United States District Court, E.D. Missouri, Eastern Division
LEONARD S. TAYLOR, Petitioner,
TROY STEELE, Respondent.
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
matter is before me upon the petition of Missouri state
prisoner Leonard Taylor for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. (Doc. 19). After carefully
considering Taylor's petition, Respondent's brief
(Doc. 29), the underlying record (Doc. 29, Ex. A-JJ), and
Taylor's reply (Doc. 46), I will deny the petition for
the reasons set forth below.
Investigation & Arrest
evening of December 3, 2004, police investigated the St.
Louis County home of Angela Rowe and her three children at
the request of family members and school officials. (Doc. 29,
Ex. P at 23) The investigating officers observed that the
front yard “was covered with the daily paper[, ]”
“[the] [mailbox] was full of mail[, ]” and that
all the windows and doors were locked. (Id.) With
the assistance of the fire department, the investigating
officers forced entry into the house through a window.
they discovered the bodies of Rowe and her children: Alexus
Conley, age ten; Acqreya Conley, age six; and Tyrese Conley,
age five. (Id., Ex. P at 24) Each had sustained
gunshot wounds to the head. (Id.) Rowe had sustained
additional gunshot wounds to the torso and left arm.
(Id., Ex. Q at 28) The officers observed that the
temperature inside the house was “very cold, ”
that the television was on, and that there were no
indications of burglary or previous forced entry.
(Id., Ex. P at 25) Based on information from
Rowe's family that a fifth person, Taylor, lived at the
house, the officers searched the residence and found no one
else present. (Id.) Taylor then became a person of
interest within the investigation. (Id., Ex. Q at
investigation quickly established a) that Taylor had an
outstanding arrest warrant for a parole violation; b) that he
had a wife, Debrene Williams, in California; c) that he had
been driven to Lambert International Airport by his
sister-in-law, Elizabeth Williams, on November 26; and d)
that he had departed St. Louis that day on a flight to
California under the alias “Louis Bradley.” (Doc.
29, Ex. P at 21) Using cell phone records, the investigating
officers determined that Taylor subsequently traveled from
California to Kentucky. (Id.)
conjunction with United States Marshals, the investigating
officers set up surveillance of several residences in
Madisonville, Kentucky that Taylor had been known to frequent
in the past. (Doc. 29, Ex. R at 11) On the morning of
December 9, 2004, members of the surveillance team observed
Taylor attempting to leave one of the residences by hiding on
the floorboard of a car's passenger compartment.
(Id. at 12) The car was stopped and Taylor was
subsequently arrested. (Id. at 15) At the time of
his arrest, Taylor was traveling under the alias “Jason
Lovely” and possessed pamphlets, documents, and other
materials laying out procedures for creating additional
aliases and fraudulent vital documents. (Id., Ex. at
was charged with four counts of first-degree murder and four
counts of armed criminal action for the killings of Angela
Rowe and her children. (Doc. 29, Ex. A at 55-58) While
awaiting trial for their murders, Taylor was tried and
convicted on an unrelated charge of forcible rape and
sentenced as a persistent sex offender to a prison term of
one hundred years without parole. See State v.
Taylor, 238 S.W.3d 145 (Mo. 2007) (summarizing
underlying facts and affirming conviction on direct review);
see also Taylor v. State, 344 S.W.3d 217 (Mo. App.
2011) (noting length of sentence and affirming denial of
post-conviction relief). After multiple continuances were
granted to Taylor's defense team to ensure adequate
representation, his murder trial began on February 25, 2008.
(Doc. 29, Ex. P at 11)
guilt phase of Taylor's trial for first-degree murder and
armed criminal action concluded on February 28, 2008. The
jury deliberated for four and half hours before finding
Taylor guilty on all counts. (Doc. 29, Ex. S at 59-60) The
jury reconvened the next day, February 29, 2008, for the
penalty phase of the trial. (Doc. 29, Ex. T) The jury heard
evidence of Taylor's prior convictions, testimony from
the victim in the aforementioned forcible rape case, and
testimony from family members of Angela Rowe and her
children. (Id. at 7-12) On Taylor's orders, his
trial team did not present any argument in mitigation and
entered as their sole evidence a written stipulation of
Taylor's good conduct while incarcerated. (Id.
at 5-6, 12, 19) The jury deliberated for three hours before
recommending the death penalty on each of the four counts of
first-degree murder. (Id. at 20) On April 17, 2008,
the trial court sentenced Taylor to death on each of the four
murder charges and imposed consecutive sentences of life
imprisonment on the armed criminal action charges.
(Id. at 21-22)
raised eleven grounds in his direct appeal. (Doc. 29, Ex. U
at 2) I briefly outline Taylor's arguments on direct
appeal as follows:
In his first, second, third, and fourth grounds, Taylor
argued that the trial court abused its discretion in
excluding certain witness statements and other evidence as
hearsay. (Doc. 29, Ex. U at 36, 62, 77, and 84)
In his fifth ground, Taylor argued that the trial court
erroneously admitted forensic test results “that lacked
probative value and [were] unreliable, speculative, and
misleading.” (Id. at 89)
In his sixth ground, Taylor argued that the trial court
erroneously denied his motions to exclude those forensic test
results based on the timing of their disclosure to the
defense. (Id. at 99)
Taylor argued that his speedy trial rights under Missouri
state law and under the Missouri and United States
Constitutions were violated by the multiple continuances
granted to his defense counsel. (Id. at 107)
Taylor argued that the trial court erroneously admitted a
conversation between his brother Perry and the police, during
which Perry stated that Taylor had confessed to the murders
of Angela Rowe and her children, because the interrogating
detective allegedly expressed an opinion as to Perry's
credibility as a witness. (Id. at 118)
Taylor argued that the trial court erroneously allowed a
cause strike of a potential juror who had expressed
reservations about her ability to consider capital punishment
during voir dire. (Id. at 124)
Taylor argued that the State made improper arguments during
closing and that the trial court plainly erred by not
intervening sua sponte. (Doc. 29, Ex. U at 129)
Taylor argued that the trial court abused its discretion by
denying his request for a mistrial when, upon being found
guilty by the jury, he was handcuffed in view of the jury
while being removed from the courtroom. (Id. at 133)
Missouri Supreme Court addressed each of Taylor's claims on
the merits and affirmed the trial court's judgment on
October 27, 2009. State v. Taylor, 298 S.W.3d 482
raised eighteen grounds in his amended motion for
post-conviction relief, which incorporates his prior pro se
motion for post-conviction relief. (Doc. 29, Ex. Z at 42-114,
Ex. AA, Ex. BB at 5-27) Two of these grounds are related to
claims Taylor raises in his habeas petition. The first is
that he received ineffective assistance of trial counsel when
his defense team failed to adequately examine phone records
used at trial and adduce allegedly favorable evidence from
cross-examination of the phone records' custodians. (Doc.
