Case Summary for January 14, 2015

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Case Summary for January 14, 2015

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Wednesday, January 14, 2015
____________________________________________________________________________________________________

SC94313
State of Missouri v. Elvis Smith
St. Louis
Challenge to murder conviction; applicability of double jeopardy to two sets of charges
Listen to the oral argument:

SC94313.mp3
Smith was represented during arguments by Gwenda R. Robinson of the public defender's office in St. Louis; the state was represented by Gregory L. Barnes of the attorney general's office in Jefferson City.

Elvis Smith sold drugs for a dealer. In February 2011, Martez Williams became upset that pills he purchased from the dealer turned out to be sleeping pills rather than heroin. In May 2011, Williams asked the dealer for three heroin pills. The dealer spoke with Smith and arranged for a meeting place for the sale. Smith met Williams and gave him three heroin pills, expecting payment. But Williams refused to pay, telling Smith that the dealer owed Williams the pills. When Smith told the dealer what had happened, the dealer was angry that Smith had given Williams the pills without receiving payment. The dealer gave a revolver to Smith. The next day, Smith and the dealer encountered Williams near an apartment complex. Smith and Williams argued over the money Williams owed the dealer. During an ensuing altercation involving several men, Smith drew the gun, ultimately firing three or four shots as Williams ran in a zigzag pattern. One bullet wounded a child playing on a nearby playground; the child died from the wound several weeks later. The state charged Smith with first-degree murder, first-degree assault, unlawful possession of a firearm and armed criminal action. Following a July 2012 trial, the court granted Smith’s motion for judgment of acquittal on the charge of unlawful possession of a firearm. The jury found Smith guilty of the other counts, but the trial court subsequently determined that Smith’s conviction for first-degree assault and one count of armed criminal action violated his constitutional rights to be free from double jeopardy given his convictions for murder and the other count of armed criminal action. The court sentenced Smith to concurrent terms of life in prison without the possibility of parole for the murder conviction and 30 years in prison for the remaining armed criminal action conviction. Both Smith and the state appeal.

Smith’s appeal

Smith argues the trial court clearly erred in refusing his self-defense instruction, denying his state and federal constitutional rights to due process of law, to present a defense and to a fair trial. He contends his assertion that the shooting death of the child was accidental – not intentional – did not preclude submission of a self-defense instruction for the murder charge under the theory of transferred intent. Smith asserts substantial evidence supported submission of a self-defense instruction for both the murder charge and the assault charge. He argues the court’s refusal to submit the self-defense instruction caused him prejudice, requiring the judgment to be reversed and the case remanded (sent back) for a new trial. Smith contends the trial court plainly erred, causing manifest injustice or a miscarriage of justice, in entering judgment that he had been found guilty of murder and armed criminal action after a guilty plea. He asserts he went to trial on both counts. He argues the trial court’s inclusion of this clerical error in the written judgment against him violates his state and federal constitutional rights to due process of law. He argues this Court must send the case back for the trial court to correct this clerical error.

The state responds that the trial court did not clearly err in denying the self-defense instruction. The state argues Smith was not entitled to a self-defense instruction because there was no evidence entitling him to use deadly force, as his theory was that he lacked intent to shoot at anyone and that the child’s killing was accidental. The state contends Smith and other witnesses testified that Williams – Smith’s intended target – fled, but Smith continued to fire shots. The state asserts that Smith is not entitled to exercise self-defense – let alone deadly force – against a person who has fled the scene. The state concurs that the trial court’s judgment incorrectly stated that Smith pleaded guilty rather than being found guilty after a trial and that the judgment should be sent back for the for the trial court to enter an order correcting the clerical error.

State’s appeal

The state argues the trial court erred in granting in part Smith’s post-trial motion for judgment of acquittal, overturning the jury’s guilty verdicts for assault and related count of armed criminal action. The state contends these convictions related to Williams, not the child, and, therefore, did not violate either state or federal constitutional protections against double jeopardy. The state asserts the legislature intended that multiple punishments be possible for the same conduct – such as here, with the murder of one person and the assault of another. The state argues that these are separate units of prosecution with separate victims of crimes against persons and that, applying the statutory elements of each crime, it is possible to commit first-degree assault without committing first-degree murder and vice versa. The state contends the legislature expressly has provided for multiple punishments for armed criminal action and the underlying felony. It asserts that two of the bullets fired at Williams were not involved in the murder of the child, so the punishment is not for the same conduct.

