On January 19, 1999, Harold R.
Lingle, Richard Delong and Stacie Y. Leffingwell committed the
worst mass murder in Springfield history. They drove to the home
of 36-year-old Erin Vanderhoef, who was just days away from giving
birth. Lingle drove Erin to a nearby grocery store to buy donuts
with food stamps. While they were gone, Lingle's friends strangled
Erin's children, eight-year old Darlene, ten-year old Chris, and
eleven-year-old Jimmy. Delong found that it was not easy to
strangle Jimmy with his bare hands, so he shoved clothes down the
boy's throat to silence him, then strangled with an electrical
cord. Then Delong murdered the other two children in the same
When Lingle brought Erin back to her home, the
three strangled her with an electrical cord as well, and her full-term
preborn baby died as a result. DeLong kicked Erin in the head so
hard that he limped for several days.
Lingle was arraigned on five counts of first-degree
murder by Greene County Circuit Judge Max Bacon. Delong was also
indicted by a Greene County grand jury on five counts of first-degree
murder. Leffingwell was also ordered to stand trial.
Lingle, who had agreed to participate in the
killings for $250 worth of methamphetamine, was convicted on all
five counts, and was ordered to serve five life sentences. Richard
Delong was found guilty of all counts and sentenced to life in
prison in July 2001.
Leffingwell was Delong's live-in girlfriend.
She had contracted full-blown AIDS before telling Delong she was
infected, and he became HIV positive as well. Leffingwell died of
AIDS before she could stand trial.
Renee Allen, a friend of the defendants and the
victims, said Leffingwell was upset because DeLong also was dating
Vanderhoef. She said "Stacie hated Erin because Erin was the 'other
woman'." Allen said Leffingwell also resented the fact that DeLong
had less money for their methamphetamine habit because he was
paying Vanderhoef child support. She said Leffingwell told her
that she and DeLong were going to a hospital appointment in
Columbia on the day of the mass murder. When Leffingwell and
DeLong returned, Leffingwell was hysterical, Allen testified, and
told her that she and DeLong had killed Vanderhoef and her
children. Allen said "She said (Erin Vanderhoef) got what she
deserved but that the children did not deserve to die."
Erin Vanderhoef, 36, her children Darlene Vanderhoef, 8, Jimmy
Vanderhoef, 11; and Chris Franklin, 10, were strangled Jan. 19,
1999, in her north Springfield home. The murders, police say, were
committed by Harold Lingle, Richard DeLong and DeLong's live-in
girlfriend, Stacie Leffingwell.
DeLong and Leffingwell and their son, Scooby, lived in the same
apartment complex as Lingle and his wife, according to court
records. DeLong had previously had a relationship with Ms.
Vanderhoef, who allegedly was trying to get back together with him.
At times, when Ms. Leffingwell was out of town, Ms. Vanderhoef
would come to Joplin and sleep with DeLong, according to the court
decision. Instead of dropping DeLong and getting as far away from
him as possible, Ms Leffingwell, who was dying from AIDS,
according to the court record, decided on another course of action.
She did not want Ms. Vanderhoef to replace her as Scooby's mother.
"Because (Ms. Vanderhoef's) children would be witnesses to the
event," the court decision said, "DeLong and Leffingwell also
intended to kill the children. They asked Lingle if he wanted to
At first, Lingle said no. All it took to change his mind was
the promise of a little methamphetamine.
On Tuesday, Jan. 19, 1999, the three drove to Springfield,
carefully planning the brutal murder along the way. They decided
on just the right way to murder three innocent children. Lingle
said he did not want to have any part of killing the kids, so he
was asked to lure Ms. Vanderhoef away while DeLong and Leffingwell
eliminated the children.
After they arrived, Lingle took Ms. Vanderhoef to Dillon's
Supermarket to buy doughnuts. While they were gone, the demented
duo strangled the three children and waited for their final victim
When Lingle and Ms. Vanderhoef returned, they sat down on the
couch and began watching television. DeLong told her the children
had been disciplined and had been sent to their rooms. DeLong
moved behind Ms. Vanderhoef, on the pretext of putting a necklace
on her, then wrapped a cord around her neck. She struggled ,
grabbing at the cord. They fell off the couch onto the floor. She
was winning the struggle when Lingle stepped in, grabbed her hands
and pulled them down to her waist, according to the court decision.
That gave Leffingwell the opportunity to shove a rag in Ms.
Vanderhoef's mouth so her screams could not be heard. It took
another 10 minutes for Ms. Vanderhoef to pass out. DeLong and
Leffingwell bound Ms.Vanderhoef's feet with another cord, pulled
them up tightly behind her back, then wrapped the end of the cord
around her neck so the weight of her feet and legs would help
After another 10 minutes passed, Ms. Vanderhoef and her unborn
child were dead.
Having completed their task, Lingle, DeLong, and Leffingwell
returned to Joplin. "Later that evening," the court decision said,
"DeLong gave Lingle the promised eight ball of methamphetamine for
participating in the murders." Lingle immediately spent his pay.
