            SUPREME COURT OF MISSOURI
                                       en banc
STATE OF MISSOURI,                          )
                                            )
                     Respondent,            )
                                            )
v.                                          )    No. SC93648
                                            )
ROBERT BLAKE BLURTON,                       )
                                            )
                     Appellant.             )

             APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY
                      The Honorable Larry D. Harman, Judge

                             Opinion issued March 15, 2016

       Robert Blurton appeals his convictions for three counts of murder in the first

degree. Mr. Blurton was sentenced to death after being found guilty by a jury for

murdering his aunt, uncle, and their 15-year-old granddaughter. On appeal, Mr. Blurton

asserts that the trial court erred by refusing his proffered lesser included offense

instruction, admitting testimony regarding cell phones and fingerprints, excluding

evidence that someone else had the motive and opportunity to commit the murders,

excluding bias evidence, and denying mistrial requests. Because this case involves the

imposition of the death penalty, this Court has exclusive jurisdiction over the appeal.

Mo. Const. art. V, sec. 3.

       This Court finds that the trial court did not err in rejecting Mr. Blurton’s proffered

lesser included offense instruction because the instruction did not properly conform to the

MAI requirements. Nor did the trial court err in admitting testimony from the state’s cell
phone analyst because his testimony was within the realm of a layperson. The trial court

also did not err in admitting testimony from the state’s fingerprint analyst because the

trial court sustained three of Mr. Blurton’s objections and the fourth objection was

untimely. The trial court did not err in excluding evidence that someone else had the

motive and opportunity to commit the crimes because Mr. Blurton did not attempt to

present this evidence at trial. The trial court also did not err in excluding evidence of a

witness’s alleged bias against a potential witness because the potential witness was not

called to testify at trial. Furthermore, the trial court did not err in denying Mr. Blurton’s

mistrial requests after the state inadvertently displayed crime scene photographs on three

occasions because the display of the photographs was not intentional and all of the

photographs were later admitted into evidence.           Accordingly, this Court affirms

Mr. Blurton’s convictions and sentences. Additionally, after an independent review of

the proportionality of Mr. Blurton’s death sentences pursuant to section 565.035, 1 this
                                                                                       0F




Court finds that Mr. Blurton’s death sentences were not excessive or disproportionate to

the penalty imposed in similar cases.

                          Factual and Procedural Background

       Mr. Blurton’s aunt and uncle, Sharon and Donnie Luetjen, and their 15-year-old

granddaughter, Taron Luetjen, 2 lived together in Cole Camp. Mr. Blurton had not been
                               1F




to the Luetjens’ home in about five years, but he had visited their home as a child and had


1
  All statutory references are to RSMo 2000 unless otherwise indicated.
2
  Taron lived with the Luetjens after her father, the Luetjens’ son, died in a car accident
in 1993 when Taron was a few weeks old. The Luetjens were awarded custody rather
than Taron’s mother. Because Donnie, Sharon, and Taron share the same surname, each
will be referred to by his or her first name to avoid confusion. No disrespect is intended.
lived with the Luetjens for a few months in 2004 after he was released from prison. At

that time, the Luetjens had helped him buy a vehicle, find a job, and move into a new

apartment.

       On June 7, 2009, at 10:15 p.m., a 911 call was placed from Taron’s cell phone.

The operator disconnected the call after the caller did not speak for 45 seconds. A return

call from the 911 operator was not answered, and the 911 operator did not dispatch the

police. At trial, the state submitted a transcript of the original 911 call, which included

the voices in the background of the call:

       Dispatcher: Nine One One where is your emergency?

       (unintelligible)

       Female:       Ohhh.

       Dispatcher: Nine One One do you have an emergency.

       Male:         (unintelligible) in place . . . I will kill you.

       Dispatcher: Hello?

       Female:       I have three hundred dollars in my purse.

       Male:         I heard you. Set right there. Set right there. Sharon, I’ll kill
                     all you guys. Set right there. I liked all of you. Give me that
                     other hand.

       (unintelligible)

The male voice in the call was identified as Mr. Blurton’s by the Luetjens’ daughter and

Mr. Blurton’s girlfriend. 3 A few minutes after the 911 call, at approximately 10:30 p.m.,
                          2F




3
 The Luetjens’ daughter testified that she was 80 percent certain that the male voice was
Mr. Blurton’s when she listened to the original 911 recording. Her certainty increased to
90 percent when she later listened to an enhanced recording that had some of the
                                               3
a neighbor, who lived less than a half mile across the valley and who often heard sounds

coming from the Luetjens’ property, heard three pistol shots from the direction of the

Luetjens’ house.

       Two days later, a neighbor discovered the Luetjens’ bodies in their home. Each

victim was found gagged, lying face-down on a pillow in the living room, with their

hands bound behind their backs with brown fabric from Taron’s canopy bed. Each had

been shot once in the back of the head with a .22 caliber pistol.

       Police found no evidence of forced entry. Inside the home, three cups – a white

coffee mug, a plastic Royals souvenir cup, and a red travel mug – were found on the

living room table. Mr. Blurton’s fingerprints and DNA were discovered on the white

coffee mug. 4 Mr. Blurton also could not be excluded as a contributor to the DNA found
            3F




on the brown fabric used to bind Donnie’s right hand. The DNA on Sharon’s bindings

also exhibited male characteristics, but the results were inconclusive as to whether the

DNA was consistent with Mr. Blurton’s because not enough data could be developed

from the DNA that was found. The DNA on the binding on Taron’s right hand exhibited

male characteristics. Mr. Blurton was excluded as a contributor, but Donnie could not be




background noise filtered out. Her certainty increased to 100 percent when she listened
to a further enhanced recording prior to trial. When Mr. Blurton’s girlfriend listened to
the original 911 recording, she did not recognize any voices at first. After listening to the
original recording again, she testified she was almost positive she recognized
Mr. Blurton’s voice and stated, “Oh, my God, I can’t believe that’s him.” When she later
listened to the enhanced recording, she testified that there was not any doubt that the
voice was Mr. Blurton’s.
4
  The DNA profile found on the white coffee cup that was consistent with Mr. Blurton’s
DNA had a frequency of one in 4.968 quadrillion in the Caucasian population.
                                             4
excluded.    The DNA on the binding on Taron’s left hand also exhibited male

characteristics, but Mr. Blurton and Donnie were both excluded as contributors.

       In addition to the murders, police found evidence of a robbery. Donnie’s wallet

and its contents were found beneath a pillow on a chair near his body. His wallet

contained no money although he was known to carry at least $200. Sharon’s purse was

sitting on the floor in the hallway near her bedroom. Her wallet had been removed and

also did not contain any money.

       In the Luetjens’ bedroom, a dresser drawer was sitting on their bed with the

contents dumped out. The drawer usually contained a large amount of change and

Donnie’s sizeable arrowhead collection. Only a small amount of change remained, and

the arrowheads were missing. Mr. Blurton had been caught stealing change from this

drawer when he was a teenager. A gun cabinet in the Luetjens’ bedroom was open, and

three guns, including two .22 caliber pistols, were missing. Taron’s cell phone was also

missing.

       On June 27, 2009, based on the daughter’s identification of Mr. Blurton’s voice on

the 911 recording and the DNA results linking him to the crime scene, Mr. Blurton was

arrested and charged with three counts of murder in the first degree under section

565.020. Prior to his arrest, Mr. Blurton asked his girlfriend to tell the police that he was

with her that night. Mr. Blurton lied to her – telling her that he was at his boss’s house in

Nevada on the night of the murders but was unable to drive home because of severe

weather and because his boss’s wife was hitting on him. His boss and his boss’s wife

later testified at trial that Mr. Blurton had never been to their home. Mr. Blurton’s


                                             5
girlfriend agreed to tell the police that Mr. Blurton had been with her on the night of the

murders but she later recanted, telling the police that Mr. Blurton had asked her to lie for

him.

       At trial, the state’s evidence included cell phone tower evidence showing that

Mr. Blurton’s cell phone had traveled from Garnett, Kansas, to Cole Camp between 8:16

p.m. and 9:59 p.m. on the night of the murders; the DNA and fingerprint evidence linking

Mr. Blurton to the crime scene; and the identification of Mr. Blurton’s voice as the male

voice in the background of the 911 call. As motive for the robbery and murders, the state

presented evidence that Mr. Blurton had recently lost his job and had been asked to move

out of the home he had shared with his girlfriend.            The girlfriend testified that

Mr. Blurton had told her that he owed people money. Moreover, she testified that

Mr. Blurton had told her that he would inherit land, a vehicle, and 22 percent of $6.6

million from the Luetjens.

       A jury convicted Robert Blurton of three counts of murder in the first degree under

section 565.020. At the penalty phase, the state presented evidence of Mr. Blurton’s prior

conviction for robbery in the first degree, as well as his convictions for forgery, burglary,

stealing, and possession of a controlled substance in a department of corrections facility.

The state also presented victim impact evidence from the Luetjens’ daughter and

grandson. Mr. Blurton presented mitigating evidence from his stepmother, two prisoners

who were previously incarcerated with him, and a psychologist who testified that it was

unlikely that Mr. Blurton would be violent in prison.




                                             6
       The jury recommended a sentence of death on all three counts. The jury found the

following statutory aggravators: (1) Mr. Blurton had a prior serious assaultive

conviction; 5 (2) each murder was committed while he was engaged in the commission of
           4F




two other murders; and (3) the murders involved depravity of mind and, as a result, the

murders were outrageously and wantonly vile, horrible, and inhuman insofar as each

victim was bound or otherwise rendered helpless and Mr. Blurton, therefore, exhibited a

callous disregard for the sanctity of all human life. The trial court rejected Mr. Blurton’s

motion for a new trial, accepted the jury’s recommendations, and sentenced Mr. Blurton

to death for each offense. Mr. Blurton now appeals his convictions.

       On appeal, Mr. Blurton asserts that the trial court erred by: (1) rejecting his

proffered jury instruction for felony murder in the second degree; (2) allowing a lay

witness to testify regarding the location of the cell phone towers to which his cell phone

connected on the night of the murders; (3) allowing the state’s fingerprint analyst to

testify that two other “qualified” examiners had “verified” her fingerprint identifications

as part of her crime laboratory’s peer review process and that “there weren’t any issues”;

(4) excluding testimony and argument that Taron’s mother had motive and opportunity to

commit the murders; (5) excluding evidence that the testimony of Donnie and Sharon’s

5
  In 1988, Mr. Blurton was convicted of robbery in the first degree and sentenced to 15
years in prison. Under section 569.020, “[a] person commits the offense of robbery in the
first degree when he forcibly steals property and . . . [c]auses serious physical injury to
any person[,] . . . [i]s armed with a deadly weapon . . . or . . . [u]ses or threatens the
immediate use of a dangerous instrument against any person[.]” Robbery in the first
degree is “by definition” a serious assaultive conviction even when evidence of the
“nature of the assault included in the robbery” is not submitted to the jury insofar as it
“involves serious physical injury, a dangerous instrument, or a deadly weapon.” State v.
Amrine, 741 S.W.2d 665, 672 (Mo. banc 1987) (internal quotations and citations
omitted); see also State v. Brooks, 960 S.W.2d 479, 496 (Mo. banc 1997).
                                             7
daughter was biased; (6) excluding testimony from Donnie and Sharon’s friend about

threatening telephone calls from Taron’s mother and maternal grandmother; and (7)

denying mistrial requests three times when the state inadvertently showed witnesses and

the jury graphic crime scene photographs of the victims.

