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Taylor v. Steele

United States District Court, E.D. Missouri, Eastern Division

March 31, 2018

LEONARD S. TAYLOR, Petitioner,
v.
TROY STEELE, Respondent.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE.

         This 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.

         BACKGROUND

         1. Investigation & Arrest

         On the 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. (Id.)

         Inside, 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 12)

         The 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.)

         In 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 15-17)

         Taylor 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)

         The 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)

         3. Direct Appeal

         Taylor 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)

         Seventh, 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)

         Eighth, 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)

         Ninth, 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)

         Tenth, 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)

         Finally, 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)

         The Missouri Supreme Court[1] 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 (Mo. 2009).

         4. Post-Conviction Review

         Taylor 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.

         The 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)

         5. Appeal of Post-Conviction Review

         Taylor 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)

         6. Petition for Writ of Habeas Corpus

         Taylor raises eight claims in his petition for habeas relief.

         First, 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)

         Second, 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)

         Third, 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)

         Fourth, 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)

         Fifth, 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)

         Sixth, 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)

         Seventh, 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)

         Eighth, 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)

         LEGAL STANDARD

         A 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. at 102.

         A 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 court proceeding.

28 U.S.C. § 2254(d).

         The 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.

         Moreover, “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 claims.” Id.

         Finally, 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. 2002).

         In that 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.

         The 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.

         ANALYSIS

         1. 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.

         Taylor 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 5-6)

         The 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 Law (UMDDL).
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 request.
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 overruled both.
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 2009).

         In his 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 continuance.

(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. 1980).

(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)

         Taylor 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).

(Id.)

         Finally, 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.[2] 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).

         Respondent 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 provides that:
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… (emphasis added).
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 100 years.
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)

         Respondent 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][3]); 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 habeas review.”)

(Id. at 14-15)

         Finally, 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)

         In 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][4] 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)

         Finally, Taylor argues that the Missouri Supreme Court's decision incorrectly adjudicated his speedy-trial constitutional claim because:

[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 time. Id.

(Id. at 29-31).

         Having 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.

         First, 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 citations omitted).

         Second, 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 Compact Clause”).

         Taylor's 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.

         Delaware 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)

         Third, 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)

         Fourth, 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 occurred))

         Taylor 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 (footnote omitted).

         The 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 objections).

         Taylor 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 relief.

         2. 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 otherwise admissible.

         Taylor's 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 direct appeal:

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 1999).
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.
i. Facts
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 -
A. Yes.
Q. - on the early morning hours -
A. Yes.
Q. - of the 28th?
A. Yes.
[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 Florissant.
Q. [DEFENSE] Were you ever able to actually hook up with her then?
A. No.
(Emphasis added).
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.
ii. Analysis
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, [5] and the circumstances of this telephone call were also unclear.[6]
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 this doctrine.
Gerjuan's proposed testimony regarding Rowe's statement is hearsay and inadmissible. The trial court did not abuse its discretion.
Calendar Notations
… 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.
i. Facts
The trial court prohibited Taylor from reading into evidence the following section of Gerjuan's deposition because it was hearsay:
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?
A. Right.
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 believe.
The following portion of the deposition was excluded as hearsay:
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?
A. Uh-huh.
Q. Now if you look at November 26th -
A. Un-huh.
Q. - does she write “off” there?
A. Yes.
Q. And that's her handwriting as well?
A. Uh-huh.
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 much.
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 leave again.
Q. Right.
A. And when he would go, he stay gone weeks at a time.
Q. Right.
A. Weeks at a time.
(Emphasis added).
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 follows.
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.”
ii. Analysis
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 notations.
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.
i. Facts
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.
ii. Analysis
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 home.
i. Facts
The trial court excluded the following portion of Gerjuan's deposition:
Q. [Defense counsel] And I think you sort of said you knew that [Taylor] had a brother, but do you know anything more about him?
A. No. I don't know if that was the brother or the cousin that was ...

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