In his appeal, Lingle claimed that the trial court made a mistake
when it did not force DeLong to testify in Lingle's behalf and by
not ordering a mistrial when Lingle asked for one. That argument
was rejected by the Southern District Court of Appeals on June 15.
2004. It won't be heard by the Missouri Supreme Court.
Missouri Court of Appeals Southern District
State of Missouri, Plaintiff/Respondent
Harold R. Lingle, Defendant/Appellant.
Case Number: 24812
Handdown Date: 06/15/2004
Appeal From: Circuit Court of Greene County, Hon. Henry
W. Westbrooke, Jr.
Opinion Author: Jeffrey W. Bates, Judge
Opinion Vote: AFFIRMED. Rahmeyer, C.J.-P.J. and Shrum, J.
Harold R. Lingle ("Defendant") was charged by information
with five counts of committing the class A felony of murder
in the first degree, in violation of section 565.020. (FN1)
These five charges stemmed from the strangulation deaths of
Erin Vanderhoef ("Vanderhoef") and her three children:
Darlene Vanderhoef, Jimmy Vanderhoef and Christopher
Franklin ("the children"). The evidence presented at trial
showed Defendant and two other individuals, Richard DeLong
("DeLong") and Stacie Leffingwell ("Leffingwell"),
collectively planned and carried out these five murders.
(FN2) A jury found Defendant guilty on all five counts, and
he received five concurrent sentences of life imprisonment
without the possibility of probation or parole. In
Defendant's appeal, he contends the trial court erred by
failing to order Delong to testify on Defendant's behalf and
by overruling Defendant's request for a mistrial after the
State had concluded the first portion of its closing
argument. We affirm.
I. Statement of Facts
does not contest the sufficiency of the evidence to support
his convictions. Therefore, a brief review of the evidence
adduced at trial, viewed in a light most favorable to the
jury's verdicts, will be sufficient. See State
v. Starr, 998 S.W.2d 61, 63 (Mo. App. 1999);
State v. Rowe, 838 S.W.2d 103, 106 (Mo. App. 1992).
In January 1999, DeLong, Leffingwell and their son, Scooby,
were living together in an apartment in Joplin, Missouri.
Defendant and his wife lived in the same apartment complex.
Vanderhoef lived in a house in Springfield, Missouri, with
Leffingwell was DeLong's current girlfriend, but he
previously had been romantically involved with Vanderhoef.
In 1998, Vanderhoef periodically came to Joplin and sought
to reestablish her prior relationship with DeLong. On some
occasions when Leffingwell was out of town, Vanderhoef
engaged in sexual relations with DeLong. Leffingwell, who
was dying from AIDS, was furious with Vanderhoff for
pursuing DeLong and attempting to replace Leffingwell as
DeLong and Leffingwell came to Defendant's apartment on
Monday evening, January 18, 1999. While there, they told
Defendant they intended to go to Springfield the next day
and kill Vanderhoef in order to get her out of their lives.
Because her children would be witnesses to the event, DeLong
and Leffingwell also intended to kill the children. They
asked Defendant if he wanted to participate. He initially
declined, but he changed his mind when DeLong said he would
give Defendant an "8 ball" of methamphetamine in exchange
for helping to kill Vanderhoef and her children. (FN3)
On Tuesday, January 19, 1999, Defendant drove to Springfield
with DeLong and Leffingwell. During the trip, the three
discussed what methods they could use to kill the children.
Defendant did not want to participate in murdering the
children, so DeLong and Leffingwell proposed that he take
Vanderhoef to the store to keep her occupied while DeLong
and Leffingwell killed her children. Defendant agreed to do
When Defendant, DeLong and Leffingwell arrived at
Vanderhoef's house in Springfield, she and the children were
all there. As planned, Defendant took Vanderhoef to Dillon's
Supermarket while DeLong and Leffingwell strangled the three
children. When Defendant and Vanderhoef returned to her
house, DeLong told her the children had been disciplined and
were in their rooms. While Defendant and Vanderhoef sat
beside each other on the couch watching television, DeLong
moved behind Vanderhoef on the pretext of putting a necklace
on her. As he attempted to wrap a cord around Vanderhoef's
neck, she resisted by grabbing at the cord. She and
Defendant fell off the couch onto the floor. Vanderhoef was
able to resist being strangled until Defendant grabbed her
hands and pulled them down to her waist. By doing so,
Defendant gave Leffingwell the opportunity to stuff a rag in
Vanderhoef's mouth so she could not scream. DeLong and
Leffingwell then tightly wrapped the cord around
Vanderhoef's neck and tied it off. Defendant continued to
hold Vanderhoef's hands at her waist while she struggled.
After about 10 minutes, Vanderhoef passed out. DeLong and
Leffingwell bound Vanderhoef's feet with another cord,
pulled them up tightly behind her back and wrapped the end
of this cord around her neck so the weight of her feet and
legs would help suffocate her. It took another 10 minutes
for Vanderhoef and her unborn child to die from asphyxiation.
After committing these murders, Defendant, DeLong and
Leffingwell returned to Joplin. Later that evening, DeLong
gave Defendant the promised "8 ball" of methamphetamine for
participating in the murders, and Defendant used these drugs.
