State of Missouri v. Rashidi Don Loper ( 2020 )

SUPREME COURT OF MISSOURI
en banc
STATE OF MISSOURI, ) Opinion issued October 13, 2020
)
Respondent, )
)
v. ) No. SC98295
)
RASHIDI DON LOPER, )
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS CITY
The Honorable Thomas C. Clark II, Judge
Rashidi Don Loper (hereinafter, “Loper”) was convicted after a jury trial of first-
degree attempted rape, second-degree domestic assault, first-degree domestic assault, two
counts of armed criminal action, and victim tampering against E.S.L., with whom he had a
romantic relationship. Loper raises five points of evidentiary error on appeal. 1 This Court
holds the circuit court committed no error regarding Loper’s claims and affirms the circuit
court’s judgment.
Factual and Procedural Background
Loper does not challenge the sufficiency of the evidence to support his convictions.
Loper and E.S.L. were involved in an on-and-off romantic relationship beginning in 2009.
1
This Court has jurisdiction. Mo. Const. art. V, sec. 10.
On April 3, 2015, Loper went to see E.S.L. even though they had no contact during the
prior six months. E.S.L. admitted Loper into her apartment. E.S.L. went to her bedroom,
laid down on her bed, and pulled the covers over her head. Loper pulled the covers off of
E.S.L. and pulled her legs toward him. E.S.L. told Loper she did not want to have sex with
him. Loper pulled down his pants, exposed himself, and started pulling down E.S.L.’s
pants. E.S.L. attempted to fight off Loper by kicking him and pulling at her pants. Loper
grabbed E.S.L. by the throat and choked her until she lost consciousness.
E.S.L. woke up naked and submerged in water in her bathtub with the shower
running. E.S.L. had a severe cut on her wrist “to the point it was barely attached to [her]
arm.” E.S.L. found a kitchen knife lying between her legs. E.S.L. pulled herself out of the
bathtub, wrapped her wrist to try to stop the bleeding, and called 911. E.S.L. initially told
Officer Wesley Pierce (hereinafter, “Officer Pierce”) and a paramedic she cut her wrist,
although she could not remember doing it. After receiving medical treatment, E.S.L.
remembered Loper had been present and she realized she had not cut her wrist.
E.S.L. had significant swelling to her face and tiny bruises and hemorrhaging in the
whites of her eyes, which suggested she had been strangled. E.S.L. had ligature marks
around her neck consisting of a pattern of vertical lines that could have been caused by a
landline telephone cord. Investigators found trails of blood throughout the apartment,
including one leading out of the bathroom and into the living room where the telephone
cord, which had blood on it, was located. There was blood on E.S.L.’s mattress.
Loper was arrested and charged with several counts: (I) first-degree attempted rape;
(II) first-degree domestic assault for strangling E.S.L. with a telephone cord; (III) armed
2
criminal action correlating to count II; (IV) first-degree domestic assault for cutting
E.S.L.’s wrist; (V) armed criminal action correlating to count IV; (VI) felony kidnapping; 2
and (VII) victim tampering for actions Loper took after he was arrested to dissuade E.S.L.
from assisting in his prosecution. E.S.L. later helped secure Loper’s pretrial release. Loper
and E.S.L. resumed their relationship and got married, but they were separated at the time
of trial.
E.S.L. testified at trial how Loper came to her apartment and how she fought him
off as he attempted to rape her. E.S.L. described Loper choking her, losing consciousness,
and waking up in the bathtub with injuries. Defense counsel cross-examined E.S.L. about
two prior instances in which she allegedly attempted suicide after breaking up with Loper,
which E.S.L. denied.
Officer Pierce testified an unidentified hospital doctor told him E.S.L.’s wrist injury
was not self-inflicted, which prompted him to refer the case to Detective Kara Lindhorst
(hereinafter, “Detective Lindhorst”), a detective with the domestic assault response team
(hereinafter, “DART”). Detective Lindhorst testified about her investigation and how the
characteristics of power and control were manifested in this case. Dr. Erin Quattromani
(hereinafter, “Dr. Quattromani”) treated E.S.L. at the hospital and opined E.S.L.’s wrist
injury was not self-inflicted given the depth and length of the injury and E.S.L.’s reporting
she did not inflict the cut herself. Other medical personnel testified about E.S.L.’s injuries
resulting from being strangled and choked. Michelle Schiller-Baker (hereinafter, “Schiller-
2
This charge was dismissed prior to trial.
3
Baker”) testified as an expert in the general behaviors and characteristics of domestic
assault victims. Schiller-Baker explained how power and control worked in domestic
violence cases involving strangulation and sexual assault. Schiller-Baker did not testify
regarding the specifics of the parties’ relationship or the facts of the case.
Loper testified about his tumultuous relationship with E.S.L. and how they both
engaged in domestic violence. Loper admitted he went to E.S.L.’s apartment on the day
of the offenses. Loper testified they began having sex, but he stopped during the act
because he realized he should not cheat on his current girlfriend. Loper claimed E.S.L.
became irate and began fighting him as he tried to leave. Loper stated he “pushed her by
her throat … like pushed her back to get her off of [him].” Loper stated at that point he
left the apartment. Loper denied using force during sex, cutting E.S.L.’s wrist, or choking
her until she lost consciousness.