Smith responds that the trial court did not clearly err in dismissing the assault conviction and related armed criminal action conviction after the jury’s verdicts. He argues these convictions violate his state and federal constitutional rights to be free from double jeopardy. He contends his murder conviction and armed criminal action conviction related to the child’s death were predicated on proof of the same conduct of shooting at Williams that underlies his assault conviction and related armed criminal action conviction. Smith asserts it was impossible to commit murder and armed criminal action without committing assault and armed criminal action, which were lesser-included offenses of the other counts.

SC94313_Smith_first_brief.pdf

SC94313_State_first_brief.pdf

SC94313_Smith_second_brief.pdf

SC94313_State_second_brief.pdf

SC94348
Arthur L. LeBeau Jr., et al. v. Commissioners of Franklin County, Missouri
Franklin County
Challenge to validity of county municipal court, authorizing bill
Listen to the oral argument:

SC94348.mp3
LeBeau, of Villa Ridge represented himself during arguments; the commissioners were represented by Mary E. Zastrow of Purschke, White, Robinson & Becker LLC in Union.

Arthur LeBeau Jr. and Eric Reichert in October 2012 filed a lawsuit alleging that the legislature’s enactment of House Bill No. 1171 was unconstitutional under the state constitution’s single subject and original purpose provisions and that Franklin County’s subsequent order establishing a county municipal court pursuant to that enactment is void. In January 2013, the trial court dismissed the suit, determining LeBeau and Reichert lacked standing (legal ability to sue). On appeal, this Court determined in February 2014 that the individuals had standing and that their suit was ripe for review and remanded (sent back) the case to the trial court. The Franklin County commissioners subsequently moved to dismiss the suit for failure to state a claim on which relief can be granted. In May 2014, the trial court entered its judgment in favor of the commissioners. LeBeau and Reichert appeal.

LeBeau and Reichert argue the trial court erred in not determining the constitutional validity of HB 1171. They contend the court merely copied the commissioners’ proposed judgment without providing its own reasoning. They assert the court failed to consider their proposed judgment, which they argue explicitly spelled out the distinction between the two matters that made HB 1711 unconstitutional. LeBeau and Reichert contend that one challenged section – section 67.320, RSMo – is included in a chapter named “political subdivision miscellaneous power” under the title “county township, and political subdivision government,” while the other challenged section – section 211.031, RSMo – is included in a chapter named “juvenile court” under the title “public health and welfare.” LeBeau and Reichert assert these are two entirely different subjects, found in two different areas of government, one allowing a county of a certain population to establish a county municipal court if the county so wishes and the other providing a mandatory requirement. LeBeau and Reichert argue the commissioners’ answer to their petition should have been filed sooner and fails to respond to the substance of the constitutional arguments they raise. LeBeau and Reichert contend the trial court erred in requiring them to pay the fee for the county commissioners to serve the attorney general with their petition. They assert the trial court previously ruled the county should bear that cost and did not explain its reasoning for reversing itself. They argue they did not request that the attorney general be served because they were challenging the constitutional validity of a bill rather than a statute. LeBeau and Reichert contend the trial court erred in determining they do not seek a resolution that would have any practical effect on an existing controversy or grant them any actual relief, in stating that they were asking the court only to engage in a hypothetical or academic exercise of determining the constitutional validity of the house bill without making any orders affecting any person or entities, and in concluding, therefore, that it was being asked to issue merely an advisory opinion. LeBeau and Reichert assert there is nothing academic or hypothetical in their request for a constitutional determination. LeBeau and Reichert argue the trial court erred in including a particular footnote in its judgment regarding a particular count in the suit. They contend the court erred in not reading the entire legal file to know what was in the original petition and why they purposely omitted a particular count. LeBeau and Reichert assert the trial court erred in attaching to its judgment a senate bill and a different house bill, which never was enacted – that are not part of their lawsuit or this appeal and, therefore, are not relevant. LeBeau and Reichert further argue the trial court erred in not addressing their argument that an attorney who represented the county commissioners had no statutory authority to do so because the attorney is not the county counselor. They contend state law requires the county counselor to defend lawsuits and makes no provision for the county to employ special county counselors. LeBeau and Reichert assert that because the county counselor did not represent the commissioners, all their filings are without merit and should be rejected.