Additional facts will be provided when necessary to our
analysis of the two points presented by Defendant's appeal.
Discussion and Decision
A. Point I
In Defendant's first point, he contends
the trial court erred in not ordering DeLong to testify on
Defendant's behalf. This contention of error arose in the
After Defendant was arrested, he gave a videotaped statement
to police. During this statement, Defendant admitted
planning the five murders with DeLong and Leffingwell and
agreeing to participate in exchange for drugs. Defendant
also admitted holding Vanderhoef's hands down at her waist
while DeLong and Leffingwell strangled her. Later in this
statement, however, Defendant claimed he only helped
strangle Vanderhoef because DeLong threatened to kill
Defendant if he did not help. Defendant also said that after
he and DeLong returned to Joplin on the day of the murders,
DeLong threatened to kill Defendant if he told anyone what
they had done.
Prior to the beginning of Defendant's trial, DeLong already
had been tried and convicted of five counts of first degree
murder. Although DeLong gave a videotaped statement to the
police, he did not testify at his own trial. Before
Defendant's trial began, his attorneys sought to depose
DeLong. During this deposition, DeLong refused to answer any
questions. At trial, DeLong was the first person called as a
witness during Defendant's case. Defense counsel asked for a
hearing out of the presence of the jury because "[w]e've
previously tried to take his deposition, and he refused to
answer my questions .... So I would ask that Mr. DeLong be
brought into the courtroom so we can determine what his
intentions are with respect to giving testimony in this
courtroom today." The trial court granted this request.
Thereafter, defense counsel, Ms. Beimdiek, elicited the
following testimony from DeLong:
Would you state your name, please?
Richard Ivan DeLong.
Richard DeLong? You're the same Richard DeLong who's been
convicted of five counts of murder in the first degree?
And you're currently serving five life-without-parole
sentences in the Missouri Department of Corrections?
All right. And I want to ask you some questions about the
events that occurred on January the 19th, 1999,
in Springfield, Missouri.
All right. Specifically, I want to ask about some threats
that you made to Mr. Lingle during the course of those
events. Can you tell this Court whether, in fact, you made
any threats to Mr. Lingle during the course of the events of
January the 19th, 1999?
I'd rather not even talk about it, really. I mean -- sorry.
Are you asserting any kind of a privilege in refusing to
answer my questions, or are you simply stating that this is
a preference that you have not to talk about this?
Just a preference, ma'am.
MS. BEIMDIEK: Your Honor, given that, I would ask that Mr.
DeLong -- ask a follow-up question.
Q. (By Ms. Beimdiek) Are there any questions, Mr. DeLong,
that I could ask you here today that you'd be willing to
give me an answer to about the events that took place on
January the 19th, 1999, and the days following?
A. No, ma'am.
After this exchange took place, defense counsel asked the
trial court to instruct DeLong to answer her questions. The
prosecutor then elicited the following testimony from DeLong:
Mr. DeLong, you don't know exactly what the Fifth Amendment
privilege against self-incrimination is, do you?
Q. And that's the same answer you gave us at your deposition
quite a while back?
A. Yes, sir.
Before issuing a ruling, the trial court heard arguments
from defense counsel and the prosecution while DeLong was
still on the witness stand. The prosecution argued DeLong's
statements, taken as a whole, sufficiently manifested an
intention not to testify that invoked his Fifth Amendment
rights. (FN4) In particular, the prosecution noted DeLong
still could incriminate himself by being compelled to
testify about what took place on January 19th. If
DeLong admitted giving Defendant methamphetamine for
participating in the murders, DeLong could be charged with
distribution of a controlled substance in Jasper County.
Defense counsel argued DeLong's use of the word "preference"
was not an invocation of any Fifth Amendment privilege;
however, she did not respond to the prosecutor's argument
that DeLong could incriminate himself if he admitted giving
Defendant methamphetamine for participating in the murders.
At the conclusion of these arguments, the trial court asked
DeLong one additional question and then issued its ruling:
THE COURT: Mr. DeLong, even if I ordered you to testify,
would you still just prefer not to talk about it and not say
anything about it?
THE WITNESS: Yes, sir.
THE COURT: Okay. I'm not going to order [DeLong] to testify.
It's clear that he would not testify. He probably does have
the right to refuse to testify under the Fifth Amendment,
and so I am not going to order [DeLong] to testify.
Defendant claims the trial court's refusal to order DeLong
to testify was an abuse of discretion because his testimony
"might have supported" Defendant's diminished capacity
defense. For the following reasons, we disagree.
Would Not Have Testified Even If Ordered to Do So
trial court is vested with broad discretion regarding the
admission and exclusion of evidence. See State
v. Mayes, 63 S.W.3d 615, 627 (Mo. banc 2001). We
will reverse only upon a showing that the trial court's
ruling constituted an abuse of its discretion. Id.
