SUPREME COURT OF MISSOURI

en banc

)

STATE OF MISSOURI, )

)

Respondent, )

)

v. ) No. SC95110

)

DANIEL HARTMAN, )

)

Appellant. )

APPEAL FROM CIRCUIT COURT OF JASPER COUNTY

Honorable Gayle L. Crane, Judge

Opinion issued March 15, 2016, and modified March 25, 2016

Following a jury trial, Daniel Hartman (hereinafter, “Hartman”) was found guilty 

of second-degree murder, section 565.021, RSMo 2000,

1 armed criminal action, section 

571.015, and first-degree burglary, section 569.160. The trial court sentenced Hartman to 

concurrent terms of life imprisonment for second-degree murder, life imprisonment for 

armed criminal action, and fifteen years’ imprisonment for first-degree burglary. 

Hartman appeals.

Hartman claims that his due process rights were violated during the guilt phase of 

his trial because the trial court excluded reliable witness testimony, which could have 

provided a basis for him to be exonerated. Further, Hartman asserts that during closing

argument, the state’s request for the jury to draw an adverse inference from the omission 

 1 All further statutory references are to RSMo 2000, unless otherwise indicated.
of the excluded evidence was erroneous. This Court finds that excluding the evidence 

violated Hartman’s due process rights. Accordingly, the trial court’s judgment is 

vacated, and the case is remanded.

Factual and Procedural Background

On the night of July 5, 2012, J.W. (hereinafter, “Victim”), a known drug supplier, 

was shot in his home and killed from a single gunshot wound to the chest. While 

investigating Victim’s death, the police discovered that Victim’s wound was not from a 

contact or close-range shot. They found only three bullets in the home: one that killed 

Victim, one in the wall, and one in the floor. The police’s subsequent investigation of the 

events and people surrounding Victim’s homicide resulted in varied and inconsistent

statements. Eventually, the state charged Hartman, Jonathan Taylor (hereinafter, 

“Jonathan”), Elijah Taylor (hereinafter, “Elijah”),2 Marcus Stephens (hereinafter, 

“Marcus”), and Cody Stephens (hereinafter, “Cody”)3 in connection with Victim’s 

homicide.

Viewing the facts in the light most favorable to the judgment, the events

surrounding the night of July 5, 2012, are as follows: Cody visited the apartment of his 

friend Jonathan, and Jonathan’s pregnant girlfriend in Joplin, Missouri. When Cody 

arrived, Hartman and Marcus were present. The group drank alcohol, used drugs, and 

eventually decided they needed to rob Victim.

 2 Jonathan and Elijah are brothers.

3 Due to the repetition of surnames of the parties involved, Cody Stephens and Marcus 

Stephens, as well as brothers Jonathan Taylor and Elijah Taylor, will all be referred to by 

their first names. No disrespect is intended.
3

Jonathan called Travis Morris (hereinafter, “Morris”). Morris stated that he could 

obtain access for Jonathan and determine who was presently in Victim’s house. Twenty 

minutes later, Morris called Jonathan to inform him that Victim and his girlfriend were 

sleeping inside the house. Morris and Paul Pena (hereinafter, “Pena”) went to Jonathan’s 

apartment. 

Then all of the men, except Cody,4 went to Victim’s house.5

 Morris informed the 

group that Victim had an assault rifle in the house and that Victim knew karate or 

kickboxing. The men discussed taking cash and drugs from Victim. Jonathan did not 

want to enter Victim’s house at this time because he was acquainted with Victim. 

Hartman, Elijah, Marcus, and Morris approached Victim’s front door and 

knocked. There was no answer. Then the group went to the back door. They wanted to 

break in, but no one in the group wanted to kick the door down. So, they all returned to 

Jonathan’s apartment.

Upon returning to Jonathan’s apartment, Jonathan woke Cody, seeking his 

assistance in breaking into Victim’s house. Jonathan wanted Cody to join the group not 

only for his assistance but also so that he would be involved and would not “rat out” 

anyone. The group then drove in two cars to a parking lot near Victim’s home. Cody 

stated that both Hartman and Elijah had guns with them. Cody further explained that the 

gun Hartman carried was Jonathan’s. Jonathan, Elijah, Cody, Hartman, and Marcus 

walked to Victim’s home. There was conflicting testimony regarding who kicked in the 

 4 There was conflicting testimony regarding whether Cody was part of this group.

5 Elijah testified that Jonathan did not want go because he knew Victim, but later 

admitted Jonathan came with the group but remained in the car.
4

back door, but either Hartman, Cody, or Elijah kicked in the back door, and everyone 

went inside.