29, Ex. AA at 5) The second ground that Taylor's waiver
of evidence / counsel at the penalty phase of the trial was
not knowing, voluntary, and unequivocal is related to an
ineffective assistance of counsel claim Taylor raises for the
first time in his habeas petition.
post-conviction court conducted an evidentiary hearing on May
20, 2011, on three of Taylor's claims: two ineffective
assistance of trial counsel claims and a claim that the death
penalty as administered in Missouri is unconstitutional.
(Doc. 29, Ex. DD, Ex. EE) The post-conviction court denied
Taylor's motion for relief on September 19, 2011. (Doc.
29, Ex. CC at 38-69)
Appeal of Post-Conviction Review
appealed the denial of post-conviction relief to the Missouri
Supreme Court. (Doc. 29, Ex. FF) He raised four grounds in
his appeal. His first and second grounds disputed the
post-conviction court's findings on claims raised at the
evidentiary hearing. (Id. at 37-40, 43-82, 83-116)
His third and fourth grounds alleged that the post-conviction
court erred in refusing to grant an evidentiary hearing on
additional claims. (Id. at 41-42, 117-129, 130-138)
The Missouri Supreme Court affirmed the post-conviction
court's decision on October 30, 2012. (Doc. 29, Ex. II)
Petition for Writ of Habeas Corpus
raises eight claims in his petition for habeas relief.
that his speedy trial rights under Missouri state law and
under the Sixth Amendment of the United States Constitution
were violated by the delay of approximately thirty-one months
between his invocation of his speedy trial right in July of
2005 and his trial in February 2008. (Doc. 19 at 5-13)
that his constitutional right to present a complete defense
under the Sixth and Fourteenth amendments was violated by the
exclusion of allegedly favorable evidence as hearsay.
(Id. at 13-21)
that his trial counsel was constitutionally ineffective for
failing to object to the admission of phone records and for
failing to adequately investigate those records to identify
their utility for cross-examination, and that his rights to
due process of law and to be free of cruel and unusual
punishment under the Fourteenth and Eighth Amendments were
violated by allegedly false testimony given by a phone
records custodian. (Id. at 21-42)
that his constitutional rights to due process of law and a
fundamentally fair trial under the Fifth, Sixth, and
Fourteenth Amendments were violated when the trial court
denied his motion to exclude forensic test results on the
basis of their late disclosure and allegedly misleading
nature. (Id. at 42-50)
that his constitutional rights to due process of law and to
be free of cruel and unusual punishment under the Sixth,
Eighth, and Fourteenth Amendments were violated by the
exclusion of a prospective juror on the basis of her views on
capital punishment, because those views allegedly did not
impair her ability to abide by her duties as a juror. (Doc.
19 at 50-54)
that his constitutional rights to due process of law and to
be free of cruel and unusual punishment were violated by the
State's allegedly improper arguments during voir dire and
at closing, and that his trial counsel was constitutionally
ineffective for failing to object to those arguments.
(Id. at 54-58)
that his constitutional rights to due process of law and to
be free of cruel and unusual punishment were violated when he
was handcuffed in front of the jury at the conclusion of the
guilt phase of his trial. (Id. at 58-59)
that his trial counsel was constitutionally ineffective for
failing to disregard Taylor's directive to not make a
closing argument at the penalty phase of the trial.
(Id. at 59-62)
federal district court's power to review state court
criminal decisions in a federal habeas corpus proceeding is
limited. Harrington v. Richter, 562 U.S. 86, 92
(2011) (“Under 28 U.S.C. § 2254(d), the
availability of federal habeas relief is limited with respect
to claims previously ‘adjudicated on the merits' in
state-court proceedings”). “As a condition for
obtaining habeas corpus from a federal court, a state
prisoner must show that the state court's ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S.
federal court's power to grant a writ of habeas corpus is
governed by 28 U.S.C. § 2254(d), which provides:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim - (1) resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State
28 U.S.C. § 2254(d).
Supreme Court construed § 2254(d) in Williams v.
Taylor, 529 U.S. 362 (2000). With respect to the
“contrary to” language, a majority of the Court
held that a state court decision is contrary to clearly
established Federal law “if the state court arrives at
a conclusion opposite to that reached by [the Supreme Court]
on a question of law” or if “the state court
decides a case differently than [the] Court has on a set of
materially indistinguishable facts.” Williams,
529 U.S. at 413. Under the “unreasonable
application” prong of' 2254(d)(1), a writ may issue
if “the state court identifies the correct governing
legal rule from [the Supreme Court's] cases but
unreasonably applies [the principle] to the facts of the
particular state prisoner's case.” Id.
Thus, “a federal habeas court making the
>unreasonable application= inquiry should ask whether the
state court's application of clearly established federal
law was objectively unreasonable.” Id. at 409.
Although the Court failed to specifically define
“objectively unreasonable, ” it observed that
“an unreasonable application of federal law is
different from an incorrect application of federal
law.” Id. at 410.
“a determination of a factual issue by a State court
shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1).
In addition, claims in a habeas petition “that have not
been presented to the state courts, and for which there are
no remaining state remedies, are procedurally
defaulted.” Skillicorn v. Luebbers, 475 F.3d
965, 976 (8th Cir. 2007). “Unless a habeas petitioner
shows cause and prejudice or that he is actually innocent of
the charges, a court may not reach the merits of procedurally
defaulted claims in which the petitioner failed to follow
applicable state procedural rules in raising the
several of Taylor's claims assert that he received
constitutionally ineffective assistance of counsel. To
prevail on a claim alleging ineffective assistance of
counsel, a defendant must satisfy the two-part test of
Strickland v. Washington, 466 U.S. 668 (1984). For a
convicted defendant to prove that his counsel was
ineffective, the defendant must first show that the
counsel's performance was deficient. Strickland,
466 U.S. at 687. This requires the defendant to show
“that counsel made errors so serious that counsel was
not functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id. A
defendant can demonstrate that counsel's performance was
deficient where counsel's performance “[…]
‘fell below an objective standard of
reasonableness.'” Wiggins v. Smith, 539
U.S. 510, 522 (2003) (quoting Strickland, 466 U.S.
at 688). But “[…] ‘[strategic] choices
made after thorough investigation of law and facts relevant
to plausible options are virtually
unchallengeable.'” United States v. Rice,
449 F.3d 887, 897 (8th Cir. 2006) (quoting
Strickland, 466 U.S. at 690). And “[…]
[there] is a ‘strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance.'” Id. (quoting
Strickland, 466 U.S. at 689). If the defendant fails
to show that his counsel was deficient, the court need not
address the second prong of the Strickland test.