       No Error in Rejecting Second Degree Felony Murder Jury Instruction

       Mr. Blurton first claims that the trial court erred in refusing to submit his proffered

jury instruction for the lesser included offense of second degree felony murder because

he met the statutory requirements for giving the instruction. In support of this claim,

Mr. Blurton cites this Court’s recent decision in State v. Jackson, which held that the trial

court is obligated to give a “nested” lesser included offense instruction when “a party

timely requests the instruction,” “there is a basis in the evidence for acquitting the

defendant of the charged offense,” and “there is a basis in the evidence for convicting the

defendant of the lesser included offense for which the instruction is requested.” 433

S.W.3d 390, 396 (Mo. banc 2014). The state maintains the instruction was properly

rejected because the instruction was not in proper form or, in the alternative, that

Mr. Blurton was not prejudiced by the trial court’s rejection of the instruction.

       Unlike in Jackson, Mr. Blurton’s offense was not a “nested” lesser included

offense, i.e., where the elements of the lesser offense are a subset of the elements of the

higher offense. See Jackson, 433 S.W.3d at 404. Instead, Mr. Blurton’s lesser included

offense of second degree felony murder required proof of additional facts from those

required to prove the higher offense and was “lesser included” by denomination by

statute. See section 556.046.1(2); section 565.025.2(1)(a). It is not, however, necessary


                                              8
to address Mr. Blurton’s claim that he was entitled to submission of the lesser included

offense of felony murder because a trial court’s rejection of a proffered instruction should

be affirmed “[i]f the trial court was correct . . . for any reason[.]” State v. White, 936

S.W.2d 793, 794 (Mo. banc 1997).

       At trial, the state objected to Mr. Blurton’s tendered second degree felony murder

instruction on the ground that it was not in the proper form, stating that it didn’t “believe

[the instruction] is in proper form, or has the proper accompanied instructions that are

required to be given under the notes on use.” The trial court refused to submit the lesser

included instruction because “[t]he for[m], which the instruction is tendered, is not the

proper [form].” 6 Mr. Blurton did not request to modify his proffered instruction in
                 5F




response to the trial court’s ruling.

       A trial court does not err by rejecting an improper jury instruction. State v.

Parkhurst, 845 S.W.2d 31, 37 (Mo. banc 1992); see also State v. Immekus, 28 S.W.3d

421, 432-33 (Mo. App. 2000); State v. Binnington, 978 S.W.2d 774, 776 (Mo. App.

1998); State v. Powers, 913 S.W.2d 138, 142 (Mo. App. 1996); State v. Colson, 926

S.W.2d 879, 883 (Mo. App. 1996).




6
  The trial court also stated that it was refusing Mr. Blurton’s second degree felony
murder instruction because the state had not charged Mr. Blurton with the underlying
felony of robbery in the second degree, robbery in the second degree was inconsistent
with Mr. Blurton’s alibi defense, and the facts in evidence did not support a felony
murder instruction. Although Mr. Blurton claims these grounds for the trial court ruling
were erroneous, it is unnecessary to consider these alleged errors where the trial court’s
ruling can be affirmed on other grounds. See White, 936 S.W.2d at 794.

                                             9
        Mr. Blurton submitted a second degree felony murder instruction that stated:

      As to Count [I/II/III], if you do not find the defendant guilty of murder in the first
degree, you must consider whether he is guilty of murder in the second degree.

      As to Count [I/II/III], if you find and believe from the evidence beyond a
reasonable doubt:

       First, that after 10:17 PM on the 7th day of June, 2009, at 802 South Elm, Cole
Camp, in the County of Benton, State of Missouri, the defendant took property which
was owned by Donnie Luetjen and, that defendant did so for the purpose of withholding
it from the owner permanently, and that defendant in doing so used physical force on or
against [Donnie/Sharon/Taron] for the purpose of preventing resistance to the taking of
the property, then you will find that the defendant has committed robbery in the second
degree.

      However, unless you find and believe from the evidence beyond a reasonable
doubt each and all of these propositions, you cannot find that the defendant has
committed robbery in the second degree.

        Second, that [Donnie/Sharon/Taron] was shot and killed, and

      Third, that [Donnie/Sharon/Taron] was killed as a result of the perpetration of that
robbery in the second degree,

      then you will find the defendant guilty under Count [I/II/III] of murder in the
second degree.

       However, unless you find and believe from the evidence beyond a reasonable
doubt each and all of the propositions, you must find the defendant not guilty of murder
in the second degree under this instruction, but you must then consider whether he is
guilty of murder in the second degree under Instruction No. ___.

         Mr. Blurton requested that the trial court submit this instruction in addition to the

instructions for first degree murder and conventional second degree murder proffered by

the state. The trial court was correct in its ruling that the instruction was not in the proper

form.

        The party submitting a second degree felony murder instruction must submit a

separate instruction for the underlying felony when the jury is not otherwise instructed to
                                              10
decide the defendant’s guilt of the underlying felony. Notes on Use 2(b), MAI-CR 3d

314.06. The separate instruction for the underlying felony must be identical to a verdict

director for the underlying felony except that it must be modified to state that the jury

must find that the defendant “committed” the felony instead of that the defendant is

“guilty” of the felony. Id. The first paragraph of the second degree felony murder

instruction must then cross-reference the instruction for the underlying felony. Id.

       In his brief to this Court, Mr. Blurton admitted that he failed to proffer a separate

instruction for the underlying felony of robbery in the second degree.            As such,

Mr. Blurton’s proffered jury instruction was in an incorrect form insofar as it violated the

Notes on Use for 314.06. The trial court would have erred in giving Mr. Blurton’s

incorrect jury instruction. See State v. Livingston, 801 S.W.2d 344, 348 (Mo. banc 1990)

(“The giving of an instruction in violation of the Notes on Use under MAI-CR constitutes

error[.]”). Because the trial court is not compelled to give an incorrect instruction and

does not err in refusing a flawed instruction, it is not necessary to consider whether his

proffered instruction would have prejudicially confused or misled the jury if submitted.

See State v. Jaco, 156 S.W.3d 775, 782 (Mo. banc 2005); see also State v. Derenzy, 89

S.W.3d 472, 475 (Mo. banc 2002). 7 6F




7
  In Derenzy, 89 S.W.3d at 475, this Court held that, although a trial court’s rejection of
an incorrectly worded lesser included offense instruction proffered by the defendant was
“not error,” the trial court’s failure to correct and submit a properly worded instruction
was nonetheless plain error resulting in “manifest injustice.” As reasoning for its
decision, Derenzy cited Rule 28.02(a), which requires a trial court to “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(a) applies to those instructions that are
mandatory even if not requested by the defendant. The lesser included instruction at
issue in Derenzy, however, was not an instruction that was necessary for the jury’s
                                            11
       Mr. Blurton argues, however, that his failure to proffer a separate jury instruction

for the underlying felony of robbery in the second degree is inconsequential because he

included “all the elements that would have been in the cross-referenced instruction” in

the first paragraph of his proffered second degree felony murder instruction.          This

assertion is incorrect. As stated above, the trial court does not err in refusing a flawed

instruction and, accordingly, this Court need not consider whether the proffered

instruction would have prejudicially confused or misled the jury if submitted. Jaco, 156

S.W.3d at 782. But, even if this Court were to consider the prejudicial effect of the

proffered instruction, Mr. Blurton’s proffered instruction would have confused or misled

the jury because it did not properly enumerate the elements of robbery in the second

degree and did not describe the property alleged to have been taken.

       The verdict director for robbery in the second degree requires each element of the

felony to be listed in separate enumerated paragraphs. MAI-CR 3d 323.04. Instead of

following these requirements, Mr. Blurton included all the elements of robbery in the

information, i.e., a mandatory instruction. A non-mandatory lesser included instruction is
governed by Rule 28.02(b), which requires counsel to “submit to the court instructions
and verdict forms that the party requests be given.” (Emphasis added). The rationale
applied by the Court in Derenzy to find that the trial court plainly erred in not correcting
and submitting a properly worded instruction should apply only when an instruction is
mandatory, even when not requested. In this case, as in Derenzy, the lesser included
instruction is an instruction that must be requested rather than an instruction the trial
court is mandated to give. See Jackson, 433 S.W.3d at 396. Therefore, the provision in
Rule 28.02(a) cited by this Court in Derenzy does not support its conclusion that the trial
court plainly erred in not correcting the defendant’s improperly worded lesser included
jury instruction and is at odds with this Court’s usual rule that the trial court does not
commit reversible error by refusing to give an incorrect instruction. Parkhurst, 845
S.W.2d at 37; see also Immekus, 28 S.W.3d at 432-33; Binnington, 978 S.W.2d at 776;
Powers, 913 S.W.2d at 142; Colson, 926 S.W.2d at 883. The trial court, here, was not
obligated to correct and submit a properly worded lesser included felony murder
instruction.
                                            12
second degree in the first paragraph of the second degree felony murder instruction

without enumerating each element. In doing so, Mr. Blurton’s proffered instruction blurs

the distinction between the elements and, therefore, could have confused or misled the

jury’s understanding of what it was required to find beyond a reasonable doubt.

Moreover, MAI-CR 3d 323.04 requires a description of the property that the defendant

allegedly took.       See also State v. Johnson, 457 S.W.2d 762, 765 (Mo. 1970).

Mr. Blurton, however, offered no description of the property alleged to have been taken,

but instead, merely stated that the defendant “took property.” Because evidence was

presented at trial of various items missing from the Luetjens’ home, including $200 from

Mr. Luetjens’ wallet, his change collection from his dresser drawer, his arrowhead

collection, and three guns, this failure to specify the alleged property would not have

required the jury to unanimously find what property Mr. Blurton had taken.

      Accordingly, because Mr. Blurton’s tendered instruction was not in proper form,

the trial court did not err in rejecting Mr. Blurton’s incorrect second degree felony

murder instruction.

              No Reversible Error in Admitting or Excluding Evidence

      Mr. Blurton further asserts that the trial court abused its discretion in admitting

evidence over his objection and excluding evidence he wished to present at trial.

Specifically, Mr. Blurton contends that the trial court erred in admitting evidence and

testimony from a lay witness regarding the location of the cell phone towers to which

Mr. Blurton’s cell phone connected on the night of the murders and testimony from the

state’s fingerprint analyst who described the Missouri state highway patrol crime


                                          13
laboratory’s peer review protocol of latent fingerprint analysis as requiring other

“qualified” examiners to “verify” her identifications. He further contends that the trial

court erred by excluding: (1) evidence that someone else had motive or opportunity to

commit the crime; (2) testimony from the Luetjens’ daughter that she was concerned for

her safety due to rumors and telephone calls made from Taron’s mother and maternal

grandmother; and (3) testimony from the Luetjens’ friend about the telephone calls from

Taron’s mother and maternal grandmother.

          A trial court has broad discretion to admit or exclude evidence at trial. State v.

Hunt, 451 S.W.3d 251, 263 (Mo. banc 2014). A trial court’s decision regarding the

exclusion or admissibility of evidence is reviewed for an abuse of discretion. Id. A trial

court abuses its discretion only if its decision to admit or exclude evidence is “clearly

against the logic of the circumstances then before the court and is so unreasonable and

arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate

consideration.” Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 451 (Mo. banc 2014) (internal

quotations omitted). Claims of trial court error are reviewed “for prejudice, not mere

error.”     State v. Clark, 364 S.W.3d 540, 544 (Mo. banc 2012) (internal quotations

omitted). This Court will reverse the trial court’s decision only if there is a reasonable

probability that the error affected the outcome of the trial or deprived the defendant of a

fair trial. Id.

                                  A. Cell Phone Tower Evidence

          Mr. Blurton first asserts that the trial court abused its discretion in admitting, over

his objection, evidence of the location of the cell phone towers to which his cell phone


                                                14
connected on the night of the murders, June 7, 2009, showing that Mr. Blurton was

traveling from his home in Garnett, Kansas, to Cole Camp. Mr. Blurton asserts that this

evidence required an expert witness because it was not within the knowledge or expertise

of a lay person.

