In the summer of 2004 the bodies of women began turning up in a stretch of Kansas City east of downtown along Prospect Avenue, in vacant lots, an alley and a garage. On September 6 a woman flagged down police and told them that Terry Blair had said he was going to kill all the prostitutes one by one. Blair was forty-two and had served twenty-one years for beating to death Angela Monroe, the mother of his child, in 1982. He was charged with eight murders, three rapes and an assault; six counts were dropped. He waived a jury, and on March 27, 2008, a Jackson County judge found him guilty of murdering Sheliah McKinzie, 38, Patricia Wilson Butler, 45, Carmen Hunt, 40, Anna Ewing, 42, Darci Williams, 25, and Claudette Juniel, 31. He was sentenced to six consecutive terms of life without parole and died in custody on May 11, 2024, at sixty-two.
Lorenzo Gilyard was the other Kansas City case. A former trash company supervisor, he was arrested on April 16, 2004, after crime lab workers using a federal grant matched his DNA to evidence from the killings of women strangled in the city between 1977 and 1993. He agreed to be tried by a judge alone in exchange for the prosecution dropping the death penalty, and on March 16, 2007, Judge John O'Malley convicted him of the murders of Catherine Barry, Naomi Kelly, Ann Barnes, Kellie Ford, Sheila Ingold and Carmeline Hibbs, acquitting him of the murder of Angela Mayhew, the one case without DNA. He was sentenced to life without parole.
The four entries here come from the Missouri Court of Appeals, Western District. The two Blair opinions, from 2009 on his direct appeal and 2013 on his claim that his trial lawyer failed him, carry the evidence: the timeline of each woman's disappearance, the seven-hour interrogation that a local television crew filmed and did not keep, and the testimony of Darci Williams's mother that he was the last man she saw her daughter with. The two Gilyard entries are orders of fewer than a hundred words each, affirming his convictions in 2008 and the denial of post-conviction relief in 2010, with the reasoning set out in a memorandum that went to the parties and was never published.
Two cases share this page because they share a court, a county and a kind of record, not because they are connected; Blair and Gilyard were not accused of the same killings. Gilyard's entries are as thin as a published appellate ruling can be. Missouri's appeals courts may decide a case by unpublished memorandum, and when they do, the published record is only the order saying the judgment stands. Everything above about his trial comes from reporting at the time, and the opinions say nothing about the evidence against him.
The court spells the first victim's surname McKenzie and gives the second as Patricia Wilson. Reporting at the time of the charges and at Blair's death gives Sheliah McKinzie and Patricia Wilson Butler, and we have used those forms in our own account. Some reports at his death added Angela Monroe to the six, which is how Wikipedia comes to count seven. The court's own account of the television footage says only a local station and a production company; that it was an episode of a television crime series comes from later press.
The woman who went to the police on September 6, 2004, is C.C. here, and the house numbers of the addresses where Blair was staying that summer have been removed. Darci Williams's mother testified at trial and is named as the court named her. Nothing else in the four rulings was changed. They were scanned from the South Western Reporter, and the scan left its marks, words split where a printed line broke, as in "Dar-ci," and one misread that turns "Blair stayed" into "Blau-stayed." We print them as they came, because the courts' words are public domain and the scan is the only copy we have worked from.
STATE of Missouri, Respondent, v. Lorenzo J. GILYARD, Appellant.
No. WD 68300.
Missouri Court of Appeals, Western District.
July 22, 2008.
Ruth Sanders, Kansas City, MO, for appellant.
Jayne T. Woods, Jefferson City, MO, for respondent.
Before THOMAS H. NEWTON, C.J., LISA WHITE HARDWICK, and ALOK AHUJA, JJ.
[OPINION BY PER CURIAM. type=majority]
ORDER
PER CURIAM.
Lorenzo Gilyard appeals his convictions for six counts of first-degree murder. He challenges the sufficiency of the evidence.
For reasons stated in the memorandum provided to the parties, we affirm. Rule 80.25(b).
STATE of Missouri, Respondent, v. Terry A. BLAIR, Appellant.
No. WD 69602.
Missouri Court of Appeals, Western District.
Aug. 18, 2009.
Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 27, 2009.
Application for Transfer Denied Dec. 22, 2009.
Frederick Joseph Ernst, Assistant State Public Defender, Kansas City, MO, for Appellant.
Shaun J. Mackelprang, Evan J. Buch-heim, Assistant Attorneys General, Jefferson City, MO, for Respondent.
Before JOSEPH M. ELLIS, P.J., JAMES E. WELSH, J., and ZEL M. FISCHER, SP.J.
[OPINION BY ZEL M. FISCHER, Special Judge. type=majority]
ZEL M. FISCHER, Special Judge.
This case involves the appeal of six separate murder convictions and six consecutive sentences of life without parole that resulted from a single bench trial. The issues raised on appeal are: (1) sufficiency of the evidence to support the convictions; (2) whether the trial court made inappropriate findings not supported by the record; and (3) whether the trial court erred in not suppressing the statements of the defendant based on the failure of the police to preserve the audio-visual recording of the interrogation. The judgment is affirmed.
General Facts
In December 2004, Terry A. Blair was charged in Jackson County circuit court with eight charges of first-degree murder, § 565.020, RSMo 2000, for the 2004 murders of eight women in Kansas City, Missouri. Blair was also charged with first-degree assault, § 565.050, RSMo 2000, and three charges of forcible rape, § 566.030, RSMo 2000.
Prior to trial, the State and Blair reached an agreement in which the State would dismiss two of the murder charges, dismiss the assault and forcible rape charges, and not seek the death penalty. In exchange, Blair agreed to permit admission of a witness’ statement if she could not be located to testify at trial.
Blair waived his right to a jury trial, and on March 27, 2008, after a bench trial, the trial court found Blair guilty of the murders of Sheliah McKenzie, Patricia Wilson, Carmen Hunt, Anna Ewing, Darci Williams, and Claudette Juniel. On April 24, 2008, the trial court entered judgment and sentenced Blair to six consecutive sentences of life imprisonment without the possibility of parole.
Blair contests the sufficiency of the evidence to support his convictions. To avoid repetition, the general evidence, in a light most favorable to the verdict, is presented here. Specific evidence relating to each murder is included with the corresponding analysis.
a. Summer 2004
Throughout the summer of 2004, Blau-stayed with his mother, who lived at Prospect, and with his sister, who lived at West Bluff. The man living above Blair’s mother often let prostitutes eat, sleep, and shower at his apartment. Blair’s grandmother lived nearby at 2454 Olive.
b. Anonymous 911 Calls
On September 3, 2004, at approximately 10:39 p.m., an unidentified male made a 911 call from a deactivated cell telephone without a SIM card (meaning no number was attached to identify the telephone making the call) to report a dead body at 29th and Park. (This body would later be identified as Carmen Hunt). At trial, a linguistics professor identified the 911 caller as an urban, native-English-speaking, African-American male in the lower-middle to upper working class.
The caller told the 911 dispatcher that the body was in the back yard at the northeast house on the corner. When asked how he knew there was a dead body there, he said, “I put it there.” The caller refused to identify himself. When he was asked a second time how he knew the body was there, the man stated, “Because I put the two on 25th and Montgall, and I put that there.” (In context, the caller is referring to the bodies of Sheliah McKenzie and Patricia Wilson).
The caller told the dispatcher the body at 29th and Park was in the back yard of an abandoned house on the corner and that it was “all the way to the fence by the alley, buried up under tree branches. It’s been there for about two months.” The caller said he did not know the victim’s name, but knew she was a prostitute.