Brown v. United States, 311 F.3d 875, 878 (8th Cir.
second prong, a defendant must demonstrate that the deficient
performance was “so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687. “The defendant
must show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
Eighth Circuit has described the Strickland test as
follows: the questions a court must ask are “[whether]
counsel's performance was in fact deficient and, if so,
whether the defendant was prejudiced by the inadequate
representation. If we can answer ‘no' to either
question, then we need not address the other part of the
test.” Fields v. United States, 201 F.3d 1025,
1027 (8th Cir. 2000). When evaluating counsel's
performance, the court “must indulge in a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. Considered objectively,
counsel's performance is gauged by “whether it was
reasonable ‘under prevailing professional norms'
and ‘considering all the circumstances.'”
Fields, 201 F.3d at 1027 (quoting
Strickland, 466 U.S. at 688). “[We] avoid
making judgments based on hindsight.” Id. A
reviewing court's “scrutiny of counsel's
performance must be highly deferential.”
Strickland, 466 U.S. at 689.
An alleged violation of Taylor's state statutory rights
is not cognizable in a federal habeas petition, and his
federal constitutional right to a speedy trial was not
violated by the grant of multiple continuances where those
continuances protected his constitutional right to effective
assistance of counsel and where he failed to identify
prejudice resulting from the delay.
was arrested in December of 2004. He asserted his right to a
speedy trial in July of 2005. He was not tried until February
of 2008. He argues that this delay violated his statutory
rights under the Uniform Mandatory Disposition of Detainers
Law (UMDDL), which provides that a prisoner may request the
disposition of pending charges within one hundred and eighty
days. “If the [charge] is not brought to trial within
the [one hundred and eighty day] period and if the court
finds that the offender's constitutional right to a
speedy trial has been denied, no court of this state shall
have jurisdiction of such [charge]… and the court
shall issue an order dismissing the same with
prejudice.” Mo. Rev. Stat. § 217.460 (2009);
see also Doc. 19 at 6. Taylor also argues that this
delay violated his federal constitutional right to a speedy
trial under the Sixth and Fourteenth Amendments. (Doc. 19 at
Missouri Supreme Court summarized the facts relevant to this
claim in its denial of Taylor's direct appeal.
In December 2004, a complaint was filed charging Taylor with
four counts of first-degree murder and four counts of armed
criminal action. In February 2005, private counsel entered
his appearance on Taylor's behalf. The complaint was
superseded by an indictment filed on March 30, 2005. In April
2005, Taylor began serving a 100-year sentence on an
unrelated conviction and in July 2005, filed a request for
disposition of the pending charges.
In August 2005, private counsel filed a motion to withdraw on
the basis that inadequate financial resources prevented him
from providing adequate representation for Taylor. The court
granted the motion and continued the case until September 16,
2005, for entry of new counsel. The court ordered that the
period from August 11th to September 16th be tolled for
purposes of the Uniform Mandatory Disposition of Detainers
A public defender entered an appearance on August 26, 2005.
On September 15, 2005, the State filed notice of intent to
seek the death penalty, and three public defenders from the
capital trial division entered an appearance.
A hearing was held on September 16, 2005, at which
Taylor's counsel requested a continuance based on the
complexity of the capital murder case, the need for extensive
discovery for both the guilt and penalty phases, and the
additional trial obligations of the next year. Taylor
objected to this request. The court granted the request, and
trial was set for October 11, 2006.
In November 2005, the State filed a motion to reconsider the
order extending the trial date, arguing that Taylor properly
filed his speedy trial request and that as a result, the case
should be tried before January 21, 2006. The State was also
concerned with whether Taylor's counsel's caseload
was sufficient good cause to continue the case. After a
hearing was held, the trial court denied the State's
In July 2006, Taylor's trial counsel filed a motion to
continue, requesting additional time for investigation and
preparation for trial. After a hearing, the trial court
overruled the motion. A motion to reconsider this denial was
filed and included “Defendant's Consent to
Continuance” signed by Taylor, requesting that the case
be continued, “as additional time is needed for defense
counsel to prepare for trial.” Judicial notice was
taken of the arguments raised at the previous hearing, and
the case was continued to May 2007.
In September 2006, the case was transferred to a different
judge. In October 2006 and April 2007, Taylor filed pro se
motions to dismiss for violating the UMDDL; the trial court
Taylor's counsel's final request for a continuance
occurred in April 2007 in connection with the State's
disclosure of [blood & DNA] test results. Taylor objected
to this continuance. The trial court, after overruling
Taylor's motions to exclude the evidence, granted the
continuance, and trial was held on February 25, 2008.
State v. Taylor, 298 S.W.3d 482, 502-503 (Mo. banc
habeas petition, Taylor argues that the one hundred and
eighty day clock imposed by the UMDDL was not properly tolled
between August 11, 2005, and October 11, 2006, because:
[Taylor] did not consent to any of the continuances and
consistently refused to waive his right to a speedy trial.
See State ex rel. Clark v. Long, 870 S.W.2d 932, 941
(Mo. App. S.D. 1994). Only after the 180 day period expired
and the court had, in [Taylor's] view, already lost
jurisdiction did petitioner reluctantly agree to one
(Doc. 19 at 11) In the alternative, Taylor argues that the
UMDDL time limit was not properly tolled between May 30,
2007, and February 20, 2008, because:
[This] delay was caused solely by the state's late
disclosure of DNA evidence. [Taylor's] sunglasses were
seized from his luggage on the date he was arrested on
December 9, 2004. [Doc. 29, Ex. D at 57]. There is no excuse
for the state waiting nearly two years, until November 8,
2006, to test the glasses. [Id., Ex. D at 58]. This
two hundred sixty-six (266) day delay alone violates the
UMDDL and demonstrates that petitioner was denied a speedy
trial. Courts from several jurisdictions have held that a
defense continuance does not waive a defendant's right to
a speedy trial where there has been an inexcusable delay in
providing discovery or there was some other violation of
discovery rules by the prosecutor. See, e.g.,
State v. T.G., 990 So.2d 1183, 1184 (Fla. App.
2008); Commonwealth v. Edwards, 595 A.2d 52, 54-55
(Pa. 1991); State v. Price, 620 P.2d 994, 996 (Wash.
