                     In the Missouri Court of Appeals
                             Eastern District
                                        DIVISION ONE

STATE OF MISSOURI,                          )       No. ED101553
                                            )
       Respondent,                          )       Appeal from the Circuit Court
                                            )       of the City of St. Louis
vs.                                         )
                                            )       Hon. Jimmie M. Edwards
TIMOTHY L. BOYKINS,                         )
                                            )       Filed:
       Appellant.                           )       September 8, 2015

       Timothy Boykins appeals from the judgment entered after a jury found him guilty of

murder in the first degree and armed criminal action for the shooting death of Nathan Reed. On

appeal, he claims the trial court erred by allowing testimony regarding anonymous tips

identifying Boykins as the shooter. We affirm.

       The sufficiency of the evidence is not challenged on appeal. Viewed favorably to the

verdict, the evidence relevant to the issues on appeal was as follows. Dante Jones testified at

trial that he and Reed went to play dice at a friend’s house on the corner of Margaretta and Red

Bud in the City of St. Louis one evening in November of 2012. The dice game was in the

garage—the overhead door (for cars) faced Red Bud and was open the whole time, and the entry

doorway (for people) faced the yard and had no door on it at the time. Numerous people entered

and left the garage throughout the game. At some point, Reed left with another friend to go to

the store. Shortly thereafter, Jones heard the sound of a gunshot coming from outside the garage.

Everybody in the garage started to scatter, and Jones—who uses a wheelchair, but was sitting on

a crate at the time—was the last person left inside the garage. He had been dragged off the crate

in the melee and was lying on the floor near the entry doorway. From there, Jones saw Boykins
chasing Reed from the street through the open overhead doorway, through the garage and out the

entry doorway into the yard. Boykins had a black gun in his hand. Jones knew Boykins from

the neighborhood, where they had both grown up their whole lives; they saw each other every

day and had no problems between them. Boykins also went by the nickname Y.G..

       Jones got himself back onto the crate and was scooting towards his wheelchair, when he

heard Reed say “Please Homey Y.G., don’t kill me; please don’t shoot me no more; please don’t

kill me.” Then Jones heard eight or nine more shots coming from the yard and saw Boykins

shoot Reed. He admitted he could see them only from the waist up through a garage window

and that it was dark outside; but Jones said he saw the shooter’s face clearly and was certain it

was Boykins. Then Boykins ran back through the entry doorway into the garage and past Jones,

and said “D.J., you didn’t see shit” and then ran out the overheard doorway towards Red Bud

street. Jones testified at trial that he had also seen Boykins and Reed in another argument and

altercation a few weeks before, but it was only some wrestling and tussling.

       Corey Williams, another friend of Reed’s and Jones’s, also testified at trial. Williams

was at his house on the same block of Margaretta that night; it was two houses from the corner of

Red Bud and across the street from where his friends were playing dice. When he heard

gunshots and looked out his front windows, Williams could not see what was going on. So he

went outside using the back door because his front door was boarded up at the time. He planned

to go around to the front where the gunshot sounds came from, but while in his backyard, he saw

a person that he recognized from the neighborhood as Y.G. running down the alley from the

direction of Red Bud. Williams was looking through his empty garage and said he had a clear

view of the alley through the open entry door and the open overheard door that faced the alley.

He saw Y.G. wrapping a pistol up in a dark colored hoodie, which Y.G. then carried like a

football and ran off across a lot away from the direction of Margaretta and Red Bud.


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       Detective Steven Kaiser was the lead investigating officer who responded to the shooting

that night. He testified that after reviewing the scene, the investigation was focused on Timothy

Boykins.   When asked why, Detective Kaiser explained that he learned that night that an

anonymous 911 caller had identified the shooter as Y.G. and had given a physical description,

which the detective repeated at trial. The defense objected to this testimony, referencing its

pretrial motion to suppress this and other out-of-court statements by anonymous tipsters on

hearsay grounds. When asked if he “received additional information that helped them progress

in their investigation that evening,” Detective Kaiser testified that he learned that another

anonymous caller had identified the shooter as Timothy and had given other identifying

information. He was then asked if he received “any other tips that helped you focus your

investigation on Timothy Boykins?” to which the detective responded that, the day after the

incident, he learned of another anonymous tipster who had referred to the shooter as Timothy

Boykins. The day after that, Detective Kaiser testified, he learned of a fourth anonymous tipster

who had identified Timothy Boykins or Y.G. as the shooter. The prosecutor did not ask what

particular steps the officers took in response to any of these anonymous tips.

