State of Missouri v. Timothy T. McClendon , 477 S.W.3d 206 ( 2015 )

In
I the
Misssouri Court
C off Appeaals
Westeern Disttrict
STATE OF MISSO
OURI, )
)
Resp
pondent, ) D77521
WD
)
v. ) OPIINION FIL LED:
) Deccember 15,, 2015
THY T. MccCLENDON
TIMOT N, )
)
Appellant. )
Appea
al from thee Circuit Court of Jacckson Coun
nty, Missou
uri
The Honorable J. Dale Yooungs, Judgee
Beforee Division Three:
T Joseeph M. Elliss, Presidingg Judge, Kaaren King M
Mitchell, Juddge
and Garyy D. Witt, JJudge
Appellant
A Timothy MccClendon (""McClendonn") was connvicted afteer a jury triial in
Jackson County Cirrcuit Court of murder in the firstt degree, Seection 565.0020,1 and arrmed
criminall action, Seection 571.0
015. The charges
c aroose out of ggun fire at a car washh that
resulted in the deaath of Joséé Jenkins ("Jenkins"). McClenddon was seentenced too life
without parole and thirty yearrs of imprisonment witth the senteences to runn consecutively.
McClendon now raaises three points
p ppeal challeenging his cconviction. We affirm.
on ap
1
All
A statutory reeferences are to
o RSMo 2000 as currently suupplemented unnless otherwisee indicated.
FACTUAL BACKGROUND2
Underlying Events
On September 25, 2011, Jenkins told a friend, Reginald Thomas ("Thomas") that
he was going to a car wash, located on Prospect Road in Kansas City, Missouri, to kill
McClendon. Video footage from the car wash showed that Jenkins surveilled the car
wash where McClendon was located. At around 7:30 p.m., Jenkins was walking back
and forth in the rear of the car wash looking through the car wash stalls, seeking
McClendon. Jenkins left and returned to the car wash in a different car.
At 7:46 p.m., McClendon was sitting on a concrete block next to his vehicle,
which was being washed and detailed by Keith Martin ("Martin"). At 7:48 p.m., Jenkins
came out from the rear of the car wash, ran up to McClendon, fired his gun at
McClendon, and then ran. McClendon reached into his car and then returned back into
the street and fired his gun at Jenkins. Martin saw the exchange of gunfire and fled the
scene. Jenkins fled back through a car wash bay and fell to the ground as McClendon
continued to fire. The video shows that Jenkins struggled to get up but was unable to do
so. It was stipulated at trial that Jenkins was the initial aggressor and that the shots fired
by McClendon in front of the car wash were fired in lawful self-defense.
McClendon returned to his vehicle, reached in for something, and walked back to
the front lot reloading his gun. He then returned to his vehicle, drove into the street, and
then drove down to the east side of the car wash where Jenkins was lying on the ground.
2
We view the facts in the light most favorable to the jury's verdict. State v. Williams, 409 S.W.3d 460, 468
(Mo. App. W.D. 2013).
2
The video shows that Jenkins was trying to get up but could not. McClendon drove up to
Jenkins, who was flat on the ground, and fired his gun multiple times into Jenkins.
McClendon then backed up his vehicle, fired his gun again multiple times, and then drove
away. McClendon drove to his girlfriend Kristie Myers's ("Myers") home and called her
from outside telling her he had been shot and needed to go to the hospital. She moved
McClendon into her van and drove him to Research Medical Center ("Research").
The Investigation
Jenkins was found dead at the car wash shortly after police were dispatched to the
scene at 7:48 p.m. An autopsy revealed that Jenkins was shot thirty-two times. There
were fourteen gunshot wounds to the head and eighteen gunshot wounds to the neck,
chest, back, and right arm. Most of the entry wounds were on the back side of Jenkins's
body. While at the car wash, police learned that a man with gunshot wounds,
McClendon, had arrived at Research.
The First Statement
Detective Satter went to the hospital and contacted McClendon in the emergency
room within one to two hours of the shooting. At this time, McClendon was not under
arrest or in custody, and Detective Satter did not consider McClendon a suspect.
Detective Satter was aware there was a surveillance video of the incident but he had not
yet viewed it. He questioned McClendon about how he received his gunshot wounds.