(Id. at 11) Taylor cites Simmons v. United
States, 390 U.S. 377 (1968), for the proposition that
“it is unconstitutional to place a defendant in a
situation where he must waive one constitutional right in
order to assert another.” See Doc. 19
at 12; see also Simmons, 390 U.S. at 394 (holding
that defendant's self-incriminating testimony offered in
support of his motion to suppress evidence on Fourth
Amendment grounds could not later be admitted against him at
trial). Taylor also cites Marshall v. State, 759
N.E.2d 665 (In. App. 2001), State v. Allen, 134 P.3d
976 (Or. App. 2006), and State v. Wamsley, 594
N.E.2d 1123 (Ohio App. 1991), as support for his argument
that “it is fundamentally unfair to place [sic] a
defendant… to either go to trial unprepared or waive
his right to a speedy trial…. [A] continuance that is
compelled by a state's lack of diligence in providing
discovery must be charged against the state.”
(Id. at 12)
also argues that the UMDDL:
[Created] a liberty interest entitling [Taylor] to procedural
due process protection under the Fourteenth Amendment.
Vitek v. Jones, 445 U.S. 480 (1980). Because of this
clear UMDDL violation, St. Louis County, Missouri lacked the
legal authority and power to bring petitioner to trial in
February of 2008, which denied petitioner due process of law.
Blackledge v. Perry, 417 U.S. 21, 30-31 (1974).
Taylor argues that he has a freestanding constitutional claim
under the Sixth Amendment as determined by Barker v.
Wingo, 407 U.S. 514 (1972):
Under the Barker test, reviewing courts must assess
the length of delay, the reasons for the delay, the
defendant's assertion of the right, and prejudice.
Id. at 530. Each of these four factors weigh heavily
in favor of [Taylor] on this Sixth Amendment claim.
First, since the length of the delay was over three years,
this lapse of time is presumptively
prejudicial. See State ex rel. Garcia v.
Goldman, 316 S.W.3d 907, 911 (Mo. banc 2010). The
reasons for the delay are not attributable for petitioner,
and petitioner asserted his right to a speedy trial more than
two and a half years before trial commenced.
(Id. at 13) (footnote in original).
argues that the decision of the Missouri Supreme Court
denying this claim on the merits is reasonable and entitled
to deference. The Missouri Supreme Court stated:
Taylor invoked his right to a speedy trial pursuant to the
UMDDL, section 217.450-485. The UMDDL, including the right to
be tried within 180 days, is reviewed de novo. State v.
Nichols, 207 S.W.3d 215, 219 (Mo. App. 2006).
The UMDDL provides that a defendant who currently is confined
in a department correctional facility may request a final
disposition of an untried indictment. Section 217.460
Within one hundred eighty days after the receipt of
the request and certificate, pursuant to sections 217.450 and
217.455, by the court and the prosecuting attorney or
within such additional necessary or reasonable time as the
court may grant, for good cause shown in open court, the
offender or his counsel being present, the indictment,
information or complaint shall be brought to trial…
The trial court has discretion to allow a continuance for
good cause. State ex rel. Wolfrum v. Wiesman, 225
S.W.3d 409, 412 (Mo. banc 2007). Defense counsel may show
good cause for a continuance under the statute even if
defendant objects so long as the request is based on
reasonable grounds showing the delay is for good cause.
Id. Once a defendant invokes the right to counsel,
counsel has the authority “to seek reasonable
continuances for the purpose of assuring effective assistance
of counsel.” Id.
The court had good cause to grant the continuances. Although
the continuances were requested over Taylor's objection,
the requests were sought to prepare for trial after
appointment as well as to respond to newly discovered
evidence before trial. Given the complexity of the trial and
the amount of preparation and investigation required, counsel
established sufficient grounds for good cause for the delay,
and the additional time ensured that Taylor received
effective assistance of counsel. Further, the requests were
granted in open court with Taylor and counsel present. Taylor
fails to show a violation of the UMDDL.
The defendant's right to a speedy trial is founded upon
the Sixth Amendment of the United States Constitution and Mo.
Const. art. I, § 18(a). The United States and Missouri
constitutions provide equivalent protection for a
defendant's right to a speedy trial. State ex rel.
McKee v. Riley, 240 S.W.3d 720, 729 (Mo. banc 2007). To
assess whether a right has been respected or denied involves
a balance of four factors: (1) the length of delay; (2) the
reason for the delay; (3) the defendant's assertion of
his right; and (4) prejudice to the defendant. Id.
It is undisputed that the delay here was lengthy and that
Taylor effectively asserted his right to speedy trial. As
discussed above, the reason for a substantial portion of the
delay was to provide counsel with more time to prepare for
trial, which effectively protected Taylor's right to
effective assistance of counsel. Moreover, Taylor was not
prejudiced by this delay because he was concurrently
incarcerated on unrelated charges and serving a sentence of
Taylor fails to show a violation of his constitutional or
statutory right to speedy trial. Point seven is denied.
Taylor, 298 S.W.3d at 503-504 (footnotes omitted);
(see also Doc. 29 at 11-14)
also argues that the portion of Taylor's claim pertaining
to the UMDDL is not cognizable in a federal habeas petition:
The Eighth Circuit has held that “violation by state
officials of a state speedy trial law, taken alone, does not
present a federal claim reviewable on habeas petition.”
Poe v. Caspari, 39 F.3d 204, 207 (8th Cir. 2004
[sic]); see also Shigemura v. Moore, No
4:07-CV-459 (CEJ), 2007 WL 2736306, at *4 (E.D.Mo. September
17, 2007) (“Issues concerning the interpretation and
application of a state law are not cognizable in federal
(Id. at 14-15)
Respondent argues that the portion of Taylor's claim
pertaining to his constitutional right to a speedy trial
should be denied on the merits:
Taylor fails to explain how the Missouri Supreme Court
unreasonably applied the standard set forth in Barker v.
Wingo, 407 U.S. 514 (1971)…. While it is clear
that Taylor asserted his speedy trial right and that the
state tried him two years and ten months after formal
charging, the delays were at the request of the
defense, not the State or the court.
“Delay caused by the defense weighs against the
defendant… because the attorney is the defendant's
agent when acting, or failing to act, in furtherance of the
litigation, delay caused by the defendant's counsel is
also charged against the defendant.” Vermont v.
Brillon, 556 U.S. 81, 90 (2009) (internal quotations
omitted). Further, Taylor's only claim of prejudice,
keeping in mind that that [sic] he was incarcerated before
his trial serving a 100 year sentence, is that
“videotaped statements of the defense witnesses Gerjuan
Rowe and Beverly and Sherry Conley taken by police either
mysteriously disappeared or were accidentally erased”
[Doc. 19 at 13]. Taylor does not provide any more information
about the tapes or their contents, including whether a
transcript of the statements exists, if and where police made
reference to the tapes in their reports, or if and where the
tapes are referenced in the legal file. Further, Taylor does
not explain why the delay was the reason such statements were
lost, what favorable evidentiary value the statements would
have had, or how the presence of the statements would have
altered the result of his trial.