The caller again confirmed that he killed the other two prostitutes whose bodies were found at 25th and Montgall and then hung up.
On September 4, 2004, at 6:51 p.m., the same unidentified man, using the same cell telephone, called 911. The caller told the 911 dispatcher that he had called the day before to “report bodies” and that he was calling again to report “two more bodies.”
The caller stated that one body was at 24th and Prospect “in the alley right next to the gate by the U-Haul place” and was covered by “black vinyl.” (This body would later be identified as Darci Williams). The caller stated the other body was at 27th and Olive and covered with brush and pillows. (This body would later be identified as Claudette Juniel). The caller said the victims were prostitutes and that he killed them because they were “scum” and a “disgrace.” The caller refused to give his name, but told the dispatcher that the body at 27th and Olive had been there for about six weeks and that the one at 24th and Prospect had been there only a week. The caller told the dispatcher, “you can smell her.” The caller told the dispatcher that he did not know the victims’ names, but that he was killing these women because they were prostitutes.
The caller went on to tell the dispatcher that he put the two bodies at 26th and Montgall (McKenzie and Wilson), and when asked if there were other victims, the caller mentioned the body found at 23rd and Prospect (Anna Ewing), but said that “they find [sic] her long time ago.”
The cell telephone used to make these two calls, as well as a 911 hang-up call on August 30, 2004, was a T-Mobile cell telephone stolen from a maintenance company. Although the telephone did not have an internal SIM card, all phones have an International Mobile Equipment Identifier and a feature that always allows a cell telephone to dial 911. No further calls were attempted from this cell telephone after it was reported that police were attempting to track the location of the caller.
Officers made “test calls” with a T-Mobile cell telephone from Blair’s mother’s apartment and Blair’s sister’s duplex in an attempt to determine the location of the 911 caller. The officers’ tests showed that the September 3rd call originated from the south of a cell tower at 18th Street and Prospect. Blair’s mother’s apartment was directly south of this tower. The August 30th hang-up call and the September 4th call both originated from the north of a tower located at 3330 Roanoke. Blair’s sister’s duplex at West Bluff is directly north of this cell-phone tower.
During the September 4, 2004, 911 call, the sounds of children playing and a train horn could be heard in the background. There are two playgrounds within a short distance of Blair’s sister’s housing complex, including one just behind her residence. Blair’s sister’s duplex is also located near several sets of railroad tracks. Train records and GPS coordinates show that a train blew its horn at 6:53 p.m. on September 4, 2004 (the 911 call that night started at 6:51), in a location near Blair’s sister’s duplex. At trial, a friend of Blair’s testified that it was possible to hear the trains from Blair’s sister’s duplex.
c. Blair’s Arrest
On September 6, 2004, C.C. flagged down police and told them that Blair told her he was going to kill all prostitutes one by one because they were the scum of the earth. Earlier that summer, Blair paid C.C. for sex. C.C. also told police that Blair had been stalking her and told her what she had been wearing the previous week. Blair also told C.C. he killed his first wife because she had become a prostitute.
On September 10, 2004, Blair was at a friend’s house when his picture was featured in a newscast as a person of interest in a string of murders committed along the Prospect corridor. Blair’s friend pretended she did not recognize him as the person of interest. When Blair left her house, she called the police. Blair later returned to his friend’s house and hid in the garage. Police found Blair between the rear of a car and the back of the garage.
After his arrest, Blair received the Miranda warnings and agreed to talk to police. Blair was shown pictures of five of the victims. Blair denied having contact with any of the victims or being at any of the locations where the bodies were found.
Blair would later state that he recognized Darci Williams and that he had seen her ten or eleven days earlier. Blair denied ever having sex with Williams. Blair also denied ever having sex with any of the victims or any prostitute except for a woman named “Peaches” whom he paid for sex in 2002.
Blair also denied that he had made the anonymous 911 calls. Blair told police that on September 3 and 4, 2004, when the calls were made, he helped his mother move out of her apartment and stayed with his sister (thus placing him in the areas from where the 911 calls were made).
I.
Sufficient evidence exists to support all six of Blair’s convictions for first-degree murder
Blair alleges insufficient evidence supports all six of his convictions for first-degree murder. Blair alleges that the DNA evidence admitted by the State fails to identify him as McKenzie’s killer. Blair further extrapolates that because the State’s DNA evidence failed to identify him as McKenzie’s killer, that there was insufficient evidence to support his conviction for murdering any of the six victims because the DNA evidence was the only direct association between Blair and any of the victims. Blair also argues that the court made impermissible inferences, unsupported by the evidence, to conclude that McKenzie’s last conscious act was intercourse with Blair before he killed her.
a. Standard of Review
When considering a claim that alleges insufficient evidence to support a conviction, an appellate court’s review is limited to determining whether the evidence is sufficient for a reasonable juror to find each element beyond a reasonable doubt. State v. Freeman, 269 S.W.3d 422, 425 (Mo. banc 2008). The sufficiency of the evidence in a court-tried case is determined by the same standard as in a jury-tried case. State v. Downen, 3 S.W.3d 434, 435 (Mo.App.1999).
This Court does not review the evidence de novo; rather it considers the record in the light most favorable to the verdict. State v. O’Brien, 857 S.W.2d 212, 215-16 (Mo. banc 1993). Moreover, this Court does “not weigh the evidence anew since the fact-finder may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances and other testimony in the case.” Freeman, 269 S.W.3d at 425 (internal citations and quotations omitted). As a result, this Court does not act as a “super juror” with veto powers; instead it gives great deference to the trier of fact. State v. Grim, 854 S.W.2d 403, 414 (Mo. banc 1993).
b. The record supports the determination that Blair was the anonymous 911 caller
At the outset of this analysis, it is especially helpful to establish that sufficient evidence supports the trial court’s finding of fact that Blair was the 911 caller. This is because at trial and oral argument, it was conceded that one person killed all six victims. In its judgment, the trial court observed this when it noted, “[a]s everyone involved has stated, identify the caller because he must also be the killer.” In this regard, however, it is important to remember that this factual determination was merely one factual finding that was used cumulatively with all the other evidence to prove guilt beyond a reasonable doubt.
At trial, a linguistics professor identified the 911 caller as an urban, native-English-speaking, African-American male in the lower-middle to upper working class. Blair fits this description.
Test calls made by police establish that the caller and Blair were in the same vicinity when the calls were made. The August 30th and September 4th calls originated from a cell phone tower located at 3330 Roanoke. This tower is directly south of Blair’s sister’s duplex at West Bluff. Out of seven test calls made from Blair’s sister’s duplex, three calls originated from the Roanoke cell tower and reported the identical longitude and latitude of as the anonymous 911 calls made from Blair’s sister’s residence.
Other evidence places the calls in the vicinity of Blair’s sister’s duplex. There are two children’s playgrounds within a short distance of the duplex, and the sound of children playing can be heard in the background of the call. The duplex is also near train tracks. A train horn can be heard in the call. Evidence from a train’s onboard computer and GPS showed that it blew its horn during the call and while it was near the duplex. One of Blair’s friends testified that trains could be heard at the duplex.
The September 3rd call originated from a tower at 18th and Prospect. Blair’s mother’s apartment is directly south of this tower at Prospect. Nine test calls were made in front of Blair’s mother’s apartment, five originated from the cell tower at 18th and Prospect and one call reported the identical latitude and longitude as the anonymous 911 call made on September 3rd.
Blair admitted to being at both his mother’s and sister’s residence on September 3rd and 4th, telling police that he helped his mother move out of her apartment on Prospect and that he stayed at his sister’s duplex at West Bluff. Thus, Blair was in the vicinity where the 911 calls were made.
