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Date: 11-03-2020
Case Style:
STATE OF MISSOURI v. TYLER J. GATES
Case Number: WD83104
Judge: Cynthia L. Martin
Court: MISSOURI COURT OF APPEALS
WESTERN DISTRICT
Plaintiff's Attorney: Gregory L. Barnes
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Kansas City, MO - Criminal defense lawyer represented defendant Tyler J. Gates with appealing his convictions of felony murder in the second degree predicated on the forcible felony of robbery and armed criminal actions.
Gates does not challenge the sufficiency of the evidence to support his convictions
of felony murder in the second degree and armed criminal action. Viewed in the light most
favorable to the verdict,1
the evidence established that, in late December 2017 or early
January 2018, Gates and Luis Ramirez ("Ramirez") had a FaceTime conversation with
Matthew Haylock ("the Victim"). During the conversation, the Victim showed Gates and
Ramirez his Glock 17 handgun. After the conversation, Gates and Ramirez discussed the
Victim's gun. Gates asked Ramirez whether the Victim would be easy to rob. Gates and
Ramirez then discussed a plan to rob the Victim because Gates wanted a gun of his own.
Ramirez already had a gun, a Glock 26 handgun.
On January 2, 2018, Gates and Ramirez left Ramirez's house in a two-door
Chevrolet Cavalier owned by Gates's relative. Ramirez gave Gates his Glock 26, which
was loaded. Gates put the Glock 26 in the driver's side door panel. The pair drove to a
restaurant and discussed the plan to rob the Victim. Ramirez told Gates that he "wasn't
necessarily feeling it." Gates said that if Ramirez was not going to help, then Gates was
not going to go through with the plan.
Gates and Ramirez then drove to pick up the Victim so the three could go to the
Independence Center shopping mall. Gates drove while Ramirez sat in the front passenger
1We view the evidence in the light most favorable to the jury's verdict, disregarding all contrary evidence
and inferences. State v. Campbell, 600 S.W.3d 780, 784 n.1 (Mo. App. W.D. 2020).
3
seat. The Victim sat in the rear passenger seat. While Gates was driving, he asked the
Victim if he could see his Glock 17. The Victim gave Gates the Glock 17, and Gates put
the gun on his lap.
Gates pulled into the parking lot of the mall. Ramirez opened the front passenger
door, stepped out of the car, and put the front passenger seat up to allow the Victim to exit
the back seat. While the Victim was getting out of the backseat, he asked Gates for his
gun. Gates said, "This is me," and "This is my gun now." The Victim lurched toward
Gates, and Gates shot the Victim with the Glock 26, Ramirez's gun.
Gates told Ramirez to remove the Victim from the car. Ramirez refused. Gates
leaned over the front passenger seat and pushed the Victim. The Victim landed on his face,
sustaining injuries consistent with the pattern of the door frame. Gates told Ramirez to get
back in the car, but Ramirez refused. Gates accused Ramirez of picking sides and drove
away from the scene. Ramirez called 911. Ramirez identified Gates as the person who
robbed and shot the Victim. The Victim died as a result of the gunshot wound to his left
lower chest.
After fleeing the scene of the shooting, Gates abandoned the Chevy Cavalier in the
middle of a street a few miles from the mall. Gates contacted his mother, who picked him
up. Gates told his mother and her boyfriend that he "messed [his] life up because of this."
Gates's mother and her boyfriend repeatedly advised Gates to turn himself in to the police.
Gates asked his mother for a ride to a nearby park. Gates spent the night at a friend's house
and turned himself in to the police the next day.
4
At 10:34 p.m. on the day of the shooting, police responded to a call about an
abandoned car a few miles away from the Independence Center. Police officers found the
Chevrolet Cavalier in the middle of the street with its lights on and engine running.
Officers looked inside the vehicle and observed what appeared to be blood and a bullet
hole in the rear passenger seat. A shell casing was recovered from the rear passenger
floorboard, and a projectile was found in the rear wheel well. Two nine-millimeter pistols,
(a Glock 26 and a Glock 17) were found in the front passenger seat underneath a black
backpack. A firearms examiner determined that the shell casing found in the Chevrolet
Cavalier matched the Glock 26.
On February 2, 2018, the State charged Gates with one count of conventional
murder in the second degree in violation of section 565.021.1(1)2
and one count of armed
criminal action in violation of section 571.015. The State later amended the murder charge
to felony murder in the second degree in violation of section 565.021.1(2) based on the fact
the Victim's death occurred as a result of the attempted perpetration of a felony,
specifically, robbery in the first degree.
3
Robbery in the first degree is a forcible felony.4
2All statutory references are to RSMo 2016 as supplemented through January 2, 2018, the date the offenses
were committed, unless otherwise indicated.
3Though Gates was initially charged with felony murder predicated on attempted robbery, this charge was
ultimately submitted to the jury as felony murder predicated on robbery. Modification of the felony underlying the
felony murder charge is not material to the issues on appeal.
4Relevant to this case, robbery in the first degree requires proof of the forcible stealing of property and in
the course thereof, causing serious physical injury to another, or being armed with a deadly weapon, or using or
threatening the use of a dangerous instrument, or displaying or threatening the use of what appears to be a deadly
weapon or dangerous instrument. Section 570.023.1. "Forcible felony" is defined as "any felony involving the use
or threat of physical force or violence against any individual, including but not limited to murder, robbery, burglary,
arson, kidnapping, assault, and any forcible sexual offense." Section 563.011(3).
5
The State filed a motion in limine to preclude Gates from injecting any issue of selfdefense at trial. The State noted that section 563.031.1(3) precludes justification as a
defense for the use of physical force upon a person when the actor was attempting to
commit, committing, or escaping after the commission of a forcible felony. In response,
Gates's counsel argued that Ramirez would likely testify that Gates was attempting to rob
the Victim, while Gates told police after his arrest that he had not attempted to rob the
Victim and instead shot the Victim in self-defense. Gates's counsel argued that by relying
on section 563.031.1(3) to exclude evidence of Gates's explanation for the Victim's death,
the trial court would be predetermining that Gates was attempting to rob the Victim, an
issue in dispute. The trial court sustained the State's motion. The trial court reasoned that
adoption of Gates's position would render section 563.031.1(3) meaningless.
At trial, Gates's counsel asked the trial court to revisit its ruling during voir dire.
Counsel argued that Gates's constitutional right to a fair trial would be violated "by not
allowing . . . Gates to put on a defense or self-defense rebutting state offenses [sic] a felony
was occurring." Counsel noted that whether a "robbery was being committed" was a fact
issue in the case, and that as a result, evidence that Gates had acted in self-defense was
admissible. The trial court declined to change its in limine ruling.
Immediately prior to opening statements, Gates's counsel asked the court "to
reconsider the ruling on the State's Motion in Limine arguing that we not be allowed to use
self-defense in this case." Gates's counsel argued "we should be able to inject the defense
of self-defense," and argued that although State v. Oates, 540 S.W.3d 858 (Mo. banc 2018),
held a self-defense instruction cannot be given for felony murder, the "case does not state
6
that the defense is not allowed to assert self-defense in this matter." Gates's counsel argued
that self-defense was "a fact issue for the jury." The trial court refused to change its in
limine ruling, and advised that "testimony about self-defense is barred." Gates's counsel
then advised the trial court that Gates would likely "be testifying to what happened in the
vehicle at the time of the incident . . . including that he was in fear for his life." The State
responded that testimony that Gates shot the Victim because he feared for his life was
impermissible self-defense evidence. Gates's counsel responded that Gates had "a right to
testify about what happened to him, about his version of events." The trial court responded
that Gates could not "mention anything that touches on self-defense." Gates's counsel
sought clarification that Gates would not be "allowed to testify to his version of events
which happened in the vehicle." The trial court responded, "That's not what I said. He
cannot do anything that touches on self-defense. Like I'm in fear. I had to do something
to protect myself, that kind of stuff. . . . Anything commonsensically that has something to
do with self-defense he can't do. It's barred. That's what I think [Oates] says."
During opening statement, Gates's counsel told the jury that Gates did not know the
Victim well; that Ramirez and the Victim had been friends for four years; that Ramirez had
talked about robbing the Victim of his Glock 17, but that on the day the Victim was picked
up by Gates and Ramirez, the two had met at a restaurant, and any plans to rob the Victim
were called off; that the Victim had his Glock 17 with him when picked up; that Gates had
$300 on him; and that when he pulled in the parking lot at the mall, Ramirez got out of the
car, and Gates "turn[ed] around and he's looking at a gun." The State asked to approach
the bench but did not object. Instead the State said that "defense counsel is getting
7
dangerously close to violating your ruling." The trial court agreed. Gates's counsel
responded, "I didn't say he was fearful of his life. I'm just going to give his version of his
story. I understand . . . your ruling, but I can tell [Gates's] version of his story." Gates's
counsel asked the trial court, "[A]re you ruling I cannot tell [Gates's] version of the events
that happened within the vehicle?" The trial court replied "You can't talk about selfdefense." Later during the discussion, Gates's counsel asked:
Just so I'm clear, Judge. So the fact that we can't go into the facts, not that
[Gates] will testify that [the Victim] pulled out a gun first, and [Gates] then
grabbed the gun and then [Gates] shot.
The trial court responded that "[n]one of that will come in. . . . The only purpose of any of
that is to demonstrate self-defense." Gates's counsel argued in response that by not being
allowed "to talk about his version of the events," Gates was being deprived of a fair trial.
Following the close of the State's evidence, Gates's counsel advised that Gates
would be testifying. In advance of putting Gates on the stand, Gates's counsel sought
reconsideration of the trial court's ruling "barring us from using self-defense in this case."