(Id. at 15-16)
reply, Taylor argues that Poe v. Caspari does not
control in this case and that I may consider his UMDDL claim
on the merits. (Doc. 46 at 25) Taylor makes three separate
claims in support of this point:
First, the decision in Poe rests upon a long line of
older cases that… was implicitly overruled by the
United States Supreme Court in Alabama v. Bozeman,
533 U.S. 146 (2001). In Bozeman, the Supreme Court
granted discretionary review to address an [Interstate
Agreement on Detainers] claim that had been litigated before
Alabama's state courts. If detainer violations such as
the one presented here did not present a federal question, it
is obvious that the United States Supreme Court would not and
could not have intervened and addressed the question before
it in Bozeman.
(Id. at 25)
Second, a violation of the UMDDL, because it is an interstate
compact, falls within a federal court's jurisdiction
under the Compact Clause embodied in Art. I, § 10, cl. 3
of the United States Constitution…. The fact that
Missouri is a signatory to the UMDDL with seven other states
makes the UMDDL a compact.
The UMDDL is intended to be construed in harmony with the
Interstate Agreement on Detainers (IAD). State ex rel.
Kemp v. Hodge, 629 S.W.2d 353, 359 (Mo. banc 1982). As
an interstate compact approved by Congress, the Interstate
Agreement on Detainers is a federal law and its violation
presents a federal question cognizable in a 2254 action.
Brown v. Wolff, 706 F.2d 902, 905 (1983); see
also Cuyler v. Adams, 449 U.S. 433, 438 (1981).
The UMDDL too should be considered an interstate compact
within the Compact Clause of the United States
Constitution…. It is ultimately the federal
court's duty to interpret and apply congressionally
approved compacts given their federalized nature.
Delaware River Joint Toll Bridge Commission v.
Colburn, 19');">310 U.S. 419, 427 (1940)…
(Id. at 25-28)
Third… the [state court decisions regarding] the UMDDL
arbitrarily deprived petitioner of a liberty interest
guaranteed by the due process clause of the Fourteenth
Amendment. See Hicks v. Oklahoma, 443
[sic] U.S. 343, 346 (1980). In such situations,
where a constitutional violation removes the authority of a
state or federal entity to bring a petitioner to trial, a due
process violation occurs. See Blackledge v. Perry,
417 U.S. 21, 30-31 (1974).
… there is no relitigation bar under 2254(d)(1) or
(d)(2) because the Missouri Supreme Court, in addressing the
claim, overlooked a critical factual issue that is central to
this claim for relief. The state court failed to take into
account the delay occasioned by the state's dilatory
behavior in in [sic] failing to seek DNA testing of
petitioner's eyeglasses. This delay, by itself,
necessitated a continuance delaying the trial beyond the one
hundred eight (180) day window, in clear violation of the
UMDDL…. the Missouri Supreme Court, in addressing a
separate claim that this DNA evidence should have been
excluded because of the state's misconduct, did not find
any excuse for the dilatory behavior of the prosecution,
despite refusing to reverse the trial court's ruling not
to exclude this evidence as an abuse of discretion. State
v. Taylor, 298 S.W.3d at 501-502.
(Id. at 28-29)
Taylor argues that the Missouri Supreme Court's decision
incorrectly adjudicated his speedy-trial constitutional claim
[It] overlooked the obvious fact that a great portion of the
delay was the fault of the prosecutor who “dragged his
feet” by over two years before finally subjecting
petitioner's sunglasses to forensic testing. By
overlooking this critical fact that is central to
[Taylor's] claim for relief, the Missouri Supreme
Court's decision is both factually and legally
unreasonable under 2254(d)(1) and (d)(2). See
Wiggins, 539 U.S. at 528.
In assessing prejudice, the Missouri Supreme Court merely
notes that no prejudice could be established because [Taylor]
was imprisoned on other charges. There is no 2254(d)
relitigation bar to this Court's de novo review
of the issue of prejudice for several reasons. First, the
court failed to consider… that this delay deprived
[Taylor] of the exculpatory evidence contained in the
videotaped statements of Gerjuan Rowe, Beverly Conley, and
Sherry Conley…. In addition, the appropriate speedy
trial analysis should not consider the fact that [Taylor]
would otherwise be incarcerated on other unrelated
convictions as conclusive evidence of a lack of prejudice.
See Smith v. Hooey, 393 U.S. 374, 379 (1969). One of
the policy considerations at the core of the Sixth Amendment
requirement of a speedy trial is to minimize the anxiety,
concern and other hardships associated with pending charges
hanging over a defendant's head for a prolonged period of
(Id. at 29-31).
carefully reviewed the parties' briefs, the Missouri
Supreme Court's decision, and the underlying legal file,
I find this ground for relief to be without merit.
Taylor's claim pursuant to the UMDDL is not cognizable in
a federal habeas petition. “Violation by state
officials of a state speedy trial law, taken alone, does not
present a federal claim reviewable on habeas petition.”
Poe v. Caspari, 39 F.3d 204, 207 (1994) (internal
Taylor's argument that Poe does not control is
without merit. The United States Supreme Court's decision
in Alabama v. Bozeman did not implicitly overrule
Poe or the prior cases upon which Poe
rests. Instead, Bozeman addressed a claim pertaining
to the Interstate Agreement on Detainers (IAD), not the
UMDDL. The IAD is a federal law enacted and approved by
Congress; see 18 U.S.C. App. 2 § 2. The UMDDL
is a state statute; see Mo. Rev. Stat. §
217.450 (2009). The fact that the UMDDL is “intended to
be construed in harmony with the [IAD]” does not
transform state law into federal law for purposes of a habeas
petition. (Doc. 46 at 26) (citing State ex rel. Kemp v.
Hodge, 629 S.W.2d 353, 359 (Mo. banc 1982)). The UMDDL
was never considered and approved by Congress; therefore, it
is not a “compact” within the meaning of the
Compact Clause of the United States Constitution. See
Cuyler v. Adams, 449 U.S. 433, 439 (1981) (“The
requirement of congressional consent is at the heart of the
citations to Cuyler, to Brown v. Wolff, 706
F.2d 902 (9th Cir. 1983), and to Carchman v. Nash,
473 U.S. 716 (1985), are unavailing because they each deal
with applications of the IAD, not the UMDDL. Hicks v.
Oklahoma, 447 U.S. 343 (1980), in which the Supreme
Court reversed a state sentence imposed under an
unconstitutional sentencing scheme, and Blackledge v.
Perry, 417 U.S. 21 (1974), which considered a due
process claim raised by a state's retaliatory prosecution
after a prisoner asserted his right under a state statute to
a de novo trial, are even farther removed from the
claim at bar and have no applicability.