The jury found Loper guilty as charged on all counts, except for count II, in which
it found Loper guilty of second-degree domestic assault for choking E.S.L. with his hands
instead of strangling her with a telephone cord. Loper was sentenced to a term of fifteen
years’ imprisonment for first-degree domestic assault and three years’ imprisonment for
the associated armed criminal action offense, seven years’ imprisonment for first-degree
attempted rape, five years’ imprisonment for second-degree assault and three years’
imprisonment for the associated armed criminal action offense, and three years’
imprisonment for victim tampering. Loper’s sentences were ordered to run concurrently,
except for the first-degree attempted rape, which was ordered to run consecutively, for a
total of twenty-two years’ imprisonment. Loper appeals.
4
Standard of Review
Loper raises five points challenging the circuit court’s rulings admitting or
excluding certain evidence. The circuit court “has broad discretion to admit or exclude
evidence during a criminal trial, and error occurs only when there is a clear abuse of this
discretion.” State v. Hartman, 488 S.W.3d 53, 57 (Mo. banc 2016) (internal quotation
omitted). An abuse of discretion occurs only if the circuit court’s ruling admitting or
excluding evidence “is clearly against the logic of the circumstances then before the court
and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack
of careful, deliberate consideration.” State v. Blurton, 484 S.W.3d 758, 769 (Mo. banc
2016) (internal quotation omitted). “This Court will reverse the [circuit] court’s decision
only if there is a reasonable probability that the error affected the outcome of the trial or
deprived the defendant of a fair trial.” State v. Wood, 580 S.W.3d 566, 574 (Mo. banc
2019).
When defendants have not preserved their claims of evidentiary error, this Court
may exercise its discretion to review the claim for plain error. Rule 30.20. “[T]his Court
will not review a claim for plain error unless the claimed error ‘facially establishes
substantial grounds for believing that manifest injustice or miscarriage of justice has
resulted.’” State v. Clay, 533 S.W.3d 710, 714 (Mo. banc 2017) (quoting Rule 30.20)).
Detective Lindhorst’s Testimony
Loper argues the circuit court abused its discretion in overruling his objection and
allowing the state to present testimony from Detective Lindhorst that the case was about
Loper exercising “power and control” over E.S.L. Loper argues admitting this testimony
5
deprived him of a fair trial because these comments amounted to expert testimony that
invaded the province of the jury by vouching for E.S.L.’s credibility. The state maintains
Loper failed to preserve this claim and is entitled only to plain error review.
Detective Lindhorst testified she has been a police officer for sixteen years and
worked with DART for nine years. Detective Lindhorst stated she received specialized
domestic violence training at local, state, and national levels. She also teaches and speaks
to advocacy groups about domestic violence. Detective Lindhorst indicated she has
handled thousands of domestic violence cases over nine years. Detective Lindhorst
testified extensively and without objection about how she became familiar with the concept
of power and control through her training and experience handling domestic violence cases.
Detective Lindhorst explained,
In general, domestic violence, unlike a lot of crime, it’s all about power and
control and authority over one person. We have -- a lot of our offenders this
is what they do. They want to make sure that the victim is controlled all the
time, no matter how long they’ve been in the relationship, no matter how
long the relationship has been over. We try to get that from our victim to
help us understand what happened in that relationship, because it’s important
for them to recognize and for us to be able to talk to them about what
happened in the relationship, why is that power and control which includes
harassment, stalking, threatening behavior, threats to the victim, threats to
the victim’s family. We try to get all that information, talk to the victims
about it. We also train on that information.
The prosecutor then asked Detective Lindhorst if she “[had] evidence of power and control
in this case,” to which she answered, “Absolutely.” The prosecutor asked Detective
Lindhorst to describe “the signs she saw through [her] investigation.” Detective Lindhorst
stated, “The fact that they hadn’t seen each other over months at a time to me is very --,”
at which point defense counsel objected, stating “personal opinion,” and the parties
6
approached the bench. The circuit court stated it believed the state laid a foundation
establishing Detective Lindhorst had sufficient training and experience to discuss this issue
and asked defense counsel if he wanted to add to his objection. Defense counsel stated,
“No. That’s fine. Just note the objection.” Detective Lindhorst then testified,
In addition, like I already said, the time that had passed between when the
relationship had ended and the assault that occurred is not uncommon. A lot
of cases aren’t exactly the same. It’s telling since they hadn’t been together
in that long, the offender had thought maybe his power and authority over
her had started to slip, which indicates he needs to come back and dominate.
Additionally, the strangulation is a very intimate crime. Strangulation and
also the cut on her wrist is very -- the strangulation is very intimate. You
have to be close to that person. When you strangle them, they go
unconscious. That takes a lot of fight. You will be able to feel them stop
breathing. You will be able to feel them kick or struggle with you, and to
have a broken fingernail --
“For an allegation of error to be considered preserved and to receive more than plain
error review, it must be objected to during the trial and presented to the trial court in a
motion for new trial.” State v. Walter, 479 S.W.3d 118, 123 (Mo. banc 2016). Loper’s
objection to Detective Lindhorst’s testimony at trial was “personal opinion.” Defense
counsel declined to expand his objection when given the opportunity. Loper’s new trial
motion alleged Detective Lindhorst’s opinion testimony was irrelevant and outside of her
training and experience. This is inconsistent with Loper’s trial objection. Further, Loper
did not object or argue during trial or in his new trial motion that Detective Lindhorst’s
testimony vouched for E.S.L.’s credibility. Nevertheless, Loper argues his “personal
opinion” objection preserves not only his argument that a lay witness’ opinion testimony
goes beyond the witness’s personal observation but also that the improper opinion on
7
disputed facts invades the province of the jury. But this is inconsistent with the circuit
court’s understanding of Loper’s objection during trial and this Court’s precedent.