Inside, Victim and his girlfriend were sleeping. There are conflicting recollections 

as to whether Victim merely woke when the group entered his room or whether Hartman 

and Elijah woke Victim, telling him to give them cash and drugs. Victim got up, 

stretched, and walked toward them. Victim was shot. Marcus testified that he took 

Victim’s rifle and that after he walked away from Victim’s bedroom, he heard six or 

seven gunshots. Cody believed that Harman and Elijah fired their weapons.

The group returned to Jonathan’s apartment. Everyone claimed to have shot 

Victim. Hartman claimed that had he realized Victim’s girlfriend was present, he would 

have shot her too. Hartman and Elijah were upset the group did not take anything from 

Victim’s house and wanted everyone else to return. 

Cody, Jonathan, Elijah,6 and Pena returned to Victim’s house. Hartman remained 

behind in Jonathan’s apartment. Cody, Jonathan, and Elijah went back inside the house, 

ransacking it while Victim’s girlfriend slept.

Harman was charged by information with first-degree murder, armed criminal 

action, and first-degree burglary. At trial, Cody testified pursuant to a plea agreement in 

which he pleaded guilty to second-degree murder and first-degree burglary with a fifteenyear cap, but hoped for less than fifteen years’ imprisonment based upon his cooperation. 

Elijah testified pursuant to the same plea agreement with the same anticipation for a 

reduced sentence. Jonathan was subpoenaed to testify, but the state stipulated he was 

 6 Elijah denied returning to Victim’s home a third time.
5

unavailable for trial and would refuse to testify by invoking his Fifth Amendment rights. 

Defense counsel sought to call Harlin King (hereinafter, “King”) to testify regarding 

Jonathan’s statements to him immediately following Victim’s death. The state objected 

to King’s testimony, claiming that it was inadmissible hearsay. The trial court sustained 

the state’s objection, but it allowed Hartman to make an offer of proof, which would 

show that Jonathan confessed to shooting Victim. Hartman did not testify during the 

guilt phase of his trial. Hartman’s counsel argued in closing that the witnesses were not 

honest about the identity of the shooter, and they were covering for Jonathan, their

brother and friend. The jury found Hartman guilty of first-degree murder, armed criminal 

action, and first-degree burglary. 

During the penalty phase, Hartman testified. Hartman maintained he did not cause 

Victim’s death and he was not present at Victim’s house. When the jury was unable to 

agree on a sentence of life imprisonment without the possibility of probation or parole, 

the trial court vacated the jury’s verdicts for first-degree murder and armed criminal 

action and found Hartman guilty of second-degree murder under section 565.021.1(1), 

and armed criminal action in connection with second-degree murder.7

 The trial court 

sentenced Hartman to concurrent terms of life imprisonment for second-degree murder, 

life imprisonment for armed criminal action, and fifteen years’ imprisonment for firstdegree burglary.

 7 The trial court took this course of action to be in accord with State v. Hart, 404 S.W.3d 

232 (Mo. banc 2013), because Hartman was under the age of eighteen at the time of the 

offenses.
6

Hartman appeals his conviction and sentence. After an opinion by the court of 

appeals, the case was transferred to this Court. Mo. Const. art. V, sec. 10.

Exclusion of testimony

Hartman asserts the trial court abused its discretion and committed reversible error 

in excluding King’s testimony because Jonathan admitted to King that he shot Victim. 

Hartman believes this was not inadmissible hearsay because the testimony would have 

been an admission against interest made to one of Jonathan’s close friends, shortly after 

the murder, and it was sufficiently reliable. Further, Hartman argues that the exclusion of 

this testimony violated his due process rights.

A trial court “has broad discretion to admit or exclude evidence during a criminal 

trial, and error occurs only when there is a clear abuse of this discretion.” Hart, 404 

S.W.3d at 248. “Reversal due to an evidentiary error requires a showing of prejudice.” 

State v. McFadden, 369 S.W.3d 727, 736 (Mo. banc 2012) (quoting State v. Taylor, 298 

S.W.3d 482, 492 (Mo. banc 2009)). If there is a reasonable probability that the trial 

court’s error affected the outcome of the trial, there is prejudice. State v. Clark, 364 

S.W.3d 540, 544 (Mo. banc 2012).