Gates's counsel no longer conceded that Oates precluded self-defense in his case, as had
been the case in addressing Oates during opening statement. Instead, Gates's counsel
argued that Oates did not preclude self-defense as a defense to felony murder and that
Gates "should get to argue self-defense to rebut that [the] use of force was not justifiable
given the fact that we are, again, disputing that any underlying felony occurred." Counsel
acknowledged that section 563.031.1(3) precluded Gates from "using self-defense as a
justification" if he was committing or attempting to commit a forcible felony, but urged
that Oates effectively held to the contrary and permitted Gates "to use self-defense . . . even
8
though the statute says that we're not allowed to argue that." Gates argued that the
disagreement between Oates and section 563.031.1(3) should inure to Gates's benefit, and
that Gates should be allowed to use self-defense in his case. In an effort to distinguish
Oates, Gates also emphasized factual differences between his case and Oates, including
that the underlying felony at issue in Oates was not a forcible felony as in Gates's case, and
that the defendant in Oates had not disputed commission of the underlying felony as Gates
did.
The trial court refused to change its in limine ruling. Gates's counsel made an offer
of proof through Gates's testimony. The trial court rejected the offer of proof and ruled
that "[i]f the defendant testifies, he may not mention self-defense or anything touching
upon self-defense or his fear regarding his need to protect himself or something." As a
result, Gates testified about his version of the events on the day of the shooting, but was
not permitted to testify: that he was nervous about the Victim's conduct in the car; that the
Victim was attempting to rob him; or that a subsequent struggle over the Victim's gun
resulted in Gates shooting the Victim with Ramirez's gun.
The jury found Gates guilty of felony murder in the second degree based on the
forcible felony of robbery in the first degree, and of armed criminal action. In his motion
for new trial, Gates alleged that the trial court erred when it sustained the State's motion in
limine barring the injection of the issue of self-defense both before and during trial, and
after hearing Gates's offer of proof. The motion for new trial also argued that it was error
to sustain the State's objections to Gates's trial testimony that he was nervous and that he
9
turned around in the car to find a gun in his face because it deprived Gates of his right to
testify.
The motion for new trial was denied. The trial court entered a judgment
("Judgment") convicting Gates in accordance with the jury's verdicts, and sentencing Gates
to twenty years for felony murder and seven years for armed criminal action, with the terms
to be served concurrently.
Gates appeals.
Summary of Issues on Appeal/Standard of Review
Gates asserts three points on appeal. In his first point, Gates argues that the trial
court deprived him of his constitutional right to testify in his own defense by excluding
testimony describing Gates's version of what occurred when the Victim was shot, and that
he would have been acquitted had the excluded evidence been admitted. Gates's second
point asserts that the trial court plainly erred in failing to instruct the jury on self-defense
sua sponte because there was substantial evidence to support the defense, and the trial court
misapplied Oates by ruling that self-defense was not available for felony murder predicated
on a forcible felony. In his third point, Gates claims that the trial court plainly erred in
failing to strike a venireperson for cause sua sponte.
Gates's first point on appeal involves an evidentiary ruling. The trial court has broad
discretion in making evidentiary rulings. State v. Wilson, 602 S.W.3d 328, 332 (Mo. App.
W.D. 2020). As such, we review the trial court's decision whether to admit or exclude
evidence for an abuse of discretion. Id. A trial court abuses its discretion when its ruling
is "clearly against the logic and circumstances then before the court and is so arbitrary and
10
unreasonable as to shock the sense of justice and indicate a lack of careful consideration."
State v. Brandolese, 601 S.W.3d 519, 533 (Mo. banc 2020) (quoting State v. Brown, 939
S.W.2d 882, 883-84 (Mo. banc 1997)). If, however, "reasonable persons [could] differ
about the propriety of the action taken by the trial court, then it cannot be said that the trial
court abused its discretion." Id. (quoting Brown, 939 S.W.3d at 883-84). "Our review is
for prejudice, not error alone; and we 'will reverse only if the error was so prejudicial [that]
it deprived the defendant of a fair trial.'" Wilson, 602 S.W.3d at 332 (quoting State v. Hein,
553 S.W.3d 893, 896 (Mo. App. E.D. 2018)). "An error is prejudicial only if there is a
reasonable probability that but for the court's error the outcome of the trial would have
been different." Id. (quoting State v. Harris, 358 S.W.3d 172, 174 (Mo. App. E.D. 2011)).
Gates's concedes that his second and third points on appeal were not preserved for
appellate review. Unpreserved trial errors are reviewed at our discretion for plain error.
State v. Garretson, 598 S.W.3d 643, 649 (Mo. App. W.D. 2020); see also Rule 30.20.5
Plain error is error which "affects[] substantial rights . . . when the court finds that manifest
injustice or miscarriage of justice has resulted therefrom." Rule 30.20. Plain error requires
a two-step evaluation:
The first step requires a determination of whether the claim of error facially
establishes substantial grounds for believing that manifest injustice or
miscarriage of justice has resulted. All prejudicial error, however, is not
plain error, and plain errors are those which are evident, obvious, and clear.
If plain error is found, the court then must proceed to the second step and
determine whether the claimed error resulted in manifest injustice or a
miscarriage of justice.
5All rule references are to the Missouri Supreme Court Rules (2020), unless otherwise indicated.
11
Garretson, 598 S.W.3d at 649 (quoting State v. Baumruk, 280 S.W.3d 600, 607-08 (Mo.
banc 2009)).
Analysis
We address Gates's points on appeal out of order, as Gates's second point on appeal
addressing the trial court's plain error in failing to instruct on self-defense informs our
discussion of Gates's first point on appeal addressing the exclusion of evidence.
Point Two: The Trial Court did not Plainly Err in Failing to Instruct on Self-Defense
In his second point on appeal, Gates argues that the trial court plainly erred in failing
to instruct the jury on self-defense because there was substantial evidence that Gates
reasonably believed that deadly force was necessary to protect himself, and because the
trial court misapplied Oates and section 563.031.1(3) in ruling that self-defense was not
available for felony murder predicated on a forcible felony. Gates acknowledges that he
did not proffer a self-defense instruction for felony murder in the second degree.6
Thus,
Gates asks us to review the trial court's failure to instruct the jury on self-defense for plain
error.
Gates's request for plain error review relies heavily on settled law involving a trial
court's obligation to instruct on self-defense so long as there is substantial evidence of the
defense in the record. State v. Barnett, 577 S.W.3d 124, 126 (Mo. banc 2019). "An
appellate court, when confronted with the argument that the trial court erred in refusing to
instruct on self-defense, must view the evidence and all reasonable inferences in the light
6Gates did proffer self-defense instructions related to refused instructions for conventional murder in the
second degree and purported lesser-included offenses.
12
most favorable to the defendant." State v. Endicott, 600 S.W.3d 818, 823 (Mo. App. E.D.
2020) (quoting State v. Miller, 91 S.W.3d 630, 632 (Mo. App. W.D. 2002)). "Whether a
use of force justification defense has been raised by the evidence is a question of law, which
we review de novo." Id. (citing State v. Cummings, 514 S.W.3d 110, 116 (Mo. App. W.D.
2017)). "Substantial evidence" to require submission of a justification defense "means
enough evidence to 'put[] a matter in issue.'" Id. (quoting State v. Avery, 120 S.W.3d 196,
200 (Mo. banc 2003), overruled on separate grounds by Barnett, 577 S.W.3d at 132 n.10).
In short, "[i]f a justification defense is injected into the case by any evidence, the judge
must instruct, even if the defendant does not desire such an instruction." Id. at 824 (quoting
Cummings, 514 S.W.3d at 117) (emphasis in original). "If . . . there is substantial evidence
to support a self-defense instruction, it is reversible error for the trial court to fail to submit
a self-defense instruction to the jury under plain error review." State v. Bolden, 371 S.W.3d
802, 805 (Mo. banc 2012).
At first blush, these established legal principles appear to be compelling and
controlling. However, their application is necessarily premised on an unstated foundational
principle. It can only be error to fail to instruct on self-defense if self-defense is legally
available as a defense to the crime charged. In other words, even if substantial evidence in
a case suggests a defendant used force in response to threatened force, that evidence will
neither support nor require the submission of a self-defense instruction if justification is
not available as a defense to the charged offense as a matter of law. That this foundational
principle serves as the essential starting point for determining whether self-defense must
13
be instructed in a case was addressed in Oates. Before discussing Oates, however, we first
address the parameters of the defense of justification in this state.
Chapter 563 addresses the defense of justification. Certain provisions within the
chapter were amended in 2007, including provisions which are directly applicable to
Gates's case. Section 563.074 is an example. Added in 2007, the provision states, in
pertinent part:
1. . . . a person who uses force as described in section[] 563.031 . . . is
justified in using such force and such fact shall be an absolute defense to
criminal prosecution . . . .
Section 563.074.1. The provision's cross-reference to section 563.031 expresses a clear
intent that the absolute nature of the use of force as a defense to criminal prosecution
depends on whether force has been used as permitted in section 563.031.
Section 563.031 addresses the use of force in defense of oneself or another person.
It provides, in pertinent part, at subsection .1 as follows:
A person may, subject to the provisions of subsection 2 of this section,
7 use
physical force upon another person when and to the extent he or she
reasonably believes such force to be necessary to defend himself . . . from
what he . . . reasonably believes to be the use or imminent use of unlawful
force by such other person . . . .
Section 563.031.1 is followed by the word "unless," and then describes three exceptions.