McClendon initially told Detective Satter that someone came to the car wash and began
to shoot him but he did not say that he had returned fire. After explaining that a video
existed of the shooting, McClendon then admitted he had indeed returned fire. This
3
interview lasted approximately twenty minutes. In his report of this conversation,
Detective Satter characterized the shooting as self-defense. Detective Satter next located
McClendon's vehicle and recovered shell casings and found bullet holes in the car. The
Detective also searched McClendon's girlfriend's van, where he located a Glock Model
17 9mm handgun with a magazine containing one remaining live bullet and an extra
magazine with fifteen live rounds.3
The following morning, September 26, 2011 at 8:30 a.m., Detectives Ray Lenoir
and Mark Speigel spoke with McClendon at Research. At that time, they had not seen
the videotape of the incident. No Miranda4 warnings were given to McClendon.
McClendon again told his story to the detectives, claiming that an unknown man had shot
at him and he shot back. Detective Lenoir testified that when the second statement was
taken he had no reason to believe that McClendon had done anything other than act in
self-defense. A guard, however, was posted outside McClendon's room which, according
to Detective Lenoir, is a common procedure where there is a shooting victim. This
interview lasted approximately thirty minutes. Later that day, police viewed the
videotape from the car wash. Having viewed the video, Detective Lenoir no longer
believed McClendon had acted in self-defense.
McClendon was escorted to police headquarters in the late-afternoon on
September 26 and was given his Miranda warnings, which he waived. Detectives Blank
3
This gun was determined to have been the gun that shot Jenkins. The forty-five 9mm shells found from
the street, around Jenkins's body and in McClendon's vehicle were fired from this gun.
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4
and Lenoir interrogated McClendon, which was videotaped. There is no question that at
this time McClendon was in full custody and under arrest.
The State charged McClendon with first-degree murder and armed criminal action.
McClendon filed a motion to suppress his three statements to police in which he argued,
in part, that the police used an improper two-step interrogation technique to deliberately
undermine McClendon's constitutional rights. After a hearing on his motion, the court
ruled that the first statement to Detective Satter on September 25 was admissible, as the
interview was investigatory in nature and occurred so soon after the incident and
McClendon was not a suspect. The court found that the second statement to Detectives
Lenoir and Speigel was inadmissible because during the second statement McClendon
was in custody and should have been Mirandized. Finally, the court ruled that the third
statement in the late-afternoon on September 26, after McClendon had been Mirandized,
was also admissible. The court rejected McClendon's argument that the State had used an
improper two-step interrogation technique. McClendon's trial was presided over by a
different judge, who confirmed the rulings as to admissibility made previously by the
court, except that any references in the third statement to the suppressed second statement
was also ordered excluded.
McClendon was found guilty of first-degree murder and armed criminal action.
His motion for a new trial was denied. McClendon was sentenced to life in prison
without parole and thirty years with the sentences to run consecutively. McClendon now
appeals. Additional facts will be set forth as necessary in the argument section below.
5
POINT ONE
In Point One on appeal, McClendon argues that the trial court erred in overruling
his motion to suppress his third statement to police and admitting the statement at trial,
through testimony and videotape, because detectives used an unconstitutional "two-step"
interrogation technique that bypassed the requirements of Miranda and effectively
deprived McClendon of his right to due process, a fair trial, counsel, and privilege against
self-incrimination.
Standard of Review
In reviewing a trial court's ruling on a motion to suppress, there must be
"substantial evidence" to support the ruling. The facts and reasonable
inferences from such facts are considered favorably to the trial court's
ruling and contrary evidence and inferences are disregarded. In reviewing
the trial court's overruling of a motion to suppress, this Court considers the
evidence presented at both the suppression hearing and at trial to determine
whether sufficient evidence exists in the record to support the trial court's
ruling. Deference is given to the trial court's superior opportunity to
determine the credibility of witnesses. This Court gives deference to the
trial court's factual findings but reviews questions of law de novo.
State v. Gaw, 285 S.W.3d 318, 319-20 (Mo. banc 2009) (internal quotations and citations
omitted).
Analysis
McClendon argues that the police used a deliberate two-step interrogation
technique to bypass the protections afforded by Miranda in order to secure McClendon's
statement when he was unapprised of his Miranda rights only to later Mirandize him to
secure a second admissible statement. He argues, therefore, that his third statement to
police should have been suppressed.
6
"A criminal suspect is entitled to Miranda warnings, consistent with the Fifth
Amendment right against self-incrimination, once the suspect is subjected to a custodial
interrogation." Gaw, 285 S.W.3d at 321 (citing Miranda v. Arizona, 384 U.S. 436, 444
(1966)). Statements obtained by police during a custodial interrogation not preceded by
Miranda warnings are inadmissible in court. Id. (citing State v. Copeland, 928 S.W.2d
828, 852 (Mo. banc 1996)).
In Missouri v. Seibert, the United States Supreme Court considered the
implications of the two-step interrogation technique, which was increasingly being used
by police departments to interrogate suspects. 542 U.S. 600 (2004). The Court described
the issue as follows:
This case tests a police protocol for custodial interrogation that calls for
giving no warnings of the rights to silence and counsel until interrogation
has produced a confession. Although such a statement is generally
inadmissible, since taken in violation of Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the interrogating officer follows it
with Miranda warnings and then leads the suspect to cover the same ground
a second time. The question here is the admissibility of the repeated
statement.
Id. at 604. In Seibert, the interrogating officer admitted that he deliberately used this
two-step interrogation technique, consciously withholding Miranda warnings. Id. at 605-
06. Using this practice, the officer would first obtain the sought after information before
Mirandizing the suspect, subsequently Mirandize the suspect, and then repeat the
questions to re-solicit the same information, often referring back to the first un-
Mirandized statement. Id. The Court held that under these circumstances the Mirandized
statement would be inadmissible because the Miranda warning would be ineffective. Id.
7
at 611-12. "[W]hen Miranda warnings are inserted in the midst of coordinated and
continuing interrogation, they are likely to mislead and 'depriv[e] a defendant of
knowledge essential to his ability to understand the nature of his rights and the
consequences of abandoning them.'" Id. at 613-14 (quoting Moran v. Burbine, 475 U.S.
412, 424 (1986)).
The Seibert opinion, being a plurality, left unclear what test would be used to
determine whether post-waiver statements could be admitted into evidence. The four-
justice plurality created an objective test which would look at various factors to
determine whether the Miranda warnings were effective. Id at 615. These factors
included,
[1] the completeness and detail of the questions and answers in the first
round of interrogation, [2] the overlapping content of the two statements,
[3] the timing and setting of the first and the second, [4] the continuity of
police personnel, and [5] the degree to which the interrogator's questions
treated the second round as continuous with the first.
Gaw, 285 S.W.3d at 322. Justice Kennedy, who provided the crucial fifth vote, adopted a
narrower test, "applicable only in the infrequent case ... in which the two-step
interrogation technique was used in a calculated way to undermine the Miranda
warning." Id. at 322. Under this approach, "[w]hen an interrogator uses this deliberate,
two-step strategy, predicated upon violating Miranda during an extended interview,
postwarning statements that are related to the substance of prewarning statements must be
excluded absent specific, curative steps." Id. This is "a subjective test that relies on a
finding of fact by the trial court (made specifically or implied) that the arresting officer
was deliberately trying to skirt the protections of Miranda." Id. The Missouri Supreme
8
Court held in Gaw that Justice Kennedy's narrower "deliberate violation" standard is the
lowest common denominator between his views and the four-justice plurality and
therefore is the standard to be applied. Id. at 323-24.
Accordingly, in Missouri, the test for whether police have used an improper two-
step interrogation technique, such that the suspect has been deprived of his constitutional
rights, is a subjective test that looks to whether the police deliberately tried to skirt the
protections of Miranda. Id. The trial court's role in protecting the accused's Miranda
rights is then heightened because the protection of the accused's rights turns on whether
the trial court believes the officer's "questioning prior to the advisement of Miranda
rights was inadvertent or intended to acquire an advantage in the interrogation process."
Id. at 324. If the trial court determines that the pre-Mirandized questioning was not a
deliberate strategy used by police, then the question of the admissibility of the statement
reverts back to whether it was "knowingly and voluntarily made." Id. at 325 (citing
Oregon v. Elstad, 470 U.S. 298, 309 (1985)).
McClendon argues that the second and third statements made to police were in
response to a coordinated two-step interrogation technique. McClendon claims that
despite Detective Lenoir's statement that during the second interview he understood that
McClendon had acted in self-defense, the detective knew there was a videotape to be
examined and remaining evidence that could still implicate McClendon. Thus, the
detective's questioning of McClendon, prior to the viewing of the tape, was an
opportunity to talk to McClendon prior to Mirandizing him and, therefore, a violation of
9
his constitutional rights. The State argues that there is no evidence that the police
deliberately withheld Miranda warnings trying to obtain an advantage in interrogation.
McClendon's argument that the police deliberately used a two-step interrogation
technique to undermine his constitutional rights is not supported by the record. Detective
Lenoir, who interviewed McClendon in the hospital during his second un-mirandized
suppressed statement, testified that when he spoke with McClendon early in the morning
following the shootings, he did not believe McClendon had done anything other than act
in self-defense as McClendon had claimed and continued to claim. At that time, the
detective had not yet viewed the videotape footage of the incident and had no information
regarding the identity of the victim or details regarding how many shots had been fired
and by whom. Id. It is also reasonable to infer that he would not have any information
from the autopsy, as Jenkins's autopsy also occurred on the same day. As the second
interview took place from approximately 8:30 a.m. to 9:00 a.m. on the 26th, it is
reasonable to infer the autopsy results were not yet available to police.
It was only after reviewing the videotape seven hours later that police brought
McClendon into the police station for questioning, where he subsequently waived his
Miranda rights. Detective Lenoir specifically testified that he did not and does not
intentionally fail to mirandize someone when he considers them a suspect because he
knows the statement would be inadmissible. There is simply no evidence in the record
that police deliberately decided to withhold Miranda warnings pursuant to a strategy to
elicit information first and mirandize later. There is also no indication that the trial court
found the detective's testimony to be anything other than credible.
10
The trial court found that the circumstances here did not run afoul of Seibert.
Apparently utilizing the objective factors set out in Seibert, the trial court found (1) there
was a significant time lapse (seven hours), (2) McClendon had the opportunity to clearly
think through his first two interviews before giving the third statement, (3) the primary
interviewer was a different person, and (4) the interview was in a different location.
Although the trial court applied the incorrect test under Gaw and court did not
explicitly make a finding regarding the subjective intent of the detective, the court did
find under the objective test that McClendon's Miranda rights were not undermined.
This proves fatal under the subjective test as well because the challenged practice must be
predicated on violating Miranda. See Gaw, 285 S.W.3d at 322 ("[w]hen an interrogator
uses this deliberate, two-step strategy, predicated upon violating Miranda during an
extended interview, postwarning statements that are related to the substance of
prewarning statements must be excluded absent specific, curative steps") (emphasis
added). In addition, we must view the facts and reasonable inferences favorable to the
trial court's ruling and disregarding contrary inferences. Gaw, 285 S.W.3d at 324-25.
The court had substantial evidence before it that the police did not deliberately employ a
deliberate unconstitutional two-step interrogation technique. Here, the Miranda warnings
were not given "in the midst of a coordinated and continuing interrogation" such that it
was likely to mislead McClendon and deprive him of the ability to knowingly and
voluntarily waive his rights. See Seibert, 542 U.S. at 613-14.
Finally, in order for a statement to be admissible after finding that there was no
improper two-step interviewing technique employed, the statements must have been
11
knowingly and voluntarily made. See Gaw, 285 S.W.3d at 324. Apart from his argument
that police used an improper two-step interrogation technique, McClendon does not
contest a knowing and voluntary waiver of his Miranda rights for his third statement and
nothing in the record suggests that the waiver was not knowingly and voluntarily made.
Point One is denied.
POINT TWO
In Point Two on appeal, McClendon argues the trial court erred and abused its
discretion by failing to declare a mistrial after the State's closing argument regarding why
McClendon was hanging out at the car wash all the time with a gun and all that
ammunition, because this conduct was inadmissible evidence of uncharged bad acts and
had no logical relevance to establish that McClendon was guilty of first-degree murder.
Standard of Review
This Court reviews a trial court's refusal to grant a mistrial for abuse of discretion.
State v. Shaffer, 439 S.W.3d 796, 800 (Mo. App. W.D. 2014).
This is because the trial court has observed the complained of incident and
is in a better position than is an appellate court to determine what
prejudicial effect, if any, the alleged error had on the jury. An abuse of
discretion is found when the trial court's ruling is clearly against the logic
of the circumstances then before it and when the ruling is so arbitrary and
unreasonable as to shock one's sense of justice and indicate a lack of careful
consideration.
Id. (internal citations and quotations omitted). A mistrial is a drastic remedy that should
only be granted when the prejudice to the defendant cannot be removed in any other way.
Id. (citing State v. Jones, 134 S.W.3d 706, 717 (Mo. App. S.D. 2004)).
12
Analysis
In closing argument, the State argued, in pertinent part, as follows:
Something that's happened through all this is we've forgotten to look
at him. He hangs out at the car wash at 43rd and Prospect almost every day
for hours on end. What's he doing? He has at least 61 rounds of
ammunition on him.
McClendon's counsel immediately objected to the argument, challenging the State's
alleged implication that McClendon was engaged in uncharged illegal conduct at the car
wash. Counsel moved for a mistrial. The court refused to grant a mistrial but instructed
the jury to disregard the State's question of "What's he doing there?" All of the facts
contained in this statement were previously admitted into evidence in the trial.
Assuming, as the trial court found, that the implication the State was trying to
make was improper propensity evidence, the question is whether the court's remedy, the
instruction to the jury to disregard the comment, sufficiently removed the prejudice to
McClendon or whether a mistrial was required. As stated supra, a mistrial is a drastic
remedy and is only required where prejudice to the defendant cannot be removed in any
other way. Shaffer, 439 S.W.3d at 801. Normally, an instruction to the jury to disregard
inadmissible evidence or improper argument is a sufficient remedy, as we must presume
the jury has followed the court's instructions. Id. (citing State v. McFadden, 369 S.W.3d
727, 752 (Mo. banc 2012)); see also State v. Wyman, 945 S.W.2d 74, 78 (Mo. App. W.D.
1997) (a trial court ordinarily cures any error by instructing the jury to disregard it); State
v. Newson, 898 S.W.2d 710, 714 (Mo. App. W.D. 1995) (same).
13
The trial court, being in the best position to judge the prejudicial effect of
improper arguments on the jury, is given discretion in its determination of whether a
mistrial is warranted. Shaffer, 439 S.W.3d at 800. The only portion of the argument by
the State that was not a fact in evidence was the question asking what McClendon was
doing at the car wash. The jury was instructed to disregard the comment and we must
assume that they followed this instruction. Given the trial court's curative instruction to
the jury to disregard the improper argument, we cannot say the trial court abused its
discretion in refusing to grant a mistrial.5
Point Two is denied.
POINT THREE
In Point Three on appeal, McClendon seeks plain error review of the trial court's
failure, sua sponte, to prevent the State from arguing in closing that there must have been
a history between McClendon and Jenkins if McClendon shot Jenkins 31 times because
the evidence was inadmissible evidence of uncharged bad acts, argued facts not in
evidence and excluded evidence, which deprived McClendon of his rights to due process,
a fair trial, and being tried only for the charged crime.
5
If we ignored the curative instruction and considered the prejudicial effect this statement may have had on
the jury, we cannot say that this statement would have warranted a mistrial. The jury saw a video of the violence,
which showed McClendon deliberately go out of his way to return to Jenkins's body rather than flee the scene. As
the jury was instructed, a person can only use deadly force if he reasonably believes it is necessary to defend himself
from the imminent use of unlawful force. See MAI-CR 3d 306.06A; see also State v. Hiltibidal, 292 S.W.3d 488,
493 (Mo App. W.D. 2009). McClendon reloaded his firearm, drove his vehicle to the back of the car wash, and
continued to shoot Jenkins as he was lying on the ground unable to move. Given the significant evidence against
McClendon, we cannot say that this argument would have had a decisive impact on the jury's determination. See
State v. Francis, 60 S.W.3d 662, 672 (Mo. App. W.D. 2001) (when a prosecutor makes an improper statement, relief
is only appropriate where the defendant can show a reasonable probability that, in the absence of the statement, the
verdict would have been different).
14
Standard of Review
As McClendon neither objected at trial nor preserved his claim of error in his
motion for a new trial, he requests plain error review by this court of his argument in
Point Three. "Non-preserved issues are reviewed for plain error, if the error resulted in
manifest injustice or a miscarriage of justice." State v. Celis-Garcia, 420 S.W.3d 723,
726 (Mo. App. W.D. 2014) (quoting State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc
2009)).
Plain error review is used sparingly and is limited to those cases where
there is a clear demonstration of manifest injustice or miscarriage of justice.
Claims of plain error are reviewed under a two-prong standard. In the first
prong, we determine whether there is, indeed, plain error, which is error
that is evident, obvious, and clear. If so, then we look to the second prong
of the analysis, which considers whether a manifest injustice or miscarriage
of justice has, indeed, occurred as a result of the error. A criminal
defendant seeking plain error review bears the burden of showing that plain
error occurred and that it resulted in a manifest injustice or miscarriage of
justice. The outcome of plain error review depends heavily on the specific
facts and circumstances of each case.
Id. at 726-27 (quoting State v. Ray, 407 S.W.3d 162, 170 (Mo. App. E.D. 2013)). With
regard to claims of plain error during closing argument, "[p]lain error relief as to closing
argument should rarely be granted and is generally denied without explanation." State v.
Crowe, 128 S.W.3d 596, 600 (Mo. App. W.D. 2004) (quoting State v. Garner, 14 S.W.3d
67, 76 (Mo. App. E.D. 1999)). "A trial court has broad discretion in controlling the scope
of closing argument. Even if a closing argument is improper, we will reverse a
conviction only if the defendant establishes that the comment had a decisive effect on the
jury's determination." Id. (internal citations and quotations omitted). To meet this
15
standard, the defendant must demonstrate a reasonable probability that the verdict would
have been different had the error not been committed. Id.
Analysis
In closing argument, McClendon's counsel argued that Jenkins had stalked
McClendon and walked up and shot a defenseless man. Counsel also stated that
McClendon did not know Jenkins. The State in rebuttal closing argument stated as
follows:
This is not the kind of crime that occurs between strangers.
Somebody doesn't stalk somebody for an hour before he shoots him
because they're a stranger. Somebody doesn't shoot somebody in the back
31 times when you don't know them.
He knew him. There's a history there. We just don't know what it is
and that's one of those unanswered questions we talk about in voir dire. He
knew him. There's a history. We don't know what it is. We don't have to
prove that to you.
McClendon did not object to this argument at trial.
McClendon argues that evidence of uncharged bad acts was inadmissible and the
State's improper allusion to them resulted in manifest injustice and the prosecutor
introduced or commented upon facts not in evidence. We disagree with McClendon's
characterization of the argument. First, even a cursory review of the argument shows that
the State did not specifically mention any specific bad acts or other conduct not in
evidence. The only facts commented upon were facts in evidence; i.e., that Jenkins
stalked McClendon prior to the shooting and McClendon shot Jenkins 31 times. The
State did not state or imply it was in possession of evidence that had been excluded or
was not in front of the jury. Rather, the State argued from the evidence that there was a
16
reasonable inference that there was a history between the two men and, thus,
McClendon's action in going out of his way to continue to shoot Jenkins after he could
have safely escaped was motivated by something other than a desire for self-preservation.
Second, the issue in the case was whether McClendon's shooting of Jenkins was
justified as an act of self-defense. McClendon's counsel argued, in part, that McClendon
did not know Jenkins, presumably to infer that McClendon had no reason to want to kill
Jenkins but rather he was acting purely in self-defense. In rebuttal, the State was
permitted to argue the reasonable inference from the facts in evidence that this was not a
random act of violence to which McClendon reasonably responded, but a situation in
which it is reasonable to believe that McClendon and Jenkins had some sort of motivation
to kill one another. See State v. Williams, 366 S.W.3d 609, 624 (Mo. App. W.D. 2012)
(motive is relevant where defendant claims he acted in self-defense). It was a reasonable
inference from the evidence presented at trial that the circumstances were such that there
was some history between these two men and not a random act of violence, and the State
was allowed to argue such. See State v. McFadden, 369 S.W.3d 727, 748 (Mo. banc
2012) (the State is allowed to argue the evidence and all reasonable inferences from the
evidence during closing arguments); see also State v. Harris, 870 S.W.2d 798, 814 (State
has the right to draw any inferences from the evidence which he believes in good faith are
justified). This is particularly true in rebuttal, where the State is given considerable
leeway to make retaliatory arguments at closing and may retaliate to an issue raised by
the defense even if the prosecutor's comment would have been improper. See State v.
Gaines, 316 S.W.3d 440, 456-57 (Mo. App. W.D. 2010) (prosecutors are given
17
considerrable leewaay in rebutttal, even iff the comm
ment otherw
wise wouldd be improoper);
State v. McFadden, 391 S.W.3d 408, 422
2 (Mo. bannc 2013) (saame); Statee v. Minner,, 311
S.W.3d 313, 327 (M
Mo. App. W.D.
W 2010) (same).
We
W find no error,
e let alo
one plain errror. Point Three is deenied.
CON
NCLUSION
N
The
T judgmen
nt of the trial court is affirmed.
a
_____________________________
_________
Gary D. W
Witt, Judge
All conccur
18