State v. Tisius

• Decision Date: 01 May 2012
• Docket Number: No. SC 91209.,SC 91209.
• Citation: 362 S.W.3d 398
• Parties: STATE of Missouri, Respondent, v. Michael Andrew TISIUS, Appellant.
• Court: Missouri Supreme Court

362 S.W.3d 398

STATE of Missouri, Respondent,

v.Michael Andrew TISIUS, Appellant.

No. SC 91209.

Supreme Court of Missouri, En Banc.

March 6, 2012.Rehearing Denied May 1, 2012.

Jeannie Willibey, Public Defender's Office, Kansas City, for Tisius.

Richard Starnes, Attorney General's Office, Jefferson City, for State.

GEORGE W. DRAPER, III, Judge.

Introduction and Procedural History

Michael A. Tisius (hereinafter, “Tisius”) was convicted of two counts of first-degree murder, section 565.020, RSMo 2000,¹ for killing Jason Acton (hereinafter, “Officer Acton”) and Leon Egley (hereinafter, “Officer Egley”). This Court affirmed Tisius' convictions and sentence. State v. Tisius, 92 S.W.3d 751 (Mo. banc 2002) (“ Tisius I ”). Tisius filed a motion for post-conviction relief pursuant to Rule 29.15; the circuit court affirmed the convictions but set aside the sentences, ordering a new sentencing trial. This Court affirmed the circuit court's denial of post-conviction claims related to the guilt phase. Tisius v. State, 183 S.W.3d 207 (Mo. banc 2006) (“ Tisius II ”).

At the penalty phase retrial, Tisius again was sentenced to death. Tisius brings this appeal, raising seven issues. This Court has exclusive jurisdiction pursuant to Mo. Const. art. V, sec. 3. The judgment is affirmed.

Point One: Allegations in the Complaint were Hearsay and Irrelevant

Tisius argues the circuit court abused its discretion in overruling his objection to the admission of State's Exhibit 53, the certified court record of the complaint of Tisius' conviction for possession of a prohibited item in the department of corrections. Tisius asserts the complaint was not admissible pursuant to section 565.030 because: (1) the complaint was inadmissible hearsay; (2) he was denied his right to confront and cross-examine the person who determined the prohibited item to be a “boot shank”; and (3) the complaint was not relevant as it failed to prove specific conduct that he committed. Tisius believes that without this evidence, the jury would have sentenced him to life without parole.

Near the end of trial, the State informed the court it intended to offer the certified copy of Tisius' conviction of possessing a prohibited item in the department of corrections. The State sought to read the docket entry showing Tisius entered an Alford plea ², the complaint to establish the basis of the crime, and his sentence. Tisius objected to the portion of the complaint stating he “knowingly possessed a metal object known as a boot shank, a weapon or item [of] personal property that could be used in such manner” as hearsay. The circuit court permitted the State to read the complaint up to the point that it said Tisius was charged with knowingly possessing a metal object “commonly known as a boot shank.”

Standard of Review

Generally, the circuit court is vested with broad discretion to admit or exclude evidence. State v. Bowman, 337 S.W.3d 679, 686 (Mo. banc 2011). “Reversal is warranted only if the error was so prejudicial that it deprived the defendant of a fair trial.” Id. The standard of review for publishing evidence to the jury also is an abuse of discretion. State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc 2009). However, Tisius only preserved his challenge to the admission of the complaint for hearsay.

Tisius failed to object to the admission of the complaint on the grounds that it violated his confrontation rights or that it was irrelevant. “To properly preserve an issue for an appeal, a timely objection must be made during trial.” State v. Cooper, 336 S.W.3d 212, 214 (Mo.App. E.D.2011) (citing State v. Mayes, 63 S.W.3d 615, 628 (Mo. banc 2001)). The objection at trial must be specific, and on appeal, the same grounds must be relied upon. State v. Rasheed, 340 S.W.3d 280, 287 (Mo.App. E.D.2011); State v. Moore, 303 S.W.3d 515, 522–23 (Mo. banc 2010). To preserve constitutional claims or errors for appellate review, they must be raised at the first opportunity with citations to specific constitutional sections. State v. Minner, 311 S.W.3d 313, 319 (Mo.App. W.D.2010) (citing State v. Chambers, 891 S.W.2d 93, 103–04 (Mo. banc 1994)). On appeal, a defendant may not broaden the objection presented to the circuit court. Minner, 311 S.W.3d at 319. Accordingly, Tisius' challenge to the admission of the complaint on the grounds that it violated his confrontation rights and was irrelevant only can be reviewed for plain error. Rule 30.20. “Plain error is found when the alleged error ‘facially establish[es] substantial grounds for believing a manifest injustice or miscarriage of justice occurred.’ ” State v. Dorsey, 318 S.W.3d 648, 652 (Mo. banc 2010) (quoting State v. Salter, 250 S.W.3d 705, 713 (Mo. banc 2008)).