Finally, Blair made comments very similar to the 911 caller. At trial, C.C. testified that Blair told her he killed his first wife because she had become a prostitute and that he was going to kill all prostitutes because they were scum of the earth. The 911 caller told the dispatcher that he killed the prostitutes because “they are scum” and “a disgrace.” The trial court found this to be “stunningly identical.”
The trial court’s conclusion that Blair was the anonymous caller is supported by the record. That Blair was the 911 caller is important; Blair’s identity as the 911 caller, in light of the facts that Blair identified the location of all six bodies and the concession at trial and oral argument that one person killed all six victims, is significant evidence supporting the sufficiency of his convictions.
c. Sufficient evidence supports Blair’s conviction for the murder of Sheliah McKenzie
Blair alleges insufficient evidence to support his conviction for the first-degree murder of Sheliah McKenzie arguing that the DNA evidence on her body does not establish beyond a reasonable doubt that he killed McKenzie.
The elements of first-degree murder are: (1) knowingly (2) causing the death of another (3) after deliberation on the matter. State v. Tisius, 92 S.W.3d 751, 764 (Mo. banc 2002). Due process requires the State to prove beyond a reasonable doubt every element of a criminal offense. In re Winship, 397 U.S. 358, 361-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
“[A]ll the elements of a homicide case may be proved circumstantially.” State v. Morris, 564 S.W.2d 303, 309 (Mo.App.1978). Circumstantial evidence is given the same weight as direct evidence. Grim, 854 S.W.2d at 405-06; see also State v. Hutchison, 957 S.W.2d 757, 767 (Mo. banc 1997).
McKenzie’s mother told police she last saw her daughter at about 11 a.m. on September 2, 2004. McKenzie’s body was found that same day. A Kansas City police officer was investigating a foul odor near 26th and Montgall. After further investigation, the officer went inside a detached garage at 2609 Montgall and found McKenzie’s body under a tarp and stacked on top of the body of Patricia Wilson.
McKenzie’s body was nude from the ankles to the clavicle with a dress and t-shirt bunched about her neck and shoulders. McKenzie’s neck had been broken, and there was evidence she had been strangled. Officers found McKenzie’s blood on the carpet inside of a house under renovation at 2617 Montgall.
A test of material taken from under McKenzie’s fingernails revealed male DNA. Semen found on both of McKenzie’s thighs was tested and proven to be Blair’s DNA. Rectal and vaginal swabs also contained Blair’s DNA. An acid phosphate test showed that Blair ejaculated into McKenzie within one day of when her body was found. When police questioned Blair, he denied ever knowing or having sex with McKenzie.
At trial, the court heard testimony that gravity will cause semen to leak from the vaginal vault and testimony that clothing rubbing against the skin would cause DNA to be sloughed off of a person’s skin. Based on that testimony and the DNA evidence found on McKenzie, the court determined that McKenzie’s last conscious act was intercourse with Blair.
The court noted that because of the semen on her body, “it was fair to assume” that if McKenzie’s murder was not during or immediately after intercourse, she would have urinated and cleaned herself, thus partially or completely eliminating the semen. The court also determined that if McKenzie had been able to walk around after intercourse, the semen on her thighs would have been sloughed off. Instead, the court found McKenzie’s body was killed in the abandoned house and that when Blair dragged her body into the garage semen “easily could have leaked out and onto her thighs in transit.”
The DNA evidence, however, is not the only evidence supporting Blair’s conviction for the first-degree murder of McKenzie. The court also noted Blair’s denial of having ever known or having sex with McKenzie. Blair’s denial evidenced a consciousness of guilt. State v. Perry, 275 S.W.3d 237, 249 (Mo. banc 2009) (A finder of fact may reasonably infer lying as consciousness of guilt). Considering that Blair had sex with McKenzie approximately ten days before his interview with police, his denying that he knew her or ever had sex with her is especially compelling evidence of guilt. Compare State v. Calhoun, 259 S.W.3d 53, 55-57 (Mo.App.2008) (The defendant’s denials fourteen years later of having sex with the victim despite the presence of semen in her evidenced a consciousness of guilt).
Blair also showed a consciousness of guilt when he hid from the police after seeing himself described as a person of interest in the case. State v. Kalagian, 833 S.W.2d 431, 434 (Mo.App.1992) (“Evidence that a defendant avoided arrest is admissible as indicating a consciousness of guilt”).
Still, there is more evidence supporting Blair’s guilt. As previously established, Blair was the anonymous 911 caller. In his September 3rd call, Blair admitted that he killed McKenzie:
[Blair]: I want to report a dead body.
[Dispatcher]: Where?
[Blair]: On 29th and Park.
[Dispatcher]: 29th and Park?
[Blair]: In the back yard at the northeast house on the corner.
[Dispatcher]: Northeast house on the corner?
[Blair]: Yeah.
[Dispatcher]: How do you [know] it’s a dead body there?
[Blair]: I, I put it there.
[Dispatcher]: What’s your name?
[Blair]: Oh, no. Have them look up under the branch.
[Dispatcher]: Look up under what?
[Blair]: The bushes by the alley.
[Dispatcher]: Look up under the bushes by the alley?
[Blair]: Yeah.
[Dispatcher]: How do you know the body’s there?
[Blair]: Because I put the two on 25th and Montgall, and I put that there.
[Dispatcher]: Who is the person?
[Blair]: I don’t know her name.
[Dispatcher]: Where’s [sic] you meet her at?
[Blair]: She’s a prostitute.
[Dispatcher]: She was a prostitute?
[Blair]: So was the other two killed on 25th and Montgall, prostitutes.
[Dispatcher]: And you killed them, also?
[Blair]: Yeah.
Blair’s admission is direct evidence of his guilt. State v. Wilbon, 874 S.W.2d 541, 542 (Mo.App.1994). Blair’s admission coupled with the DNA evidence and his denial of ever knowing McKenzie also proves he murdered McKenzie because his denial, as evidence of his guilt, corroborates his confession. State v. Miller, 139 S.W.3d 632, 637 (Mo.App.2004) (An offense is sufficiently proven where independent evidence corroborates a defendant’s confession).
d. The court did not rely on evidence or inferences from the evidence not supported by the record to determine that Blair murdered McKenzie
Blair alleges that the court relied on evidence or expert opinions not appearing in the record to support its inferences about how clothing, body functions, and personal care would have affected the semen in McKenzie’s vagina and on her thighs. Specifically, Blair complains of the court’s inference that semen was not affected by McKenzie’s clothing and that Blair was more likely to be the last person in her presence. Blair also complains of the court’s inference of how long sperm might remain inside of a woman’s vagina, on her body, that it could be wiped away after urination, or the affect that gravity would have on semen inside a woman’s vagina.
The responsibilities of fact finders include weighing the evidence presented, judging the credibility of evidence, and making reasonable inferences from the evidence presented. These responsibilities substantiate the rationale that an appellate court is compelled to consider evidence and all reasonable inferences in a light most favorable to the conviction when considering whether there is sufficient evidence from which a trier of fact could have reasonably found each element of a crime beyond a reasonable doubt. State v. Gilbert, 103 S.W.3d 743, 749 (Mo. banc 2003).
The court’s inferences were based on evidence supported by the record. The State’s expert witness, the quality assurance director at the Kansas City police department’s crime laboratory, testified that there is a well documented dissipation rate for semen in the vaginal cavity. The result of the acid phosphate test (a test that looks for an enzyme found in semen) will diminish in intensity as semen dissipates. This can be due to “normal dissipation from the vaginal vault itself or just decomposition of the acid phosphate enzyme as it sits in the vaginal vault.”