Applicable here is the exception set forth at section 563.031.1(3), which excludes
7Subsection 2 of section 563.031 provides in pertinent part that "[a] person shall not use deadly force upon
another person under the circumstances specified in subsection 1 of this section unless: (1) He . . . reasonably
believes that such deadly force is necessary to protect himself . . . against death, serious physical injury, or any
forcible felony." We need not further address this subsection, as it is undisputed that if Gates were otherwise
entitled to admit the testimony excluded by the trial court, it would have fallen within the scope of the plain
language of subsection 2, as Gates used deadly force upon the Victim, and Gates claims that the Victim was
threatening the use of force that could have caused his death or serious physical injury.
14
justification as a defense to the use of physical force if "[t]he actor was attempting to
commit, committing, or escaping after the commission of a forcible felony." This
exception to the defense of justification was added in 2007, at the same time section
563.074.1 was enacted, broadcasting the clear and plain intent to exclude as an absolute
defense to criminal prosecution the use of physical or deadly force where an actor was
committing, attempting to commit, or escaping from commission of a forcible felony. In
other words, even if an actor reasonably believed that the use of physical or deadly force
was necessary to defend himself from the use or imminent use of unlawful force by another,
self-defense is not available as a defense, as a matter of law, if the actor was committing,
or attempting to commit, or escaping from committing, a forcible felony.
Gates sidesteps the plain language of sections 563.074.1 and 563.031.1(3). Similar
to the argument he made in connection with his offer of proof at trial, Gates argues in his
second point on appeal that despite the plain language of section 563.031.1(3), he was
nonetheless entitled to a self-defense instruction on felony murder predicated on a forcible
felony because of the Missouri Supreme Court's decision in Oates. Gates also argues that
he was entitled to a self-defense instruction on felony murder because the State's verdict
director required the jury to find that he used force on the Victim by shooting him, and
because MAI-CR 4th 406.06 contemplates an instruction for self-defense for felony murder
predicated on the commission or attempted commission of a forcible felony. We address
these arguments separately.
(i) Oates does not hold that self-defense is a defense to felony murder
predicated on a forcible felony
15
In Oates, a defendant was charged with second-degree felony murder predicated on
the felony of attempting to distribute a controlled substance. 540 S.W.3d at 859-60. In the
process of perpetrating this felony, the victims stole the drugs Oates was selling. Id. at
859. Oates fell into the back seat as the victims' car sped away. Id. Oates then shot both
victims, and testified at trial that he did so after the victims pulled guns on him. Id. at 859-
60. Though the jury heard this evidence, the trial court refused a self-defense instruction
for felony murder, "reasoning self-defense was not a defense to felony murder as a matter
of law." Id. at 860.
The Supreme Court acknowledged that it had "previously held self-defense, as a
matter of law, is not a defense to felony murder." Id. (citing State v. Newman, 605 S.W.2d
781, 786 (Mo. 1980); State v. Burnett, 293 S.W.2d 335, 343 (Mo. banc 1956)). The
Supreme Court also acknowledged that statutory changes to the law of self-defense enacted
in 2007, including the addition of sections 563.074.1 and 563.031.1(3), had not been
addressed by the Court. Id. The effect of the 2007 amendments on pre-2007 decisional
law precluding self-defense as a defense to felony murder was thus at issue in Oates.
Unlike Gates's circumstances, the underlying felony in Oates was not a forcible
felony. As such, section 563.031.1(3), which precludes justification as a defense if the
actor was committing or attempting to commit a forcible felony, did not apply to Oates.
Oates took advantage of this fact to argue that his felony murder charge was controlled by
section 563.074.1, which describes self-defense as an absolute defense to any criminal
prosecution involving the use of force so long as engaged in as provided by section
563.031. Oates, 540 S.W.3d at 861.
16
The Supreme Court disagreed. The Court noted that "[a] person commits felony
murder if he or she 'commits any felony and, in the perpetration of that felony, another
person dies as a result of the perpetration of that felony.'" Id. (quoting State v. Burrell, 160
S.W.3d 798, 803 (Mo. banc 2005)). "The underlying felony does not have to involve the
use of force." Id. (citing section 565.021.1(2)). And "[i]t does not matter whether the
person died as a result of the defendant's or someone else's use of lawful force, unlawful
force, or no force at all." Id. "It matters only that the person died as a result of the
defendant's commission of the underlying felony, without regard to the defendant's role in
the fatal act." Id. "In other words, unless the underlying felony involves the defendant's
use of force, felony murder is not prosecuting the defendant's use of force[] [and is]
[i]nstead . . . prosecuting a different act--the commission of a felony that results in the death
of a person." Id. at 862. Thus, because Oates's felony murder charge was predicated on
an underlying felony that did not prosecute the use of force as an essential element, Oates
could not, as a matter of law, rely on self-defense, which is a defense to the use of force.
Id. Oates effectively held that subsequent to the 2007 amendments to Chapter 563, selfdefense remains unavailable, as a matter of law, as a defense to felony murder predicated
on the commission or attempted commission of a non-forcible felony.
Gates's case involves the flip side of the question presented in Oates. We must now
address the effect of the 2007 amendments to Chapter 563, and in particular the addition
of sections 563.074.1 and 563.031.1(3), on pre-2007 decisional law precluding, as a matter
of law, self-defense as a defense to felony murder predicated on the commission or
attempted commission of a forcible felony.
17
Gates misreads Oates for the proposition that since his felony murder charge was
predicated on a forcible felony, and thus on a felony that prosecuted the use of force as an
essential element, he was entitled to rely on self-defense as a defense to felony murder.
But this argument ignores that the only reason Oates could argue that the 2007 amendments
to Chapter 563 abrogated decisional law barring self-defense as a defense to felony murder
was because section 563.031.1(3) did not apply to his case. Gates is not similarly
positioned. Plainly, the felony Gates was accused of committing or attempting to commit
was a forcible felony subject to the exception described in section 563.031.1(3). As such,
though section 563.074.1 declares self-defense an absolute defense to criminal prosecution
where force is used as provided in section 563.031, section 563.031.1(3) precludes the
defense as a matter of law where physical or deadly force is used to defend the threatened
use of force by another while the actor is committing, attempting to commit, or escaping
from the commission of a forcible felony. Oates does not hold otherwise. Although the
Supreme Court observed that "[i]f the underlying felony involves the defendant's use of
force, then a prosecution for felony murder would be a prosecution for the defendant's use
of force," the Court went on to explain that "[h]owever, [section] 563.031.1(3) precludes
self-defense from being an available justification if the defendant was committing a
'forcible felony.'" Oates, 540 S.W.3d at 862 n.5. Oates recognized in dicta, and we now
hold, that sections 563.074.1 and 536.031.1(3) combine to codify pre-2007 decisional law
declaring self-defense unavailable as a matter of law as a defense to felony murder
predicated on the commission or attempted commission of a forcible felony.
18
(ii) The State's verdict director for felony murder did not entitle Gates to a
self-defense instruction
Gates next argues that because the State's verdict director for felony murder posited
in paragraph second that Gates "caused the death of [the Victim] by shooting him," the
State converted felony murder into a crime prosecuting the use of force, opening the door
to self-defense as an available defense. We disagree.
The essential elements of the crime of second-degree felony murder are the
commission or attempted commission of any felony, and the death of any person as a result
of the perpetration or attempted perpetration of such felony, or as a result of the immediate
flight from the perpetration or attempted perpetration of such felony. Section 565.021.1(2).
As the Supreme Court noted in Oates, it is irrelevant how the person is killed--whether at
the hand of the defendant or another, and whether by "use of lawful force, unlawful force,
or no force at all," so long as the person "died as a result of the defendant's commission of
the underlying felony, without regard to the defendant's role in the fatal act." 540 S.W.3d
at 861.
The State's felony murder verdict director was patterned after MAI-CR 4th 414.06,
and posited in paragraph second a brief description of the evidence explaining who killed
the Victim as required by Notes on Use 4. But the mere fact that paragraph second of this
instruction required the State to posit the evidence explaining how the Victim died does
not alter the essential elements of the crime of felony murder. Felony murder does not
prosecute the use of force to cause a person's death as a matter of law, even where it is the
defendant who kills the victim. Oates, 540 S.W.3d at 861-62 (holding that felony murder
19
predicated on a felony that does not include the use of force as an essential element does
not prosecute the use of force even though the defendant's acts directly caused the death of
a person). Rather, where felony murder is predicated on a forcible felony, the only use of
force for which a defendant is being prosecuted is the use of force that is an essential
element of the underlying felony, and not the force used by the defendant to kill a victim.
Oates, 540 S.W.3d at 862 ("[U]nless the underlying felony involves the defendant's use of
force, felony murder is not prosecuting the defendant's use of force. Instead, felony murder
is prosecuting a different act altogether--the commission of a felony that results in the death
of a person.")
(iii) MAI-CR 4th 406.06[2] is not applicable to Gates's felony murder charge
Finally, Gates argues that MAI-CR 4th 406.06 supports the giving of a self-defense
instruction in his case. That instruction provides, in pertinent part, that "[i]n this state the
use of physical force (, including the use of deadly force,) to defend oneself is lawful in
certain situations." MAI-CR 4th 406.06. The instruction then directs the selection of
appropriate paragraphs depending on the evidence. Relevant to Gates's argument is the
material at paragraph [2] which provides:
[2] (And a) (But a) (A) person is not justified in using physical force to
defend himself if he was (attempting to commit) (committing) (escaping after
the commission of) [Insert name of forcible felony, which cannot be the
felony for which the defendant is charged and is claiming self-defense.]
MAI-CR 4th 406.06[2].
