State of Missouri vs. Brandon B. Howell

Saint Louis, MO - Criminal defense attorney represented Brandon Howell with five counts of first-degree murder, four counts of armed criminal action, one count of first-degree burglary, and one count of stealing charges

George and Anna Taylor lived in a duplex in a cul-de-sac at 1 Woodbridge Lane. The

Taylors owned a tan Toyota Highlander SUV. Around 12:50 p.m. on September 2, 2014, a 911

call was made from a female caller who (before the call was disconnected) reported a party with

a shotgun at 1 Woodbridge Lane.

Around 1:00 p.m., Billie Simler, who lived at 111 Woodbridge Lane, was watching

television when he heard "two loud noises, bam, bam, like that.” Simler looked out to the culde-sac and saw a tan Toyota Highlander SUV turning around in the cul-de-sac. At that point,

Simler heard a third bang.

Around 12:54 p.m., two officers with the Kansas City Police Department ("KCPD”) were

dispatched to 1 Woodbridge Lane, arriving around 1:05 p.m. The officers discovered a body

lying in the driveway at 3 Woodbridge Lane. The victim, Susan Choucron, was deceased from a

shotgun wound to the face.

Subsequently, a search was conducted of the residence at 1 Woodbridge Lane. In the

basement, George and Anna Taylor were found, not moving and with grave injuries. George

Taylor had suffered a fractured skull, several abrasions and hematomas to his face, and his

ribcage had broken away from his chest wall. He suffered from agonal respirations, which

signaled that he was close to death. Anna Taylor had an apparent puncture wound on the back of

her head and abrasions on her cheek and nose. George and Anna Taylor were transported to

separate hospitals. Both ultimately died of blunt force trauma injuries. Numerous blood stains



1 Howell does not challenge the sufficiency of the evidence to support his convictions. "The evidence is viewed in

the light most favorable to the verdict.” State v. Anglin, 45 S.W.3d 470, 471 (Mo. App. W.D. 2001). 3

were found in the basement. A purse and a wallet were found on a table at 1 Woodbridge Lane,

neither of which contained any cash.

The bodies of Alice and Darrel Hurst were found in the driveway of 7 Woodbridge Lane.

Alice Hurst had died of a shotgun wound to the face. Darrel Hurst had died from a shotgun

wound to the chest. A red shotgun shell was found in the driveway.

A dispatch was put out for the beige-colored Toyota Highlander that had belonged to

Anna and George Taylor. The vehicle was found around 4:00 p.m. in North Kansas City, backed

into a restaurant parking space.

Later that evening, Howell was arrested about seven or eight blocks away from where the

Highlander was recovered. While Officer James Muhlbauer was on patrol, he received a

dispatch that a motorist reported seeing a possible homicide suspect walking southbound on

Interstate 29. Following the dispatch, Muhlbauer spotted a suspect, later identified as Howell,

walking down the breakdown lane of the interstate and "cupping” his right pant leg as if he was

holding something inside. Concerned Howell was the homicide suspect, Muhlbauer stopped

Howell. When Howell was asked to kneel, he bent his left knee but kept his right leg out to the

side, claiming he had leg cramps. When Muhlbauer frisked Howell, he found a 12-gauge

shotgun barrel and magazine tube inside Howell's pant leg, at which point Muhlbauer placed

Howell in handcuffs.

Following Howell's arrest, a search of Howell revealed two 12-gauge shotgun shell

casings and a set of keys. The following items were also seized from Howell's possession: a pair

of Adidas athletic shoes, a dark green Carhartt brand jacket, a pair of blue pants, a ski mask, a

pair of gloves, two towel strips, and $269.25 in cash.4

The two shotgun shell casings recovered from Howell were fired from the same shotgun

as the shell that was recovered in the driveway at 7 Woodbridge Lane, where the bodies of Alice

and Darrel Hurst were found. All three shell casings were fired from the shotgun Howell was

carrying when he was arrested.

