                                          In the
                          Missouri Court of Appeals
                                   Western District
STATE OF MISSOURI,                            )
                                              )
                 Respondent,                  )   WD77406
                                              )
v.                                            )   OPINION FILED: August 18, 2015
                                              )
SANDRA G. PLUNKETT,                           )
                                              )
                  Appellant.                  )

              Appeal from the Circuit Court of Callaway County, Missouri
                       The Honorable Gary M. Oxenhandler, Judge

     Before Division One: Cynthia L. Martin, Presiding Judge, Joseph M. Ellis, Judge and
                                  James E. Welsh, Judge


         Sandra G. Plunkett ("Wife") appeals her convictions of first-degree murder and

armed criminal action following a jury trial. Wife argues that the trial court erred by

refusing to submit a proposed self-defense instruction to the jury, by overruling her

motions to suppress evidence, and by admitting testimony at trial regarding the evidence

she sought to suppress. Finding no error, we affirm.
                                   Factual and Procedural History1

         Wife married Paul Plunkett ("Husband"), a Jefferson City police officer, in 1998.

Husband retired from the police department in 2008 and bought a pest control company

from his brother. Wife and Husband operated the business together.

         Wife developed a drug addiction to Vicodin and heroin. To fund her drug habit,

Wife overdrew thousands of dollars from joint personal and business checking accounts

and sold items to a local pawn shop.

         Husband developed diverticulitis in the summer of 2009, requiring several

surgeries and hospitalizations. By the end of 2010, Husband was generally confined to a

hospital bed in the living room of his home in Holt's Summit. Husband had an open

wound, a feeding tube, tubes for intravenous drugs, and a colostomy bag. Husband had

to wear an abdominal binder to be able to get out of bed and move around. Husband's

heart was enlarged and his legs had atrophied to the point that moving around required

great effort.

         Sometime during the week after Christmas in 2010, Wife asked a drug associate,

Randy Deppe ("Deppe"), if he knew anyone who would kill Husband. On December 30,

2010, Wife again asked Deppe if he knew anyone who would kill Husband and

mentioned something about an insurance check. Wife told Deppe that Husband would

not die and admitted to putting morphine and heroin in Husband's IV drip in an attempt to

kill him.


         1
          We view the facts in the light most favorable to the jury's verdict. State v. Jackson, 410 S.W.3d 204, 209
n.3 (Mo. App. W.D. 2013).

                                                         2
       Later on December 30, 2010, Wife took a Marlin .22-caliber rifle to a pawn shop.

Wife asked the store clerk to show her how to load the rifle. The clerk told Wife the kind

of ammunition needed for the rifle.

       Before 10:00 a.m. on January 1, 2011, Wife shot Husband in the head with the

Marlin rifle, killing him. Wife left the house and drove to Jefferson City to buy heroin.

She then drove to a nearby cul-de-sac and disposed of the rifle in the woods. She

disposed of a box of ammunition while driving on a gravel road in New Bloomfield.

       Between 12:45 p.m. and 12:50 p.m. on January 1, 2011, Wife called 911 and

reported that a man in camouflage was in the middle of the street pointing a rifle at her

house. She reported that she had arrived home to discover her Husband had been shot. A

police officer arrived. The officer could not see into Wife's house because the blinds

were closed, and no one immediately answered the front door. The officer started toward

the back of the house when Wife opened the carport door holding a handgun. Wife told

the officer she did not know how to use the gun.

       Wife led the officer into the house. She lifted and turned Husband's head to show

the officer an entry wound on the right side. Wife said the man in camouflage was a

white male in his fifties. Wife said she grabbed the handgun, which Husband kept in a

holster near his bed, and tried to fire it out the door to scare the man but could not fire the

gun. Wife said she tried to do the same with a rifle.

       Paramedics arrived on the scene. As the paramedics moved Husband, a .22-

caliber shell casing rolled onto the floor. The shell casing was consistent with having

been fired from a Marlin rifle.

                                              3
       Wife continued to claim to police that Husband was shot by a camouflaged

gunman. Wife denied that she or Husband were experiencing financial problems and

denied that she had current drug problems. The police ruled out people Wife identified as

potential suspects.

       The police contacted family members and determined that a Marlin rifle was

missing from the home. Police learned of Wife's drug problem and interviewed Deppe

about his conversations with Wife.

       On January 3, 2011, the police again interviewed Wife. This time, Wife claimed

that Husband asked her to find someone who would kill him because he wanted to die.