Though at first blush, it might appear that this paragraph is applicable to Gates's
case, the instructions for use of the paragraph state otherwise. The material at paragraph
20
[2] is to be used "only if there is evidence that defendant's use of physical force was in
connection with the commission of or escape after the commission of a forcible felony."
Id. However, "[t]he forcible felony cannot be the felony for which the defendant is charged
and is claiming self-defense. See Notes on Use 6."
Notes on Use 6 to MAI-CR 4th 406.06 explains:
[I]f the defendant is charged with assault on a bank guard and claims selfdefense to save his life by shooting the guard, and if there is evidence that at
the time defendant was robbing the bank, the jury will be instructed by
including [2]. The forcible felony referred to in those sections will be the
bank robbery. The reference to a forcible felony will be a felony other than
the assault or homicide offense for which the defendant is claiming selfdefense. If the defendant is charged with assault and there is no evidence
that the defendant was committing any other forcible felony at the time of
the charged offense, the material in [2] will not be used.
MAI-CR 4th 406.06 Notes on Use 6 does not contemplate the scenario presented in Gates's
case. Gates was charged with felony murder predicated on the commission of the forcible
felony of robbery of the Victim. But, felony murder does not prosecute the use of force--
it is not a forcible felony. The only force being prosecuted in Gates's case was the force
essential to prove that Gates was committing or attempting to commit robbery. There was
no evidence that Gates was committing any other forcible felony at the time the Victim
was shot besides the forcible felony with which he was effectively charged--robbery as the
predicate to felony murder. The material in [2] of MAI-CR 4th 406.06 is not applicable to
Gates's circumstances.8
8The material at MAI-CR 4th 406.06[2] would be applicable in a case where a defendant is charged with a
homicide offense other than felony murder, and with another forcible felony, such as robbery in the first degree. In
such a scenario, the use of force would be an essential element to both charged offenses, and self-defense would be
available as a lawful defense to the charged homicide offense but not for the separate forcible felony charge. To
address the effect of the forcible felony (and thus of section 563.031.1(3)) on what would otherwise be a required
21
This conclusion is reinforced by considering a slightly different scenario from the
events Gates's alleges. Had the Victim pulled a gun on Gates while Gates and Ramirez
were purportedly attempting to rob the Victim, and had Ramirez shot the Victim, Gates
could still be charged with felony murder predicated on the forcible felony of robbery. He
would be no less culpable because the Victim was shot by Ramirez. Yet, there is no
question that MAI-CR 4th 406.06[2] would not be applicable to submission of Gates's
felony murder charge. It would be illogical and incongruent to require the use of MAI-CR
4th 406.06[2] because Gates shot the Victim, but not where Ramirez shot the Victim, when
the cause of the Victim's death is irrelevant to Gates culpability for felony murder.
MAI-CR 4th 406.06[2] is not, therefore, in conflict with section 563.031.1(3) or
with Oates. Each consistently supports the conclusion that, as a matter of law, self-defense
is not available as a defense to felony murder, and thus should not be instructed, where the
actor was committing, attempting to commit, or escaping from committing a forcible
felony at the time the actor used physical (deadly) force to protect himself against the use
or threatened use of force by another.
Of course, if a defendant disputes, as Gates does, that he or she was committing or
attempting to commit the forcible felony serving as the predicate for felony murder, that
issue of fact must be determined by the jury. However, that disputed fact does not open
the door to the right to inject the issue of self-defense into a felony murder case in order to
instruction submitting self-defense on the conventional homicide charge, MAI-CR 4th 406.06[2] must be submitted.
In other words, MAI-CR 4th 406.06[2] serves to negate a defense that is otherwise available as a matter of law.
That rationale is not served when felony murder is the charged offense, as self-defense is not available as a defense
to felony murder as a matter of law, whether predicated on a forcible or a non-forcible felony.
22
require the submission of a self-defense instruction. Yet, as we discuss, infra, in
connection with Gates's first point on appeal, that is precisely what Gates attempted to do
at trial, and attempts to do on appeal.
Instead, the determination of whether Gates was committing or attempting to
commit the forcible felony of robbery was instructed by the verdict director for felony
murder, and by the related instruction submitting the predicate forcible felony of robbery.
Here, Instruction No. 6 was the verdict director for felony murder. It instructed, among
other things, that to find Gates guilty of felony murder, the jury must find in paragraph first
that Gates "committed robbery in the first degree as submitted in Instruction No. 8."
Instruction No. 8 instructed the jury on robbery in the first degree, and required the jury to
find that Gates committed the crime if it found beyond a reasonable doubt:
First, that on or about January 2, 2018, . . . [Gates] took a gun, which was
property in the possession of [the Victim], and
Second, that [Gates] did so for the purpose of withholding it from the owner
permanently, and
Third, that [Gates] in doing so used physical force on or against [the Victim]
for the purpose of preventing resistance to the taking of the property, and
Fourth, that in the course of taking the property, [Gates] was armed with a
deadly weapon.
The jury was further instructed in Instruction No. 7 that if it "[had] reasonable doubt as to
whether [Gates] committed robbery in the first degree, or that [the Victim] was killed as a
result of the perpetration of robbery in the first degree," it must find Gates not guilty of
felony murder in the second degree.
23
The jury's determination about whether Gates's committed or was attempting to
commit robbery in the first degree thus controls the ultimate issue in the case--whether
Gates could be found guilty of felony murder. Consistent with the fact that self-defense is
not a defense to felony murder, the MAI-CR 4th 406.06[2] self-defense instruction was not
required to determine whether Gates committed the predicate felony of robbery, and would
have added nothing but confusion to the case. See State v. Starr, 998 S.W.2d 61, 66 (Mo.
App. W.D. 1999) (holding that where jury was called upon to determine whether a victim
was killed during the commission of an attempted robbery, "[s]ubmission of a self-defense
instruction would not have affected the jury's determination either way, because either [the
defendant] was guilty of attempted robbery in the first degree and, therefore, felony
murder, or he was guilty of neither").9
9Starr reached this conclusion in the context of analyzing prejudicial error in failing to instruct on selfdefense, and thus held that "[w]hen the inclusion of the self-defense instruction is unnecessary, its omission is
clearly not prejudicial." 998 S.W.2d at 66. But Starr did not hold that a self-defense instruction is permissible or
required in a felony murder case predicated on a forcible felony. Starr simply recognized that Newman and Burnett,
both of which categorically held that self-defense was not available as a defense to felony murder, pre-dated MAICR 3d. Id. at 65. Before MAI-CR 3d, the verdict directors for all homicide offenses except felony murder included
language to permit the submission of self-defense. Id. at 64. In MAI-CR 3d, "none of the verdict directors for
homicide make reference to self-defense." Id. at 65. "Self-defense is now a separate instruction and its Notes on
Use do not [expressly] preclude a self-defense instruction being submitted for felony murder." Id. Starr did not
tackle whether the changes in MAI-CR 3d abrogated Newman and Burnett, and instead focused on whether, even
assuming instructional error, prejudice had been demonstrated as to require the verdict to be overturned. Id. at 65-
66.
The same is true with respect to this court's reference to Starr in State v. Peal, 393 S.W.3d 621, 634 n.11
(Mo. App. W.D. 2013), where we observed that the adoption of MAI-CR 3d and the resulting inclusion of a separate
instruction for self-defense not tied to the verdict directors for homicide crimes did not expressly exclude application
of the self-defense instruction to felony murder. Neither Starr nor Peal abrogated the Supreme Court's decisions in
Newman or Burnett--nor could they. Both opinions simply noted that the modification of jury instructions on selfdefense raised an as yet undetermined question--the effect of the modification on what had been settled law with
respect to the availability of self-defense as a defense to felony murder.
MAI-CR 4th continued the scheme adopted in MAI-CR 3d by including an instruction dedicated to the
subject of self-defense. That this dedicated instruction does not alter decisional law pre-dating MAI-CR 3d has now
been resolved by Oates (which held self-defense is unavailable as a matter of law to defend against felony murder
predicated on a felony that does not prosecute the use of force), and by this Opinion (which holds that self-defense is
unavailable as a matter of law to defend against felony murder predicated on a forcible felony).
24
The trial court did not commit error, plain or otherwise, in failing to submit a selfdefense instruction. Because Gates was not entitled to a self-defense instruction as a matter
of law, we do not address his contention that substantial evidence existed in the record to
explain that Gates's use of deadly force on the Victim was in response to the Victim's
threatened use of deadly force on Gates.
10
The trial court did not err in failing to instruct
on self-defense sua sponte.
Point Two is denied.
Point One: The Trial Court did not Err in Excluding Portions of Gates's Testimony
In opposition to Gates's second point on appeal, which argues that a self-defense
instruction was required because the jury heard substantial evidence that Gates acted in
self-defense when he shot the Victim, Gates argues in his first point on appeal that it was
error to exclude portions of his testimony "about what occurred at the time the shot was
fired" because a criminal defendant has the constitutional right to testify in his own behalf
at trial. [Appellant's Brief, p. 28] Gates's first point on appeal concedes that section
563.031.1(3) precludes justification as a defense in his case, but argues that "nothing in the
statute precludes a defendant from taking the stand and telling the jury what occurred at
the time of the shooting." [Appellant's Brief, p. 45] Gates argues that exclusion of portions
of his testimony deprived him of the right to testify in his own defense.
(i) Gates's constitutional right to testify in his own defense was not
categorically denied by the exclusion of portions of his testimony
10Though we do not address this contention in connection with Gates's second point on appeal, it is worth
noting that Gates's contention that the jury heard substantial evidence on the subject of self-defense is in diametric
opposition to Gates's first point on appeal, which claims prejudicial error in the exclusion of discrete aspects of his
story about what happened on the day the Victim was robbed and shot.