Hearsay statements, or out-of-court statements used to prove the truth of the 

matter asserted, generally are inadmissible. State v. Blankenship, 830 S.W.2d 1, 6 (Mo. 

banc 1992). Yet, there is a recognized constitutionally-based hearsay exception in the 

due process clause founded upon Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 

35 L.Ed.2d 297 (1973). This narrow exception applies to out-of-court statements that 

exonerate the accused and are “originally made and subsequently offered at trial under 
7

circumstances providing considerable assurance of their reliability.” Id. at 300. The 

Supreme Court set forth three indicators of reliability. Blankenship, 830 S.W.2d at 7. 

First, the confession “was made spontaneously to a close acquaintance shortly after” the 

crime occurred. Chambers, 410 U.S. at 300. Second, the confession “was corroborated 

by some of the evidence in the case ....” Id. Finally, the confession was made “in a very 

real sense self-incriminatory and unquestionably against interest.” Id. at 301. 

Prior to the commencement of Hartman’s trial, the state filed a motion in limine to 

exclude King’s statements that Jonathan told him that Jonathan shot Victim three times. 

The state asserted King’s testimony would be inadmissible as hearsay and the testimony 

would not violate Hartman’s due process rights. The trial court sustained the state’s 

objection. At trial, Hartman again requested King to testify, and the state again objected. 

Thereafter, Hartman made an offer of proof by calling King to testify.

During this offer of proof, King testified that he knew Jonathan from school and 

saw him on a regular basis. They communicated by cellular telephone calls and text 

messages. On the night of the murder, beginning around 2 or 3 a.m., Jonathan began 

calling King twenty to thirty times, wanting King to pick him up. King finally answered 

a telephone call and spoke with Jonathan. King then picked up Jonathan and another 

person, and he took them to a store. King testified that Jonathan was “just freaking out” 

and really scared. While they were driving around, Jonathan told King that the robbery 

“went wrong” and he shot a guy three times “because he was getting out of bed or 

something.” While King expressed doubts regarding whether Jonathan actually shot 
8

someone, King still went to the police with this information because King did not think it 

was right to be able to kill another person.

King’s proposed testimony meets the three indicators of reliability. The first 

indicator is whether the confession was made to a close acquaintance and spontaneously 

shortly after the crime occurred. Chambers, 410 U.S. at 301. “A statement, particularly 

an admission to a crime, made to someone of long-standing and confidential relationship 

is more likely to be trustworthy.” State v. Guinn, 58 S.W.3d 538, 545 (Mo. App. W.D. 

2001); see also State v. Rogers, 758 S.W.2d 199, 201 (Mo. App. E.D. 1988) (suggesting 

that trustworthiness of the statements requires the speaker to have a neutral interest 

toward the defendant).

The offer of proof showed King and Jonathan were friends. They saw each other 

at school and, when Jonathan was not incarcerated, saw each outside of school regularly. 

They communicated through telephone calls and text messages, and they played 

basketball together. Cf. State v. Carroll, 629 S.W.2d 483, 485-86 (Mo. App. W.D. 1981) 

(finding trial court erred in excluding evidence that someone other than the defendant 

committed the robbery in the underlying criminal proceedings when that information was 

communicated to a cellmate) and State v. Phillips, 940 S.W.2d 512, 517-18 (Mo. banc 

1997) (finding reliability of statements made spontaneously to a person who was not a 

close friend at a social gathering should have been admitted in a penalty phase of trial). 

Further, King has no relationship with Hartman, thereby creating a presumption of 

neutrality toward Hartman’s fate at trial. 
9

Jonathan’s confession was made spontaneously to King shortly after the murder 

occurred. Jonathan telephoned King twenty to thirty times within hours of the murder. 

When King answered Jonathan’s telephone call and spoke with him, King stated that 

Jonathan was “freaking out,” “scared,” and confessed to killing Victim. Because the 

confession was made spontaneously to a close friend and shortly after the murder 

occurred, the first reliability indicator is met. 

The second indicator is whether the confession “was corroborated by some of the 

evidence in the case ....” Chambers, 410 U.S. at 301. There was independent evidence 

submitted at trial corroborating the statements Jonathan made to King. 

Here the offer of proof demonstrated that King stated that Jonathan appeared to be 

“freaking out” and very scared when they spoke shortly after the murder. Jonathan then 

told King that in an attempt to obtain drugs, “they” went in but the robbery went wrong. 

Jonathan stated that he shot at Victim as he was getting out of bed. Jonathan also told 

King that he fired three shots at Victim and killed Victim.

Jonathan’s statements to King were corroborated at trial. One witness placed 

Jonathan at the scene of the crime. See State v. Boyd, 992 S.W.2d 213, 218 (Mo. App. 

