Introduction

In early 2020 I was approached by the producers of a true-crime TV series, called “Exhumed,” which focused on cases involving the exhumation of buried bodies. The first episode of this series had as its subject the double-murder case of Doyle Kelley.[1] Kelley’s first wife, Diana, had been found dead in her car in a parking lot in Joplin, Mo.[2] An autopsy determined she had died of respiratory failure but the doctor could not determine if strangulation was the cause.[3] The following year Kelley married his second wife, Christy.[4] After they separated, Christy was found dead in the bathtub of her Joplin apartment.[5] Following Christy’s death, Diana’s body was exhumed for a second autopsy.[6] A different doctor performed autopsies on both bodies and concluded that Diana’s death had been caused by soft ligature strangulation.[7] Kelley was tried and convicted of two counts of murder in the first degree.[8]

Kelley’s prosecution was handled by the Special Prosecutions Unit of the Missouri Attorney General’s office. I joined the AG’s office myself not long after Kelley’s trial. I represented the State in Kelley’s motion for postconviction relief[9] and then on appeal before the Missouri Court of Appeals, Southern District. My involvement in the case prompted the producers of “Exhumed” to contact me, and I was interviewed on camera as part of the episode.

I was pleased to see the finished product, which I felt was a faithful and largely accurate retelling of the case. As the credits were beginning to run, however, the following message was displayed on a black screen:

IN 1997, DOYLE KELLEY’S MURDER CONVICTION

IN THE CHRISTY KELLEY CASE

WAS OVERTURNED ON A TECHNICALITY[10]

Two messages that followed explained that, in consultation with Christy’s family, the Attorney General’s office had decided not to retry that case, and that Kelley was still serving a life sentence without the possibility of parole for Diana’s murder.[11]

The second and third messages did not bother me, but one word in that first message – “technicality” – did, and still does. Kelley’s conviction for Christy’s murder was overturned because the Court of Appeals held that hearsay statements of the defendant had been improperly admitted into evidence.[12] Two witnesses, friends of Christy’s, had recounted statements that she had made about conversations she had with Kelley after the two had separated.[13] In these conversations, according to the witnesses, Kelley had said he would rather see her dead than with anybody else.[14]

This was far from a mere technical aspect of law and evidence but rather a hotly contested issue both at trial and on appeal. In a case that was largely circumstantial, evidence of the defendant's possible motive to commit murder was of crucial importance, a fact recognized by the Court of Appeals when the court held that the admission of the statements was prejudicial to Kelley and therefore warranted the reversal of his conviction for her murder.[15]

The reduction of these crucial issues (and by implication the efforts of the lawyers involved) to a single word was frustrating enough. I had spent some time talking to the producers about the appeal and why one of the convictions was overturned, so the failure to spend even a few seconds of airtime explaining the basis for the reversal seemed to be a missed opportunity.

There was another, less personal, reason why the “technicality” statement bothered me. Lawyers are familiar with the tendency of lay people, especially in the news media, to use “technicality” as a way of announcing that a court did something that’s a bit hard to understand or challenging to explain, as a way in part of excusing the resulting lack of effort in trying to explain it. Lawyers are equally aware that what non-lawyers call “technicalities” are how we lawyers make our living. We know that many cases turn on what might otherwise be perceived as small matters of evidence, fact or law and that such details can be the difference between winning and losing for our clients.

To illustrate this principle, this article will discuss several recent Missouri decisions in which seemingly small details made a big difference in the outcome, with the hope of providing insight on how to take advantage of “technicalities” that can help you, or how to avoid them so that they don’t hurt you.

A Cautionary Note (Or, the Appellate Lawyer’s Lament)

Any experienced appellate lawyer knows that the record of the case, presented to the appellate court, sets very firm boundaries around the court’s consideration. There is seldom any way to supplement the record beyond what was created in the court below. Much of what follows, therefore, is addressed to trial lawyers (in the form of, for example, reminders about the importance of making proper, timely objections or otherwise properly preserving claims for appeal). Appellate lawyers, by contrast, will inevitably discover that certain claims or arguments are foreclosed on appeal because they were not properly raised at the trial level. Lawyers on the respondent’s side, of course, can take advantage of a failure to preserve an error that otherwise might have been decisive. Even though a “technicality” at trial can lead to a successful appeal, if that issue is not recognized and properly preserved at trial the chances of success on appeal are reduced (if not completely eliminated).