“Including a claim of error in a motion for new trial is a requirement of preserving
an issue for review, but a claim of error is not wholly preserved absent a timely objection
at trial.” Id. “Typically, an objection made after a question has been asked and answered
is untimely.” State v. Rice, 573 S.W.3d 53, 73 (Mo. banc 2019). Exceptions to this rule
exist “if the witness answers so quickly that it is impossible to object or if the grounds for
objection become apparent only when the answer is given.” Blurton, 484 S.W.3d at 774.
Loper’s objection was untimely. Detective Lindhorst stated “absolutely” when the
state asked her if there was evidence of power and control demonstrated in this case. The
state then asked Detective Lindhorst to explain what evidence she saw, and Detective
Lindhorst began to answer before defense counsel raised any objection.
Furthermore, following Loper’s counsel’s objection to Detective Lindhorst’s
opinion, the circuit court explained it believed the state laid a proper foundation allowing
Detective Lindhorst to testify as an expert and give her opinion and invited counsel to
expand the objection to the testimony. At that point, Loper’s counsel could have clarified,
if this was his intention, that he was not objecting to Detective Lindhorst providing an
expert opinion, but the specific testimony about what Detective Lindhorst observed in this
particular case was improper because it vouched for the credibility of the victim and
invaded the province of the jury. Generally objecting that the testimony was “personal
opinion” did not advise the circuit court sufficiently as to the nature of Loper’s objection
and the basis for his argument on appeal. As this Court has noted, a specific objection is
8
required to preserve the issue on appeal to allow the circuit court to correct any potential
error at the earliest possible point in the proceeding. See State v. Amick, 462 S.W.3d 413,
415 (Mo. banc 2015) (holding that objections must be sufficiently specific to be preserved
for appellate review).
Hence, because Loper’s objection in this case was untimely and not specific as to
vouching for the witness or invading the province of the jury, this claim is entitled only to
plain error review. “Plain error review is discretionary” State v. Michaud, 600 S.W.3d 757,
762 (Mo. banc 2019), and “must be evident, obvious, and clear.” Walter, 479 S.W.3d at
131. Loper bears the burden of demonstrating a manifest injustice occurred. State v. Oates,
540 S.W.3d 858, 863 (Mo. banc 2018).
“A lay witness is permitted to give opinion testimony about a matter in dispute when
the lay witness’s opinion is based on knowledge not available to the jury and would be
helpful to the jury in reaching the jury’s own opinion.” State v. Starkey, 380 S.W.3d 636,
647 (Mo. App. E.D. 2012). Further, “[i]t is permissible for an officer to testify concerning
their observation of a fact based on the witness’ experience as a police officer.” State v.
Galvin, 483 S.W.3d 462, 467 (Mo. App. E.D. 2016). Moreover, in State v. Jaco,
156 S.W.3d 775, 779-80 (Mo. banc 2005), this Court explained:
Expert testimony relating to profile evidence is admissible in the discretion
of the trial court to describe behaviors and characteristics commonly
observed in victims or to determine the cause of an injury to a victim.
However, profile evidence is not admissible to show a defendant’s
responsibility for injury to a victim. This victim/defendant distinction is
necessary to accommodate the general rule that while an expert may express
an opinion regarding an ultimate issue in a case, the expert may not express
an opinion on the guilt or innocence of the defendant. To do so, of course,
would be to invade the province of the jury.
9
(Internal citations omitted).
In this case, Loper cannot demonstrate the circuit court’s admission of
Detective Lindhorst’s testimony facially establishes substantial grounds for believing
manifest injustice or a miscarriage of justice resulted when she testified she “absolutely”
saw evidence of power and control dynamics typically present in domestic violence cases.
In Silvey v. State, 894 S.W.2d 662, 671 (Mo. banc 1995), 3 this Court found testimony
regarding whether a child exhibited behavioral indicators consistent with sexual abuse was
admissible because the opinion did not state whether the child suffered abuse inflicted by
the defendant. Further, the testimony did not comment upon the child’s credibility or the
credibility of abuse victims in general. This was in contrast to State v. Williams, 858
S.W.2d 796, 801 (Mo. App. E.D. 1993), in which an expert stated children who are abused
sexually rarely lie about the abuse and incidents of lying among children was very low.