E.D. 1999) (distinguishing the corroborating evidence indicia when there was no 

evidence in placing the declarant at the scene of the crime) and State v. Blackman, 875 

S.W.2d 122, 142 (Mo. App. E.D. 1994) (same). There was testimony that the robbery 

was not successful; the group failed to obtain the drugs or money they sought. Victim 

was shot when he got out of bed. Jonathan stated he fired three shots, and only three 

bullets were recovered from the scene. The information Jonathan provided to King 
10

mirrored the state’s evidence in every respect except the identity of the shooter. 

Accordingly, the second indicator of reliability is satisfied.

The final indicator of reliability is whether the confession was made “in a very real 

sense self-incriminatory and unquestionably against interest.” Chambers, 410 U.S. at 

301. In making this determination, it is important to determine whether the statements 

made were inculpatory. State v. Jackson, 248 S.W.3d 117, 126 (Mo. App. S.D. 2008). 

Jonathan’s confession to King was self-incriminatory and against his interest in that 

Jonathan stated he was the person who shot and killed Victim. Further, Jonathan 

implicated himself as the only shooter in that he stated he fired three shots, and the police 

only recovered three bullets from the crime scene. Jonathan’s statements implicate only 

himself as committing Victim’s murder. 

King’s proposed testimony met the three indicators of reliability, and the trial 

court erred in failing to allow this testimony at trial. In State v. Turner, 623 S.W.2d 4, 9 

(Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S. Ct. 1982, 72 L.Ed.2d 448 (1982), 

superseded by statute on other grounds as recognized in State v. Wheat, 775 S.W.2d 155 

(Mo. banc 1989), this Court found that “where substantial indicia of reliability appear and 

declarant’s complicity if true would exonerate the accused, declarant’s averments against 

an interest penal in nature may not be excluded ....” Because King’s testimony met the 

indicia for reliability, it must be admitted if it would exonerate Hartman.

Hartman was tried for first-degree murder. To be found guilty of first-degree 

murder, one must “knowingly cause[] the death of another person after deliberation upon 
11

the matter.” Section 565.020.1. Hartman was not charged with accomplice liability for 

first-degree murder. 

Hartman never admitted to any participation in any part of the underlying crime in 

this case. Had King’s testimony been introduced, the jury could have believed King, 

rather than the other co-defendants and Jonathan’s girlfriend, who testified against 

Defendant. Each co-defendant hoped for a reduced sentence for cooperating with the 

state, and one of the co-defendants was Jonathan’s brother. Jonathan’s girlfriend was 

pregnant with his child. Each of the state’s witnesses had a reason to implicate someone 

other than Jonathan as Victim’s killer. 

The dissent asserts that Hartman was not prejudiced by the exclusion of King’s 

testimony because Marcus testified that Elijah, Cody, and Jonathan each claimed to have 

shot Victim. In response to a question about who said they shot Victim, Marcus replied, 

“Eli[jah], Cody and Jonathan.” Similarly, the dissent states that Copeland testified that 

Elijah told her “we killed him.” (Emphasis added.) In support of its analysis, the dissent 

cites two cases to state Jonathan’s confession to King properly was excluded at trial. 

First, the dissent relies upon State v. Gilmore, 681 S.W.2d 934, 940 (Mo. banc 

1984), for the proposition that Hartman was not harmed by the exclusion of King’s 

testimony because the jury received the “gist of the testimony.” Further, the dissent 

claims even if there were prejudice in excluding these questions, there was no prejudice. 

Gilmore is inapposite to this case. The Court in Gilmore was addressing three discrete 

instances during cross-examination of two witnesses wherein the trial court disallowed 

“repetitive, improperly phrased or argumentative” questions; it was not in response to 
12

excluding a witness who would have testified to a substantially different factual scenario. 

Id. 

Second, the dissent references State v. Wells, 305 S.W.2d 457, 459 (Mo. 1957). In 

Wells, the trial court sustained an objection during cross-examination “of the prosecuting 

witness [as to] whether she had commenced to have her monthly periods about four years 

previous to the time of trial.” Id. at 458. The dissent cites Wells, stating that the 

“improper rejection of evidence is not prejudicial error when the same or substantially the 

same evidence is otherwise admitted.” Accordingly, from this one sentence, the dissent 

seeks the reader to infer that there was ample evidence regarding the statements of the 

other co-defendants admitting to shooting Victim. However, the Wells Court’s analysis 

continued:

This is the rule whether such evidence is admitted prior or subsequent to such 

rejection, and it finds its most frequent application where the same or 

substantially the same evidence as that excluded is elicited from the same 

witness. In this case counsel for defendant had asked the prosecuting witness 

several questions on the same subject, including the question, ‘And you have 

been having that about four years, haven’t you?’ to which the witness 

answered, ‘No, not quite.’ It is evident that the witness had already answered 

substantially the same question, and the answer was before the jury without 

objection.

