Faria Appeal Brief

Electronically Filed - EASTERN DISTRICT CT OF APPEALS - December 02, 2014 - 08:28 PM
No. ED100964
MISSOURI COURT OF APPEALS

EASTERN DISTRICT
STATE OF MISSOURI,
Respondent,
v.
RUSSELL FARIA,
Appellant.
From the Circuit Court of Lincoln County

45th Judicial District
Before the Hon. Chris Mennemeyer
Underlying Cause No. 12L6-CR01312
BRIEF OF APPELLANT
Joel J. Schwartz, 39066

Hannah Zhao, 66758
ROSENBLUM, SCHWARTZ, ROGERS &
GLASS P.C.
120 S. Central Ave. Ste. 130
St. Louis, MO 63105
Phone: (314) 862-4332
Fax: (314) 862-8050
Email: hzhao@rsrglaw.com
Attorneys for the Appellant
ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................... viii
JURISDICTIONAL STATEMENT ............................................................................ xiii
STATEMENT OF FACTS ........................................................................................... 1
POINTS RELIED ON ............................................................................................. 22
I. The trial court plainly erred in not declaring a mistrial sua sponte
during the State’s Closing Argument because the State’s closing argument
detailing its theory of the case contained numerous and repeated assertions
of personal belief as fact that were not reasonably drawn from the evidence
and the State argued facts contrary to the evidence possessed by the State
and the State intentionally violated its own Motion in Limine. The trial
court’s error violated Mr. Faria’s right to confrontation, a fair trial, and due
process as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution and Article I, §§ 10, 18(a), and 22(a) of the
Missouri Constitution. ................................................................................. 24
ARGUMENT .......................................................................................................... 26
II. The trial court abused its discretion in excluding impeachment
evidence against Hupp on the basis that there was no “direct connection”
between Hupp and the murder because the evidence was admissible as
i
impeachment evidence; regardless, evidence of Hupp’s location at the scene
of the crime at the time the crime occurred was sufficient to admit all
evidence regarding Hupp’s motivation and opportunity to kill Mrs. Faria.
The trial court’s abuse of discretion violated Mr. Faria’s right to
confrontation, a fair trial, and due process as guaranteed by the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution and
Article I, §§ 10, 18(a), and 22(a) of the Missouri Constitution. ................... 26
A. Preservation of Error and Standard of Review ................................. 26
B. Discussion .......................................................................................... 27
1. Evidence regarding Hupp’s location on the night of the murder
and the change in beneficiary of the State Farm Policy from Mr. Faria
to Hupp was admissible as impeachment evidence because Hupp
testified as a witness for the State. ........................................................ 27
2. Hupp’s testimony and cell site data established a “direct
connection” between Hupp and the murder because her presence at the
scene of the crime at the time the crime occurred indicates that
another person could have interacted with the victim at the scene of
the crime. ................................................................................................. 33
3. Mr. Faria was prejudiced by the trial court’s exclusion of evidence
regarding Hupp ....................................................................................... 37
ii
a. The evidence against Mr. Faria is weak and circumstantial. ... 38
b. The excluded evidence supported the defense theory. ............... 40
III. The trial court abused its discretion in refusing to grant a mistrial at
the request of Mr. Faria after the State intentionally referenced
inadmissible polygraph exam evidence and this violated Mr. Faria’s right
to confrontation, a fair trial, and due process as guaranteed by the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution and
Article I, §§ 10, 18(a), and 22(a) of the Missouri Constitution. ................... 41
A. Preservation and Standard of Review ............................................... 42
B. Discussion .......................................................................................... 42
1. The trial court abused its discretion in refusing to grant a mistrial
because a mistrial is warranted if the prosecutor intentionally and
directly refers to polygraph evidence with the intention of using the
willingness of the prospective exam taker as an attack on the
prospective exam taker’s credibility. ..................................................... 42
2. The State’s intentional reference to polygraph exams prejudiced
Mr. Faria because that reference impermissibly cause the jury to
question the credibility of the alibi witnesses and the State had no
good faith basis for that question. .......................................................... 45
iii
IV. The State violated Brady v. Maryland in failing to disclose
impeachment evidence regarding State witnesses, specifically: (1) that the
State pressured Hupp to establish the revocable trust for Mrs. Faria’s
daughter for Mr. Faria’s trial but allowed Hupp to perjure during the Offer
of Proof when she denied that was the motivation; and (2) that State
witness, Officer Michael Lang’s has intense romantic and amorous
attachment to Prosecutor Askey. The State’s intentional concealment
violated Mr. Faria’s right to Confrontation, Fair Trial, and Due Process as
guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution and Article I, §§10 and 18(a) of the Missouri
Constitution. ................................................................................................ 46
A. Standard of Review ........................................................................... 47
B. Discussion .......................................................................................... 47
1. The State violated Mr. Faria’s right to due process in failing to
disclose that Hupp had created the revocable trust for the purposes of
trial under immense pressure from the State and allowed Hupp to
testify to the contrary during Offer of Proof. ......................................... 47
a. Newly discovered evidence that Hupp had created the revocable
trust for the purposes of trial under immense pressure from the
State, and specifically Prosecutor Askey ........................................... 48
iv
b. The State’s failure to disclose the information that Hupp created
the revocable trust for the purposes of trial despite her testimony to
the contrary during the Offer of Proof violated Brady because it was
favorable impeachment evidence, material, and prejudicial with
regards to the court’s consideration of the Offer of Proof ................. 48
2. The State violated Brady in failing to disclose impeachment
evidence regarding Officer Michael Lang who had an intense amorous
attachment to Prosecutor Askey during the course of the case. .......... 50
V. The trial court plainly erred in not declaring a mistrial sua sponte
during the State’s Closing Argument because the State’s closing argument
detailing its theory of the case contained numerous and repeated assertions
of personal belief as fact that were not reasonably drawn from the evidence
and the State argued facts contrary to the evidence possessed by the State
and the State intentionally violated its own Motion in Limine. The trial
court’s error violated Mr. Faria’s right to confrontation, a fair trial, and due
A. Preservation and Standard of Review ............................................... 52
B. Discussion .......................................................................................... 53
v
1. Prosecutor Askey repeatedly and intentionally asserted unfounded
personal belief as fact into her closing argument and presented fact
that was contrary to the evidence .......................................................... 53
a. Prosecutor Askey’s Closing Argument ........................................ 53
b. Prosecutor Askey’s argument during the State’s Closing
Argument that the four alibi witnesses were complicit in the murder
of Mrs. Faria was improper and resulted in manifest injustice. ...... 55
c. Prosecutor Askey’s claim that Mr. Faria showered to wash blood
off his body contradicts discovery documents provided by the State.
60
2. The State violated its own motion in its closing remark by asking
whether this crime was committed by a “ghost killer” and that
violation resulted in manifest injustice ................................................. 61
a. Prosecutor Askey’s question regarding a “ghost killer” violated
the State’s Motion in Limine .............................................................. 61
VI. The evidence adduced at trial was insufficient as a matter of law to
uphold a conviction for first degree murder as the State failed to prove
beyond reasonable doubt Mr. Faria’s presence at the crime scene at the
time the crime occurred and the trial court erred in denying motion for
judgment of acquittal in violation of Mr. Faria’s right to a fair trial and due
vi
A. Standard of Review ........................................................................... 64
B. Discussion .......................................................................................... 65
CONCLUSION ....................................................................................................... 67
CERTIFICATE OF SERVICE ................................................................................... 69
CERTIFICATE OF COMPLIANCE ............................................................................ 70
vii
TABLE OF AUTHORITIES
Cases
Baldwin v. Director of Revenue, 38 S.W.3d 401 (Mo. banc 2001) ................... 47
Barton v. State, 432 S.W.3d 741 (Mo. banc 2014) ............................................ 51
Brady v. Maryland, 373 U.S. 83 (1963) ................................................ 46, 47, 51
Engel v. Dormire, 304 S.W.3d 120 (Mo. banc 2010) ........................................ 49
Evans v. State, 85 S.W.3d 750 (Mo. App. E.D. 2002) ...................................... 28
Felder v. State, 88 S.W.3d 909 (Mo. App. S.D. 2002) ................................ 28, 38
Giglio v. United States, 405 U.S. 150 (1972) .................................................... 49
Jackson v. Virginia, 443 U.S. 307 (1979) .......................................................... 65
Kyles v. Whitley, 514 U.S. 417 (1995) .............................................................. 49
Mitchell v. Kardesch, 313 S.W.3d 667 (Mo. banc 2010) .................................. 28
Rutlin v. State, 435 S.W.3d 126 (Mo. App. E.D. 2014) .............................. 28, 56
State ex rel. Kemper v. Vincent, 191 S.W.3d 45 (Mo. banc 2006) ....... 42, 43, 51
State v. Barriner, 111 S.W.3d 396 (Mo. banc 2003) ............................. 35, 36, 38
State v. Baumruk, 280 S.W.3d 600 (Mo. banc 2009) ...................................... 27
State v. Biddle, 599 S.W.2d 182 (Mo. banc 1980) ............................................ 43
State v. Bowman, 337 S.W.3d 679 (Mo. banc 2011) ......................................... 29
State v. Boyd, 143, S.W.3d 36 (Mo. App. W.D. 2004)....................................... 38
State v. Butler, 951 S.W.2d 600 (Mo. banc 1997) ................................ 34, 36, 37
viii
State v. Collings, No. SC92720, 2014 WL 4086313 (Mo. Aug. 19, 2014), reh'g
denied (Oct. 28, 2014)..................................................................................... 44
State v. Deck, 303 S.W.3d 527 (Mo. banc 2010) ............................................... 53
State v. Dixon, 463 S.W.2d 783 (Mo. banc 1971) ............................................. 60
State v. Edwards, 116 S.W.3d 511 (Mo. banc 2003) ........................................ 53
State v. Floyd, 347 S.W.3d 115 (Mo. App. E.D. 2011) ................................. 9, 26
State v. Foster, 930 S.W.2d 62 (Mo. App. E.D. 1996) ...................................... 57
State v. Goodwin, 43 S.W.3d 805 (Mo. banc 2001) ........................................... 47
State v. Hammonds, 651 S.W.2d 537 (Mo. App. E.D. 1983) ............................ 63
State v. Hudson, 230 S.W.3d 665 (Mo. App. E.D. 2007) ............................ 27, 42
State v. Kelley, 953 S.W.2d 73 (Mo. App. S.D. 1997)....................................... 29
State v. Langdon, 110 S.W.3d 807 (Mo. banc 2003) ......................................... 65
State v. Lloyd, 205 S.W.3d 893 (Mo. App. S.D. 2006) ...................................... 28
State v. Luleff, 729 S.W.2d 530 (Mo. App. E.D. 1987) ..................................... 63
State v. Manzella, 128 S.W.3d 602 (Mo. App. E.D. 2004) ............................... 28
State v. Marshall, 410 S.W.3d 663 (Mo. App. S.D. 2013) ................................ 28
State v. Martinelli, 972 S.W.2d 424 (Mo. App. E.D. 1998) .............................. 43
State v. Matthews, 790 S.W.2d 271 (Mo. App. E.D. 1990.) ............................. 53
State v. Myers, 997 S.W.2d 26 (Mo. App. S.D. 1999) ....................................... 29
State v. Nash, 339 S.W.3d 500 (Mo. banc 2011) ........................................ 28, 34
State v. O'Brien, 857 S.W.2d 212 (Mo. banc 1993) .......................................... 65
ix
State v. Paulson, 220 S.W.3d 828 (Mo. App. S.D. 2007) .................................. 65
State v. Phegley, 826 S.W.2d 348 (Mo. App. W.D. 1992) ................................. 66
State v. Pollock, 735 S.W.2d 179 (Mo. App. S.D. 1987) ................................... 43
State v. Price, 541 S.W.2d 777 (Mo. App. 1976) ............................................... 63
State v. Reed, 334 S.W.3d 619 (Mo. App. E.D. 2011)....................................... 47
State v. Rios, 314 S.W.3d 414 (Mo. App. W.D. 2010) ....................................... 43
State v. Rivers, 439 S.W.3d 862 (Mo. App. E.D. 2014) .................................... 28
State v. Rousan, 961 S.W.2d 831 (Mo. banc 1998) ..................................... 29, 33
State v. Sanders, 126 S.W.3d 5 (Mo. App. W.D. 2003) .................. 35, 36, 40, 41
State v. Schaal, 806 S.W.2d 659 (Mo. banc 1991) ...................................... 29, 33
State v. Self, 155 S.W.3d 756 (Mo. banc 2005) ........................................... 66, 67
State v. Shepherd, 903 S.W.2d 230 (Mo. App. E.D. 1995) ............................... 29
State v. Speaks, 298 S.W.3d 70 (Mo. App. E.D. 2009) ..................................... 28
State v. Stewart, 265 S.W.3d 309 (Mo. App. S.D. 2008) .................................. 43
State v. Storey, 901 S.W.2d 886 (Mo. banc 1995) ...................................... 56, 60
