# In the Missouri Court of Appeals **Eastern District**

DIVISION FOUR STATE OF MISSOURI, ) No. ED101654 ) Plaintiff/Respondent, ) A ppeal from the Circuit Court ) of the City of St. Louis v. ) ) DAARON HARRIS, ) Honorable Michael K. Mullen ) Defendant/Appellant. ) Filed: September 22, 2015 Introduction Daaron Harris (Appellant) appeals from th e trial court’s judgment entered upon a jury verdict finding him guilty of one count of murder in the first degree, one count of burglary, and two counts of armed criminal action. We affirm. Factual and Procedural Background The State charged Appellant, as a prior and persistent offender, with one count of first-degree murder, one count of burglary, and two counts of armed criminal action. Appellant does not contest the sufficiency of the evidence supporti ng his conviction. The evidence, viewed in the light most favor able to the verdict, is as follows. On August 29, 2011, Deon Greenwood (Victim) was at the apartment of his girlfriend, Destiny Harris (Harri s), along with several of Harris’s family members. They were watching television when they heard a loud noise coming from downstairs. Victim, who was unarmed, went downstairs to investigat e. The upstairs occupants heard three or2 four gunshots, then ran and hid in the closet s. When the shooting stopped, Harris looked out the window and saw two men walking aw ay, one of whom was holding a “long gun.” The rear door to the apartment was bent and appeared to have been forced open. Based on the cartridge casings and shotgun pe llets recovered, the firearms examiner believed three different guns were used in the a ttack. An autopsy revealed Victim died of multiple gunshot wounds. Over the course of the next severa l months, St. Louis Metropolitan Police identified Appellant as a possible suspect and a wanted was issued for Appellant on March 26, 2012. On April 21, 2012, Appellant took his father to the hospital. A ppellant left after an altercation with hospital s ecurity. Shortly thereafter, atapproximately 3:00 or 4:00 p.m., Appellant was pulled over and arrested by police on another matter. Appellant testified he was able to hide crack cocaine , marijuana, and a bottle of Percocet on his body before being arrested. Appellant was ha ndcuffed behind his back and was placed in a police transport vehicle. Appellant testified that while in transport, he called his mother and learned that his father had died. Appellant testified he took multiple Percocet pills in an attempt to commit suicide. Appellant stated he took the rest of the Percocet and smoked the marijuana while at the Justice Center, but th e crack cocaine had been taken from him. Appellant testified he had take n a total of 30 Percocets betwee n the time of his arrest and his interview with police, and that he had fa llen asleep after taking the remaining pills at the Justice Center the night before the interview.3 On April 22, 2012, Detective Steven Strohm eyer (Det. Strohmeyer) learned that Appellant had been taken into custody and was at the Justice Center. That morning, Det. Strohmeyer and Det. Heather Sabin (Det. Sa bin) picked up Appellant from the Justice Center and transported him acro ss the street to police headquarters to interview him. The detectives did not talk to Appellant during tr ansport or in the interview room other than the time their conversation was recorded. De t. Strohmeyer read Appellant his Miranda 1 rights and Appellant indicated he understood his rights. Det. Strohmeyer presented Appellant with a police department Mirandawarning and waiver form and advised Appellant of the form’s contents. Appellant signed the warning and waiver form. Det. Strohmeyer testified that at the beginning of the interview Appellant was crying and upset about his father but he rega ined his composure and was able to answer the questions. Det. Strohmeyer testified Appellant seemed to understand the questions being asked. Det. Strohmeyer did not know if Appellant had eaten any meals or slept while at the Justice Center, but Appellant did bring a juice with him to the interview. Det. Strohmeyer testified he did not ask Appe llant if he had taken any drugs before the interview because Appellant admitted using cigarettes and marijuana but denied having a drug problem. Det. Strohmeyer testified A ppellant did not ask for a break during the interview but he would have give n Appellant one if requested. Appellant testified at trial in his defens e. Appellant admitted to having two prior felony convictions for possession of a controlle d substance, specifica lly crack cocaine, and two misdemeanor marijuana possession cases. Appellant asserted he had not been fed anything between his arrest on April 21 a nd the interview with the detectives on April

