Introduction
Dеnnis Irby (“Defendant”) was convicted by a jury of murder in the first degree in violation of Section 565.020 and armed criminal action in violation of Section 571.015. Defendant was sentenced to concurrent terms of life imprisonment without possibility of parole. Defendant alleges that the trial court made several evidentia-ry errors including the admission of videotaped statements of two witnesses; the replaying of those videotapes for the jury during deliberations; the admission of a witness’ testimony from a previous trial and the admission of a recorded telephone conversation between Defendant and a witness. We find no error and affirm.
Factual and Procedural Background
Defendant does not challenge the sufficiеncy of the evidence to support his conviction. Viewed in the light most favorable to the verdict, the facts are as follows: Lois Sexton and Jeff Sexton (“Victim”) were married with one child. Victim’s wife, Lois, testified that Victim was violent and often beat and abused her.
Lois fled to a “safehouse” on December 2, 2002. After two days, Victim’s parents told Lois that Victim was attending anger management programs and convinced Lois to return to Victim. After Lois returned, Victim refused visitors. Victim moved Lois and their child to a hotel, where he beat her continuously. They returned home and Victim enclosed himself, Lois and the child in the house, screwing the doors shut and hiding the phones to prevent Lois from contacting anyone outside the house. On December 13, Victim beat Lois and threatened to kill her.
On December 14, Lois and the child escaped while Victim was sleeping. She
After Lois left for North Carolina, Laurie’s husband, Dennis Irby (“Defendant”) called Lois’ brother Mr. Hoover. In Mr. Hoover’s statement to police, he stated that Defendant asked him where he cоuld get an untraceable cellular phone and a gun. Mr. Hoover did not procure these items for Defendant, but Ms. Frein procured a pre-paid cellular phone.
Mr. Hoover testified that Defendant traveled to St. Louis from North Carolina and they met in a parking lot on December 19. Mr. Hoover took Defendant to Lois’ car, which Mr. Hoover had parked in a public parking lot near his house. Mr. Hoover testified that he saw Defendant again on December 22. In a written statement to police, Mr. Hoover said that Defendant put on gloves and test fired a gun on December 22. However, at trial, Mr. Hoover said that his statement was coerced and that Defendant did not рut on gloves or test fire a gun.
On December 28, Defendant called Mr. Hoover from North Carolina and asked him to move Lois’ car because he would be returning to St. Louis and he needed the car. In Mr. Hoover’s statement to police, he said that Defendant called him in the morning on December 29 and told him “It’s done,” and to move Lois’ car. When Mr. Hoover went to retrieve Lois’ car, it was in a different spot than where he had parked it before.
On December 31 Victim’s parents found Victim’s body in his house, lying in a pool of blood on the kitchen floor, with a can of soda in his hand. The autopsy revealed that Victim had been dead one to three days. Victim died from two bullet wounds to the hеad, fired from a .22 caliber rifle. In Mr. Hoover’s statement to police, he stated that his father, Ervell Hoover, had given Dennis Irby a .22 caliber rifle. Police seized a .22 caliber rifle, .22 caliber ammunition and a cleaning kit from Ervell Hoover’s home.
Mr. Hoover was taken in for questioning. He talked with police and eventually submitted a written statement. He also allowed the police to take a videotaped statement. At the direction of the police officers, Mr. Hoover also made a call to Defendant while at the police station. He pretended that he had already left the police station and asked Defendant questions given to him by the officеrs. The purpose of the recorded call was to induce Defendant to make incriminating statements.
At trial, Prosecutors sought to introduce the videotaped statement made by Mr. Hoover in order to impeach his testimony that he was coerced into writing falsities in his statement because the police threatened his wife and child. However, Mr. Hoover acknowledged during his testimony that his demeanor appeared calm on the video. Defendant objected to the introduction of the videotaped statement on the grounds that Mr. Hoover had already been impeached and Mr. Hoover already told the jury that he appeared calm in the video. The court overruled Defendant’s objection and admitted and played the videotaped statement.
During trial, the State also played the audio recording of the conversation between Mr. Hoover and Defendant recorded at the police station during Mr. Hoover’s questioning. Defense counsel objected
Lisa Frein did not appear at the trial to testify. Instead, the State introduced a transcript of Ms. Frein’s testimony from Defendant’s earlier trial. 1 The State obtained a certificate pursuant to Section 491.420 identifying Ms. Frein as a necessary and material witness and requesting that a North Carolina court compel her testimony. North Carolina refused to compel her appearance. The State introduced an uncertified order stating that a North Carolina court denied the Section 491.420 request. Defense counsel objected to the introduction of the transcript on the grounds that the State faded to make an adequate showing of its efforts to obtain Ms. Frein’s appearance and that the North Carolina order was uncertified. The court overruled the objection and admitted the transcript.