See also State v. Haslett, 283 S.W.3d 769, 779-80 (Mo. App. S.D. 2009) (holding the
medical examiner’s testimony that a child’s injuries were “atypical,” “uncommon,” were
“indicative of abuse,” and “routinely see[n] in cases involving child abuse,” was admissible
and did not invade the province of the jury because the medical examiner never testified or
inferred the defendant caused the child’s injuries or opined as to the defendant’s guilt);
State v. Gray, 347 S.W.3d 490, 504 (Mo. App. E.D. 2011) (holding the expert’s testimony
that a child did not receive her injuries through normal childhood accidents and falls, but,
instead, the injuries were “absolutely …” “consistent with abusive behavior or suspicion
3
Silvey was abrogated on other grounds by State v. Porter, 439 S.W.3d 208, 212 (Mo. banc
2014).
10
of abusive type of injuries” was admissible because it did not invade the province of the
jury, the testimony did not state or infer the defendant caused the injuries, and the expert
did not comment about the defendant’s guilt); State v. Beck, 557 S.W.3d 408, 422-23 (Mo.
App. W.D. 2018) (determining a physician’s diagnosis that a child was abused sexually,
based on the child’s reported history and physical exam, did not implicate the defendant as
the abuser or comment about the child’s veracity).
Loper argues, because there was a dispute as to how E.S.L.’s wrist was injured,
Detective Lindhorst’s testimony invaded the jury’s province to determine E.S.L.’s
credibility when stating she “absolutely” saw characteristics consistent with domestic
violence. However, this same type of dispute arose in Gray, in which the defendant alleged
the child received her injuries through normal childhood accidents and falls, but the expert
opined the injuries were “absolutely” consistent with abuse. This testimony was found not
to invade the province of the jury. Gray, 347 S.W.3d at 504. Similarly,
Detective Lindhorst did not comment about E.S.L.’s credibility or implicate Loper as the
perpetrator of the domestic violence that she believed occurred in this case. Finally, Loper
cannot demonstrate prejudice in that the state relied on medical provider testimony and
evidence depicting E.S.L.’s wrist injury—not Detective Lindhorst’s testimony about the
wrist injury—as proof it was not self-inflicted as the defense contended. The circuit court
did not plainly err in overruling Loper’s untimely, nonmeritorious objection to
Detective Lindhorst’s testimony. This point is denied.
11
Schiller-Baker’s Testimony
Loper argues the circuit court abused its discretion in overruling his objection to
qualifying Schiller-Baker as an expert and in admitting her testimony regarding domestic
violence victims. Loper argues the state failed to lay a proper foundation to qualify
Schiller-Baker as an expert and her testimony improperly vouched for E.S.L.’s credibility.
Foundation for Expert Qualification
Loper argues the state failed to lay a proper foundation to qualify Schiller-Baker as
an expert because she has no formal education in medicine, psychology, or counseling, she
did not elaborate on the details of her training, and she did not rely on the facts of the case
to form her opinion, rendering it unreliable and irrelevant. This claim is preserved and will
be reviewed for an abuse of discretion. Hartman, 488 S.W.3d at 57.
Section 490.065.2(1)(a), RSMo Supp. 2017, sets forth the requirements to admit
expert opinion testimony. This section provides,
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if … [t]he expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue[.]
Prior to trial, the state endorsed Schiller-Baker as a witness and sought to have her
testimony admitted as an expert on the subject of domestic violence, to which Loper
objected. The circuit court held a pretrial hearing pursuant to section 490.065. Schiller-
Baker testified she was the executive director of a domestic violence shelter. Schiller-
Baker stated she worked at the shelter for thirty-five years, personally worked with over
4,000 women involved in abusive relationships, and attended and presented hundreds of
12
workshops and conferences directly related to her work at the shelter. Schiller-Baker
explained she engaged in continuing education, training, and attended monthly meetings
regarding policies, protocols, crisis intervention, and victim safety. Schiller-Baker testified
she gave talks and led workshops about domestic violence for legal, medical, and religious
organizations and facilitated training with local law enforcement. Schiller-Baker stated
she had been qualified as an expert to testify about this same topic in six prior cases.
Schiller-Baker admitted she had no formal training in psychology or psychiatry but stated
she based her opinions on her experience, ongoing training, workshops, and research.
The circuit court ruled Schiller-Baker’s testimony would assist the trier of fact
because domestic violence is an area beyond the understanding of the ordinary person and
general profile evidence, such as explaining different behaviors involving domestic
violence, can be a proper topic for the jury. The circuit court further found Schiller-Baker
had unique and extensive knowledge of domestic violence based on her position, her
extensive experience throughout the state, her training, along with the extensive training
she provided for several different entities qualifying her to testify as an expert.
Loper cites no case supporting his position that Schiller-Baker must possess formal
education or licensure to testify as an expert. The statute’s plain language contemplates an
expert may be qualified based solely upon his or her training or experience. State ex rel.
Gardner v. Wright, 562 S.W.3d 311, 321 (Mo. App. E.D. 2018). “[N]o one denies that an
expert might draw a conclusion from a set of observations based on extensive and
specialized experience.” Id. (alteration in original) (quoting Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 156, 119 S. Ct. 1167, 1178, 143 L. Ed. 2d 238 (1999)). Loper
13
also complains about the lack of detail Schiller-Baker offered about the training she
received and provided over the course of thirty-five years. Loper had the opportunity to
probe this issue on cross-examination but failed to do so. The circuit court did not abuse
its discretion in finding Schiller-Baker’s breadth and depth of experience qualified her to
testify as an expert about this issue.
