State v. Love

• Decision Date: 25 November 1997
• Docket Number: No. WD,WD
• Citation: 963 S.W.2d 236
• Parties: STATE of Missouri, Respondent, v. Steven LOVE, Appellant. 51311.
• Court: Missouri Court of Appeals

Page 236

963 S.W.2d 236

STATE of Missouri, Respondent, v. Steven LOVE, Appellant.

No. WD 51311.

Missouri Court of Appeals Western District.

Nov. 25, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 27, 1998.

Application for Transfer Denied

March 24, 1998.

Rebecca L. Kurz, Asst. Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before SMART, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Appellant Steven Love appeals his convictions for first degree murder, kidnapping, forcible rape, and armed criminal action. He alleges various errors by the trial court in limiting the defense's DNA expert from presenting certain exhibits and from testifying concerning the results of her alternative methodology of analyzing DNA evidence. He also asserts error in permitting the State to impeach her credibility by presenting evidence of her bills for testifying in other cases. We find the court's rulings to be well within its discretion in controlling the admission of expert testimony. We also reject Mr. Love's challenges to the sufficiency of the evidence. There was more than adequate evidence that he kidnapped, raped, and killed the victim. We similarly find no plain error in the admission of certain hearsay testimony and certain testimony relating to the credibility of Mr. Love's expert, none of which testimony was objected to by defense counsel. Finally, we consider and reject Mr. Love's claim that his counsel was ineffective in failing to object to certain hearsay testimony of one of the police officers and that, therefore, the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing. Mr. Love cannot turn unpreserved error into reversible error by arguing incompetence of counsel. For all of these reasons, we affirm the conviction and affirm denial of Mr. Love's post-conviction motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of October 26, 1992, Christine Field and Ruth Kindermann spent the evening watching rented videos at Jamie McKim's house in Kansas City. At approximately 3:30 a.m. on the morning of October 27, 1992, Ms. Field and Ms. Kindermann decided to leave and go back to Ms. Field's house. Ms. Field led the way in her car, and Ms. Kindermann followed in her burgundy 1986 Pontiac Grand Am.

When they reached the intersection of 43rd and Oak Streets, Ms. Field noticed a man standing on the corner. She described him as a black male with a dark complexion, approximately five feet eight inches to five feet ten inches tall, about 160 pounds, and with shoulder length hair in Jerri curls. The man was wearing a black baseball cap, a tan jacket with a band around the collar and an elastic waistband, and a beaded necklace tied in "a knot or an X at the bottom." Ms. Field waved for the man to cross the street, but he signaled her to continue through the intersection. As Ms. Field drove down the hill, she looked in her rearview mirror and saw a person walking though the headlights of Ms. Kindermann's car. Once she turned the corner, Ms. Field could no longer see the intersection where Ms. Kindermann's car was stopped.

Ms. Field finished driving the twelve blocks to her house. Ms. Kindermann was no longer directly behind her, but Ms. Field assumed she was following, so she went inside and started getting ready for bed. When Ms. Kindermann failed to arrive at the house for some minutes, Ms. Field became worried and called Mr. McKim to see if Ms. Kindermann had returned to his house. When told that Ms. Kindermann was not there, Ms. Field drove around the area looking for her, without success. Ms. Field again called Mr. McKim, but he still had not heard from Ms. Kindermann. Ms. Field then drove to Ms. Kindermann's father's house in Overland Park, Kansas, to look for Ms. Kindermann, but she was not there. Ms. Field went home and called Mr. McKim a third time looking for Ms. Kindermann, but to no avail. Eventually, Ms. Field called the police. She was told to call back later, and after calling a second time, Ms. Field went to the police station to make a report.

Sometime after dawn that morning, Brenda Canady, who lived at 5240 Olive Street, noticed a car with out-of-state license plates parked in the alley near her home when she left to take her husband to work. When she returned home about twenty minutes later, the car was still in the alley, so Ms. Canady decided to call the police to report it as stolen. Approaching the car, she saw what she believed was a pile of clothing lying to the left of the car. As she got nearer, she realized that it was a blood-covered body. She ran back to her house and called the police.

The police arrived and determined that the car in the alley was registered to Ms. Kindermann. Ms. Kindermann's body had five gunshot wounds and was found not far from the car. She was not wearing her blouse, and her jeans were unzipped and missing a button. Police also found a baseball cap, cigarette butts, and four nine millimeter shell casings at the crime scene. Vaginal swabs taken from the victim's body revealed the presence of spermatozoa.