"An abuse of discretion occurs when a trial court's ruling
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." Hancock v. Shook,
100 S.W.3d 786, 795 (Mo. banc 2003). "If reasonable persons
can differ about the propriety of the action taken by the
trial court, then it cannot be said that the trial court
abused its discretion." State v. Biggs, 91 S.W.3d
127, 133 (Mo. App. 2002). We conclude the trial court did
not abuse its discretion when it declined to order DeLong to
testify on Defendant's behalf. Based on the specific facts
and circumstances existing when this ruling was made, it is
evident to us, as it was to the trial court, that DeLong
would not have testified for Defendant even if ordered to do
Prior to being called as a witness by Defendant, DeLong had
never given any testimony under oath concerning the murders.
He had not testified at his own trial. He had refused to
answer any questions at a pretrial discovery deposition
taken by Defendant's attorneys. When summoned as a witness
by Defendant at trial, DeLong persisted in his adamant
refusal to testify concerning any aspect of the murders. He
bluntly informed defense counsel that he would not willingly
answer "any question" concerning the murders.
The trial court made its ruling with knowledge of the
foregoing facts and after personally observing DeLong while
he was questioned by defense counsel. The trial court made a
factual determination that DeLong would not testify even if
ordered to do so. As the court stated, "It's clear that he
would not testify." If DeLong had been ordered to testify
and refused to do so, the only coercive tool available to
the trial court would have been to find DeLong in contempt
and fine or jail him until he decided to answer. See
section 476.110(5); section 476.120. As DeLong was already
serving five life sentences without the possibility of
probation or parole, it was not an abuse of discretion for
the trial court to conclude that ordering DeLong to testify
would have been futile. (FN5) Under the circumstances
present here, DeLong's characterization of his decision not
to testify as a "preference" does not alter the fact that he
was, in fact, refusing to testify and that the trial court
lacked any effective means of compelling him to do otherwise.
DeLong Sufficiently Invoked His Fifth Amendment Privilege Against Self-Incrimination for Distributing a Controlled Substance in Jasper County
alternative ground for denying defense counsel's request
that DeLong be ordered to testify, the trial court also
relied upon the witness' Fifth Amendment privilege against
self-incrimination. We agree with the trial court that
DeLong's refusal to testify about the murders was sufficient
to invoke this right and that DeLong's testimony about
certain pertinent aspects of the murders could have exposed
him to additional felony charges for distributing a
controlled substance in Jasper County, Missouri.
In State v. Booth, 11 S.W.3d 887 (Mo. App.
2000), we summarized the principles that govern the
applicability of the privileges against self-incrimination
contained in our federal and state constitutions:
The privilege against self-incrimination is guaranteed by
the Fifth Amendment to the United States Constitution and
Article I, section 19 of the Missouri Constitution. The
privilege protects an individual from being an involuntary
witness against himself in any proceeding, criminal or
civil, formal or informal, where his answers might
incriminate him in future criminal proceedings. The
privilege extends not only to answers that would completely
reveal guilt of a crime, but also to questions whose answers
might reveal facts which could be a link in a chain of
evidence connecting him to a crime. Once a witness invokes
his constitutional privilege against self-incrimination, a
rebuttable presumption arises that his answer might tend to
incriminate him. This presumption can be rebutted by a
demonstration by the questioner that the answer cannot
possibly have a tendency to incriminate the witness. Only
after the questioner makes such a demonstration may a court
compel an answer to the question in derogation of the
privilege against self-incrimination.
Id. at 893-94 (citations omitted). The
determination of whether a claim of privilege is proper
rests within the sound judgment of the trial court.
State v. Sanders, 842 S.W.2d 170, 173 (Mo. App.
1992). A trial judge is given "wide latitude" in making this
determination. State v. Carey, 808 S.W.2d 861,
865 (Mo. App. 1991). "All the trial court is required to do
is make an adequate record that the privilege against self-incrimination
will be invoked by some reliable and certain means."
Id. at 866. We review only for an abuse of this
discretion. Id. at 865.
At the trial, defense counsel argued DeLong's
characterization of his refusal to testify as a "preference"
meant he was not invoking his Fifth Amendment rights. We
interpret defense counsel's argument to mean DeLong was
waiving any right he had to assert the privilege. In
deciding whether this was true, the trial court was
obligated to indulge every reasonable presumption against a
waiver and not declare that DeLong had waived his privilege
against self-incrimination unless it clearly appeared he
intended to, and did, knowingly waive his rights. See Booth, 11 S.W.3d at 894; Williams v.
Gary Breedlove Const., Co., 950 S.W.2d 557, 561 (Mo.
App. 1997); State v. Cavanaugh, 419 S.W.2d
929, 936 (Mo. App. 1967). Defense counsel's argument was at
odds with DeLong's statement that he really did not
understand -- either at trial or when his deposition was
taken -- what his Fifth Amendment privilege against self-incrimination
was. It is abundantly clear, however, that DeLong
consistently had refused to give any testimony concerning
the murders on either of these occasions. A witness can
invoke his Fifth Amendment rights by the act of refusing to
testify. See State v. Whitfield, 939
S.W.2d 361, 368 (Mo. banc 1997) (noting that witness called
by defendant in Rule 29.15 proceeding "invoked his Fifth
Amendment privilege against self-incrimination at the
hearing by refusing to testify"). (FN6)
The prosecutor argued DeLong's refusal to testify was
sufficient to invoke his privilege against self-incrimination.