The county commissioners respond that LeBeau and Reichert’s challenge to HB 1171, which enacted section 67.370, is moot because the legislature repealed section 67.370 when it passed Senate Bill No. 621 during its 2014 session, enacting a new section 67.370. The commissioners contend that, because LeBeau and Reichert challenge the repealed version of the statute rather than its new version, the challenge is moot and the case should be dismissed. The commissioners assert that this Court should dismiss the case because LeBeau and Reichert failed to comply with the mandatory provisions of Rule 84.04, which requires a point relied on to identify the trial court ruling the appellant challenges; states concisely the legal reasons for the appellant’s claim of reversible error; explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error; and list the legal authorities supporting the appellant’s argument. The commissioners specify three of LeBeau and Reichert’s points relied on that the commissioners argue fail to comply with all of these requirements. The commissioners contend the trial court correctly held that HB 1171 does not violate the single subject or original purpose provision of the state constitution because both sections of the bill – one about county municipal courts and the other about juvenile courts – pertain to the subject “relating to courts” as described in the bill’s title. The commissioners assert the trial court correctly taxed the costs of service on the attorney general because the case affects the validity of a state statute, noting that the provisions of HB 1171 were enacted into a statute. The commissioners argue the trial court correctly held that LeBeau and Reichert’s prayer for relief is insufficient because it asked the trial court to make an unconstitutional advisory opinion. The commissioners contend LeBeau and Reichert admit they request no specific relief, seeking only for the court to determine the constitutional validity of HB 1171. The commissioners assert that, because SB 636 made the same amendments to section 67.370 that HB 1171 did and because LeBeau and Reichert made no challenge regarding SB 636, no ruling about HB 1171 would affect whether the Franklin County municipal court may prosecute cases. The commissioners argue that the entry of the attorney representing them was appropriate because he lawfully was appointed as an assistant to the county counselor. They contend it is inaccurate to read the statute regarding the county counselor to mean that only one human must handle all the legal matters of a first-class county. They assert other statutes authorize the county counselor to employ assistants and for those assistants to represent the county. As to the remaining points raised by LeBeau and Reichert, the commissioners argue LeBeau and Reichert fail to cite any reversible error for this Court to decide.

SC94348_LeBeau_Brief.pdf

SC94348_Franklin_Co_commissioners_amended_brief.PDF

SC94348_LeBeau_reply_brief.pdf

SC94448
In re: John Roger Irvin
Bates County
Attorney discipline
Listen to the oral argument:

SC94448.mp3
The chief disciplinary counsel was represented during arguments by Sam S. Phillips of the chief disciplinary counsel's office in Jefferson City; Irvin, a sole practitioner in Butler, represented himself.

The surviving family members of a man killed in the fall of 2004 in an automobile accident retained Butler attorney John Roger Irvin to represent them in an effort to obtain a settlement for the man’s wrongful death. Irvin agreed to do so for a fee of one-third of the recovery, after expenses. In the spring of 2005, Irvin petitioned for appointment of a conservator for the deceased man’s minor daughter, alleging she would be receiving funds from a wrongful death claim resulting from her father’s death. The court appointed the child’s mother and paternal grandmother as the co-conservators of the child’s estate. In December 2006, Irvin filed a petition for approval of a wrongful death settlement. The court approved the settlement in January 2007, ordering that the child was entitled to half of a $100,000 insurance policy payable on her father’s death and that her father’s parents were entitled to the other half. Distribution from the policy was subject to a subrogation lien of nearly $3,300 and the one-third attorney fee plus costs to be paid to Irvin. The day the settlement was approved, Irvin deposited the settlement check of about $96,700 into his client trust account. He did not remove his attorney fee – which was approximately $32,200 – from the trust account within a reasonable time thereafter. And, although he advised the mother and grandmother that the court’s order required a restrictive bank account be set up for the minor daughter to receive her share of the settlement, no restrictive bank account ever was established. Further, Irvin did not pay over the funds from the wrongful death settlement promptly to the deceased man’s parents or to the child’s mother.