State v. Walkup, 220 S.W.3d 748 (Mo. banc 2007) .................................... 27, 37
State v. Walter, No. WD76655, 2014 WL 4976913 (Mo. App. W.D. Oct. 7,
2014) ................................................................................................................ 58
State v. Weiss, 24 S.W.3d 198 (Mo. App. W.D. 2000) ................................ 63, 64
State v. Weston, 912 S.W.2d 96 (Mo. App. S.D. 1995) ..................................... 44
State v. Whalen, 49 S.W.3d 181 (Mo. banc 2001) ............................................ 58
x
State v. Wheeler, 219 S.W.3d 811 (Mo. App. S.D. 2007) ................................. 42
State v. Winfrey, 337 S.W.3d 1 (Mo. banc 2011) .................................. 30, 31, 32
State v. Wise, 879 S.W.2d 494 (Mo. banc 1994) ............................................... 29
State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999) ............................................... 65
State v. Wolfe, 793 S.W.2d 580 (Mo. App. E.D. 1990) ..................................... 29
State v. Woodworth, 941 S.W.2d 679 (Mo. App. W.D. 1997) ............... 29, 30, 32
State v. Wynn, 666 S.W.2d 862 (Mo. App. E.D. 1984) ..................................... 29
Taylor v. State, 262 S.W.3d 231 (Mo. banc 2008) ............................................ 49
Williams v. State, 168 S.W.3d 433 (Mo. banc 2005) ........................................ 28
Constitutions, Statutes, Rules, and Missouri Approved Instructions
Mo. Const. art. I, § 10 .................................................................................passim
Mo. Const. art. I, § 18(a) .............................................................................passim
Mo. Const. art. I, § 22(a) .................................................................. 26, 41, 52, 64
RSMo. § 565.020................................................................................................... 5
RSMo. § 571.015................................................................................................... 5
U.S. Const. amend V ...................................................................................passim
U.S. Const. amend VI .................................................................................passim
U.S. Const. amend XIV ...............................................................................passim
xi
Other Authorities
40 Am. Jur. Trials 501, § 22 .............................................................................. 36
xii
JURISDICTIONAL STATEMENT
This is an appeal by Appellant, Russell Faria, from the judgment and
sentence of the Circuit Court of Lincoln County on December 23, 2013,
wherein he was found guilty by a jury of one count of murder in the first
degree in violation of RSMo. § 565.020 and one count of armed criminal
action in violation of RSMo. § 571.015. Mr. Faria was sentenced to life
imprisonment without parole on the first count and 30 years imprisonment
on the second count running consecutively. This appeal does not involve the
validity of a treaty or statute of the United States, a statute or provision of
the Constitution of this state, or title to any state office, nor is it a case in
which the punishment of death has been ordered. Therefore, as provided in
Article 5, sections 3 and 15, of the Missouri Constitution, as amended, this
Court is vested with jurisdiction of this appeal.
xiii
STATEMENT OF FACTS
This case arose from allegations that Appellant Russell Faria
(“Appellant,” “Mr. Faria”) killed his wife, Betsy Faria (“Mrs. Faria”) on
Tuesday, December 27, 2011. (Legal File 13-17.)1
Background Facts
Russell Faria married Betsy Faria in January 2000 and lived with Mrs.
Faria’s daughters, Leah (“Leah”) and Mariah (“Mariah”) Day, lived together
in Lake St. Louis. (Tr. 212, 232-35, 276.) In 2010, Mr. and Mrs. Faria moved
to 130 Sumac just north of Troy, Missouri but the girls opted to stay in Lake
St. Louis with Mrs. Faria’s mother. (Tr. 212, 235-236, 249, 293.)
In about 2006, Mr. Faria began regularly going to Michael Corbin’s
(“Corbin”) house in O’Fallon to play games with Richard May (“May”),
Corbin, and Angelia Hulion (“Hulion”). (Tr. 888-924, 982-96.) They mainly
played a tabletop fantasy role playing game called Rolemaster.2 (Tr. 891-93.)
1 References to the Transcript will be abbreviated to “Tr.” while references to
the Legal File will be abbreviated to “LF.” The Appendix to the Brief will be
referenced as “App.”
2 Rolemaster is a tabletop role-playing game where players assume
characters in a fictionalized setting and describe the action of their
1
Between 2010 and 2011, Brandon Sweeney (“Sweeney”) and Marshall Bach
(“Bach”) also joined the game. (Tr. 903.) By 2011, the group had a routine of
playing every Tuesday night from about 6 PM to 9 PM that was well-known
to their friends and family. (Tr. 323, 345, 891.)
Towards the end of 2009, Mrs. Faria was diagnosed with breast cancer
although she was in remission by early 2011. (Tr. 251.) Unfortunately, the
cancer returned and Mrs. Faria learned in October 2011 that this time, it was
terminal and she only had a few years to live. (Tr. 251, 307.) Despite this
news, the Farias, Meyer, and other friends vacationed in the Carribean in
November 2011. (Tr. 999.)
December 27, 2011
On the morning of her death, Mrs. Faria texted Mr. Faria to remind
him to buy dog food and confirm that he had game plans as it was Tuesday.
(Tr. 797, Appendix A27.) Mr. Faria assured her that he’ll get the dog food and
that he will be going to game night. (Tr. 798, Appendix A27.)
Mrs. Faria attended her chemotherapy session during the day with her
friend, Bobbi Wann (“Wann”). (Tr. 247.) After the treatment, they returned to
Lake St. Louis and spent time with Meyer and Mariah. (Tr. 861.) In the
characters through speech instead of live-action. The actions succeed or fail
based on rules and guidelines and are determined by rolling multi-sided dice.
2
evening, Pam Hupp (“Hupp”) arrived at Meyer’s home to drive Mrs. Faria
home. (Tr. 339.) Mrs. Faria and Hupp both worked in insurance and met
about ten years prior when they both worked at State Farm. (Tr. 326.)
Sometime after 6 PM, Mrs. Faria left Meyer’s apartment with Hupp. (Tr.
340.)
Around 7 PM, Leah called Mrs. Faria’s cell phone to let Mrs. Faria
know that she was headed to the U.S. Cellular store to switch cell phone
plans. (Tr. 290.) Leah asked her mother to stay reachable by phone because
the store needed Mrs. Faria’s permission for the switch. (Tr. 295.) After Leah
arrived at U.S. cellular, she called Mrs. Faria at 7:21, 7:26, and 7:30 PM, but
no one answered. (Tr. 290, 295-96.) Leah never heard from Mrs. Faria again.
(Tr. 290.)
At 9:41 PM, Mr. Faria called 9-1-1 from to report what he believed was
a suicide. (Tr. 33, 391.) Law enforcement officers responded within minutes
although it was clear Mrs. Faria was already deceased as she was in a pool of
coagulated blood, with a knife in her neck and cuts on her arm. (Tr. 415-19,
427.) Medical personnel arrived by 9:51 PM and found Mrs. Faria’s body to be
cold and stiff. (Tr. 450, 457.) A steak knife was missing from the kitchen, and
blood was found on a light switch and slippers in the master bedroom. (Tr.
509, 551.) Drains were removed from the bathrooms and tested along with
3
the slippers and knife although no trace of blood was found in the drains. (Tr.
721; App. A117-28.) Mr. Faria was taken to the police station that night.
After Mrs. Faria’s death
During his 48 hours at the police station, Mr. Faria told various officers
the same timeline: He last spoke with Mrs. Faria around 5 PM when he was
leaving his house to run errands and drive to Corbin’s house. (Tr. 477, 683-
85.) He picked up gas at Conoco, cigarettes at U-Gas, and dog food at Greenes
Country Store. Id. He arrived at Corbin’s house around 6 PM after grabbing
drinks at a nearby Quicktrip and watched movies with Corbin, Hulion,
Sweeney, and Bach until about 9 PM. (Tr. 482, 729.) He stopped at Arby’s to
pick up food before driving home. (Tr. 685.) Officers were dispatched to
canvas the locations identified by Mr. Faria and interview the four witnesses
while Mr. Faria was still at the station. (Tr. 484.) Surveillance videos and
receipts confirmed Mr. Faria’s timeline for the errands, and all four witnesses
testified that Mr. Faria was with them from 6 to 9 PM. (Tr. 1004, 901, 930,
952, 987; App. A117-23.) The Arby’s receipt found in Mr. Faria’s car was
time-stamped 9:09 PM and the location was about 30 minutes by car from
130 Sumac. (Tr. 1024-26; App. A124.)
At the time of her death, Mrs. Faria had three life insurance policies
totaling about $300,000 at the time of her death. (Tr. 30.) All three policies
were created with Mr. Faria as the primary beneficiary between 2001 and
4
2012. (Tr. 776, App. A3-A18.) After Mrs. Faria’s death, State Farm, the
insurance provider for her largest policy of $150,000 (“State Farm Policy”),
received a Change of Beneficiary form. (App. A14-A18.) This was the first
change of beneficiary since the policy was created in 2001. Id. The request
was dated December 23, 2011, four days before Mrs. Faria’s death, and
designated Hupp as the new primary beneficiary. Id.
Mr. Faria was indicted with one count of murder in the first degree in
violation of RSMo. § 565.020 and one count of armed criminal action in
violation of RSMo. § 571.0153 on November 16, 2012.4 (LF 13.) For trial, Mr.
Faria was represented by Joel Schwartz (“Mr. Schwartz”) and Nathan
Swanson (“Mr. Swanson”). Leah Askey (Prosecutor Askey) and Richard Hicks
(Prosecutor Hicks) were the prosecutors for the State.
Statements by Hupp prior to trial
3 Statutory citations are to RSMo. 2000. All references to rules are to
Missouri Court Rules (2012) unless otherwise noted.
4 Mr. Faria was first indicted in January of 2012, in State v. Faria, 12L6-
CR00004 but Prosecutor Askey voluntarily dismissed the case without
prejudice as it was docketed before the Hon. Dan Dildne. After the Hon. Chris
Mennemeyer was elected to replace Judge Dildne, Prosecutor Askey refiled
the case.
5
Interview, December 28, 2011
During Hupp’s initial interview with detectives, she said that Mrs.
Faria asked her “would you be my beneficiary on my life polices and make
sure my kids get [the money] when they need it.” (App. A50). Hupp first saw
the change of beneficiary form when she met Mrs. Faria at the Winghaven
library where Mrs. Faria filled and signed the form and had it witnessed by a
librarian. (App. A50).
Hupp recalled arriving at Mrs. Faria’s mother’s house around 5:30 PM
and waited for Mrs. Faria before they left for Troy. (App. A35). Hupp then
revised the time she arrived to 5:15 and left with Mrs. Faria around 6 PM.
(App. A42). Detectives pointed to a text from Mrs. Faria saying that she felt
better to Hupp at 5:43 PM that night, but Hupp did not know where Mrs.
Faria was when the text was sent. (App. A42).
After reaching Mrs. Faria’s house, Hupp and Mrs. Faria called Hupp’s
husband. (App. A37). Detectives asked Hupp, “did you go inside?” to which
she replied “no.” (App. A37). Hupp explains that she did go inside but only to
the living room and kitchen. (App. A38). When asked if Mrs. Faria went into
any other rooms, Hupp said “Not that I saw, no.” (App. A38.) Hupp guess that
when she left it was 10 to 20 minutes later and Mrs. Faria was sitting on the
couch underneath a blanket. (App. A38-40).
6
Hupp said she called Mrs. Faria when she was home or almost home
but Mrs. Faria did not answer. (App. A39). Hupp’s home is about 20 to 25
:minutes from the Farias’ house and detectives find a call to Mrs. Faria at .
PM. (App. A37, 40).
Interview, June 25, 2012
Investigators conducted a second interview with Hupp about six
months later and inquired about Hupp’s financial status. (App. A86.) Hupp
explained, “I’m a financial person. I’m not a big spender. And If I really—hate
to say it—wanted money, my mom’s worth half a million that I get when she
dies.” (App. A87).
Hupp said that Mrs. Faria first showed her the change of beneficiary
form at the gym on December 23, 2011. (App. A79). They went to Winghaven
Library together and notarized the form but Hupp did not have to sign or
touch the form. (App. A79). Hupp had no idea when Mrs. Faria mailed the
form. (App. A79).
The investigator advised Hupp that it looked bad for their case that she
had not given Mrs. Faria’s family any money. (App. A85). Hupp insisted that
Mrs. Faria gave Hupp the money because Mrs. Faria did not want her family
to have it. She denied that the purpose was to make sure Mrs. Faria’s
daughters were taken care of although she assured the investigator that she
would set up a trust for the girls before the trial. (App. A85, A87). She said
7
that she had been watching Mrs. Faria’s daughters and that the girls will
receive the money once they pass certain criteria, and gave the example that
Mariah must graduate school. (App. A87-88).
When Hupp and Mrs. Faria arrived at 130 Sumac that night, Mrs.
Faria asked Hupp to go inside to see Christmas presents. (App. A80). Hupp
entered the house after Mrs. Faria let the dog out in the backyard and they
went into Mrs. Faria’s bedroom. (App. A80).
Hupp said she called Mrs. Faria when she was almost home because it
was customary. (App. A84). She assured the investigator that there was no
reason her cell site data would not confirm her timeline. (App. A84).
Deposition, March 20, 2013
During the deposition for trial, Hupp stated that she would not take a
polygraph. (App. A105.)
Hupp could not explain why the zip code on the change of beneficiary
form was Hupp’s zip code when she said Mrs. Faria filled out the form. (App.
A108-09.) When asked regarding Hupp’s recent revelation that she and Mrs.
Faria had gone to a post office on December 23, 2011, Hupp said that she
never mentioned it because she did not think it was important, but assumed
that Mrs. Faria sent the change of beneficiary form at that time. (App. A110.)
Hupp explained that she went to chemotherapy to see Mrs. Faria
because she never read the text from Mrs. Faria saying that Mrs. Faria
8
wanted to spend one on one time with Wann although her phone records
indicate that Hupp responded to Mrs. Faria’s text with “bummer.” (App. 110.)
Hupp estimated that she stayed at 130 Sumac for “a minimum of 45
minutes,” though it was possibly longer. (App. A111, A113.)
Pretrial Matters
State’s Motion in Limine
Prior to trial, the State filed a Motion in Limine Concerning the
Possible Defense that Someone Else committed this Crime (hereinafter
“State’s Motion in Limine”). (LF 189-91.) The State argued that any evidence
regarding Hupp’s possible motivation or opportunity must be excluded in the
absence of evidence directly connecting her to the crime. (Tr. 40.) The State
said that Hupp’s presence at the Faria house around 7:30 PM was
insufficient because the State’s theory was that Mr. Faria killed Mrs. Faria
