SUPREME COURT OF MISSOURI

en banc

STATE OF MISSOURI, ) 

 ) 

Respondent, ) 

 ) 

v. ) No. SC96737 

 ) 

MARVIN D. RICE, ) 

 ) 

Appellant. ) 

APPEAL FROM THE CIRCUIT COURT OF ST. CHARLES COUNTY 

The Honorable Kelly Parker 

Marvin Rice appeals his convictions for first- and second-degree murder. The 

circuit court sentenced him to death for the first-degree murder of Annette Durham and to 

life imprisonment for the second-degree murder of Steven Strotkamp. 

Rice argues the circuit court erred in refusing to submit his proposed jury 

instructions for second-degree murder and voluntary manslaughter for Strotkamp’s 

murder. He contends he was entitled to the instructions because there was evidence from 

which a jury could find he acted out of sudden passion arising from adequate cause in the 

death of Strotkamp. Rice also asserts the circuit court violated his right against selfincrimination under Miranda v. Arizona, 384 U.S. 437 (1966), by admitting at trial 

statements he made during a police interrogation after he had invoked his right to silence. 

Opinion issued April 2, 2019
2

He further alleges his due process rights were violated when the circuit court allowed the 

State to introduce evidence of his post-Miranda silence. In addition, Rice argues the case 

should be remanded for a new penalty phase because the circuit court erred in overruling 

his objection to the State’s penalty phase closing argument in which it commented that 

Rice was the “13th juror.” Rice asserts this impermissibly referenced his decision not to 

testify and consequently violated his right against self-incrimination. 

As to the Strotkamp murder, the judgment is reversed, and the case is remanded

because the circuit court erred when it refused to submit Rice’s proposed jury instructions

in that there was sufficient evidence from which the jury could find that Rice acted out of 

sudden passion arising from adequate cause. As to the Durham murder, the circuit court 

erred in admitting statements made in violation of Rice’s Miranda rights. This error, 

however, was harmless beyond a reasonable doubt because it did not contribute to the 

verdict obtained. Similarly, although Rice’s right to due process was violated when the 

circuit court admitted evidence of his post-Miranda silence, these violations were also 

harmless beyond a reasonable doubt.

Further, the circuit court erred when it overruled Rice’s objection to the State’s 

penalty phase closing argument because the State’s remark was an impermissible 

reference to Rice’s decision not to testify. This error requires the judgment on Durham’s 

murder to be reversed as to the penalty phase of the trial. The case is remanded.

Background

Rice was charged with two counts of first-degree murder for the deaths of 

Durham, his former girlfriend, and Strotkamp, Durham’s boyfriend. Rice and Durham
3

had a son, A.R. Though there was no formal custody arrangement between Rice and 

Durham, Rice had primary custody of A.R., who was born while Durham was 

incarcerated. 

Evidence adduced at trial demonstrated that, on the night of the homicides, 

Durham picked up A.R. from Rice. Although Durham had occasionally visited with 

A.R., she had yet to have an unsupervised visit. This was set to be her first. Rice 

informed Durham she needed to return A.R. that night, but Durham had unspoken plans 

to care for him for the next three days. 

At some point that evening, Durham called Rice and informed him she would not 

be returning A.R. Enraged by this conversation, Rice grabbed his gun and two extra 

magazines before setting out to retrieve A.R. He stopped at an ATM and a gas station 

before arriving at the home of Durham’s sister-in-law in search of A.R. Not finding him 

there, Rice drove to the home of Durham’s father, again having no luck locating A.R. He

then learned A.R. was at the home Strotkamp and Durham shared in Dent County and 

drove there. 

Upon arriving, he found A.R. with the couple and Durham’s six-year-old 

daughter, S.C. Upon hearing Rice arrive, Durham instructed S.C. to take A.R. into the 

bedroom and close the door. S.C. heard Durham and Rice argue about A.R from what 

she believed to be the front doorway. At some point, Strotkamp approached the two as 

well. During the exchange, Rice broke the front door down. S.C. then heard what she 

believed to be someone banging on the washer and dryer near the front door, but the 
4

sounds were later determined to be gunshots. Rice then came into the bedroom carrying 

a gun and, saying nothing to S.C., he picked up A.R. and left the room. 

S.C. exited the bedroom and cried out to her mother, who did not answer. She 

first discovered Strotkamp, who was lying in the hallway and groaning. She then found 

her mother’s body lying on the ground outside.

S.C. ran to the nearby home of Strotkamp’s parents, Carol Strotkamp and Stanley 

Watson. Ms. Strotkamp ran to the scene of the crime, finding Durham deceased and her 

son bleeding profusely. When his mother asked him what happened, Strotkamp said, 

“Marvin Rice.” Ms. Strotkamp ran back home to call for help while Watson ran back to 

Strotkamp’s home to stay with him until help arrived. Strotkamp again mentioned Rice’s 

name to Watson. Strotkamp died before emergency personnel arrived.

Meanwhile, Rice dropped A.R. off with his wife and started driving toward a

hospital in Columbia. A Dent County sergeant called Rice and spoke with him over the 

telephone, encouraging Rice to turn himself in. Rice spoke about finding a place to 

commit suicide and warned the sergeant that everyone must stay out of his way or he 

would shoot them. 

En route to Columbia, Rice was involved in a high-speed chase with law 

enforcement officers. Police officers in Jefferson City closed down the highway and 

deployed spike strips in an attempt to stop Rice’s speeding car. Eventually, Rice pulled 

into a Jefferson City hotel parking lot and entered the hotel. Engaging in a shootout with 

an off-duty police officer, Rice was shot, which caused him to fall to the ground. He was 

arrested and was taken to the hospital for treatment.
5 

While Rice was being treated at the hospital, a highway patrol sergeant detective 

began interrogating him. The detective read Rice his Miranda rights, which Rice 

indicated he understood. After Rice made a few comments about what had happened at 

the hotel, Rice stated, “I’m sorry, sir, I don’t wanna talk no more.” After the detective 

confirmed Rice no longer wanted to speak, the interrogation and the recording ended. 

Approximately 20 to 30 minutes later, the detective reinitiated his questioning 

without rereading Rice his Miranda rights. Rice responded to the detective’s questions 

about Rice’s history working for the Dent County sheriff’s office. The interrogation then 

stopped so Rice could use the restroom and resumed 20 to 30 minutes later. The 

detective reminded Rice of his Miranda rights but did not reread them. Rice 

acknowledged he remembered and understood his rights. 

The detective again attempted to question Rice about what had happened the night 

of the shootings. Rice stated, “I got nothing to say, sir.” The detective did not stop 

questioning Rice, imploring Rice to cooperate because, if Rice did not give his side of the 

story, “somebody else [was] gonna give [him] one.” Rice again indicated he did not want 

to be interrogated: “My heart doesn’t like this. I don’t wanna talk.” But the detective 

continued questioning Rice, again asking him if he had anything else to say. After Rice 

mumbled a negative answer, the detective stopped the interrogation. 