       Expert opinion testimony is required if the witness is testifying “to matters

requiring special skill or knowledge and is not within the knowledge or understanding of

mankind generally[.]” State v. Eaton, 504 S.W.2d 12, 21 (Mo. 1973). Expert opinion

“must be based upon a valid and accepted scientific methodology and assist the trier of

fact in the determination of an issue.” Smulls v. State, 71 S.W.3d 138, 150 (Mo. banc

2002). An expert is qualified to provide an expert opinion if “he has knowledge from

education or experience which will aid the trier of fact.” State v. Mallett, 732 S.W.2d

527, 537 (Mo. banc 1987). “The qualifications of a witness to render an expert opinion

lie within the trial court’s discretion.” State v. Rutter, 93 S.W.3d 714, 729 (Mo. banc

2002). The trial court abuses its discretion in admitting such evidence only “when a

ruling is clearly against the logic of the circumstances then before the court and is so

arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful

consideration.” Id.

       To qualify as an expert in the field of telephone toll analysis, the witness needed to

have specialized training and experience that would aid the trier of fact. As a criminal

intelligence analyst for the Missouri highway patrol, the witness routinely performed

telephone toll analysis on cell phone calls, including those Mr. Blurton made and

received on the night of June 7, 2009. The witness testified that he began working in


                                             15
cellular telephone analysis in 2004 when he worked at the drug enforcement

administration as an intelligence analyst.    During this time, he went to call analyst

training school, where he was instructed how to analyze telephone records.            After

working as an intelligence analyst for three years at the drug enforcement administration,

he was promoted to an operations sergeant supervising 12 other intelligence analysts. In

2009, he began working as a criminal intelligence analyst at the Missouri highway patrol.

       To perform telephone toll analysis on Mr. Blurton’s calls, the witness first

obtained an Excel spreadsheet of Mr. Blurton’s cell phone records from the telephone

company. After obtaining the records from the telephone company, he then sorted these

records to show only those calls made to and from Mr. Blurton’s cell phone around the

time of the murders. The record of each call also provided the exact geographic location

of the cell tower to which Mr. Blurton’s cell phone was connected at the beginning and

the end of the call. Using this information, the witness then mapped the location of each

of these cell towers using a consumer mapping program. In doing so, he created a map

that showed the times of the calls and their respective cell phone towers.

       At trial, Mr. Blurton objected that the witness could not testify “about [the]

analysis of [Mr. Blurton’s cell phone] records” because “he’s not a properly qualified

expert” and had “no expertise besides attending this one [training] program.” The trial

court overruled this objection.    Mr. Blurton also objected that the witness was not

properly qualified as an expert in cell phone tower plotting. In overruling this objection

the trial court stated that, although the state may not have been offering the witness as an

expert, the state showed that his “qualification[s] were that he did telephone analysis and


                                             16
telephone toll analysis,” that the state “then described what that was.” The trial court

concluded, therefore, that the witness was “just testifying, like any other clerk . . . if they

were given an assigned task, and were told how to do the task[.]”

       Although there may have been sufficient evidence in the record before the trial

court to support a finding that the witness was an expert qualified in the field of telephone

toll analysis, it was not necessary for the trial court to make such a finding. Missouri

courts have held that “[r]eading the coordinates of cell sites from phone records and

plotting them on a map is not a scientific procedure or technique” because cell phone

records are factual records and no special skill is required to plot these records. State v.

Patton, 419 S.W.3d 125, 130 (Mo. App. 2013); State v. Ford, 454 S.W.3d 407, 413-14

(Mo. App. 2015). Such evidence can be introduced by a lay witness as long as the lay

witness confines the testimony to the facts contained in the cell phone records. Patton,

419 S.W.3d at 130. Accordingly, the trial court did not err in admitting the witness’s

testimony about his telephone toll analysis of Mr. Blurton’s calls.

       Mr. Blurton, nevertheless, asserts that an expert was required in this case because

the state introduced evidence regarding the location of Mr. Blurton’s cell phone relative

to the tower to which it connected. The witness admitted that he was not an expert in

determining which cell phone tower a cell phone would connect to in a particular location

based on weather or terrain and therefore, that, Mr. Blurton’s cell phone could have been

located anywhere around “whatever radius the [cell phone] tower was covering[.]”

       In this argument, Mr. Blurton relies on prior cases holding that an expert witness is

required if the witness attempts to identify the specific location of a defendant in relation


                                              17
to the cell phone tower to which the defendant’s cell phone connected. Patton, 419

S.W.3d at 130-31. An expert is required because such an identification requires broad

inferences due to a cell phone’s ability to connect to a cell tower “as far away as thirty

miles or as close as thirty feet” depending on myriad factors such as geography, weather,

or the cell phone itself. Id. at 131. Accordingly, to identify the specific location of the

defendant based on cell phone tower connections, an expert witness must make “an

expansive range of inferences” that requires “the aid of specialized experience or

knowledge in the field of cellular communications[.]” Id. at 132.

       For example, in Patton, a lay witness testified that at the time of the crime the

defendant’s cell phone was connected to a cell tower near the crime scene. Id. at 129.

The defendant alleged that he was at his cousin’s house four miles from the crime scene.

Id. at 129, 132. The lay witness drew the inference that the cell phone records proved the

defendant was near the crime scene and not at his cousin’s house because the defendant’s

cell phone was connected to the tower closest to the crime scene and not a cell tower near

his cousin’s house. Id. at 132. The court of appeals held that the trial court erred in not

requiring an expert to present this evidence when the identification of the defendant near

the crime scene and not at his cousin’s house required technical inferences outside a lay

witness’s common knowledge. Id. Likewise, in Ford, a lay witness improperly testified

that the defendant was “near the murder scene” because the defendant’s cell phone

connected to a nearby tower. 454 S.W.3d at 410-11. Once again, an expert was required.

Id. at 414-15.




                                            18
       In this case, however, the state did not attempt to show the exact location of

Mr. Blurton’s cell phone in relation to the cell tower to which his cell phone was

connected at the time the calls were made, and the witness did not testify that the cell

tower analysis could show that Mr. Blurton was at or near the Luetjens’ house. Rather,

the testimony was that “based off the phone associated with Mr. Blurton, the time the

calls were made, the cell tower locations, it shows a mode of travel highway 7, up

highway 75 – to Cole Camp.” Likewise, during closing argument, the state referenced

the map the witness had created to argue the reasonable inference that Mr. Blurton had

traveled from Garnett, Kansas, to Cole Camp and that his last two cell phone calls “hit off

of” cell phone towers located in Cole Camp.

       As discussed above, the witness’s utilization of Mr. Blurton’s cell phone records

to plot the progression of the cell phone towers to which Mr. Blurton’s cell phone

connected did not require the special skill or knowledge of an expert. His telephone toll

analysis showed both a progression of time between Mr. Blurton’s calls from 8:16 p.m. to

9:59 p.m. on the night of the murders and a corresponding progression of distance as his

calls connected to various cell phone towers located along the general route from Garnett

to Cole Camp. Unlike in Patton and Ford, in which lay witnesses improperly attempted

to pinpoint the defendants’ exact location within a small geographic area, Cole Camp is

more than 125 miles away from Garnett, Kansas. Even if Mr. Blurton’s cell phone

connected to a cell tower 30 miles away from his actual location at the time of each call,

the witness could still reasonably infer Mr. Blurton’s general path of travel from Garnett




                                            19
to Cole Camp without using specialized skill or knowledge. Accordingly, the trial court

did not abuse its discretion in admitting this evidence and testimony.

                                  B. Fingerprint Evidence

       Mr. Blurton next contends that the trial court abused its discretion in overruling his

objection to the testimony of the state’s latent fingerprint analyst. Mr. Blurton objected

to the witness’s testimony that the results of her fingerprint analysis had been “verified”

by another “qualified” examiner, which made her confident in her conclusions because

“there weren’t issues.” Mr. Blurton asserts that this testimony was inadmissible hearsay,

a violation of the confrontation clause, and improper bolstering.

       Specifically, Mr. Blurton asserts that the trial court erred four times in admitting

this testimony. Mr. Blurton’s objections to the witness’s testimony that her results had

been “verified” followed his objection that the state had not laid a proper foundation for

her identification of the fingerprints found at the crime scene. The questions to the

witness, her answers, and Mr. Blurton’s objections are as follows:

       First objection:

       Q:     And in addition to that, in your lab, do you have a peer review
              protocol when you make an identification in a case?

       A:     Yes.

       Q:     And what is a peer review, what is your peer review protocol?

       A:     Anytime we have an identification, at least at the time this was, all
              identifications had to be verified by another examiner going through
              the same process I did when I compared it and identified it.

       Q:     And was that, in fact, done in this case?

       A:     Yes, it was.
                                             20
           Q:      How many other peer reviewers, if you know.

           A:      I had my official, or primary verifier, and I, I believe there were two
                    other individuals, actually.

           Following this exchange Mr. Blurton objected on the grounds of Crawford v.

Washington, 541 U.S. 36, 53-54 (2004), which bars the admission of out-of-court

testimonial statements of witnesses who do not appear unless they are unavailable to

testify.        Citing Crawford, Mr. Blurton objected to the witness “relating what other

analysts have to say about, about this evidence.” The trial court ruled:

           Okay, she should, she should not testify as to what somebody else may
           have said anything like that, but as part of the foundation, the process was
           that helps her reach her conclusions, I think you’re going to ask her, that
           will be allowed.

           So, the objection to hearsay is sustained. She hadn’t gotten there, but I
           knew you were anticipating that. Let’s go.

           Following the court’s ruling, the state again attempted to question the witness

about the peer review protocol.

           Second objection:

           Q:                    And, ma’am, the peer review process that you went
                                 through, did that help you, I don’t know, feel confident
                                 in your conclusions that you reached in this case.

           A:                    Sure.

           Q:                    And don’t, I mean, don’t tell me what these folks
                                 concluded, but there weren’t issues, were there?

           A:                    No, there were not.

           Defense counsel:      Objection, your honor, that question’s, same matter,
                                 objection as at the bench, it’s asked the same way, or
                                 in a different manner.
                                                  21
      Court:               Overruled.

      Defense counsel:     Judge –

      Court:               Overruled.

      Mr. Blurton next objected to the witness’s attempt to identify the second

fingerprint found on the white coffee mug at the crime scene.

      Third objection:

      Q:                   And did you send this through that same peer review process
                           that you described at the crime lab?

      A:                   Yes.

      Defense counsel:     Well, objection, your Honor, that’s a violation of Crawford
                           versus Washington.

      State:               Judge, I –

      Court:               Sustained as to the form of the question.

      Immediately following this exchange, the state rephrased its question.

      Fourth objection:

      Q:                   What is, again, the protocol of the crime lab when you’ve
                           made an identification of a fingerprint?

      A:                   It is, it is, excuse me, it’s verified by another qualified
                           examiner.

      Q:                   And was –

      Defense counsel:     Well, objection, may we approach?

      Court:               Sure.

      Defense counsel:     This [] not only violates Crawford versus Washington, but it’s
                           also bolstering.

      State:               Well, Judge –
                                           22
       Court:               Well, overruled as to bolstering. The objection is that there
                            wasn’t a foundation for this particular exhibit. The language
                            chosen by the witness, the use of the word verified, was, in
                            one respect, responsive to the question as to what was the
                            protocol.

                                                  ***

       Defense counsel:     – I’m sorry, your Honor, but what it boils down to is that
                            she’s essentially telling this jury that somebody else looked at
                            it and said, yes, you’re right, and that’s, that is the message
                            that’s being sent to the jury.

       Court:               Okay. Would you like for me to instruct the jury to disregard
                            her last answer, and I was only, I’m not overly concerned
                            about it, but the use of the word, verified, by another, I’ll do
                            that, if you’re asking for that.

       Defense counsel:     Yes, I would request it.

                                                  ***

       Defense counsel:     Are we waiting until after lunch to instruct the jury to
                            disregard what they heard?

       Court:               I’ll do it, thank you, I’ll do it right now.

