                                         In the
                        Missouri Court of Appeals
                                 Western District
 STATE OF MISSOURI,                          )
                                             )
               Respondent,                   )   WD81233
                                             )
 v.                                          )   OPINION FILED: April 30, 2019
                                             )
 TEDDY CHARLES HAMMER,                       )
                                             )
                Appellant.                   )

              Appeal from the Circuit Court of Saline County, Missouri
                        The Honorable Dennis A. Rolf, Judge

Before Special Division: Edward R. Ardini, Jr., Presiding Judge, Mark D. Pfeiffer, Judge
                              and Gary D. Witt, Judge


       Appellant, Teddy Hammer ("Hammer"), was charged in Saline County with two

counts of sexual misconduct involving a child less than 15 years of age. Prior to trial

Hammer signed a deferred prosecution agreement under which the State would not

prosecute Hammer but under which Hammer admitted his guilt to certain offenses and

provided that, should Hammer fail to comply with the terms of the agreement, he waived

his right to certain defenses at any future trial. Following the State's determination that

Hammer was not compliant with the terms of the agreement, the State refiled the charges

and the case proceeded to trial. A jury found Hammer guilty of one count of sexual
misconduct involving a child by indecent exposure and one count of sexual misconduct in

the second degree. The court sentenced Hammer as a prior and persistent offender to seven

years in the Department of Corrections and six months in the county jail on the two charges

respectively. In his sole point on appeal, Hammer alleges that the court erred in enforcing

the deferred prosecution agreement and prohibiting him from offering evidence to support

the defenses of mental disease or defect or diminished capacity at trial. We affirm.

                                             Factual Background

         On July 10, 2012, Hammer, a 52-year-old male, was living in an apartment complex

in Slater, Missouri. All the alleged victims in this crime were other residents of the

apartment complex. E.L.1 testified that around 9:30 p.m. her entire family was in bed

asleep, when E.L. believed she heard a knocking sound. Her three-year-old daughter, B.L,

came to E.L. and said "Mom, Ted's knocking on my window." E.L. then heard a loud

knock at the front door. They opened the front door and found Hammer standing at the

door, nude. B.L. was standing next to her mother. Hammer was touching his genitals,

shaking them toward B.L. but he was not masturbating. Hammer said nothing. C.L., E.L.'s

husband, told Hammer, "I'm calling the police; you need to go home." Hammer ran off

screaming and C.L. shut the door.

         On that same night, A.R. was at her older sister's apartment with her younger

brother. Also at approximately 9:30 p.m., Hammer opened the unlocked door of the

apartment without knocking and stood in the doorway. Hammer was nude and they saw


         1
          We refer to the victims and family members by their initials to protect the victim's identities pursuant to
section 595.226.

                                                           2
his genitals. He was not touching his genitals but "sort of thrust his hips out towards

[them.]" A.R. threw a pillow at him and her sister yelled at him to get out. Hammer looked

startled and shaken and started backing out of the doorway after about a minute. When he

backed out, A.R.'s sister shut the door.

       Between 9:30 p.m. and 10:00 p.m. on that same night, A.C. heard a knock on her

apartment door and opened it to see Hammer standing at the door naked. He said he wanted

to talk. He was not touching himself. A.C. slammed the door and called 911.

       The State indicted Hammer with two counts of sexual misconduct involving a child

less than 15 years of age. Hammer was appointed counsel ("Pre-Trial Counsel"). As will

be discussed more fully below, Hammer has a seizure disorder and extremely low IQ which

called into question his ability to understand his actions or that he was competent to stand

trial. Hammer was evaluated and found to be incompetent to stand trial. By February of

2015, he was determined to have been restored to a sufficient level of competency to stand

trial. Pre-Trial Counsel sought from the State a deferred prosecution agreement. The State

drafted an agreement which Pre-Trial Counsel edited ("Agreement"). On May 10, 2016,

Hammer was under the guardianship of his daughter, Whitney Fuller ("Fuller"), and

residing at Northwest Psychiatric Rehabilitation Center. On this date, Pre-Trial Counsel

presented the Agreement to both Hammer and Fuller.