The director also testified that movement of the body causes dissipation. Once a person stands up, “gravity takes effect, and the fluid will move according to gravity.” The director testified that a pair of jeans found near Anna Ewing’s body showed that Ewing had put the jeans on after intercourse with another man.
During cross-examination, the director testified that clothing rubbing against the skin would cause DNA to be sloughed off of a person’s skin.
Thus, the record contains evidence that semen will dissipate from the vaginal vault after being deposited and that its presence in or on a body can be affected by gravity or clothing. This evidence refutes Blair’s contention that the court relied on evidence or inferences from the evidence not supported by the record.
Blair also argues that under Calhoun, 259 S.W.3d at 53, the trial court, as the fact-finder, was prohibited from making inferences concerning how gravity and everyday activities affect semen.
In Calhoun, the State’s expert witness testified that a victim was flat on her back for at least fifteen minutes after intercourse because gravity had caused semen to flow up her buttocks. Id. at 57-58. The defendant alleged that the court should have sua sponte struck the witness’ testimony because the witness was in no better position than the jury to form an opinion as to the effect of gravity on semen. Id. at 58. This Court found it was not plain error to admit the testimony because it “is technically correct that an average person understands gravity, it is not evident or clear that an average person would be able to apply that generalized understanding to the facts of Calhoun’s case and draw the conclusions that Olsson did. The circuit court did not plainly error in admitting Olsson’s testimony.” Id. at 59.
Blair argues that under Calhoun, the court’s inferences concerning gravity and its effect on semen required expert testimony. Calhoun does not suggest that testimony from an expert witness is necessary before the State can prove that gravity will cause semen to run out of the vaginal vault, that clothing would wipe off a woman’s upper thigh area, or that semen can be dissipated by urinating and wiping af-terwards. Contained in Blair’s argument is the implicit allegation that the trial court was not capable of applying expert testimony to the facts of the case and forming conclusions. Here, the court’s inferences were the result of the application of testimony to the facts of the case.
e. Sufficient evidence supports Blair’s conviction for the murder of Patricia Wilson
As detailed above, on September 2, 2004, police found the body of Sheliah McKenzie hidden under a tarp in a garage at 2609 Montgall. Patricia Wilson’s body was hidden underneath McKenzie. Wilson’s body was badly decomposed, and her death was ruled a homicide because her body had been concealed. Wilson’s blood was found smeared on the kitchen floor in a house at 2617 Montgall (this is the same house where McKenzie’s blood was found on the carpet).
Blair’s identity as Wilson’s murderer is established by the fact that he dumped McKenzie’s body on top of Wilson’s badly decomposed body. Wilson’s body was concealed, and the fact that he knew where her body was and stored McKenzie’s body on top of Wilson’s body indicates he knew where he could hide McKenzie’s body because he murdered Wilson and hid her body in the same location.
Blair also identified himself as Wilson’s killer in the 911 call. After taking credit for the body at 29th and Park, Blair took credit for murdering the two bodies found on Montgall:
[Dispatcher]: How do you know the body’s there?
[Blair]: Because I put the two on 25th and Montgall, and I put that there.
Blair’s admission is direct evidence of his guilt. Wilbon, 874 S.W.2d at 542. Blair’s choice to hide McKenzie on top of Wilson proves his knowledge and corroborates his conviction. Miller, 139 S.W.3d at 637.
Blair also showed a consciousness of guilt that he murdered Wilson when he hid from the police. Kalagian, 833 S.W.2d at 434.
f. Sufficient evidence supports Blair’s conviction for the murder of Anna Ewing
On July 14, 2004, police found Anna Ewing’s body at 2608 East 23rd Street, an area known for prostitution. Ewing’s body was found near a raised concrete pad in the backyard and was covered by brush. Other than a bra that was still partially on her body and a knitted garment around her neck, Ewing was completely nude. Ewing’s legs and feet were muddy. She had abrasions on her arm and bruises on her shoulder. She had an area of bleeding above her right eyebrow and bleeding in the white of her eye.
An amylase test for the presence of saliva was performed on Ewing’s left breast. A single allele found within the DNA included Blair as a possible contributor. DNA was extracted from blood under Ewing’s fingernails and test results included Ewing as a major contributor and Blair as a possible minor contributor. The DNA profile contained in the sample occurred in one in 1,400 African-Americans. Blair is an African-American.
Blair admitted to killing Ewing during the September 4th call:
[Dispatcher]: Can you tell me if you’ve buried any more?
[Blair]: It was one on 23rd and Prospect, they find [sic] her long time ago.
[Dispatcher]: Yeah, we, we ... The one on 23rd and Prospect, you did that one, too?
[Blair]: Yeah, and I have more.
This admission by Blair supports his conviction for the first-degree murder of Ewing. Wilbon, 874 S.W.2d at 542. Furthermore, the DNA evidence here corroborates his admission. Miller, 139 S.W.3d at 637; see also State v. Rockett, 87 S.W.3d 398, 405 (Mo.App.2002) (holding that a jury could rely on DNA evidence that did not result in identification to a scientific certainty as substantial evidence of the defendant’s identity).
Blair also showed a consciousness of guilt that he murdered Ewing when he hid from the police. Kalagian, 833 S.W.2d at 434.
g. Sufficient evidence supports Blair’s conviction for the murder of Barci Williams
During the September 4th 911 call, Blair told police they would find a body at 24th and Prospect, “It’s one on 24th and Prospect between 24th Street and, 24th and Terrace. It’s in the alley right next to the gate by the U-Haul place.” At 7:80 p.m. on September 4, 2004, police found the body of Darci Williams lying in some brush outside a fenced parking lot. Photographs of the crime scene show two U-Haul advertising banners. The body was covered by roofing tar paper and was not immediately visible. Police officers had to cut the fence to get to the body, which was badly decomposed. A black knit shirt was around Williams’ neck.
Williams’ mother testified at trial that she met with her every week on Wednesday. The last time Williams’ mother saw her was between 3:30 p.m. and 4 p.m. on August 25, 2004, when she dropped her off at 25th and Prospect. When Williams exited her mother’s car, she crossed the street and approached three men. One of those men was Blair. Williams’ mother did not hear from her on the following Wednesday and never talked to her again. Although the cause of death was undetermined, the medical examiner ruled that Williams’ death was a homicide because the body was concealed at the scene.
Blair’s admission concerning the location of Williams’ body supports his conviction for the first-degree murder of Williams. Wilbon, 874 S.W.2d at 542. Blair also showed a consciousness of guilt that he murdered Williams when he hid from the police. Kalagian, 833 S.W.2d at 434.
h. Sufficient evidence supports Blair’s conviction for the murder of Carmen Hunt
On September 4, 2004, police found the skeletal remains of Carmen Hunt behind an apartment building at 2905 Park. Her body was lying in an overgrown area and had been covered with carpet and brush. A medical examiner stated that Hunt had been dead for at least a week when she was found. Hunt’s death was ruled a homicide because her body had been concealed.
During the September 3rd 911 call, Blair admitted that he killed Hunt:
[Blair]: I want to report a dead body.
[Dispatcher]: Where?
[Blair]: On 29th and Park.
[Dispatcher]: 29th and Park?
[Blair]: In the back yard at the northeast house on the corner.
[Dispatcher]: Northeast house on the corner?
[Blair]: Yeah.
[Dispatcher]: How do you [know] it’s a dead body there?
[Blair]: I, I put it there.
