STATE v. CALVERLEY (2026)

Steven C. Calverley (“Calverley”) appeals his convictions for murder, assault, robbery, kidnapping, and armed criminal action following a bench trial in the Circuit Court of Christian County, Missouri (the “trial court”).¹ Calverley raises three points on appeal alleging the trial court erred in: 1) failing to order the State to stipulate to a correction of a witness's allegedly false testimony; 2) admitting into evidence video of Calverley lying to law enforcement regarding his involvement in the underlying events; and 3) failing to take curative action sua sponte in response to improper prosecution references to Calverley as a defense expert witness's “client” at trial. Finding Calverley's claims to be without merit, we affirm.

Factual and Procedural History

Because Calverley does not challenge the sufficiency of the evidence supporting his convictions on appeal, we present only a summarized account of the facts based on the evidence adduced at trial in the light most favorable to the verdicts. State v. Lawrence, 700 S.W.2d 111, 111 (Mo. App. E.D. 1985); State v. McCoy, 559 S.W.2d 298, 299 (Mo. App. St.L.D. 1977). Additional facts relevant to each point on appeal are included in the analysis portion of this opinion.

On August 16, 2020, Victims M.P. and S.P. drove together in M.P.’s truck to Stotts City, Missouri, to pick up S.P.’s sister. Upon arriving to the area, they encountered co-defendant Gary Hunter (“Hunter”) walking along a road. The two women stopped and S.P. began to converse with Hunter. During this discussion, a white vehicle suddenly pulled in front of M.P.’s truck. An unknown male emerged from the white vehicle and began scuffling with Hunter who was eventually wounded and relented to his attacker. The unidentified assailant then approached M.P.’s truck armed with a knife and robbed S.P. of several items before returning to his vehicle and driving off. Hunter then entered M.P.’s truck, produced a handgun and accused M.P. and S.P. of “set[ting] [him] up.” Hunter forced M.P. to drive to a nearby house belonging to co-defendant Christina Knapp (“Knapp”).

There, Hunter and a group of associates, including Calverley, continued to collectively threaten and interrogate M.P. and S.P. throughout the day, demanding information about the unidentified man who had attacked Hunter. S.P. was repeatedly beaten by Hunter. At one point, Calverley placed a pair of pruning shears at S.P.’s throat and threatened her with death. Eventually, M.P. and S.P. were provided with shovels and forced to attempt digging graves for themselves.

That evening, M.P. and S.P. were taken to a covered cistern in a nearby wooded area. Most of Hunter's group, including Calverley, escorted the women to the cistern. Both Hunter and Calverley were armed with guns. Once at the cistern, Hunter dismissed those present except Calverley, M.P., and S.P. Hunter again demanded that S.P. divulge who had set him up. When S.P. again answered that she did not have this information, M.P. and S.P. were told to climb down into the cistern. Calverley assisted Hunter in lifting the grate covering the cistern so that M.P. and S.P. could enter the structure. Once the two women were at the bottom of the cistern, Hunter fired his gun at S.P., striking her between the eyes and killing her. Gunshots were also fired at M.P., wounding her.² Hunter and Calverley thereafter left the cistern. M.P. was able to climb out of the cistern and reach a nearby house whose owner called emergency responders.

Calverley waived his right to jury trial in exchange for the State agreeing not to seek the death penalty. A five day bench trial commenced on October 21, 2024. Following the presentation of evidence by the State, Calverley elected not to testify but did call multiple witnesses to testify on his behalf, including Hunter and Andrew Cypret (“Cypret”), who had also been part of Hunter's group on August 16, 2020. Following the presentation of evidence and arguments by the parties, the trial court took the matter under advisement.

On November 1, 2024, the trial court entered its verdicts and found Calverley guilty of murder in the second degree under Count I, assault in the first degree under Count III, robbery in the first degree under Count V, kidnapping in the first degree under Count VII, and armed criminal action under Counts II, IV, VI, and VIII. Notably, the trial court found that, despite some “discrepancies” with her prior statements, “the [trial] testimony of [M.P.] was both reliable and credible,” specifically in regard to “[Calverley]’s presence and the presence of the other co-defendants at the home of [Knapp] on August 16, 2020, the activities that occurred [there], and [Calverley]’s conduct at the cistern at the time [M.P.] and [S.P.] were shot.” In contrast, the trial court found that “[t]he testimony of [Hunter] and [Cypret] was not credible on the issues of fact relevant to the ․ verdicts.”

On January 7, 2025, the trial court sentenced Calverley to 30 years’ imprisonment on Count I, 10 years’ imprisonment on Count II, 10 years’ imprisonment on Count III, 10 years’ imprisonment on Count IV, 15 years’ imprisonment on Count V, 10 years’ imprisonment on Count VI, 15 years’ imprisonment on Count VII, and 10 years’ imprisonment on Count VIII. The sentences under Counts I and III were to run consecutively to each other and all other sentences were to run concurrent. This appeal follows.