       The Agreement had several requirements including that Hammer must reside either

at Northwest Psychiatric Rehabilitation Center or Lakeview Health Care and Rehabilitation

Center in Boonville for the duration of the Agreement, which by its terms expired on

December 31, 2019. Hammer was required to admit that the State's evidence established

                                             3
beyond a reasonable doubt that he committed the crimes charged, and that this admission

could be used to prove his guilt at a criminal trial if he violated the terms of the Agreement.

It also required that Hammer stipulate to the admission of the Agreement as "conclusive

proof" that he committed the crimes listed, and that he understood that the statement alone

may constitute all the evidence presented on behalf of the State at any future trial.

Additionally, the Agreement stated that Hammer acknowledged that:

       I intentionally, knowingly, willingly, and freely waive any defense based
       upon a mental disease or defect, diminished capacity, statute of limitations
       or any limitation of action or other defenses arising out of the dismissal of
       my pending case or that I may have to the re-filing of these charges during
       the term of this Agreement, or that I may have in the event this matter is tried
       after my failure to abide by the conditions set out herein. . . .

The range of punishment for which Hammer might be imprisoned should he violate the

Agreement, up to seven years on each count, was clearly stated.             Additionally, the

Agreement clearly indicated that Hammer was voluntarily entering into the Agreement and

was not required to accept its terms. After the Agreement was executed the State dismissed

the charges against Hammer.


       On July 15, 2016, the State determined that Hammer had failed to conform to the

Agreement's terms and the State refiled the charges. Hammer was appointed new counsel

who filed a motion in limine seeking to prohibit the State from using the Agreement in

Hammer's trial and seeking to admit evidence of a diminished capacity defense. The trial

court heard evidence and argument on the motion in limine on April 13, 2017 ("Motion

Hearing").



                                              4
       Hammer called Dr. Timothy Leonberger ("Dr. Leonberger") to testify at the Motion

Hearing. He testified that Hammer had a "very well-documented" seizure disorder. He

was diagnosed with major neurocognitive disorders, due to multiple conditions, those being

his seizure disorder and a frontal lobe dysfunction. His seizure disorder results in cognitive

impairment and postictal confusion that can last hours or days following a seizure,

especially if the seizures are not well-controlled. In such a state, Hammer appears dazed

and confused, unaware of his surroundings, may beat on his chest, and talk nonsense.

According to Dr. Leonberger, Hammer was in a confused postictal state due to a recent

seizure at the time of the events giving rise to the criminal charges.

       In regard to the Agreement, Dr. Leonberger testified that Hammer had "a number of

deficits in cognitive functioning." Hammer's verbal and language abilities were in the

lower one percentile of functioning. Hammer's IQ is 67 which is in the extremely low

range. His working memory index was also in the extremely low range. Ultimately, it was

Dr. Leonberger's opinion that Hammer would not have been able to understand the

Agreement because he lacked "the language skills, the concentration, or the memory to

understand [the Agreement] even if it was explained to him in as simple terms as possible."

It was Dr. Leonberger's position that Hammer was competent to stand trial but he was not

competent to have understood and signed the Agreement.

       However, on cross examination, Dr. Leonberger admitted that Hammer would have

understood the majority of the key words in the Agreement. He also believed Hammer

understood the doctor's testimony at the hearing, that Hammer understood the nature and

purpose of the medical evaluation as well as the limits of confidentiality but would not be

                                              5
able to explain the medical concepts in the testimony using the same terms that Dr.

Leonberger has used. He believed Hammer was restored to competency prior to signing

the Agreement, he remained competent to stand trial at the time of the Motion Hearing, and

that he would be able to assist his counsel with a diminished capacity defense. It was his

opinion that Hammer would be competent to waive a jury trial at the time of the Motion

Hearing and that Hammer would be capable of asserting his own will in the case if his

attorney wanted him to do something in the case that Hammer did not want to do. Dr.

Leonberger did not interview Fuller or Pre-Trial Counsel in reaching his opinions.

       Pre-Trial Counsel testified at the Motion Hearing that she would not have had a

client sign an agreement like the one signed by Hammer if she did not believe that her client

understood and agreed to its terms. She spoke with Hammer and Hammer's guardian,

Fuller, about the Agreement before each of them signed it. The exact nature of her

discussions with Hammer or Fuller, however, were not disclosed because of attorney-client

privilege. From the very beginning of her negotiations with the State, the Agreement was

contingent upon waiver of any mental disease or defect or a diminished capacity defense

and that was an integral term of the Agreement.