Before depositing the settlement check into Irvin’s trust account, no funds belonging to the paternal grandmother were held in Irvin’s trust account nor in his operating account. But between March 2006 and January 2007, Irvin wrote the grandmother checks from his client trust account totaling approximately $4,800. At the time, Irvin maintained no records reflecting who owned the funds in his trust account. He also wrote, between July 2006 and January 2007, checks to the grandmother from his operating account totaling approximately $5,900. Although he paid her more than $10,000, Irvin never advised the grandmother that he could not advance her money prior to settlement of the wrongful death case. After Irvin deposited the settlement check into his trust account, he continued writing checks to the grandmother on an ad hoc basis out of the account through the end of the year – totaling nearly $42,000. In all, Irvin gave the grandmother more than $52,000, even though the grandparents’ share of the settlement was only approximately $32,200. In addition, Irvin wrote the child’s mother checks totaling $7,950 but failed to petition the court to approve these payments from funds belonging to the minor daughter as required by the court’s order. Irvin also did not advise the child’s mother that he had paid a significant portion of the child’s share of the settlement to the child’s grandparents. During March and April 2013 hearings in a case on behalf of the child, testimony was presented by Irvin, the grandmother and the mother that all the funds approved for payment to the minor child had been spent, and none of the funds were being held in trust for her.

Further, in May 2004, a man hired Irvin to settle the estate of his deceased mother. The only significant asset in the estate was a house located in Adrian. In August 2004, Missouri Health Net filed a claim against the estate for services that had been provided to the mother and her husband; Irvin states the state agreed to reduce its claim by approximately 50 percent. In July 2006, the court ordered the estate to pay the state’s claim. In August 2007, the court granted a petition to allow the sale of the property. The parties dispute whether the son asked Irvin to provide information to the bank from which the son was seeking a loan to purchase the property. Irvin did not provide such information. The son withdrew funds from his IRA to purchase the property, incurring negative tax consequences. The court approved the sale of the property to the man in September 2007, but despite there being little action in the case, Irvin did not petition the court to approve final settlement of the estate until four years later. The state filed a satisfaction of its claim against the estate in June 2012, the court approved the settlement and distribution of estate assets the next month, and the court issued its final order discharging the estate in November 2012. During those eight years, the man asked Irvin on multiple occasions for information regarding his mother’s estate and asked to meet with him on multiple occasions. The parties dispute whether Irvin communicated or met with the man as requested. The chief disciplinary counsel seeks to discipline Irvin.

The chief disciplinary counsel asks this Court to suspend Irvin’s law license with no leave to apply for reinstatement for two years. The chief disciplinary counsel argues Irvin has violated multiple rules of professional conduct. The disciplinary counsel argues that, in relation to Irvin’s involvement in the wrongful death case, Irvin provided financial assistance to a client in violation of Rule 4-1.8(e); held his own property in his trust account in violation of Rule 4-1.15(a); provided incompetent representation in violation of Rule 4-1.1 by paying a minor’s monies to be held in trust to the minor’s mother and grandmother simply because they asked for it; failed to communicate with the minor’s mother regarding dissipation of the minor’s funds to the grandmother and continued representing clients after their interests became adverse in violation of Rules 4-1.4 and 4-1.7(a); failed to comply, in violation of Rule 4-3.4(c), with the court order requiring a restrictive bank account to be established; and, in violation of Rule 4-8.4(d), assisted the mother and grandmother in violating the court order. The disciplinary counsel contends that, in relation to Irvin’s involvement in the case involving the estate of the man’s deceased mother, Irvin failed to provide diligent representation, in violation of Rule 4-1.3; and failed to communicate adequately with his client, in violation of Rule 4-1.4(a). The chief disciplinary counsel asserts that a suspension with no leave to apply for reinstatement for two years is appropriate because Irvin admitted violating numerous rules of professional conduct, the most serious of which involve his knowing violations of the court order regarding the minor’s share of her father’s wrongful death settlement.