It is evident the trial court accepted this argument. Once
the privilege was invoked, a rebuttable presumption arose
that DeLong's answers might tend to incriminate him.
Therefore, the trial court could not compel DeLong to
testify unless Defendant rebutted this presumption by
demonstrating the witness' answers could not possibly have a
tendency to incriminate him. See Booth,
11 S.W.3d at 894.
We conclude Defendant failed to rebut this presumption. If
DeLong's invocation of his privilege against self-incrimination
had "any rational basis," ; the trial court could not compel
DeLong to testify. See Whitfield, 939
S.W.2d at 368-69. We find such a rational basis in the
argument, advanced by the prosecution, that DeLong's
testimony could incriminate him if he admitted giving
Defendant methamphetamine for participating in the murders.
When DeLong was called as a witness at trial, Defendant's
videotaped statement to the police had been introduced in
evidence. In this statement, Defendant told the police that
DeLong gave him an "8 ball" of methamphetamine for
participating in the murders. Defendant's statement was
corroborated by witness Karen Chambers, who testified that
on the afternoon of the day the murders were committed (January
19, 1999), she observed DeLong and Defendant standing in
Defendant's bedroom in his apartment in Joplin. She saw
DeLong give Defendant two small packages containing white
powder and tell Defendant "this was payment for something
that he did." If DeLong had been compelled to testify for
Defendant, the State would have been entitled to
cross-examine him as to the entire case. See section
491.070; State v. Gardner, 8 S.W.3d 66, 72 (Mo.
banc 1999) (Section 491.070 authorizes cross-examination on
the entire case, which means "the whole case and nothing
Therefore, DeLong could have been cross-examined
about whether he gave Defendant methamphetamine for
participating in the murders to refute the assertion that
Defendant participated in the murders only because he was
threatened by DeLong. (FN7) DeLong's compelled admission
that he had given Defendant methamphetamine as payment for
committing the murders would tend to incriminate
DeLong for distributing a controlled substance in Jasper
At trial, defense counsel made no effort to
demonstrate how DeLong's answers could not possibly
incriminate him and expose him to additional prosecution for
this new felony offense. Accordingly, the trial court did
not abuse its discretion in denying, on Fifth Amendment
grounds, Defendant's request that DeLong be compelled to
testify on Defendant's behalf. "While we agree that the
constitution guarantees criminal defendants the right to
offer testimony of witnesses in his favor, a validly-invoked
fifth amendment privilege of the witness prevails whenever
these two rights conflict." State v. Grays,
856 S.W.2d 87, 92 (Mo. App. 1993).
3. No Adequate Offer of
Proof Was Made
Another reason we must affirm the trial
court's decision not to order DeLong to testify is the
absence of an adequate offer of proof at trial. An offer of
proof serves two purposes. First, it allows the trial judge
to further consider the claim of admissibility after having
ruled the evidence inadmissible. Second, it preserves the
evidence so an appellate court can understand the scope and
effect of the questions and proposed answers in considering
whether the trial judge's ruling was proper. See
State v. Tisius, 92 S.W.3d 751, 767-68 (Mo. banc
2002). In order to be sufficient, "[a]n offer of proof must
show three things: 1) what the evidence will be; 2) the
purpose and object of the evidence; and 3) each fact
essential to establishing the admissibility of the evidence." Id. at 767 (footnote omitted). The offer of
proof here meets none of these requirements.
The only specific question posed by defense counsel to
DeLong was whether he "made any threats to Mr. Lingle during
the course of the events of January the 19th,
1999?" The record does not show what testimony counsel
expected DeLong to give in response to this question. Even
if we assume that the question was intended to elicit a
confirmation of the version of events contained in
Defendant's videotaped statement to the police, the question
was inadequate. In Defendant's police statement, he related
two threats by DeLong. According to Defendant, the first
occurred when DeLong threatened to kill him if he did not
help murder Vanderhoef. The second occurred after the pair
returned to Joplin when DeLong threatened to kill Defendant
if he told anyone what they had done. Because defense
counsel's question was broad enough to encompass both
incidents, the anticipated answer could not simply be
inferred from the question.(FN9) Defense counsel's
subsequent inquiry whether there were any questions DeLong
would be willing to answer "about the events that took place
on January the 19th, 1999, and the days following"
was even more nonspecific. Thus, there was no sufficient
showing of what DeLong's intended testimony would be.
There also was no explanation of what the purpose and object
of DeLong's testimony was or why it was admissible. Assuming
the testimony Defendant sought to elicit from DeLong
concerned a threat to kill Defendant if he did not provide
assistance during the commission of Vanderhoef's murder, we
fail to see the relevancy and materiality of this testimony.
Duress is not a defense to murder in this state. See
section 562.071.2(1); State v. Juarez, 26 S.W.3d
346, 362-63 (Mo. App. 2000).
On appeal, Defendant argues DeLong's testimony was relevant
because "it might have supported [Defendant's] diminished
capacity defense." Since this argument was not presented to
the trial court during the offer of proof involving DeLong,
we decline to consider it. See State v.
Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999).