around the time of his 9-1-1 call at 9:41 PM. (Tr. 40.)5
Defense counsel argued evidence was admissible for impeachment
purposes. (Tr. 53.) At the conclusion of the hearing, the trial court granted
the State’s Motion in Limine. (LF 193.)
On October 8, 2013, Mr. Faria filed a Motion to Reconsider the ruling
on the State’s Motion in Limine after receiving missing discovery documents
5 The State’s theory in its closing argument contradicted this representation.
9
related to Hupp’s cell phone from the State. (LF 255-61.) Hupp’s cell site data
showed that her call to her husband at 7:04 and call to Mrs. Faria at 7:27 PM
both connected through the same tower covering 130 Sumac but not any
farther south.6 (Tr. 139; App. A137.) The court did not alter its ruling. (Tr.
128-42.)
Other Pretrial Motions
Mr. Faria filed a Motion to Exclude Testimony Re: Polygraph on
January 7, 2013 regarding a polygraph Mr. Faria had taken during his initial
detention at the police station. (LF 34-35.) The Motion was consented to by
the State. (LF 35.)
Defense filed a Motion for a Bill of Particulars on July 9, 2013. (LF 223-
25.) The State stated it was unsure of a time of death but that it could have
been any time between 7:20 and 9:40 PM. (Tr. 121-25) The State refused to
disclose whether its theory was that the alibi witnesses were lying or that
Mr. Faria murdered Mrs. Faria just before his 9-1-1 call. (Tr. 121-25.) The
motion was heard and denied on July 10, 2013. (Tr. 93-127.)
Trial
6 Use of cell site data to determine general location is explained in the
transcript by Greg Chatten, who testified on behalf of the defense. (Tr. 1028-
1053.)
10
The jury trial for State v. Faria, 12L6-CR001312 began on November
17, 2013. (Tr. 143.)
State’s Opening Statement
During the State’s opening statement, Prosecutor Askey characterized
the case as about greed and directs the jury at evidence of Mr. Faria’s belief
that he was the beneficiary of three life insurance policies. (Tr. 195-96.)
Defense counsel objected because trial court’s order of October 28, 2013
excluded “[e]vidence relating to the existence of, or possible change in
Beneficiary designation of a life insurance policy.” (Tr. 200-01, LF 277-78.)
The trial court agreed with the State that the order only referred to Hupp’s
relation to the insurance policies and allowed the State to argue that the
money was Mr. Faria’s motive for the murder. (Tr. 204.)
Defense’s Opening Statement
During defense counsel’s opening statement, the State objected to
references by defense counsel to Hupp’s location and prior inconsistent
statements regarding whether she entered the Faria residence and her
movements inside on the night of the murder. (Tr. 224.) Pursuant to the
order granting the State’s Motion in Limine, the trial court sustained the
State’s objection. (Tr. 227-28.)
State’s Evidence
11
During the State’s direct examination of Pam Hupp, Hupp guessed that
she and Mrs. Faria arrived at 130 Sumac just before the call to Hupp’s
husband at 7:04 PM. (Tr. 340-41.) Then they went inside and Mrs. Faria let
her dog out in the backyard. (Tr. 343.) Hupp estimated that she stayed for
about 20 minutes and entered the kitchen, living room, and bedroom. (Tr.
343-45.) Hupp said she called Mrs. Faria to make sure the latter was not mad
at her when Hupp had reached the Interstate and was out of Troy. (Tr. 347,
360.) Hupp also said that when she reached home, she called Mrs. Faria’s
mother. (Tr. 346-47.)
Due to the repeated objections by the State regarding evidence related
to Hupp, defense counsel attempted to limit questions to areas permitted by
the State’s Motion in Limine. (TR. 349-367.) On six different occasions, Hupp
claimed ignorance of prior statements and but declined defense counsel’s offer
to refresh her memory with the record. (Tr. 349, 355, 362, 363, 364, 366.) The
trial court prevented defense counsel from proceeding with those line of
questions. (Tr. 365-70.)
Over the objection of defense counsel, Margie Harrell (“Harrell”), a
director of 9-1-1 but not the dispatcher who received the call from Mr. Faria,
was allowed to compare Mr. Faria’s 9-1-1 call compared to others she has
heard in her experience although she was not endorsed as an expert. (Tr. 394-
97.)
12
Law enforcement officers who arrived on the scene testified to finding
Mrs. Faria’s body on the living room floor minutes after Mr. Faria’s 9-1-1 call.
(Tr. 413-60.) They described Mr. Faria’s demeanor and their efforts to calm
him down. Id. Mike Quattrocchi, (“Quattrochi”), the lead medic, examined
Mrs. Faria’s body around 9:51 PM and determined that Mrs. Faria had been
killed over a couple of hours ago based on the dried blood and her body’s
stiffness and coldness. (Tr. 439-42, 450-57.)
Lieutenant Mark Schimweg confirmed Mr. Faria’s whereabouts for the
night of December 27, 2011 through videos, receipts, and interviews. (Tr. 480-
484.) Defense counsel regarding asked if Leah’s boyfriend’s whereabouts were
confirmed and Schmiweg answered affirmatively. (Tr. 487) Defense counsel
then asked about Hupp’s whereabouts and the State objected. (Tr. 487.) The
court sustained the State’s objection and told defense counsel that he could
no longer bring up Hupp. (Tr. 489.)
On redirect, the State asked Schimweg whether his purpose in re-
interviewing the four alibi witnesses was “specifically to ask [ ] them to take
a polygraph?” (Tr. 493.) Defense counsel immediately objected and requested
a mistrial. (Tr. 494.) During the bench discussion, the State explained that it
wanted to use the willingness of the witnesses to attack their credibility. (Tr.
494-95.) Defense counsel pointed out that nowhere in discovery was there an
indication that the witnesses were asked to take a polygraph. (Tr. 495.) The
13
court denied the request for mistrial and instructed the jury to disregard the
question. (Tr. 497.)
Kamal Sabharwal conducted the autopsy of Mrs. Faria’s bodyand found
over 50 wounds in areas that were covered by her clothing. (Tr. 560-605.)
Investigator Amy Pratt testified that a pair of Mr. Faria’s slippers with
Mrs. Faria’s blood on it was located in the master bedroom closet. (Tr. 514;
App. 138.) Various other investigators and latent prints examiners testified
to the existence of Mr. Faria’s prints at various places in the house although
no bloody slipper prints were found. (Tr. 531, 630-670.)
Investigator Michael Merkel referred to a report on the positive results
of a Bluestar/Luminol test and digital photographs of the Faria’s kitchen
during his testimony. (Tr. 696.) Defense counsel objected as the State had
failed to provide the report and photographs in discovery. (Tr. 696-700.) The
lack of opportunity to examine the evidence for discrepancies and errors
prevented an adequate cross-examination. (Tr. 698-99, 703, 706.) The court
allowed Merkel’s testimony as long as he did not allege that a positive result
was dispositive of blood. (Tr. 707.)
Merkel further testified that Mr. Faria was wearing the same clothing
in the surveillance videos from Conoco and U-Gas as when officers responded
to the 9-1-1 call. (Tr. 737) Those clothes were tested while Mr. Faria was at
the police station and no blood was found. (Tr. 690.)
14
The State called Michael Lang (“Lang”) to testify regarding a cell phone
forensic pull of Mr. Faria’s cell phone conducted on December 29, 2011. (Tr.
780-83.) The report indicated that Mr. Faria received a call from Meyer at
8:57:27 PM which lasted 69 seconds. (Tr. 785-86, 795.) Lang also testified
that at 8:57.50, there was an outgoing call from Mr. Faria’s phone to
voicemail. (Tr. 789-90, 795.) On cross, Lang inspect the State’s Exhibit 35,
which was the phone records provided by T-Mobile pursuant to court order.
Those records did not show the outgoing call and Lang could not explain the
discrepancy. (Tr. 784.)
The last witness for the State was Mrs. Faria’s mother, Janet Meyer.
(Tr. 856.) Meyer testified that she received a call from Hupp at 8:52 PM
saying Hupp was concerned because she couldn’t reach Mrs. Faria. (Tr. 862-
63.) Shortly after that, Meyer called Mr. Faria and left a voicemail asking
about Mrs. Faria’s whereabouts. (Tr. 857.) When defense counsel asked about
more details regarding what Hupp had told Meyer, the State objected. (Tr.
863.) Defense counsel said this evidence was admissible for impeachment this
was admissible for impeachment but the State argued that since Hupp
testified that she did not know what she said to Meyer, defense counsel could
not impeach with a prior inconsistent statement. (Tr. 865.) The court agreed
and prohibited defense counsel from asking what Hupp said during that
conversation pursuant to the State’s Motion in Limine. (Tr. 866.)
15
Court’s Reconsideration of Order Granting State’s Motion in Limine
Before the Defense began presenting its case in chief, the court stated
that after reviewing the case law, a trial court cannot prohibit the cross-
examination of a witness regarding that witness’s credibility. (Tr. 875.)
However, the earlier ruling stood because defense counsel was not completely
prevented from cross-examining Hupp. (Tr. 877.)
Defense’s Evidence
Robert Shramek, a captain with 30 years of experience responding to
emergencies, was the first witness for Mr. Faria. (Tr. 878-89.) Shramek was
another responder to Mr. Faria’s 9-1-1 call and had checked Mrs. Faria’s body
around 9:50 PM. (Tr. 881, 883-84.) Shramek testified that the body was cold
and exhibited rigor mortis and surrounding blood was coagulated. (Tr. 882-
83.) Based on these observations, he estimated that Mrs. Faria had been dead
at least a couple of hours. (Tr. 887.)
The four alibi witnesses, Corbin, Bach, Sweeney, and Hulion, testified
next. (Tr. 888-998.) The following details were consistent throughout the four
witnesses’ trial testimony, depositions and police interviews the morning
after the murder. (Tr. 479, 888-998.) On Tuesdays, the four witnesses, along
with Mr. Faria, and Richard May, usually gather at Corbin’s house from
around 6 PM until 9 PM to play the game, Rolemaster. (Tr. 891, 929, 952,
984.) On that particular Tuesday of December 27, 2011, Richard May was
16
working overtime so the group opted to watch movies instead. (Tr. 481-82,
895, 929, 956, 988.) They finished “Conan the Barbarian” and began “The
Road,” but it was boring so everyone left around 9 PM. (Tr. 924, 931-32, 958,
988.) All four witnesses confirmed that Mr. Faria did not leave Corbin’s house
between the hours of 6 PM and 9 PM. (Tr. 923-24, 931-35, 957, 987.)
Officer Dean Frye of the O’Fallon Police Department who was assigned
to confirm Mr. Faria’s timeline took the stand next. (Tr. 1004.) Frye was able
to obtain a video from Conoco, U-Gas, and Quiktrip, and a receipt from
Greene’s Country Store to verify Mr. Faria’s whereabouts. (Tr. 1006.) The
videos showed him in the same clothing as the one he was wearing when
police responded to the 9-1-1 call. (Tr. 1010, 1014.) The receipt from Greene’s
Country Store was for dog food which Mr. Faria paid for with his credit card
and had his signature at the bottom. (Tr. 1012.)
Lastly, Greg Chatten testified as a cell phone mapping and analysis
expert. (Tr. 1027-1032.) Chatten confirmed that Mr. Faria’s cell site map was
consistent with his statements about his movements that night. (Tr. 1035-
1050; App. 139.) Specifically, data from 5:50, 7:50, and 8:57 PM showed that
the phone was connecting to the tower sector that covers Corbin’s house. (Tr.
1048-49.) The first time Mr. Faria’s cell phone connected with a cell tower
covering the Faria residence was at approximately 9:37 PM. (Tr. 1051.) The
State objected to defense counsel’s attempt to introduce Hupp’s cell site data
17
and the trial court sustained the objection pursuant to the State’s Motion.
(Tr. 1052-53.)
Offer of Proof
During the trial, defense counsel made offers of proof regarding the
change of the State Farm Policy beneficiary to Hupp and Hupp’s cell site
data. (Tr. 253-54, 373-390, 998-1001, 1067-71.)
During Hupp’s testimony regarding the offer of proof for the State
Farm Policy, Hupp claimed that Mrs. Faria had changed her policies many
times depending on who she was mad at. (Tr. 384.) Hupp testified that of the
$150,000 she received from Mrs. Faria’s State Farm Policy, $100,000 was put
in a revocable trust for Mrs. Faria’s girls and $50 was for the daughter of
another friend who had died from breast cancer. (Tr. 385-86.) Defense counsel
asked whether she had established the trust just for trial. (Tr. 386.) Hupp
responded that if she would have done it much earlier than she did if that
was the purpose. (Tr. 386-87.)
Chatten’s testimony for the offer of proof regarding Hupp’s cell site
data showed that both calls from her phone at 7:04 and 7:27 PM connected to
the same tower and directional antenna that covered. (Tr. 1069-71; App.
A137.) Neither call could not have been made from Troy proper, Highway 31,
or anywhere south of Troy including Hupp’s residence. (Tr. 1070-71.)
Closing Arguments
18
Prior to closing arguments, the court directed both parties that the
implication of the State’s Motion in Limine was that neither party could
reference the possibility that someone else committed the murder. (Tr. 1089.)
Specifically, defense counsel could not say someone else did and State could
not ask, “who else could have done it.” (Tr. 1089-91.) Both parties agreed. (Tr.
1091.)
Prosecutor Askey delivered the State’s closing argument detailing the
State’s theory of the case. (Tr. 1100-14.) She speculated that Mr. Faria and
the four alibi witnesses were playing an “ultimate” game that had been in
discussion for a while. (Tr. 1102-03.) She explained the cell site data by
surmising that Mr. Faria dropped off his phone at Corbin’s house before
returning to 130 Sumac to kill her. (Tr. 1105.) The lack of blood on Mr. Faria,
Prosecutor Askey said, was because he showered to wash it off. (Tr. 1106-07.)
In her story, Sweeney picks up the Arby’s receipt and delivered it along with
Mr. Faria’s cell phone to Troy right before Mr. Faria called 9-1-1. (Tr. 1102-
07.)
Mr. Schwartz’s closing argument noted the complete lack of evidence
for the State’s theory and that it rested on believe Corbin, Hulion, Sweeney,
and Bach were all complicit in the murder. (Tr. 1114-16.)
In Prosecutor Askey’s closing reply, she asked the question, “Are we to
assume this was a ghost killer?” (Tr. 1145.)
19
Verdict
On November 21, 2013, the jury found Mr. Faria guilty of one count of
murder in the first degree and one count of armed criminal action. (Tr. 1154.)
Sentencing and Appeal
Mr. Faria was sentenced on the count of first degree murder for life
without parole, pursuant to statute. (Sentencing Tr. 29.) He was additionally
sentenced to a consecutive term of 30 years for armed criminal action.
(Sentencing Tr. 29, 35.) Mr. Faria filed a timely notice of appeal on December
30, 2013. (LF 383-84.)
Newly discovered evidence