Within minutes, Rice voluntarily began talking to the detective again. He 

described his recent struggles with depression and stated he was sorry about what had 

happened that night. Another, longer break then occurred in the interrogation, during 

which doctors performed medical tests and Rice received treatment. The interrogation 
6

was put on hold until the next morning. When the detective reread Rice his Miranda

rights and began questioning him again, Rice answered the detective’s questions and 

explained in detail his version of the previous night’s events.

 Rice was charged with two counts of first-degree murder. Before trial, Rice filed 

a motion to suppress the statements he made during the hospital interrogation on the basis

he had invoked his right to remain silent and this invocation was not honored. The circuit

court overruled the motion after a hearing, and the evidence was admitted at trial over 

Rice’s continuing objection. At trial, the State also presented evidence demonstrating 

that, when Rice was being interrogated, he refused to answer the detective’s questions. 

Rice objected and moved for a mistrial. The motion was overruled. 

During the instructions conference, Rice submitted two proposed jury instructions 

for the murder of Strotkamp. One, Instruction D, was for second-degree murder and 

included language requiring a finding that Rice did not act out of sudden passion arising 

from adequate cause. The other, Instruction E, was for voluntary manslaughter. The 

State objected to both instructions, which the circuit court sustained. After deliberations, 

the jury found Rice guilty of second-degree murder for the death of Strotkamp and guilty 

of first-degree murder for the death of Durham.

Rice did not testify at either the guilt or penalty phase of trial. During the State’s 

closing argument during the penalty phase, it referred to Rice as the “13th juror.”

But when you go back there and when you do this [deliberate on 

punishment], I hope you remember only 12 of you are going to do it, [but]

there’s a 13th juror in this room. The 13th juror is sitting behind you, we 

often call them the defendants, but he’s the 13th juror and if I’d been allowed 

to ask him those questions last week, he would have told us ....
7

The State’s argument was interrupted by defense counsel’s objection that this was an 

improper reference to Rice’s decision not to testify. The circuit court overruled the 

objection after the State insisted it was referring to the voir dire process, not Rice’s 

general decision not to testify. The State was permitted to continue its closing argument

in the same manner.

The jury was ultimately unable to decide upon a punishment for the Durham

murder but recommended a sentence of life imprisonment for the Strotkamp murder. 

After trial, Rice filed a motion asking the court to impose a sentence of life without 

parole for the Durham murder on the basis 11 jurors preferred a sentence of life. 

Accompanying the motion were two signed juror statements indicating the jury was 

“deadlocked on punishment 11 to 1 in favor of” life imprisonment. 

The court sentenced Rice to death for the murder of Durham and to life 

imprisonment for the murder of Strotkamp. Rice appeals.1

The Guilt Phase

Rice argues the circuit court erred when it refused to submit his proposed jury 

instructions for second-degree murder – in lieu of the second-degree murder instruction 

the court submitted – and voluntary manslaughter. He also argues the State violated his 

right against self-incrimination by continuing to question him after he had invoked his 

 1 This Court has exclusive appellate jurisdiction under article V, section 3 of the Missouri 

Constitution. 
8 

right to silence and because the State violated his due process rights by introducing 

evidence of his decision to remain silent. 

I. Instructional Error

Rice argues the circuit court committed reversible error when it refused to give his 

proposed Instructions D and E for the charged homicide of Strotkamp. Proposed 

Instruction D2 mirrored MAI-CR 3d 314.04 in that it included language requiring, to 

convict Rice of second-degree murder, the jury to find that Rice did not act out of sudden 

2

 Instruction D provided: 

As to Count II, if you do not find the defendant guilty of murder in the first degree, 

you must consider whether he is guilty of murder in the second degree. 

As to Count II, if you find and believe from the evidence beyond a reasonable 

doubt: 

• First, that on or about the 10th day of December 2011, in the County of

Dent, State of Missouri, the defendant caused the death of Steven Strotkamp

by shooting him, and

• Second, that it was the defendant’s purpose to cause the death of Steven

Strotkamp, and

• Third, that defendant did not do so under the influence of sudden passion

arising from adequate cause,

then you will find the defendant guilty under Count [II] of murder in the second 

degree.

However, unless you find and believe from the evidence beyond a reasonable doubt 

each and all of these propositions, you must find the defendant not guilty of murder 

in the second degree. 

As used in this instruction, the term “sudden passion” means passion directly 

caused by and arising out of provocation by Steven Strotkamp, or another acting 

with Steven Strotkamp, which passion arose at the time of the offense. The term 

“adequate cause” means cause that would reasonably produce a degree of passion 

in a person of ordinary temperament sufficient to substantially impair an ordinary 

person’s capacity for self-control. 
9 

passion arising from adequate cause. Similarly, proposed Instruction E3

 tracked 

MAI-CR 3d 314.08, a voluntary manslaughter instruction. He contends these instructions 

should have been given because there was a basis in the evidence to acquit him of 

second-degree murder and to convict him of voluntary manslaughter, which occurs when 

a person “[c]auses the death of another person under circumstances that would constitute 

murder in the second degree ... except that he caused the death under the influence of 

sudden passion arising from adequate cause[.]” Section 565.023.1.4

 Because he timely 

requested those instructions, he asserts, the circuit court was required to submit these 

instructions to the jury. 

3

 Instruction E provided: 

As to Count II, if you do not find the defendant guilty of murder in the second 

degree, you must consider whether he is guilty of voluntary manslaughter. 

As to Count II, if you find and believe from the evidence beyond a reasonable 

doubt: 

• First, that on or about the 10th day of December 2011, in the County of

Dent, State of Missouri, the defendant caused the death of Steven Strotkamp

by shooting him, and

• Second, that it was the defendant’s purpose to cause the death of Steven

Strotkamp,

then you will find the defendant guilty under Count II of voluntary manslaughter. 

However, unless you find and believe from the evidence beyond a reasonable doubt 

each and all of these propositions, you must find the defendant not guilty of 

voluntary manslaughter. 

4 All statutory citations are to RSMo 2000 unless otherwise indicated.
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A. Standard of Review

This Court reviews de novo the circuit court’s decision whether to give a requested 

jury instruction for a lesser-included offense. State v. Jackson, 433 S.W.3d 390, 395 

(Mo. banc 2014). The evidence is viewed in the light most favorable to the defendant 

and, when in doubt, the court should instruct on the lesser-included offense. State v. 

Thomas, 161 S.W.3d 377, 380 (Mo. banc 2005). If the statutory requirements for giving 

a requested jury instruction are met, “a failure to give a requested instruction is reversible 

error.” Jackson, 433 S.W.3d at 395. When a court fails to give a lesser-included offense 

instruction, prejudice is presumed. Id. at 395 n.4.