1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).4 22. Appellant stated he was de pressed about his father’s deat h and had not been able to talk to his family. Appellant testified he told Det. Strohmey er while in the car being transported to the interview that he did not want to talk to th e detectives and that he wanted an attorney. Appellant testified the detectives threatened to charge his brothers with the murder if Appellant did not cooperate with the police and told Appellant they would release him after he confessed. Appellant told the detectives he had been threatened by a man named Darrell Scott (Scott) and had hidden a rifle in a n earby gangway. On the da y of the murder, an argument broke out between Appellant, Scott, and several other men. One person pulled a gun and fired at Appellant, who ducked. Appe llant said the shooter and two other men, including Victim, ran into the apartment buildi ng. Appellant stated he followed the men into the building and fi red about two shots. Appellant acknowledged Det. Strohmeyer r ead him his rights before the interview but stated he was not thinking clearly during the interview because of the drugs he had taken. Appellant asserted he confessed to th e murder to protect his brothers and because he thought the police would release him. A ppellant testified he made up the entire confession and denied owning a gun or shooting Victim. In rebuttal, Det. Sabin denied threat ening Appellant’s brothers and denied Appellant requested an attorney or told the detectives he did not want to talk with them. After deliberations, the jury found Appe llant guilty on all counts. On June 20, 2014, the trial court sentenced Appellant to lif e without the possibili ty of parole on the murder conviction, a consecutive 30-year te rm for the burglary conviction, and two5 concurrent 30-year terms for the armed criminal action convictions. Th is appeal follows. Appellant raises si x points on appeal. Discussion Point I – Court Inquiry of Juror 1975 and Request for a Mistrial Jury deliberations began at 2:10 p.m. on April 30, 2014. The jury asked several questions, including whether they would be e xpected to stay that evening until they reached a verdict. The court advised the jury they would not be expected to deliberate beyond 5:00 p.m. and they could deliberate further in the morning. At 5:05 p.m., the court adjourned for the evening. Deliberati ons resumed the following day at 9:10 a.m. At 10:15 a.m., the court received a message from the foreperson stating, “We have a Juror, No. 1975, who would like to talk to th e [J]udge. She is nervous and scared about participating in the verdict.” Defense couns el objected to the court speaking with the juror and requested a mistrial. The court determined it needed to talk to the juror and brought her into open court withthe attorneys present. THE COURT: Hi, [Juror 1975]. I got a note from the foreperson. The note says, We have a juror -- a nd it indicates your badge number -- who would like to talk to the judge . She is nervous and scared about participating in the verdict. So I haven’t had that happen honestly, it’s kind of an unorthodox request. But I certainly -- my first th ought was I needed to talk you, kind of, to see what’s going on, if you agr ee with this questi on since it wasn’t in your handwriting. So is there something that you – JUROR NO. 1975: Well‚ me pe rsonally I do not -- beyond a reasonable doubt I don’t believe it happened. And I know what everybody upstairs is leaning towards, and my fee lings are totally different from that. And I just -- listening to that DVD again, I heard him say that his mother stays on the west side, and the detective says, “What, off of Goodfellow?” []. Like, I don’t want to come down he re and say that he’s guilty, and all of them people in here and somebody see me at home. Like I’m uncomfortable. Because to me -- and it says beyond a reasonable doubt, it6 has not been proven to me. And I don’t know how this works. So I was just like maybe if I come find out, I don’t know. I don’t know what to do. THE COURT: Okay. I’m just going -- all I can really do with that is tell you to be guided by the instru ctions that I gave you. There [are] instructions in there that talk about that you need to reach a verdict, your own verdict, it has to be unanimous, but each juror is to reach his or her own verdict. So you should do that only after you listen to the views of your other jurors, but it still has to be your verdict in the end. So I’m not telling you come to a decision on something you don’t believe. JUROR NO. 1975: Okay. THE COURT: So it’s up to you to come to a decision. JUROR NO. 1975: See, and that’s wh at I’m thinking that I have to do, I have to. THE COURT: No. On the flip side of that, though, th ere is also an instruction that says you should reach your decision notbased on fear, you know, that’s in the instructions as well. So that’s your duty. But your duty is to follow those instructions. And I think if you read the instru ctions, every issue you brought to me is sort of addressed in the instructions. Okay. JUROR NO. 1975: Okay. THE COURT: I guess -- but nothing happened in between like last night – JUROR NO. 1975: No. THE COURT: Okay. That’s what I was also kind of concerned about. Okay. Very good then. I’m going to ask you to go back up and