State v. Simino

• Decision Date: 05 April 2013
• Docket Number: No. SD 31829.,SD 31829.
• Citation: State v. Simino, 397 S.W.3d 11 (Mo. App. 2013)
• Parties: STATE of Missouri, Respondent, v. Kelly Robert SIMINO, Appellant.
• Court: Missouri Court of Appeals

397 S.W.3d 11

STATE of Missouri, Respondent,

v.Kelly Robert SIMINO, Appellant.

No. SD 31829.

Missouri Court of Appeals,

Southern District,

Division One.

April 5, 2013.

Emmett D. Queener, Columbia, MO, for Appellant.

Chris Koster, Attorney General and Timothy A. Blackwell, Assistant Attorney General, Jefferson City, MO, for Respondent.

WILLIAM W. FRANCIS, JR., J.

A jury convicted Kelly Robert Simino(“Simino”) of second-degree murder in the death of his girlfriend, Brandi Mathews(“Mathews”).Simino was sentenced to twenty years in the Missouri Department of Corrections(“DOC”) to run consecutive with any other sentences he was serving.This appeal followed.We affirm the trial court's judgment.

Factual and Procedural History

On January 5, 2011, the State filed a “Complaint and Request for a Warrant”(“Complaint”) in the Circuit Court of Miller County, Associate Division, against Simino charging him with second-degree murder, in violation of section 565.021,¹ for the death of Mathews.The Complaint alleged that Simino caused Mathews' death by “inflicting trauma upon her and striking her and choking her.”On January 6, 2011, Simino was arrested.

On February 22, 2011, Simino filed a handwritten pro se“Request Motion for Fast and Speedy Trial and Change of Venue.”

On April 11, 2011, the case was transferred to the Circuit Court of Miller County and the next day, attorney Keith Halcomb filed an “Entry of Appearance” on behalf of Simino.On April 21, 2011, an “Information” was filed, which repeated those allegations set out in the Complaint, and gave notice that the State would also submit murder in the second degree based on the death of Mathews as the result of the perpetration of the felony of domestic assault.

On May 4, 2011, Simino filed an “Application for Change of Venue” and the case was transferred to Laclede County on the same day.

On May 17, 2011, a judge was assigned in Laclede County, a pre-trial conference was scheduled for June 6, 2011, and a jury trial for June 27, 2011.On May 19, 2011, Simino filed for a change of judge.

Neither party appeared for the pre-trial conference on June 6, 2011, and the case was passed.On June 27, 2011, the request for change of judge was sustained, and a case review was scheduled for July 8, 2011.At the case review, a jury trial was set for August 8, 2011.The State did not attend the case review due to lack of notice and, therefore, was not present to advise the trial court of any conflicts with the August trial date.

After learning of the trial setting, the State began “the process of witness notification” and learned that Dr. Carl C. Stacy, M.D.(“Dr. Stacy”), the Chief Medical Examiner, was going to be out of the country and unavailable for trial on August 8, 2011.As a result, on July 25, 2011, the State filed a “Motion for Continuance” because Dr. Stacy was a necessary witness on the issues of victim remains identification, evidence of injury or damage to the body, and the cause and manner of death.Simino's counsel objected to the continuance because Simino had filed a speedy-trial request, and the State could have made arrangements for Dr. Stacy to be available.The State argued Simino's rightful request for change of venue and change of judge caused some delay in this case, Dr. Stacy's trip had been scheduled for over a year, he was a necessary witness, and Simino would not be prejudiced because he was already incarcerated in the DOC on unrelated charges.The trial court found that the State's witness was necessary to its case, that Simino would not be prejudiced by a continuance, and granted the State's motion.The trial court reset the case for jury trial on October 24, 2011.

At the pre-trial conference on September 8, 2011, Simino filed a “Motion to Dismiss.”²The motion was “heard and argued” and then denied by the trial court.On September 9, 2011, Simino also filed a “Motion to Dismiss with Prejudice for Lack of Jurisdiction.”

On October 11, 2011, at the pre-trial conference, the State filed a “Request for Leave to Endorse Additional Witnesses.”³Simino's counsel had no objection and the court sustained the motion.The following colloquy took place:

THE COURT: The State has filed today a second motion in limine as to several subjects as well as request for leave to endorse additional witnesses.Let's take up the request for leave to endorse additional witnesses.Any objection, [Simino's Counsel]?

[SIMINO'S COUNSEL]: No, Your Honor.

THE COURT: That motion is sustained.