Loper briefly argues, because Schiller-Baker’s opinion was not based on or
consistent with the facts of the case, it was unreliable and irrelevant. “[A]dmission of
expert evidence requires the [circuit] court to apply the same standards for relevance and
admissibility that apply to other types of evidence.” Shallow v. Follwell, 554 S.W.3d 878,
883 (Mo. banc 2018) (first alteration in original) (quoting Lozano v. BNSF Railway Co.,
421 S.W.3d 448, 451 n.2 (Mo. banc 2014)). “Reliability is determined by considering
whether the testimony is based on sufficient facts or data, reliable principles and methods
and reliable application thereof.” Gardner, 562 S.W.3d at 319. Moreover, whether
testimony is relevant under section 490.065 “depends on whether the testimony contains
specialized knowledge that will assist the trier of fact to understand the evidence.” Id.
Schiller-Baker’s generalized testimony was based on her vast experience as the executive
director of a domestic violence shelter and her extensive training. Schiller-Baker’s reliance
on this experience and training, rather than the facts of this case, to provide generalized
testimony does not render it unreliable or irrelevant. The circuit court did not abuse its
discretion in qualifying Schiller-Baker as an expert and finding her opinion relevant and
reliable.
14
Vouching for E.S.L.’s Credibility
In the same point, Loper argues admitting this testimony deprived him of a fair trial
in that Schiller-Baker’s testimony invaded the province of the jury by vouching for E.S.L.’s
credibility. This portion of Loper’s claim is unpreserved in that this objection was not
raised at trial or in his new trial motion. Hence, this Court may review this claim only for
plain error. Rule 30.20.
“When determining the admissibility of opinion testimony, expert witnesses should
not be allowed to give their opinion as to the veracity of another witness’s statement,
because in so doing, they invade the province of the jury.” State v. Churchill, 98 S.W.3d
536, 538-39 (Mo. banc 2003). “General testimony describes a ‘generalization’ of
behaviors and other characteristics commonly found in those who have been the victims of
… abuse. Particularized testimony is that testimony concerning a specific victim’s
credibility as to whether they have been abused.” Id. at 539. The circuit court retains
“broad discretion in admitting general testimony ….” Id.
At trial, Schiller-Baker gave proper generalized testimony about the common
behaviors of domestic violence victims. Schiller-Baker testified about how power and
control played into the cycle of violence with domestic abusers, how abusers use power
and control as tools, and how power and control play into strangulation and sexual assault.
Schiller-Baker also testified about how fear affects victims. This generalized testimony
does not transform into improper particularized testimony about a particular victim if some
of the generalized testimony is applicable to the facts of the case. Notably, Schiller-Baker
testified she did not know either of the parties, did not speak to them, did not examine the
15
evidence in this case, and did not learn any of the details of the case, which belies Loper’s
argument this was particularized testimony vouching for E.S.L.’s credibility. Finally,
Loper contends the circuit court did not allow him to present contrary evidence to Schiller-
Baker’s testimony regarding a victim’s fear or the cycle of violence, specifically as will be
discussed in his fifth point regarding the circuit court’s exclusion of the tire iron incident.
The exclusion of this inadmissible evidence does not render Schiller-Baker’s testimony
inadmissible or improper. Loper cannot meet his burden of demonstrating a manifest
injustice occurred by admitting Schiller-Baker’s generalized testimony. This point is
denied.
Officer Pierce’s Testimony
Loper contends the circuit court abused its discretion in overruling his objection to
admitting Officer Pierce’s testimony that an unidentified hospital doctor told him E.S.L.’s
wrist injury was not self-inflicted. Loper argues this testimony violated his right to due
process and to confront witnesses because the unidentified hospital doctor’s out-of-court
statement constituted inadmissible hearsay in that it was offered for the truth of the matter
asserted. Loper also argues the statement went beyond what was necessary to explain
Officer Pierce’s subsequent conduct. Loper argues this error was compounded when the
circuit court relied upon this statement to admit Dr. Quattromani’s opinion testimony.
Loper has preserved this claim, which will be reviewed for an abuse of discretion.
Hartman, 488 S.W.3d at 57. “Whether testimony violates the confrontation clause is a
question of law this Court reviews de novo.” State v. Hosier, 454 S.W.3d 883, 896
(Mo. banc 2015).
16
Prior to trial, the state filed a motion informing Loper it intended to introduce
E.S.L.’s statements about her wrist injury to first responders as excited utterances, to which
Loper objected. The circuit court overruled Loper’s objection but reserved a final ruling
based on how the evidence was developed during trial. During trial, Loper objected when
Officer Pierce was asked what, if anything, E.S.L. said about her injuries. The circuit court
overruled the objection. Officer Pierce testified, when he responded to E.S.L.’s apartment,
E.S.L. told him she did not know if she tried to kill herself, she did not have a reason to do
so, but she did not know why she had a cut on her wrist. Officer Pierce went to the hospital
to inquire about E.S.L.’s condition and spoke to “the doctor” to determine which way to
take the investigation. Loper objected when Officer Pierce was asked to reveal what “the
doctor” told him about E.S.L.’s wrist injury. At the bench conference, defense counsel
acknowledged the police report stated “the doctor” told Officer Pierce that E.S.L.’s wrist
injury was not self-inflicted. 4 Defense counsel also admitted he received the medical
reports from the state; however, the opinion E.S.L.’s wrist injury was not self-inflicted was
not contained in the disclosed medical records. Although Dr. Quattromani was endorsed
as a witness, defense counsel argued Officer Pierce failed to identify “the doctor” to whom
he spoke, raising the possibility Officer Pierce spoke to someone other than
Dr. Quatrromani at the hospital. Defense counsel stated “the doctor’s” opinion was
hearsay, violated his right to confrontation, and went to a key fact in the case. The state
4
The police report was not admitted at trial and is not included in the record on appeal for
this Court to verify its contents. Because the parties and the circuit court all agree on the
police report’s contents, however, such that this Court will assume its accuracy without
deciding the matter.