       Detective Kaiser was then asked about witnesses he talked to at the scene. He said that

he spoke to Jones that evening, who claimed not to have been in a position to see anything, and

no one else came forward that night either. But two days after the incident, Williams called in to

the police station. Detective Kaiser called him back, and Williams told the detective that he had

seen Boykins wrapping up a gun and running from the direction of the shooting. That same day,

Detective Kaiser also talked to Jones again because he saw on a surveillance video that Jones had

not been where he claimed to have been the night of the shooting. Jones explained to Detective

Kaiser that he had not wanted to talk the night of the crime because he was on probation and

worried he would get in trouble for having smoked marijuana that night. Jones then told the

detective that he had seen Boykins shoot Reed. Williams and Jones also both identified Boykins
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from photo arrays. At the conclusion of his testimony, Detective Kaiser agreed that it was

Jones’s and Williams’s identifications and “the rest of the investigation” that led to taking

Boykins into custody.

       The jury deliberated for a few hours and could not reach a unanimous decision, but the

court instructed them to continue deliberating. Shortly thereafter, the jury asked for a transcript

of Jones’s testimony, but the court instructed them to be guided by the evidence as they

remembered it. About thirty minutes later, the jury reached a verdict of guilty on the charges of

murder in the first degree and armed criminal action. Boykins was sentenced as a persistent

offender to life without parole on the murder count and life on the armed criminal action count.

This appeal follows.

       On appeal, Boykins contends that the detective’s testimony regarding anonymous tips

identifying Boykins as the shooter should have been excluded as hearsay. He argues that the

statements were not offered to show Detective Kaiser’s subsequent conduct, but for the truth of

the matter asserted—that Boykins was the shooter. We review this claim for a clear abuse of the

trial court’s broad discretion to admit or exclude evidence at trial. State v. Taylor, 373 S.W.3d

513, 520 (Mo. App. E.D. 2012).

       Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

Statements that are not offered for the truth of the matter asserted—but rather to explain

subsequent actions of the police—are not hearsay. Id. “It is well established that such testimony

is admissible to explain the officers’ conduct, supplying relevant background and continuity to

the action.” State v. Brooks, 618 S.W.2d 22, 25 (Mo. banc 1981). If a statement is not offered to

prove the truth of the matter asserted, then the defendant’s right to confront the witnesses against

him is not implicated. Taylor, 373 S.W.3d at 520-21.

       But the use of out-of-court statements to explain subsequent police conduct is susceptible

to abuse. If detectives are allowed to narrate the course of an investigation in a way that
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unnecessarily puts damning information about the defendant before the jury, that would cross the

line and violate the defendant’s right to confrontation. State v. McGee, 284 S.W.3d 690, 702

(Mo. App. E.D. 2009); see also State v. Nabors, 267 S.W.3d 789, 795 (Mo. App. E.D. 2008)

(cautioning prosecutors against such “backdoor attempts” to put non-testifying confidential

informants’ statements before jury).     Therefore, “out-of-court-statements that implicate the

defendant in the crime are admissible only to the extent they are necessary to explain the

subsequent police conduct testified to at trial.” McGee, 284 S.W.3d at 702.

       In this case, the anonymous tips clearly implicated Boykins in the crime, but did not

clearly explain the detective’s subsequent conduct as testified to at trial. Detective Kaiser was

asked only generally about what caused police to “focus their investigation” on Boykins, but

there was no testimony as to what steps that “focus” entailed, what he or other officers actually

did as a result of learning identifying information about the shooter from the anonymous callers.

Rather, the questions and resulting testimony was all very general: the investigation “focused”

on Boykins, it “progressed” and only after talking to Williams and Jones and conducting the

“rest of the investigation” did the police take Boykins into custody. In many cases, a police

investigation might not make sense to the jury without some explanation of how the investigation

progressed from one phase to the next. For instance, the police may need to explain how they

ended up at a particular address to find and arrest a defendant or search those premises. In those

cases, the lack of background information creates a risk that the jury might fill in any gaps in the

story with speculation. Brooks, 618 S.W.2d at 25.