       Defense counsel:     Thank you.

       Court:               The last answer of the witness, which was with respect to a
                            protocol followed in the lab regarding forming opinions, the
                            witness offered some information with respect to what some
                            other person may have done or said, and the jury is instructed
                            to disregard that portion of the answer, not to consider it
                            when you retire to deliberate on the case.

       This record makes clear that the trial court sustained Mr. Blurton’s first, third and

fourth objections to the testimony. He did not ask for any further relief. After the fourth

objection, the trial court suggested that it could instruct the jury to disregard the answer.

Mr. Blurton asked that the trial court do so, and it did. A defendant who has “received
                                             23
the relief he requested . . . has no claim of reversible error.” State v. McFadden, 391

S.W.3d 408, 423 (Mo. banc 2013). In none of these instances did Mr. Blurton request

that the trial court grant him any additional relief.              Accordingly, in response to

Mr. Blurton’s first, third, and fourth objections, the trial court granted Mr. Blurton the

relief he requested at trial, so there was no trial court error.

       With regard to his second objection, Mr. Blurton’s objection was untimely and did

not preserve anything for appellate review. Mr. Blurton’s second objection came only

after the witness had answered two questions. A trial court’s ruling on an objection is

preserved for appellate review only if the objection was timely or the party timely moved

to strike the answer. State v. McFadden, 369 S.W.3d 727, 740 (Mo. banc 2012); see also

State v. Sykes, 372 S.W.2d 24, 27 (Mo. 1963). An objection to testimony must be made

at the earliest possible opportunity to allow the trial court to invoke remedial remedies.

State v. Borden, 605 S.W.2d 88, 90 (Mo. banc 1980).

       Although the trial court overruled Mr. Blurton’s second objection, Mr. Blurton

objected only after the witness had completely answered the question: “[D]id [the peer

review protocol] help you, I don’t know, feel confident in your conclusions that you

reached in this case?” An objection made after a witness gives a responsive answer to an

objectionable question is usually not timely. Sykes, 372 S.W.2d at 27. The exception is

if the witness answers so quickly that it is impossible to object or if the grounds for the

objection become apparent only when the answer is given. State v. Smith, 90 S.W.3d

132, 139 (Mo. App. 2002); State v. Evenson, 35 S.W.3d 486, 491-92 (Mo. App. 2000);




                                               24
see also State v. Williams, 416 S.W.2d 71, 73 (Mo. 1967).      In these circumstances, the

opposing attorney must object to the answer as soon as possible. Id.

          In this case, the grounds for Mr. Blurton’s objection to the witness’s second

answer were apparent as soon as the state asked the second question. The question was

not open-ended and was little more than a rephrasing of the question immediately

preceding it, which the witness had responsively answered. Additionally, admission of

testimony over objection is not reversible error if similar questions have previously been

asked and answered without objection. State v. Taylor, 408 S.W.2d 8, 11 (Mo. 1966); see

also State v. Goins, 306 S.W.3d 639, 647 (Mo. App. 2010). Just prior to her answer:

“No, there were not [issues],” she had answered “sure” to the state’s question: “[T]he

peer review process that you went through, did that help you . . . feel confident in your

conclusions that you reached in this case.” Mr. Blurton did not object at all to this first

answer. Because the witness had already stated that the review process made her feel

confident in her conclusions, her response to the second question and the grounds for the

objection were apparent as soon as the state asked the second question. Accordingly,

Mr. Blurton’s second objection was not timely and preserved nothing for appellate

review.

      The trial court sustained Mr. Blurton’s first, third and fourth objections and

granted him all the relief he requested. Accordingly, the trial court did not err. In the

only instance in which the trial court overruled his objection, the trial court did not err

because the alleged error was unpreserved due to the untimeliness of the objection and

because similar testimony had already been admitted without objection.


                                            25
     C. Evidence that Someone Else Had a Motive or Opportunity to Commit the
                                       Crime

      Mr. Blurton next asserts that the trial court abused its discretion in partially

granting the state’s motion in limine to prohibit Mr. Blurton from arguing or presenting

evidence that Taron’s estranged mother could be responsible for the victims’ deaths due

to her motive and opportunity to commit the crimes. A pretrial hearing on the motion in

limine focused on whether the defense could call the Luetjens’ neighbor to testify that she

saw Taron’s mother outside of the Luetjens’ house at 8 p.m. on the night of the murders.

The defense stated that the neighbor would testify that she saw Taron’s mother “exit the

victims’ home, light a cigarette, talk on a cell phone while pacing back-and-forth for 10-

15 minutes, extinguish her cigarette on the bottom of her shoe, put the cigarette butt in

her jeans’ pocket, flip her phone shut, and go back inside the victims’ home[.]”

Mr. Blurton contends that these actions outside the Luetjens’ house were acts that directly

connected Taron’s mother to the murders and that he should have been allowed to argue

that she may have been involved in the murders.

       In partially sustaining the state’s motion in limine to exclude evidence regarding

Taron’s mother’s motive and opportunity to commit the crime, the trial court ruled that

Mr. Blurton could present evidence to the jury that Taron’s mother was “at or near the

scene of the homicide.” Additionally, the trial court stated that Mr. Blurton could make

an offer of proof for any evidence that would directly connect Taron’s mother “with an

overt act in the commission of the homicides, rather than her mere presence at the scene

sometime prior to the commission of the homicides.” If the trial court ruled favorably on

this offer of proof, Mr. Blurton could present this evidence to the jury alongside argument
                                            26
that Taron’s mother committed the murders. The trial court noted, “This is a motion in

limine. It’s an interlocutory order, and can be reviewed[.]”

       As correctly stated by the trial court, a ruling on a motion in limine is interlocutory

and subject to modification at trial. See State v. Cole, 71 S.W.3d 163, 175 (Mo. banc

2002). Accordingly, a “motion in limine, in and of itself, preserves nothing for appeal.”

Id. To preserve this claim of error for appellate review, Mr. Blurton was required to

attempt to present this evidence at trial. See id. Despite the trial court’s ruling that

Mr. Blurton could present testimony regarding Taron’s mother’s presence at the

Luetjens’ house, Mr. Blurton did not attempt to present any of this evidence at trial by

calling either the neighbor or Taron’s mother to testify or make an offer of proof as to

their testimony. Specifically, Mr. Blurton did not attempt to present the neighbor’s

testimony that she saw Taron’s mother exit the Luetjens’ home at around 8:00 p.m., light

a cigarette, talk on her cell phone, place the extinguished cigarette in her pocket, then

went inside 10 to 15 minutes later.

       Instead, in an attempt to directly connect Taron’s mother to the murders,

Mr. Blurton made offers of proof of the testimony of the Luetjens’ daughter, the

Luetjens’ friend, and a police sergeant. Each offer of proof was made during a recess

soon after each had testified. Each took the stand, and Mr. Blurton and the state each had

an opportunity to question them. The daughter and the friend both testified that Taron’s

mother and maternal grandmother made telephone calls to them after the murders. One

of the calls from Taron’s maternal grandmother to the friend was threatening insofar as

Taron’s maternal grandmother stated that if the friend did not tell her what had happened


                                             27
to Taron “you’ll end up dead just like her.” The sergeant testified that he had accused

Taron’s mother of being involved in the murders during a police interview. She denied

these accusations. The sergeant testified that he did not really believe Taron’s mother

was involved in the crime, that throughout the interview Taron’s mother had remained

reasonable, had not in any way indicated she was involved, and had agreed to and did

take a polygraph test. As is discussed later, Mr. Blurton appeals the trial court’s denial of

his offer of proof of the friend’s testimony. Mr. Blurton does not appeal the trial court’s

denial of his offer of proof of the sergeant’s testimony. Because Mr. Blurton did not

attempt to present testimony from the neighbor or Taron’s mother at trial or make an

offer of proof of their testimony, he did not preserve for appeal his claim that the trial

court erred in excluding evidence that Taron’s mother had motive and opportunity to

commit the crimes.

                                D. Bias of Victims’ Daughter

       Mr. Blurton next contends that the trial court abused its discretion by excluding

evidence that the Luetjens’ daughter felt concerned for her safety from Taron’s mother

because of rumors about Taron’s mother and a threatening telephone call from Taron’s

maternal grandmother to the Luetjens’ friend. Mr. Blurton argues that the Luetjens’

daughter’s fear of Taron’s mother may have caused the daughter to be reluctant to

identify Taron’s mother’s involvement in the murders. Mr. Blurton further asserts that

the daughter’s fear of Taron’s mother may have caused the daughter to feel pressure to

identify Mr. Blurton’s voice in the 911 call. Mr. Blurton does not appeal the trial court’s

denial of his offer of proof of the daughter’s testimony on the ground that it would show


                                             28
an overt act from Taron’s mother that directly connected her to the murders. Instead,

Mr. Blurton appeals the trial court’s denial of his offer of proof of the daughter’s

testimony on the ground the daughter’s testimony would have shown her bias and motive

to testify untruthfully.

       After the daughter testified at trial, Mr. Blurton made an offer of proof of her

testimony. In the offer of proof, the daughter testified that she was concerned for her

safety because two or three days after the murders she heard rumors that “[Taron’s

mother] was going to try to come and take Taron’s body from [them], so [they] couldn’t

bury her with [her] family.” The daughter also stated that she was present during a

telephone call from Taron’s maternal grandmother to the Luetjens’ friend, and although

she did not hear the conversation, the friend told her that Taron’s maternal grandmother

made a threat “along the lines of something to the effect of the same thing [as had

happened to Taron] [was] going to happen to [the friend].”

       The state asserts that this issue is not preserved because Mr. Blurton had only

argued to the trial court “that he wanted to question [the daughter] as part of his effort to

develop evidence regarding [Taron’s mother] as an alternative suspect” and not that the

daughter’s fear of Taron’s mother “might have motivated her to distort or exaggerate her

testimony.” For an allegation of error to be preserved for appellate review, the error must

be presented to or decided by the trial court. State v. Davis, 348 S.W.3d 768, 770 (Mo.

banc 2011). This issue is preserved because, regardless of whether Mr. Blurton expressly

offered the daughter’s testimony at trial to show her bias, the trial court ruled on this

issue, stating that “[t]hose questions and answers would be allowed . . . to show bias of


                                             29
this witness against a witness who, I’m assuming m[a]y testify.” After Mr. Blurton stated

that he did not intend to call Taron’s mother to testify, however, the trial court reversed

its decision.

       While the daughter’s proffered testimony could have been relevant to show her

motive to testify untruthfully about Taron’s mother, Taron’s mother was not an “issue or

personality” in the case. A defendant may cross-examine a witness to “reveal[] possible

biases, prejudices, or ulterior motives of the witness as they may relate directly to issues

or personalities in the case at hand” in an attempt to impeach the witness’s credibility.

Davis v. Alaska, 415 U.S. 308, 316 (1974); see also State v. Johnson, 700 S.W.2d 815,

817 (Mo. banc 1985). Here, the trial court did not err because Mr. Blurton did not call

Taron’s mother to testify at trial, nor did he call the Luetjens’ neighbor who allegedly

saw Taron’s mother outside of the Luetjens’ home on the day of the murders. As such,

the daughter’s testimony about the rumors and telephone calls would not have revealed

any biases against an issue or personality in the case. See Davis, 415 U.S. at 316.

       In addition to offering the daughter’s testimony to show that her fear of Taron’s

mother may have caused her to be reluctant to identify Taron’s mother’s involvement in

the murders, Mr. Blurton also sought to admit the daughter’s testimony as evidence of her

motive to falsely testify about hearing Mr. Blurton’s voice on the 911 call. To be

admissible, evidence must be both logically and legally relevant. State v. Taylor, 466

S.W.3d 521, 528 (Mo. banc 2015). “Evidence is logically relevant if it tends to make the

existence of a material fact more or less probable.” Id. Evidence is legally relevant when

the probative value of the evidence outweighs “unfair prejudice, confusion of the issues,


                                            30
misleading the jury, undue delay, waste of time, or cumulativeness.” State v. Johnson,

406 S.W.3d 892, 902 (Mo. banc 2013) (internal quotations omitted). A trial court may

“limit or exclude the use of impeachment evidence whose prejudicial effect far

out-distances its value to the jury as an aid for determining credibility.” Johnson, 700

S.W.2d at 818.