17
countered that Officer Pierce’s statement explained subsequent police conduct because he
initially believed E.S.L. may have attempted suicide, but after speaking with “the doctor”
who indicated the wrist injury was not self-inflicted, he contacted DART for further
investigation. The circuit court overruled the objection, finding the statement was
admissible to demonstrate subsequent police conduct.
“Hearsay statements, or out-of-court statements used to prove the truth of the matter
asserted, generally are inadmissible.” Hartman, 488 S.W.3d at 57. However, “otherwise
inadmissible evidence can become admissible if its purpose is to explain subsequent police
conduct.” State v. Shockley, 410 S.W.3d 179, 194 (Mo. banc 2013). Statements explaining
relevant background information and continuity constitute subsequent police conduct.
State v. Dunn, 817 S.W.2d 241, 243 (Mo. banc 1991).
Officer Pierce’s testimony constituted subsequent police conduct. Officer Pierce
explained after he left the scene in which he was unsure whether E.S.L. attempted suicide,
he went to the hospital to inquire about her condition to determine how the investigation
should proceed. Officer Pierce spoke to “the doctor,” who stated E.S.L.’s wrist injury was
not self-inflicted, and contacted DART to continue the investigation and search for a
suspect. This testimony provided relevant background information, provided continuity,
and did not leave the jury to speculate why the case proceeded from a possible suicide
attempt to a criminal investigation.
Loper argues, however, Officer Pierce’s testimony went beyond what was necessary
to explain his subsequent conduct. “[W]hen such out-of-court statements go beyond what
is necessary to explain subsequent police conduct, they are hearsay, unless they qualify as
18
non-hearsay on another basis.” State v. Douglas, 131 S.W.3d 818, 824 (Mo. App. W.D.
2004) (internal citations omitted). “If an officer is permitted to narrate the details of an
investigation in a way that unnecessarily puts incriminating information about the
defendant before the jury, the testimony violates the defendant’s right to confrontation.”
State v. Cole, 483 S.W.3d 470, 474 (Mo. App. E.D. 2016).
Loper claims Officer Pierce merely needed to testify that, based on the totality of
the circumstances, he referred the case to DART. Loper relies on cases holding officer
testimony went beyond what was necessary to explain subsequent police conduct and
constituted error. See State v. Shigemura, 680 S.W.2d 256, 257-58 (Mo. App. E.D. 1984)
(reversing a conviction based on inadmissible hearsay when an officer testified a
confidential informant advised him the defendant was in possession of stolen property and
intended to sell it at a specific location and this hearsay statement constituted the only
evidence the defendant knew the items were stolen); State v. Garrett, 139 S.W.3d 577,
582-84 (Mo. App. S.D. 2004) (reversing a conviction based on inadmissible hearsay when
an officer testified a confidential informant advised him the defendant regularly was
engaged in drug-related activity at a specific address when the evidence conflicted
regarding whether the defendant resided at the location and had constructive possession of
the drugs found therein); Cole, 483 S.W.3d at 475-76 (holding harmless error occurred in
admitting an officer’s testimony that a confidential informant advised him the defendant
received weekly shipments of drugs because it exceeded the scope necessary to provide
background and continuity for officer’s investigation, constituted inadmissible hearsay,
and violated the defendant’s rights under Confrontation Clause); Douglas, 131 S.W.3d at
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826 (reversing a conviction based on inadmissible hearsay when an officer testified the
dispatcher informed him about a parked car with a subject “slumped over the wheel”
because the only evidence offered to prove the defendant was operating the vehicle to
support the driving while intoxicated charge was the challenged hearsay statement from
the dispatcher).
None of these cases aids Loper’s argument. Officer Pierce stated he spoke to “the
doctor” at the hospital and “she” indicated the wrist injury was not self-inflicted. While
the parties disputed whether E.S.L.’s wrist injury was self-inflicted, Officer Pierce’s
testimony was not the only evidence presented to resolve this issue, thereby distinguishing
this case from those on which Loper relies. Dr. Quattromani was the emergency room
physician who treated E.S.L.’s wrist injury. Dr. Quattromani was endorsed and called as
a witness who was subject to extensive cross-examination, unlike the confidential
informants and dispatcher in the cases Loper cites. While Loper argues there is no evidence
Dr. Quattromani was “the doctor” to whom Officer Pierce spoke, when viewing the
evidence in the light most favorable to the verdict, this Court finds the circuit court did not
abuse its discretion in finding she was the declarant because the police report contained the
allegedly unattributed out-of-court statement, it identified Dr. Quattromani as the treating
physician, and Officer Pierce referred to “the doctor” as “she” during his testimony.