continue deliberations. JUROR NO. 1975: Okay. Juror 1975 returned to the jury room and deliberations contin ued. At 11:45 a.m., the jury asked if the court was providing lunc h and if they could us e their cellular phones over the lunch break. Defense counsel objected to the court ordering lunch or allowing the jury to use their phones over the break and moved for a mistrial based on the court’s earlier discussion with Juror 1975. The court provided the jurors lunch and use of their phones. At 2:05 p.m., the jury returned its ve rdict. The court accepted the verdict after the jury was polled.7 On appeal, Appellant argues the trial court abused its discretion in denying his objection and request for a mistrial because the court improperly questioned Juror 1975 and instructed her to con tinue deliberating despite know ing she had made a decision contrary to the majority of the other jurors , thereby compelling Juror 1975 to return guilty verdicts against him. A mistrial is a drastic remedy to be exercised only in those extraordinary circumstances in which the prejudice to the defendant cannot otherwise be removed. State v. Ward, 242 S.W.3d 698, 704 (Mo. banc 2008) . The trial court is in the best position to determine whether an incident ha d prejudicial effect on the jury, so the decision whether to grant or deny a mistrial is left to the tria l court’s discretion. Id. We review the trial court’s decision for an abuse of discretion. Id. A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances before it and when the ruling is so arbitrary and unreasona ble as to shock one’s sense of justice and indicates a lack of caref ul consideration. Id. First, Appellant suggests the trial court er red in that it “singl ed out and questioned [Juror 1975] about being nervous and scared about participat ing in the verdict.” In support, Appellant relies on the “general ru le [] that no communication whatever should take place between the Court and the jury, af ter the cause has beensubmitted to them, unless in open court, and where practicable, in the presence of the attorneys in said cause.” Boedges v. Dinges, 428 S.W.2d 930, 934 (Mo. App. E.D. 1968). This argument is completely without merit because the c ourt’s examination of Juror 1975 was done in open court and in the presence of the attorneys, thus complying with the general rule.8 Appellant next argues the trial court’ s examination of Juror 1975 resulted in a coerced verdict. Appellant asserts Juror 1975 “unequivocally” stated she did not believe the State proved his guilt beyond a reasonable doubt and Juror 1975 was placed in a position of disagreeing with other jurors who ha d already decided they were in favor of a guilty verdict. Appellant contends “further questioning and insistence” that Juror 1975 continue to deliberate was coercive and the co urt’s only option was to declare a mistrial. A coerced verdict does not represent the jury’s true unanimous concurrence. State v. Dodd, 10 S.W.3d 546, 552 (Mo. App. W. D. 1999). “A reviewing court must distinguish between a trial court’s effort to eliminate confusion and its attempt to compel a juror to change his vote or to coerce a unanimous verdict.” Id. A verdict is considered coerced when under the totality of the circum stances it appears the trial court virtually directed that a verdict be reached and by im plication indicated it would hold the jury until a verdict was reached. State v. Burton, 219 S.W.3d 778, 782 (Mo. App. E.D. 2007). While Juror 1975 initially stated she did not “believe it happened,” she also stated she was uncomfortable rendering a guilty verdict because she lived near Appellant’s mother and was concerned “somebody” would see her at home. This suggests Juror 1975 was being influenced by fear in renderi ng her verdict, which is improper. Contrary to Appellant’s assertions, it wa s not clear from the exchange that the jury was split 11-1 in favor of a guilty verdict, in that Juror 1975 st ated only that “I know what everybody upstairs is leaning towards, and my feelings are totally different from that.” (Emphasis added.) This is not an abso lute statement of the jury’s split but instead indicates the jurors were still disc ussing and deliberating the case.9 The trial court properly investigated the cause of Juror 1975’s fear, ensuring nothing had occurred overnight to cause such, and then specif ically advised Juror 1975 to be guided by the instructions, to not make a decision based on fear, and to listen to the views of the other jurors but to come to her own decision on what she believed. The court specifically told Juror 1975 that it was not telling her to come to a particular decision or make a decision she did not believe in. Juror 1975 then returned to th e jury room to deliberate with the other jurors in accordance with the instructions . Appellant did not object wh en the court released Juror 1975 to continue deliberations. At this point, the jury ha d been deliberating only four hours and the trial court did not give the hammer instruction. The jury then deliberated approximately three additional hours before returning a verdict. The record does not support a finding that the trial court coerced the jury verdict by instructing Juror 1975 to be guided by the instructions during deliberations. Based on the foregoing, Appellant’s Point I is denied. Point II