      Mr. Blurton presented no evidence that linked the daughter’s fear of Taron’s

mother to a motive for her to falsely identify Mr. Blurton’s voice on the 911 call. The

daughter’s testimony of her fear, therefore, was, of tenuous logical relevance to show that

the daughter had a motive to falsely accuse Mr. Blurton. Accordingly, the trial court did

not abuse its discretion in excluding this testimony. The Luetjens’ daughter’s testimony

about Taron’s mother would have been of little probative value to assist the jury in

determining the daughter’s credibility and would likely have confused the issues or

misled the jury. Johnson, 406 S.W.3d at 902.

                       E. Evidence of Threatening Telephone Calls

       Mr. Blurton also asserts that the trial court abused its discretion when it excluded

testimony from the Luetjens’ friend about telephone calls from Taron’s mother and

maternal grandmother. Mr. Blurton contends that this testimony would have confirmed

and corroborated the daughter’s testimony that she felt concerned for her safety because

of the telephone calls and rumors about Taron’s mother and the Luetjens’ friend’s

testimony would have supported the testimony of a neighbor about seeing Taron’s mother

outside of the Luetjens’ home on the day of the murders.




                                            31
       The state argues that this issue is not preserved because Mr. Blurton never

presented these theories of admissibility to the trial court. For an allegation of error to be

preserved for appellate review, the error must be presented to or decided by the trial

court. Davis, 348 S.W.3d at 770. Regardless of Mr. Blurton’s failure to specify why he

was offering the friend’s testimony, the trial court expressly ruled on whether that

testimony was admissible as evidence related to whether Taron’s mother may have

committed an overt act that directly connected her with the murders or as relevant to

the Luetjens’ daughter’s fear of Taron’s mother. In its objection to the daughter’s offer

of proof, the state objected to the friend’s testimony because the state argued that it was

being offered to support the argument that Taron’s mother had motive or opportunity to

commit the murders and because the threat had come from Taron’s maternal grandmother

and not directly from Taron’s mother. The trial court expressly denied the offer of proof

for these same reasons.      Accordingly, because these theories of admissibility were

decided by the trial court, this issue is preserved.

        After the friend testified at trial, Mr. Blurton made an offer of proof of her

testimony. In the offer of proof, she testified that on the day the Luetjens’ bodies were

discovered, her sister had a conversation with Taron’s mother and the friend had several

conversations with Taron’s maternal grandmother.          The friend testified that Taron’s

maternal grandmother called her to ask what had happened to Taron, her granddaughter.

The friend did not disclose any information. During one of these calls to her, Taron’s

maternal grandmother stated: “If you do not tell me about my granddaughter, you’ll end

up dead just like her.” The friend also overheard the conversation her sister had with


                                              32
Taron’s mother. She overheard her sister tell Taron’s mother to call the sheriff’s office to

find out what happened to Taron and heard her sister refuse to provide Taron’s mother

with any additional information. The friend’s sister told the friend that Taron’s mother

then hung up the telephone.

      As noted previously, to be admissible, evidence must be both logically and legally

relevant. Taylor, 466 S.W.3d at 528. “Evidence is logically relevant if it tends to make

the existence of a material fact more or less probable.” Id. Evidence is legally relevant

when the probative value of the evidence outweighs “unfair prejudice, confusion of the

issues, misleading the jury, undue delay, waste of time, or cumulativeness.” Johnson,

406 S.W.3d at 902 (internal quotations omitted).

      The proffered testimony was not logically relevant to any material fact at issue in

the case at trial.   The trial court properly excluded the Luetjens’ daughter’s testimony

that she feared Taron’s mother and that the daughter was with the friend and her sister

when Taron’s mother and maternal grandmother made the telephone calls to them. The

trial court ruled that this evidence was not relevant. Because the daughter’s proffered

testimony was properly excluded, the neighbor’s testimony was not relevant without the

daughter’s testimony. Additionally, because Mr. Blurton did not attempt to call the

neighbor who allegedly saw Taron’s mother outside the Luetjens’ home on the day of the

murders as a witness at trial, the friend’s testimony was not relevant without the

neighbor’s testimony. Accordingly, the trial court did not abuse its discretion in denying

the friend’s offer of proof.




                                            33
                         No Error Rejecting Mistrial Request

       In his final claim of error, Mr. Blurton asserts that the trial court abused its

discretion in denying his requests for a mistrial after the state inadvertently showed three

separate witnesses and the jury graphic crime scene photographs of the victims when the

state was calling up photographs on a PowerPoint presentation. Mr. Blurton contends

this evidentiary error warranted a mistrial because the unexpected viewing of the

gruesome photographs “triggered excess emotions against [Mr. Blurton]” and “caused

[Mr. Blurton’s] sentence to be imposed under the influence of passion.”

       Although the trial court had the discretion to grant Mr. Blurton’s mistrial requests,

a mistrial “is a drastic remedy and should be employed only in the most extraordinary

circumstances.”    State v. Taylor, 298 S.W.3d 482, 512 (Mo. banc 2009) (internal

quotations omitted).   “This decision is left to the discretion of the trial court, as it is in

the best position to determine whether the incident had a prejudicial effect on the jury.”

State v. Ward, 242 S.W.3d 698, 704 (Mo. banc 2008). A trial court abuses its discretion

to grant a mistrial only if “its ruling is clearly against the logic of the circumstances

before it and when the ruling is so arbitrary and unreasonable as to shock the appellate

court’s sense of justice and indicate a lack of careful consideration.” Id. A mistrial

should only be used “in those extraordinary circumstances in which the prejudice to the

defendant cannot otherwise be removed.” Id. A trial court may also grant a mistrial if

the evidentiary error is intentionally injected into the trial. State v. Aguilar, 478 S.W.2d

351, 355 (Mo. 1972).




                                             34
       During the state’s direct examination of the Luetjens’ daughter, the state first

inadvertently showed her a photograph of the bound hands of one of the victims instead

of a photograph of a vehicle owned by the Luetjens. An investigator in the public

defender’s office testified at a hearing on Mr. Blurton’s motion for a new trial that several

jurors reacted to the photographs by jolting or leaning forward in their chairs, covering

their mouths, or widening their eyes. One juror also said an expletive. Mr. Blurton

almost immediately asked the trial court to approach the bench. During the sidebar, the

state explained that all of its photographs were organized into a PowerPoint presentation

on a laptop computer, which was then displayed on a large television screen in the

courtroom. To access a photograph, the state would type in the photograph’s exhibit

number and then press enter.       The state had inadvertently displayed the incorrect

photograph when it either typed in the incorrect exhibit number or had typed in a number,

did not press enter, then typed in another number. After seeing the photograph, the

daughter began to cry while on the stand in view of the jury. Mr. Blurton requested a

mistrial, which the trial court denied. Mr. Blurton also asked the trial court to grant a

recess to allow the daughter to compose herself, which the trial court also denied after

asking the daughter if she wanted to take a break and she declined.

       The state then inadvertently showed the daughter’s ex-husband a series of crime

scene photographs in rapid fashion when it attempted to display a photograph of the

Luetjens’ house. The investigator testified that the jury reacted less than it had when the

first photograph was inadvertently displayed but that a few of the jurors leaned forward,

covered their mouth with their hands, or lowered their heads.          This time the state


                                             35
explained that it started with the first photograph on the PowerPoint presentation and

rapidly flipped through 12 photographs until it reached the correct photograph.

Mr. Blurton again requested a mistrial arguing it was “highly inflammatory for [the

photographs] to be shown to the jury in that type of fashion.” The trial court denied

Mr. Blurton’s request.

       Lastly, the state inadvertently showed a photograph of Donnie’s body to Donnie’s

acquaintance for three or four seconds. The investigator testified that, although there

may have been some reaction by the jurors, the reactions were not clearly evident this

time. Mr. Blurton moved for a mistrial, asserting that the photographs had a “negative

effect on [the] jury.” The trial court denied the request for a mistrial. After this denial,

Mr. Blurton requested the trial court to instruct the jury to disregard the photographs.

When the trial court agreed to do so, Mr. Blurton withdrew the request before the trial

court could act because he was afraid that “if the court says anything, it’s just going to

highlight it here even more than it’s happened.” The trial court then asked the state if it

could show the photographs in paper or poster form instead of using the PowerPoint, and

the state agreed to do so. Before allowing the state to resume its direct examination, the

trial court warned that it “really [didn’t] want it to happen again either.”

       The state’s inadvertent publication of the crime scene photographs did not require

the extreme remedy of a mistrial.        Mr. Blurton presents no evidence that the state

intentionally showed the Luetjens’ daughter or the other witnesses the photographs.

Additionally, all of the photographs inadvertently shown either had been or were later

admitted into evidence and shown to the jury. Although the photographs were gruesome


                                              36
and may have triggered emotions from the jury, the photographs were gruesome “because

the crime itself was gruesome.” State v. Johnson, 244 S.W.3d 144, 161 (Mo. banc 2008).

“Gruesome crimes produce gruesome, yet probative, photographs, and a defendant may

not escape the brutality of his own actions.” State v. Strong, 142 S.W.3d 702, 721 (Mo.

banc 2004) (internal quotations omitted).      Moreover, Mr. Blurton declined the trial

court’s offer to instruct the jury to disregard the photographs in an attempt to remove any

prejudicial effect through means other than a mistrial. Accordingly, the trial court did not

abuse its discretion in denying Mr. Blurton’s mistrial requests because the ruling was not

against the logic of the circumstances and showed careful consideration and an attempt

by the trial court to remove any potential prejudice.

                  Death Sentence is Not Excessive or Disproportional

       Although not requested by Mr. Blurton, this Court is required by section 565.035

to independently review Mr. Blurton’s death sentence.           In its review, this Court

determines:

       (1) Whether the sentence of death was imposed under the influence of
           passion, prejudice, or any other arbitrary factor; and

       (2) Whether the evidence supports the jury's or judge’s finding of a
           statutory aggravating circumstance as enumerated in subsection 2 of
           section 565.032 and any other circumstances found;

       (3) Whether the sentence of death is excessive or disproportionate to the
           penalty imposed in similar cases, considering both the crime, the
           strength of the evidence and the defendant.

Section 565.035.3.

       First, nothing in the record suggests that the jury recommended the death penalty

under the influence of passion, prejudice, or any arbitrary factor. Second, the jury found
                                             37
the following statutory aggravators: (1) Mr. Blurton had a prior serious assaultive

conviction; (2) each murder was committed while he was engaged in the commission of

two other murders; and (3) the murders involved depravity of mind and, as a result, the

murders were outrageously and wantonly vile, horrible, and inhuman insofar as each

victim was bound or otherwise rendered helpless and, therefore, Mr. Blurton exhibited a

callous disregard for the sanctity of all human life. Each of these statutory aggravators

was supported in the record.

      Lastly, Mr. Blurton’s sentence is proportional to the penalty imposed in similar

cases, considering the crime, the strength of the evidence and the defendant.       In a

factually similar case, the death penalty was imposed when the defendant murdered an

elderly victim who had her hands bound, had been shot in the head, and was robbed.

State v. Ramsey, 864 S.W.2d 320, 325-27 (Mo. banc 1993). The death penalty has been

imposed when the defendant has rendered his victim helpless before murdering the

victim. McFadden, 369 S.W.3d at 754-55; State v. Anderson, 306 S.W.3d 529, 544

(Mo. banc 2010); State v. Tisius, 92 S.W.3d 751, 766 (Mo. banc 2002). This Court has

affirmed sentences of death in cases when the defendant had one prior serious assaultive

conviction.   State v. Hosier, 454 S.W.3d 883, 891, 900 (Mo. banc 2015); State v.