River cuts against Taylor, not in his favor:
“[The] construction of such a compact sanctioned by
Congress by virtue of Article I, § 10, clause 3 of
the Constitution, involves a federal ‘title, right,
privilege, or immunity' which when ‘specially set
up or claimed' in a state court may be reviewed [in
federal court.]” Delaware River Joint Toll Bridge
Commission v. Colburn, 310 U.S. at 427 (emphasis added).
A Congressional sanction, or the lack thereof, is the
dispositive factor. Taylor implicitly recognizes this
elsewhere in his reply: “Because Congressional
consent places the interpretation of an interstate
compact squarely in the federal courts, those same courts
have the authority to enforce the terms and conditions of the
compact.” (Doc. 46 at 28) (emphasis added)
Taylor's repeated assertions that the prosecutor
“dragged his feet” or engaged in “dilatory
behavior” are not supported by the record. No evidence
supports the proposition that the late inclusion of blood
& DNA evidence recovered from Taylor's sunglasses was
anything other than a miscommunication between various State
agencies. (See Doc. 29, Ex. M at 21-22 (transcript
of hearing adjudicating trial counsel's motion to
suppress based on the late date of disclosure and the
State's explanation of same)
Taylor fails to establish that his constitutional right to a
speedy trial was violated under the standard established by
Barker v. Wingo, 407 U.S. 514 (1971). The
Wingo factors are “[length] of delay, the
reason for the delay, the defendant's assertion of his
right, and prejudice to the defendant.” Id. at
530. No single factor is dispositive: “[rather], they
are related factors and must be considered together with such
other circumstances as may be relevant.” Id.
at 533. The Court addressed the prejudice prong as follows:
Prejudice, of course, should be assessed in the light of the
interests of defendants which the speedy trial right was
designed to protect. This Court has identified three such
interests: (i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and
(iii) to limit the possibility that the defense will be
impaired. Of these, the most serious is the last, because the
inability of a defendant adequately to prepare his case skews
the fairness of the entire system.
Wingo, 407 U.S. at 532. In its analysis of prejudice
as a result of the trial continuances the Missouri Supreme
Court considered only the fact that Taylor was
incarcerated at that time as the result of an unrelated
conviction. This is only one of three interests the right to
a speedy trial was meant to protect. Yet Taylor fails to
establish any interest that was prejudiced by the delay. His
conclusory assertion in his reply brief that the delay
“deprived him of the exculpatory evidence contained in
the videotaped statements of Gerjuan Rowe, Beverly Conley,
and Sherry Conley” does not suffice. (Doc. 46 at 30)
Taylor fails to explain how the videotaped statements would
have differed, if at all, from the in-person testimony
Beverly & Sherry Conley actually provided at trial.
(See Doc. 29, Ex. S at 31-33 (Beverly Conley) and
34-37 (Sherry Conley)) Nor does he explain how they would
have differed, if at all, from the excerpts of Gerjuan
Rowe's deposition that were read to the jury at trial.
(See id., Ex. S at 39) Nor, in fact, does he
establish that the videotaped statements were lost
during the additional time resulting from the delay.
(See id., Ex. P at 47 (police detective testifying
on direct examination that hard drive containing videotapes
had been accidentally erased, but not identifying date on
which accidental erasure occurred) and at 53 (cross-examining
police detective on same but declining to ask when erasure
did clearly and repeatedly assert his right to a speedy
trial. The length of the delay was considerable, though not
“presumptively prejudicial” as Taylor asserts.
(Doc. 19 at 13) “[The] length of delay that will
[generate presumptive prejudice] is necessarily dependent
upon the peculiar circumstances of the case. To take but one
example, the delay that can be tolerated for an ordinary
street crime is considerably less than for a serious, complex
conspiracy charge.” Wingo, 407 U.S. at 530-531
reasons for the delay are substantially attributable to
Taylor, his objections notwithstanding, because the
continuances were granted at the request of his defense team
solely for the purpose of ensuring that he would be
effectively represented at his capital trial. This is true
even if the defendant himself objects to his counsel's
delay. See Vermont v. Brillon, 556 U.S. 81 (2009)
(reversing Vermont Supreme Court's decision that
three-year delay violated defendant's speedy trial rights
where defendant's attorneys requested extensions over his
failed to establish that his ability to defend himself at
trial was prejudiced by the delay, his interest in avoiding
excessive pretrial detention was negated by the unrelated
100-year sentence he was already serving, and he makes no
argument that his “anxiety and concern” were
excessively burdened within the meaning contemplated by
Wingo. I find that the Missouri Supreme Court's
determination of this issue was not contrary to, or an
unreasonable application of clearly establish Federal law,
nor was it a decision based on an unreasonable determination
of the facts. As a result, I will deny this ground for
Taylor's constitutional right to present a complete
defense was not violated by the exclusion of hearsay evidence
where that evidence lacked indicia of reliability and was not
trial strategy was to argue that the victims were still alive
after his departure from St. Louis on November 26. His trial
counsel therefore sought to admit certain statements in
support of that strategy which the trial court excluded as
hearsay. The Missouri Supreme Court summarized the relevant
facts and denied this claim on the merits in Taylor's
… Hearsay Statements
… Taylor argues that the trial court abused its
discretion in excluding certain statements as hearsay. Taylor
argues that the statements were admissible pursuant to
certain exceptions to the hearsay rule or pursuant to the
curative admissibility doctrine.
Hearsay is an “out-of-court statement that is used to
prove the truth of the matter asserted and that depends on
the veracity of the statement for its value.” State
v. Kemp, 212 S.W.3d 135, 146 (Mo. banc 2007).
“Generally, courts exclude hearsay because the
out-of-court statement is not subject to cross-examination,
is not offered under oath, and is not subject to the fact
finder's ability to judge demeanor at the time the
statement is made.” Bynote v. Nat'l Super
Markets, Inc., 891 S.W.2d 117, 120 (Mo. banc 1995).
Exceptions to the general prohibition against hearsay may
apply when circumstances assure the trustworthiness of the
declarant's statement. Id. The exceptions argued
in this case are statements of present sense impression,
statements of declarant's present mental condition,
verbal conduct, and the constitutionally recognized exception
under the due process clause.
For a hearsay statement to be admissible pursuant to the
present sense impression exception, the statement must be
made simultaneously, or almost simultaneously, with the
occurrence of an event or act, the statement must describe or
explain the event; and the declarant must perceive the event
with his own senses. State v. Smith, 265 S.W.3d 874,
879 (Mo. App. 2008) (citing 2 McCormick on Evidence
§ 271, at 251 (6th ed. 2006)). These statements have
certain indicia of trustworthiness to support their
admissibility. Id. Errors in memory and time for
calculated misstatements are not present because the
statements are made as declarant perceives the event or
immediately thereafter. Id. Further, in most cases,
“a witness will have observed the event and can
corroborate the hearsay statement, and the declarant will
often be available at trial for cross-examination to verify
his or her credibility.” Id.