Loper points out the state relied on Officer Pierce’s hearsay statement in closing by
stating “the doctor said the injury was not self-inflicted.” This mischaracterizes the state’s
closing argument. The record reflects the prosecutor stated, “Dr. Quattromani, an
experienced emergency room doctor, in her years of experience as an emergency room
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doctor, she has never seen a self-inflicted injury like this. The depth is just too deep, ladies
and gentlemen.” The circuit court did not abuse its discretion in admitting Officer Pierce’s
testimony or in relying upon it to admit Dr. Quattromani’s testimony. This point is denied.
Dr. Quattromani’s Testimony
Loper asserts the circuit court abused its discretion in overruling his objection and
admitting Dr. Quattromani’s “surprise” medical testimony that E.S.L.’s wrist injury was
not self-inflicted. Loper argues admitting this testimony violated Rule 25.03 and his right
to a fair trial and a complete defense. Loper preserved this claim, which will be reviewed
for an abuse of discretion. Hartman, 488 S.W.3d at 57.
The state endorsed Dr. Quattromani as a witness and disclosed the police report and
all of E.S.L.’s medical records, which included records from Dr. Quattromani’s treatment.
Shortly before the state called Dr. Quattromani to testify, Loper moved to prevent the state
from eliciting an opinion regarding whether E.S.L.’s wrist injury was self-inflicted. The
circuit court noted the state disclosed over 250 pages of medical records, and
a police report documenting that [Officer Pierce] consulted Dr. Quattromani
regarding the wrist injury, specifically whether or not it was self-inflicted.
Based on that response, which Dr. Quattromani indicated that there’s no way
it could be self-inflicted, triggered the police investigation. The [circuit
court] also recites that fact, because that contributed to the [circuit court’s]
logic in overruling [defense counsel’s] objection to [Officer Pierce’s] hearsay
statements, because it went to subsequent conduct.
Defense counsel conceded the police report indicated Dr. Quattromani was the treating
physician, but the paragraph reciting E.S.L.’s wrist injury was not self-inflicted did not
attribute the statement to Dr. Quattromani. Defense counsel argued this was the only notice
he received there was going to be medical expert opinion testimony stating E.S.L.’s wrist
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injury was not self-inflicted. Defense counsel also stated he reviewed the medical records
and they contained no reference to whether E.S.L.’s wrist injury was self-inflicted. The
state countered Loper received the police report stating E.S.L.’s wrist injury was not self-
inflicted. The state further argued Dr. Quattromani would be testifying based upon her
experience and opinion as an emergency room doctor. The circuit court overruled Loper’s
motion.
Dr. Quattromani testified that, when E.S.L. was admitted to the emergency room,
she was hypotensive due to blood loss, emotional, crying, and kept repeating “I didn’t do
this.” Dr. Quattromani described the large laceration on E.S.L.’s wrist, in which tendon
and nerve damage were visible and required surgery to repair. Dr. Quattromani testified
she did not believe E.S.L.’s wrist injury was self-inflicted because it was “fairly extensive”
and “[i]n my experience, this is a very deep and large wound that does not seem that it
would be self-inflicted, the depth of it and the length of it.” Dr. Quattromani explained
when wrist injuries are self-inflicted, the cuts are much more superficial and do not cut
through multiple tendons to the depth and length of E.S.L.’s injury. Dr. Quattromani
further testified if she believed E.S.L.’s wrist injury was self-inflicted, she would have
asked for a psychiatric consultation, which did not occur. Dr. Quattromani admitted she
based her opinion on what E.S.L. reported and the nature of the injury.
“The rules of criminal discovery exist ‘to eliminate surprise by allowing both sides
to know the witnesses and evidence to be introduced at trial.’” State v. Zuroweste,
570 S.W.3d 51, 56 (Mo. banc 2019) (quoting State v. Walkup, 220 S.W.3d 748, 753
(Mo. banc 2007) (alterations and quotation omitted)). Rule 25.03 governs which
22
documents and materials the state must disclose to the defendant prior to trial. Loper
specifically argues the state violated Rule 25.03(A)(5) (2016), which required the state to
disclose “[a]ny reports or statements of experts, made in connection with the particular
case, including results of physical or mental examinations and of scientific tests,
experiments, or comparisons.” “The Rules of criminal discovery are not mere etiquette
nor is compliance discretionary.” State v. Whitfield, 837 S.W.2d 503, 507 (Mo. banc 1992)
(internal quotation omitted). The circuit court retains discretion to impose discovery
violation sanctions for failure to comply with Rule 25.03. State v. Taylor, 298 S.W.3d 482,
502 (Mo. banc 2009). “A [circuit] court’s denial of a requested sanction is an abuse of
discretion only where the admission of the evidence results in fundamental unfairness to
the defendant.” Id. (quoting State v. Edwards, 116 S.W.3d 511, 534 (Mo. banc 2003)).