− Motion to Suppress Statements Appellant filed a pretrial motion to suppr ess statements to police. The court conducted a hearing on the motion on April 21, 2014, at which the following evidence was adduced. Det. Strohmeyer testified he read A ppellant his Miranda ri ghts prior to the interview, Appellant signed a warning and wa iver form, and Appellant did not request an attorney. Strohmeyer testified Appellant was sobbing at the begi nning of the interview but composed himself and was able to talk to the detectives. Appellant seemed to understand the questions being asked and did not seem to be under the influence of10 anything. Strohmeyer stated Appellant brought a drink with him to the interview and declined their offer of something to eat or drink. Strohmeyer test ified he did not make any threats or promises to Appellant in or der to force him to answer any questions, including that they would char ge Appellant’s brothers with the murder if Appellant did not cooperate or that Appellant would be re leased if he did cooperate. Strohmeyer testified the interview lasted a little over two hours and denied having any off-camera discussions with Appellan t about the murder. At the hearing, Appellant testified he was currently 27 years old and his father had passed away the day before the interview. Appellant stated he had driven his father to the hospital and was arrested 10 minutes af ter dropping him off. Appellant asserted the detectives questioned him about the murder while driving him from the Justice Center and he told the detectives he wanted an a ttorney. Appellant testified the detectives threatened to charge his brot hers with the murder if he did not cooperate and told him they would allow him to leave to be w ith his family if he did cooperate. Appellant testified he had neither slept nor eaten anything sin ce being arrested the day before the interview. Appellant testifie d he was under the influence of Percocet and marijuana during the interview, having smoked marijuana in the Justice Center and taken 30 Percocet pills in the transport vehicle afte r being arrested and additional pills in the homicide interview room. Appe llant asserted he advised the detectives he had taken the drugs prior to the interview. Appellant stated he told the detectives while being transported he did not want to talk to them and wanted an attorney but did not ask again later because they had ignored his first reque st. Appellant denied reading the Miranda warning and waiver form before signing it.11 The trial court denied Appellant’s moti on, finding Appellant had been read his rights before making the statement and that his statement was knowingly and voluntarily made. Upon a defendant’s challenge to the ad missibility of a statement on the ground that it was involuntary, the State has the burden of proving the voluntariness of the statement by a preponderance of the evid ence. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). When reviewing a trial court’s ruling on a moti on to suppress, the inquiry is limited to whether th e court’s decision is supported by substantial evidence. Id. We give deference to the trial court’s superior opportunity to determine the credibility of the witness and to the court’s factual findings and credibility determinations. Id. This Court views the facts and the re asonable inferences therefrom in the light most favorable to the court’s decision. State v. Ke lly, 119 S.W.3d 587, 592 (Mo. App. E.D. 2003). Questions of law are reviewed de novo . Rousan, 961 S.W.2d at 845. The trial court’s ruling on a motion to suppress evidence will be affirmed unless it is clearly erroneous. State v. Davis, 980 S.W.2d 92, 94 (Mo. App. E.D. 1998). The Fourteenth Amendment Due Process Clause bars involuntarily-obtained confessions from being admissi ble at trial. State v. Faruqi, 344 S.W.3d 193, 203 (Mo. banc 2011), citing Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944). “The test for whether a confession is voluntary is whether the totality of the circumstances created a physical or psychological coercion sufficient to deprive the defe ndant of a free choice to admit, deny, or refuse to answer the exam iner’s questions.” Faruqi, 344 S.W.3d at 203 (internal quotations omitted). In order for a defendant’s statements to be considered involuntary due to coercive tactics by the police, it must be demonstrated that the12 defendant’s “will was overborne” as a result of said tactics. State v. Mateo, 335 S.W.3d 529, 537 (Mo. App. W.D. 2011). In determining whether a defendant’s conf ession resulted from improper coercion, this Court considers factors such as age, experience, intelligence, gender, lack of education, infirmity, and unusual susceptibil ity to coercion. Far uqi, 344 S.W.3d at 203. The Court also considers whether the defenda nt was advised of hi s rights and understood them, the length of the detention, the repeat ed and prolonged nature of the questioning, the presence of police coerci on and intimidation, and the use of coercive techniques such as deprivation of food, water, or other physic al needs. Id.; Rousan, 961 S.W.2d at 845. When considering the totality of the circumst ances, no single fact is dispositive. State v. Lytle, 715 S.W.2d 910, 915 (Mo. 1986). “Eviden ce of the defendant’s physical or emotional condition alone, absent eviden ce of police coercion, is insufficient to demonstrate that the confession was involuntary.” Rousan, 961 S.W.2d at 845. On appeal, Appellant asserts the testimony and evidence concerning his statements to police should have been suppressed as unknowingly, unintelligently, and involuntarily made in that he did not unders tand his Miranda rights, lacked the capacity to understand his rights, and did not knowi ngly and intelligently waive his rights. Appellant maintains his confe ssion was the product of a coer cive interrogation because the detectives took unfair advantage of his youth, grief, questionable cognitive abilities, drugged state, and isolation from his family to obtain the statements. Appellant further contends the detectives util ized coercive police tactics through repeated and prolonged questioning, the deprivation of food and sleep, the denial of Appellant’s request for an attorney, and threatening to charge A ppellant’s brothers with the crime.13 Contrary to Appellant’s assertions, th e evidence presented at the hearing and during trial demonstrates Appe llant was advised of his right s, understood his rights, and that his statements were not the result of co ercive police activity. First, Appellant was 25 years old when he was detained and interv iewed regarding Victim’s murder, old enough to talk to the police without a family member being present. Next, Appellant suggests “his cognitive abilities were quest ionable” because he did not graduate from high school and the detec tives did not ask him if he could read or write, yet provides no explanati on as to how these affected his ability to understand his rights. See Howard v. Caspari, 99 F.3d 895, 898 (8 th Cir. 1996) (alleged inability to read and write does not necessarily render a conf ession involuntary). The detectives orally advised Appellant of his right s, to which Appellant answer ed “Yes” or “Yeah” when asked if he understood those ri ghts. The detectives explai ned the Miranda warning form, so Appellant’s ability to read or write was of no consequence and did not serve to invalidate his waiver of those rights. State v. Day, 987 S.W.2d 824, 825 (Mo. App. E.D. 1999) (defendant may waive Miranda righ ts by orally indicating a willingness to cooperate in police questioning withou t signing a written waiver). With regard to Appellant’s grief and alleged intoxication, Det. Strohmeyer testified Appellant composed himself befo re the interview began, Appellant did not appear to be under the influe nce of intoxicants, and Appella nt seemed to understand the questions being asked. Appellant’s assertion that he was deprivedof food and sleep and was subjected to repeated and prolonged questioning is also w ithout merit. Appellant was questioned for slightly more than two hours. Appellant, ag ain, fails to cite to anything in the record14 suggesting his “will was overborne” by the le ngth of the interview. See Mateo, 335 S.W.3d at 537. Two hours is not an unduly l ong period of time and does not, in and of itself, support a finding that the length of questioning was coercive. See Rousan, 961 S.W.2d at 846 (police questioning for three and one-half hours was not coercive). Further, the evidence indicates Appellant broughtsomething to drink to the interview and was offered, but refused, additional food a nd drink. Although Appella nt testified during the hearing on the motion to suppress that he had not slept the night before, Appellant later testified at trial he did sleep the night before the interview. Finally, Appellant’s asserti ons that the detectives i gnored his request for an attorney and threatened his brothers with criminal charges are questions of fact and credibility to be decided by the trial court. Det. Strohmeyer testified Appellant did not request an attorney and that he neither thre atened Appellant nor made any promises to Appellant in order to procur e a statement from him. The trial court was entitled to believe the testimony of the officers. St ate v. Davis, 32 S.W.3d 603, 610 (Mo. App. E.D. 2000). Viewing the evidence in the light most fa vorable to the trial court’s decision, we find, under the totality of the circumstances, that Appellant’s statements to police were made knowingly, intelligently, and voluntaril y. Appellant was advised of his Miranda rights, which Appellant stated he unders tood. Appellant was neither detained nor questioned for an undue length of time and th ere is no evidence Appellant was deprived of food, water, or any other physical need. Appellant was not threatened and Appellant never asked to stop the questioning or to speak to an attorney.15 There is no evidence that Appellant’s conf ession was the result of coercion, which overbore his will and deprived him of his free choice to admit, deny, or refuse to answer the detectives’ questions. See Faruqi, 344 S.W.3d at 203; Ma teo, 335 S.W.3d at 537. The trial court did not err in denying Appellant ’s motion to suppress. Appellant’s Point II is denied. Point III