After trial, Hupp revoked the revocable trust she had set up for Mrs.
Faria’s daughters. Leah and Michelle initiated a civil suit against Hupp on
April 7, 2014. Day v. Hupp, No. 1411-CC00329. (App. 140.) A deposition of
Hupp for the civil case was taken on July 21, 2014 and included the following
statements: (App. A145, A157-94.)
Hupp denied that she had ever told police that she would receive
$500,000 at her mother’s death. (App. A162.)
Hupp claimed that Mrs. Faria never told Hupp to use the money for
Mrs. Faria’s daughters and Hupp never told anyone as such. (App. A166.)
She confirmed that prior to Mr. Faria’s trial, the police asked her to set up a
trust for Mrs. Faria’s daughters. (App. A169.) She eventually relented to the
20
“pressure on [her] from the detectives and the attorney general and the whole
side that was representing [Mrs. Faria].” (App. A171.) Hupp specifically
alleged that Prosecutor Askey pressured her “through Detective Carrick.”
(App. A172.)
Hupp’s bank account had a balance of just over $2000 on February 23,
2012. (App. A176.) On February 27, she made a deposit of over $150,000
which was the proceeds from Mrs. Faria’s life insurance. (App. A176.) On
November 13, 2013, “the week before [Mr.] Faria’s criminal trial,” Hupp
transferred $100,000 to the trust account for Leah and Mariah. (App. A177.)
Less than 20 days after Mr. Faria was found guilty, Hupp withdrew all but
$300 from the trust account. (App. A178.) Hupp said she did not speak with
Leah or Mariah after Mrs. Faria’s death and did not remember telling police
that she would give the girls the proceeds from the insurance if the girls met
certain criteria. (App. A192.) She also denied ever telling anyone that she
used the remaining $50,000 from the policy on another cancer patient. (App.
A178.)
21
POINTS RELIED ON
I. The trial court abused its discretion in excluding impeachment
evidence against Hupp on the basis that there was no “direct
connection” between Hupp and the murder because the evidence
was admissible as impeachment evidence; regardless, evidence of
Hupp’s location at the scene of the crime at the time the crime
occurred was sufficient to admit all evidence regarding Hupp’s
motivation and opportunity to kill Mrs. Faria. The trial court’s
abuse of discretion violated Mr. Faria’s right to confrontation, a fair
trial, and due process as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution and
Article I, §§ 10, 18(a), and 22(a) of the Missouri Constitution.
State v. Woodworth, 941 S.W.2d 679 (Mo. App. W.D. 1997);
State v. Winfrey, 337 S.W.3d 1 (Mo. banc 2011);
State v. Butler, 951 S.W.2d 600 (Mo. banc 1997);
State v. Barriner, 111 S.W.3d 396, 400 (Mo. banc 2003);
State v. Sanders, 126 S.W.3d 5 (Mo. App. W.D. 2003);
U.S. Const. amends. V, VI, and XIV; and
Mo. Const. art. I, §§ 10, 18(a), and 22(a).
22
II. The trial court abused its discretion in refusing to grant a mistrial
at the request of Mr. Faria after the State intentionally referenced
inadmissible polygraph exam evidence and this violated Mr. Faria’s
right a fair trial, and due process as guaranteed by the Fifth, Sixth,
and Fourteenth Amendments to the United States Constitution and
Article I, §§ 10, and 18(a) of the Missouri Constitution.
State v. Rios, 314 S.W.3d 414 (Mo. App. W.D. 2010);
U.S. Const. amends. V, VI, and XIV; and
Mo. Const. art. I, §§ 10 and 18(a).
III. The State violated Brady v. Maryland in failing to disclose
impeachment evidence regarding State witnesses, specifically: (1)
that the State pressured Hupp to establish the revocable trust for
Mrs. Faria’s daughter for Mr. Faria’s trial but allowed Hupp to
perjure during the Offer of Proof when she denied that was the
motivation; and (2) that State witness, Officer Michael Lang’s has
intense romantic and amorous attachment to Prosecutor Askey. The
State’s intentional concealment violated Mr. Faria’s right to
Confrontation, Fair Trial, and Due Process as guaranteed by the
Fifth, Sixth, and Fourteenth Amendments to the United States
23
Constitution and Article I, §§10 and 18(a) of the Missouri
Constitution.
Brady v. Maryland, 373 U.S. 83 (1963);
Engel v. Dormire, 304 S.W.3d 120, 128-29 (Mo. banc 2010);
U.S. Const. amend. VI, XIV; and
Mo. Const. art. I, § 10 and 18(a).
I. The trial court plainly erred in not declaring a mistrial sua sponte
during the State’s Closing Argument because the State’s closing
argument detailing its theory of the case contained numerous and
repeated assertions of personal belief as fact that were not
reasonably drawn from the evidence and the State argued facts
contrary to the evidence possessed by the State and the State
intentionally violated its own Motion in Limine. The trial court’s
error violated Mr. Faria’s right to confrontation, a fair trial, and due
process as guaranteed by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and Article I, §§ 10,
18(a), and 22(a) of the Missouri Constitution.
Rutlin v. State, 435 S.W.3d 126 (Mo. App. E.D. 2014);
State v. Foster, 930 S.W.2d 62 (Mo. App. E.D. 1996);
State v. Weiss, 24 S.W.3d 198 (Mo. App. W.D. 2000);
24
U.S. Const. amend. V, VI, and XIV; and
Mo. Const. art. I, §§ 10, 18(a), and 22(a).
IV. The evidence adduced at trial was insufficient as a matter of law to
uphold a conviction for first degree murder as the State failed to
prove beyond reasonable doubt Mr. Faria’s presence at the crime
scene at the time the crime occurred and the trial court erred in
denying motion for judgment of acquittal in violation of Mr. Faria’s
right to a fair trial and due process as guaranteed by the Fifth,
Sixth, and Fourteenth Amendments to the United States
Constitution and Article I, §§ 10, 18(a), and 22(a) of the Missouri
Constitution
State v. Self, 155 S.W.3d 756, 762 (Mo. banc 2005);
U.S. Const. amend. VI, XIV; and
Mo. Const. art. I, § 10 and 18(a).
25
ARGUMENT
I. The trial court abused its discretion in excluding impeachment
evidence against Hupp on the basis that there was no “direct
connection” between Hupp and the murder because the evidence
was admissible as impeachment evidence; regardless, evidence of
Hupp’s location at the scene of the crime at the time the crime
occurred was sufficient to admit all evidence regarding Hupp’s
motivation and opportunity to kill Mrs. Faria. The trial court’s
abuse of discretion violated Mr. Faria’s right to confrontation, a fair
trial, and due process as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution and
Article I, §§ 10, 18(a), and 22(a) of the Missouri Constitution.
A. Preservation of Error and Standard of Review
Prior to trial, the State filed a Motion in Limine Concerning the
Possible Defense that Someone Else committed this Crime (hereinafter
“State’s Motion in Limine”). (LF 189-91.) Defense counsel filed a Brief in
Opposition and argued against the State’s Motion in Limine at the motion
hearing on May 21, 2013. (Tr. 28-57, LF 169-78.) The trial court granted the
Motion. (Tr. 193.)
Prior and during trial, defense counsel attempted to introduce evidence
of the change in beneficiary to Hupp and Hupp’s inconsistent statements
26
regarding her movements and whereabouts the night of the murder but the
trial court excluded it on the basis of the State’s Motion. (Tr. 169, 224-28,
365, 864-66.) This argument is properly preserved as Point IX in Mr. Faria’s
Motion for New Trial. (Tr. 375-378.)
The trial court is vested with broad discretion to exclude or admit
evidence. State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009). A trial
court’s ruling constitutes an abuse of discretion if the “ruling clearly offends
the logic of the circumstances or appears arbitrary and unreasonable.” State
v. Hudson, 230 S.W.3d 665, 668 (Mo. App. E.D. 2007). Reversal is warranted
if the trial court’s error was prejudicial—“that is, [if] the errors are more
likely than not to have affected the outcome.” State v. Walkup, 220 S.W.3d
748, 757 (Mo. banc 2007). “The erroneous exclusion of evidence in a criminal
case creates a rebuttable presumption of prejudice, which the State may
overcome by proving that the error was harmless beyond a reasonable doubt.”
State v. Steinmann, 431 S.W.3d 495, 500 (Mo. App. E.D. 2014).
B. Discussion
1. Evidence regarding Hupp’s location on the night of the murder and the
change in beneficiary of the State Farm Policy from Mr. Faria to Hupp
was admissible as impeachment evidence because Hupp testified as a
witness for the State.
27
The trial court erred in allowing the State to use the “direct connection”
rule to protect its own witness from admissible impeachment evidence. “[T]he
credibility of witnesses is always a relevant issue in a lawsuit.” Mitchell v.
Kardesch, 313 S.W.3d 667, 675 (Mo. banc 2010). Because the “direct
connection” rule only excludes legally irrelevant evidence, it cannot be used to
exclude admissible impeachment evidence. Felder v. State, 88 S.W.3d 909,
914 (Mo. App. S.D. 2002) (holding that evidence which “can have no other
effect than to cast bare suspicion on someone other than the defendant is not
legally relevant”).
The “direct connection” rule only excludes evidence of a third party’s
motive or opportunity to commit the crime when that third party does not
testify for the State at trial.7 Each case cited by the State in its Motion in
7 See, e.g., State v. Rivers, 439 S.W.3d 862, 865 (Mo. App. E.D. 2014); Rutlin
v. State, 435 S.W.3d 126, 135 (Mo. App. E.D. 2014); State v. Marshall, 410
S.W.3d 663 (Mo. App. S.D. 2013); State v. Nash, 339 S.W.3d 500 (Mo. banc
2011); State v. Speaks, 298 S.W.3d 70 (Mo. App. E.D. 2009); State v. Lloyd,
205 S.W.3d 893, 902 (Mo. App. S.D. 2006); Williams v. State, 168 S.W.3d 433,
446 (Mo. banc 2005); State v. Manzella, 128 S.W.3d 602, 607 (Mo. App. E.D.
2004); Felder v. State, 88 S.W.3d 909 (Mo. App. S.D. 2002); Evans v. State, 85
S.W.3d 750, 753 (Mo. App. E.D. 2002); State v. Myers, 997 S.W.2d 26, (Mo.
28
Limine and during the motion hearing only applied the “direct connection”
rule to exclude evidence of motive and opportunity of an alternative
perpetrator who did not testify at trial. See State v. Bowman, 337 S.W.3d 679
(Mo. banc 2011); State v. Chaney, 967 S.W.2d 47 (Mo. banc 1998); State v.
Butler, 951 S.W.2d 600, 606 (Mo. banc 1997); State v. Wise, 879 S.W.2d 494
(Mo. banc 1994); State v. Schaal, 806 S.W.2d 659 (Mo. banc 1991); State v.
Wynn, 666 S.W.2d 862 (Mo. App. E.D. 1984).
In contrast, courts have specifically ruled that prior inconsistent
statements of a State’s witness that pointed to an alternative perpetrator
cannot be excluded even if there is no “direct connection.” In State v.
Woodworth, the Western District reversed and remanded on the ground that
the trial court erred in excluding the victim’s prior identification of someone
other than the defendant as the assailant. 941 S.W.2d 679 (Mo. App. W.D.
1997). The state argued, and the trial court agreed, that because the
statement would point the finger at a third party, it must be excluded
because no direct connection existed between the third party and the crime.
App. S.D. 1999); State v. Rousan, 961 S.W.2d 831, 848 (Mo. banc 1998); State
v. Kelley, 953 S.W.2d 73, 90 (Mo. App. S.D. 1997); State v. Shepherd, 903
S.W.2d 230, 232 (Mo. App. E.D. 1995); State v. Wolfe, 793 S.W.2d 580, 584
(Mo. App. E.D. 1990).
29
Id. at 690. However, the Court of Appeals rejected this argument and
determined that the prior inconsistent statement was admissible both for
impeachment and as substantive evidence.8 Id. Based on these findings, the
court determined that exclusion of the evidence was reversible error. Id. at
692.
Similarly, evidence that a State witness may have committed the crime
is admissible to prove that witness’s interest in the outcome of the case. In
State v. Winfrey, the Supreme Court of Missouri determined that evidence
tending to show the guilt of a witness testifying for the State was admissible
and relevant for impeachment purposes. 337 S.W.3d 1, 7 (Mo. banc 2011). In
that case, the defendant attempted to impeach a State witness with evidence
that pointed to the witness himself as the perpetrator of the crime. Id. at 6.
The state objected and the trial sustained the objection. Id. The Supreme
Court disagreed and explained that such evidence should not have been
excluded as it was “relevant for the non-hearsay purpose of impeaching [the
State’s witness]’s credibility because it would show his interest in testifying
against [the defendant].” Id. The Court continued, evidence tending to show
8 The appellate court also found a direct connection in this case but its
discussion regarding admissibility as impeachment evidence was
independent of its finding of that finding.
30
the State’s witness committed the crime reveals that the witness has an
“interest in testifying against [the defendant] to ensure [the defendant’s]
conviction and to divert attention away from [the State’s witness’s] own
involvement.” Id. (emphasis added). The Supreme Court found that the trial
court’s exclusion of the evidence and refusal to allow cross examination of the
witness was prejudicial and warranted reversal. Id.
Here, defense counsel was unable to properly impeach Hupp as the
trial court repeatedly excluded prior inconsistent statements and evidence of
interest against Hupp. The trial court prohibited defense counsel from
referencing Hupp’s inconsistent statements in its Opening Statement, and
eliciting them from Meyer or Chatten. (Tr. 224-228, 864, 1051-53.)
Meyer should have been allowed to testify regarding her conversation
with Hupp as those statements were admissible as prior inconsistent
statements. “If a witness professes not to remember if a prior statement was
made or not made, a proper foundation has been laid to admit the prior
inconsistent statement.” State v. Jones, 652 S.W.2d 880, 882 (Mo.App.1983)."
State v. Archuleta, 955 S.W.2d 12, 16 (Mo. App. W.D. 1997). However, the
State had argued, and the Court agreed that because Hupp testified that she
could not remember her conversation with Meyer, that Meyer could not
testify to what Hupp said. (Tr. 865.) The State’s argument directly
31
contradicted the case law, and Meyer’s recollection of what Hupp had said
should have been admitted.
Chatten’s testimony regarding Hupp’s cell site data was similarly
admissible as prior inconsistent statement. While the trial court itself
realized that the “direct connection” rule cannot exclude impeachment
evidence, this recognition came only after the State had finished its Case in
Chief. (Tr. 876.) Despite the trial court’s awareness of the case law, it upheld
the earlier ruling and continued to exclude impeachment evidence against
Hupp. (Tr. 876.) This included Chatten’s testimony during the Offer of Proof
regarding Hupp’s cell site data which directly contradicted Hupp’s earlier
statements that she was at the interstate, almost home, or out of Troy as she
called Mrs. Faria at 7:27 PM. (Tr. 360, 1071.)9 (Tr. 360.) As in Woodworth,