[Dispatcher]: How’d you kill the lady on, at 29th and Park? What’d you do to her?
[Blair]: Killed them (inaudible).
Blair’s confession supports his conviction for the first-degree murder of Hunt. Wilbon, 874 S.W.2d at 542. Blair also showed a consciousness of guilt that he murdered Hunt when he hid from the police. Kalagian, 833 S.W.2d at 434.
i. Sufficient evidence supports Blair’s conviction for the murder of Claudette Juniel
On September 4, 2004, police found the skeletal remains of Claudette Juniel in a vacant lot at 2745 Olive. Jun-iel’s body was nude and had been covered with couch cushions, sticks, and a tire. Police testified they would not have found the body if they had not been given directions by the 911 caller. A shirt was tied around the victim’s neck. Juniel’s death was ruled a homicide because her body had been concealed.
During the September 4th 911 call, Blair admitted he killed Juniel:
[Blair]: I want to report two more bodies today.
[Blair]: The other body is on 27th and Olive. The southeast corner house in the back yard in the yard next to the back yard which is a vacant lot.
[Dispatcher]: Who are these people that you buried, sir?
[Blair]: These people are prostitutes.
[Dispatcher]: Okay, why did you kill these prostitutes?
[Blair]: Because they are scum.
[Dispatcher]: They’re what?
[Blair]: Scum. They’re disgrace, they’re a disgrace.
Blair’s confession supports his conviction for the first-degree murder of Juniel. Wilbon, 874 S.W.2d at 542. Blair also showed a consciousness of guilt that he murdered Juniel when he hid from the police. Kalagian, 833 S.W.2d at 434.
II.
The trial court did not err in failing to suppress Blair’s statements to police on the ground that his constitutional rights were violated when the police failed to electronically record his custodial interview
Blair alleges his state and federal constitutional rights were violated when the State failed to electronically record his interrogation, even though it had the means, and when the State failed to preserve an electronic record of his interrogation recorded by a local television station. There is no constitutional requirement that law enforcement electronically document custodial interrogations.
a. The record of Blair’s interrogation
After his arrest, Blair waived his Miranda rights and agreed to talk to the police. Blair was interrogated for approximately seven hours. The room in which Blair was interrogated contained a video camera and recording equipment. The interrogation was later moved to a room where recording was not possible. Both rooms, however, were equipped with cameras to enable monitoring in another room through a closed circuit television.
Blair’s interrogation was not independently recorded by police, but the police allowed a camera crew from a television show to record Blair’s interrogation. Police never received a copy of the recording, and the recording was not preserved by the production company. The only footage that survived was that included in the television show. Consequently, the entirety of the footage was never made available to defense counsel.
Blair filed a pretrial motion to suppress his statement to police alleging that his statements to police were unreliable because, among many reasons, the police failed to electronically record his interview, though they had the ability to do so. While arguing the motion, Blair’s counsel claimed that police must record a defendant’s statement when possible. The court overruled the motion to suppress. Blair also objected to the admission of evidence of his statements at trial.
b. Standard of Review
In reviewing a trial court’s ruling on a motion to suppress, there must be “substantial evidence” to support the ruling. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). “[T]he facts and reasonable inferences from such facts are considered favorably to the trial court’s ruling and contrary evidence and inferences are disregarded.” State v. Galazin, 58 S.W.3d 500, 507 (Mo. banc 2001).
In “reviewing the trial court’s overruling of a motion to suppress, this Court considers the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court’s ruling.” State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). “Deference is given to the trial court’s superior opportunity to determine the credibility of witnesses.” Rousan, 961 S.W.2d at 845. This Court gives deference to the trial court’s factual findings but reviews questions of law de novo. Id.
c. There is no constitutional requirement to electronically record a defendant’s custodial interview
The issue of whether law enforcement is constitutionally required to record an interrogation is one of first impression in Missouri. Blair argues that the police department’s failure to preserve the recording of his interrogation renders his confession involuntary and violates his rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and article I, sections 10 and 18(a) of the Missouri Constitution. As a result, Blair asks this Court to impose a rule that would require electronic recording of custodial interrogations. The United States Supreme Court has never held that the failure of police to record a defendant’s police interrogation renders the statement involuntary or violates any provision of the United States Constitution.
To support his contention, Blair relies on cases adjudicated in Alaska and Minnesota. In Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985), the Alaska Supreme Court determined “that an unexcused failure to electronically record a custodial interrogation conducted in a place of detention” violates a suspect’s due process rights under Alaska’s constitutional provision paralleling the Fifth Amendment. Similarly, the Minnesota Supreme Court legislated such a requirement when it determined that under its “supervisory powers” it was imposing a recording requirement for all custodial interrogations. State v. Scales, 518 N.W.2d 587, 589 (Minn.1994). Scales, however, expressly refused to find that the failure to record a custodial interrogation amounted to a due process violation of Minnesota’s constitutional provision paralleling the Fifth Amendment.
Blair is correct that certain public policy considerations support the rationale of the rule he requests. As noted by the Supreme Court of Tennessee in State v. Godsey, 60 S.W.3d 759, 772 (Tenn.2001), recording interrogations would alleviate many of the problems that surround criminal interrogations:
There can be little doubt that electronically recording custodial interrogations would reduce the amount of time spent in court resolving disputes over what occurred during the interrogation. As a result, the judiciary would be relieved of much of the burden of resolving these disputes. In light of the slight inconvenience and expense associated with electronically recording custodial interrogations, sound policy considerations support its adoption as a law enforcement practice.
A majority of state courts that have considered this issue have refused to find that a defendant’s constitutional rights were violated when the police fail to record an interrogation or to create an exclusionary rule suppressing these statements when they are not recorded. See People v. Holt, 15 Cal.4th 619, 63 Cal.Rptr.2d 782, 937 P.2d 213, 241-42 (1997); Starks v. State, 594 So.2d 187, 196 (Ala.App.1991); People v. Raibon, 843 P.2d 46, 48-49 (Colo.App.1992); State v. James, 237 Conn. 390, 678 A.2d 1338, 1357-58 (1996); Coleman v. State, 189 Ga.App. 366, 375 S.E.2d 663, 664 (1988); State v. Kekona, 77 Hawai'i 403, 886 P.2d 740, 745-46 (1994); State v. Rhoades, 119 Idaho 594, 809 P.2d 455, 461-62 (1991); Stoker v. State, 692 N.E.2d 1386, 1390 (Ind.App.1998); State v. Morgan, 559 N.W.2d 603, 609 (Iowa 1997); State v. Speed, 265 Kan. 26, 961 P.2d 13, 24 (1998); Brashars v. Commonwealth, 25 S.W.3d 58, 61-62 (Ky.2000); State v. Thibodeaux, 750 So.2d 916, 923-24 (La.1999); State v. Buzzell, 617 A.2d 1016, 1018-19 (Me.1992); Commonwealth v. Fryar, 414 Mass. 732, 610 N.E.2d 903, 909 n. 8 (1993); People v. Fike, 228 Mich.App. 178, 577 N.W.2d 903, 906 (1998); Williams v. State, 522 So.2d 201, 208 (Miss.1988); Jimenez v. State, 105 Nev. 337, 775 P.2d 694, 696-97 (1989); State v. Thibodeaux, 341 N.C. 53, 459 S.E.2d 501, 507 (1995); State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 686 (1997); Commonwealth v. Craft, 447 Pa.Super. 371, 669 A.2d 394 (1995); Godsey, 60 S.W.3d at 771-72; State v. James, 858 P.2d 1012, 1017-18 (Utah App.1993); State v. Gorton, 149 Vt. 602, 548 A.2d 419, 421-22 (1988); State v. Spurgeon, 63 Wash.App. 503, 820 P.2d 960, 961-64 (1991); State v. Kilmer, 190 W.Va. 617, 439 S.E.2d 881, 892-93 (1993); Gale v. State, 792 P.2d 570, 588 (Wyo.1990).
