal therefore, must, respectfully this Court and so, doing In I contend that glary. dissent. probabilities spec- indulges in majority holding doubt the reasonable I do not believe that ulation. Because proof grounded is in the consti- standard of presented provides a sufficient ba- tution, Supreme Court the United States every juror to find sis for reasonable stated: beyond a reason- of these crimes element doubt, is each of the doubt I would reverse of standard able

[U]se indispensable I respect to trial command the convictions entered in the court. community ap- confidence of the respectfully dissent. plications criti- of criminal law. It is Review I. Standard of cal that the moral force of the criminal by proof law not be diluted a of standard addressing of the substance Before people inno- that leaves in doubt whether majority turns its atten- appeal, the Grim’s being cent men are condemned. of The State tion to the standard review. 358, obliges, requested,- majority and the Winship, In re 397 U.S. 90 S.Ct. has 1068, 1072, (1970). the so-called “cir- 25 L.Ed.2d 368 this abandon Court Finding that rule.” cumstantial evidence proof beyond reason- standard this dif- perpetuate remains to reason ‘plays able “[n]o doubt ... a vital role rule,” majority holds that ferent procedure,’ “[w]e

American scheme criminal evi- longer to circumstantial no need hold operates give because it to ‘concrete sub- di- higher standard than dence cases to a presumption stance to the of innocence Op. at Be- convictions, Maj. cases.” 406. against rect evidence unjust ensure evi- I that the circumstantial the risk in a cause believe reduce of factual error higher not a standard proceeding. dence rule is criminal review, subject- instead a means but is Jackson, 443 U.S. at 2787 at S.Ct. evidence cases to circumstantial Winship, at (quoting 397 U.S. 90 S.Ct. cases, respectful- I standard other same 1072). at rejection of majority’s ly dissent from duty court, It is motion the trial on analysis today. defendant, by to determine that discarding the circumstantial met threshold of reasonable doubt has been is rule, that the rule majority asserts allowing go jury. the case to before applied “higher courts Where trial has in that standard” court failed “basic duty evidence because and where circumstantial returned distrust,” distrust,” cir- guilty, unpleasant duty verdict a “societal it is the reviewing is now “outdat- court to the con- cumstantial evidence that reverse 405, 406, Maj.Op. disagree, I charged. step, pro- ed.” at crime This second deducing process unless due cess of the existence of an ele- is also “outdated.” fact, evidentiary unique ment from is employing In one of the earliest cases step evidence. It is circumstantial rule, exactly op this Court stated subjected to the test of reasonable doubt posite “Although of the majority’s claim. by the circumstantial evidence rule. be established circum [a crime] Few, any, proved if cases can be without alone, certainty stantial evidence its must instance, some reliance deduction. For equal to that attained direct evidence culpable that a is often said defendant’s proved beyond it must proved (absent an mental state must be Wheaton, doubt.” State v. 221 S.W. admission) by circumstantial evidence. (Mo.1920). I [Emphasis 28-29 added.] Thus, have determined that courts certain continue to believe that the circumstantial give to an acts rise inference of certain understanding evidence rule is based on an states, mental as a matter of law. that, while circumstantial evidence is not process entirely of deduction cases based inherently probative less than direct evi evidence, however, circumstantial dence, fundamentally it is different than There, much more involved. the State direct evidence. account for Courts must asking jurors to infer judging submissibility this difference in state, culpable mental defendant’s but also of criminal cases. See also v. Las to infer the defendant’s criminal acts that ley, 583 S.W.2d 515-516 banc inference of This underlie the mens rea. 1979). The circumstantial evidence rule is scrutiny to multi-leveled inference demands serving purpose. a viable tool that jury ensure that a reasonable could con- given Direct evidence testimony, is under guilt, the clude the defendant’s based on oath, shown, as to the beyond existence or nonexistence of circumstances a reasonable concerning element the crime which doubt. the witness personal knowledge. claims proof cir- entirely Where State’s the jury’s Confronted with direct the cumstantial, the circumstantial evidence only function weigh is to the witness’ credi- requires only submissibility rules be bility. witness, If jury believes the determined, just not terms whether established; jury element has been if the any juror reasonable could believe the witness, not does believe the the element witnesses, any but also whether State’s Weighing has been established. credi- juror reasonable could draw the inferences bility resolving and competing versions of requires the State order to convict. Not facts society are critical tasks our only juror must reasonable a able Courts, only juries. entrusts especially infer the essential elements from the cir- courts, appellate recognize that these tasks shown, strength cumstances but the of this singularly are within competence inference must be such that a reasonable ever, jury rarely, if this prov- invade juror could be convinced of those elements jury ince to hold a witness’ testimo- beyond Finally, doubt. a reasonable ny “unbelievable” as a matter law. To guilt depends important, most where on the submissible, therefore, process due de- piling upon inference inference—as only mands that direct evidence be such does in this case—the sum inferenc- juror reasonable could believe it. strong enough es must be to convince juror guilt of the defendant’s reasonable evidence, however, With circumstantial beyond doubt. There, asks more jury. from the jury is first short, asked to believe the State’s I read the circumstantial evi- witness, just as with direct evidence. simply dence rule as a means of determin- Then, if jury persuaded when a reasonable doubt exists as truthful, witness is jury is asked to on entirely matter of law cases based infer, facts, from the evidentiary Despite exis- evidence. circumstantial asser- tence some essential element of majority, tions of I believe that this First, unlawfully entered that Grim always interpretation, been pur- with the home of Ms. Bradford role, evidence rule of the circumstantial committing a crime therein and pose of rule continues to this state. Because the prior home sometime inside the ensuring process due value (first degree burglary); her death met, and because standard of Jackson Second, that, killing, majority has not shown that the rule Bradford, present wounding, seriously fails in that task—either Ms. or practice1 of actual stabbed her or aided case or in decades Robert Grim —I stabbing her to death abandoning it.2 While someone else see no reason for murder); (second degree majority carry day on this will point, by my it should be understood col- Third, dangerous or that he did so with leagues appellate the trial and benches (armed criminal ac- deadly weapon today tion). that it is the rule that is abandoned it. duty not the that underlies that a rea- majority holds juror could infer the above based