Standard of Review

“Upon review, the judgment rendered in a court-tried case will be upheld unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” State v. Hawthorne, 74 S.W.3d 826, 828 (Mo. App. W.D. 2002). “The trial court's findings have the force and effect of the verdict of a jury in a court-tried criminal case.” State v. Buell, 697 S.W.3d 563, 566 (Mo. App. S.D. 2024) (quotations and citations omitted). Accordingly, “[w]e view the evidence in the light most favorable to the judgment, disregarding any contrary evidence and granting the State all reasonable inferences from the evidence.” State v. Harrigan, 728 S.W.3d 25, 29 (Mo. App. W.D. 2025) (quotations and citation omitted). “Due regard is given to the trial court's superior opportunity to judge the credibility of witnesses.” Hawthorne, 74 S.W.3d at 829.

Analysis

Point I

In his first point on appeal, Calverley alleges that the trial court erred in failing to “require the State to correct the record” with respect to M.P.’s testimony at trial that co-defendant Sierra Dunham (“Dunham”), a member of Hunter's group during the underlying events described above, was present at the cistern where M.P. was shot and S.P. was killed on the night of August 16, 2020. Calverley asserts that M.P.’s trial testimony regarding Dunham's presence at the cistern was false based on prior prosecution statements given at Dunham's plea hearing, and that the State refused to correct M.P.’s testimony at trial in contravention of the law set forth in Napue v. Illinois, 360 U.S. 264 (1959). Accordingly, Calverley argues, the trial court declining to require the State to correct M.P.’s testimony erroneously allowed M.P.’s credibility as the State's key witness at trial to remain intact and prejudiced Calverley's defense. We disagree.

Additional Procedural History

On September 22, 2022, a plea and sentencing hearing for Dunham was held related to her involvement in the events of August 16, 2020. During the hearing, the following exchange occurred:

[Court:] Mr. Prosecutor, if the matter were tried before the Court today, could you tell the Court what evidence you would intend to produce?

[Prosecutor:] The State's evidence would come from the endorsed witnesses. The State's evidence would be that on or about August 16th, 2020, in the County of Lawrence, State of Missouri, and in particular, the Stotts City region and location ․

․

[Hunter] ․ pulled a gun on [M.P. and S.P.] and forced them to go to [Knapp's house]. At [Knapp's house,] [Hunter] was joined by eight other people, including [Dunham]. While there, [Hunter's group] ․ attempt[ed] to make [M.P. and S.P.] dig their graves.

Upon realizing [M.P. and S.P.] weren't going to be able to dig the graves, ․ [Hunter's group] decided ․ to take [M.P. and S.P.] out to where the [cistern] was. During this time[,] [Hunter's group] unloaded the trunk of a car and started loading [M.P. and S.P.] in[to] [it]. This is where [Dunham] asked for [S.P.]’s sunglasses and shoes[.]

After this point[,] [Dunham] did not go out to the [cistern]. Initially[,] we believed that [Dunham] did but we ha[ve] phone records that show, from pinging on cell towers, that [Dunham] never did go to the location. [Dunham's] involvement ended at that point, after taking [S.P.]’s shoes and sunglasses[.]

We believe this would [be] the evidence at trial for this case and would be enough for a guilty verdict.

(Emphasis added.)

During Calverley's trial two years later, M.P. testified on direct examination that Dunham had traveled with most of Hunter's group from Knapp's house to the cistern on the night of August 16, 2020, before being sent away from the scene by Hunter prior to the shooting. Calverley raised no objection to this testimony at the time it was presented. At the close of M.P.’s direct examination following lengthy additional testimony, Calverley's counsel raised the issue for the first time in a sidebar conference. Citing the United States Supreme Court's decision in Napue, Calverley's counsel requested “that the State be required to stipulate that [M.P.]’s testimony that [Dunham] was at the [cistern] and stole [S.P.’s sandals] at the [cistern] is false.” The following exchange then occurred:

[Calverley's Counsel:] And so I ask -- and whether or not [M.P.] has said that because, you know, she genuinely thought [Dunham] was [at the cistern] and, you know, was confused -- I understand it was chaotic -- or whether the issue is [M.P.] is -- is being deceitful, that is -- that is for argument. We're not suggesting that -- and nor are we asking the State to stipulate that [M.P.] has lied or has perjured herself, but I would ask the State stipulate that [Dunham] was not at the [cistern] and such testimony of [M.P.] is false.

[Trial Court:] Well, and I understand [the prosecutor] made certain statements at the time of the [Dunham] plea, but it doesn't seem to me that the location of someone's cell phone is proof positive of where the person is.