B. Preservation

The State argues much of Rice’s argument is unpreserved for appeal because, at 

the instructions conference, the defense attorneys “did not argue that sudden passion from 

adequate cause resulted from the confrontation at [the victims’] home” and only argued 

that sudden passion could have arisen from Durham informing Rice he may never see 

A.R. again. According to the State, Rice changed his theory of sudden passion on appeal 

and his argument warrants only plain error review.

“[A] point is preserved for appellate review only if it is based on the same theory 

presented at trial.” State v. Johnson, 207 S.W.3d 24, 43 (Mo. banc 2006). “An appellant 

cannot broaden the scope of his objections on appeal beyond that made in the trial court.” 

Id. At the instructions conference, although Rice did primarily focus on the evidence 

demonstrating what Durham had said to Rice before their confrontation, he also argued a 

voluntary manslaughter instruction should be given because “there [was] evidence that 
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the jury could believe or disbelieve that once he got to that house, that he was attacked.” 

In Rice’s motion for new trial, he highlighted the evidence that when Rice arrived at the 

Strotkamp residence, “he was met with violence from Annette Durham and Steven 

Strotkamp” and Rice’s additional statement that “he believed Steven Strotkamp was 

reaching for a weapon.” He argued this evidence was “more than adequate to support 

giving defense Instruction[s D and] E.” 

Rice furthered the same theory during the instructions conference, in his motion 

for new trial, and his appellate brief: there was sufficient evidence presented at trial to 

support giving the proposed instructions. This argument, on all of the evidentiary bases 

asserted by Rice, is sufficiently preserved for review. 

C. Instruction E: Voluntary Manslaughter

Voluntary manslaughter is a lesser-included offense of both first- and seconddegree murder. Section 565.025. A circuit court must instruct the jury on a lesserincluded offense when (1) “a party timely requests the instruction;” (2) “there is a basis in 

the evidence for acquitting the defendant of the charged offense;” and (3) “there is a basis 

in the evidence for convicting the defendant of the lesser included offense for which the 

instruction is requested.” Jackson, 433 S.W.3d at 396; section 556.046.3, RSMo Supp. 

2011. 

The first two requirements are satisfied here. Rice timely requested Instruction E. 

Further, there was a basis in the evidence to acquit Rice of the charged offense of firstdegree murder because the jury is always free to disbelieve any evidence or refuse to 

draw any necessary inference. Jackson, 433 S.W.3d at 399. Rice’s argument, then, 
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depends on whether there is a basis in the evidence to convict him of the lesser-included 

offense of voluntary manslaughter.

“Voluntary manslaughter is defined as causing the death of another person under 

circumstances that would constitute murder in the second degree, except that the death 

was caused under the influence of sudden passion arising from adequate cause.” State v. 

Clay, 533 S.W.3d 710, 717 (Mo. banc 2017); section 565.023.1. To warrant a lesserincluded offense instruction on voluntary manslaughter, there must be a basis in the 

evidence for the jury to find that Rice acted out of sudden passion arising from adequate 

cause. “Sudden passion” is defined as “passion directly caused by and arising out of 

provocation by the victim or another acting with the victim which passion arises at the 

time of the offense and is not solely the result of former provocation.” Section 

565.002(7). The provocation “must be of a nature calculated to inflame the passions of 

the ordinary, reasonable, temperate person .... [T]here must be a sudden, unexpected 

encounter or provocation tending to excite the passion beyond control.” State v. Fears, 

803 S.W.2d 605, 609 (Mo. banc 1991). Adequate cause, meanwhile, is “cause that would 

reasonably produce a degree of passion in a person of ordinary temperament sufficient to 

substantially impair an ordinary person’s capacity for self-control.” Section 565.002(1). 

Rice argues the following evidence supports a finding of sudden passion arising 

from adequate cause that would require the circuit court to instruct the jury on voluntary 

manslaughter: (1) after Durham picked up A.R., she called Rice and informed him he 

would never see his son again; (2) Rice was afraid he would be “met with firearms” when 

he arrived at the victims’ home looking for A.R.; (3) when he arrived at the victims’ 
13 

home, Rice was again informed he would not get his son back; (4) the victims “came at” 

Rice and “basically assaulted” him; (5) the alleged assault came in the form of Durham 

grabbing Rice’s left shoulder and trying to wrestle him to the ground as Strotkamp 

“started around the right-hand side” toward Rice; and (6) Rice could not see Strotkamp’s 

hand and was unsure if he had a weapon. 

The State argues the evidence of Durham informing Rice through the telephone 

that he may never see his son again is insufficient to find sudden passion arising from 

adequate cause because Rice had time to cool between having this conversation and 

committing the homicides. It is unclear from the record how much time passed between 

these two events, but after Rice spoke with Durham, he visited an ATM, a gas station, 

and two other homes before arriving at the victims’ home. 

Sudden passion must “arise[] at the time of the offense” and cannot be “solely the 

result of former provocation.” Section 565.002(7). The defendant must not have had 

time for his passions to cool. State v. Redmond, 937 S.W.2d 205, 208 (Mo. banc 1996). 

Though there’s no bright-line rule for how long of a period of time constitutes a sufficient 

“cooling-off period,” it has been held that 10 minutes was enough time for one’s passion 

to cool. State v. Whitley, 408 S.W.3d 305, 308 (Mo. App. 2013). On this evidence, the 

State is correct. The telephone conversation between Durham and Rice cannot legally 

give rise to sudden passion, as it was not sufficiently contemporaneous with the offense. 

Much of the other evidence that Rice argues supports a finding of sudden passion 

came from Rice’s own statements during his police interrogation. The State argues 

Rice’s statements about his encounter with Durham and Strotkamp were “vague and 
14

conclusory,” were “not evidence,” and were not “factual allegations that could support 

sudden passion arising from adequate cause.” This Court disagrees. Testimony is 

evidence. This evidence may warrant instructing down so long as these statements 

support a finding of sudden passion arising from adequate cause. Thomas, 161 S.W.3d at 

381.

In addition to the evidence that Durham threatened to keep A.R. away from Rice 

forever, Rice also presented evidence that when he arrived at the victims’ home, he 

feared he would be met with firearms. He alleged he was once again informed he would 

not see his son again before he was “basically assaulted” by the victims, as Durham 

grabbed his shoulder and tried to wrestle him down while Strotkamp, whose hand was 

concealed, came around her and approached Rice. 

The case of State v. Creighton, 52 S.W.2d 556 (Mo. 1932), is instructive. In 

Creighton, when the defendant was standing on a sidewalk, the decedent brushed against 

him and asked if he was “looking for trouble” before the two got into an argument. Id. at 

559. The decedent “grabbed” the defendant by his lapel and slapped his hat off. Id. The 

defendant then pulled out his pistol and shot the decedent. Id. The Court stated, “It is 

fundamental that neither the trial court nor this court can pass on the weight of the 

evidence in a criminal case; that function belongs to the jury.” Id. at 562 (emphasis 

added). 