Wife said Deppe agreed to kill Husband and that she left a rifle in the garage for Deppe.

Police re-interviewed Deppe, who denied any involvement in the murder.

       On January 4, 2011, the police again interviewed Wife. This time, Wife said she

killed Husband at his request. Wife led investigators to the rifle. Wife was arrested and

later charged with first-degree murder and armed criminal action.

       Both before and after Wife's arrest, Prosecutors secured investigative subpoenas

from the trial court pursuant to section 56.085.2 Before Wife was arrested, Jefferson

Bank and Hawthorne Bank received subpoenas that requested account information for

Husband and Wife's joint bank accounts. After Wife was arrested, United Healthcare

received subpoenas that requested information about a life insurance policy worth

$100,000 owned by Husband. In lieu of appearing in person at the prosecutor's office to



       2
           All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

                                                         4
deliver the records and to submit to oral examinations under oath, the subpoenaed

businesses simply submitted the subpoenaed records to police investigators.

       Wife filed motions to suppress the subpoenaed records. Relevant to this appeal,

Wife argued that her Fourth Amendment right against unreasonable searches and seizures

was violated when the State waived the statutory requirement that representatives from

the subpoenaed businesses produce the records and appear at the prosecutor's office for

oral examinations under oath. Wife also argued that the subpoenas issued to United

Healthcare for insurance policy records violated the Fourth Amendment because the State

failed to provide Wife notice of the subpoenas.

       The trial court overruled Wife's motions to suppress. The trial court ruled in

pertinent part that:

       Investigative subpoenas must be sufficiently limited in scope, relevant in
       purpose, and specific in directive so that compliance will not be
       unreasonably burdensome. Johnson v State, 925 SW 2d 834 (Mo banc
       1976). Parenthetically, assuming that it is the burden on the [subpoenaed
       party] that must be analyzed, that burden is certainly lessened by permitting
       the [subpoenaed party] to simply send the documents without an
       appearance.

The trial court also found that the United Healthcare insurance policy belonged to

Husband, and that Wife had no ownership interest in the policy.

       At trial, Wife timely objected to admission of the subpoenaed records by

referencing her motions to suppress. The trial court overruled Wife's objections and

elected to stand by its ruling on the motions to suppress.

       At trial, Wife testified that she had been abused by Husband for a number of years

and killed Husband in self-defense. Wife testified that on the day of the killing, she and

                                             5
Husband got into an argument and Husband kicked her. Wife testified that she went to

the bathroom and then returned to the living room when Husband, angry and shaking,

reached for a handgun next to his bed. Wife stepped into the kitchen and picked up the

rifle. From the kitchen, Wife testified that she could see Husband reaching for the

handgun. Wife returned to the living room and shot Husband. She testified that she felt

she had to shoot Husband to defend herself.

      During the jury instruction conference, the State tendered Instruction No. 6, a self-

defense instruction patterned after MAI-CR3d 306-06A. Wife affirmatively indicated that

she was "in accord" with Instruction No. 6. Wife later tendered a separate, stand-alone

instruction which, in summary, provided that a person has no duty to retreat if lawfully in

their own home. The trial court refused Wife's tendered instruction.

      The jury found Wife guilty of first-degree murder and armed criminal action. The

trial court sentenced Wife to life in prison without the possibility of parole for murder

and a concurrent term of seven years for armed criminal action.

      Wife timely appealed.

                              Summary of Issues on Appeal

      Wife raises five points on appeal. In her first point, Wife argues that the trial court

abused its discretion by refusing to submit her tendered "no duty to retreat" instruction

because it would have responded to the State's anticipated closing argument that Wife's

use of deadly force was unreasonable because she could have left the house from two

exits in the kitchen. In her second point, Wife argues that the trial court erred by

overruling her motions to suppress the subpoenaed bank records because the State waived

                                              6
the section 56.085 requirement that a person producing subpoenaed records appear for

oral examination under oath. In her third point, Wife argues the trial court erred by

overruling her motion to suppress the subpoenaed insurance policy records because the

State waived the section 56.085 requirement that a person producing subpoenaed records

appear for oral examination under oath and because the State failed to give Wife advance

notice of the subpoenas. In her fourth and fifth points, Wife respectively argues that the

trial court erred by admitting testimony regarding the contents of the insurance policy and

bank records because the testimony was impermissible "fruit of the poisonous tree."