The five-day jury trial was reset for October 24, 2011.On the morning of trial, prior to voir dire of the jury panel, Simino's counsel renewed his request for the court“to dismiss this cause based on the State's failure to prosecute outside of the 180–day time frame[.]”The trial court heard argument and overruled this motion.Simino's counsel then renewed the request for dismissal based on lack of jurisdiction, which was also overruled by the trial court.

On October 31, 2011, the last day of trial, the State filed a “First Amended Information” alleging the same acts and crimes, but with the additional language: “by inflicting trauma upon her and striking her and choking her and by means unknown, and the body of Brandi Mathews was found in the County of Miller, State of Missouri....”(Emphasis added).The First Amended Information listed new witnesses the State intended to call in addition to those listed on the Information filed on April 21, 2011.⁴

Simino was convicted based on circumstantial evidence.However, Simino does not challenge the sufficiency of the evidence to support his conviction.Therefore, we set forth only those facts from the trial necessary to address Simino's points.In doing so, we view the evidence in the light most favorable to the verdict.State v. Newberry,157 S.W.3d 387, 390(Mo.App. S.D.2005).

The evidence presented at trial showed that Simino and Mathews had a long-standing, tumultuous relationship beginning in the summer of 2004.Over the years, Simino and Mathews lived together, separated numerous times, and Mathews would return to Arkansas to live with her mother.Mathews' mother recounted numerous incidents where Simino would call looking for Mathews and when Mathews would not speak to, or agree to return to him, Simino would make threats to destroy Mathews' personal property and kill her dog.⁵

On two occurrences at motels, one in North Carolina, and one in Warrensburg, Missouri, the police were called and incident reports made.In North Carolina, Simino allegedly told Mathews, “I'm going to kill you and you're lucky that I don't beat your ass and leave you in this room.”When Mathews tried to leave, Simino hit her wrist, leaving a red mark.

The incident in Warrensburg began when Simino tried to engage in an argument with Mathews at her place of employment (“the club”), which resulted in Simino being told to leave the club by the manager.Simino later called the club and when the manager refused to let him speak to Mathews, Simino made threats to kill Mathews if she did not come with him.Because of Simino's threats, the manager made arrangements for Mathews to get a room at a nearby motel because she was living with Simino at the time.He also called the sheriff's department regarding Simino's threats.A deputy was dispatched to the motel and while there, Simino called the motel and the clerk gave the phone to the deputy.Simino told the deputy to put the call through to Mathews' room and when the deputy refused, Simino made threats to burn baby pictures of Mathews' child and said he had already burned her clothes.Later, a window on Mathews' car was found broken.

In early August 2006, Mathews and Simino were once again together when Mathews contacted the Eldon police department with information that she and Simino “would be coming into town at the local McDonald's around six o'clock with some cocaine.”Mathews asked that her name not be revealed because she was afraid Simino would kill her.The responding officer arrested Simino pursuant to an outstanding warrant on a traffic ticket and during that arrest, the officer found three small baggies of cocaine on Simino's person.After this incident, Mathews returned to her mother's home in Arkansas.Later, Simino called Mathews at her mother's home and said, “You F-ing bitch, you turned me in and set me up ... and I'm going to kill you.”

On August 16, 2006, Mathews filed an “Adult Abuse/Stalking Petition for Order of Protection”(“abuse petition”) against Simino.After being served in jail with the “Adult Abuse/Stalking Ex Parte Order of Protection”(“protection order”), Simino told a friend that “if he could get his hands on that bitch, he'd kill her.”The petition stated:

I was in an abusive relationship, I set him up w/ the [sic] police....When he's released he will come after me.

....

Dec. 05—padlocked me in house because I was trying to leave head butted me and gave me a concussion, refrained [sic] me from calling emergency services.

April 06 I tried to leave him in South Carolina.He chased me across North Carolina. found [sic] me tried to kidnap me and threatened to kill me.If it hadn't been for the lady at the desk I probably would have been dead.As he was escorting me out I screamed for help.He dragged me out the door and through the parking lot and finally let go.

August 06—Refrained [sic] me from going outside, using the phone.Told me if the cops showed up he'd be done w/ me [sic] before they got him and then they could take him on assault then.

During trial, the State offered Exhibit 10, a certified copy of the protection order with Mathews' verified abuse petition attached.The “return copy” of the protection order was already admitted into evidence.Simino's counsel objected on “foundation issues” to the handwritten abuse petition stating there was no proof the abuse petition was authored by Mathews other than what appeared to be her signature.The trial court...