       But here there was no need for any such background information to maintain continuity

in the detective’s explanation of his investigation. Even without those anonymous tips, there

would have been no “gaps” in the story and no attending risk of those gaps being filled in with

damaging speculative information.        The detective could have simply testified that they

investigated the scene, did not initially find any witnesses who would identify the shooter and
                                                 5
then two days later two witnesses came forward and identified Boykins as the shooter. It was

upon this information that the police proceeded to take Boykins into custody. Moreover, the

anonymous tips did not lead to the interviews of Williams and Jones—Williams came to the

police on his own, and the detective called Jones for a second interview after reviewing a

surveillance tape. Thus, that “subsequent conduct” by the detective did not occur as a result of

the tips, nor did those tips further provide any context, explanation or background for that

conduct. Nor was there anything elicited at trial that would have shown that the anonymous tips

led the police to do anything else in particular. Rather, they simply continued to receive more

information similar to the information gleaned from the tips.

       Even if the tips had been necessary to provide background or context to the investigation,

they could have been mentioned without reference to the actual statements identifying Boykins.

That is—as our courts have pointed out before—it would have been “more than sufficient” for

the State to provide the jury with context by having the detective testify that the investigation

initially focused on Boykins “upon information received” from anonymous tipsters. See State v.

Garrett, 139 S.W.3d 577, 582 (Mo. App. S.D. 2004). That would have eliminated the hearsay

problem altogether. But as it was, the statements made by the anonymous callers implicated

Boykins in the crime directly and because they were not necessary to explain the investigation,

they can only be seen as inadmissible hearsay in violation of Boykins rights under the

Confrontation Clause.

       Although prejudice may be presumed when constitutional rights are violated, reversal is

not required if we determine the error was harmless beyond a reasonable doubt. Nabors, 267

S.W.3d at 795. That determination requires us to consider whether the error in admission was

outcome-determinative. See State v. Barriner, 34 S.W.3d 139, 150 (Mo. banc 2000). Error in

admitting evidence is not prejudicial and does not require reversal unless “the erroneously

admitted evidence so influenced the jury that, when considered with and balanced against all of
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the evidence properly admitted, there is a reasonable probability that the jury would have

reached a different conclusion but for the erroneously admitted evidence.”          Id.   We are

convinced that this evidence was harmless and was not outcome-determinative.

        This is not a situation in which the out-of-court statements provided the only evidence

identifying Boykins as the shooter. Here, Jones’s eyewitness testimony directly implicated

Boykins as the shooter, and the other circumstances he testified about, along with Williams’s

testimony about what he saw after he heard the gunshots, corroborated Jones’s testimony. Thus,

this case is distinguishable from those cited by Boykins for the proposition that prejudice has

been established merely by the incriminating nature of the statements. In those cases, there was

little to no other strong evidence establishing guilt. See State v. Kirkland, 471 S.W.2d 191, 193

(Mo. 1971) (no other person identified defendant at trial except via hearsay statements); State v.

Shigemura, 680 S.W.2d 256, 257 (Mo. App. E.D. 1984) (other evidence of defendant’s

knowledge that items in possession were stolen was weak, thus, hearsay statement by

confidential informant that defendant was in possession of stolen property he intended to sell was

prejudicial).

        We also see no indication in the record that the jury relied on these anonymous tips as

proof of guilt. Boykins points to the jury’s request during deliberation to see a transcript of

Jones’s testimony. But this question merely demonstrates that the jury was focused on the key

witness’s testimony. It does not suggest that they were influenced by the anonymous tipsters’

statements. But see State v. Robinson, 111 S.W.3d 510, 514 (Mo. App. S.D. 2003) (prejudice

established by jury question to court during deliberation “what did the informant say?” because

indicated some focus on and influence of out-of-court statement).         Moreover, contrary to

Boykins’s claim, the State did not argue that the anonymous tips established Boykins’s guilt.

Rather, the State only briefly mentioned in closing argument that the investigation also included

anonymous tips pointing towards Boykins. The State’s central argument was that Jones’s and
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Williams’s testimony supplied the evidence needed to meet its burden of proof. The only other

reference to the tips was in rebuttal to the defense’s suggestion that Jones and Williams came

forward based on “gossip and rumors.” The State merely pointed out in response that the

defense had given no good reason why Jones or Williams would lie—whether based on gossip,

anonymous tips or otherwise.

       In the face of the other properly admitted testimony in this case—and with no indication

that jury relied on the tips as proof of guilt anyway—it is not reasonable to believe that the jury

would have reached a different result had the improperly admitted out-of-court statements of the

anonymous tipsters been excluded.

       Point denied. The judgment is affirmed.




                                             ROBERT G. DOWD, JR., Presiding Judge

Mary K. Hoff, J. and
Roy L. Richter, J., concur.




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