On November 24, 1992, the TIPS hotline received an anonymous phone call that Steven Love had been involved in the murder. For various reasons, police did not investigate this tip until several months later. At that point, Mr. Love came to police headquarters for an interview. He first told police that he had never seen Ms. Kindermann before and had never been to the place where her body was found. The police obtained a sample of Mr. Love's hair so they could eliminate him as a suspect. Mr. Love subsequently told police that he had been to the place where Ms. Kindermann's body was found. He also stated that he "knew all about the homicide" but did not want to say anything. Officers placed Mr. Love under arrest and obtained a sample of his blood. Police also obtained a photograph of Mr. Love wearing a necklace with a large medallion pendant.

Ms. Field told police that the pendant in the photograph looked similar to the pendant she saw on the man at the intersection on the night of Ms. Kindermann's murder. DNA testing revealed that the sperm samples taken from the victim's body, as well as saliva found on one of the cigarette butts, matched Mr. Love's DNA. Testing also revealed that hair recovered from the baseball cap found at the scene was indistinguishable from Mr. Love's hair.

Mr. Love was charged by indictment with first degree murder, forcible rape, kidnapping, and three counts of armed criminal action. The jury convicted Mr. Love on all counts. The trial judge sentenced Mr. Love to consecutive terms of life without the possibility of parole for first degree murder, life for rape, fifteen years for kidnapping, and life for each count of armed criminal action. Mr. Love filed a timely notice of appeal.

Mr. Love subsequently filed a pro se Rule 29.15 motion for post-conviction relief. Appointed counsel filed an amended motion alleging that Mr. Love's trial counsel was ineffective in, inter alia, failing to object to Detective George Barrios's testimony regarding the anonymous phone call implicating Mr. Love and in failing to object when the prosecutor mentioned this call during closing argument. The motion court denied Mr. Love's motion without an evidentiary hearing. Mr. Love also appeals this ruling.

II. ADMISSIBILITY OF DNA EXHIBITS

As his first point on appeal, Mr. Love claims that the trial court abused its discretion in excluding graphs prepared by his expert witness, Dr. Diane Lavett, and in prohibiting Dr. Lavett from testifying regarding these exhibits. The graphs depicted Dr. Lavett's use of a type of light meter called a "densitometer" to measure autoradiograms. Autoradiograms are pieces of x-ray film that have been exposed to radioactive DNA and represent the location of particular portions of DNA. Dr. Lavett attempted to use her graphs to explain her belief that Mr. Love's DNA did not match the DNA obtained from the victim.

The admissibility of expert testimony is left to the sound discretion of the trial court and will not be reversed on appeal unless there is a clear abuse of discretion. State v. Davis, 814 S.W.2d 593, 603 (Mo. banc 1991), cert. denied, 502 U.S. 1047, 112 S.Ct 911, 116 L.Ed.2d 812 (1992); State v. Sloan, 912 S.W.2d 592, 596 (Mo.App.1995). The trial court abuses its discretion only when its ruling is "clearly against the logic of the circumstances or when it is arbitrary and unreasonable." State v. Williams, 828 S.W.2d 894, 899 (Mo.App.1992) (quoting State v. Corpier, 793 S.W.2d 430, 441 (Mo.App.1990)).

Prior to Dr. Lavett's testimony, the State filed a motion to conduct a voir dire examination of the doctor. After preliminary questioning by defense counsel to establish Dr. Lavett's qualifications, the State cross-examined her. At the conclusion of this cross-examination, the State asked the court to preclude Dr. Lavett from testifying regarding any forensic testing of DNA samples because she had no forensic experience. Defense counsel argued that this should go to the weight and not the admissibility of her testimony.

The trial judge ruled that Dr. Lavett was not qualified to testify in the area of forensic work and should not be allowed to criticize the lab work done by the State's experts, but stated he would not prohibit Dr. Lavett from giving other testimony about her DNA analysis at that point, and would consider the State's objection to this other testimony when he knew exactly what kind of testimony Dr. Lavett was going to give in light of his rulings.

Dr. Lavett then proceeded to testify before the jury. The State repeatedly objected during the course of Dr. Lavett's testimony. When Dr. Lavett began explaining the phenomenon known as band shifting, the State objected that she was testifying regarding the...