Irvin asks that he be given until December 2014 to surrender his license to practice law so he can complete pending cases. He argues he has cooperated with the disciplinary authorities, has been honest and forthright in answering all questions and inquiries, and has completed all directions from the disciplinary hearing panel. Irvin contends he was unaware the man who hired him to administer his mother’s estate needed Irvin to provide information to a bank, nor did the bank contact Irvin. He asserts he gave the man information about the progress of the estate on numerous occasions and always was willing to discuss the matter with the man on a walk-in basis when Irvin was available. Irvin argues that he told the mother and grandmother that a bank account must be set up for the child’s benefit and that they promised they would do so, although they did not. He contends that all the money in his possession for the benefit of the minor child was paid to her co-conservators and that there is no allegation that he stole or has in his possession any monies from the settlement. Irvin asserts that he has been sued by the county public administrator regarding the minor child’s estate and is fully cooperating with the attorney defending the suit on behalf of his malpractice insurance carrier.

SC94448_Disciplinary_Counsel_brief.pdf

SC94448_Irvin_brief.pdf

SC93648
State of Missouri v. Robert Blake Blurton
Benton and Clay counties
Direct appeal of murder conviction, death sentence
Listen to the oral argument:

SC93648.mp3
Blurton was represented during arguments by Craig A. Johnston; the state was represented by Daniel N. McPherson of the attorney general's office in Jefferson City.

Donnie and Sharon Luetjen lived in Cole Camp with their teenage granddaughter, Taron Luetjen, whose father had been killed in an automobile accident. They won custody of the girl following a dispute with the girl’s biological mother, who had not been permitted to see the girl. After the girl failed to attend driver’s education class on two consecutive days in June 2009, a neighbor was unable to reach anyone in the Luetjen home. The neighbor called the Luetjens’ daughter, who suggested the neighbor walk to the Luetjens’ home to check on things. The neighbor subsequently called 911, and the police chief found, lying on the living room floor, the bodies of the three Luetjens, all gagged and with their hands loosely bound behind their backs. Each had died from a gunshot wound to the back of the head. There was no money in either the grandfather’s wallet or the grandmother’s purse. Contents of the home appeared to have been disturbed or missing. A recording of a 911 call made from the granddaughter’s cellular telephone contained at least two male voices and one female voice in the background. When law enforcement officers asked the Luetjens’ daughter to listen to the recording, she identified the voice of her mother and a male voice she thought sounded like that of Robert Blake Blurton, who had lived with the Luetjens for a few months in 2004. Officers arrested Blurton at his former girlfriend’s home in Garnett, Kansas. The state charged Blurton – as a prior and persistent offender – in Benton County with three counts of first-degree murder. On a change of venue, the case was moved to Clay County, where it was tried to a jury in June 2013. After deliberating for about four hours following the guilt phase of trial, the jury found Blurton guilty of all three counts of first-degree murder. Following the penalty phase of trial, the jury recommended three death sentences after finding the existence of four statutory aggravating factors for each count – that Blurton’s November 1988 conviction for first-degree robbery constituted a serious assaultive conviction; that Blurton committed each murder while engaged in the commission of two other unlawful homicides; and that the murders involved depravity of mind and were outrageously and wantonly vile, horrible and inhuman because Blurton killed the victims after binding them or otherwise rendering them helpless, exhibiting a callous disregard for the sanctity of human life. In August 2013, the trial court overruled Blurton’s motion for a new trial and sentenced him to death as to each count in accord with the jury’s recommendations. Blurton appeals.

Blurton argues the trial court failed to give an instruction for the lesser-included offense of felony murder although it was supported by the evidence and was the theory primarily argued by the defense. He contends he timely requested the instruction, there was a basis in the evidence to acquit him of the charged offense of first-degree murder, and there was a basis in the evidence to convict him of the lesser-included offense of felony murder. He asserts this is reversible error violating his federal and state constitutional rights to due process, to present a defense, and to be free from cruel and unusual punishment.