25
A criminal defendant's right to testify in his own defense "at a criminal trial has
sources in several provisions of the Constitution." Rock v. Arkansas, 483 U.S. 44, 51
(1975). "The necessary ingredients of the Fourteenth Amendment's guarantee that no one
shall be deprived of liberty without due process of law include a right to be heard and to
offer testimony." Id. In addition, "[t]he right to testify is also found in the Compulsory
Process Clause of the Sixth Amendment, which grants a defendant the right to call
'witnesses in his favor' . . . ." Id. at 52. This logically includes a defendant's "right to testify
himself." Id. "In fact, the most important witness for the defense in many criminal cases
is the defendant himself." Id. Finally, "[t]he opportunity to testify is also a necessary
corollary to the Fifth Amendment's guarantee against compelled testimony." Id.
A criminal defendant's right to testify in his own defense cannot be restricted by "a
rule of evidence that permits a witness to take the stand, but arbitrarily excludes material
portions of his testimony." Id. at 55. Rock found that a statute which per se excluded
hypnotically refreshed testimony infringed on a criminal defendant's constitutional rights
to testify on his own behalf because the statute mechanically and arbitrarily determined
that hypnotically refreshed testimony was not competent or trustworthy, when competence
and trustworthiness could have been weighed and determined by the jury. Id. at 51-62.
The United States Supreme Court reached a similar conclusion in Chambers v. Mississippi,
410 U.S. 284 (1973), where a state hearsay rule and a witness "voucher" rule operated to
mechanically and arbitrarily preclude a criminal defendant from cross-examining his own
witness about the confessions of others to the crime. Id. at 295-97. Chambers held that a
state rule of evidence may "not be applied mechanistically to defeat the ends of justice,"
26
but instead must be applied in a manner that meets the fundamental standards of due
process. Id. at 302.
Gates relies on these cases to argue that the trial court's exclusion of portions of his
testimony categorically deprived him of the right to testify. However, Gates has not
identified a Missouri statute or rule of evidence that arbitrarily or mechanically required
the per se exclusion of portions of his testimony, or that was applied by the trial court to
do so. Section 563.031.1(3) does not address the admissibility of evidence, and instead
addresses the availability of a legal defense to the commission of a crime. The trial court
remained free to assess, as in any case, whether the excluded portions of Gates's testimony
were relevant, and thus admissible, for the purpose offered by Gates. Neither Rock nor
Chambers foreclose this discretionary exercise. In fact, Rock's discussion about the
exclusion of evidence presumes, in the first instance, that the evidence is relevant, as the
Court held that "the right to present relevant testimony is not without limitation." 483 U.S.
at 55 (emphasis added). And Chambers observed that in the exercise of the right to call
witnesses, "the accused, as is required of the State, must comply with established rules of
procedure and evidence designed to assure both fairness and reliability in the ascertainment
of guilt and innocence." 410 U.S. at 302.
The trial court's exercise of discretion in this case to exclude portions of Gates's trial
testimony did not amount to an arbitrary or mechanical per se exclusion of evidence that
categorically deprived Gates of the right to testify in his own defense. Instead, Gates's
efforts to admit evidence through his testimony were appropriately subjected to the trial
court's assessment of admissibility of the proffered evidence for the purpose offered.
27
Gates's right to testify in his own defense is not exempt from this discretionary exercise of
trial court authority. Id.
(ii) Gates did not preserve the claim of error asserted in his first point on
appeal with respect to the excluded portions of his testimony
"To preserve a claim of improperly excluded evidence, the proponent must attempt
to present the excluded evidence at trial and, if it remains excluded, make a sufficient offer
of proof." State v. Hunt, 451 S.W.3d 251, 263 (Mo. banc 2014) (citing Hancock v. Shook,
100 S.W.3d 786, 802 (Mo. banc 2003)). "The purpose of an offer of proof is to preserve
the evidence so the appellate court 'understands the scope and effect of the questions and
proposed answers.'" Id. (quoting State v. Tisius, 92 S.W.3d 751, 767-68 (Mo. banc 2002)).
"Offers of proof must show what the evidence will be, the purpose and object of the
evidence, and each fact essential to establishing admissibility." Id. (citing Tisius, 92
S.W.3d at 767-68). "Offers of proof must be specific and definite." Id.
In addition, to preserve a claim of improperly excluded evidence, the specific
allegation of error must be included in a motion for new trial. Rule 29.11(d); State v. Clay,
533 S.W.3d 710, 718 (Mo. banc 2017) ("An issue is not preserved for appellate review if
the issue is not included in the motion for new trial.")
Finally, to properly preserve an issue involving the exclusion of evidence for
appellate review, a party "cannot rely on a theory on appeal different from the one offered
at trial." State v. Thomas, 590 S.W.3d 441, 445 (Mo. App. S.D. 2019) (quoting State v.
Sykes, 480 S.W.3d 461, 465 (Mo. App. S.D. 2016)). "In the context of preserving for
appellate review alleged error in the trial court's exclusion of proffered evidence, a
28
defendant's theory of admissibility 'must be presented to or decided by the trial court.'" Id.
(quoting State v. Blurton, 484 S.W.3d 758, 778 (Mo. banc 2016)). A party "cannot argue
a theory of relevance on appeal that he did not advance in the trial court." Lozano v. BNSF
Ry. Co., 421 S.W.3d 448, 455 n.6 (Mo. banc 2014). "Missouri courts strictly apply these
principles because a trial judge should be given the opportunity to reconsider his or her
ruling against the backdrop of the evidence actually adduced and in light of the
circumstances that exist when the questioned evidence is actually proffered." Thomas, 590
S.W.3d at 445 (quoting Sykes, 480 S.W.3d at 465); see also Lozano, 421 S.W.3d at 455
n.6 (holding that to allow an appellant to argue that excluded evidence was relevant for a
reason not given at the time evidence was offered at trial "would violate the principle 'that
this Court will not, on review, convict a lower court of error on an issue which was not put
before it to decide'") (quoting Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc
1982)).
a. Gates's offer of proof
After the State rested, Gates's counsel asked the trial court to reconsider its ruling
on the State's in limine motion "barring us from using self-defense in this case." [Tr. 475]
(Emphasis added.) Importantly, though Gates had earlier represented to the trial court a
belief that Oates foreclosed reliance on self-defense in all felony murder cases, Gates's
counsel now argued that "[a]fter reviewing Oates," counsel believed "it is distinguishable"
because Gates was disputing commission of the felony underlying his felony murder
charge. [Tr. 475-76] Counsel continued:
29
In addition to that, Judge, in Oates on page 862 the Court says, "In other
words, unless the underlying felony involves the defendant['s] use of force,
felony murder is not prosecuting the defendant's use of force. Instead felony
murder is prosecuting a different act to the commission of a felony that
results in the death of a person."
Judge, in this case, the underlying felony is a forcible felony. Because the
State is alleging that forcible use in that felony, Judge, we believe that we
should get to argue self-defense to rebut that that use of force was not
justifiable given the fact that we are, again, disputing that any underlying
felony occurred.
With that the case does cite the statute . . . [section] 563.031.1(3), that that
[sic] statute does say we are precluded from using self-defense as a
justification if the defendant was committing a forcible felony.
Judge, I think that is a disagreement between what the passage of the case
that I just read versus the statute. Judge, I believe that the passage that I just
read in the case would suggest that we are able to use self-defense because
the State is saying that the forcible felony was being committed, even though
the statute says that we're not allowed to argue that.
Because there is that difference, Judge, I believe that under the Rule of
[Lenity] that any disagreement between the case law and the statutes that the
benefit would be given to the defendant. And because of those items that we
believe are distinguishable in Oates that we should be allowed to use selfdefense in this case.
[Tr. 476-77]
The trial court ruled that it did not see a disagreement between Oates and section
563.031.1(3), and that self-defense was not available as a defense to Gates. In response,
Gates's counsel asked permission to make a detailed offer of proof through Gates's
testimony "of what the defendant's testimony would be if allowed to testify about selfdefense." (Emphasis added.) Gates's request to make an offer of proof did not identify
any other purpose or object for permitting Gates to fully testify beyond injecting selfdefense as an absolute defense to felony murder.
30
Following the offer of proof, the trial court rejected the offer and noted that it "is
well supported by Missouri case law and by the Missouri statutes that you may not use
self-defense in this kind of context." Gates's counsel did not urge an alternative basis for
admitting those portions of Gates's testimony that the trial court believed injected the issue
of self-defense. Specifically, Gates's offer of proof did not argue that Gates should be
permitted to fully describe his version of the events leading to the Victim being shot
because even if inadmissible to inject self-defense as a justification for felony murder, the
testimony was independently relevant to permit Gates to simply tell his story, including
contesting the State's contention that he committed robbery, the felony that served as the
predicate for Gates's felony murder charge.
Gates's offer of proof did not preserve the issue raised in Gates's first point on
appeal. In re King, 340 S.W.3d 656, 659 (Mo. App. S.D. 2011) ("A party is obligated 'to
bring to the attention of the trial court its position as to relevancy of evidence offered. Such
position should be included in the offer of proof.'") (quoting Frein v. Madesco Inv. Corp.
735 S.W.2d 760, 762 (Mo. App. E.D. 1987)). The dissent does not address Gates's offer
of proof, and instead focuses on arguments Gates made in response to the State's motion in
limine, during voir dire, and before and during opening statements, to conclude that Gates's
preserved the claim of error raised in his first point on appeal. But Gates's earlier arguments
preserve nothing for our review. "Even if we construe[] [Gates's] pre-trial arguments
against the [State's] motion in limine broadly enough to encompass [the claim asserted in
Gates's first point on appeal], a ruling in limine is interlocutory and subject to change
during trial." Id. (citing State v. McCullum, 63 S.W.3d 242, 259 (Mo. App. S.D. 2001)).