The State also introduced at the same time a videotaped statement that Ms. Frein made to pоlice.
During deliberation, the jury asked to see the videotaped statements again. The court granted the request over defense counsel’s objections. The jury found Defendant guilty of first-degree murder and armed criminal action. The court sentenced Defendant to concurrent terms of life imprisonment without parole. Defendant appealed.
On appeal, Defendant raises six points. In his first point, Defendant contends that the trial court erred in overruling Defendant’s objection to the introduction of Mr. Hoover’s videotaped statement. In his second point, Defendant claims that the trial court erred in replaying the statement to the jury during deliberations. In his third point, Dеfendant argues the trial court erred in overruling Defendant’s objection to the introduction of Ms. Frein’s videotaped statement. In his fourth point, he contends that the trial court further erred in replaying the statement to the jury. In his fifth point, Defendant contends that the trial court erred in admitting Ms. Frein’s prior testimony because the prosecution did not demonstrate that it had exercised reasonable diligence to secure her presence at trial. Finally, Defendant argues that the trial court erred in overruling Defendant’s objection to the recorded evidence of his telephone conversation with Hoover because there was inadequate foundation for thе admissibility of the recording.
Standard of Review
We review a trial court’s admission of evidence for abuse of discretion.
State v. Smith,
Mr. Hoover’s Videotaped Statement
Defendant’s first and second points involve Mr. Hoover’s videotaped statement. We consider these points together. In his first point, Defendant argues that the trial court erred in admitting the videotape. More specifically, Defendant argues that the statemеnt was not relevant to Mr. Hoover’s credibility and its admission improperly bolstered his direct testimony regarding statements he had made to police. In his second point, Defendant argues that
On January 1, Mr. Hoover was brought to the police station where he wrote a statement and made a statement on videotape which contained information incriminating Defendant. At trial, Mr. Hoover testified that the written statement contained falsities. He testified that police officers were threatening him, his wife and child and coerced him to make the false statements. During direct examination, the State questioned Mr. Hoover linе-byline about the written statement, asking which parts Mr. Hoover was claiming were true and which parts Mr. Hoover claimed were false and coerced by police.
The State then asked Mr. Hoover about the videotaped statement that was recorded at the police station. Mr. Hoover testified that the officer asked him questions, which he answered, but he did not go over the written statement “word for word.” He stated that the videotape contained “truth and lies.” He testified that he was coerced into making false statements on the videotape, like in the written statement. He also testified that that he appeared calm in the videotape. The State then, over objection, introduced the videotape for the purposes of showing Mr. Hoover’s demeanor in that he appeared calm and his answers appeared spontaneous and unrehearsed.
Before we reach this point, however, we must address the State’s argument that Defendant failed to preserve these claims for review, and that we should review under plain error. To preserve an alleged error, a party must make a timely and specific objection at trial.
State v. Baker,
The following exchange took place during the trial:
Mr. Hoover: If you want to say my demeanor on the tape is that I’m calm, yes, I’m calm. I appear relaxed. I’ve been up for twenty-four hours, more than that by this time actually. I’ve been in police custody for about nineteen of those, and I believe this is the last thing that I had to do and I’m walking out the front door to see my wife, give her a big hug and go home.
[[Image here]]
Prosecutor: I have the video taped statement I’d like to introduce and play for the purpose of showing his demeanor
[[Image here]]
Court: He also said his demeanor is calm, he appears to be relaxed, there’s no reаson. He’s already told the jury how he appears. What do you expect to get if the information — the same information contained on the statement?
Prosecutor: Well, can we approach side bar?
Court: Yeah.
Prosecutor: Judge, I don’t believe that I’m bound by his response that he appears calm. I think that once the existence of the video tape showing it is shown, that permits it.
Court: Why did you ask that question, Ed? Why did you ask that question.
Prosecutor: Because I thought that’s part of the framework for the foundation to get this tape shown.
Court: The foundation is him saying I was scared to death those people were intimidating.
Prosecutor: And he said that.
Court: And you want to play the tape to show that’s not true, and that’s how it came in the last time. 2
Prosecutor: And that’s what he said hеre, too. He said he was scared shit-less and he gave the statement in a calm manner, but I think that the video shows it better than his words can describe and that’s why I’m offering it. Plus it’s pri- or inconsistent statements, he’s admitted that once we show the existence of the statement’s it’s allowed to be introduced. Court: He’s already admitted to the pri- or — he’s already admitted to the prior
[[Image here]]
[[Image here]]
Defense attorney: He wants to use it for improper impeachment, he hasn’t denied the statements. He can ask him if he made the statement, he admits it.
[[Image here]]
Prosecutor: I want to introduce this and play this statement ... that he contends was contrived and coerced out of him really is spontaneous and the truth ... he’s not coerced and intimidated to making lies. That’s the way he’s depicted on the video and it’s spontaneous and calm. Defense: He wants to use it for improper impeachment, he hasn’t denied the statements. He can ask if he made the statements, he admits it.