Blurton argues the trial court abused its discretion in allowing a state highway patrol analyst to testify about the location of cellular telephone towers his cellular telephone purportedly used near the time of the murders. He contends this is a subject for an expert witness, but the state did not qualify the witness as an expert regarding such evidence and the witness admitted he was not an expert “in anything.” Blurton asserts this testimony violated his federal and state constitutional rights to due process and a fair trial, resulting in prejudice to him because the state argued this testimony showed he was at the murder scene when the murder occurred. Blurton argues the trial court abused its discretion in overruling his objection to the hearsay testimony of the state’s fingerprint expert that other experts in the laboratory where she worked had verified her conclusion that Blurton’s fingerprints were at the crime scene and that this peer-review process made her confident in her conclusions. He contends this verification evidence violated his federal and state constitutional rights to due process, a fair trial, and confrontation and cross-examination, improperly bolstered the witness’s opinions, and prejudiced him because this witness’s testimony physically linked him to the crime.

Blurton asserts the trial court abused its discretion in partially granting the state’s motion concerning the possible defense that someone else committed the crime. He argues this resulted in the jury not hearing evidence that, about two hours before the murders, the granddaughter’s biological mother was seen leaving and then reentering the Luetjens’ home and acting suspiciously, although she later denied during questioning that she had been at the Luetjens’ home. He contends the court precluded him from arguing the granddaughter’s biological mother was involved in the murders without first presenting an additional overt act connecting her with the murders. He asserts that he was entitled to present evidence that this woman might have been involved in the murders and that the trial court preventing him from doing so violated his federal and state constitutional rights to due process, to a fair trial and to present a defense. Blurton argues the trial court abused its discretion in preventing the jury from hearing evidence from the Luetjens’ daughter that, in her handwritten statement to law enforcement officers, she expressed concern for her safety and the safety of her family because of the granddaughter’s biological mother and that woman’s mother, the latter of whom had threatened the Luetjens’ neighbor. He contends this prohibition of evidence denied his federal and state constitutional rights to due process, to a fair trial and to present a defense. He asserts he was entitled to cross-examine the daughter about anything that might have motivated her to distort or exaggerate her testimony, including any fear, intimidation or duress she might have about the granddaughter’s biological mother. He argues this prejudiced him because the daughter identified his voice as in the background of the granddaughter’s 911 call, and the jury was entitled to know anything that would motivate her to make that voice identification. Blurton contends the trial court abused its discretion in not allowing the jury to hear evidence from the Luetjens’ neighbor about threatening telephone calls she and her sister received from the granddaughter’s biological mother and the mother’s mother on the day the Luetjens’ bodies were discovered. He asserts he was entitled to present this evidence because the neighbor’s testimony would have confirmed the daughter’s fear of the two women and corroborated the daughter’s excluded testimony about the threatening telephone calls. He argues the court’s preclusion of this evidence violated his federal and state constitutional rights to due process, to a fair trial and to present a defense.

Blurton contends the trial court abused its discretion in denying his requests for mistrials after the prosecutor three times unexpectedly displayed to witnesses, on a large television screen, graphic photographs of the Luetjens’ dead bodies, triggering emotional reactions from witnesses, jurors and spectators. He asserts this violated his federal and state constitutional rights to due process and a fair trial and caused his sentence to be imposed under the influence of passion, prejudice or other arbitrary factors.

The state responds that Blurton was not prejudiced by the trial court’s refusal to give the jury his requested lesser-included offense instruction. The state argues the court instructed the jury regarding the conventional lesser-included offense of second-degree murder and did not need to give an instruction regarding the additional lesser-included offense of second-degree felony murder. The state contends the proffered instructions were not in the proper form and did not have the accompanying instructions the notes on use required to be given. The state asserts that Blurton was not prejudiced as a result and that reversal is not warranted.