[Calverley's Counsel:] No, no. [The prosecutor] is making an assertion that [Dunham] wasn't at the [cistern]. The State of Missouri has said she -- has told the court of law that [Dunham] wasn't at the [cistern]. I believe that [Dunham][sic] denied it. I know other people denied it as her being at the [cistern] as -- as well. So it's not -- I'm not asking [the trial court] to rely on [that prosecutor's] reliance on cell phone records. I'm saying the State cannot rely on one theory to secure a conviction when -- when establishing a plea, and then turn around and say -- argue that [M.P.]’s testimony that [Dunham] was at the [cistern] be correct. I don't -- I think that's a due process violation, if -- if not a Napue violation.

[Trial Court:] And so you're specifically asking that the State stipulate [Dunham] was not at the [cistern]?

[Calverley's Counsel:] Yes. I don't think [the State] [has] to correct [M.P.] -or that's up to them if they want to do that on redirect. But I -- I would ask the State stipulate as a fact that [Dunham] was not at the [cistern] and such testimony [by M.P.] is inaccurate.

(Emphasis added.) The trial court then requested argument from the State on the issue and the following exchange occurred:

[Prosecutor:] Well, Judge, I know what [M.P.] has said, you know what [M.P.] has said, I don't know why [the prosecutor in the Dunham case] said that or in any other way. And there's -- [M.P.] could be wrong, [the prosecutor] could be wrong. But I don't think the fact that [the prosecutor] said in a plea hearing in another case, a -- a -- a statement that he believes from his evidence contradicts [M.P.]. I haven't seen that evidence myself, you know. And so I don't think it's -- it's a matter for a stipulation. [Counsel for Calverley] sought to depose [the other prosecutor]. They did not ultimately do it. These are questions [the other prosecutor] should be asked. [The other prosecutor] could be brought in here and answer [Calverley's counsel] himself, but I don't think it's diametrically opposed theories of a case.

[Calverley's Counsel:] I -- I disagree. I just think that's disingenuous. I would ask that pursuant to [section] 490.130 that this be -- [the Dunham plea] transcript be admitted into evidence.

[Trial Court:] Well, and, I mean, I think I can take judicial notice of any ․ file of another -- of another circuit court within Missouri.․ So I could certainly take judicial notice of [the Dunham] file. Do you have that case number?

[Calverley's Counsel:] I do, Your Honor. It's ․ 21AO-CR00388.

[Trial Court:] Okay. So I'll -- I'll take judicial notice of that. And, I mean, I don't know that I can require the State to stipulate as to that. But I -- you know, I also understand that the State cannot be taking contrary positions in different cases involving the same set of facts.

[Calverley's Counsel:] Okay

[Trial Court:] So ․[.]

[Calverley's Counsel:] I -- I guess I'll leave it at that, and you're aware of what was stated at --

[Trial Court:] Yes, and if you want to provide me with a copy of that.

[Calverley's Counsel:] I do ․

[Trial Court:] Okay. I'll take that, you know, and I'll read through it and if I - - you know, if I decide that further relief is necessary, we can certainly address that.

[Calverley's Counsel:] Okay. I appreciate it, Your Honor. Thank you so much.

(Emphasis added.)

Discussion

We first address whether Calverley has preserved his claim of error under Point I for appellate review. “Appellate courts are merely courts of review for trial errors, and there can be no review of a matter which has not been presented to or expressly decided by the trial court.” State v. Vitale, 688 S.W.3d 740, 746 (Mo. App. E.D. 2024) (citations and quotations omitted). Point I alleges a violation of Calverley's constitutional right to due process.

In order to preserve a constitutional issue for appellate review, a party must (1) raise the issue at the first available opportunity, (2) state the constitutional provision claimed to be violated by specifically referencing the article and section of the constitution or by quoting the constitutional provision itself, (3) state the facts that comprise the constitutional violation, and (4) preserve the constitutional issue throughout the criminal proceeding.

State v. Newlon, 216 S.W.3d 180, 184 (Mo. App. E.D. 2007); see also State v. Newman, 699 S.W.2d 29, 32 (Mo. App. S.D. 1985) (“It is a general rule that assignments of error are not for consideration on appeal unless timely presented to the trial court; an objection must be lodged at the earliest possible opportunity so the trial court may take corrective action.”).

As an initial matter, we note that Calverley did not lodge an objection to M.P.’s allegedly false testimony, or the State's failure to correct it, at the “first available opportunity,” which would have been at the time the testimony was actually given. It was not until after M.P.’s direct examination had concluded that Calverley raised any objection.