“If there is substantial evidence of lawful provocation, the defendant is 

entitled to an instruction on manslaughter. Proof of an initial assault and 

battery upon him by the deceased is such evidence because it measures up 

to the standard exacted by the law and in point of fact warrants an inference 

that heat of passion was engendered thereby.” 
15 

Id. (emphasis added). Further, in Fears, this Court found there was evidence from which 

the jury could find sudden passion when the victim called the defendant’s children liars, 

circled around the defendant, and threw a punch at the defendant. 803 S.W.2d at 608. 

“The aggregate of insulting words, offensive gestures and physical contacts that occurred 

during this encounter was ... sufficient for reasonable persons to have found that Fears 

acted under ‘sudden passion.’” Id. at 609. 

Rice claims he was assaulted by Durham and Strotkamp, acting together, when he 

arrived at their home. Sudden passion must arise out of provocation by the victim or 

another acting with the victim. Section 565.002(7). The State argues there is “no 

evidence” Strotkamp and Durham were “acting together,” but there was evidence that the 

victims, who lived together, simultaneously approached or attacked Rice. This evidence 

gives rise to an inference the victims were acting together. Viewing the evidence in the 

light most favorable to the defendant, Thomas, 161 S.W.3d at 380, there is sufficient 

evidence of Strotkamp and Durham acting together. 

Further, though much time passed between when Durham initially told Rice he 

would not see his son and when Rice killed the victims, she again informed him when he 

arrived at the home, which the jury could find reignited his anger, as the threat of not 

being allowed to see one’s child ever again could provide adequate provocation to a 

parent. This provocation, combined with the alleged physical assault giving rise to an 

inference of sudden passion, is sufficient evidence from which a jury could find sudden 

passion. Creighton, 52 S.W.2d at 562; see also Fears, 803 S.W.2d at 608. Because there 
16

was a basis in the evidence supporting a finding of sudden passion arising from adequate 

cause, Rice was entitled to an instruction on voluntary manslaughter. The trial court 

erred in refusing to submit Rice’s Instruction E. 

D. Instruction D: Second-Degree Murder 

Rice also argues the circuit court erred when it refused to submit to the jury his 

version of a second-degree murder instruction, Instruction D. Rice’s proposed instruction 

mirrored the Missouri Approved Instructions in that it included language requiring the 

jury to find Rice had not acted out of sudden passion arising from adequate cause to 

convict him of second-degree murder. The second-degree murder instruction actually 

submitted to the jury omitted this language.

The additional sudden passion language requested by Rice “must be given” “[i]f 

there is evidence supporting sudden passion from adequate cause.” MAI-CR 3d 314.04 

Notes on Use 4; see also MAI-CR 3d 314.08 Notes on Use 3 (explaining that when there 

is evidence of sudden passion and adequate cause, the “instruction on voluntary 

manslaughter will be identical to MAI-CR 3d 314.04 [the second-degree murder 

instruction] as to the elements of the offense except that MAI-CR 3d 314.04 will include 

the paragraph on negating sudden passion arising from adequate cause”). Because there 

was a basis in the evidence supporting a finding of sudden passion arising from adequate 

cause, as set out above, the circuit court was required to submit Rice’s proposed 

Instruction D.
17 

Rice was prejudiced when the circuit court failed to give Rice’s proposed 

Instructions D and E. Jackson, 433 S.W.3d at 395 n.4. The judgment as to seconddegree murder for the death of Strotkamp is reversed, and the case is remanded. 

II. Miranda

As to the conviction for the first-degree murder of Durham, Rice argues the circuit 

court erred in overruling his motion to suppress statements he made during his police 

interrogation because the statements were made after he invoked his right to silence and 

the police failed to scrupulously honor his invocation. 

A. Standard of Review

“This Court reviews a trial court’s ruling on a motion to suppress in the light most 

favorable to the ruling and defers to the trial court’s determinations of credibility.” State 

v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003). The circuit court’s ruling on a

motion to suppress will not be reversed unless the decision was clearly erroneous. State 

v. Holman, 502 S.W.3d 621, 624 (Mo. banc 2016). A ruling is clearly erroneous if the

Court is “left with a definite and firm belief a mistake has been made.” Id. 

Whether conduct violates the Fifth Amendment is a question of law and is given 

de novo review. Id. This Court will “indulge every reasonable presumption against 

waiver of fundamental constitutional rights.” State v. Bucklew, 973 S.W.2d 83, 90 (Mo. 

banc 1998). “A properly preserved federal constitutional error in a criminal trial does not 

require reversal and remand for a new trial if the reviewing court determines the error 

was harmless beyond a reasonable doubt.” State v. Minner, 256 S.W.3d 92, 96 (Mo. banc 

2008). 
18 

B. Analysis

Rice argues he unequivocally invoked his right to silence several times during the 

police interrogation and the statements he made after he invoked that right should not 

have been admitted at trial. After a person receives Miranda warnings, “[i]f the 

individual indicates in any manner, at any time prior to or during the questioning, that he 

wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74 

(emphasis added). The accused’s Fifth Amendment right to cease police questioning 

“must be scrupulously honored.” State v. Simmons, 944 S.W.2d 165, 173 (Mo. banc 

1997). 

“[N]o ritualistic formula or talismanic phrase is essential in order to invoke the 

privilege against self-incrimination.” Emspak v. United States, 349 U.S. 190, 194 (1955). 

But to invoke this right, the individual “must give ‘a clear, consistent expression of a 

desire to remain silent.’” Simmons, 944 S.W.2d at 173-74 (quoting United States v. 

Thompson, 866 F.2d 268, 272 (8th Cir. 1989)). If the invocation is ambiguous or 

equivocal, the police are not required to end the interrogation and are not required to ask 

questions to clarify whether the accused is invoking his right to silence. See Berghuis v. 

Thompkins, 560 U.S. 370, 381-82 (2010). To determine whether an individual has 

unambiguously invoked his right to remain silent, “[t]he individual’s statements are 

viewed in their entirety.” State v. Cannon, 469 S.W.3d 887, 892 (Mo. App. 2015). 

1. Interrogation Part One: “I don’t wanna talk no more.”

At the outset of the hospital interrogation, the detective read Rice his Miranda

rights. Rice stated he understood his rights and had no questions. Rice began describing 
19 

the events that had taken place at the hotel but did not answer any questions about what 

had occurred at the victims’ residence. Not long into the interrogation, Rice indicated he 

no longer wished to speak. 

DETECTIVE: Marvin, what happened before you came, before you were 

coming to the V.A. tonight? 

RICE: My mouth is so dry. 

DETECTIVE: Yeah. Marvin, what, what happened before you came, before 

you came to the V.A. tonight? 

RICE: I’m sorry, sir, I don’t wanna talk no more. 

DETECTIVE: You don’t wanna talk? You hurting too much? 

RICE: Yes. 