Sidebottom, 753 S.W.2d 915, 926 (Mo. banc 1988); State v. Kinder, 942 S.W.2d 313,

331-32 (Mo. banc 1996). The death penalty has been imposed when the defendant has

murdered more than one person. State v. Driskill, 459 S.W.3d 412, 432-33 (Mo. banc

2015); Hosier, 454 S.W.3d at 899-900; State v. Wolfe, 13 S.W.3d 248, 265 (Mo. banc

2000), abrogated on other grounds by Mitchell v. Kardesch, 313 S.W.3d 667, 670


                                           38
(Mo. banc 2010); State v. Johnson, 968 S.W.2d 123, 135 (Mo. banc 1998); State v.

Mease, 842 S.W.2d 98, 102 (Mo. banc 1992). The death penalty has been imposed when

the defendant murdered at least one victim and perpetrated a robbery or burglary.

Driskill, 459 S.W.3d at 432; State v. Deck, 303 S.W.3d 527, 532-33 (Mo. banc 2010);

State v. Gilbert, 103 S.W.3d 743, 745-46 (Mo. banc 2003); State v. Williams, 97 S.W.3d

462, 466-67, 475 (Mo. banc 2003).

        After considering all the statutory factors, the imposition of the death penalty for

Mr. Blurton’s murder convictions was not excessive or disproportionate to the penalty

imposed in similar cases.

                                        Conclusion

        Mr. Blurton’s requested jury instruction on the statutory lesser included offense of

felony murder did not properly conform to the requirements in Notes on Use 2(b) of

MAI-CR 3d 314.06, and the trial court was not obligated to submit an incorrect

instruction. The trial court did not err in refusing to submit an improper instruction to the

jury.

        The trial court also did not err in admitting evidence at trial over Mr. Blurton’s

objection. The trial court properly admitted testimony regarding the location of the cell

phone towers to which Mr. Blurton’s cell phone connected on the night of the murders,

including his testimony that this analysis showed Mr. Blurton’s cell phone traveling on a

path from his home in Garnett, Kansas, to Cole Camp. The witness’s testimony of his

telephone toll analysis of Mr. Blurton’s cell phone calls did not require expert testimony

because his testimony was within the realm of a layperson. Moreover, his statement that


                                             39
this analysis showed Mr. Blurton’s general path of travel was based only on common

inferences within the realm of the ordinary experiences of a layperson. The trial court

also did not err in admitting testimony from the state’s fingerprint analyst that her

conclusions had been verified by other analysts.      The trial court sustained three of

Mr. Blurton’s objections and granted him all the relief he sought, and, in the only

instance in which his objection was overruled, the trial court did not err because Mr.

Blurton’s objection was untimely and similar testimony had already been admitted

without objection.

       The trial court also did not err in excluding evidence at trial. Mr. Blurton’s claim

that the trial court erred in excluding evidence of Taron’s mother’s presence outside the

Luetjens’ home on the day of the murders was not preserved because Mr. Blurton did not

attempt to present this evidence at trial. The trial court did not abuse its discretion in

excluding the Luetjens’ daughter’s testimony about being fearful of Taron’s mother due

to rumors and a threatening telephone call to the Luetjens’ friend because this testimony

was not logically relevant to show the daughter’s bias against or motive to testify

untruthfully about Taron’s mother when Taron’s mother was not a “personality” in the

case or even called as a witness at trial and was of little probative value to show the

daughter’s motive to falsely identify Mr. Blurton on the 911 call. The trial court did not

abuse its discretion in excluding testimony from the Luetjens’ friend about telephone

calls from Taron’s mother and maternal grandmother because this testimony would have

only been admissible to support testimony that the trial court properly excluded or that

Mr. Blurton did not offer at trial.


                                            40
       The trial court also did not err in rejecting Mr. Blurton’s mistrial requests after the

state inadvertently showed gruesome photographs from the crime scene during the

testimony of three witnesses. No evidence was presented that the state intentionally

showed these photographs to the Luetjens’ friends or family. Moreover, all of these

photographs were later shown to the jury, they were gruesome because the crime was

gruesome, and Mr. Blurton declined the trial court’s offer to instruct the jury to disregard

the photographs.

       An independent review by this Court finds that the record does not show that the

death sentences were imposed under the influence of passion, prejudice or any arbitrary

factor. Additionally, the evidence supports the jury’s finding that Mr. Blurton had a prior

serious assaultive conviction, that each murder was committed while he was engaged in

the commission of two other murders, and that the murders involved a depravity of mind

and, as a result, the murders were outrageously and wantonly vile, horrible, and inhuman.

Moreover, this Court finds that Mr. Blurton’s sentence was not excessive or

disproportionate to the penalty imposed in similar cases.

       Accordingly, the judgment is affirmed.


                                           ___________________________________
                                            PATRICIA BRECKENRIDGE, CHIEF JUSTICE


Russell, J., concurs; Fischer, J., concurs in
separate opinion filed; Wilson, J., concurs
in opinion of Fischer, J.; Draper, J., concurs
in result in separate opinion filed; Stith and
Teitelman, JJ., concur in opinion of Draper, J.



                                             41
                 SUPREME COURT OF MISSOURI
                                              en banc

STATE OF MISSOURI,                                   )
                                                     )
                                 Respondent,         )
                                                     )
v.                                                   )          No. SC93648
                                                     )
ROBERT BLAKE BLURTON,                                )
                                                     )
                                 Appellant.          )

                                    CONCURRING OPINION

          Robert Blurton appeals three first-degree murder convictions and death sentences.

I concur in the principal opinion in all respects, including the principal opinion's

explanation that State v. Jackson specifically dealt with "nested" lesser-included

offenses, 1 433 S.W.3d 390, 392 (Mo. banc 2014), and the holding that the circuit court
            0F




1
    It is clear Jackson dealt only with "nested" lesser-included offenses:

          The question presented in this case is whether the trial court can refuse to give a
          lesser included offense instruction requested by the defendant under section
          556.046 when the lesser offense consists of a subset of the elements of the
          charged offense and the differential element (i.e., the element required for the
          charged offense but not for the lesser offense) is one on which the state bears the
          burden of proof. The answer, unequivocally, is no.

433 S.W.3d at 392.
                                              ****

          [T]he jury's right to disbelieve all or any part of the evidence, and its right to
          refuse to draw any needed inference, is a sufficient basis in the evidence to justify
          giving any lesser included offense instruction when the offenses are separated
          only by one differential element for which the state bears the burden of proof.
was not required to give a lesser-included offense instruction on second-degree felony

murder. Because this Court is affirming three death sentences, which will no doubt

receive further review by this Court and the federal courts, I write separately to explain

that, in my view, the circuit court would not have erred in refusing the second-degree

felony murder instruction, even if it were tendered in the form required by the Notes on

Use for MAI-CR 314.04 and 314.06. Regardless, Blurton was not prejudiced by the

failure to give a second-degree felony murder instruction. State v. McLaughlin, 265

S.W.3d 257, 270-71 (Mo. banc 2008); State v. Hall, 982 S.W.2d 675, 682 (Mo. banc

1998); State v. Kinder, 942 S.W.2d 313, 330 (Mo. banc 1996).

                            Factual and Procedural Background

        Blurton was charged with three counts of first-degree murder for killing his aunt

and uncle and their 15-year-old granddaughter. Police found Donnie, Sharon, and Taron

Luetjen dead in their home. Each had been shot once in the back of the head. Each was

found lying face down on the floor, head on a pillow, and their hands were bound behind

their backs. Donnie's and Sharon's wallets lay empty nearby, and valuable items and

change were missing from another room. There was no sign of a forced entry. The State




Id. at 401.

                                         ****

        When dealing with "nested" lesser included offenses . . . "it is impossible to
        commit the greater without necessarily committing the lesser."

Id. at 404 (emphasis in original).


                                                2
did not charge robbery or, for that matter, any underlying felony. Blurton presented no

evidence during the guilt phase of trial.

       The State did, however, file a "Notice of Intent to Seek the Death Penalty." The

purpose of this filing is to put the defendant on notice of the potential aggravating factors

the State might try to prove during the penalty phase of the trial. The jury was ultimately

instructed, during the penalty phase of trial, to consider whether "the defendant was

engaged in the perpetration of robbery." Instruction No. 25. According to the verdict,

the jury found several aggravating factors existed, listing them in writing on the jury

verdict form, but it did not find Blurton was engaged in a robbery or, for that matter, any

felony it was asked to consider other than murder.

       In addition to an instruction on first-degree murder, the State requested the circuit

court to instruct the jury to find Blurton guilty of second-degree murder if he knowingly

caused the Luetjens' deaths without premeditation ("conventional" second-degree

murder). The State's request to instruct solely on this particular lesser-included offense

was in line with this Court's previous express holdings in McLaughlin, Hall, Kinder, and

State v. Griffin, 756 S.W.2d 475, 485 (Mo. banc 1988).             Blurton's proffered jury

instruction violated the Notes on Use for MAI-CR 314.04 and 314.06. Had the circuit

court given Blurton's proffered, and incorrectly worded, instruction it would have

committed error. The circuit court did not, therefore, err in rejecting Blurton's second-

degree felony murder instruction. Slip op. at 10. Had Blurton tendered a proper second-

degree felony murder instruction, the refusal to give that instruction was in accord with

this Court's prior first-degree murder death penalty cases.


                                             3
       Blurton, as the other defendants had done in the above cited cases, requested an

instruction for second-degree felony murder.          The circuit court refused to give the

proffered instruction. 2 The State objected on three grounds: (1) that the instruction
                       1F




lacked the proper form and accompanying instructions required under the Notes on Use

for MAI-CR 314.04 and 314.06; (2) that this defense may or may not have been

supported by the evidence; and (3) that the defense was mutually exclusive of the alibi

defense that Blurton had inserted into the case. The circuit court's decision to refuse the

second-degree felony murder instruction is in accord with this Court's first-degree murder



 2
   "As to [Counts I, II, and III], if you do not find the defendant guilty of murder in the first
degree, you must consider whether he is guilty of murder in the second degree.

As to [Counts I, II, and III], if you find and believe from the evidence beyond a reasonable
doubt:

       First, that [on or about] the 7th day of June, 2009, . . . in the County of Benton,
       State of Missouri, the defendant took property which was property owned by
       Donnie Luetjen and, that defendant did so for the purpose of withholding it from
       the owner permanently, and that defendant in doing so used physical force on or
       against [Donnie, Sharon, and Taron] Luetjen for the purpose of preventing
       resistance to the taking of the property, then you will find that the defendant has
       committed robbery in the second degree. However, unless you find and believe
       from the evidence beyond a reasonable doubt each and all of these propositions,
       you cannot find that the defendant has committed robbery in the second degree.

       Second, that [Donnie, Sharon, and Taron] Luetjen [were] shot and killed, and

       Third, that [Donnie, Sharon, and Taron] Luetjen [were] killed as a result of the
       perpetration of that robbery in the second degree,

then you will find the defendant guilty under [Counts I, II, and III] of murder in the second
degree.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all
of these propositions, you must find the defendant not guilty of murder in the second degree
under this instruction, but you must then consider whether he is guilty of murder in the second
degree under Instruction No. ____."

                                               4
death penalty cases affirming this approach under similar factual scenarios. 3 It is also in
                                                                                     2F




accord with the jury's verdict in this case indicating there was not sufficient evidence

presented that Blurton committed a robbery.

         The jury found Blurton guilty on all three counts and recommended three death

sentences, which the circuit court imposed. Blurton appeals directly to this Court, which

has jurisdiction. See Mo. Const. art. V, § 3.