One of the keys in Howell's possession unlocked the door of the Toyota Highlander that

belonged to George and Anna Taylor. The sole of Howell's right shoe matched a shoe print

found in the garage at 1 Woodbridge Lane. Clothing fibers similar to Howell's clothing were

found in the Toyota Highlander.

Blood on the driver's side floorboard of the Toyota Highlander matched Susan

Choucron's DNA profile. George Taylor was a possible contributor of DNA to a blood stain on

the back of Howell's ski mask. Susan Choucron was a possible contributor of DNA to the t-shirt

Howell was wearing. George Taylor was a likely contributor of DNA found on Howell's shoes.

Susan Choucron's DNA profile was found in a stain on the front of Howell's jacket.

Howell was charged as a prior offender by amended information in lieu of indictment

with five counts of first-degree murder, four counts of armed criminal action, one count of firstdegree burglary, and one count of stealing. The jury found Howell guilty on each of these

charges. Howell was sentenced to life imprisonment without the possibility of parole on the

murder counts; life imprisonment on the armed criminal action counts; ten years' imprisonment

on the burglary count; and one year for stealing. Howell now appeals to this court.2



2 Additional facts relevant to the points Howell raises on appeal are provided in our analysis of those points.5

Analysis

Howell raises four points on appeal. Howell contends that the trial court erred in: (1)

excluding counsel from observing the initial juror qualification; (2) overruling Howell's motion

to use venirepersons' names instead of numbers in voir dire; (3) failing to grant Howell's motion

for judicial recusal; and (4) admitting testimony regarding the likelihood that blood spatters

found on Howell's clothing matched that of victims in this case.

Point One

In his first point on appeal, Howell asserts that the trial court abused its discretion in

denying defense counsel's request to be present for juror qualification because observing the

venirepersons and their responses to the trial court was necessary for counsel to properly exercise

for-cause and preemptory strikes.

The voir dire process in this matter was initially planned with the understanding that the

State would be seeking the death penalty. With that understanding, a pretrial conference was

held in which the parties provided input on the content of a questionnaire that would be given to

potential jurors at a preliminary qualification of said jurors. The apparent purpose of this

questionnaire was to eliminate prospective jurors with no real potential of being seated prior to

the general voir dire due to concerns regarding seating a full panel of death-qualified jurors and

the possibility that potential jurors may have been exposed to pretrial publicity. The trial court

explained that the prospective jurors would complete the questionnaire at the qualification and

that the trial court would discuss statutory qualification issues, such as whether the panel could

read, write, and understand English, with the prospective jurors. The trial court also indicated

that it would be available to discuss hardship issues with potential jurors at the initial

qualification. The trial court indicated that the attorneys would not participate in the preliminary 6

qualification. After the initial qualification, the completed questionnaires would be provided to

the attorneys who would have the opportunity to provide the court with agreed-upon strikes

based on the questionnaire. The parties would then engage in small group voir dire that would

result in a death-qualified panel. A traditional voir dire would then take place at the beginning of

trial.

During the hearing, Defense counsel requested to have a representative present at the

qualification to observe the court's preliminary questioning of the panel. Counsel did not wish to

participate or be identified, but wished to have someone sit in the courtroom and quietly take

notes. The trial court told counsel that it would consider that request, which was ultimately

denied.

After the State waived the death penalty, a hearing was held regarding how the waiver

would affect jury selection and how the questionnaire would be updated, with Howell having

submitted an updated questionnaire. The State argued that the questionnaire was no longer

necessary and stated its preference that jury selection simply be done the more traditional way.

Howell argued that the use of the questionnaire would help the parties and the court ferret out

problems with pretrial publicity. The trial court decided to go forward with using the

questionnaire in the initial qualification, believing it to be a time-saving measure.

At a subsequent pretrial conference, the trial court explained how jury selection would

be conducted:

Voir dire. As you know, I will be doing the hardships this week. Here's how this

is going to go. The jury room is pulling in around 170 tomorrow. They will show

up, they will fill out questionnaires at that time. I will meet with anybody, any juror

who wants to meet with me to discuss hardship issues and qualification issues only.