                                        Point One

       Wife asserts that the trial court's refusal to submit her tendered instruction was an

abuse of discretion because she should have been permitted to inform the jury that she

had no duty to retreat pursuant to section 563.031.3.

                                   Standard of Review

       Pursuant to Rule 28.02(a) "[i]n every trial for a criminal offense the court shall

instruct the jury in writing upon all questions of law arising in the case that are necessary

for their information in giving the verdict." Rule 28.02(f) provides the proper standard of

review: "The giving or failure to give an instruction or verdict form in violation of this

Rule 28.02 or any applicable Notes On Use shall constitute error, the error's prejudicial

effect to be judicially determined." (Emphasis added.) Thus, "[t]he trial court's refusal to

give a party's proffered instruction is reviewed de novo, evaluating whether the

instructions were supported by the evidence and the law." Cluck v. Union Pac. R. Co.,



                                             7
367 S.W.3d 25, 32 (Mo. banc 2012).3 "The trial court's judgment will be reversed only if

such an error results in prejudice . . . ." Id. "Prejudice exists when there is a reasonable

probability that the trial court's error affected the outcome at trial." State v. Anderson,

306 S.W.3d 529, 534 (Mo. banc 2010).

                                                     Analysis

         "Rule 28.02(c) mandates the exclusive use of the Missouri Approved Instructions–

Criminal whenever there is an instruction applicable under the law." State v. Davis, 203

S.W.3d 796, 798 (Mo. App. W.D. 2006). "Whenever there is an MAI–CR instruction

applicable under the law . . ., the MAI–CR instruction is to be given to the exclusion of

any other instruction." State v. Deck, 303 S.W.3d 527, 545 (Mo. banc 2010) (internal

quotations omitted).

         Here, Wife used deadly force and alleged to have done so in self-defense. Section

563.031.2 addresses the use of deadly force self-defense:

         2. A person may not use deadly force upon another person under the
         circumstances specified in subsection 1 of this section4 unless:

         (1) He or she reasonably believes that such deadly force is necessary to
         protect himself, or herself or her unborn child, or another against death,
         serious physical injury, or any forcible felony;

         (2) Such force is used against a person who unlawfully enters, remains
         after unlawfully entering, or attempts to unlawfully enter a dwelling,
         residence, or vehicle lawfully occupied by such person; or

         3
            Even though Cluck was addressing Rule 70.02(a) and (c), which apply to jury instructions in civil cases,
there is no reason to believe that Cluck's holding would not apply to jury instructions in criminal cases given the
substantial similarities between Rule 70.02(a), (c) and Rule 28.02(a), (f).
          4
            Subsection 1 permits the use of "physical force upon another person when and to the extent he or she
reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she
reasonably believes to be the use or imminent use of unlawful force by such other person," unless an enumerated
exception applies.

                                                          8
       (3) Such force is used against a person who unlawfully enters, remains
       after unlawfully entering, or attempts to unlawfully enter private property
       that is owned or leased by an individual claiming a justification of using
       protective force under this section.

Sections 563.031.2(2) and (3) plainly do not apply to Wife's circumstances, as Husband

was lawfully present in his own home when he was killed by Wife. Wife's right to use

deadly force self-defense thus necessarily relied on section 563.031.2(1).

       The trial court instructed on self-defense using a State tendered instruction

modeled after MAI-CR3d 306.06A. MAI-CR3d 306.06A "covers only the basic use of

force [including deadly force] in self-defense." MAI-CR3d 306.06A, Notes on Use 1.

Consistent with the requirements of section 563.031.2(1), the State's self-defense

instruction provided, in pertinent part, that:

       In order for a person lawfully to use force in self-defense, she must
       reasonably believe such force is necessary to defend herself from what she
       reasonably believes to be the imminent commission of a forcible felony.
       But, a person is not permitted to use deadly force unless she reasonably
       believes that the use of deadly force is necessary to protect herself against
       the commission of a forcible felony.

The instruction defined "reasonably believe" as "a belief based on reasonable grounds,

that is, grounds that could lead a reasonable person in the same situation to the same

belief. This depends upon how the facts reasonably appeared."

       When asked by the trial court during the jury instruction conference to confirm

that she was "in accord" with the self-defense instruction tendered by the State, Wife

answered "yes, sir." Wife did not object that the instruction failed to comport with the

substantive law and did not seek to modify the instruction in any way.