                                             Analysis 43F




         Section 556.046 requires circuit courts to give a requested lesser-included offense

instruction if there is a basis in the evidence to acquit the defendant of the immediately

higher included offense and convict of the lesser. An offense is included when "[i]t is

established by proof of the same or less than all the facts required to establish the

commission of the offense charged," § 556.046.1(1)—in other words, the elements of the

lesser offense are a subset of the elements of the higher offense, or "nested." See

Jackson, 433 S.W.3d at 392. An offense is also deemed included within the offense

charged when "[i]t is specifically denominated by statute as a lesser degree of the offense


 3
     The ruling from the bench was as follows:

         [T]his defendant was not charged with any underlying felony whatsoever. The
         tendered instruction picks a felony that the defendant picks, that the State did not
         charge. The defense, on this tendered instruction, has picked robbery in the
         second degree. By picking an underlying offense, it is inconsistent with alibi, and
         I think the defense may be, is maybe allowed to argue inconsistent theories,
         asserting innocence.

         The foreman [sic] [form], which the instruction as tendered, is not the proper --
         the facts in evidence in this case do not support that giving of felony murder.
         More technically -- murder in the second degree, felony. It is also inconsistent
         with the language that the defense did request with respect to the alibi type
         information. "A" is refused.

                                                  5
charged." Section 556.046.1(2). This second type of lesser-included offense necessarily

requires proof of additional elements, other than the higher offense. §§ 565.025.2(1)(a),

565.021.1(2), RSMo 2000.

         As explained in the principal opinion, the circuit court's refusal to give Blurton's

second-degree felony murder instruction was not error because it was not in the form

required by the Notes on Use for MAI-CR 314.04 and 314.06.                   Moreover, neither

Blurton, the principal opinion, nor the separate opinion of Judge Draper, cite to a single

case in which this Court permitted, let alone required, the submission of a second-degree

felony murder instruction based on an uncharged felony. Furthermore, the jury in this

case did not find that the State proved that Blurton was engaged in a robbery or any other

felony.

    Even if Blurton Had Tendered an Instruction on Second-Degree Felony Murder in
      Accordance with the Notes on Use for MAI-CR 314.04 and 314.06, It Was Not
                     Prejudicial to Refuse to Submit the Instruction

         Even assuming the circuit court erred by refusing to instruct on second-degree

felony murder in this case, which has not been demonstrated, this Court held in

McLaughlin that the State had overcome the presumption of prejudice in this same

factual scenario. McLaughlin, a unanimous decision authored by Judge Stith, is directly

on point. In that case, the defendant was charged with first-degree murder, forcible rape,

and armed criminal action.          265 S.W.3d at 260-61.        The defendant requested an

instruction on second-degree felony murder, based on the rape charge, but the circuit




4
    Statutory citations are to RSMo Supp. 2013 except where otherwise indicated.

                                                 6
court refused to give it and instead instructed on conventional second-degree murder. Id.

at 261. This Court's opinion states as follows:

              Mr. McLaughlin next argues that the trial court erred in submitting
       only first-degree and conventional second-degree murder and in refusing to
       also submit second-degree felony murder. He notes that the state argued
       that he raped the victim in the same incident in which he murdered her and
       submitted counts of both forcible rape and first-degree murder. The jury in
       fact found that Mr. McLaughlin forcibly raped the victim and that he
       murdered her. Therefore, Mr. McLaughlin argues, the trial court should
       have submitted felony murder so that he could have argued that if the jury
       found that he killed the victim in furtherance of the rape, it should convict
       him of second-degree felony murder rather than first-degree murder.

              Mr. McLaughlin is correct that a trial court is obligated to charge the
       jury with respect to lesser-included offenses that are supported by the
       evidence, so as to give it a third choice beyond either acquittal or first-
       degree murder. Beck v. Alabama, 447 U.S. 625, 637–38, (1980); State v.
       Hall, 982 S.W.2d 675, 682 (Mo. banc 1998); Sec. 556.046, RSMo 2000.
       Felony murder is a lesser-included offense of first-degree murder. Sec.
       565.025.2(1)(a). Conventional second-degree murder is also a lesser-
       included offense of first-degree murder, however. For this reason, as Mr.
       McLaughlin recognizes, Hall held that it was not error to refuse to submit
       felony murder so long as the trial court did submit second-degree murder,
       for when "a jury convicts on first-degree murder after having been
       instructed on second-degree murder, there is no prejudice to the defendant
       by the refusal to submit a second-degree felony murder instruction." Hall,
       982 S.W.2d at 682, (quoting State v. Kinder, 942 S.W.2d 313, 330 (Mo.
       banc 1996)).

              Mr. McLaughlin acknowledges Hall, but argues that it is
       distinguishable because in that case the prosecution did not also submit the
       felony that underlies the felony murder charge, whereas here the prosecutor
       did submit both murder and forcible rape. He also argues that he should
       have had the option, at least, of choosing which form of second-degree
       murder to submit in this situation.

              While the prosecution in Hall did not submit the underlying felony,
       the case on which it relied, Kinder, did submit both first and conventional
       second-degree murder and rape, just as in the case at bar. Thus, it is directly
       on point. Kinder held that because the pattern criminal jury instructions
       require the jury to find defendant not guilty of first-degree and conventional
       second-degree murder before considering the felony murder instruction, no

                                             7
       prejudice could result from failing to submit felony murder. Kinder, 942
       S.W.2d at 330.

              Of course, Mr. McLaughlin is correct that the trial court could have
       submitted felony-murder rather than or in addition to submitting
       conventional second-degree murder without committing error if both were
       supported by the evidence. But, the issue is not what the trial court could
       have done, but whether prejudice resulted from its failure to submit felony
       murder. Hall, Kinder, and numerous other cases hold that no prejudice
       results from refusing to submit a felony murder instruction where a
       conventional second-degree murder instruction was given because the latter
       sufficiently tests the evidence of deliberation by giving the jury the option
       of convicting the defendant of a lesser offense. This Court reaffirms these
       holdings.

Id. at 270-71 (some internal citations omitted).

       Likewise, in Hall, this Court held as follows:

              Hall asserts the trial court erred by refusing to submit to the jury an
       instruction for the offense of second-degree felony murder. "Under section
       556.046.2, RSMo 1986, the trial court is obligated to charge the jury with
       respect to a lesser included offense when there is a basis for a verdict
       acquitting him of the offense charged and convicting him of the included
       offense."

             We have consistently held that when "a jury convicts on first-degree
       murder after having been instructed on both first degree and second-degree
       murder, there is no prejudice to the defendant by the refusal to submit a
       second degree felony murder instruction." The trial court did not err. Point
       denied.

982 S.W.2d at 682 (citations omitted).

       Likewise in Kinder, this Court unanimously held as follows:

              Kinder's next claim is that the trial court erred in refusing his second
       degree felony murder instruction, which was patterned after MAI-CR 3d
       313.06. We disagree. The trial court did submit Kinder's conventional
       second degree murder instruction, which was patterned after MAI-CR 3d
       313.04. Under § 556.046.2, RSMO 1986, the trial court is obligated to
       charge the jury with respect to a lesser included offense when there is a
       basis for a verdict acquitting the defendant of the offense charged and
       convicting him of the included offense. Murder in the second degree is a

                                             8
      lesser-included offense of murder in the first degree. § 565.025.2(1)(a). In
      reviewing similar claims, this Court has held that "[t]he appropriate
      MAI-CR 3d requires that the jury find the defendant not guilty of first
      degree murder and then conventional second degree murder before it may
      consider second degree felony murder." When a jury convicts on first
      degree murder after having been instructed on both first degree and second
      degree murder, there is no prejudice to the defendant by the refusal to
      submit a second degree felony murder instruction. This is the exact scenario
      in the current case, and thus Kinder was not prejudiced by the trial court's
      refusal to submit his second degree felony murder instruction.

942 S.W.2d at 330 (citations omitted).

      And likewise in Griffin, this Court again expressly held:

             Defendant's next point is his assertion that the jury should have been
      instructed on the lesser included offense of second degree felony murder
      with respect to each count. Trial courts are obligated to instruct on lesser
      included offenses supported by the evidence. Section 556.046, RSMo 1986.
      See also Beck v. Alabama, 447 U.S. 625, 635–43 (1980). Although second
      degree felony murder is not a lesser included offense of first degree murder
      under the traditional "elements test," it has been specifically denominated
      as such, see §§ 556.046 and 565.025, RSMo 1986.

             As the evidence in this case of defendant's state of mind was not
      conclusive, it did support an instruction on second degree felony murder
      and the trial court should have so instructed the jury. Defendant, however,
      was not prejudiced by the court's failure to do this. The jury was
      instructed on the lesser-included offense of second degree conventional
      murder. It is a second degree conventional murder instruction, not a
      second degree felony murder instruction, which sufficiently tests a
      jury's belief of the crucial facts for a conviction of first degree murder.
      . . . The jury had the opportunity to convict defendant of second degree
      conventional murder but did not do so. An additional instruction on second
      degree felony murder would have made no difference.

756 S.W.2d at 485 (emphasis added) (some internal citations omitted).

      In this case, the jury was given a choice other than capital murder and acquittal:

conventional second-degree murder.       It chose to find Blurton guilty of first-degree




                                            9
murder and sentenced him to death based on its determination that the State proved all of

the aggravating factors submitted except:

       "4. Whether the defendant murdered [Donnie/Sharon/Taron] Luetjen for the

       purpose of the defendant receiving money or any other thing of monetary

       value from [Donnie/Sharon] Luetjen or another."

       "6. Whether the murder of [Donnie/Sharon/Taron] Luetjen was committed

       while the defendant was engaged in the perpetration of burglary. A person

       commits the crime of burglary when the person knowingly enters

       unlawfully or knowingly remains unlawfully in a building or inhabitable

       structure for the purpose of committing stealing."

       "7. Whether the murder of [Donnie/Sharon/Taron] Luetjen was committed

       while the defendant was engaged in the perpetration of robbery. A person

       commits the crime of robbery when he forcibly steals property."

                                       Conclusion

       Second-degree felony murder is not a "nested lesser" and requires proof of a

felony in addition to murder. If the jury chose to disbelieve all or any part of the State's

evidence it would result in acquittal of first-degree murder and would not necessarily

result in the conviction of second-degree felony murder, which in this case would require

proof beyond a reasonable doubt of an uncharged felony. The jury was specifically asked

to consider whether the State had demonstrated an underlying felony of robbery in the

context of considering aggravating factors for purposes of punishment. The jury did not




                                            10
find a robbery or any felony it was instructed to consider had been committed except

three first-degree murders.

       In conclusion, I concur in the principal opinion affirming the circuit court's

judgment that the instruction on second-degree felony murder was not in the proper form

and, therefore, the circuit court did not err in refusing to give it as tendered. For the

additional reasons articulated above, it would not have been error to reject a second-

degree felony murder instruction even if it was tendered in compliance with the Notes on

Use for MAI-CR 314.04 and 314.06. 5     4F




                                                            ___________________________
                                                            Zel M. Fischer, Judge




5
 But even assuming it was an error, the State, as it did in McLaughlin, Hall, Kinder, and Griffin,
has overcome the presumption of prejudice.

                                               11
             SUPREME COURT OF MISSOURI
                                        en banc
STATE OF MISSOURI,                           )
                                             )
                     Respondent,             )
                                             )
v.                                           )     No. SC93648
                                             )
ROBERT BLAKE BLURTON,                        )
                                             )
                     Appellant.              )

                        OPINION CONCURRING IN RESULT

       I diverge from the principal opinion’s analysis in several aspects. First, I would

find that a trial court is required to submit any lesser-included offense requested by a

defendant. Second, I would find the trial court failed to instruct the jury on the lesser-

included offense of second-degree felony murder when Robert Blake Blurton

(hereinafter, “Blurton”) requested the instruction and the instruction was supported by

evidence presented at trial, but due to Blurton’s failure to submit a properly worded

instruction or to request the opportunity to modify his instruction, there was no prejudice.