− Admission of Evidence Prior to trial, Appellant s ought to redact portions of hi s videotaped statement to police. While some portions were redacte d, the court denied Appellant’s request to remove statements that (1) Appellant had been in Youth Services, (2) Appellant was confronted about some fake money and was shot at, (3) Appellant denied having the nickname D-Murder, (4) Appellant was threatened by Darrell Scott so he hid his rifle in a gangway, and (5) Appellant attemp ted to purchase marijuana. The trial court has broad discretion when ruling on the admission or exclusion of evidence at trial, and this Court will not dist urb the court’s ruling absent a showing of an abuse of that discretion. State v. Ke mp, 212 S.W.3d 135, 145 (Mo. banc 2007). The court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration. Id. We will reverse on claims of error in the admission of evidence only if the error was so prejudicial that it deprived the defendant of a fair trial. Id. “Trial court erro r is not prejudici al unless there is a reasonable probability that the trial court’ s error affected the outcome of the trial.” Id. at 145-46. To be admissible, evidence must be both logically and legally relevant. State v. Barriner, 111 S.W.3d 396, 400-01 (Mo. banc 2003) . Evidence is logically relevant when16 it has a legitimate tendency to directly establ ish the defendant’s guilt of the charges and is legally relevant when its proba tive value outweighs its prejud icial value. State v. Blakey, 203 S.W.3d 806, 811 (Mo. App. S.D. 2006). On appeal, Appellant maintains the trial court abused its discretion in allowing the State to present the challenged evidence b ecause the evidence was used as improper propensity evidence and was more prejudicial th an probative. Generally, evidence of uncharged crimes is inadmissible unless it has a legitimate tendency to establish the defendant’s guilt of th e crime charged and is not merely used to show the defendant’s bad character or pred isposition to commit the crime. State v. Henderson, 826 S.W.2d 371, 374 (Mo. App. E.D. 1992) . Evidence of uncharged crimes that are part of the circumstances or seque nce of events surrounding the charged offense is admissible to present a complete and cohere nt picture of the events that transpired. State v. Harris, 870 S.W.2d 798, 810 (Mo. banc 1994). Vague references to other uncharged crimes are insufficient to warra nt reversal. State v. Key, 437 S.W.3d 264, 270 (Mo. App. W.D. 2014). “‘The defendant’s associ ation with other crimes must be clear and definite to run afoul of the general ru le of inadmissibility.’” Id., quoting State v. Slagle, 206 S.W.3d 404, 410 (Mo. App. W.D. 2006). Division of Youth Services In his videotaped statement, Appellant stat ed he had been in trouble as a juvenile for truancy and was sent to Youth Services . In light of Appe llant’s confession to shooting Victim, there is not a reasonable pr obability that Appellant’s earlier fleeting reference to truancy as a juvenile affected the outcome of the trial. Kemp, 212 S.W.3d
145-46.17 Fake Money The trial court refused to redact Appella nt’s statements denying that a couple of days before Victim was killed, he was conf ronted by some people over some fake money and that they chased and shot at him. Appe llant asserts this was evidence of his prior bad acts. Whether someone perpetrated a cr ime against Appellant by chasing him and shooting at him is not evidence of uncharged criminal conduct on the part of Appellant. The only potential reference to an alleged pr ior bad act is a vague reference to “fake money.” Even if it could be said that this is evidence of a prio r bad act or uncharged criminal conduct, there is not a reasonab le probability that this vague and passing reference affected the outcome of the trial. Kemp, 212 S.W.3d 145-46. Hidden Gun In his taped confession, Appellant told th e detectives he had been threatened by a man named Scott and had hidden a rifle in a nearby gangway. On the day of the murder, an argument broke out between Appellant, Sc ott, and several other men. One person pulled a gun and fired at Appellant, who duc ked. Appellant said the shooter and two other men, including Victim, ran into an apartm ent building. Appellant stated he grabbed the gun from the gangway, followed the men into the building, and fire d about two shots. On appeal, Appellant argues the trial court erred in allowing the State to introduce his statement that he had hidde n his rifle in a gangway after being threatened by Scott. The trial court did not err in allowing the Stat e to present this evidence because it went directly to the circumstances or sequence of events surrounding the murder. See Harris, 870 S.W.2d at 810.18 Alleged Nickname Twice during Appellant’s videotaped statements, Det. Strohmeyer asked Appellant whether his nickname was D-Murd er, which Appellant denied. Appellant contends the trial court erred in failing to redact those portions of the video. “Courts frequently allow witnesses to refer to a criminal defendant by his nickname, if that is the name by which the w itness is familiar with the defendant or if it aids in the identification of the defendant .” State v. Nettles, 10 S.W.3d 521, 526 (Mo. App. E.D. 1999). Here, the references to D-Murder explained the context of how Appellant was identified to the dete ctives as a potential suspect. Even if this evidence was admitted in error, Appellant has not demonstrated he was prejudiced by the admission. The evidence regarding Appellant’s alleged nickname was, at best, a vague reference to unchar ged criminal conduct and the State did not emphasize this evidence during tr ial or closing arguments. Ag ain, Appellant has failed to demonstrate there is a reasonable probability this evidence affected the outcome of the trial. Attempted Marijuana Purchase Appellant argues the trial court committed re versible error in allowing the State to admit evidence that he attempted to purchase marijuana prior to the murder. This evidence was relevant to paint a complete picture of the circum stances surrounding the shooting as it explained why, on the day of th e murder, Appellant was in the company of people who had previously threatened him. Furthermore, there is not a reasonable probability that this brief reference to Appellant attempting to purchase marijuana affected the outcome of the trial in light of Appellant’s trial testimony that he had19 Percocet and marijuana in his possession when arrested and that he consumed these drugs after his arrest. Based on the foregoing, Appellant ’s Point III is denied. Point IV