sonable Sufficiency II. of the Evidence solely thumbprint, on the also that a juror reasonable could be convinced of determining appeal whether a case these facts a reasonable doubt. submissible, (or constitutionally it is majority’s reasoning is as follows: be) should irrelevant that the returned thumbprint in the vic- guilty. a verdict 1. Grim’s Because we cannot Maj.Op. at 412. why tim’s blood. know how or reaches its ver- dict, our review is limited to whether the follows, then, 2. It that Grim stabbed death, State has introduced sufficient evidence for at Maj.Op. the victim to juror stabbing. to have been con- Maj. did the aided whoever guilt beyond vinced of a reasonable doubt. Op. at

Jackson, 443 U.S. at n. at 99 S.Ct. —Therefore, in guilty he is of murder 2789, n. reviewing 13. To ensure that degree and armed criminal the second engage attempts courts do not in futile action. weigh judge credibility, evidence or “the follows, then, that since 3. If Grim weigher factfinder’s role as of the evidence kill, victim, killed, he helped preserved through legal conclusion prior must in the house have been upon judicial that all of review the evidence Maj.Op. her death. at 415. light is to be considered most favor- —Therefore, burglary in guilty he is 319, prosecution.” able to the at Id. 99 degree. the first S.Ct. at 2789. horrendously respect in this With all due standards, case, light majority, of these I in its only evi- difficult believe linking lengthy analysis, dence this case has been dis- Robert Grim to detailed and charged partial by question it is crimes is a tracted whether thumb, thumbprint, matching guilty in this right possible Grim’s to conclude Grim is already possi- lifted from inside a that it is wallet found case. We know single jury’s victim’s house. it. From tells us that. That’s ble—the verdict piece by the majority inquiry holds that a at issuer-one we are bound juror reasonably following: could our oaths to make—is infer the constitution and that, majority agree majority light cryptic 1. of our makes reference to the I with the "inconsistencies," defining jury reasonable doubt "confusion” and "unfairness" instruction standard, by giving to continue have been "caused” the use of the cir- there is no need by appellate paragraph MAI-CR3d 310.02 concern- cumstantial evidence rule courts. second 406, 407, Maj.Op. Maj.Op. at at 408. 407. A review of the cases circumstantial evidence. has, conclude, majority appeals in which this as the Court and the court of But to rule, however, applied use in have evidence rule is of no reveals neither circumstantial and, fact, inconsistency appellate judging submissibility nor of a case on confusion neither baby majority proverbial out with the State nor the has cited to to throw the review is specific examples of either. the bath. reasonably juror whether a could conclude left to determine as to the nature of this by Grim was substance deduction. juror and whether such a could conclude jury Given that the reasonably could in- a reasonable doubt. This is a fer that the blood on the outside of the question determined, of law to be belonged Bradford, wallet to Ms. should we instance, by first the trial court and then allow the to use that inference as a by appellate review court. basis from which to infer that the sub- stance inside the wallet was also her blood? case, In this I majority’s believe that the permissible, first barely. conclusion is As logical “An inference is and reasonable below, discussed the second and third con- conclusion presented by fact not direct products clusions are specula- of mere process logic but which are, therefore, tion and reason, constitutionally in- may trier of fact conclude sufficient a conviction. With exists from the established facts.” Hyde, respect my colleagues, 103, I (Mo.App.1984), would reverse S.W.2d denied, all rt. three convictions. 471 U.S. 105 S.Ct. ce (1985). 85 L.Ed.2d 484 As this Court has said: “bloody” A. The thumbprint An is a conclusion drawn inference There was evidence from which the reason from by proof; facts established could conclude that the substance on the a deduction or conclusion from facts or outside of the wallet was Ms. Bradford’s propositions known to be true.... A Expert blood. testimony established that supposition conjecture is a based on the blood, substance as as human blood and as possibility thing hap- that a could have containing properties chemical found pened. It is an idea or a notion founded in approximately percent seventeen probability thing on the that a population Black Expert St. Louis. testi- occurred, proof but without did mony also established that Ms. Bradford’s occur. blood contained these prop- same chemical [Emphasis quotation added and marks erties. The fact the human whose Draper v. Louisville N.R. & omitted.] blood was on the outside of the wallet and Co., 348 Mo. Ms. Bradford wére both members of a rela- (1941). tively demographic small group, coupled long skeptical This Court has been with the nature and extent of Ms. Brad- depend upon convictions that inferences wounds, provided ford’s a sufficient basis i.e., inferences, drawn from other “infer- from which juror could have Rector, stacking.” ence See State v. 328 inferred that the blood on the outside of 669, 639, (1931); Mo. 40 S.W.2d 643 the wallet came from Ms. Bradford. Knight, (Mo.1927). 296 S.W. 369 However, As to the when a court such a print-bearing substance on reverses conviction, it inside wallet, however, important is to realize that there is ground much of decision is not the so-called go less to on. objec- There was no against stacking” rule “inference tive but rath- blood, evidence that the substance was er that the evidence is not sufficient to blood, or that it was human or that it was support finding guilt beyond reason- “type” same as Ms. Bradford’s able doubt. only blood. The by evidence offered State as to the nature of this substance stacking] rule is essen- [inference criminologist Margaret

was tially Owens’ testi- based on the fact that an inference mony that the substance “looked like” the cannot be based on insufficient evidence. blood on the outside of the wallet. She did It has been said to be not a rule of testify, have, nor could she general it application but a rule of reason “looked like” human blood or governing it proved when the facts “looked like” any specific blood of “type.” implications and their reasonable furnish Rather, jury now this Court —is agreement no basis disagreement or —and dry, was touched