the evidence provided by Chatten should have been admitted as a State
witness’s prior inconsistent statement.
Defense counsel was also prevented from referencing the change in
beneficiary of the State Farm Policy which would demonstrate Hupp’s clear
financial interest in the outcome of the case. (Tr. 205, 369.) As in Winfrey,
9 Hupp’s claim that she made the call after leaving Troy and reaching the
interstate was itself an explanation for why she originally said the call was
made when she was home or almost home. (Tr. 360-61, App. 137.)
32
evidence tending to indicate Hupp as the murderer is admissible to
demonstrate her interest in ensuring Mr. Faria’s conviction. Because the
conviction of an innocent person allows the guilty party to escape from
justice, there is a clear interest for the perpetrator to testify against the
innocent. Because the excluded evidence was impeaching as prior
inconsistent statements and evidence of interest, the trial court erred in
applying the direct connection rule for exclusion.
2. Hupp’s testimony and cell site data established a “direct connection”
between Hupp and the murder because her presence at the scene of the
crime at the time the crime occurred indicates that another person
could have interacted with the victim at the scene of the crime.
Hupp’s testimony at trial and her cell site data established a sufficient
“direct connection” between Hupp and the death of Mrs. Faria. Generally,
evidence tending to show that another person had opportunity or motive for
committing the crime for which defendant is being tried is admissible if there
is evidence that directly connects the other person with the corpus delicti of
the crime.10 State v. Rousan, 961 S.W.2d 831, 848. (Mo. banc 1998). The
“direct connection” rule is meant to exclude “evidence which has no other
10 A more detailed discussion of the “direct connection rule” is included in
Part I.B.2.
33
effect than to cast bare suspicion on another.” State v. Schaal, 806 S.W.2d
659, 669 (Mo. banc 1991). If there is evidence that “tends clearly to point to
someone other than the accused as the guilty person,” evidence regarding
that person’s motive and opportunity becomes admissible. State v. Nash, 339
S.W.3d 500, 513 (Mo. bacn 2011) (internal quotes omitted).
Evidence that another person interacted with the victim at the scene of
the crime is sufficient to establish a direct connection. In State v. Butler, the
Supreme Court of Missouri reviewed a post-conviction challenge by James
Butler of his conviction for the murder of his wife. 951 S.W.2d 600 (Mo. banc
1997). Butler offered evidence that a car matching the description of his
wife’s nephew’s was seen leaving the scene of the crime and that his nephew
attempted to sell a ring similar to his wife’s after her death. Id. at 607. The
Supreme Court held that a direct connection between the nephew and the
murder was established because the evidence connected the nephew to the
scene of the crime at the time the crime occurred. Id. Had that evidence been
presented, “an abundance of other evidence showing [the nephew] had motive
and opportunity to commit the crime would have been admissible.” Id. at 609.
The Court concluded that Butler was prejudiced by the exclusion of this
evidence because “the state's case was entirely circumstantial” and “there
was no physical evidence, other than fingerprints on the victim’s car, directly
connecting Butler to the crime.” Id. at 610.
34
Six years after Butler, the Supreme Court of Missouri again declared
that “evidence that could indicate another person's interaction with the
victims at the crime scene” establishes a sufficient “direct connection” to
allow evidence pointing to an alternative perpetrator. State v. Barriner, 111
S.W.3d 396, 400 (Mo. banc 2003), as modified on denial of reh'g (Aug. 26,
2003). In Barriner, the trial court had excluded physical evidence that was
found at the crime scene. Id. at 400-01. The Court found that evidence of
another person interacting with the victim at the crime scene is “more than
the mere motive or opportunity of another person” and “was not disconnected
or remote.” Id. at 400. “Given the high probative value of this evidence and
the minimal costs of its admission, it was a clear abuse of discretion to
exclude it” and the defendant was prejudiced. Id.
In State v. Sanders, the defendant was convicted of promoting child
pornography for taking certain photographs of the victim. 126 S.W.3d 5 (Mo.
App. W.D. 2003). Prior to trial, the state filed a motion in limine to prevent
the defense from evidence that someone else other than defendant took those
photographs. Id. at 19. The motion was granted over objection by the defense
counsel and similar photographs of another child and testimony by that child
that it was not the defendant who took those pictures was excluded. Id.
Following Barriner, the Western District determined that the evidence “could
indicate another person’s interaction with the victim at the crime scene” and
35
thus was improperly excluded. Id. at 21-22. Even though the evidence
excluded in Sanders was “somewhat more indirectly exculpatory than the
hair evidence in Barriner, the photos and related testimony offered by
appellant constituted material evidence of another person's connection to the
crime with which appellant was charged and convicted.” Id. at 22. Finding
that the state failed to rebut the presumption of prejudice, the court reversed
and remanded the case. Id. at 23.
Akin to the evidence excluded in Butler, Barriner, and Sanders, Hupp’s
cell site data suggests that another person besides Mr. Faria interacted with
the victim at the crime scene. The State alleged that the murder occurred
after 7:20 and before 9:41 PM. (LF 348.) Lead medic Quattrocchi and Captain
Shramek both testified that the coldness and stiffness of Mrs. Faria’s body as
well as the coagulated blood signals that Mrs. Faria died before 7:50 PM. (Tr.
450-57, 879-84.) This estimation was undisputed,11 putting the time of death
between 7:20 and 7:50 PM, where Hupp testified and cell site data shows, she
11 While the State attempted to use the open door to explain the condition of
Mrs. Faria’s body, it is well known in medical literature that low
temperatures actually delay the onset of rigor mortis. See 40 Am. Jur. Trials
501, § 22 (Originally published in 1990).
36
was at the Faria house.12 Additionally, had defense counsel been able to
question Hupp extensively on her prior inconsistent statements, he could
have referred to Hupp’s calculation that she stayed at 130 Sumac for a
“minimum of 45 minutes” after 7 PM. (App. A111, A113.)
Hupp movements within the Faria home further strengthens the direct
connection. Although her statements changed over time, her trial testimony
indicated she entered the main bedroom, kitchen, and living room at various
times: the exact three rooms where crime evidence was found. (Tr. 343.)
Hupp’s testimony and cell site data established a direct connection
because it indicated that she could have interacted with the victim at the
crime scene. Consequently, a sufficient connection was established to
introduce the “abundance of evidence” demonstrating Hupp’s opportunity and
motive to commit the crime. Butler, 951 S.W.2d at 609.
3. Mr. Faria was prejudiced by the trial court’s exclusion of evidence
regarding Hupp
“[T]he erroneous exclusion of evidence in a criminal case creates a
rebuttable presumption of prejudice.” State v. Walkup, 220 S.W.3d 748, 757
12 It should also be noted Mr. Faria has four alibi witnesses and cell site data
establishing his location as being at least 30 minutes away by car during this
time as well.
37
(Mo. banc 2007). “The state may rebut this presumption by proving that the
error was harmless beyond a reasonable doubt.” Id. “In assessing whether the
exclusion of evidence was harmless beyond a reasonable doubt, the facts and
circumstances of the particular case must be examined, including the nature
of the charge, the evidence presented, and the role the excluded evidence
would have played in the defense's theory.” Felder v. State, 88 S.W.3d 909,
914 (Mo. App. S.D. 2002). “If the proof of defendant's guilt was overwhelming,
the state will have rebutted the presumption of prejudice.” State v. Boyd, 143,
S.W.3d 36, 46-47 (Mo. App. W.D. 2004).
a. The evidence against Mr. Faria is weak and circumstantial.
Without overwhelming proof of the defendant’s guilt, the exclusion of
admissible evidence is reversible error. In Barriner, the Supreme Court of
Missouri found an officer’s testimony relating the defendant’s confession
while all other evidence was circumstantial is not overwhelming proof of
guilt. State v. Barriner, 111 S.W.3d 396, 401 (Mo. banc 2003). The Court
specifically noted the lack of eyewitnesses and physical evidence indicating
that the defendant committed the crime. Id. Based on those factors, the
defendant was prejudiced. Id.
The current case against Mr. Faria is even less “overwhelming” than
Barriner. Mr. Faria never altered from the consistent account of his
movements the night of the murder from running errands until he called 9-1-
38
1. No eye witnesses or physical evidence exist in this case either as no blood
was ever found on Mr. Faria’s body or the clothes he was wearing. (Tr. 688-
90, 732.)
Moreover, there is an abundance of evidence that Mr. Faria was at
least 30 minutes away at the time of the crime. Based on Mrs. Faria’s
daughter’s calls and the estimated time of death by both State and defense
witnesses, the murder occurred sometime between 7 and 8 PM. (Tr. 290, 450-
52, 887.) Witnesses Corbin, Hulion, Sweeney, and Bach all testified that from
6 to 9 PM, Mr. Faria was with them at Corbin’s house. Additionally, the
Arby’s receipt found in Mr. Faria’s car was time-stamped 9:09 PM. (App.
A136.) Given the 30 minute drive from Arby’s to 130 Sumac, Mr. Faria’s
phone’s connection to the tower near his house at 9:37 PM and his 9-1-1 call
at 9:41 PM make perfect logical sense. (Tr. 1024-26.)
Against all of this evidence, the only evidence implicating Mr. Faria is
his slippers with blood stains seen in the bedroom closet. However, anyone at
the scene of the crime could have bloodied or tossed Mr. Faria’s slippers in
the closet. The fact that the slippers were laying on top of the pile of clothes
in plain view directly facing the closet door instead of hidden runs against the
State’s theory that Mr. Faria carefully planned and executed an intricate and
precise plan with four accomplices. Because there was a reasonable
probability that the trial court’s exclusion of the evidence regarding Hupp
39
affected the outcome of the trial, Mr. Faria was prejudiced by the court’s
error.
b. The excluded evidence supported the defense theory.
When excluded evidence would have buttressed the defense theory, the
defendant is thereby prejudiced and reversal is warranted. The court held in
Sanders, that because the defendant’s theory was that he was framed by his
ex-wife, exclusion of evidence implicating his ex-wife was prejudicial because
it greatly damaged the defense theory. Sanders, 126 S.W.3d at 24 (Mo. App.
W.D. 2003). Id. The court found that the likelihood of prejudice was
compounded by the fact that “the prosecutor took full advantage of the trial
court's rulings forbidding appellant from presenting the excluded evidence . .
. during closing argument” in referencing the lack of evidence implicating
defendant’s ex-wife. Id. at 25. The Western District found that the trial court
“prevent[ed] the introduction of evidence pertinent to the defense, thus
denying appellant a meaningful opportunity to submit to the jury in his
defense all of the relevant, material facts bearing upon the issue of his guilt
or innocence.” Id.
Identical to Sanders, the excluded evidence here was significant to Mr.
Faria’s defense and the State took full advantage of the trial court’s ruling.
Alibi defenses are more palatable to the jury when there is evidence pointing
to an alternative perpetrator. The State recognized this as much in filing its
40
Motion in Limine. The specific details here point to the murderer as someone
who was close to Mrs. Faria and familiar with her home. Consequently, the
inability of the defense to present evidence tending to point to another party
who fit the bill deeply undercuts the alibi defense and prevented Mr. Faria
from adequately presenting his case.
The prosecutors in this case took advantage of the trial court’s rulings
to an even greater extent than the prosecutor in Sanders. Here, the State
took advantage of the last opportunity to speak to the jury by proposing a
false dilemma that pointed to a lack of evidence pointing to another killer.
With Prosecutor Askey’s question “are we to assume that this is a ghost
killer,” the State framed the jury’s decision as a binary choice and that
acquitting Mr. Faria would mean that a supernatural being was the
murderer. (Tr. 1145.) Because the excluded evidence would have given the
jury an alternative perpetrator Mr. Faria was prejudiced by the trial court’s
error.
II. The trial court abused its discretion in refusing to grant a mistrial
at the request of Mr. Faria after the State intentionally referenced
inadmissible polygraph exam evidence and this violated Mr. Faria’s
right to confrontation, a fair trial, and due process as guaranteed by
the Fifth, Sixth, and Fourteenth Amendments to the United States
41
Constitution.
A. Preservation and Standard of Review
This claim was properly preserved during trial and in the Motion for
New Trial. (LF 370-80.) Defense counsel immediately objected and requested
a mistrial when the State asked Schimweg, “Wasn't the purpose to go out and
reinterview the defendant's alibi witnesses specifically to ask them to take a
polygraph?” (Tr. 493-94.) The court denied the request for mistrial. (Tr. 497.)
This issue is properly preserved as Point VII.3 in Mr. Faria’s Motion for New
Trial. (LF 374.)
“A mistrial is a drastic remedy, granted only in extraordinary
circumstances.” State ex rel. Kemper v. Vincent, 191 S.W.3d 45, 49 (Mo. banc
2006). However, a trial court may not abuse its discretion in refusing to grant
a mistrial. State v. Wheeler, 219 S.W.3d 811, 815 (Mo. App. S.D. 2007). “An
abuse of discretion exists only if the trial court's ruling clearly offends the
logic of the circumstances or appears arbitrary and unreasonable.” State v.
Hudson, 230 S.W.3d 665, 668 (Mo. App. E.D. 2007).
B. Discussion
1. The trial court abused its discretion in refusing to grant a mistrial
because a mistrial is warranted if the prosecutor intentionally and
directly refers to polygraph evidence with the intention of using the
42
willingness of the prospective exam taker as an attack on the
prospective exam taker’s credibility.
The trial court abused its discretion in refusing to grant a mistrial