Once that is done, we will submit the questionnaires to you all. Any agreed-upon

strikes, we will strike. We talked about having a day where we have them in to 7

discuss publicity issues only if you all cannot agree on those, which is fine. After

we go through that process, we will submit the final list to the jury room and they

will randomly pull 80 for our voir dire on Monday, April 8th.

On Thursday of this week, we're going to do the exact same process, to get a

separate panel of 80 in the exact same fashion that we will have on standby for

Tuesday, April 9th, in case something would happen on Monday. So they will be

two separate panels, no recycled folks as of – we'll just have a backup.

And so the normal jury process that we always do every time will still be in effect,

we're just pulling in a special panel for this case.

After the initial qualification, counsel for the State and Howell provided the trial court

with a list of agreed upon strikes based on the questionnaires submitted by the potential jurors.

The trial court held a hearing in which jurors were struck by agreement of the parties based on

the questionnaire responses. The trial court also considered arguments by Howell and the State

regarding strikes that were not agreed to by the parties. Prior to the general voir dire, the trial

court provided the parties with an opportunity to question individual jurors based upon responses

to questions on the questionnaire regarding pre-trial publicity. A general voir dire was then

conducted on a panel of 82 prospective jurors who were sworn in and questioned by the State

and Howell.3

At the end of this process, a petit jury was selected.

"A defendant is entitled to a fair and impartial jury.” State v. Oates, 12 S.W.3d 307, 310

(Mo. banc 2000). "A necessary component of a guarantee for an impartial jury is an adequate

voir dire that identifies unqualified jurors.” Id. A trial judge "is generally vested with wide

discretion in the conduct of voir dire.” Id. We review the trial court's rulings regarding the

conduct of voir dire for an abuse of discretion. State v. Baumruk, 280 S.W.3d 600, 614 (Mo.

banc 2009). "An appellate court will find reversible error only where an abuse of discretion is



3 From the jury list in our record, it appears that the general venire was comprised of 85 prospective jurors, 82 of

whom were actually present at the voir dire.8

found and the defendant can demonstrate prejudice.” Oates, 12 S.W.3d at 311. "A trial court

abuses its discretion when its ruling is clearly against the logic of the circumstances and is so

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

consideration.” State v. Johnson, 207 S.W.3d 24, 40 (Mo. banc 2006). "Where reasonable

persons can differ about the propriety of the action taken by the trial court, no abuse of discretion

will be found.” Id. "The defendant bears the burden of showing that there is a 'real probability'

that he was prejudiced by the abuse of discretion.” Id.

As an initial matter, although Howell characterizes the court's initial juror qualification

as part of voir dire, his claim of error ultimately relates to the trial court's actions prior to the

selection of the general venire panel. Howell argues that he was prejudiced by the exclusion of

his counsel from the initial juror qualification, because the observation of the venirepersons in

responding to questions regarding statutory qualifications was necessary for his counsel to

properly exercise for-cause and peremptory strikes at the conclusion of the general voir dire. It

is not clear from the record precisely what questions were asked of the prospective jurors at the

initial qualification, though the record indicates that these questions were to relate to statutory

qualification issues and hardships only. Our record does not contain the contents of the

questionnaire that was filled out by prospective jurors. Our record likewise contains no

information regarding what jurors, if any, were excluded at the initial qualification, or why they

may have been excluded.

Chapter 494 of the Revised Statutes of Missouri provides a number of statutory jury

selection requirements, including that certain categories of persons shall be disqualified from

serving as a petit or grand juror, see generally section 494.425; and that certain categories of

persons shall be excused from service upon timely application to the court, see generally section 9

494.430.4

Section 494.430.2 provides that a judge of the court for which the individual was

called to jury service "shall make undue or extreme physical hardship determinations.”

Howell cites to no legal authority that guarantees him the right to have counsel observe

the process of qualifying the general venire with respect to statutory disqualifications and

statutory hardship excusals that take place prior to the selection of the general venire. These

matters are regularly conducted through written correspondence with the trial court, which would

not allow a party the ability to observe prospective jurors respond to such questions. See e.g.

