*1 be voluntary, the defendant must ing and Missouri, Respondent, STATE elements of the offense of the
informed hearing prior or on some plea either at v. ” occasion, them.’ he must understand SAPIEN, Appellant. Linahan, Andrew M.T. Gaddy v. (quoting at 205 Id. Cir.1986)). (11th See also F.2d No. WD 69575. State, (Mo.App. v. Myers State, S.D.2006), and Felton Appeals, Missouri Court S.D.2003) (for plea (Mo.App. Western District. voluntary, a defendant knowing be Feb. 2011. informed of and understand must be charges and the elements of nature of the Rehearing Transfer to Motion for and/or plea hearing or either at the the offense Supreme Denied March Court it). It found the record prior time some the movant discussed reflected of intent before his
understood the issue charges he understood the and that
plea Ivy, him. 81 S.W.3d at
against case, in this the record indi-
Similarly had been advised
cates that Mitchell charges the nature of the
and understood felony him and the elements of
against weapon by of a
murder and unlawful use guilty he entered his
exhibiting before shows that Mitchell un-
plea. The record felony charge murder
derstood that upon the offense of unlaw- predicated weapon pro- and that he was
ful use of a copy felony murder and
vided with a weapon of a statutes. It also
unlawful use the con- plea
shows that counsel discussed numerous times with
cept felony murder explained to him
Mitchell and that she weapon unlawful use of a
the elements of A factual basis existed for
by exhibiting. The motion court guilty plea.
Mitchell’s not, therefore, denying clearly
did err postconviction
his Rule 24.035 motion for
relief. affirmed. judgment
All concur. *2 WELSH, Judge. EDWARD
JAMES his conviction Sapien appeals Andrew statutory sodomy two counts of *3 step- degree involving his sister and first Sapien arguments: makes three brother. first, erroneously that the circuit court ad- testimony concerning uncharged mitted explain delayed a witness’s re- crime to offenses; potting Sapien’s of one sec- ond, erroneously that the circuit court ad- concerning disposition mitted juvenile charge during sentencing of a trial; third, that the phase and erroneously circuit court refused to dis- him the charges against miss the on basis We affirm. prosecutorial vindictiveness. Background Factual (cid:127) Sapien guilty was found of two counts of sodomy degree. in the first Fol- statutory sentencing phase lowing separate jury Sapien recommended that be sen- years thirty tenced to on each count. Con- recommendation, jury’s with the sistent Sapien the circuit court sentenced to con- thirty years. Sapien ap- current terms of peals. to giving Sapien!s
The incidents rise sod- omy convictions occurred in November and Sapien living December of 2004. with step-mother; Sapien’s. his father and bio- (“M.J.S.”),. step-brother logical sister (“M.T.”) (“D.T.”), lived step-sister and also in the house. At the M.J.S. was 10 time, old; years D.T. was 11. incident,
The first which occurred in No- break, Thanksgiving vember 2004 after the M.J.S., D.T. After Sapien, involved computer, on the watching pornography’ Shull, Jr., MO, Liberty, William E. for Sapien asked M.J.S. and D.T. whether Appellant. they [Sapien] could “do a favor.” After Messonnier, initially yielded and D.T. City, refusing, Terrence M. Jefferson M.J.S. MO, Respondent Sapien and went with to- his bedroom door, closed the
the basement. Newton, P.J., they H. D.T. that were not Before Thomas James told M.J.S. and Welsh, they until Ahuja, going Alok to be let out of the room Edward JJ. pull anyone did what he asked. He told them to because raped pre- her n down, they viously, their pants complied. Sa- and she was scared of him. pien then directed M.J.S. and D.T. to en- In January again M.J.S. was ap- with each gage sexual acts other. He proached by Sapien job;” to “do a This- later M.J.S. while rubbing sodomized her time, and, she refused with told her hand, vagina with his attempted and he parents about behavior. Sapien sodomize D.T. fled the quickly, house not even bothering shoes, put despite the fact that it was incident, M.J.S. described second cold and snowy. which a couple occurred of weeks after the *4 viewing pornography, first incident. After M.J.S. and D.T. were interviewed by Sapien again approached M.J.S. and D.T. police and examined doctors. The exam- they and asked them whether would do inations, performed Moran, by Michael Dr.. him a favor. Sapien took M.J.S. and D.T. did not any physical abnormalities, show to their parents’ upstairs. bedroom Sa- Dr. although Moran testified that sodomi- pien leave, then told D.T. to and took zation often heals over time. trauma bathroom, M.J.S. to a downstairs lubricat- Hazell, Jill a member Synergy Ser- penis, ed his and her. sodomized vices, center, advocacy child interviewed M.J.S. and D.T. individually on February D.T. also described other incidents in 10, 2005. These interviews were recorded which he was by Sapien. sodomized Dur- transcribed, and admitted in incidents, evidence ing these Sapien get had D.T. on during Sapien’s trial. his hands and knees Sapien got while on his knees D.T. D.T. behind testified that Sapien initially was charged with two Sapien’s penis definitely inside D.T.’s counts of child molestation in the first “butt” on these other occasions.' testi- He (one degree for the involving acts M.J.S. fied that these incidents occurred once in D.T.). and one for the involving acts bedroom, in Sapien’s and otherwise subsequently filed a first amended bedroom. D.T. testified that M.J.S. was amending information charges both from present during incidents, the other except molestation in degree child the first on one occasion when she acted as a look- greater statutory offense of sodomy in the out Sapien and alerted and D.T. when so, degree. first Prior to doing the State Sapien’s mother returned home. had notified- defense counsel of its inten- tion to file charges, the amended indicating initially Neither M.J.S. nor D.T. told that it forego filing Sapien would them if anyone about the first Following incident. plea would enter a of guilty to the lesser incident, the second M.J.S. told her charges of child endangerment in the first step-sister, older happened; what had degree accept a proposed disposition. however, the girls did not inform either of offer, Sapien rejected the plea State’s parents their at that time. M.T. testified the State thereafter filed the enhanced at trial that she had herself observed a charges. incident, further which involved Sapien and D.T. in the bathroom in Sapien November- filed a motion to dismiss the first information, December 2004. M.T. witnessed amended arguing that the fil- standing new, behind D.T. while both had their of the heightened charges consti- down; knees, pants D.T. his bent tuted vindictive because it was over the toilet. M.T. testified that she did in response rejection done to his immediately not reveal plea proposal. incident The motion was denied.