Don’t Count on Plain Error

Here are two cases, each containing an allegation of error that was not properly preserved. Different courts were involved in each case. One court granted plain error review and reversed the judgment, while the other court declined to do so.

In State v. Schmidt, the Missouri Court of Appeals, Eastern District, considered statements in which three witnesses (all of whom were family members of defendant) testified that the defendant had confessed to them that he had killed the victim.[16] Each witness was asked by the prosecutor whether they believed defendant was telling the truth when he made those statements, and each witness answered affirmatively.[17] No objection was made to the statements in general, nor to the particular questions (and resulting testimony) about whether the witness believed the defendant’s statements.[18]

The Eastern District granted plain error review and held that, although the statements themselves were properly admitted, it was error to allow the witnesses to provide their opinion as to the defendant’s credibility.[19] In holding that the admission of these opinions had a “decisive effect on the outcome of the proceedings to amount to manifest injustice or a miscarriage of justice,”[20] the court observed that these statements were the only evidence connecting the defendant to the murder, and that it was crucial to the State’s case for the jury not only to believe the defendant had made the statements but also to believe that the statements were true.[21] Accordingly, the opinions on the truth of the statements, held by the court to be improper lay witness opinion, were also held to have had a decisive effect on the outcome of the trial.

Plain error review went the other way in Petersen v. State, in which a defendant, convicted of driving while intoxicated, claimed that the trial judge had erred in overruling his pretrial motions challenging the admissibility of the results of a breath test.[22] At trial the only objection raised by the defendant’s counsel was a general objection “based on previous arguments on lack of foundation and improper procedure.”[23] As the Supreme Court observed: “Upon review, it is unknown what foundational element, procedural requirement, or other objection was challenged.”[24] The failure to preserve the claim of error was compounded on appeal by the appellant’s failure to request plain error review.[25] The Supreme Court declined to use its discretion to review for plain error and affirmed the conviction.[26]

Considered together, these cases provide a few lessons for the practitioner. They reinforce the principle that plain error review is a matter of discretion for the appellate court.[27] If a claim of error is improperly preserved at trial, you are leaving to chance the possibility that this claim will be reviewed on appeal. The unpredictability of plain error review is illustrated by the fact that in both cases, the evidence was crucial to the outcome of the trial, and yet only one appellant received plain error review (and won a reversal).

These cases demonstrate another possible pitfall for the appellate lawyer, who must recognize the lack of preservation, acknowledge it to the court, and request plain error review. If you don’t ask for it, chances are good that you won’t receive it. And if you think the respondent won’t identify the lack of preservation, think again.

Procedural Requirements May Be Technical But Ignore Them at Your Peril

The plaintiffs in Lang v. Goldsworthy voluntarily dismissed their action against three health care providers, which upon filing had been accompanied by an affidavit from a separate health care provider pursuant to Section 538.225, RSMo; more than two years they refiled an identical lawsuit without the required affidavit.[28] The defendants moved to dismiss based on the absence of the affidavit.[29] The plaintiffs acknowledged the failure to provide the affidavit but claimed that Section 538.225 was unconstitutional.[30] That argument proved unsuccessful, and the trial court dismissed the action.

On appeal, the Supreme Court did not reach the constitutional issue, observing instead that the plaintiffs’ filing of the affidavit in their first suit demonstrated that they were aware of the requirements of the statute.[31] All that was necessary to avoid dismissal of the second action, the court noted, was to staple the affidavit from the first petition to the second.[32] “It was plaintiffs’ own inaction that prevented them from being able to pursue their second suit.”[33] The lesson here is that it’s hard to argue that you shouldn’t have to follow a rule if you’ve already complied with it once.

In State ex rel. Vacation Management Solutions v. Moriarty, the defendant in the underlying action had filed a motion to dismiss and a motion to transfer venue, arguing that the proper venue was not in St. Louis city, where it was filed, but either Warren County or St. Charles County.[34] The plaintiff failed to reply to this motion.[35] Nevertheless the trial court denied the motion, and the defendant sought a writ of mandamus.[36] Rule 51.045(c) states that if no reply is filed to a motion for change of venue, the trial court “shall order transfer to one of the counties stated in the motion.”[37] In this case, both the plaintiff and the trial court failed to follow the requirements of the rule. Nevertheless, when a rule clearly dictates a certain result if a reply to a motion isn’t filed, a party should be prepared to lose the motion – on appeal even if they win it at trial – if they don’t respond accordingly.

Technical or Not, Bad Facts are Bad Facts

Officers in Pulaski County, investigating a case of child abuse or neglect, obtained a search warrant for the phone of James Bales, the target of the investigation.[38] The warrant described the phone with only minimal detail, but specifically said it would be located at a certain address.[39] Before the warrant could be served, Bales came to the police station with his lawyer and the phone.[40] A detective informed Bales and his lawyer that he had a warrant for the phone and seized it.[41] Police used evidence found on the phone to apply for a second search warrant.[42]

In subsequent litigation challenging the warrants, Bales argued that the first search warrant did not authorize the seizure of the phone because it had been seized at a location other than the one specified in the warrant.[43] The trial court found that the warrant had not described the phone with sufficient particularity and that the warrant was therefore deficient. On appeal, the Supreme Court, relying in part on the principle that a circuit court’s order will be upheld if it reaches the right result for the wrong reason, affirmed the trial court’s ruling based on the phone’s having been seized at the police station, which was not the location specified in the search warrant.[44]

This case illustrates the basic principle that the facts of the case don’t change on appeal; if they go against you there’s not much you can do. In rejecting dismissing the state’s argument that the warrant was valid because the phone was inherently moveable, the Bales court noted that the state had raised this argument for the first time on appeal (and therefore was not preserved and need not be addressed).[45] The court still ruled on the merits and found the argument lacking. [46]

A case with similarly challenging facts that was resolved in the state’s favor is State ex rel. Garrabant v. Holden, in which a married couple had been accused of several charges relating to the death of their minor daughter.[47] Prior to her arrest on these charges, the wife had met with an investigator and legal assistant for the state public defender’s office, after having established an attorney-client relationship with the office, and unbeknownst to the other participants, made an audio recording of that meeting.[48] She then gave an unsealed box of her belongings, including the recording of the meeting, to her husband before embarking on what the Supreme Court called “an over-the-road truck driving trip.”[49] The husband, unaware of the recording’s existence or that it was inside the box, left the box in his parents’ house for approximately two years before opening it and discovering the recording.[50] He discovered that it contained incriminating statements by his wife and turned it over to the county sheriff's office.[51] The state’s motion in limine, seeking a ruling on whether the recording could be used at trial, was denied on grounds of attorney-client privileges, and the state filed writ petitions with the Southern District and then the Supreme Court.

The Supreme Court granted the writ petition, finding that although an attorney-client privilege attached to the recording, the wife had waived that privilege by giving the recording to her husband voluntarily, with no direction that he keep the box or its contents secret or private.[52] The court rejected an argument that the common-interest doctrine applied to the case, noting that the wife had not given the recording to her husband in support of a joint defense, but merely to store it while she was away.[53] Here again, the facts of this case proved decisive, particularly the absence of any evidence that the surrender of the recording was not voluntary. Once those facts were a matter of record on appeal there was little to be done by the attorney arguing that the privilege should be upheld.

Conclusion

While those outside our profession might reduce crucial issues to mere “technicalities,” trial and appellate lawyers alike should be mindful that even the smallest of matters can make a huge difference in the outcome of a case.

Lawyers appealing a judgment should be prepared to identify these pitfalls (and hope that they are not being identified for the first time on appeal). If so, candor with the court is essential. Acknowledge the issue and the lack of preservation, request plain error review, and hope for the best.

Respondents’ attorneys should be ever vigilant for matters of preservation, no matter how “technical,” and bring them to the court’s attention, while still being prepared to argue the merits of the case if the court reaches that issue.