State v. Anderson, 79 S.W.3d 420, 431 (Mo. banc 2002) (finding no substantial failure to comply

with the jury selection statutes when hardship determinations were made through written

correspondence);5

see also Jackson County Circuit Court Rule 52.1.1 (providing that prospective

jurors are to fill out informational questionnaires online).

Howell does not argue that any statutory requirements or court rules were violated in the

selection of the general venire panel, and in any case, section 494.465 provides the exclusive

procedure "by which a party may challenge a jury on the ground that the jury was not selected in

conformity with statutory jury selection procedures.” § 494.465.3. Section 494.465.1 provides

that a party may move to stay the proceedings or for other appropriate relief if a substantial

failure to comply with the statutory jury selection procedures occurred; however, such motion

must be made prior to the time when the petit jury is sworn or within fourteen days after the

party could have discovered the grounds supporting the motion. Howell took no steps to

challenge the selection of the general venire panel prior to the swearing in of the petit jury.



4 Unless otherwise indicated, all statutory references are to RSMo 2016, as supplemented.

5 The jury selection statutes contained in Chapter 494 have changed significantly since Anderson.10

With respect to whether the trial court abused its discretion in excluding Howell's

counsel from the initial juror qualification, there is a paucity in the record regarding precisely

what occurred, what information was reflected in the questionnaire, and what jurors, if any, were

struck prior to the delivery of the completed questionnaires to the attorneys. However, it is

unnecessary for us to speculate because, in order for us to find reversible error, Howell must

demonstrate that he was prejudiced by the trial court's action. Oates, 12 S.W.3d at 311. Howell

has not established such prejudice.

The only allegation of prejudice that Howell makes is that he would have had a greater

opportunity to observe the venirepersons. However, Howell makes no specific allegations of

prejudice but instead relies on the unsupported conclusion that such additional observation was

necessary in order to make for-cause and peremptory strikes after the general voir dire. Howell

makes no arguments that the general venire was not properly drawn. Howell does not assert that

any juror that was seated was not fair and impartial. He does not allege that he was prejudiced

by the improper exclusion of any potential juror or jurors during qualification. He likewise

makes no arguments regarding what, if anything, might have been observed during qualification

that could not have been observed at the general voir dire.

Although Howell is correct that he is entitled to an adequate voir dire to identify

unqualified jurors, Oates, 12 S.W.3d at 310, the record indicates that his voir dire was adequate.

The trial court exercised its discretion to allow Howell extensive opportunities to strike

venirepersons based on disqualifying biases even before the general voir dire. In addition to the

agreed-upon strikes resulting from the questionnaire, Howell was allowed to make arguments

with respect to the prospective jurors' questionnaire responses, and the trial court considered

strikes based on these arguments. Howell was allowed to question prospective jurors regarding 11

pretrial publicity prior to the general voir dire. Howell was given ample opportunity to question

the general venire at the general voir dire. We find that Howell failed to make a timely effort to

address his claimed flaw in the jury qualification process (such as seeking a stay as provided

under section 494.465.1 were he making a statutory challenge); and further that he also failed to

establish that he was prejudiced by the trial court's action.

Point one is denied.

Point Two

In his second point on appeal, Howell asserts that the trial court abused its discretion in

overruling defense counsel's motion to use the venirepersons' names instead of numbers because

the jury would have interpreted the use of numbers as a protective measure, causing them to fear

for their safety from Howell.

When the general voir dire began, the trial court explained to the panel of prospective

jurors that the jurors' numbers would be used instead of their names for the purpose of keeping a

clean record.

As you see, you have been given these numbers. We are going to refer to you,

sorry, by number only and that is to help [the court reporter] take a clear record. It

is so much easier for her to do that if we just refer to you by number. So we're

sorry if that's a little bit impersonal, but we have found that that makes our record

better and clearer.