Further, Calverley has failed to demonstrate that he “preserve[d] the constitutional issue throughout the criminal proceeding.” The sidebar exchange recited above indicates that Calverley's counsel never obtained a ruling on the objection and ultimately accepted the trial court taking judicial notice of the Dunham plea hearing transcript in lieu of the requested order compelling the State to stipulate to the facts therein. A party must obtain a ruling on an objection in order to preserve it for appeal. State v. Neighbors, 502 S.W.3d 745, 748 (Mo. App. W.D. 2016). The conclusion that Calverley was no longer pursuing his objection is further supported by the fact that Calverley's counsel never subsequently renewed his request for the stipulation, never asked M.P. about the alleged discrepancy in her testimony on cross-examination and never raised the issue again. Consequently, Calverley's claim in Point I has not been properly preserved for appeal, and our review, if any, would be for plain error.

“Because a [trial] court cannot be faulted for acting in a manner consistent with the behest of a party claiming error, appellate courts generally do not review unpreserved claims of error.” State v. Jones, 725 S.W.3d 577, 582 (Mo. banc 2025). “Rule 30.20[³ ] provides the limited framework for appellate courts to consider unpreserved allegations of error.” Id. “[A]ll [such alleged] errors—whether statutory, constitutional, structural, or based in some other source—are subject to the same treatment under [Rule 30.20's] plain error framework.” Id. at 585. Accordingly, the Supreme Court of Missouri has consistently cautioned that “[t]he plain error rule is to be used sparingly and may not be used to justify a review of every point that has not been otherwise preserved for appellate review.” Id. (quoting State v. Brandolese, 601 S.W.3d 519, 526 (Mo. banc 2020)).

Review under Rule 30.20 is “discretionary” and available “only when the appellant's request for plain error review establishes facially substantial grounds for believing that the trial court's error was evident, obvious, and clear and that manifest injustice or miscarriage of justice has resulted.” Id. at 583-84. In the context of Rule 30.20, “plain errors” are those errors that are “facially evident, obvious, and clear” – i.e., “plainly erroneous, inherently self-evident, discernible, and undeniable” errors that “the [trial] court definitively should have recognized[.]” Id. at 583. The appellant bears the burden of establishing these facial elements. Id.

Calverley makes no request for plain error review of Point I. Calverley does not contend that evidence of Dunham's presence at the cistern was directly demonstrative of his guilt. He argues only that the supposed falsity of M.P.’s testimony went to her credibility and reliability as one of the State's primary witnesses in this case. Under Napue and its progeny, “when the reliability of a witness may determine guilt or innocence, the failure of the prosecution to correct false evidence which affects the credibility of the witness is a denial of due process.” State v. Allen, 530 S.W.2d 415, 418 (Mo. App. K.C.D. 1975) (citing Giglio v. United States, 405 U.S. 150, 154 (1972)); Napue, 360 U.S. at 269; State v. McClain, 498 S.W.2d 798 (Mo. banc 1973)). Under such circumstances, “if there is reasonable likelihood that the false testimony could have affected the judgment of the trier of fact, a new trial is required.” Allen, 530 S.W.2d at 418.

While we are skeptical that the record establishes the “falsity” of the disputed testimony in this case, we need not resolve that issue because we are unpersuaded that Calverley has facially established substantial grounds for believing “manifest injustice or miscarriage of justice” resulted from such an alleged error. As a general matter, we note that “a trial judge may allow inadmissible evidence to be presented [in a court-tried case].” State v. Murray, 838 S.W.2d 83, 85 (Mo. App. W.D. 1992) (citing State v. Young, 477 S.W.2d 114, 117 (Mo. banc 1972)), overruled on other grounds by State v. Redman, 916 S.W.2d 787 (Mo. banc 1996). This is based on the presumption the trial judge “will be able to make a decision based only on the admissible, competent evidence” due to her professional “expertise and experience” as a trial judge. Id. (citations omitted); see also State v. Coaston, 609 S.W.3d 527, 528 (Mo. App. S.D. 2020) (“[I]n bench-tried cases, we generally presume the trial court does not give weight to erroneously-admitted evidence unless the trial court relied on the inadmissible evidence in making its findings.”). For this reason, it is “nearly impossible to obtain a reversal based upon the improper admission of evidence in a court-tried case.” Coaston, 609 S.W.3d at 528. (quoting State v. Franks, 228 S.W.3d 607, 610 (Mo. App. S.D. 2007)).