There is nothing in the text of the Missouri Constitution that requires recording custodial interrogations. The United States Supreme Court has not held that the United States Constitution imposes this requirement. Our Supreme Court of Missouri generally looks to United States Supreme Court precedent for interpreting mirror provisions of our state constitution. E.g., Bernat v. State, 194 S.W.3d 863, 867 (Mo. banc 2006). This Court determines that no provision of the Missouri or the United States Constitution required the recording of Blair’s interrogation.
The Supreme Court of Tennessee correctly held in Godsey whether to mandate the recordings of custodial interrogations is a matter of public policy and that “[t]he determination of public policy is primarily a function of the legislature.” 60 S.W.3d at 772 (internal quotations and citations omitted). The Missouri legislature has recently enacted such a rule effective August 28, 2009. CCS SS SCS HCS HB No. 62. HB62 contains § 590.701, which requires the recording of all custodial interrogations of persons suspected of committing to attempt or committing specific violent crimes. Nevertheless, this new statute would not provide future defendants with the relief sought by Blair. Under the new law, failure to record the interrogation results in the loss of funding to the offending police agency. Section 590.701.6 specifically states, “Nothing in this section shall be construed as a ground to exclude evidence.”
The judgment is affirmed.
All concur.
It is not for this Court to say that Alaska erred in finding such a requirement in its own constitution. Under Minnesota v. National Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676, 84 L.Ed. 920 (1940), the United States Supreme Court observed that a state can apply stricter standards by interpretation of its own constitution when examining passages in the state constitution that mirror that of the federal constitution. There is no doubt, however, that the United States Supreme Court is the final arbiter of the minimum requirements found in the federal constitution.
Lorenzo GILYARD, Appellant, v. STATE of Missouri, Respondent.
No. WD 70518.
Missouri Court of Appeals, Western District.
June 22, 2010.
Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
Susan L. Hogan, Kansas City, MO, for Appellant.
Jayne T. Woods, Jefferson City, MO, for Respondent.
Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.
[OPINION BY PER CURIAM: type=majority]
ORDER
PER CURIAM:
Mr. Lorenzo Gilyard appeals the judgment dismissing his Rule 29.15 motion for post-conviction relief.
For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).
Terry A. BLAIR, Appellant, v. STATE of Missouri, Respondent.
No. WD 74698.
Missouri Court of Appeals, Western District.
June 25, 2013.
Susan L. Hogan, Kansas City, MO, for appellant.
Evan J. Buchheim, Jefferson City, MO, for respondent.
Before Division Three: JOSEPH M. ELLIS, Presiding Judge, LISA WHITE. HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
[OPINION BY JOSEPH M. ELLIS, Judge. type=majority]
JOSEPH M. ELLIS, Judge.
Appellant Terry A. Blair appeals from a judgment entered by the Circuit Court of Jackson County denying his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. For the following reasons, the judgment is affirmed.
In 2004, an unidentified male made two anonymous 911 calls informing the dispatcher of the location of several women’s bodies along the Prospect corridor in Kansas City, Missouri. The caller also admitted to killing several other women whose bodies had already been discovered by the police. The caller said the victims were prostitutes and that he had killed them because they were “scum” and a “disgrace.”
On September 6, 2004, a witness came forward and informed the police that Appellant had told her that he was going to kill all prostitutes because they were the scum of the earth. Appellant’s picture was then shown on the news as a person of interest in the string of murders committed along the Prospect corridor, and police eventually arrested Appellant hiding in his friend’s garage. Appellant’s DNA was later discovered on the body of one of the victims, and he was deemed to be a possible contributor to DNA specimens found on another one of the victims. Police also triangulated the anonymous 911 phone calls, which both originated near the vicinity where Appellant had been staying. Ultimately, Appellant was charged with six counts of murder in the first degree, § 565.020.
Prior to trial, Appellant’s trial counsel Cynthia Dryden (“Trial Counsel Dryden”) and David Kenyon (“Trial Counsel Kenyon”) entered into a stipulation with the State that Dr. Thomas Young could testify regarding the autopsies performed by Dr. Thomas Gill. An autopsy was performed on each of the six victims. The cause of death for five of the six victims was undetermined, but the deaths were ruled homicides because the bodies had been concealed. Dr. Young performed autopsies on three of the six victims while Dr. Gill performed autopsies on the other three victims. The stipulation was made with the understanding that if Dr. Young reached a different conclusion than Dr. Gill, such conclusions would be disclosed prior to his testimony.
Additionally, Appellant’s trial counsel sought to suppress statements Appellant made to the police on the basis of Miranda violations as well as any testimony regarding any out-of-court or in-court identification of Appellant. In particular, the defense sought to prevent Ruby Irene Williams, mother of victim Darci Williams (“Darci”), from testifying and identifying Appellant as the last person she saw Dar-ci with prior to Darci’s disappearance. Appellant did not testify at the suppression hearing held regarding these issues. Following the hearing, the trial court overruled Appellant’s motion to suppress his statements to police but took the identification issue under advisement. Ultimately, the trial court denied Appellant’s attempts to suppress Ruby Williams’s testimony identifying Appellant with Darci prior to her disappearance.
In 2008, a bench trial was held as to the six counts of first-degree murder. The trial court found Appellant guilty on all counts and sentenced him to six consecutive life sentences. We affirmed his conviction and sentence on direct appeal. State v. Blair, 298 S.W.3d 38, 52 (Mo.App. W.D.2009).
In March 2010, Appellant filed his pro se Rule 29.15 motion for post-conviction relief. His post-conviction relief counsel subsequently filed an amended Rule 29.15 motion that alleged seven grounds for relief and incorporated Appellant’s pro se claims. The following three grounds for relief are pertinent to this appeal: trial counsel was ineffective in that (1) counsel agreed to allow Dr. Young to testify regarding the three autopsies Dr. Gill performed instead of calling Dr. Gill as a witness; (2) counsel failed to object when Ruby Williams testified at trial and identified Appellant as the individual she last saw Darci alive with; and (3) counsel failed to call Appellant as a witness during the suppression hearing.
On February 10, 2011, the motion court conducted an evidentiary hearing at which Trial Counsel Kenyon, Trial Counsel Dryden, and Appellant testified. Trial Counsel Kenyon testified that he could have required the State to call Dr. Gill to testify regarding the three autopsies he performed, but there was no tactical advantage in doing so because Dr. Young reached the same conclusions as Dr. Gill— mainly that the cause of death of those three victims was undetermined. He further explained that he considered calling Appellant to testify at the suppression hearing but ultimately advised Appellant not to testify. He explained, however, that even though Appellant followed his and Trial Counsel Dryden’s advice not to testify, Appellant knew it was his decision whether to testify at the hearing.
Trial Counsel Dryden testified that she could have made a hearsay objection to Dr. Young testifying about the autopsies performed by Dr. Gill. She explained, however, that the cause of death was not at issue in the case and that it was actually beneficial for the defense that the medical examiners agreed that the cause of death of five of the victims could not be determined. She further testified that Appellant made the ultimate decision as to whether to testify at the suppression hearing. Trial Counsel Dryden also explained that she filed an oral motion to suppress Ruby Williams’s identification of Appellant but that she did not believe she objected to Ruby William’s in-court identification of Appellant.
Appellant testified that he wanted to testify at the suppression hearing but he did not do so at the advice of his trial counsel. He further explained that had he testified at the suppression hearing he would have informed the trial court that the only reason he agreed to speak with police was because he believed he was being questioned about an assault charge. He also testified that once the police began questioning him about the murders, he requested an attorney multiple times before the interrogation ended.
On November 22, 2011, the motion court entered its judgment denying Appellant’s motion for post-conviction relief. In doing so, the motion court found that Appellant failed to state what alleged prejudice resulted from his trial counsel entering into an agreement that permitted Dr. Young to testify about the autopsies Dr. Gill performed on three of the victims. The motion court further concluded that Dr. Young’s testimony regarding Dr. Gill’s autopsies was admissible and that trial counsel’s decision to have Dr. Young testify as opposed to Dr. Gill was a matter of trial strategy. The motion court also concluded that Appellant failed to present any evidence that trial counsel’s failure to object to Ruby William’s identification of Appellant at trial “was anything short of sound trial strategy” and, likewise, failed to identify how he was prejudiced by trial counsel not objecting to such evidence. Additionally, the motion court opined that Appellant’s trial counsel was not ineffective for failing to call him as a witness at the suppression hearing because the evidence established that Appellant knew it was his decision whether to testify and he chose to follow his trial counsel’s advice not to testify.
Appellant now appeals from the denial of his Rule 29.15 motion for post-conviction relief. “Appellate review of the denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous.” Cornelious v. State, 351 S.W.3d 36, 41 (Mo.App. W.D.2011) (citing Rule 29.15(k)). “Findings and conclusions are deemed clearly erroneous only if a full review of the record leaves the appellate court with the definite and firm impression that a mistake has been made.” Id. at 40 (internal quotation omitted).
In each of his three points on appeal, Appellant raises claims of ineffective assistance of trial counsel. “To prevail on an ineffective assistance of counsel claim, Appellant must show that (1) trial counsel’s performance was deficient in that he failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and (2) the deficient performance prejudiced Appellant.” Bode v. State, 316 S.W.3d 406, 408 (Mo.App. W.D.2010) (internal quotation omitted). “Appellant must establish both the performance and prejudice prongs of this test in order to prevail on a claim of ineffective assistance, and if he fails to satisfy either prong, we need not consider the other.” Cone v. State, 316 S.W.3d 412, 415 (Mo.App. W.D.2010).
“To establish ineffectiveness, a defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Bode, 316 S.W.3d at 408 (internal quotation omitted). “We presume counsel to be competent, requiring proof to the contrary by a preponderance of the evidence.” Cone, 316 S.W.3d at 414 (internal quotation omitted). “As to prejudice, a claimant must demonstrate prejudice by showing that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” Id. at 415 (internal quotation omitted).
In his first point, Appellant contends his trial counsel was ineffective because they agreed to permit Dr. Young to testify regarding the three autopsies performed by Dr. Gill. Appellant asserts that, by entering into the agreement, Appellant was denied his right to cross-examine and confront each of the State’s witnesses because Dr. Gill never testified.
The motion court concluded that trial counsel was not ineffective for entering into the agreement with the State to permit Dr. Young to testify regarding the three autopsies performed by Dr. Gill because such testimony did not violate Appellant’s right to confront the witnesses against him. The motion court further concluded that Appellant failed to establish that Dr. Young testifying instead of Dr. Gill prejudiced him. We agree.
On several occasions, this Court has addressed the issue of whether, in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), “a medical examiner other than the one who performed an autopsy may testify to the results of the autopsy” and “whether an autopsy report prepared by an absent medical examiner may itself be admitted into evidence.” State v. Dudley, 303 S.W.3d 203, 208 (Mo.App. W.D.2010); see also State v. Fulton, 353 S.W.3d 451, 455-57 (Mo.App. W.D.2011); State v. Walkup, 290 S.W.3d 764, 766-67 (Mo.App. W.D.2009). These cases indicate that a medical examiner “may properly testify to his or her own opinions and conclusions, even if relying on the absent examiner’s report, without violating the Confrontation Clause, so long as the testifying examiner does not discuss the absent examiner’s opinions or conclusions, and the absent examiner’s report is not admitted into evidence.” Fulton, 353 S.W.3d at 455 (emphasis omitted). Thus, it follows that if a medical examiner can testify about his or her own conclusions based upon an absent medical examiner’s report without violating the Confrontation Clause, then the mere act of trial counsel stipulating with the State that a medical examiner can testify in lieu of an absent medical examiner likewise does not violate the defendant’s right to confront the witnesses against him.
We recognize that such testimony is permissible on the basis that “the testifying examiner does not discuss the absent examiner’s opinions or conclusions, and the absent examiner’s report is not admitted into evidence.” Id. And as the State’s brief seemingly concedes, Dr. Young did impermissibly testify as to Dr. Gill’s conclusions and opinions regarding the autopsies. Nevertheless, Appellant makes no argument that his trial counsel was ineffective for failing to object to Dr. Young’s testimony regarding Dr. Gill’s opinions and conclusions. Appellant simply claims that his trial counsel was ineffective for entering into the stipulation with the State that Dr. Young could testify regarding the autopsies performed by Dr. Gill. Entering into such a stipulation, in and of itself, does not violate the Confrontation Clause and, therefore, cannot amount to a claim of ineffective assistance of counsel.
Furthermore, Appellant failed to establish that any prejudice resulted from Dr. Gill not testifying. Again, the movant must establish prejudice “by showing that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” Cone, 316 S.W.3d at 415 (internal quotation omitted). Appellant offers no explanation as to how the outcome of the trial would have been different had his trial counsel required Dr. Gill to testify.
Moreover, the evidence establishes that, as Trial Counsel Kenyon testified, there was no tactical advantage to having Dr. Gill testify instead of Dr. Young. Trial Counsel Dryden explained that cause of death was not at issue, and Dr. Young testified to and agreed with Dr. Gill’s conclusions as to the three victims’ cause and manner of death. Thus, Appellant has failed to establish he was prejudiced by his trial counsel stipulating that Dr. Young could testify as to the autopsies performed by Dr. Gill. Point denied.
In his second point, Appellant asserts that the motion court erred in denying his Rule 29.15 motion for post-conviction relief because he established that Trial Counsel Dryden was ineffective when she failed to object to Ruby Williams’s testimony identifying Appellant as the person she saw Darei Williams meeting with the last time she saw Darei alive. The motion court found that Appellant failed to demonstrate that “trial counsel’s decision not to object to the issue regarding [Ruby Williams’s] identification of [Appellant] ... was anything short of sound trial strategy.” Additionally, the motion court concluded that Appellant “did not show how he was prejudiced from the lack of objection, since the Court had already ruled on the admissibility of’ the identification testimony.
“Ineffective assistance of counsel is rarely found in cases where trial counsel has failed to object.” Cornelious, 351 S.W.3d at 44 (internal quotation omitted). Trial counsel’s failure to object constitutes ineffective assistance of counsel only where the movant can establish that counsel’s “failure to object was not strategic and that the failure to object was prejudicial.” Id. (internal quotation omitted).
Here, the record supports the motion court’s conclusion that Appellant failed to establish he was prejudiced by Trial Counsel Dryden’s failure to object to the in-court identification. First, prior to trial, Appellant filed a motion to suppress “all testimony by said witnesses at the trial of this cause regarding in-court identification of [Appellant].” The trial court took Appellant’s motion to suppress under advisement. During the prosecution’s opening statement, the prosecutor began to discuss how Ruby Williams saw Darei meet Appellant the last time she saw Darei alive. At that time, Appellant’s trial counsel and the trial court engaged in the following colloquy:
Dryden: Your honor, at this point in time — I know it is opening statement. One of the issues we have not talked about is that we have never done a motion to suppress on [Ruby] Williams’ identification of [Appellant].