                                                 9
       Wife later tendered, however, a separate, stand-alone instruction she claimed was

required by section 563.031.3. Section 563.031.3 provides that "[a] person does not have

a duty to retreat from a dwelling, residence, or vehicle where the person is not unlawfully

entering or unlawfully remaining. A person does not have a duty to retreat from private

property that is owned or leased by such individual." Wife's tendered instruction quoted

section 563.031.3 verbatim.

       Wife's tendered instruction was a non-MAI instruction. "A non-MAI instruction

must follow the substantive law." Davis, 203 S.W.3d at 799. And, if an MAI-CR

instruction is modified or a non-MAI instruction used, then the modification or non-MAI

instruction "shall be simple, brief, impartial, and free from argument" and "where

possible, shall follow the format of MAI-CR instructions, including the skeleton forms

therein." Rule 28.02(d). We must affirm the trial court's decision to refuse Wife's

tendered instruction if the decision can be supported on either basis.

       Wife's tendered instruction failed to comport with Rule 28.02(d) because the use

of a separate instruction to address the duty to retreat did not follow the format of MAI-

CR instructions and because the instruction failed to use language that was simple and

brief. The proof of this point is best demonstrated by MAI-CR3d 306.11, the self-

defense instruction applicable where force (including deadly force) is used by a person

"against a person who unlawfully enters, remains after unlawfully entering, or attempts to

unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person."

MAI-CR3d 306.11, Notes on Use 1 (referencing section 563.031.2(2)). MAI-CR3d

306.11 incorporates the "no duty to retreat" principle described in section 563.103.3 in

                                             10
simple terms by providing in Part A, paragraph [2] that "[a] person lawfully occupying a

(dwelling) (residence) (vehicle) is not required to retreat before resorting to the use of

force to defend himself." MAI-CR3d 306.11. If Wife believed that the "no duty to

retreat" principle applied to her circumstances, then it was incumbent upon Wife to

oppose Instruction No. 6 and to tender in lieu thereof a modified version of MAI-CR3d

306.06A modeling the reference to "no duty to retreat" that appears in MAI-CR3d

306.11[2]. Wife did not do so. Instead, she affirmatively approved the State's use of

Instruction No. 6 patterned after MAI-CR3d 306.06A, thus representing to the trial court

that she believed the instruction complied with the law. Wife's subsequent tender of a

stand-alone "no duty to retreat" instruction that presented an abstract statement of law

placed emphasis on the "no duty to retreat" principle without context or cross-reference to

the self-defense instruction, creating potential confusion. The trial court did not legally

err in refusing Wife's proffered instruction because it was not in proper form.

       Because Wife's proffered instruction was not in the form required by Rule

28.02(d), we need not address Wife's contention that section 563.031.3 applies not only

where "a person who unlawfully enters, remains after unlawfully entering, or attempts to

unlawfully enter" a dwelling, residence, vehicle, or private property owned or leased, and

lawfully occupied by the defendant, (the subject of MAI-CR3d 306.11), but as well

where force (including deadly force) is used against a victim who is lawfully present

along with a defendant in a dwelling, residence, vehicle, or private property owned or

leased by the defendant. And in any event, as noted, Wife waived any claim of error in

this regard when she affirmatively approved the State's proffered self-defense instruction

                                            11
without objecting that it failed to instruct on Wife's lack of a duty to retreat. See State v.

Wurtzberger, 40 S.W.3d 893, 897 (Mo. banc 2001) (holding a defendant "waived

appellate review" when the defendant both failed to object to a proposed instruction and

"told the court expressly that he had no objection to the instruction").

       Even were we to conclude, (which we do not), that the trial court erred in refusing

to submit Wife's instruction, we would not reverse Wife's conviction unless the refusal

was prejudicial to Wife. Marion, 199 S.W.3d at 894. "Prejudice exists when there is a

reasonable probability that the trial court's error affected the outcome at trial." Anderson,

306 S.W.3d at 534. Wife cannot satisfy this standard.

       The jury heard evidence regarding Wife's claim of self-defense. The jury heard

evidence which revealed that Wife's claim of self-defense represented the fourth

explanation in a series of evolving explanations she had offered for Husband's death. The

jury convicted Wife of first-degree murder, which necessarily means that the jury

concluded that Wife premeditated before killing Husband.            In the process, the jury

rejected several lesser included offense instructions. On this record, it appears plain that

the jury simply did not believe Wife's trial testimony that Husband died because Wife

was defending herself. The refusal to submit Wife's stand-alone "no duty to retreat"

instruction was not outcome determinative. There is no reasonable probability that the

trial court's refusal of Wife's tendered instruction affected the outcome at trial.