We find it was within the trial court's discretion to use numbers rather than names during

voir dire. The record reveals that the reason for using the venirepersons' numbers instead of

names was to create an efficient record, rather than to make any kind of signal relating to a

danger posed by Howell. Moreover, when the selected jurors were seated for trial, they were

seated by their names.12

In support of his contention that using the potential jurors' numbers was an abuse of

discretion, Howell cites to a case from the United States Court of Appeals for the Seventh

Circuit, in which the use of anonymous jurors was found to be in error. United States v.

Mansoori, 304 F.3d 635, 651 (7th Cir. 2002). However, Mansoori provides little support for

Howell's contention because an anonymous jury was not used in his case. In this matter, the jury

that was selected was not anonymous, but was seated by name. When selected jurors were

announced, the trial court stated: "If I call your name, please come forward to be seated in the

jury box, you have been selected as a juror in this case[.]” (emphasis added). The trial court then

proceeded to read aloud and on the record the names of the selected jurors. Given these

circumstances, the jury that was seated would not be led to believe that voir dire was conducted

by their numbers as a measure to protect their identity, since the selected jurors' names were

revealed at the end of the process. Rather, the jurors would reasonably believe that the trial court

used numbers during the voir dire process for precisely the reasons the trial court explained – to

aid the court reporter in making an efficient and accurate record. The trial court's decision was

not "clearly against the logic of the circumstances and [] so arbitrary and unreasonable as to

shock the sense of justice and indicate a lack of careful consideration.” Johnson, 207 S.W.3d at

40.

Point two is denied.

Point Three

In his third point, Howell argues that the trial court abused its discretion in failing to

grant his motion for judicial recusal which claimed that the judge's impartiality could be

reasonably questioned, in that the judge had ex parte communications with jail personnel about 13

Howell and then, based on those communications, made its pretrial rulings requiring Howell to

wear restraints.

At a pretrial hearing in the judge's chambers on January 5, 2015, the trial court reported

to counsel that the jail guards reported to her that they were having difficulties dealing with

Howell. These difficulties had required the guards to expend additional resources in transporting

Howell to court. The trial court wanted to make counsel aware of this information. The trial

court told counsel that it would continue to allow Howell to dress in civilian clothing and appear

in court without handcuffs. However, the trial court told counsel that if Howell continued to

cause problems with the jail guards, that it might reconsider that ruling.

At a pretrial hearing on October 24, 2016, the trial court informed counsel that it had

received an email from the jail from the officer in charge of transporting inmates to the jail. The

trial court then read the email to counsel which provided:

Judge, I would like to inform you that inmate Brandon Howell has been found with

shanks multiple times during shake down. I'm asking if you would reconsider the

court order for Brandon Howell to not be in restraints during his court appearances.

Mr. Howell is definitely a security and safety threat at this point in the process.

Your consideration would be greatly appreciated on this issue.

The trial court then explained to counsel that it wanted to give counsel notice of the

communication and that it had decided to change its prior order and would require Howell to

appear in full restraints at future court appearances. Defense counsel stated its opposition to

Howell not being brought to court with civilian clothes and noted that Howell would be treated

differently based on allegations by a jail guard. The court responded:

That's fine. Just so you're aware, he has been treated differently than any other

defendant only in that he is the only one that ever dresses out and is not chained.

Everyone else brought over here is. So, you know, that was a courtesy that was

provided to him, which is very different than we normally handle folks who are in 14

court. And beyond that, when I entered that order, I let you all know that if

something changed, I would give you notice of it and that my order would change.

And so that's kind of where I'm at. But that being said, I'm happy to hear from

you further when we bring him over here.

On November 7, 2016, Howell filed a motion for judicial recusal arguing that the

nonpublic manner in which the judge had addressed security concerns created an appearance of

prejudice and impropriety. Howell sought recusal under Rule 2-2.11(A). The trial court denied

this motion.