Furthermore, we find this argument unconvincing for two
First, Defendant did submit the defense of diminished
capacity to the jury. At trial, this defense was supported
by the testimony of an expert psychologist, Dr. Thomas
Blansett. Dr. Blansett opined that Defendant lacked the
capacity to coolly reflect on helping murder Vanderhoef.
During Dr. Blansett's testimony, he related to the jury the
factual information upon which he based his opinion
concerning Defendant's mental condition. Dr. Blansett had
reviewed the information contained in Defendant's videotaped
police statement, and it supported his opinion. Blansett
also conducted his own interviews of Defendant. The purpose
of the interviews was to determine "what [Defendant's] state
of mind was, whether or not he felt threatened at all -- you
know -- those kinds of things." During one interview with
Blansett, Defendant said he only assisted DeLong in
murdering Vanderhoef because DeLong threatened to kill
Defendant if he did not help. Therefore, the DeLong threat
information was presented to the jury both through
Defendant's videotaped police statement and Dr. Blansett's
testimony. The absence of direct corroboration of this
threat information from DeLong's own mouth did not, in any
way, preclude Dr. Blansett from reaching or effectively
supporting an opinion on Defendant's diminished capacity.
Second, we find Defendant's assertion that he needed
DeLong's testimony for this purpose highly suspect because,
at the conclusion of the trial, Defendant offered five
instructions which directly submitted duress as a defense to
murder. In conjunction with the offer of these proposed
instructions, defense counsel made the following statement
to the trial court:
I recognize that the statute and, in fact, the Notes on Use
indicate that duress shall not be a defense to the crime of
murder. And it's my position, in spite of the Notes on Use
and in spite of the statute that that law is incorrect and
that it's unconstitutional and that it denies Bobby Lingle
the right to present a defense in this case, I think the
notion that an individual should be subject to being killed,
himself, when threatened with that so that he should die
instead of aiding or encouraging somebody who is -- has
threatened him to do so is evidence that's important for the
jury to hear. It's important for them to consider that as it
relates to the events that took place in this case. And
denying the submission of this direct instruction denies the
rights under the Fourth, Sixth, and Fourteenth Amendments
under the United States Constitution and Article I, Sections
10 and 18-A of the Missouri Constitution and all of the
other grounds that are previously set forth in the
stipulation we've filed with the Court as to the
constitutional protections that Mr. Lingle enjoys.
The trial court refused to give the instructions. Defendant
carried forward his constitutional challenge to section
562.071 in his motion for new trial, but he abandoned the
issue by not including it as a part of his appeal. See Bergman v. Mills, 988 S.W.2d 84, 88 (Mo. App.
1999). Based upon the record before us, we conclude
Defendant actually sought to introduce DeLong's testimony as
substantive evidence to support a constitutional challenge
to our state statute precluding the use of duress as a
defense to murder, rather than to support a diminished
For all of the foregoing reasons, we hold that the trial
court committed no error in denying Defendant's request that
DeLong be compelled to testify. The record supports the
trial court's factual determination that DeLong would not
have testified even if ordered to do so. Likewise, there was
a rational basis for the court's conclusion that DeLong
sufficiently invoked his privilege against self-incrimination
and that his trial testimony could tend to incriminate him.
Finally, Defendant's offer of proof was insufficient to
establish what DeLong's testimony would have been and why
such testimony was relevant and material to the issues in
Defendant's case. We deny Defendant's first point on appeal.
In Defendant's second point, he contends the
trial court erred in denying a motion for mistrial made
during closing argument. The motion was made because of the
following argument the prosecutor made to the jury:
[Defendant] wants to say that he's scared. And he tries to
get -- give [the police interrogator] the impression on the
videotape that he's scared because in that house, DeLong
supposedly threatened to kill him if he didn't help with [Vanderhoef].
Well, keep in mind that that had nothing to do with the
murders of the kids because there's no comment or any threat
that's ever been made before that moment in time.
And I'd suggest to you, ladies and gentlemen, that you
should -- that statement is self-serving because he wants to
say he's scared because he helped because -- with [Vanderhoef]
because he told them that he didn't do it because he'd kill
me, too. What's -- is that reality?
You heard from the big picture that the two guys were
friends. And up to this point in time, [Defendant's] done
everything that he's agreed to do. And you have to be
skeptical about that reason that the defendant is scared
when he goes to -- through that videotape and said that on
other occasions that I'm scared because I could be charged
with murder. This guy coolly reflected about what he did,
what the consequences could be.
Then, later in the tape, he said: I was scared because -- to
be honest with you, I'm scared because I didn't want to go
to prison. And then later on, he says, toward the end of the
tape: I'm not scared of anything.
I think, if you look at the big picture, this Defendant
agreed to come up to Springfield and aid in the murders of
five people for some methamphetamine. . . .
Defense counsel made no contemporaneous objection to this
After the foregoing comments were made, the prosecutor
concluded the first portion of the State's closing argument
by elaborating on this "big picture" theme for several more
minutes. After the prosecutor finished his argument, defense
counsel approached the bench and moved for a mistrial.