       Point one is denied.




                                              12
                           Points Two, Three, Four, and Five

       Points two, three, four, and five challenge the denial of motions to suppress

regarding, and the subsequent admission of, subpoenaed records. We address the points

collectively.

       Wife asserts that her Fourth Amendment right to be free from unreasonable

searches and seizures was violated because the State waived the statutory requirement

that witnesses produce subpoenaed bank and insurance policy records by oral

examination under oath (Points two and three).         Wife also asserts that her Fourth

Amendment right was violated because she received no notice of the subpoenas issued

for the insurance policy records even though the subpoenas were issued after she was

charged (Point three).    Finally, Wife argues that all trial testimony regarding the

subpoenaed bank and insurance policy records should have been excluded as fruit of the

poisonous tree (Points four and five).

                                   Standard of Review

       "A trial court's ruling on a motion to suppress will be reversed on appeal only if it

is clearly erroneous." State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007). "The trial

court's ruling will be found to be clearly erroneous only if we are left with a definite and

firm belief that a mistake has been made." State v. Mosby, 94 S.W.3d 410, 415 (Mo.

App. W.D. 2003) (internal quotations omitted). "[An appellate court] defers to the trial

court's factual findings and credibility determinations . . . and considers all evidence and

reasonable inferences in the light most favorable to the trial court's ruling." Sund, 215



                                            13
S.W.3d at 723. "Whether conduct violates the Fourth Amendment is an issue of law that

this Court reviews de novo." Id.

                                                     Analysis

         "The Fourth Amendment of the United States Constitution preserves the right of

the people to be secure against unreasonable searches and seizures." Mosby, 94 S.W.3d

at 415 (quoting State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999)).5                                      "But the

'capacity to claim the protection of the Fourth Amendment depends . . . upon whether the

person who claims the protection of the Amendment has a legitimate expectation of

privacy . . . ." State v. Brown, 382 S.W.3d 147, 157 (Mo. App. W.D. 2012) (quoting

Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). Inherent to

the potential success of each of Wife's points on appeal, therefore, is this question: did

Wife possess a legitimate expectation of privacy with respect to the subpoenaed records?

         Wife claims that she had a reasonable expectation of privacy in the bank and

insurance records because the State conceded she had a privacy interest in the bank

records6 and because she was named as a beneficiary on Husband's policy and wrote the

checks to pay the policy premiums.7 Wife's arguments are inconsistent with Missouri

precedent.



         5
            "Missouri's constitutional 'search and seizure' guarantee, article I, section 15, is co-extensive with the
Fourth Amendment." Deck, 994 S.W.2d at 534.
          6
            The State on appeal denies that it made this concession. Because questions regarding Fourth Amendment
violations are reviewed de novo, it is immaterial whether the State conceded Wife had a privacy interest in the bank
records.
          7
            These arguments first appeared in Wife's brief on appeal. Wife never argued that she had a privacy
interest in either the bank records or the insurance policy records in her motions to suppress and only argued at the
evidentiary hearing on the motions to suppress that she had "some sort of privacy interest" in the insurance policy
records because she was a beneficiary.

                                                         14
         "Records of a depositor's account maintained by a bank are business records of the

bank, not of the bank depositor. The depositor [thus] has no claim to the records based

on ownership or possession and he therefore has no expectation of privacy associated

with the records which is protected under the Fourth Amendment." State v. Brown, 689

S.W.2d 63, 67 (Mo. App. W.D. 1985) (citing United States v. Miller, 425 U.S. 435, 96

S.Ct. 1619, 48 L.Ed.2d 71 (1976)). Because the Supreme Court has held that a bank

depositor has no expectation of privacy with respect to records maintained by the bank,

Wife's Fourth Amendment rights were not implicated by the subpoenas seeking Husband

and Wife's joint bank records.8

         We reach the same conclusion with respect to the insurance policy records

obtained by subpoena. The insurance policy records--Husband's request for insurance

and checks submitted to pay policy premiums--were business records owned and

maintained by United Healthcare. Wife had no legitimate expectation of privacy in the

insurance records, a conclusion that is only enhanced by the fact that the insurance policy

in question was owned solely by Husband. Even though Wife claimed to have written

checks to pay the premiums for the policy, "a person has no legitimate expectation of

privacy in information he voluntarily turns over to third parties." Smith v. Maryland, 442



