State v. Graves
| Decision Date | 23 March 2021 |
| Docket Number | No. ED 108768,ED 108768 |
| Citation | 619 S.W.3d 570 |
| Parties | STATE of Missouri, Respondent, v. Brian R. GRAVES, Appellant. |
| Court | Missouri Court of Appeals |
FOR APPELLANT: Ellen H. Flottman, 1000 West Nifong Blvd., Building 7, Suite 100, Columbia, Missouri 65203.
FOR RESPONDENT: Gregory L. Barnes, Eric Schmitt, P.O. Box 899, Jefferson City, Missouri 65102.
Brian Graves appeals the judgment entered upon a jury verdict reached in the Circuit Court of St. Louis County convicting him of two counts of the class D felony of abuse of a child. On appeal, Graves argues the trial court abused its discretion (1) by overruling his motion for a mistrial, and (2) by refusing to give an advisory opinion on the evidentiary impact of an expert's report Graves considered offering. Finding no error, we affirm.
On January 29, 2016, Graves brought his 8-week-old baby to Children's Hospital in the City of St. Louis and told the hospital staff he noticed an injury to the infant's arm after he dropped the infant on the kitchen floor. Upon examination and radiographic studies, hospital personnel determined that the infant sustained approximately 30 fractures including 2 skull fractures
, 13 broken ribs, multiple fractures of each limb, vertebrae fractures, and a broken pelvic bone. Finding these injuries to be inconsistent with Graves's story, they contacted police who arrested Graves.
The next day at the Florissant, Missouri police department, Graves was mirandized and then interviewed by Detectives Reiland and Coder for several hours. The interview was videotaped. Graves confessed to shaking the baby on multiple occasions over several weeks. The State charged Graves with five counts of felony abuse of a child.
Prior to trial, Graves filed a motion in limine to preclude all evidence of a 2013 accusation against Graves that he abused his daughter which was never prosecuted. The trial court ruled the 2013 incident would not be admitted unless the defense opened the door by asserting the baby's injuries were the result of a mistake or an accident.
At trial, during the State's case-in-chief, the January 30, 2016 recording of the detectives' interview of Graves was admitted into evidence and played for the jury. Since during that interview Graves was questioned multiple times about the 2013 accusation, the State agreed to redact those references from the videotape and from the transcript of the recording in accord with the trial court's ruling. However, the State failed to remove all of the 2013 references and the following exchange was played to the jury:
At that point, the prosecutor stopped the video and the trial court and counsel conferred on the matter outside the hearing of the jury. The prosecutor represented that the failure to redact the reference to the 2013 circumstance was an inadvertent mistake. Then, after the prosecutor noted that he previously provided to defense counsel the redacted transcript,1 defense counsel stated: "and which I did check, and we didn't (sic ) note that four times, I mean, at this point I think we have got to request a mistrial based on the previous ruling." The redacted videotape and transcript referenced the 2013 allegations a total of four times though only the foregoing one was actually played as the others occurred later in the interview.
The trial court denied Graves's request for a mistrial. The court explained that the video was stopped prior to "the explanation about the wife not wanting the children left with him while she was not there," and ruled that "the mere mention of 2013 in and of itself" was insufficient "for the jurors to have any understanding of what that was about."
The later references to the 2013 events were removed from the jurors’ copies of the transcript and the rest of the redacted video was played with the audio muted during the portions in which the 2013 allegations of past abuse were discussed.
After the State rested, the defense called an expert witness, Dr. Jane Turner, a forensic pathologist with a focus on unexplained pediatric deaths. Dr. Turner opined based on her review of the infant victim's medical records that the treating doctor failed to adequately rule out vitamin D deficiency, rickets, or osteomalacia
as possible causes of the injuries. She based her theory on the lack of bruising and swelling near the area of the fractures, the victim's elevated parathyroid hormone and alkaline phosphatase levels, the diagnosis of congenital glaucoma, a failed hearing test, and the victim's poor growth rate. Dr. Turner further testified that based on her review of the medical records, police reports, interviews, and photos, it was her opinion that the infant had a genetic disorder and was not the victim of severe trauma.
At that point, Graves's counsel requested a sidebar conference outside the hearing of the jury concerning Dr. Turner's written report which had not yet been offered into evidence. Defense counsel asked the court if offering Dr. Turner's full report would open the door to the 2013 alleged abuse in light of the court's earlier ruling that evidence of the 2013 incident was not admissible unless Graves opened the door by arguing mistake or accident. The trial court indicated it would rule whether the door was opened if Graves offered the report into evidence. If the report was not being offered, the court explained that providing a preliminary ruling on the matter would constitute improper guidance and that the court's review of the expert's report in its entirety would be an inappropriate use of the jurors' time. Graves did not move to admit Dr. Turner's report into evidence.2
The jury found Graves guilty of two counts of the class D felony of abuse of a child, a lesser-included-offense of the original charges, and not guilty of the other three charges of abuse of a child. The trial court sentenced Graves to 7 years in prison on each of the two counts, to be served concurrently.
The decision to grant or deny a mistrial is a matter within the sound discretion of the trial court. State v. Witte , 37 S.W.3d 378, 383 (Mo. App. S.D. 2001) ; State v. Jones , 921 S.W.2d 28, 32 (Mo. App. W.D. 1996). The decision should be honored by the appellate courts unless there is a clear showing in the record that the trial court abused its discretion. Witte , 37 S.W.3d at 383.
The decision to admit or exclude evidence at trial is a matter within the sound discretion of the trial court. State v. Blurton , 484 S.W.3d 758, 769 (Mo. banc 2016). In Blurton, the Missouri Supreme Court described our standard of review in this context as follows:
Graves argues the trial court abused its discretion by denying his motion for mistrial after his video-recorded police interview was played at trial and included a reference to a previous allegation of child abuse - a prior uncharged crime - that the court had ordered excluded and which should have been redacted from the videotape.
A mistrial is a drastic remedy that should be granted only in extraordinary circumstances. State v. Smith , 934 S.W.2d 318, 320 (Mo. App. W.D. 1996). A circuit court's denial of a mistrial is reviewed for a "manifest abuse of discretion." Spence v. BNSF Ry. Co. , 547 S.W.3d 769, 780 (Mo. banc 2018). "To establish a manifest abuse, there must be a grievous error where prejudice otherwise cannot be removed." Sherrer v. Boston Scientific Corporation , 609 S.W.3d 697, 705 (Mo. banc 2020) (citing St. Louis Univ. v. Geary , 321 S.W.3d 282, 293 (Mo. banc 2009) ).
As a general rule, evidence of other crimes is inadmissible if it is offered to show that a defendant is a person of bad character or has a propensity to commit crimes. State v. Conley , 873 S.W.2d 233, 236 (Mo. banc 1994). However, "[v]ague and indefinite references to misconduct do not warrant a mistrial unless the reference is clear evidence of the defendant's involvement in another crime." State v. Turner , 367 S.W.3d 183, 188 (Mo. App. S.D. 2012).
The trial court is in the best position to determine whether prejudice resulted. Id. Courts have developed the following five-factor balancing test to analyze the prejudicial effect of uninvited evidence of other crimes:
1) whether the statement was, in fact, voluntary and unresponsive [to the prosecutor's questioning if the prosecutor asked the question] ... or whether the...
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