n immediately reported had not in limine reason she pretrial motion filed juvenile of his was because she was any Sapien’s misconduct to exclude him, entered order previously circuit court because he had record. scared of The. to be evidence was not that such in limine raped her.1 phase unless guilt introduced whether the We need decide jury’s finding After the Sapien testified. its discre properly circuit court exercised phase Sapien’s in the first guilt testimony concerning permitting tion in circuit court to order asked the the State M.T. Even if the prior rape of Sapien’s records unsealed. Sa- juvenile Sapien’s erroneous, evidentiary ruling were court’s The circuit court ordered objected. pien justify because Sa- it would not reversal disposition and order petition he suffered pien has failed to establish that M.T. be re- Sapien’s rape of regarding require a new trial. prejudice sufficient attorneys. pen- During leased to both we review the trial court objection, appeal “On direct over alty phase error, and will prejudice, not mere the details of M.T. testified about *5 prejudicial 2004. The State also if the error was so in March reverse rape of her dispo- and order of of a fair petition deprived the that it the defendant introduced concerning Middleton, juvenile from the sition division trial.” State v. S.W.2d offense, (Mo. (citation Sapien’s objection. 1999) over again this banc and internal omitted). quotation marks Analysis the prejudice test for is whether Sapien argues point, In his first improper admission was outcome-deter- allowing erred in court that the circuit finding A of outcome-deter- minative. prior rape testimony regarding his M.T.’s judicial a prejudice expresses minative of In his cross-examination of her. conclusion, erroneously that the admitted that, the fact highlighted Sapien’s counsel that, jury the evidence so influenced appar and D.T. discovering Sapien after with and balanced when considered in her bath ih a sexual act ently engaged .admitted, all against properly evidence “[djidn’t room, [immediately] any tell M.T. that probability there is a reasonable “bring anybody’s it to body it” or about jury the would have reached a different but, instead, “went simply attention” erroneously ad- conclusion but for the couch, downstairs, the watched sat on determining preju- In mitted evidence. (M.T. informed together and M.J.S. TV.” dice, amount of this court considers the in Sapien’s of sexual acts parents their erroneously admitted evidence and and D.T. several weeks volving M.J.S. la-. the extent to which the evidence ter.) cross-examina response to this during referenced the trial. When tion, argued evidence is substantial and inadmissible concerning the rea opened the- door to the inad- there are several references delayed of what reporting sons for M.T.’s evidence, is found. prejudice missible The circuit court she had witnessed. (Mo. Chism, objection, S.W.3d agreed. Over the court (citations quotation and internal App.2008) the State on redirect examina permitted omitted) (concluding that the erro testimony from M.T. that the marks tion to elicit cross-examination, acknowledge subject, we making 1. In his record on experiencing of it specifically the tone circuit court had the benefit prosecutor mentioned hand, may played part a and it well have cross-examination. While first defense counsel's ruling. in the court’s replicate record cannot the tone of the our uncharged years variations, neous admission of evidence of to contain some contra- and, prejudicial misconduct was not there lapses dictions or in memory.” State v. trial). fore, did not mandate a new Kelley, 945 S.W.2d 615 (Mo.App.1997) (citation and internal quotation marks We first note that the evidence concern- omitted). The children’s testimony was uncharged offense admitted ing also corroborated M.T.’s phase testimony trial was ex- as guilt to the incident that she ceedingly essentially limited and was limit- witnessed involving D.T. response ed to M.T.’s three-word —“He raped question by prosecu- me.”—to a It significant is also after par- his tion to the source of fear Sapien. as her ents had been police told and the were very
While it allegation, is serious it is called, Sapien fled from the home. In- significant high- this issue was not deed, Sapien was in hurry that he su.ch lighted during testimony and no de- left without jacket, shoes or a despite the concerning tails this other were incident fact that it was a January cold day with provided jury. During closing argu- ground. snow on the flight His signifi- ments, the State allegation referenced this cant additional supporting a find- solely argue jury should credit See, guilt. e.g., State v. Moyers, 266 as to the incident she had 284 (Mo.App.2008). witnessed. Despite the emotional nature of the We also note that the evidence witness, mention of in these against Sapien was strong. While there *6 circumstances we cannot conclude that offenses, physical was no evidence of his there is a probability reasonable that the testimony victims, of his two their jury would have reached a different con- statements, out-of-court corroborated each clusion but for the allegedly erroneously- other’s accounts. essence of the vic We, therefore, admitted evidence. deny tims’ unchanged accounts remained point. first years consistent across the multiple retellings: Sapien’s viewing pornography point, his second Sapien argues computer asking and then them to that the circuit court violated section favor”; “do him a Sapien’s engaging in 211.271.3, 2000, RSMo when it allowed his child; acts of anal intercourse with each juvenile court records into evidence during watching D.T.’s Sapien door while so the sentencing phase his trial.2 We dis bedroom; domized M.J.S. in Sa- agree. pien’s telling the children not to tell their authorities; point requires Resolution of this parents or the the rec- physical onciliation position in which of two statutes that are put the children seem- them; hand, sodomizing ingly when in conflict. On the and his use of a one section states, particular lubricant. 211.271.3 juvenile While the dissent records of points specific out certain courts are proper inconsistencies not lawful and in the testimony, against children’s “in the child and cases deal shall' be used in very with subjects, any proceedings sensitive it is com other Chapter than 211 hand, mon for the proceedings.3 a victim of tender On the other section argument juvenile provides makes no that the 3. Section 211.271.3 that "all admis- sions, confessions, by records were otherwise and statements irrelevant or inadmis- juvenile juvenile child to the officer and court sentencing phase sible in the of his trial. personnel given and all evidence in cases un- 78 children violations of the law committed
211.321.2(2),
Cum.Supp.2010, pro-
RSMo
age
petition
of seventeen. The
disposition
of a
of a
under
the record
vides that
charge
a
and order at issue concerned
information
public
case is
juvenile
2004,
in
which
raped
pro- Sapien
records in criminal
extent as
M.T.
same
felony
a
if committed
found to be would constitute
juvenile
if the
was
ceedings,
211.321.2(2),
adult.
to section
upon behavior that would an
Pursuant
delinquent based
therefore,
a
juvenile adjudication
for an adult.4
felony
offense
have been
record to the same
as the
public
extent
seemingly
211.271.3’s
abso
Section
in
We
proceedings.5
records
criminal
conjunction
read in
must be
lute mandate
deny Sapien’s
point.
second
211.321.2(2).
general
A
stat
section
with
specific
later and more
yield to a
ute must
point, Sapien argues
In his third
conflict.
in the event
two
statute
prosecutorial
in
engaged
the State
See,
Emps.
v. Mo. Local Gov’t
e.g., Smith
by filing the amended infor
vindictiveness
578,
(Mo.App.
Sys., 235 S.W.3d
Ret.
him
charging
mation
with two counts of
2007); Normandy Fire Prot.
v. Vill.
Dist.
A
first-degree statutory sodomy.
prosecu
Park,
516,
927 S.W.2d
Pasadena
arising
tion
out of vindictiveness violates
opposed
As
to section
(Mo.App.1996).
process rights
due
under
the defendant’s
211.271.3,
general
speaks
which
terms
the Fourteenth Amendment. Wasman v.
cases,
juvenile
in all
section
about records
States,
559, 565-66,
United
U.S.
211.321.2(2)
addresses records
specifically
(1984).
3217,
79
State,
apply
297 S.W.3d
the ...
rights.
presumption
Chrisman
pretrial
145, 148
setting.”
were filed after a mistrial had been de
defendant is free to accept
reject
or
clared
on prosecutorial
based
questioning
.
363-64,
plea offer
Id. at
663.
S.Ct.
236-37;
in voir dire.
Id. at
see also State
prosecution
Because the
permitted
is
to
Cayson,
(Mo.
157-58
attempt
guilty pleas,
to induce
Borden-
App.1987) (applying presumption where
kircher concluded that it is best that such
charges
enhanced
filed after circuit court
place
efforts take
in
open
with clear
ordered new trial
based
instructional
communication between opposing counsel.
error);
Juarez,
364-65,
Id. at
ment arises. plea negotiations presumption of vindictiveness after charges adding failed, without a constitutional was one Sapien contends that vindictiveness at n. 102 S.Ct. difference. Id. all possessed because the State established Thus, guilty induce can prosecutors necessary bringing evidence for of the heavily front charging up either pleas origi- charges at the time enhanced or amend charges to dismiss offering and acknowledged that Sa- nal indictment or, instead, by offenses them to lesser led to the plead guilty refusal to pien’s warning at the outset and lightly charging Bordenkircher charges. enhanced Under charges; in neither possible additional Goodwin, however, these facts are of vindictiveness presumption a case does (absent presumption of vindic- irrelevant a may forgo just prosecutor as a arise. For here). In- inapplicable tiveness which is already brought in an charges legitimate deed, in Bordenkircher expense of the time effort to save its acknowledgment a similar made charges if may file additional prosecutor a motivated charging decisions had been that a defendant expectation an initial plead guilty. the defendant’s refusal charges proves to lesser guilty plead would 359, 98 663. We 434 U.S. at S.Ct. See 378, 102 2485. As Id. at S.Ct. unfounded. deny Sapien’s point. third by prob charges supported are long as the cause, pros can raise the prosecutor able Conclusion charges additional or pect of enhanced We, therefore, affirm the circuit court’s just guilty plea, as to induce order counts convicting Sapien of two judgment charges such at the bring can prosecutor degree. statutory sodomy the first drop to reduce or them. outset and offer indistinguishable all The case at bar is WELSH, Judge JAMES EDWARD from Bordenkircher aspects relevant majority. writes for the Here, initially Sapien was Goodwin. NEWTON, Presiding H. THOMAS molesta- two counts of child charged with Judge, concurs. tion, felony. subsequent B a Class offered to prosecutor negotiations, AHUJA, Judge, ALOK writes the two charge information to amend the dissent. in the endangerment child first counts of AHUJA, Judge. ALOK felony. prosecutor degree, a Class C Andrew respectfully he not dissent. informed should also sexually molesting two of offer, was convicted of the State would file an accept the information, siblings while he and his victims were charging him with his amended trial statutory living in the same household. The felonies of sod- the unclassified Thus, the State to adduce evi- degree.6 prose- permitted court omy in the first guilt phase with initially charged Sapien appro- cutor dence *9 sibling of his of another and then offered to either trial priate charges member, for which had guilty household charges in the event of reduce prosecuted through the previously if been charges plea more severe plea or assert justice system. believe amalgam juvenile This an of negotiations failed. is erroneously admitted evidence trial court approved by Supreme the tactics by the evidence and that dispute that the more severe fied 6. There is no asserting fully probable for them. charges statutory sodomy justi- were cause of
81 ception and that the erro- uncharged rape, of this that a who person has acted substantially criminally of this simi- once will so again. neous admission do lar, serious, uncharged sex offense denied Ellison, State v. (Mo. 603, 239 S.W.3d 606 Sapien a fair trial. I would therefore re- 2007) (citations omitted). banc verse his convictions and remand for a new The Supreme Missouri Court has cau trial.1 tioned all cases “[i]n in which evi dence uncharged offered, misconduct is I. ‘the dangerous tendency and misleading prohibiting The rule' the admission of force of this class probative uncharged originates evidence of crimes in require that its admission should be sub ” provisions of the Missouri Constitution jected by the courts rigid scrutiny.’ specifying that a criminal defendant shall Burns, State v. (Mo. 759, 978 S.W.2d 761 only be tried for the with crimes which he 1998) (citations omitted); banc see also explicitly charged. Nelson, State v. (Mo. 638, 178 S.W.3d 642 The rationale underlying this rule is E.D.2005) App. (“Generally, ‘trial courts “[ejvidence grounded in the view that wary should be of evidence of other crimes crimes, other when properly related due to the highly prejudicial character of ” to the cause on violates defendant’s (citation omitted)). evidence.’ such right to be tried for offense for There are exceptions general rule right which he is indicted.” This arises that evidence uncharged crimes is inad I, guarantee from the of article sections missible, here, however. Relevant 18(a) 17 and of the Missouri Constitution “opened-door” provides doctrine that a defendant right has the to be “ ‘[wjhere the defendant injected has charged. tried on the offense Arti- case, issue into the may the State be al I, provides cle section 17 person “no lowed to admit otherwise inadmissible evi prosecuted shall be criminally felony dence in explain order to or counteract a or misdemeanor otherwise than in- negative inference raised the issue the I, dictment or information.” Article sec- ” East, State v. injects.’ defendant 976 18(a) tion in criminal pros- states=“[t]hat 507, W.D.1998) 511 (Mo.App. (quot ecutions the right accused shall have the Lingar, State v. 728, 726 S.W.2d 734- ... to demand the nature and cause of (Mo. 1987)). way, banc Put another the accusation....” when party one seeks to create an adverse Vorhees, State v. 585, 248 S.W.3d 587-88 inference upon pres based an incomplete (Mo. 2008) (citations omitted). banc facts, entation of the surrounding the other barring rule other crimes evidence serves party can introduce the rest of those facts a critical function in justice the criminal Newsom, the inference. State v. to rebut system. S.D.2009). 784, 299 S.W.3d (Mo.App. evidentiary
This bar opened-door in, stems from the This applied doctrine was Fassero, e.g., “encourag[ing] need to avoid the jury State v. 256 S.W.3d (Mo. Still, 2008); convict the defendant State v. pro- because of his banc 216 S.W.3d Uka, pensity S.D.2007); to commit such crimes State v. (Mo.App. without regard actually guilty E.D.2000); to whether he is (Mo.App. 25 S.W.3d Leitner, words, and charged.” crime In other S.D.1997). the law shields per- (Mo.App. defendants from the *10 I majority’s disposition concur in the other claims. concerning Sapien’s of evidence presumes, doctrine mission “opened-door” The that however, ground who earlier of M.T. it is the defendant opened the door to such evidence. particular Sapien to a line of the door” “opened In the direct examination of introducing prosecution’s evidence from by first inquiry drawn. a opening inference could be she described bathroom negative which Revelle, State and D.T. with their This is illustrated door to find S.D.1997) (en banc), down, (Mo.App. D.T. in pants S.W.2d 428 with behind which a husband was accused of a case in. one could infer was the act of sodom- what D.T., At the State was killing his wife. D.T. izing preparing or to sodomize incompe- otherwise to introduce permitted its examination The State concluded direct indicating couple’s that the tent evidence following questions: M.T. with the relationship Seeking was strained. to de- Q. gentlemen, Tell the ladies and what evidentiary ruling, the State not- fend this you you did do when saw that? had testified that that the defense his ed just A. I kind of stood there in awe for his wife was in relationship with deceased try process to kind of enough The fact amicable. Southern District re- everything my and then I closed because the State— jected argument, bedroom, my bathroom door. offered evi- not the defendant —had first went back downstairs and sat on the parties’ concerning dence status of couch and watched TV. rely on its own marriage, and could Q. happened couple What of minutes into case injection of this issue you after sat back on the couch and support the admission otherwise inad- n watching TV? started highly prejudicial missible—and —evi- A. Andrew and Dustin had come down- argu- held that-the State’s dence. Revelle stairs. simple ment fails for the reason that the injected State not Defendant —first the is- Q. you anybody anything right Did tell Defendant and Lisa’s rela- sue of whether away at point time? tionship was amicable. Id. at 432-33. A. No. injected the State first issue [T]he Q. you eventually Did tell someone? offering evidence thereon its case-in- ' ' A. Yes. ... injected chief. Since State first case, good marriage issue into exami- This concluded State’s direct not qualify
Lisa’s note did as rebuttal entirety of Sapien’s nation. cross- evidence, the statements remained inad- examination of M.T. follows: missible, their admission [M.T.], Q. let me understand this cor- bolster an infer- improperly served to You, rectly. you say you after negative ence to Defendant. you saw this went back downstairs Extending opened-door at Id. you you sat on couch and analogy, may Revelle holds watched TV? through
not walk a door which it—not the A. Yes. opens. defendant —first Q. anybody tell it? Didn’t about Here, it the State which first intro- A. No. concerning duced evidence M.T.’s initial Q. bring anybody’s Didn’t it to atten- delayed reporting inaction and after wit- tion? nessing Sapien’s molestation of D.T. Ac- A. No. cordingly, justify the State cannot the ad- *11 fear, Q. me what the M.T. testified that you Sapien “raped.me” Can tell date between sometime 2001 and 2003.3 that occurred? A. I the exact do not know date. Sapien’s cross-examination did not “open Sapien’s the door” to evidence of rape of Q. you tell me what it Can even month cross-examination, brief M.T. In his Sapien was in? brought out the facts following concerning between, right A. It was in it between initial reaction to- what she had holidays. was November De- It or (1) witnessing Sapien witnessed: that after cember. bathroom, and D.T. the “went she down- Q. during So sometime a two-month stairs, TV”; on sat the couch and watched period? (2) “[djidn’t she [immediately] tell that A. Yeah. it” it to anybody “bring anybody’s about or Both of facts Q. these had been you tell me if it to attention.” Can was closer brought out the immediately State’s the November or to first of closer examination, preceding direct however. Thanksgiving? two Sapien’s questions concerning M.T.’s It, A. it was after so it Thanksgiving, returning watching downstairs and televi- beginning wasn’t in the of Novem- virtually quotation sion were a verbatim probably ber. It De- first of direct; direct, testimony her on on the cember, in the the between first and expressly State M.T. had asked to confirm middle of December. that she did not “tell anybody anything Q. downstairs, you And went sat the on away at right point time.” that couch and watched TV? circumstances, In Sapien’s these where A. Yes. carefully stayed cross-examination within Immediately question, after the last the bounds of the information elicited ex- prosecution approached the bench to examination, prosecution on direct press possible negative its concern about agree Sapien “opened cannot that triggered this cross-examina- inference highly-.inflamma- door” to the admission of prosecutor proposed tion. The he be that inadmissible, tory, plainly and otherwise to allowed introduce rape Notably, evidence of his of M.T. prior rape explain which would apparently recognized trial court itself that with, initial her reluctance to interfere or Sapien’s had merely cross-examination upon, repoi’t Sapien. Although it acknowl- ground prosecu- the same as the covered call,” edged that the was “a issue close when Sapien’s tion’s direct: counsel ar- trial court objections.2 overruled gued rape that evidence should not On redirect M.T. testified that she did come in because the “asked immediately what report she wit- very question,” that same the court re- “[bjecause too, Sapien; nessed I was scared sponded “[y]ou of’ it Mr. asked response questions to further from the to explore Shull.” But was entitled prosecution asking ground for the her source of cross-examination the covered issue, During closing. negative conference 2. bench on this inference Neither alter- suggested her M.T. could limit explored. native was further merely stating redirect "[t]hat [Sapien] she was afraid of because of some- sentencing Sapien's phase her," thing happened without describ- in March M.T. testified that occurred ing specifically what had done. Sa- argue any pien’s counsel also offered not to *12 Mickle, 33, 55 direct; v. by following object.” State on prosecution the by W.D.2005) (en banc). In the (Mo.App. did footsteps, Sapien prosecution’s in the to offer way, was otherwise if the State intended which same open a door not M.T. to rebut Sapien’s rape of of evidence closed. sought to inference any negative admitting the reason for The other delayed reporting, it on her raise based by the trial court offered rape evidence in fact to wait until required was counsel Sapien’s was its observation issue; cannot the the State broached ques- object prosecution’s] to [the “didn’t itself, and “open the door” preemptively M.T.’s imme- Testimony concerning tion.” an it has itself exploit opening then seek to following her observations reaction diate created. admissible,' how- plainly relevant imme- that she did not ever. And the fact of if cross-examination Sapien’s Even incident report the inflection, intervene or diately simply or its tone or M.T.—in to the defense. anything helpful was—if di- by revisiting ground covered — which any basis on conceive cannot con- “opened the door” rect —somehow prosecu- to the objected Sapien could have what reaction to cerning her immediate any perceive can I questions; nor witnessed, tion’s justify did not she had would have done so.4 why Sapien reason uncharged an admission in decid- overarching questions rape. elicited that the State It'may well be crimes uncharged whether evidence of ing testimony concerning her inaction (1) whether that be admitted are should preemp- in order to delayed reporting “ relevant, in that it logically evidence ‘is sting” from this issue tively “remove the tendency to establish legitimate has some exploit it. How- defense could before the charges of the directly guilt the accused’s ever, analogous context this Court in an ” (2) trial,’ whether for which is on that, where a criminal defendant has held “ relevant, in that legally that evidence ‘is evidence which the objects particular outweighs prejudi- value its probative its in limine that it will trial court has ruled ” Johnson, 161 cial effect.’ State v. S.W.3d admit; may preemptively defendant not S.D.2005) (Mo.App. (quoting himself; so, by doing the evidence offer (Mo. Bernard, 10, 13 banc objection. In- waives its defendant 1993)). assessing legal relevance of stead, proper- made clear “to we have evidence, “the tidal court other crimes objection to the admission ly preserve ..., that ‘the inevitable carefully must consider [defendant] of the evidence tendency of such evidence is to raise a actually until the State required to wait guilt in the legally spurious presumption and then sought to admit following also ask- approaching 4. On the bench Sa- sel followed pien’s prosecu- cross-examination of M.T. about her immediate reaction way expressed witnessed; concern with "the (2) tion first Sapien’s what she [Sapien’s question.” asked that last counsel] object prosecution's counsel did not argues appeal The State that this statement closing questions examination. Giv- on direct the tone used defense counsel in refers to grounds explicitly stated for the trial en the question. final The tri- his cross-examination any ruling, and the lack of indication court’s express any did concern with the al court Sapien’s relied on the tone of that the court which tone manner in counsel or cross-examination, ruling the trial court’s cross-examination, conducted his however. assumption affirmed on the that it cannot be text, Instead, in the trial as discussed depended not reflected in on circumstances evidentiary only two bases for its court stated record. (1) ruling on the record: coun- Nelson, Winston, United States v. F.2d jurors.’” minds *13 (D.C.Cir.1971) E.D.2005) (footnote, citations, 1240 638, (Mo.App. 644 omitted).5 quotation and internal marks Clover, 853, 924 (quoting State v. “ (Mo. 1996)). other banc ‘Evidence of case, 856 Sapien’s In this cross-examination be is and should highly prejudicial crimes on expanded testimony M.T.’s direct only (if all). only incrementally there is strict necessi- prosecution received when at The ” (citation Johnson, ty.’ S.W.3d at 928 offered to limit its 161 redirect examination to omitted). only fact the that M.T. was scared of Sa- pien to “something happened due that to analysis logical legal and rele- This of her,” the defense offered not to argue other- with full force apply vance should to delayed M.T.’s in reporting closing. More- the evidence admitted under crimes (and over, extremely unfairly) the prejudi- “opened door” doctrine. cial effect of on redirect one Opening thing. the door is But only is due not to the fact that it involves through what comes the door is another. the heinous crime of also rape, but because the through come Everything cannot it a in involves which occurred strik- ingly door.... similar circumstances offenses trial; for which was on it was an- ... The of curative admissi- doctrine other nonconsensual sexual offense involv- over- bility dangerously prone one to is one of who siblings, resided in to explore use. Permission rebuttal the same household with and the direct, with testimony not admissible on danger two victims. The the jury ground party on the that the other has impermissibly would that Sapien conclude doors, opened upon the rests the neces- of guilty charged was the offenses based sity prejudice of inter- removing in the “legally spurious presumption” the est of fairness. he such propensity to commit crimes prevent The is to prejudice doctrine extremely hand, other high; was on the and is not to be subverted into a rule the case prejudice by the State’s caused injection of prejudice. Introduction (and largely repetitious) brief under otherwise inadmissible evidence limited, cross-examination was and could shield is permitted of this doctrine (in- have been addressed other fashions necessary any to the extent to remove prosecution the cluding suggested by those conference). unfair prejudice might otherwise which the defense bench circumstances, original have evidence. permitting ensued from these in, e.g., justify Cited United of that and followed Goines v. should admission evi- States, 795, (D.C.2006); likely 905 A.2d 800-01 when it do dence is to more harm in 229, Thus, Vandeweaghe, State v. 177 N.J. A.2d 827 respect good. admissibility this than 1028, State, 77, (2003); 1033 Clark v. 332 Md. basis of evidence offered on the that defen- 1239, (1993); 629 A.2d v. Gra 1245-46 opened has the door should be evalu- dant ham, 493, (1986); 9, 200 Conn. 509 A.2d 496 [of ated under Rule '[Federal] Evidence] 295, Benoit, N.H. 490 A.2d 306 126 State, (1985); Bentley v. 711 P.2d Gold, Wright & VJ. C.A. Federal Practice (Alaska also, App.1985); e.g., People see (2007); § at n. 37 Procedure Miller, (Colo. 1995). Citing 890 P.2d Graham, Jr., Wright see C.A. & K.W. also Winston, leading explains: treatise 5039.1, § at Practice Federal Procedure (2005) ("opening door does not 837-38 application Since doctrine deprive power trial to exclude admissibility court of the curative notion based on the coming through jury might be evidence it exercise misled if contradicto- 403”). excluded, ry conferred Rule doctrine discretion testimony that M.T. was it an additional nonconsensual sexual elicit prosecution offense, but it an offense committed by Sapien constituted an raped had been discretion, Sapien “opened against sibling Sapien’s, living even if another abuse of in the same household as his victims in some fashion. the door” Indeed, its rebuttal charged offenses. II. tied the closing argument, against three of Sa- crimes committed all erroneously effect of prejudicial *14 in pien’s siblings together arguing grant that we requires admitted evidence jury accept veracity the of them should a new trial. “ accounts: prior of a crime is not ‘If evidence two little children and their You had to the any exceptions under admissible you get up great sister there and tell admission, the prohibiting its general rule ” happened to what to them dur- detail as prejudicial.’ to be presumed admission is frame, ing that time and [D.T.] [M.J.S.] (Mo. Johnson, 920, 161 S.W.3d 928 State v. in winter 2004 and in 2001 and [M.T.] S.D.2005) Brooks, State v. App. (quoting E.D.1991)); (Mo.App. 810 S.W.2d 634 Nelson, v. 178 S.W.3d
see also State only While limited amount of evidence E.D.2005); v. (Mo.App. 643 Lancas concerning rape during came in the E.D.1997). ter, (Mo.App. 29 guilt phase of that incident prior rape particularly Evidence of a highlighted prosecution’s was the clos- prejudicial effect. likely to have such closing In initial ing arguments. argu- its (“ Johnson, S.W.3d at ‘Such proof, ment, argued that M.T.’s especially sodomy, to crimes such as as brief, very testimony, although pow- “was likely decidedly ... to have a would be literally reliving erful” because she “was ” upon jury.’ (quoting effect prejudicial first, jury, what by telling her life” she Atkinson, witnessed, second, why she hadn’t (Mo.1956))). immediately told because of her fear of “[bjecause very Sapien, same Defen- of presumption prejudice is not At the raped dant had her.” outset of its Barriner, overcome here. State closing, prosecution empha- rebuttal (Mo. 2000), S.W.3d 139 banc identifies the Sapien’s closing sized while had at- following factors to consider determin D.T., veracity he tacked M.J.S. and ing prejudicial improper effect of the credibility: had not attacked M.T.’s of uncharged admission of evidence mis (1) similarity just “the Mr. charged gentlemen, conduct: Ladies and Shull children, improperly got up admitted evi these two offenses called (2) [D.T.], dence”; amount of evidence that liars. You saw them “[t]he [M.J.S.] erroneously you and the extent on the and I’ll let make that was admitted stand yourself. to which the evidence was referred to dur determination for I did not (3) “[wjhether trial”; liar, say the errone hear him was a ladies [M.T.] you what ously highlighted gentlemen, admitted evidence was because heard (4) trial”; throughout question and whether the her answer was when the was asked, prosecution’s improper why you elicitation of the didn’t tell? was Why intentional you evidence was or inadvertent. scared. were scared? Be- Here, uncharged something happened. Id. at 150-51. cause of Well, markedly my happened? raped fense was similar to the offenses what He being for which the timeframe of 2001 and 2002. tried: not being activity I did not hear statement with D.T. at request incident, called a lie.6 during this before Sapien so- her. domized She signifi- omitted this Finally, the evidence of M.T.’s cant detail in her trial testimony. deliberately elicited the prosecution; interview, his forensic D.T. indicated this evidence did riot come in inadvertent- actually he engaged in anal inter- ly-7 M.J.S., course with while at trial D.T. The relative weakness of the State’s evi- testified that he didn’t remember finding dence also tilts favor of a he actually had sex with whether plainly reversible error. While the State M.J.S.,, merely or simulated it. made a submissible case as to both counts (cid:127) D.T.’s testimony did not first-degree statutory sodomy, there corroborate the other incident physical was no evidence of M.J.S. described. sexual assault. *15 The second incident There were also material in M.J.S. inconsistencies described trial, interview, at and in her testimony of the fact forensic witnesses. With- involved exhaustively cataloguing Sapien taking out her. all of the dis- and D.T. to bedroom, parents’ his exposing lu- crepancies, following particularly I find the bricating penis, his then significant: dismissing D.T. before taking M.J.S. to a down- (cid:127) M.J.S. and D.T. shared recollec- stairs bedroom sodomizing her. (even single tions of a though incident D.T. specifically testified at trial that each described further in incidents he could (presumably not recall this which present). the other child was memorable) incident, and did not de- descriptions Them single, of that com- scribe it in his forensic interview. mon significantly. incident varied Thus, M.J.S.’s forensic (cid:127) interview and M.J.S’.’stestimony did not corroborate trial make clear in the the other incidents D.T. described. describe, incident both she and D.T. related, D.T. both at trial and in his Sapien only sodomized her. She ex- pre-trial statement, that there was plained in both Sapien accounts' that more than one incident in incident, to go had to work after the in bedroom which both he and M.J.S. her,
and that when he was done with
were sodomized. Yet M.J.S.’s inter-
she, Sapien, and D.T. all exited Sa-
account,
view
testimony,
and her trial
pien’s
contrast,
By
bedroom.
D.T. tes-
very
both make
clear that she was
tified at
in
and related
his foren-
by Sapien only
sodomized
twice before
interview,
sic
sodomized
she
parents,
told her
and that D.T.
during
both children
this incident.
only present during
one of those
In her forensic interview M.J.S. de-
two incidents.
also
not de-
M.J.S.
did.
scribed
in
engaging
simulated sexual
scribe the other incident which D.T.
examination,
closing argument,
6.
challenged
Later
its rebuttal
I
and do not mean to
prosecution argued that M.J.S. and
D.T.
suggest
engaged
prosecution
that the
in mis-
delayed reporting
they
"because
knew what
Nevertheless,
Supreme
conduct.
Barriner the
sister, [M.T.],
happened to their
as well.” Sa-
intentionally
Court found that evidence was
pien’s objection
argument
to this
there
—that
prosecutor “argued vigor-
elicited where the
was no evidence the two
knew
victims
ously
response
to the trial court in
to motions
sustained.
—was
by appellant
in limine filed
in advance of trial
relevant,
logically
that the evidence was
both
recognize
expressly
that the trial court
legally.”
(cid:127) in his testify at trial or did not D.T. No. WD 71123. interview to incident forensic Appeals, Missouri Court of described the bathroom District. Western purportedly Sapien’s vic-
which he Indeed, testimony as to D.T.’s tim. 22, 2011. Feb. (once abuse had occurred where Rehearing Transfer Motion and/or bedroom, and other- in M.T.’s possibly 29, 2011. Denied March Supreme Court bedroom) would ex- wise M.T. the incident described. clude Application for Transfer Denied (cid:127) significantly May description differed D.T.’s tri- his forensic interview and
between in- During forensic testimony. his
al
terview, inci- D.T. stated first *16 him Sapien sodomized in which
dent bedroom, in his sister M.T.’s
occurred “frame” trying
because present, was not but
M.T. M.J.S. living a lookout from the
served as downstairs, boys and alerted the
room home. At mother arrived
when their
trial, however, this became the final
incident, from and its location moved bedroom to upstairs
bedroom downstairs. circumstances, I believe that
In these of M.T.’s that she admission raped by Sapien necessitates re- had been “
versal, my conclusion ‘that the based on influ-
erroneously admitted evidence so jury when considered with
enced the all against
and balanced admitted,
properly there is a reasonable jury would have
probability
reached a different conclusion but for the ” erroneously admitted evidence.’ Barri- omitted). (citation
ner, at 150