− Request to Proceed Pro Se An assistant public defender, Mr. She llenbergar, was assigned to represent Appellant. Prior to trial, A ppellant sent a letter to th e court complaining about Mr. Shellenbergar’s representation and asking th e court to appoint him new counsel. On the day of trial, the court conducted an inquiry into Appellant’s request. Appellant indicated he had not hired a new attorney to re place Mr. Shellenbergar but instead wished “to file for another lawyer.” When the court asked if Appellant was asking for a new lawyer or to represent himself, Appellant complained about the representation he had receive d. Mr. Shellenbergar was gi ven, and took, the opportunity to respond. The court denied Appellant’s re quest to discharge counsel but presented Appellant with the choice of proceeding either with Mr. Shellenbergar or pro se . Appellant indicated he wanted to pro ceed without Mr. Shellenbergar and again complained about the representation he was r eceiving. The court then took a short recess to allow Appellant to consider his options. Af ter the recess, Appellant again stated he did not want Mr. Shellenbergar as his attorney. When the court questioned Appellant to establish that he was knowingly waiving counsel, Appellant responded by repeatedly asking how he c ould force Mr. Shellenbergar to do what he wanted. Appellant continued to discuss what witnesses and evidence he wanted to present at trial and his belief that the police investigati on was inadequate. The court denied Appellant’s motion to remove Mr. Shellenbergar from the case and found that while Appellant understood his right to counsel and did not want Mr.20 Shellenbergar to represent him, he was not in telligently and voluntarily waiving his right to counsel and seeking to represent himsel f. The following discussion then occurred: [THE COURT]: Because I don’t even think what you’re really asking me is to represent yourself. Y ou’re not really saying, Judge, I want to proceed without a lawyer. You’re simply saying I want to proceed without this particular la wyer. Isn’t that right? THE DEFENDANT: Yes. THE COURT: Okay. And because of that, I’m telling you that your options are Mr. Shellenbergar or nothing. And after talking to you, I’m not comfortable at all with you representing yourself, meaning I’m taking off the nothing option. Which means I’m denying your motion at this time and I’m going to leav e Mr. Shellenbergar on the case.