An out-of-court statement of the declarant's present
mental condition is also admissible as an exception to the
hearsay rule so long as the statements are relevant and their
relevancy outweighs their prejudicial effect. State v.
Bell, 950 S.W.2d 482, 483 (Mo. banc 1997). This
exception is generally limited to cases “where the
hearsay declarations of mental condition are especially
relevant - particularly where the defendant has put the
decedent's mental state at issue by claiming accident,
self-defense or suicide.” Id.
A hearsay statement may also be admissible as a verbal act.
State v. Copeland, 928 S.W.2d 828 (Mo. banc 1996);
See Copeland v. Washington, 232 F.3d 969 (8th Cir.
2000) (writ of habeas corpus granted on sentencing defect).
This includes statements written or oral that have
independent legal significance or effect. See Estate of
Oden v. Oden, 905 S.W.2d 914, 918 (Mo. App. 1995).
Lastly, an out-of-court statement may be admitted pursuant to
the constitutionally based exception in the due process
clause. This exception applies to hearsay statements that
“both exonerate the accused and are originally made and
subsequently offered at trial under circumstances providing
considerable assurance of their reliability.” State
v. Hutchison, 957 S.W.2d 757, 761 (Mo. banc 1997)
(citing to Chambers v. Mississippi, 410 U.S. 284,
300… (1973)). Three circumstances of reliability have
been recognized: “1) each confession is in a very real
sense self-incriminatory and unquestionably against interest;
2) each statement was spontaneously made to a close
acquaintance shortly after the murder occurred; and 3) the
statements are corroborated by other evidence in the
case.” Id. (internal quotations omitted).
In addition to arguing exceptions to the hearsay rule, Taylor
argues that several of the statements are admissible pursuant
to the curative admissibility doctrine. The curative
admissibility doctrine applies when one party introduces
inadmissible evidence and allows the opposing party to
introduce otherwise inadmissible evidence to rebut or explain
inferences raised by the first party's evidence.
State v. Middleton, 998 S.W.2d 520, 528 (Mo. banc
… Gerjuan's Payphone Conversation
… Taylor argues the trial court abused its discretion
in excluding Gerjuan's testimony that [Angela] Rowe told
her she was calling from a pay telephone on November 28th.
Taylor argues that the testimony was admissible as Rowe's
present sense impression or under the due process clause. In
addition, he argues that the testimony was admissible
pursuant to the curative admissibility doctrine to refute the
inference that Rowe and Gerjuan did not speak to each other
on that date from the absence of a call to Gerjuan in
Rowe's home telephone records.
Gerjuan Rowe was served with a subpoena to testify at trial.
Gerjuan did not appear and the court issued a writ of
attachment. At the end of the State's case, Taylor's
counsel informed the court that the writ had not been served,
and that the defense intended to call Gerjuan as a witness in
the case. As a result, the court granted Taylor permission to
read portions of Gerjuan's deposition into evidence. The
court, however, excluded the following portion as hearsay:
A. [Gerjuan] We was out walking around, and she did call me
from a pay phone on Jennings Station Road and West Florissant
at the Amoco.
Q. [Defense] Okay.
A. And I was supposed to have been on my way that way, but by
my car not being legal and by Jennings police being ass
holes, I didn't just go over there.
Q. But you knew she was at a pay phone then on the -
Q. - on the early morning hours -
Q. - of the 28th?
[PROSECUTOR]: How did you know she was on a pay phone?
A. Because I asked her, I asked her, where are you?
And she said she was on the pay phone. And
I said - I was supposed to have been on my way to get her. I
was supposed to have been on my way to get her, that's
what I was supposed to be doing. That's how I knew she
was at the Amoco on Jennings Station Road and West
Q. [DEFENSE] Were you ever able to actually hook up with her
The existence of the telephone call on November 28th was
admissible, and testimony regarding such a call was admitted
into evidence; however, evidence that Rowe was calling
from a pay telephone was hearsay and inadmissible.
Gerjuan's testimony that Rowe told her that she was
calling from a pay telephone on November 28th was
hearsay. The statement was offered for the truth of the
matter asserted: that Rowe called Gerjuan from a pay
telephone on November 28th.
This hearsay statement is not admissible as a present sense
impression. The statement was about Rowe's location at a
specific time in response to a question from Gerjuan. The
statement did not concern an event or describe or explain an
event that Rowe perceived. Further, the statement lacks
indicia of trustworthiness. Taylor did not offer any evidence
corroborating the statement that Rowe made the call from a
pay telephone on November 28th. Although Gerjuan's cell
phone records show an outgoing call to the pay
telephone at 4:36 a.m. on November 28th, the statement was
offered to prove that [Rowe] placed the call from
the pay telephone. There is no record of an incoming call
from the pay telephone to Gerjuan's cell phone or any
telephone, and there is no evidence of outgoing calls from
the pay telephone. Lastly, neither Rowe nor Gerjuan was
subject to cross-examination to resolve the confusion.
The statement is also not admissible pursuant to the
constitutionally based hearsay exception in the due process
clause because it lacks circumstances of reliability. The
statement was not against Rowe's interest or
spontaneously made, and most importantly, as discussed above,
this statement is not sufficiently corroborated by other
evidence in the case. In addition to the lack of evidence in
the phone records, Gerjuan's testimony regarding the
dates of events prior to the murders, such as when she last
saw Rowe, was conflicting,  and the circumstances of this
telephone call were also unclear.
Finally, the curative admissibility doctrine does not apply.
The State presented evidence of Rowe's home phone records
and Gerjuan's cell phone records. This evidence was
admissible, and as a result, Gerjuan's inadmissible
testimony about the pay phone cannot be admitted pursuant to
Gerjuan's proposed testimony regarding Rowe's
statement is hearsay and inadmissible. The trial court did
not abuse its discretion.
… Taylor argues the trial court abused its discretion
in excluding Gerjuan's testimony about Taylor's prior
communication with Rowe and Rowe's notations in the
calendar and in refusing to allow the jury to view the
notations in the calendar. Taylor alleges Gerjuan's
testimony is admissible as Rowe's present sense
impression of Taylor's actions, as statements of
Rowe's state of mind and under the due process clause.
Lastly, he argues that the testimony and notations were
admissible pursuant to the curative admissibility doctrine.
The trial court prohibited Taylor from reading into evidence
the following section of Gerjuan's deposition because it
A. Yes, yes, yes, yes, yes. He was gone maybe six days a week
out of seven days.
Q. Would there be times when he wouldn't call her even to
talk to her once he was on the road?
Q. Just was out of communication?
A. Phone off. Come over there.
The following portion of Gerjuan's deposition regarding
Rowe's calendar was read into evidence:
Q. [Defense counsel] I'm going to show you now what
I've marked as Defendant's Exhibit 8, and see if you
recognize that. Just flip those pages, if you would.
A. [Gerjuan] Uh-uh. Yeah.
Q. Do the notes on that, it's a calendar for 2004, do
those notes appear to be also in [Rowe's] handwriting?
A. Yes, some of it. Yes, these is [Rowe's], yes, I do
The following portion of the deposition was excluded as
Q. If you'll go to November of 2004 -
A. Ooh. Ooh. Ooh. And this is us. I'm telling you, this
is what we do. I might have a calendar like this too.
Q. She keeps track in there of when he's gone and -
A. Yes, yes, yes.
Q. That was just a habit she had, right?
Q. Now if you look at November 26th -
Q. - does she write “off” there?
Q. And that's her handwriting as well?
Q. Now, had Angela discussed with you in November of 2004
that [Taylor] would be leaving town again or what his
schedule was going to be?
A. No. The only time I would know is when he might not answer
the phone or she was fed up with him, he had done it too
Q. Tell me more what you mean by that.
A. Like I come back Monday, I'm leaving on Wednesday,
that's too much. You just got back, you're fixing to
A. And when he would go, he stay gone weeks at a time.
A. Weeks at a time.
Rowe's calendar with her notations was admitted into
evidence, but because the calendar contained hearsay, the
calendar was not published to the jury. The first month
included in the calendar is January 2004 and the last month
is January 2005. The notations in the calendar were as
From February to August, the notations include
“didn't come home yet, ” no call today”
and “were home” and each of these notations was
followed by “L.T.” The other entries on these
days were personal appointments. From September to November,
“paycheck” and “off” are written
every other Friday and “work, ” “off”
or “home” are written on every Saturday and
Sunday. In addition, written on most days up to November 15th
is “home” or “no show, no call, ” but
none of these entries contain “L.T.” as in the
previous months. The remaining entries from November 15th
through January 2005 are personal appointments, with
“off” and “paycheck” written every
other Friday. Specifically, on November 26th, the notations
are “off” and “paycheck.”
Rowe's statement to Gerjuan and Rowe's notations on
her calendar were hearsay. The statement and notations were
offered for the truth of the matter: that it was not unusual
for Taylor not to see or talk to Rowe for periods of time.
Neither is admissible as a present sense impression. There is
no evidence that Rowe made these statements to Gerjuan or
wrote the notations simultaneously on the discovery of the
presence or absence of Taylor or shortly after Rowe spoke to
or spent time with him. The statements and notations also
lack indicia of trustworthiness as neither Rowe nor Gerjuan
was available for cross-examination, there is no
corroborating evidence that Taylor was with Rowe or talked to
her on those days, and there is no evidence as to when Rowe
made this statement to Gerjuan.
The state of mind exception also does not apply to the
notations written on the calendar because the notations are
not statements of mental condition, and most importantly,
Rowe's state of mind is not particularly relevant because
Taylor has not placed Rowe's mental state at issue.
The due process hearsay exception does not apply because
there exist no circumstances of reliability. These statements
and notations are not against Rowe's interest and were
not made spontaneously after the event. Further, the
statements are not corroborated by other evidence in the
case. Although Gerjuan identified the handwriting in the
calendar as Rowe's, Gerjuan had no personal knowledge of
the calendar and never witnessed Rowe write any of these
The curative admissibility doctrine does not apply. The
State's evidence of telephone records from Rowe's
home telephone and Taylor's cell phone were admitted to
show that telephone calls between Taylor and Rowe ended in
November. The State also offered testimony of Rowe's
employer to establish that Rowe was absent from work on
November 26th. Because this evidence was admissible, the
inadmissible evidence of the testimony or notations cannot be
admitted pursuant to this doctrine.
Gerjuan's testimony about the calendar and the notations
in the calendar are hearsay and inadmissible. The trial court
did not abuse its discretion.
… Check Carbon Copy
… Taylor argues that the trial court abused its
discretion in refusing to allow the jury to view Rowe's
checkbook that contained a carbon copy of a
“check” dated November 27th. Taylor argues that
the November 27th “check” is relevant and does
not contain hearsay. In the alternative, he argues that if
the “check” does contain hearsay, it is
admissible as a statement of Rowe's state of mind of her
“belief that she was alive and physically able to write
a check on that date” or admissible as verbal conduct.
A checkbook was seized from Rowe's home during the
investigation. The checkbook is a duplicate check design,
which contains a carbon copy paper behind each individual
check. Rowe's checkbook contained a duplicate of a
“check” dated November 27, 2004. This
“check” is made out for the amount of $390.00,
but the “pay to the order” line is blank.
Rowe's home telephone number is written in the memo line.
The checkbook was admitted into evidence, but it was not
published to the jury because it contained hearsay.
The “check” dated November 27th is hearsay. It
was admitted to prove that Rowe was alive on November 27th,
which was one day after Taylor left St. Louis. The
“check” lacks reliability, as the payee line is
blank, there is no evidence that anyone received the
“check, ” or that anyone had knowledge of the
existence of the “check.”
Further, Taylor fails to show that an exception to the
hearsay rule applies. The date written on the
“check” is not a statement of Rowe's present
mental condition and does not reflect any belief as to
whether or not she was alive on that date, and Taylor has not
placed Rowe's mental state at issue.
The check is not admissible as a verbal act, because there is
no evidence that Rowe either completed or used the
“check” as a legal document. It was not
negotiated. There is no evidence that anyone received it, and
there is no evidence of the purpose or circumstance under
which Rowe wrote it, especially in light of the absence of a
person or entity listed as the payee. Estate of Oden v.
Oden, 905 S.W.2d 914, 918 (Mo. App. 1995), dealt with
completed legal documents acknowledged before notaries that
were self-authenticated. It does not help Taylor, as this
situation does not deal with a completed legal document.
The “check” is hearsay and inadmissible, and the
trial court did not abuse its discretion in refusing to
publish the checkbook to the jury.
… Rowe's Statement to Gerjuan
… Taylor argues that the trial court abused its
discretion in excluding Gerjuan's testimony of Rowe's
statement to Gerjuan that Taylor's relative lived at
Rowe's house. Taylor alleges the testimony was
admissibility under the due process clause and the curative
admissibility doctrine to refute the inference that only
Taylor could have committed the crime from the absence of any
forced entry and the evidence that only Taylor had access to
The trial court excluded the following portion of
Q. [Defense counsel] And I think you sort of said you knew
that [Taylor] had a brother, but do you know anything more
A. No. I don't know if that was the brother or the cousin
that was ...