The state responds that the trial court properly admitted the evidence regarding cellular towers. The state argues that the analyst who testified did not offer any opinions but rather testified about factual information based on the contents of Blurton’s cellular telephone records and the carrier’s book listing tower locations. The state contends that the analyst’s testimony reading the coordinates of the cellular sites and plotting them on a map accurately is described as that of a clerk describing how he performed an assigned task and that numerous other states have ruled that expert testimony is not required for this type of information. The state asserts the analyst’s testimony left the jury free to form its own opinions, distinguishing this case from one questioning whether expert testimony is needed about the location of cellular cites used by a cellular telephone. The state argues that Blurton was not prejudiced because, even without the cellular tower evidence, the state presented overwhelming evidence of Blurton’s presence at the crime scene during the time of the murders. The state responds that the fingerprint expert’s testimony that her work had been verified does not warrant reversal. As to most of this testimony, the state contends Blurton received all the relief he requested as to this testimony at trial and now cannot complain about the testimony on appeal; it was Blurton’s responsibility to request a more drastic remedy if he believed it was warranted. As to the one portion of testimony for which the court overruled Blurton’s objection – that there were no issues after the expert’s findings had been reviewed by other analysts – the state asserts Blurton’s hearsay argument should be rejected because the verification process helped form the basis for the expert’s opinion. The state argues that, because he failed to make any argument demonstrating how the expert’s testimony violates the confrontation clause, Blurton has abandoned this portion of his point on appeal and that, even had he developed this argument, it would not have been well-taken because Missouri courts have held that expert testimony does not violate the confrontation clause if the expert is testifying about his or her own independently developed opinions, even if those opinions are based in part on the observations of a non-testifying person. The state contends that, even if the court did err in this regard, Blurton cannot show prejudice or manifest injustice because this portion of the expert’s testimony was given in context of the expert’s identification of the granddaughter’s fingerprint, the granddaughter’s presence in the home is undisputed, and other evidence physically links Blurton to the crime scene.

The state responds that the trial court properly restricted Blurton from arguing another person committed the murders and that Blurton failed to preserve this claim fully for appellate review. The state asserts that the court’s ruling did not preclude Blurton from presenting evidence that a witness saw the granddaughter’s biological mother outside the Luetjen home about two hours before the murders. The state argues the court correctly precluded Blurton from arguing this woman was responsible for the murders without first producing evidence demonstrating a direct connection between the woman and the murders, which it contends Blurton’s proposed evidence would not have done. The state asserts that, even if the custody dispute might have provided the woman a motive to kill the grandparents, it would not explain why she would want her own daughter – to whom she reportedly wanted more access -- murdered. The state responds that the trial court properly excluded testimony by the Luetjens’ daughter about threats made to the Luetjens’ neighbor after the murders by the granddaughter’s maternal grandmother. The state argues the constitutional right to present a defense is not absolute, as the accused does not have an unfettered right to offer inadmissible evidence. The state contends the daughter’s testimony about what the neighbor told her the maternal grandmother told the neighbor would have constituted inadmissible hearsay within hearsay and was logically irrelevant to the daughter’s motive to identify Blurton’s voice on the 911 recording. The state asserts Blurton cannot demonstrate either prejudice or manifest injustice from the exclusion of this evidence because another witness identified his voice on the recording and the 911 call was not the only evidence connecting Blurton to the murders. The state responds that the trial court properly excluded the neighbor’s testimony about threats made to her after the murders by the granddaughter’s maternal grandmother. The state argues this testimony, too, would have constituted hearsay and lacked logical and legal relevance. It contends Blurton cannot show prejudice or manifest injustice because the excluded testimony would not have exonerated him.

The state responds that the trial court did not abuse its discretion in denying Blurton’s requests for mistrial based on the display of the graphic photographs. The state asserts that Blurton concedes these photographs all were admitted into evidence and that Blurton does not contest the decision to admit them. The state argues the trial court is given deference in determining whether a mistrial is warranted because it is in the best position to determine the effect of a particular incident on the jury and whether the incident resulted in prejudice to the defendant. The state contends the trial court made clear that, based on its own observations of what happened and the jurors’ reactions, a mistrial was not warranted.

SC93648_Blurton_brief.pdf

SC93648_State_brief.pdf

SC93648_Blurton_reply_brief.pdf