“Fundamental unfairness occurs when the state’s failure to disclose results in defendant’s
‘genuine surprise’ and the surprise prevents meaningful efforts to consider and prepare a
strategy for addressing the evidence.” State v. Thompson, 985 S.W.2d 779, 785 (Mo. banc
1999) (quoting State v. Johnston, 957 S.W.2d 734, 750 (Mo. banc 1997)).
Loper argues Dr. Quattromani’s testimony should have been barred because: (1) the
medical records the state disclosed did not contain Dr. Quattromani’s opinion E.S.L.’s
wrist injury was not self-inflicted; (2) Dr. Quattromani was endorsed as a treating
physician, but the state failed to disclose any report or statement of a medical opinion on
the nature of the wrist injury prior to trial; and (3) the state first disclosed Dr. Quattromani’s
testimony on the third day of trial, which prevented Loper from engaging in meaningful
23
efforts to consider and prepare a strategy to address this evidence or endorse an expert to
counter the testimony.
There is no evidence in the record Dr. Quattromani or any other healthcare provider
created a formal report or that the state possessed or withheld any such undisclosed report
or statement from any doctor regarding E.S.L.’s wrist injury. Moreover, the record
demonstrates the state disclosed the police report—which included a statement that a
doctor indicated E.S.L.’s wrist injury was not self-inflicted and identified Dr. Quattromani
as E.S.L.’s treating physician—along with medical reports from Dr. Quattromani
concerning the extent of E.S.L.’s wrist injury. Hence, Loper received notice and disclosure
of a medical opinion regarding whether E.S.L.’s wrist injury was self-inflicted and the
circuit court did not abuse its discretion in finding Dr. Quattromani was the doctor who
rendered the opinion given she was identified as E.S.L.’s treating physician in the same
report that contained the medical opinion.
Loper argues this “surprise” testimony hindered him from engaging in meaningful
efforts to consider and prepare a strategy to address this evidence or endorse an expert to
counter the testimony. This claim is refuted by the record. Defense counsel proclaimed
repeatedly whether E.S.L.’s wrist injury was self-inflicted was a “key issue” in the case,
which belies the argument he was surprised the state would offer testimony on this issue.
The police report stated the doctor indicated E.S.L.’s wrist injury was not self-inflicted and
Dr. Quattromani was named as E.S.L.’s treating physician. Moreover, defense counsel
never argued to the circuit court or in his new trial motion he was prevented from endorsing
his own medical expert to counter Dr. Quattromani’s testimony. Finally, Dr. Quattromani
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was subject to rigorous cross-examination in which defense counsel elicited concessions
that it was possible E.S.L.’s wrist injury was self-inflicted and Dr. Quattromani’s opinion
was based in part on what E.S.L. reported to her. The circuit court did not abuse its
discretion in finding the state complied with Rule 25.03, and Loper has not demonstrated
fundamental unfairness occurred when Dr. Quattromani testified. This point is denied.
E.S.L.’s Prior Bad Acts
Loper avers the circuit court plainly erred in sustaining the state’s objection and
failing to admit evidence of E.S.L.’s prior misconduct because it was logically and legally
relevant to show the jury a complete picture of the events that occurred. Loper claims he
was prejudiced because he was unable to present a complete defense, resulting in manifest
injustice. Because Loper failed to preserve this claim by not including it in his new trial
motion, it is reviewable only for plain error. Rule 30.20.
Prior to trial, the state sought to exclude testimony regarding an incident that
occurred two years after the charged offenses in which E.S.L. confronted Loper and his
pregnant girlfriend at a restaurant and attempted to assault Loper with a tire iron. Loper
sought to present this evidence to: (1) refute Schiller-Baker’s testimony about the cycle of
violence; (2) demonstrate E.S.L. did not “fit the mold” of domestic assault victims because
she was obsessed with Loper; and (3) show E.S.L. did not fear Loper. The circuit court
sustained the state’s motion, ruling the incident was “too far removed.” When the circuit
court refused to permit Loper to elicit this evidence during E.S.L.’s testimony, he made an
offer of proof during which E.S.L. admitted the conduct.
25
Loper does not argue this evidence is admissible to test E.S.L.’s veracity regarding
the charged crimes. Instead, Loper maintains this evidence was necessary to present a
complete picture of the events that occurred during the parties’ relationship. “[E]vidence
of uncharged crimes that are part of the circumstances or the sequence of events
surrounding the offense charged may be admissible ‘to present a complete and coherent
picture of the events that transpired.’” State v. Miller, 372 S.W.3d 455, 474 (Mo. banc
2012) (quoting State v. Primm, 347 S.W.3d 66, 70 (Mo. banc 2011)).
The circuit court did not plainly err in excluding this evidence as being too far
removed when the tire iron incident occurred more than two years after the charged
offenses. E.S.L.’s actions two years after the charged offenses do not demonstrate her state
of mind at the time Loper assaulted her, which would not achieve any of the aims he
purported to demonstrate by offering this evidence. Moreover, Loper testified the parties
had a tumultuous relationship in which he described E.S.L. being violent toward him,
which, if the jury had believed it, demonstrated E.S.L.’s state of mind during their
relationship. This point is denied.
Conclusion
The circuit court’s judgment is affirmed.
_________________________________
GEORGE W. DRAPER III, Chief Justice
All concur.
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