by persons average the blood intelligence as but before blood, and then touched wet probandum some whether the factum has been However, are inside the wallet. established, doubt or where there is some the inferences favor- to consider bound has as the first inference. It been contrary unless the able the State way of said to at most a convenient is it would necessari- inference such that against regarded as guarding what is in a ly give rise to a reasonable doubt reasoning part attenuated on the mind. juror’s See v.] [State thought or re- to be too [(Mo. banc Dulany, 781 S.W.2d or lacking probative mote uncertain or 1989)]. force. I at 412-413. believe that Maj.Op. However, there is in no absolute fact has, statement, mis- this majority brief resting rule law that forbids and confused the word stated law3 one inference on facts determina- whose “possibility.” “inference” the word with tion is the result of other inferences. On Respectfully, “possibility” I do not believe contrary, inferences based on legal any place in a construct founded facts result whose determination is the on reasonable doubt. inferences, long other so as the first discussed, inference, previously An as based on as such evidence inference “conclusion reason from facts drawn proved to be regarded as a and the fact by proof.” Draper, 156 S.W.2d established reached is conclusion not too remote at 630. two “inferences” acknowl- conjectural. edged by majority drawn above are not [Emphasis 31A C.J.S. Evidence added.] In- proof.” from “facts established (1964). See also Berberich’s Wills v. § stead, they underlying are drawn from an Co., Delivery 345 Mo. print in blood”— inference—“that (1939) (same). discussed, was, just product which as Applying reasoning, appears it proven not of facts but of inferences drawn reasonably could conclude that the proven facts. from inferences drawn substance inside the Brad- wallet was Ms. point, “pile,” barely inference At this ford’s blood. The that it Ms. inference strong enough the conclusion Bradford’s blood on the of the wal- outside discussed, just collapses sheer under the sufficiently let is free from doubt weight speculation. of its own inference, secondary i.e., her that it was apparent Thus seems me that what wallet, blood inside the too remote or majority to above “inferenc- refers conjectural. really They are not inferences es” at all. contradictory simply hypotheses— are two B. Grim murdered victim possibilities two of which are consis- —both majority explains this “inference” as tent either of which follows: adequately explains “bloody” thumb- That supports a print. They are what con- Court number of inferences. reasonable One Draper “supposition;” demned in as that got inference is that Mr. Grim blood on is, “conjecture possibility based on that his he thumb as held the knife and thing happened.... could [or] stabbed Ms. Bradford in the chest and thing probability founded that a arm. Another inference Mr. is that Grim may proof have occurred but that without murder, came the house Draper, into after the it occur.” did 156 S.W.2d at 630. 911, Sumowski, (1992); majority it 3. The states that “bound” those 116 L.Ed.2d 812 State v. not, 643, (Mo. 1990). favorable to the This is inferences State. 794 S.W.2d 645 banc See also been, Jackson, 12, never has standard of review. In 443 n. 99 n. U.S. at 319 S.Ct. at 2789 12; Henson, (8th judging submissibility, only the Court United States v. 939 F.2d 584 Cir.1991). suggest Respectfully, "bound" those inferences are reasonable that I that the ma See, conclusions, jority’s and that can be drawn the evidence. while in reason some sense from Davis, 593, able, e.g., they State v. 814 S.W.2d 594 are in no sense drawn from the evi — denied, 1991), U.S.-, banc cert. 112 S.Ct. dence. 422 Next, passing