On March 26, 2019, the trial court indicated that it had received information that it

needed to share with counsel. The trial court stated that it had received a call from Amber

Ledbetter at population control, who informed the court that on the way back to the jail from the

court the previous day, Mr. Howell had been scanned on x-ray. Jail personnel spotted what they

believed to be a metal object in Howell's rectum. Howell was taken to a hospital for a CT scan

and nothing was found. However, when the van that transported Howell was searched, a steel

hook was found covered in fecal matter. The trial court stated:

So as a result of that, I'm just requesting the jail to please scan him when he's

coming from the jail to the courthouse and from the courthouse back to the jail and

making that request. I'm also requesting that they keep him in restraints in elevators

and in the hallways until he gets here to the courtroom.

I have made arrangements with the jail that during trial, Mr. Howell be kept in the

holding cell, as we previously discussed, until all the jurors are present up in the

jury room and accounted for and we can keep them in the division and then have

Mr. Howell walked to the courtroom.

I will say again that while in the courtroom, I've never had any issues with Mr.

Howell. And I've not had any concerns about safety and security. That being said,

I do have an obligation to keep the courtroom safe for everybody including Mr.

Howell. So I just want to be upfront with the defense team and Mr. Howell that if

issues keep arising, I may well have to revisit the use of restraints or even ultimately

his presence. My goal is to, of course, have him present and actively participating

and not having restraints on in the courtroom. That's the goal. 15

And at this point, I don't see a need to change that. But I have enough concern that

I am going to be monitoring the situation, I have asked the jail to please keep me

informed. As always, whatever information I have, I will make a record of, make

a record on and pass on to you all. So that's where we stand right now. Okay?

Howell then renewed his prior motion for recusal, arguing that it was inappropriate for

the trial judge to have communications with jail personnel regarding Howell's behavior outside

of the courtroom. Howell contended that such communications deprived him of the presumption

of innocence and could influence the court in making a sentencing determination.

The court then stated:

Any communications I've had, I have, as soon as I'm able, I have brought to

counsel. I don't regularly have discussions with the jail other than the discussions

that I have disclosed.

This situation was brought to me because it's not about me monitoring Mr.

Howell's behavior in the jail. It was brought to me because this piece of metal was

a safety and security concern for the courtroom.

....

I have an obligation. There is no other way for us to proceed without having those

types of discussions whether it's me, or another judge. Those discussions have

happened, and they're going to happen. So me recusing, which I see absolutely no

reason to do whatsoever, because as you know, part of our job as judges is to

consider things when appropriate and disregard things when it is not appropriate to

consider them, that is the nature of what we do.

If Mr. Howell is engaging in certain behaviors, he is making that choice to do so.

And he does so and that causes these situations to happen. And when a defendant

is making choices in creating a situation, he cannot use that situation and those

choices to manipulate the process by getting a new judge or delaying the trial. That

is not how this works.

At that point, the trial court denied Howell's renewed motion for recusal.

We review a trial court's denial of a motion for change of judge for an abuse of

discretion. State v. White, 462 S.W.3d 915, 917 (Mo. App. W.D. 2015). "There is a 16

presumption that a judge acts with honesty and integrity and will not preside over a trial in which

he or she cannot be impartial.” Worthington v. State, 166 S.W.3d 566, 579 (Mo. banc 2005).

"Rule 2-2.11(A) sets the standard for when a judge should recuse in a proceeding.”

Anderson v. State, 402 S.W.3d 86, 91 (Mo. banc 2013). Rule 2.2-11(A) provides that a "judge

shall recuse himself or herself in any proceeding in which the judge's impartiality might

reasonably be questioned[.]” Recusal is required "when a reasonable person would have factual

grounds to find an appearance of impropriety and doubt the impartiality of the court.” Anderson,

402 S.W.3d at 91 (internal quotations omitted).

Whether a fact requires recusal depends on the factual context, which gives

meaning to the kind of bias that requires disqualification of a judge. Specifically,

a disqualifying bias or prejudice is one that has an extrajudicial source and results

in an opinion on the merits on some basis other than what the judge learned from

the judge's participation in a case. In cases requiring recusal, the common thread

is either a fact from which prejudgment of some evidentiary issue in the case by the

judge may be inferred or facts indicating the judge considered some evidence

properly in the case for an illegitimate purpose.