Id. (internal citation omitted and emphasis added). 

When compared to the instant case, citation to the isolated statement from Wells is 

misguided. The Wells Court addressed repeated questioning of one witness regarding 

information to which the witness had already provided. There is no corollary to the 

complete exclusion of a witness who could provide testimony that was not addressed or 
13

mentioned by any other witness at trial. Again, Wells is inapposite to the present 

circumstances. 

Here, there was clear evidence presented by the state that there was only one 

shooter. While there could be collective criminal responsibility, only one of the people 

present would have been able to pull the trigger, killing Victim. Marcus failed to indicate 

one shooter. Elijah’s use of the collective pronoun “we” does not assist the jury in 

identifying the actual shooter. King’s testimony would have been the only evidence that 

a single person, other than Hartman, was the shooter; his confession should have been 

introduced into evidence.

King’s testimony would have provided evidence from which the jury could have 

exonerated Hartman of first-degree murder, based upon another co-defendant’s 

confession. The jury then could have found that the evidence presented by the state was 

insufficient to find Hartman guilty of first-degree murder beyond a reasonable doubt. 

“All decisions as to what evidence the jury must believe and what inferences the jury 

must draw are left to the jury ....” State v. Jackson, 433 S.W.3d 390, 399 (Mo. banc 

2014). Because King’s proposed testimony met the indicia of reliability and could 

exonerate Hartman, the trial court abused its discretion in excluding it.

Conclusion

In this case, the omission of King’s testimony impinged upon Hartman’s due 

process rights. The trial court erred in excluding this potentially exculpatory testimony, 

and Hartman was prejudiced thereby. Accordingly, Hartman’s convictions for second-
14

degree murder, armed criminal action, and first-degree burglary are vacated, and the case 

is remanded. 

The dissent raises the specter of Hartman being retried and facing potentially a 

more onerous sentence because he is no longer a juvenile. However, the dissent fails to 

acknowledge that the protections for harsh sentences apply when a defendant is a juvenile 

at the time of the offense rather than at the time of sentencing.

In Miller v. Alabama, 567 U.S. --, 132 S. Ct. 2455, 2464, 183 L. Ed. 2d 407 

(2012), the Supreme Court concluded that “mandatory life-without-parole sentences for 

juveniles violate the Eighth Amendment.” The Court’s concerns focused upon 

“children’s diminished culpability and heightened capacity for change.” Id. at 2469. The 

Supreme Court also reflected that the harshest penalty would rarely be applicable, but it 

did not “foreclose a sentencer’s ability to make that judgment in homicide cases, [and] 

we require it to take into account how children are different, and how those differences 

counsel against irrevocably sentencing them to a lifetime in prison.” Id. This Court then 

applied Miller in State v. Hart, 404 S.W.3d 232 (Mo. banc 2013). This Court reversed 

and remanded the defendant’s sentence of life without parole for first-degree murder as it 

violated the Eighth Amendment for a defendant who was a juvenile at the time of the 

offense. Hart, 404 S.W.3d at 235 (Emphasis added).

This Court need not address Hartman’s remaining point on appeal, which 

addressed the alleged error by the state urging the jury to draw an adverse inference from 

the omission of King’s testimony during closing argument. This claim of error will not 

necessarily reoccur upon remand and, hence, it will not be mused upon. State v. 
15

Wacaser, 794 S.W.2d 190, 196 (Mo. banc 1990). This Court will not issue an advisory 

opinion. State v. Swiggart, 458 S.W.2d 251, 252 (Mo. 1970).

The trial court’s judgment is vacated, and the case is remanded.