[Emphasis thought majority I refer- makes added.] that, fingerprint “a ence to the fact since question convictions whether be blood,” cannot this “lim- be made dried supported by supposition longer was no its, extent, the during to a certain time open Carter, for decision. State v. 36 See might which Mr. Grim have wandered into 917, (Mo.1931) (court S.W.2d cannot Maj.Op. at print.” house and left his suspicion conjecture, “resort to and sur- any 413. to introduce The State failed conviction); mise” to affirm State v. Har- long dry evidence of takes to to how blood (1930) dy, 326 Mo. point print. it cannot form (“It province is not the of a to choose testimony dry was ever the blood suspicions, and a between verdict based investigator comes from who did not an upon suspicion permitted will arrive on more than an the scene until hour stand.”); Huff, 317 Mo. after the crime For all we was discovered. (1927) (jury S.W. must not be infer, may reasonably know simply suspi- allowed “choose between got first was still wet when the officer cions”). there; which, told, a time are was seven we majority, attempt to turn its twenty-four Ms. Bradford hours after guilt into a reason- theory I see how lim- hardly was killed. can guilt, upon able relies inference its, extent, during time which totality of the circumstances which the might thumbprint Grim have left the but arrived, police found. When charged. In- not been of the crimes thumbprint the wallet in which Grim’s stead, great deal of time. indicates a plain lying discovered on a view majority on the fact also remarks just wide-open table inside a back door. Maj. Op. that the wallet was found closed. unguarded The door had stood not less majority Evidently, at 413. finds it seven, perhaps many than as twen- incredible, assuming Grim had entered ty-four, outside hours. The of the wallet the house after the murder to steal the was stained we can reasonably with what lying plain contents of a view wallet infer Supra to be the blood. victim’s at outside, “thumb that he would thumbprint 408. Inside of was a the wallet wallet, through Ms. Bradford’s close the formed in the smallest trace of what we wallet, table, lay it on the and leave with- reasonably can infer was also the victim’s telling anyone out the crime.” Id. about Supra blood. at There 408. were two sets Indeed, majority expla- that this asserts shoeprints footprint and one on the “implausible.” Maj.Op. nation at floor, any way none of was linked in which implau- Apparently, majority believes it to Grim. burglar sible that a close a wallet would plausible behind him but that a killer that, The majority explains to reach implausible majori- would. What is is the blood, “pools” coming someone ty’s explanation. along after the murder would have had to “step body over the walk into the totality its resort to the of the sur- bedroom, or would have reach under Ms. rounding circumstances, majority inex- Bradford’s Maj.Op. head or chest.” at 413. that, plicably ignores given the the fact two Why anyone would concerned with shoeprints, sets of know at least one “reach[ing] any pools blood” is person other was in than Grim Ms. Brad- explained by majority. The only death, maybe ford’s house her after amount of blood that we “know” was on possibility two. The Grim came onto Grim’s hand was the amount left behind as the scene after the murder before the thumbprint; a so small amount that its dry strengthened blood was is immeasur- hardly source need have amounted to a ably by affirmatively the State’s evidence “pool.” may picked up That Grim showing that others there. Unfortu- were source, this trace of nately, blood from some other majority part the that ignores wallet, such as the outside is studi- the State’s ease which it cannot reconcile ously ignored by majority. guilt. the with