Prosecutor: And it also goes to show his interaction with Cintel, and Cintel’s not threatening him in any fashion.
[[Image here]]
The court: I am going to let you play it. I shouldn’t but I’m going to.
Prosecutor: For the purpose of showing demeanor ... And it shows spontaneity, it shows that he’s likely telling the truth.
Later, the trial court stated “Well, here again what we’ve been going through the last hour and a half, and listening to the same stuff for three hours instead, but we’re going to do it.”
To preserve an evidentiary question for appeal, counsel must make an objection at the time the evidence is sought to be introduced and the same objection must be carried forward on appeal.
State v. Hoy,
The State also argues that Defense counsel’s objection against sending the videotape to the jury was not preserved. No record was made at this portion of the trial. Although there is a record of certain items requested, there is no record of the request to view the videotapes or to hear the audiotape. After the verdict was re
It is a better practice to make a proper record, rather than to attempt to create a record after the fact. However, because that was not done, we must make a preservation determination based on the circumstances in this case. Here, the court accepted Defendant’s attempt to make a record and the State did not object. We find that the objection was preserved for our review.
Now we move on to Defendant’s first point. Evidence in Missouri must be both logically and legally relevant to be admissible.
See State v. Driscoll, 55
S.W.3d 350, 354 (Mo.2001). “Evidence is logically relevant if it has some legitimate tendency to establish directly the accused’s guilt of the charges for which he is on trial, but it is legally relevant only if its probative value outweighs its prejudicial effect.”
Id
(Internal quotations omitted). Under Section 491.074, prior inconsistent statements are admissible
as substantive evidence
and the party offering the inconsistent statement may offer the truth thereof.
See State v. Neely,
Defendant argues that the videotaped statement was not relevant to the issue of Mr. Hoover’s credibility. We disagree. Although Mr. Hoover admitted to making certain incriminating statеments to the police, Mr. Hoover testified at trial that these statements were false and coerced by police. We find this case strikingly similar to
Neely.
In
Neely,
a witness’s preliminary hearing testimony was read to the jury because the witness died before the trial.
Neely,
Similarly, we find that Mr. Hoover’s videotaped statement was relevant to enable the jury to determine if his trial testimony or thе videotaped statement was the truth. The videotape showed Mr. Hoover’s interaction with the officers and the spontaneity of his statements, or lack thereof. Thus, the evidence was logically relevant, as it tended to show which of Mr.
The evidence was also legally relevant, in that the probative value outweighed the prejudicial effect. Defendant argues that the evidence was highly prejudicial because it had already been presented to the jury during direct examination, which resulted in impermissible bolstering of Mr. Hoover’s testimony.
Indeed, the Missouri Supreme Court has recognized that an undue advantage may be had when a party may present the samе testimony in multiple forms.
State v. Seever,
However, here the videotaped statement was not consistent with Mr. Hoover’s trial testimony. At trial Mr. Hoover testified to facts that were contained in the videotape, but a great deal of his trial testimony concerned how the police had coerced him and in what way the written and videotaped statements were false. Thus, the videotape impeached his in-trial testimony that he was coerced by police, by showing his demeanor and interaction with the police during his questioning. Therefore, the videotape was аdmissible under Section 491.074 as a statement inconsistent with his in-trial testimony that he was coerced and threatened by police. 4
Defendant argues that he was prejudiced because the State referred to the videotape evidence as “the truth” throughout its closing argument. However, Missouri caselaw holds that the State has a statutory right to argue the truth of the statements contained in the videotaped and written statements, because they were admissible as substantive evidence under Section 491.074.
See Neely,
In his second point, Defendant contends that the trial court erred in replaying Mr. Hoover’s videotaped statement during jury deliberations because it was not relevant evidence and impermissibly bolstered Mr. Hoover’s testimony. Above, we determined that the videotaped statement was properly admitted into evidence. When an exhibit is properly admitted into evidence, it is within the sound discretion of the trial court whether the exhibit will be shown to the jury during deliberations.
State v. Skillicorn,
Points I and II are denied.
Ms. Frein’s Statements
In his third point, Defendant argues that the circuit court erred in overruling his objection to the introduction of Ms. Frein’s videotaped statement because the recording was not relevant to the issue of her credibility and improperly bolstered her direct testimony. During trial, the
A claim not properly preserved for appellate review may be considered for plain error at our discretion. Rule 30.20.
6
Under this standard, we reverse only if a plain error affecting a substantial right results in manifest injustice or miscarriage of justice.
State v. Bourrage,
The plain error rule is to be used sparingly and does not justify review of evеry point that has not been properly preserved.