The Court: I couldn’t hear you over the coughing.
Dryden: We have never done an identification motion to suppress. We filed our motion to suppress on [Ruby] Williams. We were going to take it up with the case. I did want to object at this time to preserve it for the record and will be taking it up later. Can I have a continuing objection, Your Honor?”
The Court: Yes, you may.
Trial Counsel Dryden again raised the suppression issue prior to Ruby Williams testifying, but the objection was denied.
During direct examination, Ruby Williams testified that she saw Darci approach Appellant after she dropped Darci off on Prospect, which was the last time she saw Darci alive. Immediately following this testimony, Trial Counsel Dryden renewed her objection to Ruby Williams’s identification of Appellant. The trial court acknowledged the objection. Ruby Williams then identified Appellant in court as the man she saw Darci meet on Prospect. Trial Counsel Dryden made no objection to the in-court identification.
Thus, our review of the record reveals that Trial Counsel Dryden made numerous and repeated attempts to prevent Ruby Williams from testifying and identifying Appellant as the last individual she saw Darci with prior to Darci’s disappearance. Although Trial Counsel Dryden made no express objection to Ruby William’s in-court identification of Appellant, Appellant offers no explanation as to how trial counsel failing to again renew the objection following the in-court identification prejudiced him. Thus, we cannot say the motion court clearly erred in finding no prejudice resulted from Trial Counsel Dryden’s failure to object to the in-court identification.
Furthermore, “[c]ounsel is not ineffective for failing to make non-meritorious objections.” Glass v. State, 227 S.W.3d 463, 473 (Mo. banc 2007). To prevail on his claim that Ruby Williams’s identification of Appellant was objectionable, Appellant has to “first demonstrate [that] the investigative procedures employed by the police were impermissibly suggestive and then [that] the suggestive procedures made the identification at trial unreliable.” Olds v. State, 891 S.W.2d 486, 490 (Mo.App. E.D.1994). “A pretrial identification method is unduly suggestive when the identification results from police procedures or actions, rather than the witness’ recall of first-hand observations.” Woodson v. State, 215 S.W.3d 349, 354 (Mo.App. S.D.2007) (internal quotation omitted). “Identification testimony will be excluded only when the procedure was so suggestive that it gave rise to a very substantial likelihood of irreparable misidenti-fieation.” Id. (internal quotation omitted).
Appellant makes no argument that Ruby Williams’s identification should have been suppressed due to suggestive police procedures or because her identification was unreliable. Rather, he contends only that an objection should have been made to the in-court identification. Thus, Appellant has failed to establish that any objection by trial counsel to the in-court identification would have been meritorious. Accordingly, Appellant failed to prove that Trial Counsel Dryden was ineffective for failing to object to the in-court identification. Point denied.
In his third point, Appellant contends that the motion court erred in denying his Rule 29.15 motion for post-conviction relief because trial counsel was ineffective for failing to call him as a witness during the suppression hearing regarding the alleged Miranda violations. Appellant avers that, if he would have been called to testify, he would have informed the court that he agreed to speak with the police only because he thought that he was being investigated for an assault charge and that his requests for a lawyer were ignored by the police during the interrogation. Appellant further avers that had he testified at the suppression hearing, a reasonable probability exists that the trial court would have suppressed his statements to the police, including his statement that he did not know Sheliah McKinzie.
Appellant characterizes this point as trial counsel’s failure to call him as a witness at the hearing. However, the decision whether to testify “is a personal right of the defendant that cannot be made by counsel.” Slater v. State, 147 S.W.3d 97, 101 (Mo.App. W.D.2004). Nevertheless, “[ajlthough the decision to testify rests solely with the defendant, a defendant is entitled to receive reasonably competent advice” regarding his decision to testify. Hurst v. State, 301 S.W.3d 112, 118 (Mo.App. E.D.2010). Therefore, “trial counsel’s advice whether to testify is [generally] a matter of trial strategy, and does not constitute a ground for post-conviction relief, absent exceptional circumstances.” Hickey v. State, 328 S.W.3d 225, 231 (Mo.App. E.D.2010).
The motion court concluded that Appellant knew it was his decision whether he testified at the hearing and, at the advice of his counsel, he chose not to testify. The record supports the motion court’s findings.
At the evidentiary hearing Trial Counsel Kenyon testified that he considered the possibility of calling Appellant to testify at the suppression hearing. He then testified that he and Trial Counsel Dryden advised Appellant that they did not believe it was wise for him to testify at the hearing and that Appellant decided not to testify based on that advice. During cross-examination, Trial Counsel Kenyon testified that he and Trial Counsel Dryden “explained to [Appellant] that it was his call to make, but [they] would expect that he would listen to whatever advice that [they] would give him and give it whatever weight he thought was appropriate.” Likewise, Trial Counsel Dryden testified that she and Trial Counsel Kenyon discussed testifying at the suppression hearing with Appellant and that Appellant listened to their advice not to testify. Trial Counsel Dryden also testified that the decision whether to testify was made by Appellant. Even Appellant himself testified that he decided not to testify based upon the advice of his trial counsel.
The record, therefore, supports the motion court’s finding that Appellant’s trial counsel advised him not to testify and that he followed their advice. As previously explained, advice regarding whether a defendant should testify is generally a matter of trial strategy. Appellant makes no argument that trial counsel’s advice not to testify was anything other than reasonable trial strategy. Thus, Appellant failed to establish his trial counsel was ineffective for failing to call him as a witness during the suppression hearing. Point denied.
Judgment affirmed.
All concur.
Appellant was originally charged with eight counts of first-degree murder, § 565.020, one count of assault in the first degree, § 565.050, and three counts of forcible rape, § 566.030. Prior to trial, however, six of the twelve counts were dismissed, and Appellant was tried only as to six counts of first-degree murder.
Dr. Young opined that one of the six victims, Anna Ewing, died from an accidental drug overdose because there was no evidence that her body had been concealed. The trial court, however, disagreed and found Ewing's body was concealed because it was "positioned on the ground next to the back stoop of an abandoned house, with a yard full of heavy weed growth.”
At trial, Dr. Young testified that ”[u]pon examining the report of Dr. Gill and the other items that were presented to [him], [he] concurred with Dr. Gill’s opinion as to the cause of death and as to the manner of death” with respect to victim Carmen Hunt. Likewise, Dr. Young testified that he agreed with the cause and manner of death determined by Dr. Gill with respect to victims Darci Williams and Claudette Juniel. Thus, Dr. Young did testify as to Dr. Gill’s opinions and conclusions. We note, however, that where a medical examiner’s testimony has amounted to improper hearsay evidence, the admission of such evidence has been subjected to harmless error analysis. Fulton, 353 S.W.3d at 455-56. In fact, the majority of Missouri courts have found the admission of such evidence "to be harmless where the defendant makes no challenge to the medical examiner’s opinion as to the cause of death.” Id. at 456. Here, Appellant’s trial counsel testified that cause of death was not at issue.
At the evidentiary hearing, Appellant and his trial counsel all testified that it would have been beneficial to the defense to suppress Appellant’s statement regarding Sheliah McKinzie because Appellant’s DNA was discovered on her body and the State used Appellant’s statement that he did not know her as evidence of consciousness of guilt.