423 (Mo. Lindsey, 507 State v. 2 banc Ultimately, majority the true S.W.2d the reveals 1974) (first degree af acknowledging murder conviction of its decision. After basis Maxie, accomplice). In explanations for Maxie’s competing there are two firmed that case, based ig- after held that the State’s “bloody” thumbprint, for the the Court evidence, suffi fingerprint was noring provides largely the that on fact the evidence two, coupled electing when with defendant’s for cient no basis between testimony. explained Court its hold as “so The majority dismisses Grim’s innocence that, testimony, stating by offering implausible.” ing, unique and unusual as to be has ruled out Maj.Op. at 413. This statement reasonable alone “defendant fingerprint his proves fallacy posi- possibility ... majority’s that under circumstances other than tion; at presumed, guilt is is innocence [made] Id. at 343. of the homicide.” proven. which must the time in [Emphasis Unlike the defendant added.] majority presumption The has stood the Maxie, however, eliminated Grim long its as the of innocence on head. So explanation “innocent” hypothe- can State articulate reasonable Ms. killed. left after Bradford was guilt, sis of one which is not inconsistent Gales, also cites State v. circumstances, proven majori- majority with ty (Mo.App.1974), is in which the seems to indicate that the case sub- 507 S.W.2d 35 unless, until, single appeals affirmed convic- missible the defendant’s court Maj.Op. at 414. appears beyond felony innocence tion for murder. case, Compared present I the evidence opinion doubt. am of that since inno- There, ordinarily presumed, overwhelming. Gales cence is the State la- producing seen a television and bors under a burden of defendant was Thus, fan, guilt beyond a had been taken from the vic- reasonable doubt. which house, cases, in purely and was arrested with several circumstantial tim’s jewelry per- on his pre- where the does not of the victim’s State’s evidence article’s plausible, Additionally, finger- explanation clude a innocent for son. the defendant’s circumstances, jewelry I prints that a found on the victim’s would hold rea- were majori- sonable doubt exists as a matter of law box. Id. at noted 36-37. As Gales, thus, and, ty, possibility, the case no submissible. there was killing along came after the the defendant present case, In the the State’s evidence print. Maj.Op. his 414. The and left at gives plausible explanations rise to two for found locked victim’s house was shown; the circumstances one morning following burglary and mur- no simply the other innocent. There is Gales, Thus, S.W.2d at 36. der. basis in the evidence choosing one over showed, held that the circumstances court rule, Dulany the other. Not even oft- doubt, finger- beyond a reasonable majority urging cited deference the time prints could have been left at position, to the contemplates State’s that a Id. at 37. the crime was committed. reviewing provide court bound relying by resorting today, the rule cases evidence the State lacks Prior speculation. primarily fingerprint evidence was that place where a fingerprints found in the majority, an almost faced with com under such circum- committed, crime plete absence of seeks they only have could been stances relief, prior apparent cases. With the ma impressed at the time crime was jority remarks its result is “not entire corresponding to those of unprecedented.” Maj.Op. at 414. The ly committed — proof of sufficient thé Maxie, accused — majority first cites identity to sustain a conviction. denied, (Mo.1974), cert. S.W.2d 338 Thomas, State v. 43 L.Ed.2d 402 U.S. 95 S.Ct.