Thus, even assuming arguendo that M.P.’s testimony regarding Dunham's presence at the cistern on the night of August 16, 2020, was false, we presume the trial court did not rely on such evidence after Calverley's counsel revealed its “falsity” at trial. Neither the trial court's oral pronouncement of judgment nor its written findings contain any mention of Dunham's presence at the cistern. While Calverley contends that a comment by the trial court – that “there's been evidence that all nine co-defendants were there” – in a sidebar conference shows the Court's consideration of this evidence, a review of the full exchange suggests the trial court's comment was referring to the “various activities” of Hunter's group at Knapp's house and not the cistern where only Hunter and Calverley were the primary actors.⁴

Moreover, the principle underpinning the prosecution's obligation to correct false testimony is that “deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice.” See Giglio, 405 U.S. at 153 (internal quotations omitted). The false evidence cases cited by Calverley, including Napue and its progeny, all involved trials where the alleged contradictory information regarding a witness's credibility was concealed from the fact-finder and not disclosed until well after the trial had concluded. See Glossip v. Oklahoma, 604 U.S. 226, 231 (2025); Giglio, 405 U.S. at 152–55; Napue, 360 U.S. at 265, 270; McClain, 498 S.W.2d at 798-800; Allen, 530 S.W.2d at 418-19.

In each of these cases, the significance of the non-disclosures was that the trier of fact was deprived of material evidence in assessing the credibility of the corresponding prosecution witness, suggesting that disclosure of the contravening evidence to the trier of fact at trial would have been sufficient to cure the harm arising from the prosecution's presentation of false evidence. See Glossip, 604 U.S. at 228 (“Had the prosecution corrected [the witness] on the stand, his credibility plainly would have suffered” (emphasis added)); Giglio, 405 U.S. at 154–55 (“[Witness]’s credibility ․ was ․ an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it” (emphasis added)); Napue, 360 U.S. at 270 (“Had the jury been apprised of the true facts, however, it might well have concluded that [the witness] had fabricated testimony[.]”); McClain, 498 S.W.2d at 798-800 (“The failure of the prosecutor to disclose that the charge against [the witness] had been dismissed requires a new trial under the due process criteria of Napue and Giglio” (emphasis added)); Allen, 530 S.W.2d at 418-19 (“If the testimony of the client denies knowledge of the promise of leniency, the prosecutor owes disclosure of the agreement, the issue becomes one of credibility, and falls within the pale of Giglio, Napue and McClain” (emphasis added)).⁵

Such disclosure ultimately occurred in this case. The trial judge was not only made aware of Calverley's contention that M.P.’s testimony was false but also took judicial notice of the file related to Dunham's criminal case, requested that Calverley's counsel provide it with a copy of Dunham's plea transcript for review and committed to read through it and discuss if further relief was necessary. There is no reasonable contention that the trial court was not made aware, before making its final determination of M.P.’s credibility, that M.P.’s testimony about Dunham being at the cistern was not consistent with the representations of the State at the plea hearing two years earlier. It was for the trial court as the finder of fact to ultimately “determine[ ] the credibility of witnesses, resolve[ ] conflicts in testimony, and weigh[ ] the evidence.” State v. Canaday, 476 S.W.3d 346, 354 (Mo. App. W.D. 2015).

Here, the trial judge was made aware of the conflicting evidence and nonetheless found that M.P.’s testimony was “reliable and credible” with respect to the pertinent facts. This credibility determination was well within the trial court's purview, and we defer to the trial court's “superior opportunity to judge the credibility of witnesses.” Hawthorne, 74 S.W.3d at 829; see also Zink v. State, 278 S.W.3d 170, 192 (Mo. banc 2009) (the trial court, acting as the trier of fact, “is free to believe or disbelieve all or part of the witnesses’ testimony.”).

In light of the foregoing, we decline to review Point I for plain error.

Point II

Calverley's second point on appeal argues that he unequivocally invoked his right to remain silent as set forth in Miranda v. Arizona, 384 U.S. 436 (1966), during a video recorded interview with law enforcement. Calverley contends that the interviewing officer failed to halt his interrogation, which resulted in Calverley making various dishonest statements about his involvement in the events on August 16, 2020. Calverley contends the trial court erred in admitting such statements at trial. We disagree.

Additional Factual Background and Procedural History

After Calverley was arrested, he was taken to the Lawrence County Sheriff's Office on or about August 20, 2020. There, a detective conducted a recorded interview of Calverley. In the portion directly relevant to this appeal, the following exchange occurred:

[Detective:] Okay. [Calverley], you have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you're being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any question, if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements. Do you understand your rights?

[Calverley:] Uh-huh.

[Detective:] Okay. If I could get a signature right there from you, just saying you understand your rights.

[Calverley:] I'm not waiving them. I just understand them.

[Detective:] Okay.

[Calverley:] Because I don't know why I'm here. You've never told me why I was being arrested.

[Detective:] Okay. All right. And that's why we're here to talk.

[Calverley:] Okay.

[Detective:] So if you're willing to talk to me, we can explain that, and you can give me all the information you have.