Id. (quoting Worthington, 166 S.W.3d at 579).

In this matter, the factual basis that Howell asserts gave rise to the appearance of

impropriety involved the trial judge's communications with jail personnel regarding security

issues related to transporting Howell to and from the courtroom. The trial judge is responsible

"for the conduct of the trial, the safety of all persons in the courtroom, and the prevention of

escape.” State v. Endicott, 881 S.W.2d 661, 663 (Mo. App. W.D. 1994). Here, the information

the trial judge received related specifically to the judicial function of maintaining the security of

the courtroom and the safety of the persons within it. In fulfilling that obligation, the trial judge

expressed a willingness to hear information directly related to safety issues affecting the judge's

courtroom. There is simply no indication in the record that the trial judge used the information 17

she received to prejudge a substantive or evidentiary issue at trial. Likewise, the fact that the

judge received information relevant to the safety of persons in the courtroom does not reasonably

give rise to the appearance of impropriety, as the judge had an obligation to ensure courtroom

safety. Based on the record before us, it is unreasonable to find that the trial judge used these

communications for any purpose other than to ensure the safety of all persons in the courtroom.

Although Howell asserts that the trial judge's communications with jail personnel were

ex parte and characterizes these contacts as improper, he disregards the Supreme Court Rule

governing ex parte communications. Rule 2-2.9 provides:

(A) A judge shall not initiate, permit, or consider ex parte communications, or

consider other communications made to the judge outside the presence of the

parties or their lawyers, concerning a pending or impending matter, except as

follows:

(1) When circumstances require it, ex parte communication for scheduling,

administrative, or emergency purposes, which does not address substantive matters,

is permitted, provided:

(a) the judge reasonably believes that no party will gain a procedural, substantive,

or tactical advantage as a result of the ex parte communication; and

(b) the judge makes provision promptly to notify all other parties of the substance

of the ex parte communication, and gives the parties an opportunity to respond.

In this matter, the challenged communications between the trial judge and security/jail

personnel related directly to matters affecting courtroom security. The trial judge is responsible

for the conduct of the trial, the safety of all persons in the courtroom, and the prevention of

escape. Endicott, 881 S.W.2d at 663. As the trial judge has an administrative obligation to

ensure the security of persons in the courtroom, the trial judge is not per se prohibited from

considering information that weighs directly on courtroom security (rather than the substantive

matters of the case) when the circumstances require it, provided that the judge reasonably 18

believes that no party will gain an advantage as a result of the communication, and provided that

the judge promptly notifies the parties of the substance of the communications and gives the

parties an opportunity to respond. See Rule 2-2.9.

In this matter the trial judge followed the requirements of Rule 2-2.9. The challenged

communications weighed directly on courtroom security – a matter that the judge was obligated

to control. There is no indication from the record that the State received an advantage (or that

the trial judge would reasonably believe that such an advantage was received) based on the trial

judge's communications about security matters related to Howell. The trial judge also complied

with the obligation to promptly notify the parties about the content of the information it had

received related to security issues and provided the parties an opportunity to be heard regarding

the communications.

There is no indication in the record that the trial judge harbored any bias or prejudice

toward Howell. We likewise find no facts that would cause a reasonable person to find the

appearance of impropriety. Rather, the record indicates that the trial judge approached this

matter with the unwavering goal of ensuring Howell received a fair trial and the benefit of the

presumption of innocence to which Howell was entitled.

Point three is denied.

Point Four

In his fourth point on appeal, Howell argues that the trial court plainly erred in admitting

testimony from DNA analyst Andrew Atkinson about likelihood ratios contained in a report from

the Cyber Genetics lab. These reports contained information regarding the likelihood that DNA

found on Howell's clothing matched that of victims in this case as opposed to an unrelated

individual. Howell argues that the analyst's testimony used numbers many times greater than the 19

number of human beings on the planet; therefore, according to Howell, this testimony was more

prejudicial than probative because the jury would have no way to place these numbers into

context. Howell concedes that no objection to this testimony was made at trial and that the issue

was not raised in Howell's motion for new trial. Thus, this allegation of error was not properly

preserved for appeal. Howell requests that we review his fourth point for plain error.