... I’m comfortable after sp eaking with you and the issues that you’ve raised that I don't think you could repr esent yourself. In fact, I don’t even think you want to represent yourself. You’re just simply asking for a different lawyer, and I’m saying that’s not an option at this time. Okay? THE DEFENDANT: And why is it not an option? THE COURT: Because it’s eightee n months into trial and you don’t have a -- you don’t have somebody else standing by. On appeal, Appellant argues the trial court abused its discretion in denying his motion to waive his counsel and proceed pro se because the request was reasonable under the circumstances and its denial resu lted in prejudice to Appellant. A criminal defendant has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. State v. Johnson, 943 S.W.2d 285, 290 (Mo. App. E.D. 1997), citing Faretta v. Ca lifornia, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In order to invoke this right, the defendant’s request to proceed pro

se must be unequivocal and timely made. Johnson, 943 S.W.2d at 290. Without an unequivocal request to exercise the right to self-representatio n, it cannot be said that the right was denied. Id. Ambiguous requests are not sufficient to assertthe right to selfrepresentation. State v. Black, 223 S.W.3d 149, 153 (Mo. banc 2007).21 Here, Appellant never made an unequivo cal request to represent himself. Appellant’s written motion reque sted the court to appoint him new counsel. On the day of trial, the court conducted a lengthy inqui ry into Appellant’s motion, at which time Appellant repeatedly stated he wanted the court to appoint new counsel to represent him. Absent an unequivocal request, the trial cour t did not deny Appellanthis right to selfrepresentation. Appellant’s Point IV is denied. Point V

