STATE OF MISSOURI,                      )
                                        )
                   Respondent,          )
                                        )
      vs.                               )   No. SD32900
                                        )
HEATHER DAWN BENNETT,                   )   FILED: February 25, 2015
                                        )
                   Appellant.           )

            APPEAL FROM THE CIRCUIT COURT OF DOUGLAS COUNTY

                         Honorable R. Craig Carter, Judge

AFFIRMED

      Heather Bennett ("Defendant") appeals convictions for robbery and second-

degree (felony) murder of Jackie "Allen" Yarber. She claims insufficient evidence

supports her murder conviction and charges trial court error in admitting into

evidence preliminary hearing testimony and her statement to police. We affirm.

                                  Background

      We summarize facts in accordance with our standard of review, crediting only

evidence and reasonable inferences supporting the verdict and disregarding all

others. State v. Stallman, 289 S.W.3d 776, 778 (Mo.App. 2009).
        Yarber, who had known Defendant just a few days, showered her with

attention, gifts, and cash in hopes of dating her. The day of the killing, Defendant

was preparing for her child's birthday party, but had no car. Yarber drove Defendant

around; spent $150 of his money on decorations, gifts, and pizza; and let Defendant

drive his truck to pick up party guests. After the party that night, Yarber and others

went to Defendant's home.

        Defendant went to a back room with Brad Jenkins and Daniel Baird to smoke

methamphetamine. She claimed Yarber carried $400; they could get him "out back

and beat him up and take it." Jenkins felt it was too close to the house. Defendant

then said they could "take him out in the woods and kill him." After she offered

more encouragement, it was agreed to kill Yarber, split the stolen cash three ways,

and take his truck (Defendant wanted the stereo and wheels).

        Yarber was persuaded to leave with Baird and Jenkins in his truck under

pretense of going "dirt-roading" (drinking on dirt roads). Defendant rode with her

friend Michael Hand and told him the plan as he drove. Out in the country, the

trucks parted ways. Jenkins and Baird robbed Yarber and slayed him in grisly

fashion, then called Defendant to report it was “done” and eventually returned to her

home.

        Police investigation led to arrests and charges. Jenkins and Baird each

pleaded guilty to robbery, murder, and armed criminal action. A jury convicted

Defendant of robbery and murder, resulting in this appeal.

               Point I – Sufficiency of Felony Murder Evidence

        Second-degree murder occurs if a person commits any felony and "another


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person is killed as a result of the perpetration of that felony." Stallman, 289

S.W.3d at 779. Under Missouri's foreseeability-proximate cause theory of felony

murder, the actual killer's identity "is irrelevant and a defendant may be considered

responsible for any deaths that are the natural and proximate result of the

commission of a felony." Id.1 Defendant does not challenge the sufficiency of proof

for her robbery conviction; the issue is whether Yarber died as a reasonably

foreseeable consequence of the robbery.                State v. Cole, 384 S.W.3d 318, 328

(Mo.App. 2012).

          Defendant urges "no" – that no evidence indicated she knew about, planned,

or encouraged the killing, and "[a]t most, she knew about or encouraged a robbery."

She portrays Baird and Jenkins as subsequently deciding to kill Yarber, an

independent, intervening cause allegedly relieving her from criminal responsibility

for the death.

          This argument ignores our standard of review, Stallman, 289 S.W.3d at 778,

and above-summarized testimony indicating Defendant foresaw and even promoted

the killing of Yarber.2 Point I fails.


1 We decline Defendant's invitation to reinterpret Missouri's felony-murder statute in light of
Burrage v. U.S., 134 S. Ct. 881 (2014). Burrage addressed sentencing provisions of the federal
Controlled Substances Act, did not declare constitutional law, was not a felony murder case per se,
and compels no particular result here.
2   To quote fully some of this testimony:
        Q When [Defendant] told you could take [Victim] out back and [rob him] what, if anything,
          did you do?
        A I said no.
        Q Why?
        A Because it was too close to the house.
        Q What were you concerned about?
        A Getting snitched out or told on.


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                        Point II – Alleged Crawford Violation

      Michael Hand initially cooperated with the prosecution and testified at

Defendant's preliminary hearing.              But after Hand twice failed to appear for

deposition, the prosecutor reported "a very good chance" he would charge Hand with

crimes arising out of the robbery and murder.

      After Hand refused to testify at Defendant's trial, invoking his right against

self-incrimination, the prosecutor offered Hand's testimony from Defendant's

    Q What happened at that point?
    A We sat around some more, talking a little more, then we talked about killing Allen Yarber.
    Q Who brought that up?
    A Heather did.
    Q What did she say?
    A She said instead of taking him out we can take him out in the woods and kill him.
                                                   ***
    Q What did you do at that point?
    A At that point we talked little more, she told me Jackie was a child molester.
    Q How did that make you feel?
    A Angry.
    Q Why is that?
    A Because I don't like child molesters, makes me scared for my kids.
    Q When she told you that what, if anything, happened.
    A After she told me that, I was on board to kill him.
                                                   ***
    Q At that point you guys had decided to do what?
    A Kill Allen Yarber.
    Q What else?
    A Take his truck, Heather wanted the stereo and wheels.
    Q When did she tell you that?
    A She told me right before we left the room.
    Q Was there any talk about taking cash?
    A Yes, sir, she said we could split it three ways.
    Q $400 three ways?
    A Yes, sir.