__________________________

GEORGE W. DRAPER III, JUDGE

Breckenridge, C.J., Stith, Teitelman and Russell, JJ., concur; Wilson, J., dissents in 

separate opinion filed; Fischer, J., concurs in opinion of Wilson, J.
SUPREME COURT OF MISSOURI

en banc

)

STATE OF MISSOURI, )

)

Respondent, )

)

v. ) No. SC95110

)

DANIEL HARTMAN, )

)

Appellant. )

DISSENTING OPINION

I respectfully dissent. The principal opinion correctly notes that “[r]eversal due to 

an evidentiary error requires a showing of prejudice.” State v. McFadden, 369 S.W.3d 

727, 736 (Mo. banc 2012) (quoting State v. Taylor, 298 S.W.3d 482, 492 (Mo. banc 

2009)). There was no prejudice from the trial court’s exclusion of Mr. King’s testimony 

concerning Jonathan’s out-of-court inculpatory statement because evidence that Jonathan 

was the shooter already was before the jury. Marcus Stephens, offered by the defense, 

testified that Eli, Cody and Jonathan each claimed to have shot the Victim. See State v. 

Gilmore, 681 S.W.2d 934, 940 (Mo. banc 1984) (“even if there had been error in 

sustaining objections to these isolated questions, the court’s rulings were not prejudicial 

to the defendant” because the jury otherwise “received the gist of the testimony that the 

defense counsel attempted to develop”); State v. Wells, 305 S.W.2d 457, 459 (Mo. 1957) 
2

(“improper rejection of evidence is not prejudicial error when the same or substantially 

the same evidence is otherwise admitted”). Moreover, Ms. Copeland testified that Eli 

boasted the Victim “was dead ... and we killed him.” As a result, the defense had ample 

grounds to argue to the jury that Jonathan or someone else – not Hartman – was the 

shooter, and it did not do so.

Even if Jonathan’s out-of-court inculpatory statement had not already been before 

the jury, that statement did not exonerate Hartman of murder in the first degree. Had that 

evidence come in – and had it been argued to the jury by defense counsel, even though 

Mr. Stephens’ and Ms. Copeland’s evidence was not – the state would have been entitled 

to have the jury instructed that Hartman could be convicted of first-degree murder as a 

principal or as an accomplice. See State v. Cella, 32 S.W.3d 114, 118 (Mo. banc 2000) 

(“It is proper to submit to the jury a theory of accomplice liability despite charging the 

defendant as a principal.”); State v. Isa, 850 S.W.2d 876, 898 (Mo. banc 1993) (same).

Finally, prejudice should be measured against Hartman’s conviction for 

second-degree murder, not the jury’s guilty verdict for first-degree murder, which the 

trial court vacated under State v. Hart, 404 S.W.3d 232, 239 (Mo. banc 2013). As above, 

if King’s testimony about Jonathan’s inculpatory statement had come in – and had it been 

argued to the jury, which the other evidence of Jonathan’s inculpatory statements was 

not – the state would have been entitled under Cella and Isa to have the jury instructed 

that Hartman could be convicted of second-degree murder as a principal or as an 

accomplice. 
3

In this regard, it is significant that the jury actually was instructed – if it did not 

find Hartman guilty of first-degree murder – that it should consider whether Hartman was 

guilty of second-degree felony murder. Instruction No. 8 stated that the jury should find 

Hartman guilty of second-degree murder if: (1) Hartman committed burglary in the first

degree; (2) Hartman “or an accomplice caused the death of [Victim] by shooting him;” 

and (3) Victim “was killed as a result of the perpetration of that burglary in the first 

degree.” [Emphasis added.] 

For the exclusion of King’s testimony to be prejudicial, therefore, this Court must 

conclude – if Jonathan’s out-of-court statement had been admitted – that the jury would 

not have found Hartman guilty of first-degree murder as a principal or accomplice 

(a doubtful proposition), that the jury would not have found Hartman guilty of regular 

second-degree murder as a principal or accomplice (a far more doubtful proposition), and 

that the jury would not have found Hartman guilty of second-degree felony murder (an 

impossible proposition). Under this Court’s decision, however, Hartman now faces 

re-trial for first-degree murder – and a possible sentence of life without parole1 – with no 

reasonable prospect of bettering the outcome of his first trial, i.e., a conviction for 

 1

 In his first trial, the jury found Hartman guilty of murder in the first degree. But, because the 

jury was unable to agree to impose the only statutorily authorized sentence, i.e., life without 

parole, the trial court entered a conviction of second-degree murder and the jury assessed his 

sentence for that crime. On retrial, Hartman will face the same first-degree murder charge and –

if the jury finds he committed that crime – the trial court must again ask the jury whether a 

sentence of “life without parole is a just and appropriate sentence ... under all the 

circumstances.” Hart, 404 S.W.3d at 239.
4

second-degree murder. Accordingly, I respectfully dissent and would affirm Hartman’s 

convictions in all respects.

_____________________________

Paul C. Wilson, Judge