State v. Johnson,
Here, we do not find facially substantial grounds for believing a manifest injustice or miscarriage of justice occurred because the videotape was properly admitted into evidence. In testimony similar to that of Mr. Hoover, Ms. Frein claimed that the police threatened her and her family to cause her to lie in her written statement. She stated that the officers threatened her
In his next point, Defendant argues that the trial court erred in overruling Defendant’s objection to the replaying of Ms. Frein’s statement during the jury deliberations. Defendant argues that the videotape improperly bolstеred evidence against him.
When an exhibit is properly admitted into evidence, it is within the sound discretion of the trial court whether the exhibit will be shown to the jury during deliberations. Skil
licorn,
In his fifth point, Defendant argues that the trial court abused its discretion in overruling his objection to the reading of Ms. Frein’s testimony into evidence because the State failed to demonstrate that it had exercised reasonable diligence to secure Ms. Frein’s presence at the second trial.
The right of confrontation and cross-examination is an essential requirement for a fair trial.
State v. Murphy,
Here, the State obtained a certificate from the trial court asking a North Gar-
First, Defendant offers a eonclusory argument that the State did not exercise due diligence because it did not send someone to North Carolina to argue for Ms. Frein’s appearance. Defendant cites no authority to support this proposition, and we reject the implication that, to satisfy due diligence, the State must send someone personally to argue for the appearance. Next, Defendant argues that the certificate was improper because it did not state the number of days Ms. Frein would be required to appear. Defendant did not make either of these arguments before the trial court when he objected to Ms. Frein’s testimony.
Indeed the statute does state that the court may issue the certificate stating among other things the number of days the witness would be required. Here, the certificate from the trial court did explain in detail the testimony Ms. Frein was expected to give and the facts that would be proven by her appearance. In addition, it specified the date trial was expected to begin and directed the witness to contact the prosecutor regarding the days on which she would testify. Ms. Frein had testified in Defendant’s previous trial, therefore she was aware of the amount of time involved.
Defendant also makes other arguments regarding the admission of Ms. Frein’s testimony, but these arguments are not supported with citation to authority, therefore we decline to address them.
Thus, we cannot say the trial court abused its discretion when it determined that the State had made a good faith effort, exercising reasonable diligence to obtain the presence of the witness. Point denied.
Admission of Audiotaped Conversation
In his sixth point relied on, Defendant argues that the trial court erred in overruling his objection to the admission of an audiotape recording between himself and Mr. Hoover. He argues that there was improper foundation because the audiotape was a copy of the original, but the maker of the copy did not testify as to the audiotape’s authenticity.
At trial, defense counsel objected to the audiotape because “the proper foundation hasn’t been laid.” Defense counsel then asked the witness to clarify if it was the original recording or a copy. The witness stated that it was a copy and defense counsel objected “Same objection, Judge.” Although it appears that Defendant is attempting to argue about the authentication of the audiotape recording, he does not make a specific authentication objection. Instead, he makes only a vague foundational objection. A general objection to foundation does not call the attention of the court to the foundational aspects considered lacking and so it does not preserve the matter for review.
Clay,
On appeal, Defendant confuses the matter further. In his point relied on, he argues that the trial court erred in admitting the recording because “Mr. Banta testified that the recording played for the jury was a copy of the original recording and that he did not know who had made the copy.” However, in the argument portion of his brief, Defendant appears to argue that the tape was not properly authenticated as a business record and cites law relating to the business records exception to the hearsay rule.
We find that Defendant has not preserved this point for review. At trial, he made a general foundational objection,
The decision of the trial court is affirmed.
Notes
. Referring to Defendant’s previous trial on the same charges, which ended in a mistrial.
. Although the court stated that it did not recall the objection to the videotape, it nonetheless accepted this clarification.
. Perhaps the videotape would not have been admissible to impeach his testimony regarding the content of the inconsistent statements, such as whether or not Defendant fired a gun during one of his visits, as Mr. Hoover did admit he made those inconsistent statements. However, impeaching Mr. Hoover’s testimony that he was coerced and threatened by police is a distinct issue.
. Although the videotape was played for the jury, there was no ruling by the court admitting it into evidence. However, after the fact, the State attempted to clarify the stipulation regarding the rulings from the previous trial and put on record that the videotape was admitted according to such a stipulation. Because all parties and the court treat the videotape as admitted, so do we.
. All rule references are to Mo. Rules Crim. P.2000, unless otherwise indicated.
. 491.420. Witness from another state summoned to testify in this state
1. If a person in any state ... is a materiаl witness in a prosecution pending in a court of record in this state ... a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.
2. If the witness is summoned to attend and testify in this state he shall be tendered by the treasurer of the county in which the prosecution is pending the sum of ten cents a mile for each mile by the ordinary traveled route to and from the court where the prosecution is pending, and fifteen dollars for each day that he is required to travel and attend as a witness ...