Analysis

(1) Hearsay

“A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and that depends upon the veracity of the statement for its value.” State v. Winfrey, 337 S.W.3d 1, 6 (Mo. banc 2011) (quoting State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997)). A hearsay statement is inadmissible unless it is a recognized hearsay exception. Id., Taylor, 298 S.W.3d at 492.

In this case, the complaint was admissible as a recognized hearsay exception as a certified record of a judicial proceeding. Section 490.130 provides that certified records of the courts shall be received “as evidence of the acts or proceedings of such court in any court of this state.” The circuit court did not abuse its discretion in admitting the certified record of a prior judicial proceeding as an exception to the hearsay rule.

(2) Confrontation Clause

The Sixth Amendment Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington, the United States Supreme Court held that the Confrontation Clause prohibits the “admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). It is the testimonial nature of a statement that makes a declarant a “witness” that the defendant has the right to confront. Id. at 51, 124 S.Ct. 1354.

When the primary purpose of a statement is to establish or prove past events that could be potentially relevant to later criminal prosecution, it may be considered testimonial. Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); see also Zink v. State, 278 S.W.3d 170, 189–90 (Mo. banc 2009). While the complaint was prepared to instigate litigation, it was not created to preserve evidence. Cf. State v. Davidson, 242 S.W.3d 409, 417 (Mo.App. E.D.2007) (finding the preparation of an autopsy report qualified as a “testimonial statement”), and State v. March, 216 S.W.3d 663, 667 (Mo. banc 2007) (finding a laboratory report created for the purpose of prosecution is testimonial in nature). United States v. Weiland, 420 F.3d 1062, 1077 (9th Cir.2005). If Tisius wanted to confront the evidence against him in the complaint, he would have needed to not plead guilty to the charge. Accordingly, there was no manifest injustice by the circuit court's admission of State's Exhibit 53.

(3) Relevance

Tisius asserts the complaint was irrelevant and did not prove his actual conduct underlying the criminal conviction for possession of the prohibited article. Tisius reasons its admission was prejudicial, citing State v. Fassero, 256 S.W.3d 109 (Mo. banc 2008).

“In a death penalty trial, the defendant's character and prior record are central issues of the penalty phase.” State v. Williams, 97 S.W.3d 462, 470 (Mo. banc 2003). Both the State and the defense may introduce any evidence relating to the defendant's character, including details of prior convictions and subsequent conduct to the crime being adjudicated. Bowman, 337 S.W.3d at 691.

In Fassero, the State introduced the defendant's Illinois indictment, but it never introduced any evidence demonstrating the defendant committed the criminal sexual abuse acts described in the indictment. Fassero, 256 S.W.3d at 119. This Court found that the indictment was relevant “only to prove that [the defendant] had been charged with a crime, not that [the defendant] had actually engaged in any criminal conduct.” Id. The indictment was inadmissible because it was not authorized “history and character” evidence. Id.; section 557.036.3. The highly inflammatory nature of the sexual abuse charges, the similarity to his charged crime, and the lengthy sentence imposed by the jury indicated the admission of the indictment resulted in a high risk of prejudice. Id. Accordingly, Fassero's sentence was vacated, and the case was remanded for a new penalty phase hearing. Id.

While Fassero had not been convicted of the crimes set forth in the Illinois indictment, Tisius pleaded guilty to the complaint that the State admitted. The circuit court did not plainly err in admitting Tisius' prior conviction into evidence as this was relevant to his character. Middleton v. State, 80 S.W.3d 799, 811 (Mo. banc 2002); State v. Cole, 71 S.W.3d 163, 175 (Mo. banc 2002).

Point Two: Improper Cross–Examination of Defense Expert

Tisius asserts the circuit court abused its discretion and plainly erred in overruling his objections to the State's cross-examination of his expert, Dr. Shirley Taylor (hereinafter, “Dr. Taylor”). Tisius believes the State referred to irrelevant and prejudicial information and did not lay a foundation for his questions by: (1) questioning Dr. Taylor about facts in a book by David Pelzer without demonstrating it was an authoritative scientific text; (2) questioning Dr. Taylor about the Rosenhan study (hereinafter, “the study”) without demonstrating it was an authoritative scientific text; and (3) telling the jury that Tisius did not...