because the State’s explicit reference to polygraphs directly violated the
Missouri rule governing polygraph evidence. Polygraph examinations are
inadmissible as evidence in the State of Missouri in criminal trials. State v.
Biddle, 599 S.W.2d 182, 191 (Mo. banc 1980). In addition to polygraph
results, evidence of “offer or willingness to take a polygraph examination” are
inadmissible as well. State v. Martinelli, 972 S.W.2d 424, 435 (Mo. App. E.D.
1998); see State ex rel. Kemper v. Vincent, 191 S.W.3d 45, 49 (Mo. banc
2006). The same prohibition holds true for polygraph evidence regarding all
witnesses and is not limited to polygraphs of the defendant. See State v.
Pollock, 735 S.W.2d 179, 182 (Mo. App. S.D. 1987) (upholding trial court’s
exclusion of polygraph evidence of a State’s witness under the general
inadmissibility of polygraphs).
A State’s direct and intentional reference of polygraphs with the
purpose of impeaching the credibility of a witness warrants a mistrial. In
State v. Rios, the Western District held that inadvertent mentions of
polygraph volunteered by the state’s witness did not necessitate a mistrial
because “the State did not intend for [the witness] to reference the polygraph
examination.” 314 S.W.3d 414, 424-25 (Mo. App. W.D. 2010). On the other
43
hand, when the State intentionally references polygraph exams to impeach
the credibility of the witness who either took or refused the exam,13 the court
must grant a mistrial. See State v. Collings, No. SC92720, 2014 WL 4086313,
at *14 (Mo. Aug. 19, 2014), reh'g denied (Oct. 28, 2014) (because “the State
did not seek to admit the test results to demonstrate the truth of the matter
asserted or to impeach [the witness’s] credibility” but to demonstrate the
witness’s understanding of waiver and consent, no mistrial was required).
Here, the State purposefully referenced polygraph evidence in its
question to impeach the credibility of Mr. Faria’s alibi witnesses. (Tr. 493-
496.) The reference was not inadvertent but intentional. During the bench
discussion after defense counsel’s objection, the State explained that its direct
reference of polygraph evidence was to point the juror to “the fact that [Mr.
Faria’s alibi witnesses] were not willing to [take a polygraph exam].” (Tr.
13 In contrast, inadvertent references to polygraphs by witnesses are not so
prejudicial to require a mistrial. See, e.g., State v. Stewart, 265 S.W.3d 309,
316 (Mo. App. S.D. 2008) (finding that witness's confusion by question which
resulted in inadvertent reference to polygraph did not constitute prejudice
warranting a mistrial); State v. Weston, 912 S.W.2d 96, 101 (Mo. App. S.D.
1995) (finding that no prejudice where police witness inadvertently referred
to polygraph test when asked when he got involved in the investigation).
44
494.) Because willingness to take a polygraph may not be used to attack
credibility, the State’s direct reference is even more pernicious. Because the
State directly violated the rule on admissibility of polygraph evidence, the
trial court’s refusal to grant a mistrial is clearly against the logic of the
circumstances before the court and is so arbitrary and unreasonable as to
shock the sense of justice and indicate a lack of careful consideration.
2. The State’s intentional reference to polygraph exams prejudiced Mr.
Faria because that reference impermissibly cause the jury to question
the credibility of the alibi witnesses and the State had no good faith
basis for that question.
The State’s intentional assertion that the alibi witnesses were asked to
take polygraph exams greatly prejudiced Mr. Faria in two ways that could
not be cured by the court’s instruction for the jury to disregard the question.
First, the suggestion that Mr. Faria’s witnesses were subject to
polygraph exams and nondisclosure of results caused the jury to question the
credibility of the alibi witnesses. The witnesses were consistent throughout
their interviews, depositions, and trial, and that testimony was fully
corroborated by Mr. Faria’s cell site data as well as various receipts and
third-party surveillance videos. (Tr. 888-997; App. 129-36, 195-97.) The State
presented no evidence disputing the alibi although its theory was the far-
fetched supposition that all of the witnesses were lying. (Tr. 1100-14.) As no
45
evidence was presented to attack the credibility of the witnesses, a direct
allegation that the alibi witnesses were asked to take polygraph exams with
the inference that they refused to take the exam was extremely prejudicial.
Second, the State lacked good faith basis to ask this question. As
defense counsel pointed out during the discussion at the bench, there is
nothing in the discovery to indicate that Mr. Faria’s alibi witnesses were
offered or refused to take a polygraph exam. (Tr. 494.) Defense counsel’s
argument is supported by the re-interview police reports of the alibi
witnesses which is similarly silent on this issue. (App. 195-97). The limiting
instruction offered by the court could not and did not cure the prejudice of the
State’s intentional suggestion of such nonexistent evidence. It follows that
there is reasonable likelihood that the State’s reference to polygraph evidence
with the intent of attacking the credibility of the alibi witnesses affected the
outcome of the trial and prejudiced Mr. Faria.
III. The State violated Brady v. Maryland in failing to disclose
impeachment evidence regarding State witnesses, specifically: (1)
that the State pressured Hupp to establish the revocable trust for
Mrs. Faria’s daughter for Mr. Faria’s trial but allowed Hupp to
perjure during the Offer of Proof when she denied that was the
motivation; and (2) that State witness, Officer Michael Lang’s has
intense romantic and amorous attachment to Prosecutor Askey. The
46
State’s intentional concealment violated Mr. Faria’s right to
Confrontation, Fair Trial, and Due Process as guaranteed by the
Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and Article I, §§10 and 18(a) of the Missouri
Constitution.
A. Standard of Review
A prosecuting attorney has a broad duty “to disclose evidence in [his or
her] possession that is favorable to the accused and material to guilt or
punishment.” State v. Goodwin, 43 S.W.3d 805, 812 (Mo. banc 2001). Under
Brady v. Maryland, 373 U.S. 83, 87, (1963), the State violates due process
where it withholds evidence that is “favorable to the defendant because it is
exculpatory or impeaching, the evidence was suppressed by the State either
willfully or inadvertently, and the suppression has prejudiced the defendant.”
State v. Reed, 334 S.W.3d 619, 626 (Mo. App. E.D. 2011).
When a conviction is challenged on constitutional grounds de novo
review is required. Baldwin v. Director of Revenue, 38 S.W.3d 401, 405 (Mo.
banc 2001).
B. Discussion
1. The State violated Mr. Faria’s right to due process in failing to disclose
that Hupp had created the revocable trust for the purposes of trial
47
under immense pressure from the State and allowed Hupp to testify to
the contrary during Offer of Proof.
a. Newly discovered evidence that Hupp had created the revocable
trust for the purposes of trial under immense pressure from the
State, and specifically Prosecutor Askey
After the criminal trial against Mr. Faria, Hupp revoked the trust she
had set up for Mrs. Faria’s daughters and the daughters filed a civil suit.
During the deposition taken for the civil case, Hupp states that she had
created the trust only under “bombardment” and “a lot of pressure on [her]
from the detectives and the attorney general and the whole side that was
representing [Mrs. Faria].” (App. A171.) Hupp specifically pointed to
Prosecutor Askey as the source of the pressure although it was enforced
“through Detective Carrick.” (App. A172.) Hupp’s bank account reflects that
she transferred $100,000 to the trust one week before the trial, and
transferred all but $300 back into her own account within two weeks after
the trial. (App. A176-78.)
b. The State’s failure to disclose the information that Hupp created
the revocable trust for the purposes of trial despite her testimony
to the contrary during the Offer of Proof violated Brady because
it was favorable impeachment evidence, material, and prejudicial
with regards to the court’s consideration of the Offer of Proof
48
Under Brady, the State is required to disclose, as part of impeachment
evidence, information that the State “had encouraged [a witness] to testify
falsely.” Engel v. Dormire, 304 S.W.3d 120, 128-29 (Mo. banc 2010). The
State’s duty to disclose favorable information extends to information and
evidence in the hands of investigative personnel and agencies. Giglio v.
United States, 405 U.S. 150 (1972). The prosecution has a “duty to learn of
any favorable evidence known to others acting on the government's behalf in
the case.” Kyles v. Whitley, 514 U.S. 417, 437 (1995).
Here, there is clear indication that the State had encouraged Hupp to
create the trust for its own case and Hupp herself specifically references
Prosecutor Askey as the source of that pressure that caused her to create the
trust. Hupp denies that she created the trust for trial purposes during the
Offer of Proof, bit the State made no remarks correcting that statement
either during or after the testimony. Hupp indicated that Detective Carrick
was the proxy by which Prosecutor Askey pressured her and thus, the State
cannot feign ignorance.
Evidence is material if there is a reasonable probability that the result
would have been different if the evidence had been disclosed. Taylor v. State,
262 S.W.3d 231, 243 (Mo. banc 2008). Here, the statement was made during
an offer of proof. However, had it been revealed to the jury, there is no doubt
as to the materiality and prejudicial effect it would have had.
49
2. The State violated Brady in failing to disclose impeachment evidence
regarding Officer Michael Lang who had an intense amorous
attachment to Prosecutor Askey during the course of the case.
a. Newly discovered evidence indicating that regarding Michael Lang.
During defense counsel’s preparation of Mr. Faria’s direct appeal,
Defense counsel received a copy of an email allegedly written by Officer Lang
to Prosecutor Leah Askey dated September 5, 2011, just three months prior
to Lang’s participation in the case. In the email, Lang writes:
Right, wrong or indifferent, I love you. But this is not a puppy
dog, crush on the hot girl in high school kind of love, this is an
epic, shit stories are written about kind of love. . . through all of
it, we love each other and our paths crossed for some reason.
I want you. I love you. I miss you. I need you, Leah.
I will do my best to be everything you need.
(App. 200-01.)
b. The State’s withholding of the information regarding Michael Lang
violated Brady as it was favorable, material, and prejudicial because
his willingness to do everything Prosecutor Askey asked is
indicative of bias and interest
50
“Under the disclosure requirements of Brady, the prosecutor is required
to disclose impeachment evidence” include evidence of bias or interest.
Barton v. State, 432 S.W.3d 741, 761 (Mo. banc 2014). While the State
refused to confirm or deny the authenticity of this email, if the substance of
the email is true, withholding of information regarding the relationship of
Prosecutor Askey and Lang constituted a violation of Mr. Faria’s rights to
due process. These statements by Lang demonstrate bias and interest
impeachment evidence that was required to be disclosed.
“In determining whether the suppressed impeachment evidence was
material, the reviewing court must evaluate not only the ways that [the
witness] was impeached, but also the ways that he was not impeached that
would have been available had [the Brady claim] evidence been disclosed.”
State ex rel. Engel v. Dormire, 304 S.W.3d 120, 128 (Mo. banc 2010).
This evidence was material because there was a reasonable possibility
that the proceedings would have been different as Lang’s testimony was used
by the State to attack the credibility of the witnesses. On direct examination,
Lang testified that there was an outgoing call to voicemail from Mr. Faria’s
cell phone at 8:57 PM although the records from the phone company did not
reveal such a call. Prosecutor Askey used this testimony during closing to
attack the credibility of the alibi witnesses who said they did not remember
Mr. Faria making a call that night. (Tr. 1145.) Had the defense been made
51
aware of the relationship between Lang and Prosecutor Askey, defense
counsel would have been able to impeach Lang’s credibility with evidence of
bias or interest which it did not have at trial. Given the weak case against
Mr. Faria, Lang’s testimony was especially prejudicial. Consequently, if such
a relationship between Prosecutor Askey and Officer Lang existed, the State
violated Mr. Faria’s rights to due process by withholding that information.
IV. The trial court plainly erred in not declaring a mistrial sua sponte
during the State’s Closing Argument because the State’s closing
argument detailing its theory of the case contained numerous and
repeated assertions of personal belief as fact that were not
reasonably drawn from the evidence and the State argued facts
contrary to the evidence possessed by the State and the State
intentionally violated its own Motion in Limine. The trial court’s
error violated Mr. Faria’s right to confrontation, a fair trial, and due
process as guaranteed by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and Article I, §§ 10,
18(a), and 22(a) of the Missouri Constitution.
A. Preservation and Standard of Review
While defense counsel did not object during closing argument, this
issue is included in Mr. Faria’s Motion for New Trial. (LF 378-79.) Because
52
the claim was not preserved by objection, this Court should review for plain
error under Missouri Supreme Court Rule 30.20.
“The trial court has broad discretion in controlling closing arguments.”
State v. Matthews, 790 S.W.2d 271, 272 (Mo. App. E.D. 1990.) “[C]losing
arguments must not go beyond the evidence presented.” State v. Deck, 303
S.W.3d 527, 543 (Mo. banc 2010) (internal quotation omitted). “A conviction
will be reversed based on plain error in closing argument only when it is
established that the argument had a decisive effect on the outcome of the
trial and amounts to manifest injustice.” State v. Edwards, 116 S.W.3d 511,
536-37 (Mo. banc 2003).
B. Discussion
1. Prosecutor Askey repeatedly and intentionally asserted unfounded
personal belief as fact into her closing argument and presented fact
that was contrary to the evidence
a. Prosecutor Askey’s Closing Argument
The primary statements at issue during the State’s closing argument
are the following:
I’m going to tell you how I think it happened.
I think--How did [Mr. Faria] do it? He decided that this would be

the ultimate role play. The ultimate game. The ultimate way to
stage, but it required all hands on deck.
53
It required a pretty good script, one that could be committed to
memory and one that could be anticipated. Anticipation of every
move.
Now I'm not suggesting that he knew all along that December
27th was going to be the day, but I am suggesting that months
before, maybe years before, he had the idea and I think he
brought it to his friends.
I think he talked about it. How would we do this? How would the
ultimate role play happen?
...
And so the ball starts rolling. The momentum starts gaining. He
makes all of these stops so that he can establish an alibi. Not a
bad idea.
...
He laid it out. Cancelled dinner with his Mom because he had
lots of errands to run. You heard of the errands that he ran. He
got down there and he said, tonight's the night.
...
He leaves his phone and he heads back to Troy. He comes into
the house.
...
And why doesn't he have blood on his clothes? Because I don't
think he was wearing clothes. I think he walks past her in the
kitchen. I think he goes around the refrigerator to the butcher
block where he knows it is.
...
I think he gets the steak knife out in his own kitchen. I think he
gets this knife out and he comes around to where she's lying on
the sofa, on this sofa.
I think he comes around the corner and I think he's really hopeful
that he's going to stab her one time in the neck and it's going to
look like a suicide.
...
I think he stood over top of her. He stabbed her in the neck.
When she moved, he stabbed her with such force in her bicep as
she lay on her side that it went through her bicep and into her
lung.
54
I think she, at some point, obviously gets up. She sits up and she
struggles somewhat, but not much. Luckily for her, I would
imagine that she died within a minute. But it was personal. It
was passionate.
He gets her on the ground and, at that point, I think that the
overall feeling is, oh, no, this went horribly wrong. Reality sets
in. Now what do I do?
What do I do? He goes back, takes a shower, gets any evidence off
of him that he has and then he comes out.
...
At some point, either he goes down to Wentzville, Lake St. Louis
and picks up his phone, gets his Arby's bag and heads back to
Troy to call in the suicide or I would submit to you that Brandon
Sweeney is the one that goes to Arby's, gets the receipt, then
drives across the street to Jack in the Box, just about five
minutes later is the time on those receipts.
Gets his receipt because he wants to cover his own behind and
then he drives to Troy, brings the defendant his phone, and just
as he's bringing the phone so that he can put the receipt in the
other car, defendant's calling, on the land line, 9-1-1.
(Tr. 1102-08.)
b. Prosecutor Askey’s argument during the State’s Closing
Argument that the four alibi witnesses were complicit in the
murder of Mrs. Faria was improper and resulted in manifest
injustice.
Prosecutor Askey made various remarks that vaulted beyond the
boundaries of reasonable inferences from the evidence. “It is well-settled that
during closing arguments, a party may argue inferences justified by the
evidence, but not inferences unsupported by the facts.” Rutlin v. State, 435
55
S.W.3d 126, 134 (Mo. App. E.D. 2014) (internal cite omitted).While a
prosecutor may argue personal opinion in the guilt or innocence of a
defendant, “[a] prosecutor's statement of personal opinion or belief not drawn
from the evidence is improper.” State v. Storey, 901 S.W.2d 886, 901 (Mo.
banc 1995).
In Rutlin v. State, 435 S.W.3d 126 (Mo. App. E.D. 2014), the defense
counsel attempted to argue during closing that a third party had planted a
weapon under the bed of the defendant based on the fact that the third party
was alone and had access to the defendant’s bed. In excluding such argument,
the trial court characterized defense counsel’s inference as “pure and total
speculation” as there was no evidence to support that theory. Id. at 134. The
court of appeals upheld the conviction, and the trial court’s decision “in
confining closing arguments to inferences supported by the evidence” was
likewise affirmed. Id. at 135.
Prosecutor Askey’s allegations that Mr. Faria and the four alibi
witnesses had been colluding for years and had all been active participants in
helping carry out a murder is a similar “pure and total speculation” that is
unsupported by the evidence.14
14 Furthermore, the “direct connection” rule should bar the State from
arguing that the four alibi witnesses were complicit in the murder of Mrs.
56
An “inference” is a conclusion drawn by reason from facts
established by proof; a deduction or conclusion from facts or
propositions known to be true. A . . . conjecture . . . is an idea or a
notion founded on the probability that a thing may have
occurred, but without proof that it did occur.”
State v. Foster, 930 S.W.2d 62, 64 (Mo. App. E.D. 1996) (internal
quotations omitted). Here, there was no proof offered to support Prosecutor
Askey’s accusations that the alibi witnesses and Mr. Faria were all complicit
in the murder of Mrs. Faria. Nor was there evidence that Mr. Faria returned
to 130 Sumac at any time prior to 9:37 PM. Moreover, the State neglected to
pursue any evidence that could have supported its allegations. Not once
during the cross examination of the alibi witnesses did the State ask whether
any of them had been approached by Mr. Faria regarding an “ultimate role
play.” Nor did the State question if they were directly involved, as alleged by
the State in its closing. Sweeney testified that he dropped Bach off at their
apartment and proceeded to Jack-in-the-Box to buy dinner after which he
returned to the apartment.15 (Tr. 959, 962.) During the State’s cross
examination of Sweeney, Prosecutor Hicks asks about Sweeney’s trip to Jack-
in-the-Box but never asked whether Sweeney also went to Arby’s or then
Faria as there simply was no evidence directly connecting any of them to the
crime.
15 This Jack-in-the-Box is near the Arby’s that Mr. Faria’s receipt is from.
57
delivered the receipt to Mr. Faria. (Tr. 970.) This line of questioning might
have supported the State’s closing argument had Sweeney answered in the
affirmative but was neglected by Prosecutor Hicks.
All of the evidence actually adduced at trial run counter to the
statements by Prosecutor Askey. All four alibi witnesses testified that Mr.
Faria was at Corbin’s house with them from 6 until 9 PM and that he never
left during this time. Sweeney also testified repeatedly that he drove back to
his apartment after buying dinner at Jack-in-the-Box. (Tr. 959, 962.) In the
absence of any evidence that this was a plan, the inference that four
individuals helped plan this murder “is extremely strained and speculative at
best.” State v. Whalen, 49 S.W.3d 181, 185 (Mo. banc 2001). Because the
State may not argue speculation but only reasonable inferences drawn from
the evidence, the statements by Prosecutor Askey woven through the entirety
of the State’s closing argument were improper.
The State’s repetition of personal opinion not based in evidence had a
direct effect on the jury’s decision and resulted in manifest injustice to Mr.
Faria. State v. Walter, No. WD76655, 2014 WL 4976913, at *18 (Mo. App.
W.D. Oct. 7, 2014). First, as explained above, the case against Mr. Faria was
hardly overwhelming. There was no direct evidence implicating Mr. Faria
and strong alibi evidence that he was elsewhere at the time of the murder,
corroborated by witnesses, cell site location, surveillance videos, and receipts.
58
In fact, the precise target of these statements was Mr. Faria’s strong
alibi evidence. The State was unable to present evidence that actually
disputed Mr, Faria’s alibi, but resorted to conjecture in closing statements to
attack that evidence when defense had no opportunity to respond. By alleging
complicity between Mr. Faria and the alibi witnesses, Prosecutor Askey
presented the jury with personal speculation aimed at explaining why such
strong alibi evidence existed. When the State chose not to pursue any avenue
of questioning to buttress its theory, it should not have been allowed to refute
the strong evidence presented by the defense on unreasonable and
unsupported guesswork alone. Allowing the State to conjure incredible
theories to explain its lack of evidence is deeply problematic to a system built
on the constitutional assurances of fair trial and reasonable inferences.
Worse, these irresponsible statements made up the heart of the State’s
theory against Mr. Faria. This is not a situation of a passing reference to the
prosecutor’s personal opinion unsupported by evidence in a case full of
concrete evidence of guilt. Rather this is a case where the narrative of how
the State believes the crime was committed was entirely constructed of
irrational hypotheticals. In describing the State’s theory, Prosecutor Askey
uses the phrase “I think” over a dozen times to assert her unfounded belief of
how the crime was admitted. At one point in the monologue, she used “I
think” to start seven consecutive and unsubstantiated suspicions. (Tr. 1105-
59
06.) In light of the vacuum of evidentiary basis to support these statements,
the repetition, sheer amount of conjecture, and Prosecutor Askey’s repeated
assertion of her own opinion as fact amounts to improper testimony by the
prosecutor.
Manifest injustice is more likely to have occurred where “[the
appellant’s] connection with the crime were in sharp dispute[,] [a]ppellant
strenuously denied his guilt, [and] offered evidence from substantial citizens
of an alibi.” State v. Dixon, 463 S.W.2d 783, 785 (Mo. banc 1971). The dearth
of proof against Mr. Faria, the similar lack of evidence disputing Mr. Faria’s
alibi, and the importance of these statements in the State’s theory of the case
demonstrate that there was a decisive effect on the jury’s decision and
resulted in manifest injustice.
c. Prosecutor Askey’s claim that Mr. Faria showered to wash blood
off his body contradicts discovery documents provided by the
State.
Within those statements, Prosecutor Askey also asserted a fact that
was contrary to the evidence she possessed. “A prosecutor may not argue
facts outside of the record” because a “prosecutor arguing facts outside the
record is highly prejudicial.” State v. Storey, 901 S.W.2d 886, 901 (Mo. banc
1995).
60
Here, Prosecutor Askey went a step further and argued not only facts
outside the evidence, but facts that was contrary to evidence. The State
explained the lack of blood on Mr. Faria’s body with the speculation that Mr.
Faria showered after the supposed murder. (Tr. 1107.) This is contrary to the
evidence possessed by the State. During the trial, Michael Merkel testified
that the drain pipes in the bathroom were tested for blood and claimed to be
unaware of the results. (Tr. 720-21.) However, the State provided reports
during the discovery process that clearly indicated there was no evidence of
blood in any of the pipes removed from the Faria residence on December 27,
2011. (App. 121.) Because a prosecutor’s argument outside the evidence is
highly prejudicial, a prosecutor’s argument of facts contrary to the evidence
she possesses constitutes manifest injustice.
2. The State violated its own motion in its closing remark by asking
whether this crime was committed by a “ghost killer” and that violation
resulted in manifest injustice
a. Prosecutor Askey’s question regarding a “ghost killer” violated
the State’s Motion in Limine
Just before closing arguments, the court directed to both parties that
the implication of the State’s Motion in Limine was that neither party can
reference someone other than Mr. Faria committing the crime. (Tr. 1088-89.)
The following discussion occurred:
61
THE COURT: [I]n closing argument, neither party will make any
reference to that someone else could have committed this incident
or who else could have other than the accused.
...
[STATE]: I think it's fair for us to argue, look at the evidence that
does point to him. We believe he's the one who did this based
upon the evidence and that's --
THE COURT: I mean, that's fair game anyway. What they are
just saying is you wouldn't make statements that said, by the
way, who else could have done it? That's all I'm saying.
[STATE]: [We’re] not going to ask that rhetorical question.
THE COURT: Okay.
(Tr. 1089-91.) Despite the State’s assurances, Prosecutor Askey does in fact
ask the rhetorical question “Are we to assume that this is a ghost killer?” (Tr.
1145.)
This question was an evident, obvious, and clear violation of the trial
court’s order pursuant to the State’s Motion in Limine. The trial court was
clear that the State’s Motion in Limine prohibited the State from asking a
rhetorical question that referenced the lack of a reasonable alternative
perpetrator. (Tr. 1090.) Yet, the very effect of Prosecutor Askey’s question is
identical, as it essentially asks the jury, what other reasonable alternative
perpetrator is there? Because Prosecutor Askey’s question is a mere
reformulation of the type of question prohibited by the trial court pursuant to
the State’s Motion in Limine, the State’s question was an evident, obvious,
62
and clear error and the trial court erred in not taking immediate corrective
action.
The State’s deliberate reference to a lack of evidence supporting the
defense’s position on an issue constitutes manifest injustice because that
evidence was excluded at the State’s own motion. See State v. Weiss, 24
S.W.3d 198 (Mo. App. W.D. 2000) (reference to lack of evidence of bank
records that previously had been excluded on state's motion was improper);
State v. Luleff, 729 S.W.2d 530 (Mo. App. E.D. 1987) (reference to defendant's
failure to produce receipt for stolen property he claimed he had was improper
where receipt previously had been excluded on state's motion); State v.
Hammonds, 651 S.W.2d 537 (Mo. App. E.D. 1983) (argument that witness,
who previously had been excluded on state's motion because he was disclosed
late, did not testify to avoid perjury was improper); State v. Price, 541 S.W.2d
777 (Mo. App. 1976) (reference to defendant's failure to call witnesses she
claimed could corroborate her defense was improper where those witnesses
previously had been excluded on state's motion).
Like the cases cited above, Prosecutor Askey also intentionally and
deliberately represented to the jury that there was no evidence of an
alternative perpetrator, fully aware that such absence was due to the State’s
own Motion in Limine. Without the State’s Motion, defense counsel would
have been able to produce evidence of a reasonable alternative perpetrator:
63
Pam Hupp. The fact that the State posed this rhetorical question as the last
party to speak to the jury intensifies the injustice suffered by Mr. Faria. The
State’s intentional and deliberate reference the lack of evidence when that
evidence was the result of the State’s own Motion is a “distasteful tactic” that
embodies manifest injustice. State v. Weiss, 24 S.W.3d 198, 204 (Mo. App.
W.D. 2000).
V. The evidence adduced at trial was insufficient as a matter of law to
uphold a conviction for first degree murder as the State failed to
prove beyond reasonable doubt Mr. Faria’s presence at the crime
scene at the time the crime occurred and the trial court erred in
denying motion for judgment of acquittal in violation of Mr. Faria’s
right to a fair trial and due process as guaranteed by the Fifth,
Sixth, and Fourteenth Amendments to the United States
Constitution.
A. Standard of Review
This claim is properly preserved. Mr. Faria filed a Motion for Judgment
of Acquittal at the Close of the State’s Case and Motion for Judgment of
Acquittal at the Close of All the Evidence. In Mr. Faria’s Motion for
Judgment of Acquittal Notwithstanding the Verdict, or in the Alternative,
Motion for New Trial, this claim is preserved as Point I. (LF 370-80.)
64
“A challenge to the sufficiency of the evidence to support a finding of
guilt is based in the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.” State v. O'Brien, 857 S.W.2d 212, 215 (Mo. banc
1993). Sufficient evidence exists if the “trier of fact could reasonably find the
issue in conformity with the verdict.” State v. Paulson, 220 S.W.3d 828, 832
(Mo. App. S.D. 2007). Even a “properly instructed jury may occasionally
convict even when it can be said that no rational trier of fact could find guilt
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 317 (1979).
In applying this standard, “[c]ourts view the evidence in the light most
favorable to the verdict and give the state the benefit of all reasonable
inferences. But in so doing, courts will not supply missing evidence or give
the state the benefit of unreasonable, speculative or forced inferences.” State
v. Langdon, 110 S.W.3d 807, 811-12 (Mo. banc 2003).
“If the evidence is insufficient to sustain a conviction, plain error
affecting substantial rights is involved from which manifest injustice must
have resulted.” State v. Withrow, 8 S.W.3d 75, 77 (Mo. banc 1999); Rule
30.20.
B. Discussion
As a matter of law, the evidence presented at trial is insufficient to
convict Mr. Faria of first-degree murder as the State failed to establish
beyond a reasonable doubt that Mr. Faria was present at the scene of the
65
crime at the time the crime occurred. “[I]t is always the State's burden to
establish a factual basis for elements of the crime charged.” State v. Self, 155
S.W.3d 756, 762 (Mo. banc 2005). “[W]here the presence of the defendant at
the place and time of the commission of the crime is essential to guilt, the
burden is always on the prosecution to prove such presence beyond a
reasonable doubt.” State v. Phegley, 826 S.W.2d 348, 355 (Mo. App. W.D.
1992).
Here, the State failed to establish Mr. Faria’s presence at scene of the
crime at the time the crime was committed beyond a reasonable doubt. As the
trial court instructed, “[t]he State had the burden of proving beyond a
reasonable doubt that [Mr.] Faria was present at . . . 130 Sumac, Troy,
Missouri . . . when the crime was committed.” (Tr. 1097.) However, the State
presented no evidence that Mr. Faria was present at 130 Sumac at the time
the crime was committed. As noted earlier, undisputed testimony by both
parties’ witnesses place the time of death around 7:50 PM. (Tr. 450-57, 879-
84.) The State offered no proof to show Mr. Faria was at his residence at that
time. The mere presence of blood on Mr. Faria’s slippers does not logically
lead to the inference that Mr. Faria was present because the crime occurred
at his home. His DNA, fingerprints, and belongings are bound to be all over
the house as it is the place where he resides. Anyone at the scene of the crime
including Mrs. Faria’s murderer had the opportunity to use or contaminate
66
Mr. Faria’s belonging with evidence. Such weak circumstantial evidence is
insufficient to support a guilty verdict.
On the contrary, both witnesses and cell site data place Mr. Faria at
Corbin’s home, around 30 miles away from the scene of the crime from 6 to 9
PM. The only attack on this alibi by the State was Prosecutor Askey’s
impermissible arguments discussed above. “In the absence of any proof on
th[e] issue, [the reviewing] Court cannot supply a forced inference.” State v.
Self, 155 S.W.3d 756, 764 (Mo. banc 2005.) As such, the State failed to
establish Mr. Faria’s presence beyond a reasonable doubt. Because presence
is an essential element of the crime, the evidence adduced at trial was
insufficient as a matter of law to support the conviction of Mr. Faria.
CONCLUSION
WHEREFORE, based on his arguments above, Appellant respectfully
requests that this Court reverse his convictions and discharge him, or in the
alternative, reverse and remand his cause for a new trial.
Respectfully submitted,
/s/ Hannah Zhao
Hannah Zhao, #66758