[Calverley:] So then if I don't --

[Detective:] It's okay. You have --

[Calverley:] -- then I'm going to be sitting here not knowing why?

[Detective:] All right.

[Calverley:] That was a question.

[Detective:] If you don't want to talk to me, you don't have to talk to me.

[Calverley:] I don't know what to talk about.

[Detective:] Okay. And we will get into that, if you are willing to talk to me.

[Calverley:] Okay. But I still don't waive my rights.

[Detective:] Okay. So are you -- you can -- okay. You can decide at any time to exercise these rights, not answer any questions or make any statements[,] okay? So while we're talking, you can decide that you're done.

[Calverley:] Okay.

[Detective:] Do you understand that?

[Calverley:] Do I need to initial all of this?

[Detective:] Just sign your name right here. Just a couple of other things that we'll go over on the back of this; okay?

(Emphasis added.) Calverley then signed and initialed a written copy of his Miranda rights, and the detective immediately thereafter conducted the interview. Among other things, Calverley discussed being at Knapp's house with Hunter on August 16, 2020, but denied seeing any women at the house doing anything out of the ordinary. Calverley described seeing a black Ford F-150 truck – which in fact belonged to M.P. – parked at Knapp's house that day, but claimed the vehicle was always parked there. When confronted with a recounting of the events of August 16, 2020, discussed above, Calverley denied any involvement. Eventually, Calverley stated “If I'm not being charged with anything, I would like to leave, and if I am being charged with something ․ I think I want a lawyer,” at which point the detective ended the interview.

Calverley's counsel did not file a pre-trial motion to suppress Calverley's statements or the recorded interview. At trial, the State offered the recorded interview into evidence, and Calverley's counsel objected that it should be excluded because the statements contained therein were obtained in contravention of Calverley's right to remain silent and to counsel.⁶ After reviewing portions of the interview and hearing the arguments of the parties, the trial court admitted the interview over Calverley's objection. In its oral and written findings, the trial court determined that Calverley “was not honest about his involvement” in the underlying events of August 16, 2020, in his initial interview with law enforcement.

Discussion

“A trial court has broad discretion to admit or exclude evidence at trial.” State v. Madorie, 156 S.W.3d 351, 355 (Mo. banc 2005). We will reverse “a trial court's ruling on the admission of evidence only if the court has clearly abused its discretion.” Id. “[E]vidence pertaining to the admissibility of [a defendant's] confession [under government interrogation] is reviewed in the light most favorable to the trial court's ruling.” State v. Simmons, 944 S.W.2d 165, 173 (Mo. banc 1997).

Whether conduct violates a defendant's Fifth Amendment right against self-incrimination (i.e., right to remain silent) is a question of law that we review de novo. State v. Rice, 573 S.W.3d 53, 66 (Mo. banc 2019). We will “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Id. However, because Calverley elected to not raise his Fifth Amendment claim in a pre-trial motion to suppress, he “bears the burden of showing that the challenged conduct was unconstitutional.” State v. Hart, 404 S.W.3d 232, 249 n.13 (Mo. banc 2013).

Upon being Mirandized, “[i]f the [defendant] indicates in any manner, at any time prior to or during the questioning, that he wishes to remain silent, the interrogation must cease,” and the State must “scrupulously honor[ ]” this right. Miranda, 384 U.S. at 473-74, 479. However, while “no ritualistic formula or talismanic phrase” is necessary to invoke the right, the defendant must make “a clear, consistent expression of a desire to remain silent” in order to invoke the right and cut off law enforcement questioning. Simmons, 944 S.W.2d at 173-74 (quoting United States v. Thompson, 866 F.2d 268, 272 (8th Cir. 1989)). Put another way, the defendant “must articulate his desire to cut off questioning with sufficient clarity [such] that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent.” State v. Wolf, 91 S.W.3d 636, 643 (Mo. App. W.D. 2002) (quoting Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir.1994)).

If the defendant's invocation is “ambiguous or equivocal,” law enforcement need not cease the interrogation and are permitted, but not required, to ask questions to clarify whether the defendant is invoking his right to silence. Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010); see also State v. Clemons, 946 S.W.2d 206, 219 (Mo. banc 1997) (“Miranda contemplates situations in which there may be some question as to whether a defendant wishes to assert his rights or not. In such instances, the interviewer may clarify the defendant's intent by continued questioning as to whether or not the defendant does or does not waive his rights.”).