31
"A motion in limine, and by extension, supporting or opposing arguments at that time
preserve nothing for appeal." Id. "The trial court's ruling on a motion in limine is a
preliminary ruling on the admissibility of evidence and is subject to change throughout the
course of trial." Henderson v. Fields, 68 S.W.3d 455, 468 (Mo. App. W.D. 2001) (citing
Wilkerson v. Prelutsky, 943 S.W.2d 643, 646 (Mo. banc 1997)). "'Consequently, when a
motion in limine is granted, the proponent of the evidence, in order to preserve the issue
for appellate review, must attempt to present the excluded evidence at trial and, if an
objection to the proffered evidence is sustained, the proponent must then make an offer of
proof.'" Id. at 469 (quoting Evans v. Wal-Mart Stores, Inc., 976 S.W.2d 582, 584 (Mo.
App. E.D. 1998)).
The same is true for Gates's arguments regarding admissibility of his anticipated
trial testimony during voir dire, and before and during opening statements. "The 'unsworn
remarks of counsel in opening statements, during the course of trials or in arguments are
not evidence of the facts asserted.'" State v. McFadden, 369 S.W.3d 727, 742 (Mo. banc
2012) (quoting State v. Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006)), cert. denied, 568
U.S. 999 (2012). Thus, the arguments made by Gates, and the limitations imposed by the
trial court, during voir dire and opening statement have no bearing on whether Gates
preserved the claim of evidentiary error raised in his first point on appeal. See, e.g., Collins
v. Hertenstein, 90 S.W.3d 87, 100-01 (Mo. App. W.D. 2002) (holding that where party
challenged exclusion of evidence at trial but could only point to comments impacting
admissibility of the evidence made during voir dire, opening statement, and closing
argument, and could not identify an attempt to actually introduce the evidence, the claim
32
of error is not preserved for appellate review). Rather, as noted above, the first step in
preserving a claim that evidence has been improperly excluded at trial is to attempt to admit
the evidence, and to explain at the time of the proffer the rationale for admitting the
evidence. Hunt, 451 S.W.3d at 263; Lozano, 421 S.W.3d at 453 n.4 (holding that to claim
error in the exclusion of evidence at trial, "the proponent must offer the evidence at trial
and make a detailed offer of proof concerning that evidence when the trial court orders that
it be excluded"). That cannot be accomplished during an in limine hearing, in voir dire, or
in an opening statement.
Moreover, as previously noted, whatever arguments or positions Gates may earlier
have advanced or conceded, by the time of his offer of proof, Gates was plainly taking the
position that pursuant to Oates, and despite section 563.031.1(3), self-defense remained
available as an absolute defense to felony murder predicated on a forcible felony. The
dissent's contentions to the contrary, by rejecting Gates's argument for admission of all of
Gates's testimony in connection with Gates's offer of proof, the trial court was not
categorically depriving Gates of the opportunity to testify in his defense, and was not
categorically depriving Gates of a meaningful opportunity to present a complete defense.
The trial court was simply ruling on the admissibility of evidence for the purpose offered.
As Gates did not seek admission of the entirety of Gates's testimony for any purpose other
than its relevance to establish the defense of self-defense, we cannot conclude that the offer
of proof preserved for our review the sweeping constitutional challenge raised in Gates's
first point on appeal.
33
b. Gates's attempts to admit the excluded portions of his testimony after
his offer of proof
When Gates took the stand after his offer of proof, he testified that he and Ramirez
picked up the Victim; that he had never met the Victim before; that the Victim announced
he had a gun and showed his gun while the men were driving to the mall; that "there was a
lot of movement" between the Victim and Ramirez in the car while on the way to the mall;
that the Victim then started digging in his backpack; that he asked the Victim and Ramirez
to stop moving around so much because "I don't know what type of time you guys are on.
What you guys trying to do." Gates was then asked how he was feeling at the time, to
which he responded "nervous." The State requested to approach the bench, and argued that
this testimony went to the issue of self-defense and should be stricken. The trial court
agreed, and the testimony was stricken.
Gates's testimony continued. Gates testified that when he pulled into the mall
parking lot, Ramirez was outside of the car with the door open before Gates could put the
car in park, and that Gates "happened to look back and see a gun in my face." The State
asked to approach the bench, and argued that Gates's testimony about seeing a gun went
directly to self-defense. The trial court agreed. However, Gates's testimony about seeing
a gun was not stricken, leaving the evidence in the case for the jury to consider.
During the same bench conference, Gates's counsel asked: "Your Honor, can I ask
if [Gates] thought [the Victim] was going to rob him?" The trial court said no, because
"[t]hat goes toward self-defense again."
34
For the first time in connection with an actual attempt to admit evidence, Gates's
counsel argued a rationale for admission that was not tied to establishing the defense of
self-defense. Gates's counsel argued, "I think this goes directly to one of the elements that
the State was trying to prove. They are trying to prove that [Gates] was attempting to rob
someone. He said while he was on the stand he was not attempting to rob anyone." The
trial court responded "You can ask if he was attempting to rob somebody." Gates's counsel
did so, and Gates denied that he was attempting to rob the Victim. Gates's counsel then
asked to approach the bench to clarify whether Gates could be asked why he shot the
Victim. The trial court stated that Gates could not be asked why he shot the Victim. The
State noted this testimony would be "confusing to the jury." Gates's counsel argued that
Gates was being deprived of a fair trial, but did not specifically articulate a basis for
admitting testimony about why Gates shot the Victim independent from the issue of selfdefense. In other words, Gates's counsel did not tell the trial court how or why Gates's
explanation for shooting the Victim would be independently relevant to negate an essential
element in the State's case, even if not admissible to establish the defense of self-defense.
Though Gates's Brief fails to identify the testimony that was excluded because of
the trial court's evidentiary rulings, 11
by comparing the trial court's rulings and discussions
at the bench during Gates's trial testimony with Gates's offer of proof, we have identified
the discrete testimony that was excluded: (i) Gates's testimony that he was nervous in the
11Despite the fact it is Gates's obligation to identify the precise trial court error about which he complains
on appeal, his Brief fails to specify the exact evidence he contends was erroneously excluded by the trial court's
evidentiary rulings. Instead, Gates's Brief speaks in sweeping terms about being denied the right to tell his story
about "what occurred at the time the shot was fired." [Appellant's Brief, p. 28] Plainly, Gates was permitted to
provide a great deal of testimony to tell his story about what occurred at the time the Victim was shot.
35
car with the Victim and Ramirez; (ii) Gates's testimony that the Victim was attempting to
rob him; and (iii) Gates's testimony that he shot the Victim in a struggle over the Victim's
gun.
With respect to Gates's testimony that he was feeling nervous, Gates never argued
a basis for admission of this evidence except to inject the issue of self-defense. Gates's
first point on appeal concedes that he was not entitled to claim self-defense. The claim of
error asserted in Gates's first point on appeal is not preserved for our review insofar as
Gates's testimony that he was feeling nervous.
Gates's counsel did argue that Gates's testimony that he was being robbed by the
Victim was relevant to negate the State's contention that Gates was attempting to rob the
Victim. And Gates's counsel argued that excluding Gates's testimony explaining why he
shot the Victim violated Gates's right to testify in his defense. These arguments in support
of admissibility were not made at the time of Gates's offer of proof. However, they were
made in connection with contemporaneous attempts to admit the described testimony, and
the anticipated answers to the questions counsel was not permitted to ask were included in
Gates's offer of proof. Gates arguments were detached from his offer of proof, and were
easily lost in the discussion about whether Gates should be permitted to inject self-defense
into the case. Nonetheless, the arguments were minimally sufficient to bring to the trial
court's attention Gates's position that testimony the Victim was attempting to rob him and
explaining why he shot the Victim was admissible on an issue other than self-defense--
specifically to negate that Gates was attempting to rob the Victim, an essential element of
the State's case.
36
c. Gates's motion for new trial
Gates nonetheless faces another hurdle to preservation of his first point on appeal
for appellate review. Gates motion for new trial alleges in paragraph 20 that:
The trial court erred . . . when it sustained the State's objection to the
Defendant testifying that when he turned around a gun was in his face in
violation of [Gates's] right to testify, effective assistance of counsel, a fair
trial, and due process under the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution, and Article I, Section 2, Section 10, and
Sections 18(a) and 22(a) of the Missouri Constitution. [sic] not allowing
defendant to testify regarding his version of the events.
However, despite Gates's contention to the contrary in his motion for new trial, Gates's
testimony that he turned in the car to see the Victim pointing a gun in his face was not
excluded from evidence. It is, in fact, a part of the "substantial evidence" of self-defense
Gates's relies on in his second point on appeal to claim an entitlement to a self-defense
instruction.
Gates's motion for new trial alleges in paragraph 19 that:
The trial court erred . . . when it sustained the State's objection to [Gates]
testifying that he was nervous and asked that the testimony be stricken from
the record in violation of [Gates's] right to testify, effective assistance of
counsel, a fair trial, and due process under the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution, and Article I, Section 2,
Section 10, and Sections 18(a) and 22(a) of the Missouri Constitution.
As noted, above, Gates's testimony about being nervous was stricken, but it was never
offered on any issue other than self-defense. Though paragraph 19 of the motion for new
trial argues that exclusion of the evidence violated the enumerated constitutional rights, the
motion for new trial fails to explain how evidence that Gates felt nervous was relevant to
any issue in dispute in the case other than to inject the issue of self-defense. "Allegations
37
of error in a motion for new trial may not be changed or broadened on appeal." State v.