(1975), 1970). holding [Emphasis affirmed a which Court sec added.] rule; there, degree arising Maxie ond murder conviction out is consistent with double-homicide. See also the defendant gruesome eliminated “innocent” 424 Gales

explanation prints. Similarly, for his that Grim was in the house victim’s after consistent with Thomas is that the short her death.4 period of time before the crime was discov- noted, only piece As link- ered, perpetrator left and fact that ing charged to Grim crimes is locked, provided the victim’s house some thumbprint. And, noted, “bloody” as a concluding basis for that the defendant’s fingerprint cannot be left in dried blood.

print during must have been left the crime. Therefore, given evidence, drawing and all why majority

It is unclear to reasonable inferences in favor of the fails case, State, one Thomas apply especially to after can conclude that was in this Grim — the on Maxie Gales citing relying point and victim’s at some in time and house she Thomas. rely after was killed and expressly which before both dried, period proof print may link a State’s fails to Grim’s which have been as long twenty-four tend- with evidence of other circumstances hours. The evidence show, however, beyond doubt does not Grim ar- to exclude a reasonable when innocence, theory provide rived or when Nor Grim’s that he came he left. does along inferring that, after the Ms. Bradford was dead. basis for because he Therefore, I would Thomas that con- was there was he hold she killed must after and, basis, while being trols on that have been there she would reverse. was killed. Worse,