Reviewing the admission of Calverley's interview in the light most favorable to the ruling, we are unpersuaded that the trial court's ruling was clearly erroneous. Calverley's briefing on appeal narrowly focuses on his statements where he expressed “I'm not waiving [my rights]” and “I still don't waive my rights” in arguing that he unambiguously invoked his right to remain silent at the outset of the interview. However, as recited above, these words were not the entirety of his statements. “We consider the defendant's statements as a whole in determining whether they indicate an unequivocal decision to invoke the right to remain silent.” Wolf, 91 S.W.3d at 643 (citing U.S. v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995)); see also State v. Jones, 369 S.W.3d 77, 81 (Mo. App. E.D. 2012) (“This Court considers the suspect's statements in their entirety to determine whether they show an unequivocal decision to invoke the right to remain silent.”).

Here, the detective read Calverley his Miranda rights, stated Calverley could exercise the rights at any time, and asked Calverley if he understood the information conveyed. When Calverley responded in the affirmative, the detective then asked Calverley to sign a written copy of his Miranda rights to indicate he understood his rights, to which Calverley responded, “I'm not waiving [my rights]. I just understand them.” However, this was not Calverley's complete statement. It was immediately followed by Calverley stating, “Because, I don't know why I'm here. You've never told me why I was being arrested.” Viewing these statements together, a reasonable police officer could have construed Calverley's words as an invitation to continue discussion or as a qualification that Calverley would being willing to waive his rights if the detective told him the reason for his arrest. In either case, Calverley had not at this point conveyed any “clear, consistent expression of a desire to remain silent.”

The detective proceeded to explain the purpose of the interview was to discuss the reason why Calverley was arrested, and that, if Calverley was willing to speak, they could discuss the subject. Calverley then posited, “So then if I don't [talk] – then I'm going to be sitting here not knowing why[.]” Calverley then told the officer he was asking a question, further inviting a continued discussion. The detective reiterated Calverley's right to not speak with him if Calverley did not want to, to which Calverley responded, “I don't know what to talk about.” A reasonable police officer could interpret this response as further indication Calverley was willing to speak, but simply did not know what he should talk about.

The detective again stated that they could discuss what Calverley could speak on if Calverley was willing to talk. Calverley responded, “Okay. But I still don't waive my rights.” Under such circumstances, a reasonable police officer could have concluded that Calverley was agreeing to speak but was merely reaffirming he would not waive his ability to invoke his rights at a later point. The detective in this case apparently drew such a conclusion because he immediately thereafter told Calverley, “[y]ou can decide at any time to exercise these rights, not answer any questions or make any statements[.] So while we're talking, you can decide that you're done.” Calverley confirmed the detective's understanding when he responded in the affirmative and then asked where he needed to place his initials on the written Miranda rights form before signing and proceeding to have a lengthy discussion with the detective. Viewed as a whole, Calverley's statements during this exchange are far from a “clear, consistent expression of a desire to remain silent.” Simmons, 944 S.W.2d at 173-74 (quoting Thompson, 866 F.2d at 272).

Calverley's reliance on the Supreme Court of Missouri's decision in Rice, is unavailing. In Rice, the defendant's initial invocation of his right to remain silent occurred while he was being interrogated at a hospital. 573 S.W.3d at 67. The defendant plainly and directly stated “I don't wanna talk no more [sic],” suggested this was because he was in physical pain, and then stopped speaking until law enforcement attempted to resume questioning 20 to 30 minutes later. Id. The Supreme Court concluded this was a “clear invocation of [defendant's] right to remain silent.” Id. at 68. Unlike Calverley's purported invocation of the right to remain silent in this case, the defendant's invocation in Rice “was not immediately followed by continued statements” nor “qualified by any equivocal language.” Id. As Calverley did not unequivocally invoke his right to remain silent, law enforcement was not precluded from interrogating him. The trial court's decision to admit Calverley's recorded interview was not an abuse of discretion. Point II is denied.

Point III

In his final point on appeal, Calverley alleges the trial court failed sua sponte to take some unidentified “curative action” in response to the prosecutor violating a pretrial order barring the prosecution from making references to Calverley as any defense expert's “client” at trial, resulting in a deprivation of constitutional due process. Calverley contends such references improperly suggest bias on the part of the expert towards the defendant and “can undermine the fact-finder's impartial consideration of the evidence,” even in a bench trial.

Calverley concedes he failed to properly preserve this issue for appellate review and requests plain error review. As set forth in our discussion of Point I, such review is “discretionary” and to be used “sparingly.” We need not decide whether the prosecutor's references themselves were plain error, because Calverley has not fulfilled his burden to facially establish substantial grounds for believing that a manifest injustice or miscarriage of justice occurred.

Additional Procedural History

At pre-trial conference on October 2, 2024, the trial court took up inter alia Calverley's motion in limine to preclude the prosecution from referring to Calverley as the client of any defense expert witness. Of note, Calverley's counsel advised the trial court that the State's trial prosecutor had previously referred to defendants in other trials as clients of their respective expert witnesses, improperly creating the impression that the experts had been hired by the defendants for particular opinions or certain testimony when in fact the experts had been hired by the defendants’ respective defense teams. Ultimately, the trial court sustained Calverley's motion in limine, noting, “I do think everybody understands that somebody's paying these experts[.]”