       Fuller testified at the Hearing that she did not talk to Pre-Trial Counsel about the

Agreement, nor did she have time to read it before she and Hammer signed it. She "figured

it was just something to get him out of jail faster" and did not realize that he would be

admitting guilt to the offenses. She testified that had she known the terms of the Agreement

she would not have signed and would not have allowed Hammer to sign it. On cross-

examination, however, Fuller was more equivocal saying that she "proofread" the

                                             6
Agreement, did ask questions of Pre-Trial Counsel, and understood that there was some

"give and take" in signing the Agreement.

       The trial court noted that either the Agreement was valid or Pre-Trial Counsel was

incompetent for allowing a client that was unable to understand its terms to sign the

Agreement. Further, the trial court specifically stated that Dr. Leonberger's testimony "just

doesn't make sense to me." Noting that it did not make sense that Dr. Leonberger believed

Hammer could not understand the terms of the Agreement and yet was competent to assist

counsel at trial because, in the court's opinion, trial assistance required a greater amount of

competency than understanding the Agreement. The trial court denied Hammer's motion

in limine to void the Agreement. The trial court also ordered that Hammer be reevaluated

under section 552.020 to confirm his competency to stand trial.

       Hammer was again determined to be competent to stand trial. Pursuant to the

Agreement, the court excluded any evidence of Hammer's mental incapacity or diminished

capacity. The State proceeded to prove its case at trial without relying on the admission of

guilt in the Agreement. Following the close of all of the evidence, Defense counsel sought

to make an offer of proof of the evidence they would have presented regarding diminished

capacity. The court ruled that because counsel did not attempt to admit the evidence during

trial and the evidence was already concluded in the trial, the offer of proof was untimely.

Defense counsel noted that procedurally the offer of proof had not been made prior to the

close of evidence because the State had not introduced the Agreement and there was the

desire to "help move things along." Also, counsel contended that the offer of proof was

mentioned to the court during a bench conference and it was counsel's understanding that

                                              7
it would be addressed at a later time. Ultimately, the court heard the offer of proof in the

courtroom while the jury deliberations proceeded in the jury room.

       The jury found Hammer guilty on one count of felony sexual misconduct involving

a child under the age of 15 and one count of the lesser included offense of misdemeanor

sexual misconduct in the second degree. This appeal followed.

                                           Standard of Review

       Hammer contends that because the waiver of constitutional rights are at issue, we

should review the trial court's ruling de novo. See State v. Pennington, 408 S.W.3d 780,

784 (Mo. App. W.D. 2013). However, in Pennington, the issue was whether the lower

court had applied the proper legal standard in upholding the waiver of Miranda2 rights, not

the validity of such a waiver. When examining the validity of a waiver of Constitutional

rights the question is one of fact and "we will not overturn the trial court's finding unless it

is clearly erroneous." State v. Sparkling, 363 S.W.3d 46, 51 (Mo. App. W.D. 2011); Woods

v. State, 176 S.W.3d 711, 712 (Mo. banc 2005). We defer to the trial court on credibility

issues and conflicts in the evidence. Sparkling, 363 S.W.3d at 51. The trial court's rulings

are only clearly erroneous if, after a review of the entire record, this Court is left with the

definite and firm impression that a mistake has been made. Woods, 176 S.W.3d at 712.

       The State, however, argues that the question of whether the trial court properly

excluded evidence of Hammer's diminished capacity is not preserved for appeal and should

be subject to plain error review. In his motion in limine, Hammer sought to exclude all



       2
           Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                                        8
evidence of the Agreement and further requested the trial court allow evidence of

Hammer's mental health as part of his defense. The trial court denied the motion in limine

but the State never attempted to place the Agreement into evidence or rely on any of its

terms in presenting its case. Because the State never admitted the Agreement, the defense

did not raise an objection to the Agreement or the inability to raise a diminished capacity

defense during the evidentiary phase of trial.