DETECTIVE: Okay, we’ll give you, give you a few minutes so they can take 

care of you, okay.

The recording then ended. The detective resumed questioning 20 to 30 minutes later but 

did not reread Rice his Miranda warnings. As the detective questioned Rice, attempting 

to solicit information about the events of that night, Rice answered almost no questions 

substantively. After detailing his history working for the Dent County sheriff’s office, he 

answered the detective’s question why he was headed to the Columbia hospital after the 

homicides by stating “that was the only place [he] could think of to try and get help” and 

remarked that he had been having psychological problems “for a long time.” Another 

break in the interrogation then occurred because Rice needed to use the bathroom. 

After this break, which lasted another 20 to 30 minutes, the interrogation resumed 

once again. The detective “reminded” Rice of his Miranda rights, and Rice confirmed he 
20 

understood those rights and had no questions about them. The detective immediately 

asked again about what had happened earlier that night. 

Rice argues his statement that he “[did not] wanna talk no more” was a clear and 

unequivocal invocation of his right to silence and that the State’s continued attempts at 

interrogation violated his Miranda rights. Other states have found similar defendant 

statements sufficiently clear to invoke an individual’s right to silence. See 

Commonwealth v. Lukach, 195 A.3d 176, 190 (Pa. 2018) (“I’m done talking. I don’t 

have nothing to talk about” was unequivocal despite defendant prefacing statement with 

“I don’t know”); see also Commonwealth v. Smith, 46 N.E.3d 984, 992 (Mass. 2016) 

(“I’m done talking. I don’t wanna talk no more” was clear invocation of right to silence); 

see also McGraw v. Holland, 257 F.3d 513, 518 (6th Cir. 2001) (“I don’t wanna talk 

about it” was clear invocation).5

 

Rice’s statement that he did not want to talk anymore closely tracks the statements 

made in these cases from other jurisdictions. It was not immediately followed by 

continued statements, and it was not qualified by any equivocal language. Rather, it was 

a clear indication Rice no longer wanted to talk. 

The State argues Rice did not invoke his right to silence because his statements 

were made in the context of the significant pain he was experiencing and “his willingness 

5 Compare these cases with State v. Perdomo-Paz, 471 S.W.3d 749, 758 (Mo. App. 2015) 

(Defendant’s response that he did “not for real, man, no but ...” want to answer a detective’s 

questions was not a clear and unequivocal assertion of his right to silence) and State v. O’Neal, 

392 S.W.3d 556, 569 (Mo. App. 2013) (Defendant’s statement that he “[did not] feel like 

talking” was not unequivocal invocation of right to remain silent because it was immediately 

followed with the equivocation “but” and defendant’s continued speaking). 
21 

to generally speak with” the detective. But Rice’s pain does not make his statement any 

less unambiguous. Even if the pain was a motivating factor in Rice’s decision to invoke 

his right to silence, he clearly and unequivocally stated he did not wish to talk anymore. 

And further, even if Rice had indicated a “willingness” to speak with police by

responding to questions, the right to silence may be invoked at any time during police 

questioning. Miranda, 384 U.S. at 473-74. “The waiver of this right [to silence] may be 

revoked at any time, at which point a defendant’s silence is again protected.” State v. 

Tims, 865 S.W.2d 881, 885 (Mo. App. 1993). 

The State also argues Rice continued to participate in the interrogation after the 

invocation, which serves as “further confirmation that no invocation in fact occurred” 

under O’Neal, 392 S.W.3d at 571. But this case differs from O’Neal, in which “there 

was no clear request to remain silent at the outset.” Id. Indeed, the court of appeals 

explained it referred to the defendant’s continued answers to questions “not to undermine 

an unambiguous invocation O’Neal had previously made, but only as further 

confirmation that no invocation in fact occurred.” Id. Unlike O’Neal, Rice made a clear 

invocation of his right to remain silent, and the State cannot use later-occurring facts to 

inject ambiguity where none exists. See Smith v. Illinois, 469 U.S. 91, 91 (1984) (“[A]n 

accused’s postrequest responses to further interrogation may not be used to cast doubt on 

the clarity of his initial request for counsel.”).6

6 Although Rice did answer some non-substantive questions after the first time he invoked his 

right to silence, he did so 20 to 30 minutes after his initial invocation and not immediately after. 

These later-given answers cannot be used to inject ambiguity into his original invocation. 
22 

Because Rice invoked his right to silence, the police had a duty to scrupulously 

honor that invocation. Bucklew, 973 S.W.2d at 88. To determine whether Rice’s 

invocation was scrupulously honored, courts will consider five factors: (1) whether the 

interrogation ceased;7

 (2) whether the interrogation was resumed only after the passage of 

a significant period of time with new Miranda warnings; (3) whether the object of any 

subsequent interrogation was to wear down the suspect and cause him to change his 

mind; (4) how many subsequent interrogations were undertaken; and (5) whether 

subsequent questioning involved the same crime. Id. at 89 (citing Michigan v. Mosley, 

423 U.S. 96 (1975)). 

The interrogation did cease – briefly – after Rice stated he did not want to talk 

anymore. But not more than 20 to 30 minutes later, the detective resumed questioning 

Rice without new Miranda warnings and continued to ask questions about the same 

crime. A mere 30 minutes is not passage of a “significant period of time” in which to 

take a break from interrogation. See O’Neal, 392 S.W.3d at 567 (citing cases for the 

proposition that “intervals of one-to-four hours between interrogations are consistent with 

the police’s duty to ‘scrupulously honor’ a suspect’s invocation”). And though Rice was 

“reminded” of his Miranda rights, he was not reread them. Although Miranda warnings 

“do not constitute a ritualistic formula which must be repeated verbatim, ... the whole 

substance of the warning, and not merely part of it, must be given.” State v. Neal, 476 

S.W.2d 547, 555 (Mo. banc 1972). Rice’s invocation was not scrupulously honored here. 

7

 When an accused invokes his right to silence, “the interrogation must cease.” Miranda, 384 

U.S. at 473-74 (emphasis added). 
23 

For this reason, the admission of any statements made after Rice’s invocation – including 

his statements about wanting to get help at the Columbia hospital and having had 

psychological problems for a long time – violated Rice’s Miranda rights. 

2. Interrogation Part Two: “I got nothing to say,” “I don’t wanna talk.”

As stated above, the detective began questioning Rice after his bathroom break 

and after “reminding” Rice of his Miranda rights. Rice stated he understood his rights 

and had no questions about them before the following exchange occurred: 

DETECTIVE: ... Earlier before, down in the emergency room you, I asked 

you what happened and you told me about coming into Jeff City and you 

remember seeing the lights and uh, uh, getting shot [and] whatnot and you 

said you were on your way to the V.A. where you had been treated for some 

psychiatric problems. Do you remember telling me that? 

RICE: Mm hmm. [Yes.] 

