State of Missouri vs. Robert Blake Blurton

Mr. Blurton’s aunt and uncle, Sharon and Donnie Luetjen, and their 15-year-old granddaughter, Taron Luetjen,1F2 lived together in Cole Camp. Mr. Blurton had not been to the Luetjens’ home in about five years, but he had visited their home as a child and had 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.2F3 A few minutes after the 911 call, at approximately 10:30 p.m.,

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

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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.3F4 Mr. Blurton also could not be excluded as a contributor to the DNA found

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.

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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

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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.

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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;4F5 (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 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).

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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

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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].”5F6 Mr. Blurton did not request to modify his proffered instruction in

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.

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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

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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).6F7

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

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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.

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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

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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

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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

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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

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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

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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.

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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

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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.

21

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.

22

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 –

23

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

24

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);

25

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.

26

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

27

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

28

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

29

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

30

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,

31

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.

32

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

33

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.

34

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).

35

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

36

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

37

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

38

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

39

(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.

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 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 o er at trial. 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.