       A court's ruling on a motion in limine preserves nothing for appeal. State v. Purlee,

839 S.W.2d 584, 592 (Mo. banc 1992); State v. Mickle, 164 S.W.3d 33, 55 (Mo. App. W.D.

2005). "To preserve the matter for appeal, the proponent of the evidence must attempt to

present the excluded evidence at trial, and if an objection to the proposed evidence is raised

and sustained, the proponent must then make an offer of proof." State v. Marshall, 131

S.W.3d 375, 377 (Mo. App. E.D. 2004). Hammer only sought an offer of proof regarding

evidence of Hammer's incompetency or diminished capacity after the close of evidence.

While the court did ultimately hear the offer of proof, it was done after the close of evidence

while the jury deliberated.

       The issue that the parties present to this Court is the validity of the Agreement and

more particularly the effectiveness of Hammer's waiver of a diminished capacity defense

within that Agreement. This issue was fully presented to the trial court at the Motion

Hearing. We find that even applying the more generous standard of review of clearly

erroneous, applied to preserved claims of error, Hammer is not entitled to relief.




                                              9
                                          Analysis

       Hammer's sole point on appeal alleges that the trial court erred in precluding

evidence of his diminished capacity at trial because it was a violation of his constitutional

right to present a defense and the Agreement which waived his right to present this defense

is unenforceable because it was not a knowing, intelligent and voluntary waiver of that

right. While Hammer frames the question before us as an evidentiary ruling, it is more

precisely a challenge to the validity of the Agreement, specifically in regards to the

Agreement's provision waiving Hammer's ability to present evidence to the jury supporting

a diminished capacity defense. The parties agree that if the Agreement is valid, then the

evidence of Hammer's diminished capacity was properly excluded.

       In support of his argument regarding his ability to waive a diminished capacity

defense in the Agreement, Hammer argues that: "In Missouri, there is a presumption that

'[a] contract made with the purpose and upon the consideration that a criminal prosecution

shall be suppressed, stifled or stayed will not be enforced.'" However, the cases relied on

by Hammer for this proposition were not addressing deferred prosecution agreements but

rather contracts between private parties to avoid prosecution through the payment of civil

damages. See generally, Y.W. By & Through Smith v. Nat'l Super Mkts, Inc., 876 S.W.2d

785, 789-90 (Mo. App. E.D. 1994) ("a private citizen or entity may not contract away

his/her right to press criminal charges against the perpetrator of a crime"); Ensminger v.

Burton, 805 S.W.2d 207, 217 (Mo. App. W.D. 1991). There is no presumption that a

deferred prosecution agreement between a prosecutor and an accused is unenforceable and

in fact there is no prohibition on this type of agreement by rule, statute or caselaw. Instead,

                                              10
courts accept that a party may waive a right, even a constitutional right, in a deferred

prosecution agreement so long as the waiver is knowing, voluntary and intelligent. See

generally, State v. Driskill, 459 S.W.3d 412, 427 (Mo. banc 2015) (defendant was free to

waive his constitutional right to testify if it was knowing and voluntary); State v. Freeman,

189 S.W.3d 605, 609 (Mo. App. W.D. 2006) (a criminal defendant may waive his

constitutional right to a jury trial if it is voluntarily, knowingly, and intelligently made);

State v. Gray, 100 S.W.3d 881, 886 (Mo. App. S.D. 2003) (adolescent could voluntarily

waive constitutional right to remain silent so long as he made an intelligent, understanding,

and voluntary waiver); Cross v. State, 359 S.W.3d 571, 576-77 (Mo. App. E.D. 2012) (a

movant may waive his right to seek post-conviction relief in return for a reduced sentence

so long as the waiver was made knowingly, voluntarily and intelligently). The United

States Supreme Court has noted that such agreements are enforceable so long as the court

considers whether the agreement is: (1) voluntary; (2) there is no allegation of prosecutorial

misconduct; and (3) enforcement will not affect relevant public interests. Town of Newton

v. Rumery, 480 U.S. 386, 392 (1987) (agreement to waive right to civil suit in exchange for

dismissal of criminal charges); Coughlen v. Coots, 5 F.3d 970, 974 (6th Cir. 1993).