ROSENBLUM, SCHWARTZ,
ROGERS & GLASS P.C.
120 S. Central Ave., Ste. 130
St. Louis, MO 63105
67
Attorneys for Appellant
hzhao@rsrglaw.com
T: (314) 862-4332
F: (314) 862-8050
68
CERTIFICATE OF SERVICE
The undersigned hereby certifies that he has caused a true and correct
copy of the foregoing Brief to be served on Respondent via operation of the
Court’s electronic filing system on December 1, 2014.
/s/ Hannah Zhao

Hannah Zhao
69
CERTIFICATE OF COMPLIANCE
The undersigned attorney hereby certifies that this brief complies with
the type-volume limitation and typeface requirements of Missouri Supreme
Court Rule 84.06. This brief contains 17,336 words, excluding the parts of
the brief exempted from that calculation by Rule 84.06(b), and is 1,864 words
longer than the limitation of Eastern District Rule 360. Appellant has filed a
Motion for Leave to file this Brief in excess of that limit. The brief is set in
proportionally spaced typeface, no smaller than 13-point Century serif font,
using Microsoft Word 2013. The undersigned further certifies that the
electronic copy is virus-free.
/s/ Hannah Zhao

Hannah Zhao
70

Faria Appeal Brief

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Faria Appeal Brief

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Electronically Filed - EASTERN DISTRICT CT OF APPEALS - December 02, 2014 - 08:28 PM

MISSOURI COURT OF APPEALS

From the Circuit Court of Lincoln County

Joel J. Schwartz, 39066

Attorneys for the Appellant

ORAL ARGUMENT REQUESTED

TABLE OF AUTHORITIES ..................................................................................... viii

JURISDICTIONAL STATEMENT ............................................................................ xiii

STATEMENT OF FACTS ........................................................................................... 1

POINTS RELIED ON ............................................................................................. 22

process as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to

Missouri Constitution. ................................................................................. 24

II. The trial court abused its discretion in excluding impeachment

evidence regarding Hupp’s motivation and opportunity to kill Mrs. Faria.

The trial court’s abuse of discretion violated Mr. Faria’s right to

confrontation, a fair trial, and due process as guaranteed by the Fifth,

Sixth, and Fourteenth Amendments to the United States Constitution and

Article I, §§ 10, 18(a), and 22(a) of the Missouri Constitution. ................... 26

A. Preservation of Error and Standard of Review ................................. 26

1. Evidence regarding Hupp’s location on the night of the murder

to Hupp was admissible as impeachment evidence because Hupp

testified as a witness for the State. ........................................................ 27

2. Hupp’s testimony and cell site data established a “direct

the crime. ................................................................................................. 33

3. Mr. Faria was prejudiced by the trial court’s exclusion of evidence

regarding Hupp ....................................................................................... 37

b. The excluded evidence supported the defense theory. ............... 40

the request of Mr. Faria after the State intentionally referenced

to confrontation, a fair trial, and due process as guaranteed by the Fifth,

Sixth, and Fourteenth Amendments to the United States Constitution and

Article I, §§ 10, 18(a), and 22(a) of the Missouri Constitution. ................... 41

A. Preservation and Standard of Review ............................................... 42

1. The trial court abused its discretion in refusing to grant a mistrial

because a mistrial is warranted if the prosecutor intentionally and

directly refers to polygraph evidence with the intention of using the

willingness of the prospective exam taker as an attack on the

prospective exam taker’s credibility. ..................................................... 42

2. The State’s intentional reference to polygraph exams prejudiced

Mr. Faria because that reference impermissibly cause the jury to

good faith basis for that question. .......................................................... 45

impeachment evidence regarding State witnesses, specifically: (1) that the

witness, Officer Michael Lang’s has intense romantic and amorous

attachment to Prosecutor Askey. The State’s intentional concealment

guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United

States Constitution and Article I, §§10 and 18(a) of the Missouri

A. Standard of Review ........................................................................... 47

1. The State violated Mr. Faria’s right to due process in failing to

testify to the contrary during Offer of Proof. ......................................... 47

a. Newly discovered evidence that Hupp had created the revocable

State, and specifically Prosecutor Askey ........................................... 48

favorable impeachment evidence, material, and prejudicial with

regards to the court’s consideration of the Offer of Proof ................. 48

2. The State violated Brady in failing to disclose impeachment

evidence regarding Officer Michael Lang who had an intense amorous

attachment to Prosecutor Askey during the course of the case. .......... 50

process as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to

Missouri Constitution. ................................................................................. 52

A. Preservation and Standard of Review ............................................... 52

that was contrary to the evidence .......................................................... 53

a. Prosecutor Askey’s Closing Argument ........................................ 53

b. Prosecutor Askey’s argument during the State’s Closing

of Mrs. Faria was improper and resulted in manifest injustice. ...... 55

c. Prosecutor Askey’s claim that Mr. Faria showered to wash blood