                                                     In
                                                     I the
                               Misssouri Court
                                         C     off Appeaals
                                           Westeern Disttrict
STATE OF MISSO
             OURI,                                         )
                                                           )
                   Resp
                      pondent,                             )    D77521
                                                               WD
                                                           )
v.                                                         )   OPIINION FIL LED:
                                                           )   Deccember 15,, 2015
    THY T. MccCLENDON
TIMOT               N,                                     )
                                                           )
                     Appellant.                            )

                 Appea
                     al from thee Circuit Court of Jacckson Coun
                                                               nty, Missou
                                                                         uri
                            The Honorable J. Dale Yooungs, Judgee

 Beforee Division Three:
                  T      Joseeph M. Elliss, Presidingg Judge, Kaaren King M
                                                                          Mitchell, Juddge
                                and Garyy D. Witt, JJudge


       Appellant
       A         Timothy MccClendon (""McClendonn") was connvicted afteer a jury triial in

Jackson County Cirrcuit Court of murder in the firstt degree, Seection 565.0020,1 and arrmed

criminall action, Seection 571.0
                               015. The charges
                                        c       aroose out of ggun fire at a car washh that

resulted in the deaath of Joséé Jenkins ("Jenkins"). McClenddon was seentenced too life

without parole and thirty yearrs of imprisonment witth the senteences to runn consecutively.

McClendon now raaises three points
                            p          ppeal challeenging his cconviction. We affirm.
                                   on ap


       1
           All
           A statutory reeferences are to
                                        o RSMo 2000 as currently suupplemented unnless otherwisee indicated.
                                     FACTUAL BACKGROUND2

Underlying Events

        On September 25, 2011, Jenkins told a friend, Reginald Thomas ("Thomas") that

he was going to a car wash, located on Prospect Road in Kansas City, Missouri, to kill

McClendon. Video footage from the car wash showed that Jenkins surveilled the car

wash where McClendon was located. At around 7:30 p.m., Jenkins was walking back

and forth in the rear of the car wash looking through the car wash stalls, seeking

McClendon. Jenkins left and returned to the car wash in a different car.

        At 7:46 p.m., McClendon was sitting on a concrete block next to his vehicle,

which was being washed and detailed by Keith Martin ("Martin"). At 7:48 p.m., Jenkins

came out from the rear of the car wash, ran up to McClendon, fired his gun at

McClendon, and then ran. McClendon reached into his car and then returned back into

the street and fired his gun at Jenkins. Martin saw the exchange of gunfire and fled the

scene. Jenkins fled back through a car wash bay and fell to the ground as McClendon

continued to fire. The video shows that Jenkins struggled to get up but was unable to do

so. It was stipulated at trial that Jenkins was the initial aggressor and that the shots fired

by McClendon in front of the car wash were fired in lawful self-defense.

        McClendon returned to his vehicle, reached in for something, and walked back to

the front lot reloading his gun. He then returned to his vehicle, drove into the street, and

then drove down to the east side of the car wash where Jenkins was lying on the ground.


        2
         We view the facts in the light most favorable to the jury's verdict. State v. Williams, 409 S.W.3d 460, 468
(Mo. App. W.D. 2013).

                                                         2
The video shows that Jenkins was trying to get up but could not. McClendon drove up to

Jenkins, who was flat on the ground, and fired his gun multiple times into Jenkins.

McClendon then backed up his vehicle, fired his gun again multiple times, and then drove

away. McClendon drove to his girlfriend Kristie Myers's ("Myers") home and called her

from outside telling her he had been shot and needed to go to the hospital. She moved

McClendon into her van and drove him to Research Medical Center ("Research").

The Investigation

        Jenkins was found dead at the car wash shortly after police were dispatched to the

scene at 7:48 p.m. An autopsy revealed that Jenkins was shot thirty-two times. There

were fourteen gunshot wounds to the head and eighteen gunshot wounds to the neck,

chest, back, and right arm. Most of the entry wounds were on the back side of Jenkins's

body.    While at the car wash, police learned that a man with gunshot wounds,

McClendon, had arrived at Research.

The First Statement

        Detective Satter went to the hospital and contacted McClendon in the emergency

room within one to two hours of the shooting. At this time, McClendon was not under

arrest or in custody, and Detective Satter did not consider McClendon a suspect.

Detective Satter was aware there was a surveillance video of the incident but he had not

yet viewed it. He questioned McClendon about how he received his gunshot wounds.

McClendon initially told Detective Satter that someone came to the car wash and began

to shoot him but he did not say that he had returned fire. After explaining that a video

existed of the shooting, McClendon then admitted he had indeed returned fire. This

                                            3
interview lasted approximately twenty minutes.                     In his report of this conversation,

Detective Satter characterized the shooting as self-defense. Detective Satter next located

McClendon's vehicle and recovered shell casings and found bullet holes in the car. The

Detective also searched McClendon's girlfriend's van, where he located a Glock Model

17 9mm handgun with a magazine containing one remaining live bullet and an extra

magazine with fifteen live rounds.3

        The following morning, September 26, 2011 at 8:30 a.m., Detectives Ray Lenoir

and Mark Speigel spoke with McClendon at Research. At that time, they had not seen

the videotape of the incident.              No Miranda4 warnings were given to McClendon.

McClendon again told his story to the detectives, claiming that an unknown man had shot

at him and he shot back. Detective Lenoir testified that when the second statement was

taken he had no reason to believe that McClendon had done anything other than act in

self-defense. A guard, however, was posted outside McClendon's room which, according

to Detective Lenoir, is a common procedure where there is a shooting victim. This

interview lasted approximately thirty minutes.                     Later that day, police viewed the

videotape from the car wash. Having viewed the video, Detective Lenoir no longer

believed McClendon had acted in self-defense.

        McClendon was escorted to police headquarters in the late-afternoon on

September 26 and was given his Miranda warnings, which he waived. Detectives Blank




        3
            This gun was determined to have been the gun that shot Jenkins. The forty-five 9mm shells found from
the street, around Jenkins's body and in McClendon's vehicle were fired from this gun.
          4
            Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                                        4
and Lenoir interrogated McClendon, which was videotaped. There is no question that at

this time McClendon was in full custody and under arrest.

       The State charged McClendon with first-degree murder and armed criminal action.

McClendon filed a motion to suppress his three statements to police in which he argued,

in part, that the police used an improper two-step interrogation technique to deliberately

undermine McClendon's constitutional rights. After a hearing on his motion, the court

ruled that the first statement to Detective Satter on September 25 was admissible, as the

interview was investigatory in nature and occurred so soon after the incident and

McClendon was not a suspect. The court found that the second statement to Detectives

Lenoir and Speigel was inadmissible because during the second statement McClendon

was in custody and should have been Mirandized. Finally, the court ruled that the third

statement in the late-afternoon on September 26, after McClendon had been Mirandized,

was also admissible. The court rejected McClendon's argument that the State had used an

improper two-step interrogation technique. McClendon's trial was presided over by a

different judge, who confirmed the rulings as to admissibility made previously by the

court, except that any references in the third statement to the suppressed second statement

was also ordered excluded.

       McClendon was found guilty of first-degree murder and armed criminal action.

His motion for a new trial was denied. McClendon was sentenced to life in prison

without parole and thirty years with the sentences to run consecutively. McClendon now

appeals. Additional facts will be set forth as necessary in the argument section below.



                                            5
                                      POINT ONE

       In Point One on appeal, McClendon argues that the trial court erred in overruling

his motion to suppress his third statement to police and admitting the statement at trial,

through testimony and videotape, because detectives used an unconstitutional "two-step"

interrogation technique that bypassed the requirements of Miranda and effectively

deprived McClendon of his right to due process, a fair trial, counsel, and privilege against

self-incrimination.

                                   Standard of Review

       In reviewing a trial court's ruling on a motion to suppress, there must be
       "substantial evidence" to support the ruling. The facts and reasonable
       inferences from such facts are considered favorably to the trial court's
       ruling and contrary evidence and inferences are disregarded. In reviewing
       the trial court's overruling of a motion to suppress, this Court considers the
       evidence presented at both the suppression hearing and at trial to determine
       whether sufficient evidence exists in the record to support the trial court's
       ruling. Deference is given to the trial court's superior opportunity to
       determine the credibility of witnesses. This Court gives deference to the
       trial court's factual findings but reviews questions of law de novo.

State v. Gaw, 285 S.W.3d 318, 319-20 (Mo. banc 2009) (internal quotations and citations

omitted).

                                         Analysis

       McClendon argues that the police used a deliberate two-step interrogation

technique to bypass the protections afforded by Miranda in order to secure McClendon's

statement when he was unapprised of his Miranda rights only to later Mirandize him to

secure a second admissible statement. He argues, therefore, that his third statement to

police should have been suppressed.


                                             6
       "A criminal suspect is entitled to Miranda warnings, consistent with the Fifth

Amendment right against self-incrimination, once the suspect is subjected to a custodial

interrogation." Gaw, 285 S.W.3d at 321 (citing Miranda v. Arizona, 384 U.S. 436, 444

(1966)). Statements obtained by police during a custodial interrogation not preceded by

Miranda warnings are inadmissible in court. Id. (citing State v. Copeland, 928 S.W.2d

828, 852 (Mo. banc 1996)).

       In Missouri v. Seibert, the United States Supreme Court considered the

implications of the two-step interrogation technique, which was increasingly being used

by police departments to interrogate suspects. 542 U.S. 600 (2004). The Court described

the issue as follows:

       This case tests 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. Although such a statement is generally
       inadmissible, since taken in violation of Miranda v. Arizona, 384 U.S. 436,
       86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the interrogating officer follows it
       with Miranda warnings and then leads the suspect to cover the same ground
       a second time. The question here is the admissibility of the repeated
       statement.

Id. at 604. In Seibert, the interrogating officer admitted that he deliberately used this

two-step interrogation technique, consciously withholding Miranda warnings. Id. at 605-

06. Using this practice, the officer would first obtain the sought after information before

Mirandizing the suspect, subsequently Mirandize the suspect, and then repeat the

questions to re-solicit the same information, often referring back to the first un-

Mirandized statement. Id. The Court held that under these circumstances the Mirandized

statement would be inadmissible because the Miranda warning would be ineffective. Id.


                                            7
at 611-12. "[W]hen Miranda warnings are inserted in the midst of coordinated and

continuing interrogation, they are likely to mislead and 'depriv[e] a defendant of

knowledge essential to his ability to understand the nature of his rights and the

consequences of abandoning them.'" Id. at 613-14 (quoting Moran v. Burbine, 475 U.S.

412, 424 (1986)).

       The Seibert opinion, being a plurality, left unclear what test would be used to

determine whether post-waiver statements could be admitted into evidence. The four-

justice plurality created an objective test which would look at various factors to

determine whether the Miranda warnings were effective. Id at 615. These factors

included,

       [1] the completeness and detail of the questions and answers in the first
       round of interrogation, [2] the overlapping content of the two statements,
       [3] the timing and setting of the first and the second, [4] the continuity of
       police personnel, and [5] the degree to which the interrogator's questions
       treated the second round as continuous with the first.

Gaw, 285 S.W.3d at 322. Justice Kennedy, who provided the crucial fifth vote, adopted a

narrower test, "applicable only in the infrequent case ... in which the two-step

interrogation technique was used in a calculated way to undermine the Miranda

warning." Id. at 322. Under this approach, "[w]hen an interrogator uses this deliberate,

two-step strategy, predicated upon violating Miranda during an extended interview,

postwarning statements that are related to the substance of prewarning statements must be

excluded absent specific, curative steps." Id. This is "a subjective test that relies on a

finding of fact by the trial court (made specifically or implied) that the arresting officer

was deliberately trying to skirt the protections of Miranda." Id. The Missouri Supreme

                                             8
Court held in Gaw that Justice Kennedy's narrower "deliberate violation" standard is the

lowest common denominator between his views and the four-justice plurality and

therefore is the standard to be applied. Id. at 323-24.

       Accordingly, in Missouri, the test for whether police have used an improper two-

step interrogation technique, such that the suspect has been deprived of his constitutional

rights, is a subjective test that looks to whether the police deliberately tried to skirt the

protections of Miranda. Id. The trial court's role in protecting the accused's Miranda

rights is then heightened because the protection of the accused's rights turns on whether

the trial court believes the officer's "questioning prior to the advisement of Miranda

rights was inadvertent or intended to acquire an advantage in the interrogation process."

Id. at 324. If the trial court determines that the pre-Mirandized questioning was not a

deliberate strategy used by police, then the question of the admissibility of the statement

reverts back to whether it was "knowingly and voluntarily made." Id. at 325 (citing

Oregon v. Elstad, 470 U.S. 298, 309 (1985)).

       McClendon argues that the second and third statements made to police were in

response to a coordinated two-step interrogation technique. McClendon claims that

despite Detective Lenoir's statement that during the second interview he understood that

McClendon had acted in self-defense, the detective knew there was a videotape to be

examined and remaining evidence that could still implicate McClendon.             Thus, the

detective's questioning of McClendon, prior to the viewing of the tape, was an

opportunity to talk to McClendon prior to Mirandizing him and, therefore, a violation of



                                              9
his constitutional rights. The State argues that there is no evidence that the police

deliberately withheld Miranda warnings trying to obtain an advantage in interrogation.

       McClendon's argument that the police deliberately used a two-step interrogation

technique to undermine his constitutional rights is not supported by the record. Detective

Lenoir, who interviewed McClendon in the hospital during his second un-mirandized

suppressed statement, testified that when he spoke with McClendon early in the morning

following the shootings, he did not believe McClendon had done anything other than act

in self-defense as McClendon had claimed and continued to claim. At that time, the

detective had not yet viewed the videotape footage of the incident and had no information

regarding the identity of the victim or details regarding how many shots had been fired

and by whom. Id. It is also reasonable to infer that he would not have any information

from the autopsy, as Jenkins's autopsy also occurred on the same day. As the second

interview took place from approximately 8:30 a.m. to 9:00 a.m. on the 26th, it is

reasonable to infer the autopsy results were not yet available to police.

       It was only after reviewing the videotape seven hours later that police brought

McClendon into the police station for questioning, where he subsequently waived his

Miranda rights. Detective Lenoir specifically testified that he did not and does not

intentionally fail to mirandize someone when he considers them a suspect because he

knows the statement would be inadmissible. There is simply no evidence in the record

that police deliberately decided to withhold Miranda warnings pursuant to a strategy to

elicit information first and mirandize later. There is also no indication that the trial court

found the detective's testimony to be anything other than credible.

                                             10
       The trial court found that the circumstances here did not run afoul of Seibert.

Apparently utilizing the objective factors set out in Seibert, the trial court found (1) there

was a significant time lapse (seven hours), (2) McClendon had the opportunity to clearly

think through his first two interviews before giving the third statement, (3) the primary

interviewer was a different person, and (4) the interview was in a different location.

       Although the trial court applied the incorrect test under Gaw and court did not

explicitly make a finding regarding the subjective intent of the detective, the court did

find under the objective test that McClendon's Miranda rights were not undermined.

This proves fatal under the subjective test as well because the challenged practice must be

predicated on violating Miranda. See Gaw, 285 S.W.3d at 322 ("[w]hen an interrogator

uses this deliberate, two-step strategy, predicated upon violating Miranda during an

extended interview, postwarning statements that are related to the substance of

prewarning statements must be excluded absent specific, curative steps") (emphasis

added). In addition, we must view the facts and reasonable inferences favorable to the

trial court's ruling and disregarding contrary inferences. Gaw, 285 S.W.3d at 324-25.

The court had substantial evidence before it that the police did not deliberately employ a

deliberate unconstitutional two-step interrogation technique. Here, the Miranda warnings

were not given "in the midst of a coordinated and continuing interrogation" such that it

was likely to mislead McClendon and deprive him of the ability to knowingly and

voluntarily waive his rights. See Seibert, 542 U.S. at 613-14.

       Finally, in order for a statement to be admissible after finding that there was no

improper two-step interviewing technique employed, the statements must have been

                                             11
knowingly and voluntarily made. See Gaw, 285 S.W.3d at 324. Apart from his argument

that police used an improper two-step interrogation technique, McClendon does not

contest a knowing and voluntary waiver of his Miranda rights for his third statement and

nothing in the record suggests that the waiver was not knowingly and voluntarily made.

       Point One is denied.

                                       POINT TWO

       In Point Two on appeal, McClendon argues the trial court erred and abused its

discretion by failing to declare a mistrial after the State's closing argument regarding why

McClendon was hanging out at the car wash all the time with a gun and all that

ammunition, because this conduct was inadmissible evidence of uncharged bad acts and

had no logical relevance to establish that McClendon was guilty of first-degree murder.

                                   Standard of Review

       This Court reviews a trial court's refusal to grant a mistrial for abuse of discretion.

State v. Shaffer, 439 S.W.3d 796, 800 (Mo. App. W.D. 2014).

       This is because the trial court has observed the complained of incident and
       is in a better position than is an appellate court to determine what
       prejudicial effect, if any, the alleged error had on the jury. An abuse of
       discretion is found when the trial court's ruling is clearly against the logic
       of the circumstances then before it and when the ruling is so arbitrary and
       unreasonable as to shock one's sense of justice and indicate a lack of careful
       consideration.

Id. (internal citations and quotations omitted). A mistrial is a drastic remedy that should

only be granted when the prejudice to the defendant cannot be removed in any other way.

Id. (citing State v. Jones, 134 S.W.3d 706, 717 (Mo. App. S.D. 2004)).



                                             12
                                          Analysis

       In closing argument, the State argued, in pertinent part, as follows:

              Something that's happened through all this is we've forgotten to look
       at him. He hangs out at the car wash at 43rd and Prospect almost every day
       for hours on end. What's he doing? He has at least 61 rounds of
       ammunition on him.

McClendon's counsel immediately objected to the argument, challenging the State's

alleged implication that McClendon was engaged in uncharged illegal conduct at the car

wash. Counsel moved for a mistrial. The court refused to grant a mistrial but instructed

the jury to disregard the State's question of "What's he doing there?" All of the facts

contained in this statement were previously admitted into evidence in the trial.

       Assuming, as the trial court found, that the implication the State was trying to

make was improper propensity evidence, the question is whether the court's remedy, the

instruction to the jury to disregard the comment, sufficiently removed the prejudice to

McClendon or whether a mistrial was required. As stated supra, a mistrial is a drastic

remedy and is only required where prejudice to the defendant cannot be removed in any

other way. Shaffer, 439 S.W.3d at 801. Normally, an instruction to the jury to disregard

inadmissible evidence or improper argument is a sufficient remedy, as we must presume

the jury has followed the court's instructions. Id. (citing State v. McFadden, 369 S.W.3d

727, 752 (Mo. banc 2012)); see also State v. Wyman, 945 S.W.2d 74, 78 (Mo. App. W.D.

1997) (a trial court ordinarily cures any error by instructing the jury to disregard it); State

v. Newson, 898 S.W.2d 710, 714 (Mo. App. W.D. 1995) (same).




                                              13
         The trial court, being in the best position to judge the prejudicial effect of

improper arguments on the jury, is given discretion in its determination of whether a

mistrial is warranted. Shaffer, 439 S.W.3d at 800. The only portion of the argument by

the State that was not a fact in evidence was the question asking what McClendon was

doing at the car wash. The jury was instructed to disregard the comment and we must

assume that they followed this instruction. Given the trial court's curative instruction to

the jury to disregard the improper argument, we cannot say the trial court abused its

discretion in refusing to grant a mistrial.5

         Point Two is denied.

                                                POINT THREE

         In Point Three on appeal, McClendon seeks plain error review of the trial court's

failure, sua sponte, to prevent the State from arguing in closing that there must have been

a history between McClendon and Jenkins if McClendon shot Jenkins 31 times because

the evidence was inadmissible evidence of uncharged bad acts, argued facts not in

evidence and excluded evidence, which deprived McClendon of his rights to due process,

a fair trial, and being tried only for the charged crime.




         5
          If we ignored the curative instruction and considered the prejudicial effect this statement may have had on
the jury, we cannot say that this statement would have warranted a mistrial. The jury saw a video of the violence,
which showed McClendon deliberately go out of his way to return to Jenkins's body rather than flee the scene. As
the jury was instructed, a person can only use deadly force if he reasonably believes it is necessary to defend himself
from the imminent use of unlawful force. See MAI-CR 3d 306.06A; see also State v. Hiltibidal, 292 S.W.3d 488,
493 (Mo App. W.D. 2009). McClendon reloaded his firearm, drove his vehicle to the back of the car wash, and
continued to shoot Jenkins as he was lying on the ground unable to move. Given the significant evidence against
McClendon, we cannot say that this argument would have had a decisive impact on the jury's determination. See
State v. Francis, 60 S.W.3d 662, 672 (Mo. App. W.D. 2001) (when a prosecutor makes an improper statement, relief
is only appropriate where the defendant can show a reasonable probability that, in the absence of the statement, the
verdict would have been different).

                                                         14
                                   Standard of Review

       As McClendon neither objected at trial nor preserved his claim of error in his

motion for a new trial, he requests plain error review by this court of his argument in

Point Three. "Non-preserved issues are reviewed for plain error, if the error resulted in

manifest injustice or a miscarriage of justice." State v. Celis-Garcia, 420 S.W.3d 723,

726 (Mo. App. W.D. 2014) (quoting State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc

2009)).

       Plain error review is used sparingly and is limited to those cases where
       there is a clear demonstration of manifest injustice or miscarriage of justice.
       Claims of plain error are reviewed under a two-prong standard. In the first
       prong, we determine whether there is, indeed, plain error, which is error
       that is evident, obvious, and clear. If so, then we look to the second prong
       of the analysis, which considers whether a manifest injustice or miscarriage
       of justice has, indeed, occurred as a result of the error. A criminal
       defendant seeking plain error review bears the burden of showing that plain
       error occurred and that it resulted in a manifest injustice or miscarriage of
       justice. The outcome of plain error review depends heavily on the specific
       facts and circumstances of each case.

Id. at 726-27 (quoting State v. Ray, 407 S.W.3d 162, 170 (Mo. App. E.D. 2013)). With

regard to claims of plain error during closing argument, "[p]lain error relief as to closing

argument should rarely be granted and is generally denied without explanation." State v.

Crowe, 128 S.W.3d 596, 600 (Mo. App. W.D. 2004) (quoting State v. Garner, 14 S.W.3d

67, 76 (Mo. App. E.D. 1999)). "A trial court has broad discretion in controlling the scope

of closing argument.     Even if a closing argument is improper, we will reverse a

conviction only if the defendant establishes that the comment had a decisive effect on the

jury's determination." Id. (internal citations and quotations omitted). To meet this



                                             15
standard, the defendant must demonstrate a reasonable probability that the verdict would

have been different had the error not been committed. Id.

                                        Analysis

      In closing argument, McClendon's counsel argued that Jenkins had stalked

McClendon and walked up and shot a defenseless man.            Counsel also stated that

McClendon did not know Jenkins. The State in rebuttal closing argument stated as

follows:

             This is not the kind of crime that occurs between strangers.
      Somebody doesn't stalk somebody for an hour before he shoots him
      because they're a stranger. Somebody doesn't shoot somebody in the back
      31 times when you don't know them.
             He knew him. There's a history there. We just don't know what it is
      and that's one of those unanswered questions we talk about in voir dire. He
      knew him. There's a history. We don't know what it is. We don't have to
      prove that to you.

McClendon did not object to this argument at trial.

      McClendon argues that evidence of uncharged bad acts was inadmissible and the

State's improper allusion to them resulted in manifest injustice and the prosecutor

introduced or commented upon facts not in evidence. We disagree with McClendon's

characterization of the argument. First, even a cursory review of the argument shows that

the State did not specifically mention any specific bad acts or other conduct not in

evidence. The only facts commented upon were facts in evidence; i.e., that Jenkins

stalked McClendon prior to the shooting and McClendon shot Jenkins 31 times. The

State did not state or imply it was in possession of evidence that had been excluded or

was not in front of the jury. Rather, the State argued from the evidence that there was a


                                           16
reasonable inference that there was a history between the two men and, thus,

McClendon's action in going out of his way to continue to shoot Jenkins after he could

have safely escaped was motivated by something other than a desire for self-preservation.

      Second, the issue in the case was whether McClendon's shooting of Jenkins was

justified as an act of self-defense. McClendon's counsel argued, in part, that McClendon

did not know Jenkins, presumably to infer that McClendon had no reason to want to kill

Jenkins but rather he was acting purely in self-defense.      In rebuttal, the State was

permitted to argue the reasonable inference from the facts in evidence that this was not a

random act of violence to which McClendon reasonably responded, but a situation in

which it is reasonable to believe that McClendon and Jenkins had some sort of motivation

to kill one another. See State v. Williams, 366 S.W.3d 609, 624 (Mo. App. W.D. 2012)

(motive is relevant where defendant claims he acted in self-defense). It was a reasonable

inference from the evidence presented at trial that the circumstances were such that there

was some history between these two men and not a random act of violence, and the State

was allowed to argue such. See State v. McFadden, 369 S.W.3d 727, 748 (Mo. banc

2012) (the State is allowed to argue the evidence and all reasonable inferences from the

evidence during closing arguments); see also State v. Harris, 870 S.W.2d 798, 814 (State

has the right to draw any inferences from the evidence which he believes in good faith are

justified). This is particularly true in rebuttal, where the State is given considerable

leeway to make retaliatory arguments at closing and may retaliate to an issue raised by

the defense even if the prosecutor's comment would have been improper. See State v.

Gaines, 316 S.W.3d 440, 456-57 (Mo. App. W.D. 2010) (prosecutors are given

                                           17
considerrable leewaay in rebutttal, even iff the comm
                                                    ment otherw
                                                              wise wouldd be improoper);

State v. McFadden, 391 S.W.3d 408, 422
                                     2 (Mo. bannc 2013) (saame); Statee v. Minner,, 311

S.W.3d 313, 327 (M
                 Mo. App. W.D.
                          W 2010) (same).

       We
       W find no error,
                 e      let alo
                              one plain errror. Point Three is deenied.

                                     CON
                                       NCLUSION
                                              N

       The
       T judgmen
               nt of the trial court is affirmed.
                                        a




                                          _____________________________
                                                                     _________
                                          Gary D. W
                                                  Witt, Judge
All conccur




                                             18