Third, there was no need to overrule State v. Derenzy, 89 S.W.3d 472 (Mo. banc 2002),

sub silentio. Accordingly, I concur in result only.

           The trial court is required to instruct on the lesser-included offense

       Blurton’s first point on appeal alleges, “The trial court failed to give a lesser-

included offense instruction (felony murder) that was supported by the evidence and was
the theory primarily argued by the defense ….” Review of a trial court’s decision

whether to give a requested jury instruction pursuant to section 556.046, RSMo Supp.

2002, 1 is de novo. State v. Jackson, 433 S.W.3d 390, 395 (Mo. banc 2014). When “the
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statutory requirements for giving such an instruction are met, a failure to give a requested

instruction is reversible error.” Id.

             Section 556.046.1 sets forth three situations wherein an offense is considered

“included” in another offense. An offense is considered to be a lesser-included offense

when:

             (1) It is established by proof of the same or less than all the facts required to
             establish the commission of the offense charged; or

             (2) It is specifically denominated by statute as a lesser degree of the offense
             charged; or

             (3) It consists of an attempt to commit the offense charged or to commit an
             offense otherwise included therein.

Section 556.046.1.

             While second-degree felony murder does not meet the traditional “elements test”

as set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed.

306 (1932), it is denominated specifically as a lesser-included offense by our Missouri

legislature. State v. Griffin, 756 S.W.2d 475, 485 (Mo. banc 1988). Section

565.025.2(l)(a), RSMo 2000, 2 provides that felony murder and conventional second-
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degree murder are both lesser-included offenses of first-degree murder. The requirement

of section 556.046.1(2) is met.

1
    All further references to this section are RSMo Supp. 2002.
2
    All further references to this section are RSMo 2000.
                                                    2
       Section 556.046 next contemplates when a trial court is required to instruct a jury

on a lesser-included offense. Section 556.046.2 states that the trial court is not required

to instruct the jury on a lesser-included offense “unless there is a basis for a verdict

acquitting the defendant of the offense charged and convicting him [or her] of the

included offense.” Further, section 556.046.2 provides that a “charged offense” is one

that is included in the indictment or information or “is an offense submitted to the jury

because there is a basis for a verdict acquitting the defendant of the offense charged and

convicting the defendant of the included offense.” Here, the state presented evidence that

there was missing property from the victims. Accordingly, this subsection is met.

       Finally, section 556.046.3 provides the trial court is “obligated to instruct the jury

with respect to a particular included offense only if there is a basis in the evidence for

acquitting the defendant of the immediately higher included offense and there is a basis in

the evidence for convicting the defendant of that particular included offense.”

       “The decision of what evidence to believe or disbelieve belongs solely to the

jury.” State v. Pierce, 433 S.W.3d 424, 432 (Mo. banc 2014). The trial court “is required

to decide what facts a reasonable jury may find from the evidence, but it is never

permitted to go further and decide what facts the jury must find.” Id. (Emphasis in

original). A trial court may not usurp the jury’s duty by limiting its inquiry.

       Here, the state requested the instructions for first-degree murder and the lesser-

included offense of conventional second-degree murder. The trial court accepted both

instructions. Thereby, it implicitly recognized there was a basis upon which the jury

could acquit Blurton of first-degree murder because it instructed the jury on the lesser-

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included offense of second-degree murder. Blurton additionally requested the instruction

for second-degree felony murder be submitted as a lesser-included offense. Yet, the trial

court refused Blurton’s request.

       There is no prohibition on submitting two lesser-included instructions. It is clear

that both conventional second-degree murder and second-degree felony murder may be

submitted to the jury as lesser-included offenses of first-degree murder. MAI-CR 3d

314.06 Note 5. The only qualification in submitting all lesser-included instructions is

that there must be a basis in the evidence to support the instructions and the instructions

are “requested by one of the parties or the court.” Section 565.025.3.

       In Jackson and its progeny, this Court found that any lesser-included offense that

meets the traditional “elements test” as set forth in Blockburger is a “nested” offense and

meets the requirement of section 556.046.1. When reviewing whether the trial court

erred in failing to instruct the jury on the lesser-included offense as required by section

556.046.2 and .3, Jackson and Pierce determined that a trial court commits reversible

error in failing to instruct the jury on the lesser-included, “nested” offense. This occurs

because if the evidence is sufficient to convict the defendant of the greater charged

offense, there is always sufficient evidence to convict the defendant of the lesser-included

offense in that the jury may “disbelieve all or any part of the evidence concerning that

differential element.” Pierce, 433 S.W.3d at 430 (citing Jackson, 433 S.W.3d at 404-06).

Further, this Court stated that a

       defendant not only does not need to introduce affirmative evidence, he [or
       she] does not have to ‘cast doubt’ over the state’s evidence via cross-
       examination or explain to the judge or jury precisely how or why the jury

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       can disbelieve that evidence and so acquit him [or her] of the greater
       offense and convict him [or her] of the lesser.

Jackson, 433 S.W.3d at 401-02.

       While the lesser-included instruction at issue in this case is not a “nested”

instruction, it still is a lesser-included instruction because it has been denominated as

such by statute. Rather than ignore our legislators’ directive in section 556.046, I would

find that the statutory requirements were met and, just as in Jackson, find that a trial court

is obligated to instruct the jury on a lesser-included offense, provided “there is a basis in

the evidence for convicting the defendant of that particular included offense.” Section

556.046.3. “Doubts concerning whether to instruct on a lesser-included offense should

be resolved in favor of including the instruction, leaving it to the jury to decide.”

Jackson, 433 S.W.3d at 399 (quoting Derenzy, 89 S.W.3d at 474-75). Should the jury not

believe the defendant, it will convict on the “higher” offense without regard to the lesser-

included instruction. Inclusion of a requested, lesser-included instruction that complies

with our legislators’ mandate in section 556.046 should be given.

       Here, the evidence submitted by the state during the trial supported the submission

of Blurton’s requested second-degree felony murder instruction. To prove felony

murder, there must be evidence showing that the homicide occurred during the

commission or attempted commission of a felony. State v. Agee, 350 S.W.3d 83, 91-92

(Mo. App. S.D. 2011). In this case, the state presented evidence, which may or may not

be believed by the jury, that a robbery occurred at the victims’ home. Further, the jury

may or may not believe that there was an intent to kill as opposed to merely committing a


                                              5
robbery. Each of these two types of second-degree murder are of equal status, and

Blurton was entitled to submit both theories to the jury. I would find that the trial court

erred in failing to submit the requested lesser-included instruction. While the trial court

committed reversible error in failing to submit a requested lesser-included instruction,

reversal of the underlying conviction is mandated only when the trial court’s error was

prejudicial to the defendant. State v. Deck, 303 S.W.3d 527, 548 (Mo. banc 2010).

                                          Prejudice

       Blurton’s proffered lesser-included instruction failed to comply with MAI-CR 3d

323.04 because his instruction did not contain a description of the property that he

allegedly took. “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 ….” Rule 28.02(f). While the trial court

was not required to give an instruction that failed to comply with the MAI, the law is

unclear as to whether the trial court should have provided Blurton the opportunity to

modify his proffered instruction to comply with the MAI before tendering the instructions

to the jury. 3 However, this point need not be resolved at this time.
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       Missouri places a “great emphasis on legally correct instructions, and this Court

has made it clear that criminal defendants should be freely allowed to argue their

contentions arising from the facts.” State v. Westfall, 75 S.W.3d 278, 284 (Mo. banc

3
  This is especially so in this case as the state’s objection was that the instruction was not
in the proper form or had the proper accompanying instructions. There was no specific
reference to the failure to comply with MAI-CR 3d 323.04. Additionally, Blurton did not
request, on the record, to modify his proffered instruction in order to comply with the
proper form.
                                              6
2002). The presumption of prejudice, which arises from the failure to provide an

instruction, can be overcome if the state clearly establishes the error did not result in

prejudice. Id. “An appellate court will not remand for a new trial on the basis of an error

that did not violate a defendant’s constitutional rights unless ‘there is a reasonable

probability that the trial court’s error affected the outcome of the trial.’” Jackson, 433

S.W.3d at 424 n.4 (quoting State v. Forrest, 183 S.W.3d 218, 224 (Mo. banc 2006)).

       I believe that under the circumstances of this case, Blurton was not prejudiced by

the trial court’s failure to provide an instruction for second-degree felony murder that was

predicated upon a robbery because the jury explicitly rejected the facts that would have

established the robbery by rejecting those applicable aggravating factors in the penalty

phase. Further, Blurton did not request an opportunity to modify his proffered instruction

to comply with the MAI. Hence, while it was error to not submit the lesser-included

instruction, Blurton is unable to demonstrate he was prejudiced by this error.

                                     Derenzy’s Validity

       In reaching its result, the principal opinion overruled, by implication, the holding

in Derenzy, which allowed plain error review of improperly worded jury instructions.

Slip Op. at 11-2 n.7. I believe the principal opinion overreached in interpreting the

intersection between Rule 28 and the holding in Derenzy.

       Derenzy found that because the defendant submitted an incorrect lesser-included

offense instruction, the defendant was unable to avail himself of the mandatory review

included in Rule 28. Derenzy, 89 S.W.3d at 475. Derenzy recognizes that, “A trial court

does not commit error by rejecting an instruction that either misstates the law or would

                                              7
have confused the jury.” Id. However, because the defendant could not take advantage

of Rule 28 review, he could only receive plain error review to determine whether there

was a manifest injustice in failing to instruct the jury on the requested, lesser-included

instruction. Id. The Court then found that because submitting the requested lesser-

included instruction was mandatory and the defendant could have been acquitted on the

greater offense, there was plain error in not submitting a proper lesser-included offense

instruction. Id.

       I believe that there is no conflict in Derenzy between our general principles of

instructional review and Rule 28. Derenzy provides clear guidance regarding review of

an incorrectly worded, requested, lesser-included instruction. This is the analysis that I

believe should be followed and, as detailed in this concurrence, I demonstrated could be

used to reach the same result. By the principal opinion’s assertion that Derenzy’s review

provided by Rule 28 is in conflict with the proposition that a trial court does not commit

error by submitting an incorrect instruction, the principal opinion overrules Derenzy sub

silentio.

       I believe that as justice requires, this Court should always be able to invoke plain

error review as Rule 30.20 allows. There is no need to limit this Court’s ability to review

errors that result in manifest injustice. Plain error review is discretionary; it is not

mandatory review. Rule 30.20; see also State v. Taylor, 466 S.W.3d 521, 533 (Mo. banc

2015) and State v. Collings, 450 S.W.3d 741, 769 (Mo. banc 2014).

       A “decision of this Court should not be lightly overruled.” Eighty Hundred

Clayton Corp. v. Dir. of Revenue, 111 S.W.3d 409, 411 n. 3 (Mo. banc 2003). Stare

                                               8
decisis “promotes stability in the law by encouraging courts to adhere to precedents.”

State v. Honeycutt, 421 S.W.3d 410, 422 (Mo. banc 2013).

       This Court consistently, and recently, has allowed plain error review of

instructions “when it is clear that the trial court has so misdirected or failed to instruct the

jury that manifest injustice or miscarriage of justice has resulted.” State v. Hunt, 451

S.W.3d 251, 260 (Mo. banc 2014) (citing State v. Ousley, 419 S.W.3d 65, 75 (Mo. banc

2013)). I would not limit this Court’s ability to provide plain error relief when there is a

manifest injustice that results in prejudice to a defendant. I see no need to diminish this

Court’s holding in Derenzy in a footnote without further guidance and explanation to

future litigants and defendants as to the implications of that decision.

                                         Conclusion

       Accordingly, I concur with the principal opinion in result only.




                                                           __________________________
                                                           GEORGE W. DRAPER III, JUDGE




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