DETECTIVE: Okay. What I need for you to tell me about here, you know 

the reason this whole thing started. What happened tonight at [the victims’

home] that kind of kicked this whole thing off? I need you to be honest with 

me.

RICE: I got nothing to say, sir. 

DETECTIVE: Okay, you got nothing to say about at [Strotkamp’s] or ... 

obviously you’re upset with what happened down there with, with [Durham] 

but I want you to understand being, being a cop. You’re a cop and I’m a cop. 

I’m not gonna play games with you. ... I’m not gonna jerk you around, but 

you understand, you know, we got folks down there that worked [the crime]. 

We got, you know, a seven-year-old who saw what occurred. I’d like to be 

able to give your side of the story because as you know ... if you don’t have 

a voice in this somebody else is gonna give you one and that voice probably 

isn’t gonna say what you want it to say .... It’s not gonna give your side of 

the story as far as what led up to this .... You understand where I’m coming 

from, Marvin? 

RICE: Mm hmm. [Yes.] 
24 

DETECTIVE: I mean if, if you don’t give some kind of reason as to why, 

people are gonna assume the worst in you, and especially coming from law 

enforcement, you know we, we sure don’t need people to say that you’re 

some, some lunatic crazy cop who had this all planned out and went on a 

shooting spree intending to hurt all these people .... I can’t put words in your 

mouth. I need to hear from your side of the story as far as what happened. 

RICE: My heart doesn’t like this. I don’t wanna talk. 

DETECTIVE: Okay, I understand that. Can you tell me anything about what 

happened before I go? 

RICE: Mm mmm. [No.] 

DETECTIVE: Okay. Will you visit with me here in a little bit when they get 

your pain under control? I mean, can you tell me something about ... 

RICE: We’ll see. 

DETECTIVE: ... why this happened with [Durham]? 

RICE: If they actually get my pain under control, we’ll see. 

DETECTIVE: Alright, we’ll give you some time and try to get your pain 

under control, alright. I’m gonna go ahead and turn off the recorder. 

Rice made two statements purportedly invoking his right to silence: “I got nothing 

to say” and “I don’t wanna talk.” Even if Rice’s first statement was ambiguous, any 

ambiguity disappeared when, almost immediately thereafter, Rice again stated he did not 

want to talk. This statement – which mirrors his first invocation of his right to silence – 

was a clear invocation of his right to silence. And when the detective continued to prod 

Rice and again asked if he had anything to say before the detective left, Rice answered 

no.8

 

8 To the extent the State argues Rice continued to participate in the interrogation after this

invocation, he did not do so. After Rice’s last refusal to answer questions, the detective asked, 
25 

The State did not immediately cease its interrogation, which alone is sufficient to 

determine Rice’s invocation was not scrupulously honored. Miranda, 384 U.S. at 

473-74. And not only did the questioning persist, the questions were arguably intended

to wear down Rice and cause him to change his mind about participating in the 

interrogation, as the detective made numerous emotional appeals to Rice: 

You’re a cop and I’m a cop. I’m not gonna play games with you. ... I’m not 

gonna jerk you around.... We got, you know, a seven-year-old who saw what 

occurred. I’d like to be able to give your side of the story because as you 

know if you don’t have, if you don’t have a voice in this somebody else is 

gonna give you one and that voice probably isn’t gonna say what you want 

it to say. 

This line of questioning is clearly designed to elicit a response from Rice, mentioning 

that a seven-year-old witnessed the crimes and encouraging Rice to answer the 

detective’s questions because if Rice did not have a voice in the matter, someone else was 

“gonna give [him] one.” But it was not until Rice again invoked his right to silence that 

his invocation was taken seriously. After Rice’s second invocation, his invocation was 

basically honored (after the detective asked again about future questioning), but the State 

did not scrupulously honor Rice’s first invocation of his right to silence, which violated 

his Miranda rights. Importantly, though, Rice made no substantive statements during this 

portion of the interrogation – he mainly answered in affirmatives and negatives – and the 

State received no evidentiary benefit from its violation of Rice’s Miranda rights. 

“Okay. Will you visit me with here in a little bit when you get your pain under control?” This 

statement indicates the detective had – finally – agreed to end the interrogation and had shifted 

toward obtaining a commitment from Rice to be questioned later. Rice never agreed, stating, 

“we’ll see,” which further indicates Rice was unwilling to participate in the interrogation. These 

statements cannot be considered Rice’s continued participation in the interrogation. 
26 

3. Interrogation Part Three: Rice’s waiver and rereading Miranda warnings

Shortly after Rice’s second and final invocation of his right to silence, Rice 

reinitiated conversation with police and made several statements he contends were 

confessional in nature. For example, he stated he had been depressed for some time and 

apologized for putting the police “in the position [he] put [them] in” that night. The 

interrogation then stopped for an unknown period of time, but the break lasted at least 

until the next morning. (Tr. 53). When it resumed later that morning, Rice was reread 

his Miranda rights. He then made the bulk of the statements admitted at trial about the 

night of the homicides, describing in detail what had happened before, during, and after 

his time at the victims’ home. 

This third part of the interrogation did not violate Rice’s Miranda rights. Rice’s 

first statements regarding his mental state and his apologies were made only after he 

reinitiated conversation with the police. And his statements made about what happened 

on the night of the homicides were made only after he was reread his Miranda rights. At 

no point after he was reread his rights did he attempt to invoke his right to silence again. 

There was no Miranda violation here. 

4. The Miranda violations were harmless beyond a reasonable doubt

 “[B]efore a federal constitutional error can be held harmless, the court must be 

able to declare a belief that it was harmless beyond a reasonable doubt.” State v. 

Ramirez, 447 S.W.3d 792, 797 (Mo. App. 2014). The harmless error standard 

“recognizes the relative harm improper evidence may inject depending on its strength, its 

relevance, and the presence of other evidence of guilt.” Id. “The State must prove 
27 

beyond a reasonable doubt that the error complained of did not contribute to the verdict 

obtained.” Id. The State does not need to prove the evidence had no possible effect on 

the jury, as this would be “tantamount to requiring automatic reversal of a conviction.” 

Id. 

Here, if the wrongly admitted evidence had been suppressed, the verdict would 

have remained the same. The statements Rice made in violation of his Miranda rights 

were that he went to the Columbia hospital to get help and that he had been having 

psychological problems for some time. But these statements are duplicative of other 

statements Rice made later in the interrogation after he had waived his Miranda right to 

silence. It was not until later in the interrogation, after Rice had either voluntarily 

initiated conversation with the police or had been reread his Miranda rights, that Rice 

made “confessional” statements. The statements admitted in violation of Miranda had 

little evidentiary value and, given the abundance of evidence of guilt, did not bear heavily 

on the determination of his guilt. Accordingly, the Miranda violations were harmless 

beyond a reasonable doubt. Rice is not entitled to relief on this ground. 