Following the presentation of the State's case-in-chief at trial, Calverley's counsel called forensic psychologist Dr. Christina Pietz to testify to Calverley's post-traumatic stress disorder and Calverley's state of mind during the events at the cistern on August 16, 2020. During Dr. Pietz's cross-examination, the prosecutor briefly referred to Calverley as Dr. Pietz's client three times – twice in questions to Dr. Pietz and once during arguments to the trial court on a defense objection to the examination. Calverley's counsel objected to two of these instances but never requested any relief from the trial court.

Discussion

At the outset, we note that “[t]rial judges are not expected to assist counsel in trying cases[.]” State v. Thompson, 390 S.W.3d 171, 176 (Mo. App. E.D. 2012).

Uninvited interference by the trial court in trial proceedings is generally discouraged because it risks injecting the court into the role of a participant and invites error. The trial court should take independent action only in the most unusual or exceptional circumstances. Thus, an appellate court will rarely find plain error where a trial court has failed to act sua sponte with regard to the proceedings.

State v. Reeves, 708 S.W.3d 168, 172 (Mo. App. S.D. 2024) (citation omitted). Calverley nonetheless contends that the prosecutor's three references to him as Dr. Pietz's “client” improperly suggested Dr. Pietz was biased and thereby unfairly undermined the efficacy of his defense in the mind of the trial court.

Legal counsel retaining experts to testify on behalf of a party in exchange for monetary compensation is a basic and ubiquitous occurrence in legal proceedings. It stretches the bounds of credulity to suggest that any trial judge would be unaware of this reality or unable to fairly account for it in weighing the credibility of an expert witness.

Indeed, while granting the motion in limine, the trial court specifically stated “I do think everybody understands that somebody's paying these experts[.]” While we do not condone any counsel taking action that is contrary to a prior ruling of a trial court, the record here shows that the trial court was aware of the circumstances and Calverley points to no evidence in the record that the trial judge was improperly prejudiced by the State's alleged actions.⁷ Again, we presume that trial judges, by virtue of their legal expertise and experience, enter their judgments in bench trials solely based on competent and admissible evidence. Murray, 838 S.W.2d at 85. Calverley fails to overcome this presumption.

Calverley's citations to the Supreme Court of Missouri's decisions in State v. Walter, 479 S.W.3d 118 (Mo. banc 2016), and State v. Banks, 215 S.W.3d 118 (Mo. banc 2007), are distinguishable. Both opinions addressed jury-tried cases in which far more egregious prosecutorial misconduct was openly and directly targeted at the defendant. See Walter, 479 S.W.3d at 122 (in closing argument, prosecution displayed to the jury a modified photograph of defendant in a prison jump suit with the word “GUILTY” superimposed over the image of defendant's face); Banks, 215 S.W.3d at 119 (prosecutor called defendant “the devil” in closing argument to the jury). For these reasons, we decline to review Point III for plain error.

Conclusion

The judgment of the trial court is affirmed.

FOOTNOTES

1.   See sections 565.021, 565.050, 570.023, and 565.110; and 571.015, RSMo Cum. Supp. 2020. All statutory references are to RSMo 2016, including changes effective January 1, 2017, unless otherwise specified.

2.   It was not determined who had shot M.P.

3.   All rule references are to Missouri Court Rules (2024).

4.   The defense expert being cross-examined had testified earlier on direct examination regarding, inter alia, M.P.’s ability to accurately recall the faces of the individuals who had been at Knapp's house.

5.   While Allen concluded the State failed to fulfill its obligations under Napue by not disclosing its agreement with the disputed witness, it ultimately held the failure was harmless because said witness's testimony was not essential to defendant's conviction nor reasonably likely to have affected the judgment of the trial judge as the finder of fact. Allen, 530 S.W.2d at 419.

6.   Calverley's stated Point II on appeal does not allege a violation of Calverley's Sixth Amendment right to counsel and the corresponding argument section of his briefing on appeal contains no authority or analysis on the issue. Accordingly, Calverley's objection that the trial court's admission of the recorded interview violated his constitutional right to counsel is abandoned and we do not address it in this opinion.

7.   In fact, there is evidence in the record to suggest that the trial court did give credibility to some of Dr. Pietz's testimony. In paragraph 4 of its written verdicts, the trial court acknowledges that Calverley has post-traumatic stress disorder, a fact for which evidence only came in through Dr. Pietz.

MATTHEW P. HAMNER, J.

LISA P. PAGE, Sp. J. BRYAN E. NICKELL, J.