       While Hammer contends that "no reasonable person" could describe Hammer's

waiver of his rights under the Agreement as voluntary, this argument is not supported by

the evidence.     Dr. Leonberger testified that Hammer did understand the words

"intentionally," "knowingly," and "willingly" which were important in understanding what

acts he was admitting to in the Agreement. Dr. Leonberger stated that Hammer understood

the word "defense" and that the term "diminished capacity" could be explained to him.

                                             11
While ultimately Dr. Leonberger testified that, in his opinion, Hammer could not have

understood the terms of the Agreement, the trial court found that this testimony was

incompatible with Dr. Leonberger's opinion that Hammer was competent to stand trial and

properly assist in his defense. The court found that "the standard is higher to be able to

assist in trial than it would be to go through a written document that is, what, three pages

long and to be able to understand that when there is more time to take in and evaluate and

have explained to you what a document says as opposed to the fast pace of trial."

       Additionally, at the time that Hammer signed the Agreement he was represented by

Pre-Trial Counsel. Pre-Trial Counsel specifically stated that she would not have allowed

a client to sign a deferred prosecution agreement if she did not believe that the client

understood the agreement. At oral argument, Hammer alleged that the trial court gave too

much weight to Pre-Trial Counsel's determination of competency. At the Motion Hearing

the trial court noted that either the Agreement was valid or Pre-Trial Counsel was

incompetent for allowing a client to sign the Agreement who was unable to understand its

terms. Hammer contends that the trial court improperly ceded its determination of whether

Hammer knowingly and voluntarily waived his rights to Pre-Trial counsel rather than the

trial court making the decision itself. This only appears to be the case when the comment

is read in isolation. The trial court also entered into its own lengthy questioning of Dr.

Leonberger about the court's concern with what the court considered to be contradictory

opinions--that Hammer could not understand the Agreement but could understand trial

proceedings and assist in his defense.       The trial court specifically questioned Dr.

Leonberger regarding the Hammer's capabilities of understanding the Agreement at the

                                            12
time it was signed. Further, the trial court specifically noted that it found Dr. Leonberger's

testimony regarding competency difficult to harmonize because the court believed it

required a greater capacity of understanding to participate in a trial than to understand the

Agreement.

       Although the trial court certainly considered Pre-Trial Counsel's evaluation of

Hammer's ability to understand the Agreement in determining if this was a voluntary and

knowing waiver, in the context of the Motion Hearing as a whole, it is clear that the trial

court independently considered Hammer's ability to knowingly and voluntarily consent to

the terms of the Agreement and found he had done so. Given the totality of the Motion

Hearing, we do not find that the trial court ceded its decision as to the voluntary and

knowing nature of Hammer's waiver to Pre-Trial Counsel.

       Finally, we note that the Agreement was not only signed by Hammer but by his

appointed guardian and daughter, Fuller. Although Fuller initially testified that she neither

read nor discussed the Agreement with an attorney, she admitted on cross-examination that

she "proofread" the Agreement, did ask Pre-Trial Counsel questions, and understood that

there was some "give and take" in the Agreement. Pre-Trial Counsel also testified that she

did in fact talk with Fuller prior to her execution of the Agreement, although the content of

the conversation was protected by attorney-client privilege. The trial court was free to

disbelieve Fuller's testimony either that she did not read the Agreement or that she did not

speak with Pre-Trial Counsel about its terms prior to signing. State v. Delacruz, 977

S.W.2d 95, 98 (Mo. App. S.D. 1998) ("credibility of witnesses and the weight to be given



                                             13
their testimony was a matter for the trial court, which was free to believe none, part, or all

of any witness's testimony").

       It is clear that there was sufficient evidence upon which the circuit court could have

found the Agreement was voluntarily and knowingly executed and Hammer's waiver of the

defense of diminished capacity was valid. Applying the other two factors in Rumery, there

is no allegation that there was prosecutorial misconduct or that enforcement of the

Agreement would adversely affect the public interests.

       The trial court's finding that the Agreement was voluntarily and knowingly entered

into was supported by substantial evidence and there was no clear error in the trial court's

decision to enforce the terms of the Agreement and more particularly the waiver of a

diminished capacity defense at Hammer's trial.

                                        Conclusion

       For the reasons stated above, we affirm.



                                           __________________________________
                                           Gary D. Witt, Judge

All concur




                                             14