         8
           In 1989, the General Assembly enacted The Missouri Right to Financial Privacy Act ("MRFPA"), section
408.675, et seq. The MRFPA provides that "no governmental authority may have access to . . . information
contained in the financial records of any customer unless the financial records are reasonably described" and the
customer has consented to the disclosure or a subpoena or written request comporting with MRFPA is issued for the
records. Section 408.677. Wife has never contended that she had a Fourth Amendment privacy right in the bank
records because of the MRFPA. In fact, neither party has made reference to the MRFPA in this case. Thus, the
parties have not addressed the effect (if any) of the MRFPA on the United States Supreme Court's determination that
a bank customer has no legitimate expectation of privacy in bank records sufficient to support a claimed violation of
the Fourth Amendment. We decline to address this issue as it has not been preserved for our review.

                                                        15
U.S. 735, 743-44 (1979). Wife's Fourth Amendment rights were not implicated by the

subpoenas seeking the insurance policy proceeds.

         There is an even more fundamental problem with Wife's claim that her Fourth

Amendment rights were violated. Wife bases that claim on the State's purported failure

to comply with section 56.085. Section 56.085 authorizes a prosecuting attorney in the

course of a criminal investigation to request the issuance of an investigative subpoena "to

any witness who may have information for the purpose of oral examination under oath to

require the production of books, papers, records, or other material of any evidentiary

nature at the office of the prosecuting or circuit attorney requesting the subpoena." Wife

argues that because the State did not require the subpoenaed businesses to produce

records on oral examination under oath, the State violated section 56.085, and thus

violated her Fourth Amendment rights.9

         Wife's argument is unavailing. Wife does not explain how the State's failure to

insist that subpoenaed documents be delivered on oral examination under oath, even if a

"violation" of section 56.085,10 serves to create the legitimate expectation of privacy in

the subpoenaed documents essential to her Fourth Amendment claim. The violation of a


         9
           Wife also argued in her motion to suppress that the failure to give her notice of subpoenas issued to secure
the insurance policy records violated section 56.085 because she received no notice of the subpoenas although she
had already been charged. Section 56.085 does not impose an obligation to provide notice of an investigative
subpoena to the subject of a criminal investigation.
         10
            Although we need not address whether the State "violated" section 56.085 by waiving the requirement of
production of records on oral examination under oath, we find persuasive the trial court's observation in its order
denying Wife's motions to suppress that "[i]nvestigative subpoenas must be sufficiently limited in scope, relevant in
purpose, and specific in directive so that compliance will not be unreasonably burdensome. Johnson v State, 925
SW 2d 834 (Mo banc 1976). Parenthetically, assuming that it is the burden on the [subpoenaed party] that must be
analyzed, that burden is certainly lessened by permitting the [subpoenaed party] to simply send the documents
without an appearance." Wife has never argued that the investigative subpoenas were not sufficiently limited in
scope, relevant in purpose, and specific in directive. Cf. State v. Clampitt, 364 S.W.3d 605, 612-13 (Mo. App. W.D.
2012).

                                                          16
rule or statute involving criminal discovery or investigative tactics does not per se

implicate a constitutional violation.11 See, e.g., United States v. Agurs, 427 U.S. 97, 108

(1976) (overruled on other grounds, as stated in Kowalczyk v. United States, 936 F.Supp.

1127, 1145-46 (E.D.N.Y. 1996) (holding that a discovery violation, without more, does

not violate the Due Process clause "unless the [prosecutor's] omission deprived the

defendant of a fair trial"); State v. Ghan, 721 S.W.2d 128, 132 n.5 (Mo. App. W.D. 1986)

(addressing the distinction, and potential overlap between, violation of a criminal

discovery rule supporting sanctions, and a Brady violation implicating due process

concerns).

        Points two, three, four, and five are denied.

                                                 Conclusion

        Wife's conviction is affirmed.



                                                    __________________________________
                                                    Cynthia L. Martin, Judge


All concur




        11
           Obviously, if incriminating or exculpatory material is obtained through investigative subpoenas, a
defendant will be entitled to access to the material through the mandatory disclosures required by Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Rule 25.03. Wife, in fact, received the bank and
insurance policy records obtained through the State's investigative subpoenas by virtue of the operation of these
mandatory disclosure rules.

                                                       17