III. Doyle

In addition, Rice argues his conviction for first-degree murder should be 

overturned because his due process rights were violated when the State repeatedly 

referenced his decision to stay silent during police interrogations. The Fifth Amendment 

provides, “No person ... shall be compelled in any criminal case to be a witness against 

himself.” U.S. Const. amend. V. In Doyle v. Ohio, the United States Supreme Court 

stated it was a violation of a defendant’s due process rights to allow his or her post-
28 

Miranda silence to be used to impeach the defendant at trial. 426 U.S. 610, 618 (1976). 

“Breaching the implied assurances of the Miranda warning is an affront to the 

fundamental fairness required by the Due Process Clause.” State v. Brooks, 304 S.W.3d 

130, 133 (Mo. banc 2010). “The holding in Doyle rests on the view that it is 

fundamentally unfair to implicitly assure a person his silence will not be used against him 

and then breach that promise by using that silence against him.” Id. As such, “postMiranda silence cannot be used as evidence to incriminate a defendant.” Id. 

A. Standard of Review

Doyle violations are reviewed to determine whether they are harmless beyond a 

reasonable doubt. Brooks, 304 S.W.3d at 137. The State bears the burden of 

demonstrating “no reasonable doubt exists that the admitted evidence failed to contribute 

to the jury’s verdict.” Id.

B. Preservation

To preserve a Doyle violation for appellate review, the defendant must have 

objected to the violation at trial. Id. at 136. But this Court has discretion to review all 

Doyle errors – preserved and unpreserved – in the context of the entire record to evaluate 

whether the violations were harmless beyond a reasonable doubt. Id. at 137. 

Rice points to several instances at trial he argues were Doyle violations. First, a 

recording of Rice’s hospital interrogation was played for the jury. The recording 

included select parts of the detective’s questioning of Rice the night of the murders and 

through the next morning, including portions in which Rice refused to answer the 

detective’s questions. Though Rice filed a motion to suppress this evidence, it was not 
29 

based on the theory that the evidence wrongly commented on his right to silence. Rather, 

he argued the statements he made were not voluntary and he was not properly informed 

of his rights. Accordingly, this argument is not preserved for appeal. Johnson, 207 

S.W.3d at 43.

After playing the taped interview for the jury, the State examined the interrogating 

detective about his conversation with Rice. Rice argues this testimony describing his 

interrogation contained inadmissible evidence. 

THE STATE: And did you ask him several times about what happened down 

in Dent County at his home in regard to [Durham]? 

DETECTIVE: Yes, I did. 

THE STATE: And did he answer any of those questions? 

DETECTIVE: No, he did not. 

THE STATE: Judge, could I begin the tape again? 

Rice then objected and moved for a mistrial on the basis this line of questioning violated 

his Fifth Amendment right to silence. Typically, an objection made after a question has 

been asked and answered is untimely. State v. Blurton, 484 S.W.3d 758, 774 (Mo. banc 

2016). Exceptions to this rule exist “if the witness answers so quickly that it is 

impossible to object or if the grounds for objection become apparent only when the 

answer is given.” Id. 

When the State asked the detective if Rice had answered questions when he was 

interrogated at the hospital, the grounds for any potential objection from Rice were 

evident. Rice failed to object at that time. Even if the detective’s answer was made too 
30 

quickly for Rice to immediately object, Rice’s objection was not made until after the 

State continued questioning by seeking the court’s permission to resume playing the 

recording. Because Rice’s objection was not timely made, it was not preserved for 

appeal. See id.

Further, Rice failed to ask for a curative instruction. In fact, defense counsel 

stated she did not believe there was any curative instruction that could have been given, 

as it would “only draw more attention to the fact ... that [Rice] did not answer questions 

regarding Dent County and the implication being that he is guilty.” The objection and the 

motion for mistrial were overruled. 

Later in the direct examination, the State once again solicited testimony about 

Rice’s silence: 

THE STATE: And just prior to the end of that or to that break, you brought 

up again what happened to [Durham], correct? 

DETECTIVE: I did. 

THE STATE: And his reaction was what? 

Over Rice’s overruled objection, the detective continued: 

DETECTIVE: He appeared to have more pain at that point and began 

groaning is what happened. 

THE STATE: Well, let me ask you this. When you brought up [Durham] 

and down there and asked him about that, did his demeanor change? 

DETECITVE: To me, every, you know, when I brought up [Durham] and 

asked him about what happened last night, as you heard, it seemed that his 

pain increased and he began moaning more and complaining. 

THE STATE: Does that sort of happen later on in these interviews? 
31 

DETECTIVE: It does consistently throughout the interview. 

Though the detective did not expressly state Rice was silent during this line of 

interrogation questioning, he implied Rice refused to answer questions about Durham, 

perhaps by feigning pain and discomfort. These questions posed by the State were 

comments about Rice’s post-Miranda silence. This issue was included in Rice’s motion 

for new trial and is preserved for this Court’s review. 

The State urges this Court to deny even plain error review of Rice’s unpreserved 

arguments, as Rice did not ask for plain error review. “This Court always has the 

discretion to engage in plain error review of issues concerning substantial rights, 

especially constitutional rights such as the one at issue here.” Brooks, 304 S.W.3d at 136 

n.2. Each of these errors, preserved and unpreserved, will be considered “for purposes of

determining whether the State has met its burden to show that these constitutional 

violations were harmless beyond a reasonable doubt.” Id. 

C. Analysis

The Court considers four factors in evaluating the effect of a Doyle violation on a 

jury’s verdict: “(1) whether the government made repeated Doyle violations; (2) whether 

the trial court made any curative effort; (3) whether the defendant’s exculpatory evidence 

is transparently frivolous; and (4) whether the other evidence of the defendant's guilt is 

otherwise overwhelming.” Id. at 137. 

The State made at least three Doyle violations. It played a taped interview for the 

jury referencing Rice’s silence, both through the detective’s comments and Rice’s 

assertions that he did not want to speak any longer, and twice referenced Rice’s silence 
32 

during the detective’s trial testimony. “[S]ilence does not mean only muteness; it 

includes the statement of a desire to remain silent[.]” Wainwright v. Greenfield, 474 U.S. 

284, 295 n.13 (1986). Though Rice’s silence was not a substantial part of the State’s 

case-in-chief, any reference to Rice’s post-Miranda silence is improper and an unlawful 

Doyle violation. 

Rice argues the fact that the circuit court took no curative efforts cuts in favor of 

this Court finding the impermissible Doyle testimony had an effect on the jury’s verdict. 

But Rice specifically requested that no curative instruction be given to the jury, believing 

such an instruction to be futile. Instead, he moved immediately for a mistrial. “Under 

most circumstances, a trial court acts within its discretion and cures error in the 

admission of evidence by withdrawing the improper evidence and instructing the jury to 

disregard it, rather than declaring a mistrial.” State v. Carter, 71 S.W.3d 267, 271 (Mo. 