Generally, we review a trial court's admission of evidence for an abuse of

discretion. Where there was no objection to the admission of the evidence, our

review, if any, is for plain error only. Rule 30.20 authorizes this Court, in its

discretion, to review plain errors affecting substantial rights . . . when the court

finds that manifest injustice or miscarriage of justice has resulted therefrom.

State v. McElroy, 520 S.W.3d 493, 495 (Mo. App. W.D. 2017) (internal citations and quotations

omitted).6

"Plain error review is waived when counsel has affirmatively acted in a manner

precluding a finding that the failure to object was a product of inadvertence or negligence.”

State v. Johnson, 284 S.W.3d 561, 582 (Mo. banc 2009) (internal quotations omitted). "Plain

error review does not apply when a party affirmatively states that it has no objection to evidence

an opposing party is attempting to introduce or for a trial strategy reason.” Id. (internal

quotations omitted).

In this matter, the record indicates that the parties had stipulated to the foundation and

admission of the Cyber Genetics report. Neither the report nor the precise language of the

stipulation appears in the record outside of references to the stipulation in the trial transcript. At

a bench conference held outside of the hearing of the jury during the State's direct examination



6 Although Howell requests that we review this allegation for plain error, his brief fails to delineate our standard of

review for plain error or how that standard was met in this instance.20

of Atkinson, Defense counsel attempted to reserve the right to argue that the Cyber Genetic

reports should not go back to the jury:

[Defense Counsel]: The Cyber Genetic reports, which are by stipulation, but we

do reserve the right to raise if these reports go back to the jury.

Later, Defense counsel objected to the phrasing of a question the State asked Atkinson and the

following exchange occurred:

[Defense Counsel]: It's a likelihood ratio, it is not the standard probability

determination.

[The State]: You can ask him about that.

[Defense Counsel]: The report is a likelihood ratio.

[The State]: What's that?

[Defense Counsel]: The report is a likelihood ratio, he read the report.

[The State]: Right.

[Defense Counsel]: There's another way of saying it, which I think was

scientifically accurate, that's my objection. They testify as to between this –

The Court: I can't hear you.

[Defense Counsel]: Per the stipulation that the expert has read, the result and the

terminology used by the laboratory that that's all this expert is expected to do. He

has sort of rephrased that back to the terminology that reflects the more traditional

DNA type that was done at the lab, that's our objection.

[The State]: I'll just grab the stipulations.

The Court: Okay.

[The State]: All right. Number 10, this is the stipulations for the record. Defense

stipulates the foundation and admission of the Cyber Genetics report to, I did it to

[exhibit] 209, defense counsel also agrees Atkins had testified competently without

objection as to the interpretation of the results.

[Defense Counsel]: Let me add that he was deposed and asked about that. He said

I can testify as to their results, he's done that, it's competent, but what he's doing 21

now is forming the question of saying, it's phrasing it trying to show probability

terms.

The Defense's objection to the phrasing of the question asked by the State was overruled.

As relevant to Howell's point on appeal, it appears that Howell stipulated to the admissibility of

the Cyber Genetics report, and specifically to testimony regarding the likelihood ratios contained

in the report. Howell now argues that testimony regarding the likelihood ratios contained in the

Cyber Genetics report was plainly inadmissible. However, that position appears to be contrary to

the position affirmatively taken by counsel at trial. Although the Cyber Genetics report is not

part of the record on appeal, the record does indicate that Howell's counsel affirmatively had no

objection to Atkinson testifying to "the result and the terminology used by the laboratory” in

creating the report, which apparently included the likelihood ratios contained in the report. We

find that the failure to object to the admission of this evidence was not the result of inadvertence

or neglect. Accordingly, plain error review of this point has been waived. See Johnson, 284

S.W.3d at 582.

Point four is denied.

The judgment of the trial court is affirmed.