Johnson, 358 S.W.3d 574, 576 (Mo. App. S.D. 2012) (citing State v. Cobb, 336 S.W.3d
201, 205 (Mo. App. S.D. 2011)). Gates's attempt on appeal to urge that he should have
been able to testify that he was nervous because this evidence was relevant to establish that
he was not attempting to rob the Victim was not raised at trial or in Gates's motion for new
trial, and is not preserved for our review.
Gates's motion for new trial fails to identify any other claim of error relating to the
exclusion of specific evidence.
12
Importantly, the motion for new trial does not allege error
in excluding Gates's testimony that the Victim was attempting to rob Gates, or explaining
why Gates shot the Victim. Gates's first point on appeal is not preserved for our review
with respect to this excluded evidence. State v. Register, 487 S.W.3d 15, 17 (Mo. App.
W.D. 2016) (holding that claim in motion for new trial that testimony was erroneously
admitted because it was hearsay did not preserve unasserted claim in motion for new trial
that testimony was improperly admitted because it bolstered other evidence); Johnson, 358
S.W.3d at 575-76 (holding that motion for new trial that charged error in excluding
testimony from a victim about her alleged sexual activity did not preserve a claim of error
relating to testimony from a different witness on the same subject). Gates's first point on
12Paragraphs 17 and 21 of Gates's motion for new trial claim error in sustaining the State's motion in limine
regarding the issue of self-defense. Paragraph 18 of Gates's motion for new trial claims error is sustaining the State's
motion in limine after hearing Gates's offer of proof as the effect was to bar Gates from testifying on the issue of
self-defense. These paragraphs in the motion for new trial do not implicate Gates's first point on appeal which
concede that self-defense was not available as a justification for Gates's crime, and instead argue, alternatively, that
Gates was deprived of the right to tell his story. The arguments raised in paragraphs 17, 18, and 21 of Gates's
motion for new trial are dispensed with by our discussion of Gates's second point on appeal, supra. We reject the
dissent's view that these paragraphs in the motion for new trial preserve the issue raised in Gates's first point on
appeal. The subject of the paragraphs plainly addresses the issue of self-defense, and not evidence offered on an
issue other than self-defense.
38
appeal is not preserved for our review with respect to any of the discrete evidence in fact
excluded by the trial court's evidentiary rulings.
(iii) The trial court did not commit plain error in excluding portions of
Gates's trial testimony
Gates's unpreserved claim of error in his first point on appeal is subject at best to
plain error review. Rule 30.20. That requires us to first determine whether Gates's claim
of error involving the exclusion of evidence that he was nervous in the car, that the Victim
was attempting to rob him, and explaining why he shot the Victim, facially establishes
substantial grounds for believing that manifest injustice or miscarriage of justice has
resulted, and if so, whether, in fact the claimed error resulted in manifest injustice or a
miscarriage of justice. Garretson, 598 S.W.3d at 649 (citing Baumruk, 280 S.W.3d at 607-
08). "Plain error must be evident, obvious, and clear." State v. Walter, 479 S.W.3d 118,
131 (Mo. banc 2016).
To establish second-degree felony murder, the State was required to prove that
Gates committed or attempted to commit any felony, and that in the perpetration or
attempted perpetration of that felony, a person was killed as a result. Section 565.021.1(2).
Felony murder thus criminalizes the perpetration or attempted perpetration of the
underlying felony that causes death, "without regard to the defendant's role in the fatal act."
Oates, 540 S.W.3d at 861. "[T]he felony murder rule . . . permits the felonious intent
necessary to a murder conviction to be shown by the perpetration of or attempt to perpetrate
a felony." State v. Henderson, 551 S.W.3d 593, 602 (Mo. App. W.D. 2018) (quoting State
v. Rumble, 680 S.W.2d 939, 942 (Mo. banc 1984)). As such, the issue to be determined at
39
Gates's trial was whether Gates robbed or attempted to rob the Victim, the essential
elements for which were submitted in Instruction No. 8, set forth, supra, in our discussion
of Gates's second point on appeal.
Though the dissent has attempted to do so on Gates's behalf, Gates did not explain
at trial, and has not explained on appeal, how his nervousness in the car, his belief that
the Victim was attempting to rob him, or his explanation about why he shot the Victim,
evidently, obviously, or clearly make it more or less probable that Gates robbed or was
attempting to rob the Victim. The scenarios are not mutually exclusive. One scenario, if
believed, does not disprove the other. Gates could have been robbing or attempting to rob
the Victim at the same time the Victim was attempting to rob Gates. Thus, even if the jury
heard and believed the excluded portions of Gates's testimony, the jury could nonetheless
find beyond a reasonable doubt that Gates robbed or was attempting to rob the Victim. "It
does not matter whether the [Victim] died as a result of [Gates's] or someone else's use of
lawful force, unlawful force, or no force at all. It matters only that the [Victim] died as a
result of [Gates's] commission of the underlying felony . . . ." Oates, 540 S.W.3d at 861.
It was not evident, obvious, or clear to the trial court that the challenged portions of Gates's
testimony were essential to afford Gates with a meaningful opportunity to present a defense
to the State's assertion that Gates robbed or attempted to rob the Victim.
Gates briefly argues in his Brief that in the absence of an explanation for why he
shot the Victim, Gates's bare denial that he was attempting to rob the Victim was less
credible. [Appellant's Brief, p. 46] Even if we accept the premise that the jury's willingness
to believe Gates's denial of an intent to rob the Victim was diminished by the exclusion of
40
evidence explaining why he shot the Victim, we cannot say that the trial court evidently,
obviously, or clearly erred in failing to admit the excluded evidence for this purpose. That
is particularly so where Gates's emphasis throughout trial was on the improvident
contention that the entirety of his testimony was admissible to inject the issue of selfdefense, a refrain Gates has repeated on appeal by claiming in his second point on appeal,
discussed supra, that the trial court erred in failing to instruct on the issue of self-defense.
Gates relies on Oates to claim that even if the excluded portions of his testimony
were only offered on the issue of self-defense, they should have been admitted as a matter
of law as a part of telling his story. Oates does not stand for that proposition. In Oates, a
defendant accused of felony murder was permitted to testify that he pulled out a gun and
shot two victims during a drug transaction when the victims pulled out guns to shoot him.
540 S.W.3d at 860. But in Oates, the defendant was charged with other forms of homicide
in addition to felony murder, and the jury was instructed "on conventional murder, the
lesser offenses of voluntary manslaughter and involuntary manslaughter, and, in the
alternative, felony murder." Id. The defendant's self-defense testimony in Oates was thus
admissible because self-defense was available as a defense to several of the homicide
charges. In contrast, Gates was not charged with any form of homicide other than felony
murder, and self-defense is not available as a defense to felony murder. Oates does not
address the admissibility of evidence expressly offered on the issue of self-defense where
self-defense is not at issue in a case as a matter of law.
The dissent places heavy reliance on Crane v. Kentucky, 476 U.S. 683, 690-91
(1986), for the proposition that exclusion of "competent, reliable evidence . . . central to
41
[a] defendant's claim of innocence . . . deprives a defendant of the basic right to have the
prosecutor's case encounter and 'survive the crucible of meaningful adversarial testing.'"
(Citation omitted). Not unlike most of the analysis in the dissent, Crane is neither cited
nor relied on by Gates. Regardless, Crane is distinguishable. In Crane, the State's in limine
request at trial to exclude any evidence on the voluntariness of a defendant's confession
was granted because "voluntariness" had already been determined before trial, and under
Kentucky law, could not be relitigated. Id. at 686-87. The defendant sought to admit
evidence at trial that would have been relevant on the issue of his confession's
voluntariness, but that was being offered on a different issue--to determine his confession's
credibility. Id. at 686. The United States Supreme Court concluded that although the
voluntariness of a confession could not be further litigated under Kentucky law, evidence
that supported that finding could still be presented to the jury if relevant to another purpose.
Id. at 687. The dissent seizes on this holding to analogously argue that although selfdefense was not available as a defense to Gates's crime, evidence that would have supported
a self-defense finding could still be presented to the jury if relevant to another issue--here,
whether Gates robbed the Victim.
We conceptually agree that evidence not relevant to one issue in a case can
nonetheless be relevant to, and thus admissible on, another issue in a case. The dissent's
reliance on Crane ignores, however, that the defendant in Crane expressly sought through
his offer of proof to admit the excluded evidence on a proper issue--the credibility of his
confession. Id. at 686. In sharp contrast, Gates's offer of proof was expressly limited to
seeking admission of excluded portions of his testimony for the improper purpose of
42
establishing the defense of self-defense. Stated simply, in contrast to Gates's
circumstances, in Crane, the trial court's erroneous exclusion of evidence and the related
impact on the defendant's constitutional ability to present a complete defense was properly
preserved for review.
Even if we could find (which we do not) that the trial court evidently, obviously,
and clearly erred in excluding the discrete portions of Gates's testimony we have identified,
we would not find that Gates suffered manifest injustice or a miscarriage of justice as a
result. "[U[nder Missouri law, plain error can serve as the basis for granting a new trial on
direct appeal only if the error was outcome determinative . . . ." Deck v. State, 68 S.W.3d
418, 427 (Mo. banc 2002) (citing State v. Armentrout, 8 S.W.3d 99, 110 (Mo. banc 1999)).