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preliminary hearing. Defense counsel objected, arguing that issues had changed

since the preliminary hearing and the defense had no way to cross-examine Hand

further. The trial court overruled the objection and Hand's prior testimony was read

to the jury.

       Defendant claims this violated her constitutional right to confront witnesses

against her, citing Crawford v. Washington, 541 U.S. 36 (2004). We review this

question of law de novo. State v. Turner, 242 S.W.3d 770, 774 (Mo.App. 2008).

       We rejected a similar complaint in Turner where, as here, the defense had

availed itself of the opportunity to cross-examine the witness at preliminary hearing.

Drawing on earlier cases, we concluded that admitting the prior testimony did not

violate Crawford. Id. at 776-77 (citing primarily State v. Griffin, 848 S.W.2d

464 (Mo. banc 1993), and State v. Aaron, 218 S.W.3d 501 (Mo.App. 2007)).

       Defendant claims cross-examination at the preliminary hearing was not

adequate because Hand then was seen as a fact witness, not a potential co-

defendant. Similar arguments failed in Griffin, 848 S.W.2d at 470, Turner, 242

S.W.3d at 776, and Aaron, 218 S.W.3d at 510.

       The trial court did not violate Crawford or abuse its discretion in admitting

Hand’s prior testimony. Turner, 242 S.W.3d at 776-77. We deny Point II.

                     Point III – Alleged Seibert Violation

       This point charges error "in admitting [Defendant's] police statement into

evidence at trial over objection," citing an alleged violation of Missouri v. Seibert,




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542 U.S. 600 (2004).3 Yet an initial and basic flaw of this complaint is lack of timely

objection.

         The record on appeal includes two recorded "statements" – State's Exhibits 42

and 44. The defense said "No objection" both when Exhibit 42 was offered and

before it was played for the jury. Exhibit 44 came in through a later witness; again

the defense said "No objection" before it was admitted and played in part for the

jury.

         Later, during the fourth day of trial, defense cross-examination developed the

testimony Defendant now cites in claiming a Seibert violation. Although Defendant

later objected (unsuccessfully and somewhat unclearly) to the jury hearing any more

of admitted Exhibit 44 or related testimony, she never moved to strike the admitted

exhibits or sought a withdrawal instruction or any similar relief.

         We need not reach strong arguments of no Seibert violation, or reject

Defandant's claim as in Gaw, 285 S.W.3d at 324-25. Here, "Defendant did not

simply fail to object to Exhibit [42 or 44], [s]he affirmatively stated [s]he had no

objection to [either]." State v. Langford, No. SD32548, 2014 WL 2895869, at *4

(Mo.App. June 26, 2014).

3   Seibert tested
       a police protocol for custodial interrogation that calls for giving no warnings of the rights to
       silence and counsel until interrogation has produced a confession …. [T]he interrogating
       officer follows it with Miranda warnings and then leads the suspect to cover the same
       ground a second time. The question … is the admissibility of the repeated statement.
Id. at 604. As interpreted for Missouri courts, Seibert holds "that a confession is inadmissible
despite a belated Miranda warning where a 'two-step interrogation technique was used in a
calculated way to undermine the Miranda warning.'" State v. Gaw, 285 S.W.3d 318, 323 (Mo.
banc 2009) (quoting Seibert, 542 U.S. at 622 (Kennedy, J., concurring in judgment)).




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         "The general rule in Missouri is that a statement of 'no objection'
         when evidence is introduced affirmatively waives appellate review of
         the admission." State v. McWhorter, 240 S.W.3d 761, 763 (Mo.App.
         S.D. 2007). "Under those circumstances, even plain error review is
         not warranted." State v. Goudeau, 85 S.W.3d 126, 128–29 (Mo.App.
         S.D.2002) (quoting State v. Markham, 63 S.W.3d 701, 707-08
         (Mo.App. S.D. 2002)); see also State v. White, 421 S.W.3d 560, 569
         (Mo.App. E.D. 2014); State v. Massa, 410 S.W.3d 645, 656-57
         (Mo.App. S.D. 2013); State v. Johnson, 160 S.W.3d 839, 842
         (Mo.App. S.D. 2005).

Id. Defendant waived her Point III challenge to admission of these exhibits. Id.

Point denied.

                                  Conclusion

      Finding no merit in any of Defendant's points, we affirm the judgment and

convictions.


DANIEL E. SCOTT, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

WILLIAM W. FRANCIS, JR., P.J./C.J. – CONCURS




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