− Photograph of Victim At a bench conference before opening st atements, Appellant objected to State’s Exhibit 1, a photograph of Victim holding a puppy. Appellant argued the image of the puppy was unnecessary and could be blocked out . The prosecutor responded that the puppy was not inflammatory, the photo had al ready been cropped, and further cropping of the photo would leave a tiny photograph. The cour t overruled Appellan t’s objection. At trial, the State showed the photogra ph to its first witness, Harris, who identified it as a picture of Victim taken the day before he died. Harris testified Victim was wearing the same shirt in the photo thathe was wearing the day of the murder. On appeal, Appellant argues the trial court abused its discretion in allowing the State to admit the photograph into evidence because it was more prejudicial than probative and deprived Appellant of his right to due process, a fair tria l, and to a fair and impartial jury. Appellant maintains the im age of the dog invoked sympathy for Victim and served only to “inflame the passions and pr ejudice of the jury and to divert the jury’s attention from fair and impartial consideratio n” of Appellant’s guilt . Appellant asserts the dog could have been removed from the phot ograph and the enlarged display of this photo at trial exacerbated the emotional and inflammatory nature of the photograph.22 The trial court has broad discretion when ruling on the admission or exclusion of evidence at trial, and this Court will not dist urb the court’s ruling absent a showing of an abuse of that discretion. Kemp, 212 S.W.3d at 145. We will reverse on claims of error in the admission of evidence only if the error was so prejudicial th at it deprived the defendant of a fair trial. Id. “Trial c ourt error is not prejudi cial unless there is a reasonable probability that the trial court’s error affected the outcome of the trial.” Id. at
145-46. A photograph is admissible in a criminal ca se if it “corroborates the testimony of a witness, connects the accused with the offens e, provides the identity of a victim, or tends to prove any material elements in the case.” State v. Davis, 653 S.W.2d 167, 174- 75 (Mo. banc 1983), overruled on other gr ounds by Kuyper v. Stone County Comm’n, 838 S.W.2d 436 (Mo. banc 1992). Here, the ph otograph was admissible to aid in the identification of Victim. At trial, the State addres sed Appellant’s assertion th e dog could be removed from the photograph, explaining the photo had al ready been cropped and that further manipulation of the photograph would result in a very small photo. In the photo, Victim is holding the dog in front of him and to hi s upper left. Completely removing the dog from the photograph would result in either oddl y cut angles or a less than two-inch by one-and-one-half-inch image of Victim’s face. It was not necessary for the State to present an irregular photograph in order to remove the dog from Victim’s photograph, as there is not a reasonable pr obability that the inclusion of the dog’s image affected the outcome of the trial. The trial court did not abuse its discretion in admitting the23 photograph into evidence as its probative value outweighed any pr ejudicial effect. Appellant’s Point V is denied. Point VI – Post-Trial Request to Contact Juror Appellant filed a post-trial request to contac t a juror pursuant to Local Rule 53.3, seeking to obtain the testim ony of Juror 1975 to support his Mo tion for New Trial. At the hearing on the motion, defense counsel assert ed that during the polling of the jury following the guilty verdict, Ju ror 1975 was “flat out sobbing” and that another juror was “consoling her” by patting her on the back. Defense counsel indicated he wanted to determine if Juror 1975 made an independent fi nding of guilt after further deliberation or if she was coerced into entering a verd ict after speaking with the court. The trial court denied the request, noting the jury deliberated for several hours after the court’s conversation with Juror 1975 and that jurors sometimes cry after entering difficult verdicts because the process can be emotional. On appeal, Appellant conte nds the trial court erred in denying his request to contact or question Juror 1975 because her testimony was necessary for purposes of Appellant’s motion for new trial, in that if Juror 1975 had been coerced into finding Appellant guilty during deliberations, Appellant did not have a fair and impartial jury and is entitled to a new trial. Courts have discretionary power to grant permission for contact with jurors after a trial. Strong v. State, 263 S.W.3d 636, 643 (Mo. banc 2008). Local Rule 53.3 of the Twenty-Second Judicial Circuit provides: No attorney or client, their agents or representatives, shall contact any member of a jury which has heard ev idence in any cause in this circuit; provided, however, the court in its discretion may grant permission to attorneys or clients to discuss a cas e with jurors immediately after the24 return of a verdict; provided further, the court may also allow contact with jurors if necessary for purposes of a timely after-trial motion filed under Missouri Supreme Court Rules. Use of information obtained from jurors after a trial is lim ited and juror testimony is excluded from consideration on post-j udgment matters. Strong, 263 S.W.3d at 643. “The rule is perfectly settled, that jurors speak through their verdict, and they cannot be allowed to violate the secrets of the jury r oom, and tell of any partiality or misconduct that transpired there, nor sp eak of the motives which induc ed or operated to produce the verdict.” State v. Babb, 680 S.W.2d 150, 152 (Mo. banc 1984). A juror may not impeach a unanimous, unambiguous verdict af ter it is rendered. State v. Carter, 955 S.W.2d 548, 557 (Mo. banc 1997). Nor may a jury’s verdict be impeached by a juror’s testimony about jury misconduct that allegedly affected deliberations. State v. West, 425 S.W.3d 151, 154-55 (Mo. App. W. D. 2014). There are two narrow exceptions to the general rule: (1) it is permissible to elic it testimony about juror misconduct that occurred outside the jury room, such as the gathering of extrinsic evidence, and (2) when a juror makes statements evincing ethnic or religious bias or prejudice duri ng deliberations. Id.
at 155. Neither of these limited exceptions applies to this case. Instead, Appellant seeks to question Juror 1975 with the lone inte ntion of impeaching the unanimous and unambiguous verdict entered by th e jury, an action which is st rictly prohibited. The trial court did not abuse its discretion in denyi ng Appellant’s motion to contact Juror 1975 after trial. Appellant’s Point VI is denied.Patri c Kurt The judg m

c ia L. Cohe n S. Odenwal d m ent of the t

n , J., and d , J., concu r C

t rial court is

r
.

25 C onclusion

affirmed.

Sherri B . Sullivan, P .J.