"A finding of outcome-determinative prejudice expresses a judicial conclusion that the
erroneously [excluded] evidence so influenced the jury that, when considered with and
balanced against all of the evidence properly admitted, there is a reasonable probability
that the jury would have reached a different conclusion but for the erroneously [excluded]
evidence." State v. Barriner, 34 S.W.3d 139, 150 (Mo. banc 2000) (internal quotation
marks and citation omitted).13
13Even in Crane, where the determined claim of constitutional error was preserved, the United States
Supreme Court noted that the mere exclusion of evidence properly offered on the issue of a confession's credibility
was insufficient, standing alone, to warrant a new trial, and instead required remand to subject the trial court's
erroneous evidentiary ruling "to harmless error analysis." 476 U.S. at 691. Under harmless error review,
determined error of constitutional proportion must be harmless beyond a reasonable doubt, a determination that
"depends upon a host of factors," including, without limitation, the importance of the improperly admitted or
excluded testimony, "whether the testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, . . . and, of course, the overall strength of the
prosecution's case." Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
43
There is no basis in the record for us to find that the exclusion of evidence that Gates
felt nervous in the car, or that the Victim demanded Gates's money, or explaining why
Gates shot the Victim, was outcome determinative because the jury would have acquitted
Gates had they heard the excluded testimony. The jury heard Gates's testimony that he had
no intention of robbing the Victim; that the Victim was flashing a gun in the car; that Gates
was uncomfortable with the way the Victim and Ramirez were acting in the car and told
them as much; that the Victim had a gun in Gates's face from the back seat of the car at the
moment Gates pulled into the parking lot; and that he shot the Victim with Ramirez's gun.
Ironically, in connection with his second point on appeal, Gates's argues that this evidence
was substantial evidence of self-defense, a concession that the jury heard substantial
evidence explaining Gates's version of the events on the day of the Victim's death.
Even without this concession, the excluded testimony that Gates was nervous would
have added very little to Gates's testimony that he was uncomfortable with the way the
Victim and Ramirez were acting in the car and that he communicated as much to the Victim
and Ramirez. Gates's excluded testimony that the Victim was trying to rob him would have
added very little to Gates's testimony that he turned around in the car to see the Victim with
a gun pointing in Gates's face. Gates's excluded testimony that he and the Victim struggled
over the Victim's gun would have added nothing to Ramirez's testimony that the Victim
and Gates were struggling over the Victim's gun in the car immediately before the Victim
was shot, or to Gates's testimony and other evidence in the case establishing that the Victim
was not shot with his own gun, but was instead shot by Gates with Ramirez's gun. And
more to the point, as we explain, supra, even if the excluded testimony had been admitted
44
and believed, the jury could still have convicted Gates if it believed that Gates had the
intent to rob the Victim--an intent that is not mutually exclusive of the Victim's alleged
attempt to rob Gates. The excluded portions of Gates's testimony were not outcome
determinative.
Our role on appeal is to review for prejudicial trial court error. The trial court was
plainly faced with a defense strategy to seek the admission of evidence on the issue of selfdefense as an absolute justification for Gates's criminal conduct though, as a matter of law,
self-defense is not a legal justification for that conduct. The dissent disregards entirely the
position the trial court was placed in as a result--a position not coincidentally repeated on
appeal, given Gates's second point on appeal claiming error in the failure to instruct on
self-defense. Despite the potential admissibility for the purpose of permitting Gates to "tell
his story" of the discrete portions of Gates's testimony that were excluded at trial, we will
not indict the trial court for excluding that evidence when the evidence was being offered
(if not exclusively so) to seek absolution as a matter of law on the basis of self-defense.
Nor will we indict the trial court for excluding discrete aspects of Gates's testimony at trial
that, even if admitted and believed by the jury, would not have assured or required Gates's
acquittal.
Point One is denied.
Point Three: Failure to Strike Venireperson
In his third point on appeal, Gates asserts that the trial court plainly erred in failing
to strike Venireperson No. 38 for cause sua sponte. Gates acknowledges that his counsel
never moved to strike Venireperson No. 38 for cause, but argues that the trial court
45
nonetheless had a sua sponte obligation to do so because Venireperson No. 38 stated during
voir dire that he would automatically presume Gates to be guilty because he admitted
shooting the Victim.
"When the defendant is aware of facts which would sustain a challenge for cause,
he must present his challenge during the voir dire examination or prior to the swearing of
the jury[;] otherwise the point is waived." State v. Marr, 499 S.W.3d 367, 376 (Mo. App.
W.D. 2016) (quoting State v. Goble, 946 S.W.2d 16, 18 (Mo. App. S.D. 1997)). If, as here,
the defendant fails to make a timely and proper objection to a venireperson, the defendant
waives his right to challenge the venireperson. Id. "The policy for requiring a
contemporaneous objection is to minimize the incentive for sandbagging in hopes of an
acquittal and then, after an unfavorable verdict, challenge the selection of the jury which
convicted." Id. (quoting State v. Sumowski, 794 S.W.2d 643, 647 (Mo. banc 1990)).
Further, "[a] trial court is under no duty to strike a juror on its own motion," id. (quoting
Baumruk, 280 S.W.3d at 616), so that "[s]ua sponte action should be exercised only in
exceptional circumstances." Id. (quoting State v. Drewel, 835 S.W.2d 494, 498 (Mo. App.
E.D. 1992)). This case does not present an exceptional circumstance that required the trial
court to sua sponte strike a venireperson.
Venireperson No. 38 provided several answers to questions posed during voir dire
including: (i) he was on 39th Street, the street on which the mall is located, when police
responded to the scene on January 2, 2018, but he would be able to set aside that experience
when listening to the evidence; (ii) for three years, he had been a member of a
neighborhood watch group that collaborates with the Independence Police Department, but
46
he would be able to set aside that experience and his relationship with the police department
when listening to the evidence; (iii) he has a family member or close friend who has been
incarcerated, but there was nothing about that experience that he would hold against either
the State or the defense; and (iv) he believed that if Gates were truly innocent, the case
would not have gone this far, but that he could nonetheless presume Gates innocent until
proven guilty and would vote that Gates was not guilty if pressed to vote at that very
moment.
At some point during voir dire, the trial court and the parties reached the conclusion
that the jury did not understand the concept of felony murder. The trial court and the State
agreed to allow Gates's counsel to explain that the State had the burden to prove that the
murder of the Victim occurred during the commission of a robbery, and that there were
other elements in dispute beyond who shot the Victim that the jury would have to consider
in making that determination. Gates's counsel then specifically asked the venire whether
anyone would automatically presume Gates guilty because the defense conceded that Gates
shot the Victim. Several venirepersons, including Venireperson No. 38, raised their hands.
Gates's counsel asked follow up questions of members of the venire who raised their hands,
but did not do so with Venireperson No. 38. When defense counsel asked if anyone had
been missed with the follow up questions, Venireperson No. 38 did not raise his hand.
Neither the State nor Gates used a peremptory strike on Venireperson No. 38.
Neither the State nor Gates sought to strike Venireperson No. 38 for cause. After the forcause and peremptory strikes were completed, the trial court made a record identifying
47
which members of the venire would serve on the jury. The list included Venireperson No.
38.
Gates's counsel said, "Thirty-eight that we struck?" Both the trial court and the State
responded that they did not agree that Venireperson No. 38 had been struck. Gates's
counsel said, "I don't have 48 as struck. I said 38." Then the following conversation took
place:
Trial court: What are we going to do with Juror 48 supposed to be available,
didn't get picked, didn't get struck. [sic] Shall we skip it or seat 15?
Law clerk: Forty-eight is the one that has migraines and need[s] access to
medicine.
Trial court: I can strike her.
State: Let's just get rid of her for hardship.
Trial court: Let's do it again. Make sure you're with me.
Gates's counsel: Actually 38 I had struck because--never mind. Judge, 38
was struck because he said my client was already guilty. He presumed him
guilty.
State: Then I think he rehabilitated himself. I'm almost positive he did.
Trial court: I don't think I said anything about 38.
State: You cleared up that question. I think he rehabilitated himself because
[counsel] asked him numerous times: So as he sits here today you agree he's
presumed innocent and he kept saying, yes.
Gates's counsel: I have he said, presumed guilty. The follow-up I would have
done was, so you can't--
Trial court: Did anybody make a motion to strike 38?
State: No.
Trial court: Let's leave it sit where it is then?
48
Defense counsel: So we're keeping 38?
Trial court: Nobody struck him. We can go through it without revisiting it
over and over again. I think we can bring the jury in and we'll seat them.
The trial court seated Venireperson No. 38 on the jury as "Juror 14" of the twelve jurors
and two alternates.
A party may challenge a venireperson for cause after conviction, but the challenge
will only be considered for plain error resulting in a miscarriage of justice or manifest
injustice. Marr, 499 S.W.3d at 376. There is no basis to conclude that the trial court's
failure to strike Venireperson No. 38 for cause sua sponte resulted in a miscarriage of
justice or manifest injustice. "The fitness of a juror is considered in the context of the entire
examination of the juror and not by focusing on one response." Shockley v. State, 579
S.W.3d 881, 893 (Mo. banc 2019). While Gates's counsel failed to pose follow-up
questions to Venireperson No. 38 to clarify why he raised his hand in response to the
question that he would automatically presume Gates guilty because Gates admitted
shooting the Victim, when asked on four other occasions during voir dire, Venireperson
No. 38 confirmed that he would be able to set aside his experiences and follow the trial
court's instructions if chosen to serve on the jury. Given Venireperson No. 38's other
answers during voir dire, we cannot conclude that the trial court committed error, plain or
otherwise, in failing to strike Venireperson No. 38 for cause sua sponte.
Point Three is denied.
Outcome: The Judgment is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: