               SUPREME COURT OF MISSOURI
                                         en banc

                                                  )
STATE OF MISSOURI,                                )
                                                  )
                Respondent,                       )
                                                  )
v.                                                )      No. SC95110
                                                  )
DANIEL HARTMAN,                                   )
                                                  )
                Appellant.                        )

               APPEAL FROM CIRCUIT COURT OF JASPER COUNTY
                         Honorable Gayle L. Crane, Judge

                               Opinion issued March 15, 2016

         Following a jury trial, Daniel Hartman (hereinafter, “Hartman”) was found guilty

of second-degree murder, section 565.021, RSMo 2000, 1 armed criminal action, section
                                                          0F




571.015, and first-degree burglary, section 569.160. The trial court sentenced Hartman to

concurrent terms of life imprisonment for second-degree murder, life imprisonment for

armed criminal action, and fifteen years’ imprisonment for first-degree burglary.

Hartman appeals.

         Hartman claims that his due process rights were violated during the penalty phase

of his trial because the trial court excluded reliable witness testimony, which could have

provided a basis for him to be exonerated. Further, Hartman asserts that during closing

argument, the state’s request for the jury to draw an adverse inference from the omission



1
    All further statutory references are to RSMo 2000, unless otherwise indicated.
of the excluded evidence was erroneous. This Court finds that excluding the evidence

violated Hartman’s due process rights. Accordingly, the trial court’s judgment is

vacated, and the case is remanded.

                         Factual and Procedural Background

       On the night of July 5, 2012, J.W. (hereinafter, “Victim”), a known drug supplier,

was shot in his home and killed from a single gunshot wound to the chest. While

investigating Victim’s death, the police discovered that Victim’s wound was not from a

contact or close-range shot. They found only three bullets in the home: one that killed

Victim, one in the wall, and one in the floor. The police’s subsequent investigation of the

events and people surrounding Victim’s homicide resulted in varied and inconsistent

statements. Eventually, the state charged Hartman, Jonathan Taylor (hereinafter,

“Jonathan”), Elijah Taylor (hereinafter, “Elijah”), 2 Marcus Stephens (hereinafter,
                                                  1F




“Marcus”), and Cody Stephens (hereinafter, “Cody”) 3 in connection with Victim’s
                                                       2F




homicide.

       Viewing the facts in the light most favorable to the judgment, the events

surrounding the night of July 5, 2012, are as follows: Cody visited the apartment of his

friend Jonathan, and Jonathan’s pregnant girlfriend in Joplin, Missouri. When Cody

arrived, Hartman and Marcus were present. The group drank alcohol, used drugs, and

eventually decided they needed to rob Victim.


2
  Jonathan and Elijah are brothers.
3
  Due to the repetition of surnames of the parties involved, Cody Stephens and Marcus
Stephens, as well as brothers Jonathan Taylor and Elijah Taylor, will all be referred to by
their first names. No disrespect is intended.
      Jonathan called Travis Morris (hereinafter, “Morris”). Morris stated that he could

obtain access for Jonathan and determine who was presently in Victim’s house. Twenty

minutes later, Morris called Jonathan to inform him that Victim and his girlfriend were

sleeping inside the house. Morris and Paul Pena (hereinafter, “Pena”) went to Jonathan’s

apartment.

      Then all of the men, except Cody, 4 went to Victim’s house. 5 Morris informed the
                                         3F                        4F




group that Victim had an assault rifle in the house and that Victim knew karate or

kickboxing. The men discussed taking cash and drugs from Victim. Jonathan did not

want to enter Victim’s house at this time because he was acquainted with Victim.

      Hartman, Elijah, Marcus, and Morris approached Victim’s front door and

knocked. There was no answer. Then the group went to the back door. They wanted to

break in, but no one in the group wanted to kick the door down. So, they all returned to

Jonathan’s apartment.

      Upon returning to Jonathan’s apartment, Jonathan woke Cody, seeking his

assistance in breaking into Victim’s house. Jonathan wanted Cody to join the group not

only for his assistance but also so that he would be involved and would not “rat out”

anyone. The group then drove in two cars to a parking lot near Victim’s home. Cody

stated that both Hartman and Elijah had guns with them. Cody further explained that the

gun Hartman carried was Jonathan’s. Jonathan, Elijah, Cody, Hartman, and Marcus

walked to Victim’s home. There was conflicting testimony regarding who kicked in the

4
 There was conflicting testimony regarding whether Cody was part of this group.
5
 Elijah testified that Jonathan did not want go because he knew Victim, but later
admitted Jonathan came with the group but remained in the car.
                                              3
back door, but either Hartman, Cody, or Elijah kicked in the back door, and everyone

went inside.

         Inside, Victim and his girlfriend were sleeping. There are conflicting recollections

as to whether Victim merely woke when the group entered his room or whether Hartman

and Elijah woke Victim, telling him to give them cash and drugs. Victim got up,

stretched, and walked toward them. Victim was shot. Marcus testified that he took

Victim’s rifle and that after he walked away from Victim’s bedroom, he heard six or

seven gunshots. Cody believed that Harman and Elijah fired their weapons.

         The group returned to Jonathan’s apartment. Everyone claimed to have shot

Victim. Hartman claimed that had he realized Victim’s girlfriend was present, he would

have shot her too. Hartman and Elijah were upset the group did not take anything from

Victim’s house and wanted everyone else to return.

         Cody, Jonathan, Elijah, 6 and Pena returned to Victim’s house. Hartman remained
                                5F




behind in Jonathan’s apartment. Cody, Jonathan, and Elijah went back inside the house,

ransacking it while Victim’s girlfriend slept.

         Harman was charged by information with first-degree murder, armed criminal

action, and first-degree burglary. At trial, Cody testified pursuant to a plea agreement in

which he pleaded guilty to second-degree murder and first-degree burglary with a fifteen-

year cap, but hoped for less than fifteen years’ imprisonment based upon his cooperation.

Elijah testified pursuant to the same plea agreement with the same anticipation for a

reduced sentence. Jonathan was subpoenaed to testify, but the state stipulated he was

6
    Elijah denied returning to Victim’s home a third time.
                                              4
unavailable for trial and would refuse to testify by invoking his Fifth Amendment rights.

Defense counsel sought to call Harlin King (hereinafter, “King”) to testify regarding

Jonathan’s statements to him immediately following Victim’s death. The state objected

to King’s testimony, claiming that it was inadmissible hearsay. The trial court sustained

the state’s objection, but it allowed Hartman to make an offer of proof, which would

show that Jonathan confessed to shooting Victim. Hartman did not testify during the

guilt phase of his trial. Hartman’s counsel argued in closing that the witnesses were not

honest about the identity of the shooter, and they were covering for Jonathan, their

brother and friend. The jury found Hartman guilty of first-degree murder, armed criminal

action, and first-degree burglary.

       During the penalty phase, Hartman testified. Hartman maintained he did not cause

Victim’s death and he was not present at Victim’s house. When the jury was unable to

agree on a sentence of life imprisonment without the possibility of probation or parole,

the trial court vacated the jury’s verdicts for first-degree murder and armed criminal

action and found Hartman guilty of second-degree murder under section 565.021.1(1),

and armed criminal action in connection with second-degree murder. 7 The trial court
                                                                      6F




sentenced Hartman to concurrent terms of life imprisonment for second-degree murder,

life imprisonment for armed criminal action, and fifteen years’ imprisonment for first-

degree burglary.


7
 The trial court took this course of action to be in accord with State v. Hart, 404 S.W.3d
232 (Mo. banc 2013), because Hartman was under the age of eighteen at the time of the
offenses.

                                             5
       Hartman appeals his conviction and sentence. After an opinion by the court of

appeals, the case was transferred to this Court. Mo. Const. art. V, sec. 10.

                                  Exclusion of testimony

       Hartman asserts the trial court abused its discretion and committed reversible error

in excluding King’s testimony because Jonathan admitted to King that he shot Victim.

Hartman believes this was not inadmissible hearsay because the testimony would have

been an admission against interest made to one of Jonathan’s close friends, shortly after

the murder, and it was sufficiently reliable. Further, Hartman argues that the exclusion of

this testimony violated his due process rights.

       A trial court “has broad discretion to admit or exclude evidence during a criminal

trial, and error occurs only when there is a clear abuse of this discretion.” Hart, 404

S.W.3d at 248. “Reversal due to an evidentiary error requires a showing of prejudice.”

State v. McFadden, 369 S.W.3d 727, 736 (Mo. banc 2012) (quoting State v. Taylor, 298

S.W.3d 482, 492 (Mo. banc 2009)). If there is a reasonable probability that the trial

court’s error affected the outcome of the trial, there is prejudice. State v. Clark, 364

S.W.3d 540, 544 (Mo. banc 2012).

       Hearsay statements, or out-of-court statements used to prove the truth of the

matter asserted, generally are inadmissible. State v. Blankenship, 830 S.W.2d 1, 6 (Mo.

banc 1992). Yet, there is a recognized constitutionally-based hearsay exception in the

due process clause founded upon Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038,

35 L.Ed.2d 297 (1973). This narrow exception applies to out-of-court statements that

exonerate the accused and are “originally made and subsequently offered at trial under

                                              6
circumstances providing considerable assurance of their reliability.” Id. at 300. The

Supreme Court set forth three indicators of reliability. Blankenship, 830 S.W.2d at 7.

First, the confession “was made spontaneously to a close acquaintance shortly after” the

crime occurred. Chambers, 410 U.S. at 300. Second, the confession “was corroborated

by some of the evidence in the case ….” Id. Finally, the confession was made “in a very

real sense self-incriminatory and unquestionably against interest.” Id. at 301.

       Prior to the commencement of Hartman’s trial, the state filed a motion in limine to

exclude King’s statements that Jonathan told him that Jonathan shot Victim three times.

The state asserted King’s testimony would be inadmissible as hearsay and the testimony

would not violate Hartman’s due process rights. The trial court sustained the state’s

objection. At trial, Hartman again requested King to testify, and the state again objected.

Thereafter, Hartman made an offer of proof by calling King to testify.

       During this offer of proof, King testified that he knew Jonathan from school and

saw him on a regular basis. They communicated by cellular telephone calls and text

messages. On the night of the murder, beginning around 2 or 3 a.m., Jonathan began

calling King twenty to thirty times, wanting King to pick him up. King finally answered

a telephone call and spoke with Jonathan. King then picked up Jonathan and another

person, and he took them to a store. King testified that Jonathan was “just freaking out”

and really scared. While they were driving around, Jonathan told King that the robbery

“went wrong” and he shot a guy three times “because he was getting out of bed or

something.” While King expressed doubts regarding whether Jonathan actually shot



                                             7
someone, King still went to the police with this information because King did not think it

was right to be able to kill another person.

       King’s proposed testimony meets the three indicators of reliability. The first

indicator is whether the confession was made to a close acquaintance and spontaneously

shortly after the crime occurred. Chambers, 410 U.S. at 301. “A statement, particularly

an admission to a crime, made to someone of long-standing and confidential relationship

is more likely to be trustworthy.” State v. Guinn, 58 S.W.3d 538, 545 (Mo. App. W.D.

2001); see also State v. Rogers, 758 S.W.2d 199, 201 (Mo. App. E.D. 1988) (suggesting

that trustworthiness of the statements requires the speaker to have a neutral interest

toward the defendant).

       The offer of proof showed King and Jonathan were friends. They saw each other

at school and, when Jonathan was not incarcerated, saw each outside of school regularly.

They communicated through telephone calls and text messages, and they played

basketball together. Cf. State v. Carroll, 629 S.W.2d 483, 485-86 (Mo. App. W.D. 1981)

(finding trial court erred in excluding evidence that someone other than the defendant

committed the robbery in the underlying criminal proceedings when that information was

communicated to a cellmate) and State v. Phillips, 940 S.W.2d 512, 517-18 (Mo. banc

1997) (finding reliability of statements made spontaneously to a person who was not a

close friend at a social gathering should have been admitted in a penalty phase of trial).

Further, King has no relationship with Hartman, thereby creating a presumption of

neutrality toward Hartman’s fate at trial.



                                               8
       Jonathan’s confession was made spontaneously to King shortly after the murder

occurred. Jonathan telephoned King twenty to thirty times within hours of the murder.

When King answered Jonathan’s telephone call and spoke with him, King stated that

Jonathan was “freaking out,” “scared,” and confessed to killing Victim. Because the

confession was made spontaneously to a close friend and shortly after the murder

occurred, the first reliability indicator is met.

       The second indicator is whether the confession “was corroborated by some of the

evidence in the case ….” Chambers, 410 U.S. at 301. There was independent evidence

submitted at trial corroborating the statements Jonathan made to King.

       Here the offer of proof demonstrated that King stated that Jonathan appeared to be

“freaking out” and very scared when they spoke shortly after the murder. Jonathan then

told King that in an attempt to obtain drugs, “they” went in but the robbery went wrong.

Jonathan stated that he shot at Victim as he was getting out of bed. Jonathan also told

King that he fired three shots at Victim and killed Victim.

       Jonathan’s statements to King were corroborated at trial. One witness placed

Jonathan at the scene of the crime. See State v. Boyd, 992 S.W.2d 213, 218 (Mo. App.

E.D. 1999) (distinguishing the corroborating evidence indicia when there was no

evidence in placing the declarant at the scene of the crime) and State v. Blackman, 875

S.W.2d 122, 142 (Mo. App. E.D. 1994) (same). There was testimony that the robbery

was not successful; the group failed to obtain the drugs or money they sought. Victim

was shot when he got out of bed. Jonathan stated he fired three shots, and only three

bullets were recovered from the scene. The information Jonathan provided to King

                                                9
mirrored the state’s evidence in every respect except the identity of the shooter.

Accordingly, the second indicator of reliability is satisfied.

       The final indicator of reliability is whether the confession was made “in a very real

sense self-incriminatory and unquestionably against interest.” Chambers, 410 U.S. at

301. In making this determination, it is important to determine whether the statements

made were inculpatory. State v. Jackson, 248 S.W.3d 117, 126 (Mo. App. S.D. 2008).

Jonathan’s confession to King was self-incriminatory and against his interest in that

Jonathan stated he was the person who shot and killed Victim. Further, Jonathan

implicated himself as the only shooter in that he stated he fired three shots, and the police

only recovered three bullets from the crime scene. Jonathan’s statements implicate only

himself as committing Victim’s murder.

       King’s proposed testimony met the three indicators of reliability, and the trial

court erred in failing to allow this testimony at trial. In State v. Turner, 623 S.W.2d 4, 9

(Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S. Ct. 1982, 72 L.Ed.2d 448 (1982),

superseded by statute on other grounds as recognized in State v. Wheat, 775 S.W.2d 155

(Mo. banc 1989), this Court found that “where substantial indicia of reliability appear and

declarant’s complicity if true would exonerate the accused, declarant’s averments against

an interest penal in nature may not be excluded ….” Because King’s testimony met the

indicia for reliability, it must be admitted if it would exonerate Hartman.

       Hartman was tried for first-degree murder. To be found guilty of first-degree

murder, one must “knowingly cause[] the death of another person after deliberation upon



                                              10
the matter.” Section 565.020.1. Hartman was not charged with accomplice liability for

first-degree murder.

       Hartman never admitted to any participation in any part of the underlying crime in

this case. Had King’s testimony been introduced, the jury could have believed King,

rather than the other co-defendants and Jonathan’s girlfriend, who testified against

Defendant. Each co-defendant hoped for a reduced sentence for cooperating with the

state, and one of the co-defendants was Jonathan’s brother. Jonathan’s girlfriend was

pregnant with his child. Each of the state’s witnesses had a reason to implicate someone

other than Jonathan as Victim’s killer.

       The dissent asserts that Hartman was not prejudiced by the exclusion of King’s

testimony because Marcus testified that Elijah, Cody, and Jonathan each claimed to have

shot Victim. In response to a question about who said they shot Victim, Marcus replied,

“Eli[jah], Cody and Jonathan.” Similarly, the dissent states that Copeland testified that

Elijah told her “we killed him.” (Emphasis added.) In support of its analysis, the dissent

cites two cases to state Jonathan’s confession to King properly was excluded at trial.

       First, the dissent relies upon State v. Gilmore, 681 S.W.2d 934, 940 (Mo. banc

1984), for the proposition that Hartman was not harmed by the exclusion of King’s

testimony because the jury received the “gist of the testimony.” Further, the dissent

claims even if there were prejudice in excluding these questions, there was no prejudice.

Gilmore is inapposite to this case. The Court in Gilmore was addressing three discrete

instances during cross-examination of two witnesses wherein the trial court disallowed

“repetitive, improperly phrased or argumentative” questions; it was not in response to

                                            11
excluding a witness who would have testified to a substantially different factual scenario.

Id.

         Second, the dissent references State v. Wells, 305 S.W.2d 457, 459 (Mo. 1957). In

Wells, the trial court sustained an objection during cross-examination “of the prosecuting

witness [as to] whether she had commenced to have her monthly periods about four years

previous to the time of trial.” Id. at 458. The dissent cites Wells, stating that the

“improper rejection of evidence is not prejudicial error when the same or substantially the

same evidence is otherwise admitted.” Accordingly, from this one sentence, the dissent

seeks the reader to infer that there was ample evidence regarding the statements of the

other co-defendants admitting to shooting Victim. However, the Wells Court’s analysis

continued:

      This is the rule whether such evidence is admitted prior or subsequent to such
      rejection, and it finds its most frequent application where the same or
      substantially the same evidence as that excluded is elicited from the same
      witness. In this case counsel for defendant had asked the prosecuting witness
      several questions on the same subject, including the question, ‘And you have
      been having that about four years, haven’t you?’ to which the witness
      answered, ‘No, not quite.’ It is evident that the witness had already answered
      substantially the same question, and the answer was before the jury without
      objection.

Id. (internal citation omitted and emphasis added).

         When compared to the instant case, citation to the isolated statement from Wells is

misguided. The Wells Court addressed repeated questioning of one witness regarding

information to which the witness had already provided. There is no corollary to the

complete exclusion of a witness who could provide testimony that was not addressed or



                                              12
mentioned by any other witness at trial. Again, Wells is inapposite to the present

circumstances.

       Here, there was clear evidence presented by the state that there was only one

shooter. While there could be collective criminal responsibility, only one of the people

present would have been able to pull the trigger, killing Victim. Marcus failed to indicate

one shooter. Elijah’s use of the collective pronoun “we” does not assist the jury in

identifying the actual shooter. King’s testimony would have been the only evidence that

a single person, other than Hartman, was the shooter; his confession should have been

introduced into evidence.

       King’s testimony would have provided evidence from which the jury could have

exonerated Hartman of first-degree murder, based upon another co-defendant’s

confession. The jury then could have found that the evidence presented by the state was

insufficient to find Hartman guilty of first-degree murder beyond a reasonable doubt.

“All decisions as to what evidence the jury must believe and what inferences the jury

must draw are left to the jury ….” State v. Jackson, 433 S.W.3d 390, 399 (Mo. banc

2014). Because King’s proposed testimony met the indicia of reliability and could

exonerate Hartman, the trial court abused its discretion in excluding it.

                                        Conclusion

       In this case, the omission of King’s testimony impinged upon Hartman’s due

process rights. The trial court erred in excluding this potentially exculpatory testimony,

and Hartman was prejudiced thereby. Accordingly, Hartman’s convictions for second-



                                             13
degree murder, armed criminal action, and first-degree burglary are vacated, and the case

is remanded.

       The dissent raises the specter of Hartman being retried and facing potentially a

more onerous sentence because he is no longer a juvenile. However, the dissent fails to

acknowledge that the protections for harsh sentences apply when a defendant is a juvenile

at the time of the offense rather than at the time of sentencing.

       In Miller v. Alabama, 567 U.S. --, 132 S. Ct. 2455, 2464, 183 L. Ed. 2d 407

(2012), the Supreme Court concluded that “mandatory life-without-parole sentences for

juveniles violate the Eighth Amendment.” The Court’s concerns focused upon

“children’s diminished culpability and heightened capacity for change.” Id. at 2469. The

Supreme Court also reflected that the harshest penalty would rarely be applicable, but it

did not “foreclose a sentencer’s ability to make that judgment in homicide cases, [and]

we require it to take into account how children are different, and how those differences

counsel against irrevocably sentencing them to a lifetime in prison.” Id. This Court then

applied Miller in State v. Hart, 404 S.W.3d 232 (Mo. banc 2013). This Court reversed

and remanded the defendant’s sentence of life without parole for first-degree murder as it

violated the Eighth Amendment for a defendant who was a juvenile at the time of the

offense. Hart, 404 S.W.3d at 235 (Emphasis added).

       This Court need not address Hartman’s remaining point on appeal, which

addressed the alleged error by the state urging the jury to draw an adverse inference from

the omission of King’s testimony during closing argument. This claim of error will not

necessarily reoccur upon remand and, hence, it will not be mused upon. State v.

                                             14
Wacaser, 794 S.W.2d 190, 196 (Mo. banc 1990). This Court will not issue an advisory

opinion. State v. Swiggart, 458 S.W.2d 251, 252 (Mo. 1970).

       The trial court’s judgment is vacated, and the case is remanded.



                                                  __________________________
                                                  GEORGE W. DRAPER III, JUDGE


Breckenridge, C.J., Stith, Teitelman and Russell, JJ., concur; Wilson, J., dissents in
separate opinion filed; Fischer, J., concurs in opinion of Wilson, J.




                                             15
            SUPREME COURT OF MISSOURI
                                        en banc

                                                  )
STATE OF MISSOURI,                                )
                                                  )
              Respondent,                         )
                                                  )
v.                                                )      No. SC95110
                                                  )
DANIEL HARTMAN,                                   )
                                                  )
              Appellant.                          )

                                DISSENTING OPINION

       I respectfully dissent. The principal opinion correctly notes that “[r]eversal due to

an evidentiary error requires a showing of prejudice.” State v. McFadden, 369 S.W.3d

727, 736 (Mo. banc 2012) (quoting State v. Taylor, 298 S.W.3d 482, 492 (Mo. banc

2009)). There was no prejudice from the trial court’s exclusion of Mr. King’s testimony

concerning Jonathan’s out-of-court inculpatory statement because evidence that Jonathan

was the shooter already was before the jury. Marcus Stephens, offered by the defense,

testified that Eli, Cody and Jonathan each claimed to have shot the Victim. See State v.

Gilmore, 681 S.W.2d 934, 940 (Mo. banc 1984) (“even if there had been error in

sustaining objections to these isolated questions, the court’s rulings were not prejudicial

to the defendant” because the jury otherwise “received the gist of the testimony that the

defense counsel attempted to develop”); State v. Wells, 305 S.W.2d 457, 459 (Mo. 1957)
(“improper rejection of evidence is not prejudicial error when the same or substantially

the same evidence is otherwise admitted”). Moreover, Ms. Copeland testified that Eli

boasted the Victim “was dead … and we killed him.” As a result, the defense had ample

grounds to argue to the jury that Jonathan or someone else – not Hartman – was the

shooter, and it did not do so.

       Even if Jonathan’s out-of-court inculpatory statement had not already been before

the jury, that statement did not exonerate Hartman of murder in the first degree. Had that

evidence come in – and had it been argued to the jury by defense counsel, even though

Mr. Stephens’ and Ms. Copeland’s evidence was not – the state would have been entitled

to have the jury instructed that Hartman could be convicted of first-degree murder as a

principal or as an accomplice. See State v. Cella, 32 S.W.3d 114, 118 (Mo. banc 2000)

(“It is proper to submit to the jury a theory of accomplice liability despite charging the

defendant as a principal.”); State v. Isa, 850 S.W.2d 876, 898 (Mo. banc 1993) (same).

       Finally, prejudice should be measured against Hartman’s conviction for

second-degree murder, not the jury’s guilty verdict for first-degree murder, which the

trial court vacated under State v. Hart, 404 S.W.3d 232, 239 (Mo. banc 2013). As above,

if King’s testimony about Jonathan’s inculpatory statement had come in – and had it been

argued to the jury, which the other evidence of Jonathan’s inculpatory statements was

not – the state would have been entitled under Cella and Isa to have the jury instructed

that Hartman could be convicted of second-degree murder as a principal or as an

accomplice.



                                              2
       In this regard, it is significant that the jury actually was instructed – if it did not

find Hartman guilty of first-degree murder – that it should consider whether Hartman was

guilty of second-degree felony murder. Instruction No. 8 stated that the jury should find

Hartman guilty of second-degree murder if: (1) Hartman committed burglary in the first

degree; (2) Hartman “or an accomplice caused the death of [Victim] by shooting him;”

and (3) Victim “was killed as a result of the perpetration of that burglary in the first

degree.” [Emphasis added.]

       For the exclusion of King’s testimony to be prejudicial, therefore, this Court must

conclude – if Jonathan’s out-of-court statement had been admitted – that the jury would

not have found Hartman guilty of first-degree murder as a principal or accomplice

(a doubtful proposition), that the jury would not have found Hartman guilty of regular

second-degree murder as a principal or accomplice (a far more doubtful proposition), and

that the jury would not have found Hartman guilty of second-degree felony murder (an

impossible proposition). Under this Court’s decision, however, Hartman now faces

re-trial for first-degree murder – and a possible sentence of life without parole 1 – with no
                                                                                       0F




reasonable prospect of bettering the outcome of his first trial, i.e., a conviction for




1
   In his first trial, the jury found Hartman guilty of murder in the first degree. But, because the
jury was unable to agree to impose the only statutorily authorized sentence, i.e., life without
parole, the trial court entered a conviction of second-degree murder and the jury assessed his
sentence for that crime. On retrial, Hartman will face the same first-degree murder charge and –
if the jury finds he committed that crime – the trial court must again ask the jury whether a
sentence of “life without parole is a just and appropriate sentence … under all the
circumstances.” Hart, 404 S.W.3d at 239.
                                                 3
second-degree murder. Accordingly, I respectfully dissent and would affirm Hartman’s

convictions in all respects.



                                              _____________________________
                                                    Paul C. Wilson, Judge




                                          4