Counsel contended the State should not have been permitted
to describe as "self-serving" Defendant's statement that he
participated in Vanderhoef's murder only because he had been
threatened with death by DeLong. Counsel said the State's
argument was improper because Defendant had not been
permitted to introduce corroborative evidence that this
death threat had, in fact, been made. The only relief
requested was a mistrial, which the trial court denied.
1. Standard of Review
We first address the proper
standard of review. Defendant claims he preserved this issue
for review by requesting a mistrial at the conclusion of the
State's argument and thereafter including this alleged error
in his motion for new trial. We disagree because Defendant
did not interpose a timely objection to the argument about
which he complains on appeal.
In order to preserve for appellate review a complaint about
improper jury argument, a defendant must object at the time
the argument is made. State v. Muthofer, 731
S.W.2d 504, 509-10 (Mo. App. 1987). Failure to object "at
the earliest opportunity" constitutes a waiver of the claim
that the argument was erroneous. State v. Cosby,
976 S.W.2d 464, 467 (Mo. App. 1998); see also
State v. Samuels, 88 S.W.3d 71, 83 (Mo. App. 2002) (failure
to object to closing argument at the time it is made to the
jury results in a waiver of any right to complain on
appeal). Therefore, when counsel does not object to an
allegedly improper argument at the time it is made, the
error is not preserved for review. Sandy Ford Ranch,
Inc. v. Dill, 449 S.W.2d 1, 7 (Mo. 1970).
The purpose for the rule requiring an objection to improper
argument at the earliest opportunity is simple. "If a party
believes that remarks may prejudice his cause, he should
object immediately and afford the court an opportunity to
correct any erroneous impression ...." State v.
McCullough, 411 S.W.2d 79, 81 (Mo. 1967); see
also State v. Newman, 699 S.W.2d 29, 32 (Mo.
App. 1985) (an objection must be lodged at the earliest
opportunity so the trial court may take corrective action).
Compliance with this rule is essential because "an
admonition to the jury is usually sufficient to cure any
prejudicial effect of prosecutorial comments." State
v. Clark, 913 S.W.2d 399, 405 (Mo. App. 1996).
We agree with the State that a contemporaneous objection and
a proper request for relief are essential predicates to
appellate review of matters arising from closing argument of
counsel. State v. Hayes, 624 S.W.2d 16, 19-20
(Mo. 1981); State v. Garner, 760 S.W.2d 893,
901 (Mo. App. 1988). Since Defendant did not move for a
mistrial until after the State concluded the first portion
of its closing argument, this alleged error was not
preserved for review. See State v. Fondren,
810 S.W.2d 685, 687 (Mo. App. 1991); State v. Meade,
736 S.W.2d 473, 474-75 (Mo. App. 1987); Muthofer,
731 S.W.2d at 509-10; State v. Harper, 637 S.W.2d
342, 346 (Mo. App. 1982); State v. Sales, 610
S.W.2d 652, 655-56 (Mo. App. 1980); State v. Whites,
538 S.W2d 70, 72-73 (Mo. App. 1976). In each of these cases,
a motion for mistrial first made at the conclusion of the
State's opening statement or closing argument was held
insufficient to preserve for appellate review a claim of
error based on a prosecutor's allegedly improper comments.
Improper comments made by the State during closing argument
that are not preserved by a timely objection can only be
reviewed for plain error pursuant to Rule 30.20. State
v. Payne, 126 S.W.3d 431, 444 (Mo. App. 2004).
Therefore, we exercise our discretionary authority to review
Defendant's second point for plain error. See
State v. Small, 873 S.W.2d 895, 899 (Mo. App. 1994).
2. The Trial Court Did Not Err in Denying
Defendant's Motion for a Mistrial
rarely be granted on assertions of plain error committed
during closing arguments. State v. Barnett,
980 S.W.2d 297, 306 (Mo. banc 1998); State v. Silvey,
894 S.W.2d 662, 670 (Mo. banc 1995). "To reverse a
conviction under plain error review on a claim of improper
closing argument, a defendant must establish not only that
the argument was improper, but that it had a decisive effect
on the outcome of the trial and would amount to a manifest
injustice or miscarriage of justice if the error were left
uncorrected." State v. Anderson, 79 S.W.3d
420, 439 (Mo. banc 2002). Measured by this standard, we find
no plain error occurred. Indeed, we find no error, plain or
otherwise, in the prosecutor's argument.
The principal contested issue in this case was whether
Defendant deliberated prior to participating in the murders
of Vanderhoef and her children. Deliberation is defined by
section 565.002(3) as "cool reflection for any length of
time no matter how brief[.]" The jury was shown the
videotaped statement that Defendant gave to the police. In
this statement, Defendant admitted that the night before
Vanderhoef and her children were killed, he agreed to
participate in the murders after DeLong offered to give
Defendant an "8 ball" of methamphetamine. This evidence
certainly was sufficient to prove deliberation. In a later
portion of Defendant's police statement, however, he also
said he only helped murder Vanderhoef after he was
threatened with death by DeLong. Thus, it was up to the jury
to decide whether Defendant participated in killing
Vanderhoef because he was offered drugs or because he was
threatened with death.
It is axiomatic that in resolving conflicts in the evidence,
a jury is not bound to accept a defendant's self-serving
claims or explanations about what occurred. See
State v. Hayes, 88 S.W.3d 47, 58 (Mo. App. 2002); State v. Gilpin, 954 S.W.2d 570, 579 (Mo. App.
1997). It was the jury's prerogative to determine which
portion of Defendant's videotaped statement to accept or
reject. State v. Dulany, 781 S.W.2d 52, 55 (Mo.
banc 1989). To assist the jury in making this decision, it
was entirely appropriate for the prosecutor to comment on
the evidence, suggest reasonable inferences that could be
drawn therefrom, and disparage the credibility of the
Defendant's version of events. See State v.
Edwards, 116 S.W.3d 511, 538 (Mo. banc 2003);
State v. Hall, 982 S.W.2d 675, 683 (Mo. banc 1998); State v. Slankard, 74 S.W.3d 271, 275 (Mo. App.
1999). In doing so, it was permissible for the prosecutor to
"even belittle and point to the improbability and
untruthfulness of specific evidence." State v.
Kreutzer, 928 S.W.2d 854, 872 (Mo. banc 1996).
We have set out at length the prosecutor's argument so the
challenged remark can be reviewed in context. We believe
this argument merely provided the jury with the State's view
of why the evidence was sufficient to support a finding of
deliberation as to the children and Vanderhoef. First, the
prosecutor correctly pointed out that Defendant was not
forced to participate in the children's murders because of
any threat against his life. Second, the prosecutor noted
that Defendant's police statement offered two conflicting
explanations for why he helped murder Vanderhoef: (1) to get
methamphetamine; or (2) to avoid being killed by DeLong. We
reject Defendant's assertion that the characterization of
this latter explanation as "self-serving" was intended by
the prosecutor to suggest a lack of corroboration, rather
than a lack of credibility. The dictionary definition of "self-serving"
is "serving one's own interests often in disregard of the
truth or the interests of others." Webster's New Collegiate
Dictionary (G & C Merriam Co. 1976). The prosecution's
argument attacked, in this very fashion, Defendant's
contention that he did not deliberate before helping murder
five people. We deny Defendant's second point on appeal.
We find no merit in any of the arguments advanced by
Defendant to support his first and second points on appeal.
Therefore, the trial court's judgment of convictions and
sentences is affirmed.
FN1. All references to statutes are to RSMo
FN2. Vanderhoef was pregnant when she was killed.
Her asphyxiation resulted in the death of her unborn child,
Hannah. Therefore, a total of five victims were murdered.
FN3. An "8 ball" of methamphetamine is comprised
of four packages of the drug.
FN4. The Fifth Amendment to the United States
Constitution states, in pertinent part, that "[n]o person
... shall be compelled in any criminal case to be a witness
against himself ...."
FN5. Defense counsel recognized this to be true
when they later attempted to offer, through Dr. Wetzel,
evidence of threats against Defendant that DeLong had
reported during an interview by another physician. During
this subsequent offer of proof, counsel reminded the trial
court that "we've attempted to adduce this evidence from the
maker of the statement, and as the Court just saw, that
witness, Richard DeLong, is not available to us."
FN6. In arguing DeLong should have been compelled
to testify, Defendant principally relies on State v.
Sanders, 842 S.W.2d 170 (Mo. App. 1992). There,
Sanders and Montgomery were each charged with murdering the
victim. The Eastern District held the trial court erred in
not compelling Montgomery to testify at Sanders' murder
trial. We find Sanders distinguishable for two
reasons. First, at the time Montgomery was called as a
witness, he had pled guilty to murder and been sentenced to
life imprisonment. Therefore, he knowingly waived his Fifth
Amendment privilege against self-incrimination as to the
details of the murder for which Sanders was on trial.
Id. at 174. Here, DeLong was convicted after trial;
he did not plead guilty. Second, Sanders' defense counsel
made an extensive and detailed offer of proof concerning the
specific questions he intended to ask Montgomery, which
established the relevancy and materiality of the anticipated
testimony. Id. at 172-73. The same is not true
here. See section II.A.3 of this opinion, infra.
FN7. On appeal, Defendant argues the trial court
could have prohibited this line of cross-examination because
it was collateral. We cannot consider this argument because
it was not presented to the trial court. See
State v. Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999)
(a party is bound by the arguments made before the trial
court and cannot raise new and totally different arguments
on appeal). In any event, we are hard pressed to see how
evidence of motive is collateral since it bears directly on
the central issue of deliberation. See State v.
Beck, 785 S.W.2d 714, 717 (Mo. App. 1990) (if a
party is entitled to prove a fact as part of his case for
any purpose independent of contradiction, it is not
FN8. Methamphetamine is a Schedule II controlled
substance. See section 195.017.4(3)(b). Distribution
of methamphetamine is a class B felony. See section
195.211.3. The statute of limitations for a class B felony
is three years. See section 556.036.2(1). At the time
DeLong was called to testify for Defendant, the statute of
limitations for this offense had not expired.
FN9. There is no contention by Defendant that
testimony concerning this second threat, which occurred well
after all of the murders had been committed, would have been
relevant or admissible at trial on any issue.