App. 2002). “[T]he fact that the defendant sought no relief other than a mistrial cannot 

aid him.” Id. In a case such as this, where the Doyle violations had little impact on the 

State’s case, a curative instruction would have been sufficient to cure any evidentiary 

defects. Rice cannot benefit from the circuit court not taking curative efforts when he 

expressly stated he did not want the court to do so. 

As far as the remaining two factors go, Rice’s exculpatory evidence was not 

transparently frivolous, as he primarily presented evidence he did not act with knowing 

deliberation for the purpose of mitigating his mental state. But the evidence of guilt 

presented in this case, which Rice concedes was “substantial,” was otherwise 

overwhelming. “Overwhelming evidence of guilt” means there is, at a minimum, 
33 

“sufficient evidence to support a conviction without consideration of the inadmissible 

evidence, in this case the inadmissible references to [the defendant’s] silence.” State v. 

Dexter, 954 S.W.2d 332, 342 (Mo. banc 1997). Indeed, the evidence of Rice’s silence or 

refusal to answer questions had little inculpatory value in the context of the evidence as a 

whole, and this impermissible evidence played such a minor role in the State’s case-inchief that the other evidence of guilt would have been sufficient to support a conviction 

without any of the inadmissible evidence. 

Balancing these four factors, the Doyle violations were harmless beyond a 

reasonable doubt. Rice is not entitled to a reversal of his first-degree murder conviction 

on this ground. 

The Penalty Phase 

Finally, Rice argues he is entitled to a new penalty phase with respect to the 

Durham murder because, during the State’s closing arguments, it impermissibly drew 

attention to his decision not to testify at trial in violation of his constitutional rights. 

Specifically, he argues the State wrongly commented to the jury about his decision not to 

testify at trial, violating his right against self-incrimination. In its closing argument, the 

State commented: 

But when you go back there and when you do this [deliberate on 

punishment], I hope you remember only 12 of you are going to do it, [but]

there’s a 13th juror in this room. The 13th juror is sitting behind you, we 

often call them the defendants, but he’s the 13th juror and if I’d been allowed 

to ask him those questions last week, he would have told us .... 

Rice objected on the grounds that this was commenting on his right not to testify, noting 

the State had also mentioned at least three times that Rice had not apologized for the 
34 

homicides. Rice argued this was not an argument but a running theme designed to bring 

attention to Rice’s decision not to testify. The objection was overruled. 

A. Standard of Review

This Court reviews a circuit court’s rulings during closing arguments for an abuse 

of discretion. State v. Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006). This Court will 

find an abuse of discretion if the circuit court’s ruling is clearly against the logic of the 

circumstances and is so unreasonable as to indicate a lack of careful consideration. State 

v. Clark, 364 S.W.3d 540, 544 (Mo. banc 2012).

B. Analysis

“The Fifth Amendment to the United States Constitution [and] article I, section 19 

of the Missouri Constitution ... grant criminal defendants the right not to testify and 

forbid comments by others on the exercise of that right.” Neff, 978 S.W.2d at 344. A 

comment on a defendant’s decision not to testify can be either direct or indirect. A direct 

reference occurs when the prosecutor uses explicit, plain references – such as the words 

“defendant,” “accused,” “testify,” or their equivalent. Id. On the other hand, an indirect 

reference is “one reasonably apt to direct the jury’s attention to the defendant’s failure to 

testify.” Id. 

When examining whether an improper reference to the defendant’s right to remain 

silent has a prejudicial effect, an appellate court must “consider the comment in the 

context in which it appears.” Id. at 345. “The prejudicial impact of such a statement is a 

matter within the sound discretion of the trial court and a prompt instruction by the trial 

court to the jury to disregard the comment may cure any error in a particular case.” Id. 
35 

But “[w]here an objection is made and overruled, a direct reference to the failure of the 

defendant to testify will almost invariably require reversal of the conviction. Id. at 344. 

“[A]n indirect reference requires reversal only if there is a calculated intent to magnify 

that decision so as to call it to the jury’s attention.” Id. 

A prosecutor vocalizing his desire to question a defendant who had declined to 

testify at trial has been found to be an impermissible comment about the defendant’s right 

against self-incrimination. State v. Nelson, 719 S.W.2d 13, 17 (Mo. App. 1986) 

(Prosecutor’s closing argument was an impermissible reference to defendant’s right not 

to testify when prosecutor stated, “we want to ask you, [Defendant], we want to ask you 

what you were doing with these guys”). The same type of comment occurred here. The 

State referred directly to Rice (“The 13th juror is sitting behind you, we often call them 

the defendants”) and referenced the State’s inability to question him (“if I’d been allowed 

to ask him those questions last week ...”). This language is the functional equivalent of 

using the words “defendant,” “accused,” and “testify,” and it was an impermissible 

comment about Rice’s refusal to testify. 

The State argues this was a mere rhetorical device and, considered in its full 

context, the circuit court understood the comment to refer to the State’s inability to 

question Rice during voir dire, not to Rice’s failure to testify during the trial. But the 

relevant inquiry is not how the court interpreted the comment. Rather, this Court must 

focus on how the jury interpreted the comment and whether the comment invited the jury 

to consider the defendant’s failure to testify. 
36 

To expect the jury to infer from the closing argument that the State was referring 

to its inability to question Rice during voir dire is a bit far-fetched. A defendant is never 

questioned during voir dire, and a defendant may never sit on the jury in his own criminal 

trial. For the State to argue that it wanted to know the answers it would receive “if [it] 

had been allowed to ask [Rice] those questions ...” is disingenuous, as the State is well 

aware it has never been, and will never be, “allowed” to question the defendant during 

voir dire. The State’s comment drew attention to the fact that the jury had not heard from 

Rice during the trial, which was in part because he had declined to testify. 

If the State intended to draw an inference that Rice must be a proponent of the 

death penalty because he had committed these homicides, it could have explicitly drawn 

that inference. Instead, the State referenced Rice’s silence and focused on what Rice did 

not say. This was an impermissible comment about Rice’s decision not to testify and a 

violation of his right against self-incrimination. 

The circuit court abused its discretion when it overruled Rice’s objection to the 

State’s closing argument. For this reason, a new sentencing trial is warranted for the 

first-degree murder conviction of Durham. Neff, 978 S.W.2d at 347. 

Conclusion 

The circuit court erred in refusing to submit Rice’s proposed jury instructions, and 

for this reason, the judgment for the second-degree murder of Strotkamp is reversed. 

Further, because the circuit court erred when it overruled Rice’s objection to the State’s 

penalty phase closing argument, the judgment for the first-degree murder of Durham is 
37 

reversed with respect to the penalty phase of the trial. In all other respects, the judgment 

is affirmed. 9

 The case is remanded. 

______________________________

Mary R. Russell, Judge 

All concur. 

9 Having found Rice is entitled to a new trial as to the murder of Strotkamp and a new penalty

phase as to the murder of Durham, this Court need not address Rice’s other arguments.