We just don’t know. have no we reasonably basis which to deduce the C. was Grim in the house while answer. alive victim was Again, majority confuses “infer prove degree burglary To first ence,” logically that which is drawn from case, present the State must evidence suffi- that “possibility” with is find, doubt, cient to Again, not inconsistent with evidence. that Grim was inside house Ms. Bradford’s given that conclude that Grim may we Maj. while she was there still alive. in the Ms. mur was house after Bradford’s Op. majority at 414. The sub- affirms the der, contradictory explanations two arise: missibility case on State’s the follow- first, that Grim there she was when ing reasoning: killed, second, along he after came fact is in Ms. Brad- [T]he she killed. This is not the first time supports ford’s blood conclusion and, has such a this Court faced situation participated Mr. Grim If murder. prior today, recognized Mr. Grim was in house Ms. while is when the evidence no more consistent death, being Bradford stabbed to innocence, guilt than it with reason with then Grim Mr. was in the house while law able doubt exists as matter of Ms. Bradford was in the house. State v. go jury. the case Maj. Op. Roberts, Thus, (Mo. banc), 415. majority’s at once the 709 S.W.2d 862 denied, argument 946,107 submitting cert. the murder 479 93 U.S. S.Ct. Prier, charge accepted, burglary charge (1986); State v. L.Ed.2d my view, 1982); State submissible banc S.W.2d fortiori. Black, burglary charge (Mo.App.1980). is not submissible because fact, appeals expressly State’s evidence shows no more than the court of however, crime, presented 4. It charge electing should noted that the evidence instead prove the State was sufficient that Robert burglary degree. charge Grim the first burglary Grim had committed in the second Additionally, charged the State Grim with mur- (cid:127) degree, punishable by up years pris- seven degree der the first criminal ac- armed on. The State's circumstantial evidence would trials, Only after hours of tion. two nineteen doubt, support, beyond a reasonable a reason- instruction, deliberation and "hammer" juror’s "knowingly able belief that Grim en- obtaining guilty ver- was the successful unlawfully knowingly ter[ed] remainfed]” burglary on the dicts armed criminal action unlawfully in Ms. Bradford’s house "for charges and a verdict on the lesser-includ- committing the crime therein.” Sec- degree ed offense of second murder. 569.170, tion RSMo State did not conviction, must decline this incident rize necessary a that this rule is stated it. standard Jackson. sanction the constitutional Gardner, v. State 665, 76 Scott, Mo. S.W. require (“federal App.1987) constitutional (1903). reason establishing guilt beyond a ment of dissent this majority frets in the Black dictates the rule able doubt this and would weighs the evidence the usual precedence take over case [Dula- regret I “super jury.” as a Court sit alleging appeals of review in ny standard ] say. I misunderstands what majority so evidence”). agree. I insufficient jury,” “super but to act as a job is not Our Therefore, I hold that the State’s would jury to the job to abandon is it our neither provides no basis for in this case evidence of the law. guardians as responsibilities our was in Ms. Bradford’s finding that Grim alive, rea- she was house while addressing at- court Every appellate possible, given the It is sonable doubt. submissibility criminal case of a tack on the possi- just It is that he was. deciding wheth- responsibility of bears evidence, that he ble, of the on the basis sufficient evi- presented er the State cannot, constitution- a case was not. Such can find all of dence from which process if the due ally, go to the the basis of the crime on the elements of the constitution are be guaranties of speculation or emo- presented, not the facts meaning. given their historic is not appellate responsibility This tion. anew as weighing the evidence one of III. jury’s making sure that jury, crime; no No one likes an “unsolved” process. due comport with deliberations acquitted to see a defendant when one likes jury; go to a some- Every case does not sense may he have “done it.” Common case. Re- fails to make its the State times Grim; beyond a rea- may point to ap- submissibility is an review spectfully, duty not. This Court’s sonable doubt does safe- only opportunity to court’s pellate are that criminal convictions is to ensure of the Constitution. requirement guard evi- constitutionally sufficient based on jury is not this role to the To abandon guilt beyond a dence—evidence from which final arbiter of jury the to make the may found. When reasonable doubt be law, is, which it but also facts, which heavily, there is comfort duty rests too it is not. first knowledge that we are not the faith in a long ago rested its society Our it. bear to let declares it far better system that carefully analyzed all the We have [evi- imprison an go than to free guilty person and, that it is may it be said while dence] to the is this commitment one. It innocent guilt suspicion calculated to arouse separates us from rule of law defendant, yet suspicions or even of this dissent. respectfully I barbarians. guilt do not autho- strong probabilities Giving every circum- rize a conviction. force, falls far short full ...

stance its upon the citizen which ... [that] liberty. The deprived of his

should application; in its be universal

law should applied to the humble

it should be This defendant exalted alike. the facts as disclosed guilty, but it. fail to show in this cause

the record any substantial

If there was verdict, it would to base this

upon which disturbed; but, in view of

not be testimony to autho-

insufficiency

Case Details

Case Name: State v. Grim

Court Name: Supreme Court of Missouri

Date Published: May 25, 1993

Citation: 854 S.W.2d 403

Docket Number: 74892

Court Abbreviation: Mo.