Opinion
No. 26980
November 6, 2006
ON MOTION FOR REHEARING OR MOTION TO TRANSFER
In his "Motion for Rehearing or Transfer to the Missouri Supreme Court," Defendant requests this Court to review the testimony of the State's DNA expert witness, Brian Hoey, as it relates to Defendant's first point on appeal, maintaining that "[t]his Court's selective recitation of the facts, and its omission of key facts that bear directly on the issue, distorts the record and does not provide [Defendant] a fair review of the trial court's ruling." Specifically, Defendant points to the omission of the following testimony in the Court's analysis:
[Defense counsel]: Okay. And on April 21st, one of your bench notes said at that point, "positive control okay"?
[Hoey]: Yes.
[Defense counsel]: But you never put in your bench notes that there was a possibility of contamination in that 4/19 run?
[Hoey]: I didn't realize it at that time.
[Defense counsel]: Okay. You just recently discovered it when you were asked to go back and look at it?
[Hoey]: That's correct.
Consideration of this testimony does not change the result reached in our opinion for two reasons: (1) Defendant references this testimony only in his reply brief; and (2) Defendant has not shown that he was prejudiced by the trial court's ruling.
The testimony which Defendant complains was "inexplicably omit[ted]" from this Court's opinion is not quoted or cited to in Defendant's initial brief filed with this Court. In his brief, Defendant cites to various portions of the record in reference to Hoey's testimony, but not once does he quote the above testimony or provide this Court with a citation to the page of the transcript where the testimony is found. "All statements of fact and argument contained in any brief shall have specific page references to the legal file or the transcript." Rule 30.06(e); see also Rule 84.04(i). "[T]his requirement is mandatory and essential for the effective functioning of appellate courts, which cannot spend time searching the record to determine if factual assertions are supported by the record. This would effectively require the court to act as an advocate for the non-complying party[.]" Brown v. Shannahan, 141 S.W.3d 77, 80 (Mo.App.E.D. 2004). It is not the duty of this court to search the transcript or record to discover the facts substantiating a point on appeal. Block Financial Corp. v. America Online, Inc., 148 S.W.3d 878, 890 (Mo.App.W.D. 2004).
While this citation is to a civil case, its proposition holds for criminal cases, as the rules governing an appellant's brief are the same for civil and criminal cases. See State v. Watkins, 102 S.W.3d 570, 571 (Mo.App.S.D. 2003) (explaining "[w]hether civil or criminal, all briefs filed in an appellate court must comply with Rule 84.04"); see also Rules 30.06 and 84.04.
In addition, Defendant's inclusion of the testimony in his reply brief does not cure the original omission. Id. The sole purpose of a reply brief is to rebut the arguments raised in the respondent's brief. Estate of Dugger v. Dugger, 110 S.W.3d 423, 427 n. 3 (Mo.App.S.D. 2003). A reply brief is not a place to raise new points on appeal because it deprives the respondent of his opportunity to answer an issue presented by an appellant. Block Financial Corp., 148 S.W.3d at 890. Therefore, omission of the legal and evidentiary basis for an allegation of error "is not cured by the discussion in the reply brief." Zakibe v. Ahrens McCarron, Inc., 28 S.W.3d 373, 389 (Mo.App.E.D. 2000).
In this case, the State had no opportunity to respond to Defendant's reliance on the "omitted" testimony quoted in his reply brief. This is evidenced by the fact that the State does not address this testimony in its respondent's brief. When an appellant believes that a specific portion of the record is so tantamount as to affect the ultimate disposition upon appellate review, this portion of the record should be highlighted in the statement of facts and the argument portion of the appellant's brief.
Nevertheless, consideration of the "omitted" testimony does not change this Court's decision. As we stated in our opinion, the trial court's statement was short and neutral, and did not indicate to the jury that it was not to reach its own determination of the facts. In stating that the jury was free to believe, based on the evidence presented, that key DNA evidence was contaminated, we noted that defense counsel was allowed to make the following argument to the jury without objection:
He didn't report that there was a problem with that control sample. He didn't report that it was somehow mixed in with some other source of DNA. And when you mix two things together when you're not supposed to, there's no other word for it. It is contamination. And he didn't report it.
We also note that Defendant continues to misconstrue the trial court's statement. Defendant's allegation of error is premised on the following statement made by the trial court: "The jury will recollect the testimony of Hoey. The Court does not recollect his describing, in his words, `contamination.'" In his brief, Defendant states that "the trial court specifically told the jury that the court did not recall testimony about contamination." (emphasis added). In his motion for rehearing, Defendant asserts that "the trial court's recollection that Hoey did not testify about contamination was clearly incorrect[.]" (emphasis added). A correct recitation of this statement is important to understanding the result reached in our opinion. Clearly, much of defense counsel's cross-examination of Hoey was devoted to a discussion about contamination. However, the trial court was correct in its recollection that Hoey never described in his words contamination. As we stated in our opinion, "[a] question or comment from a trial judge must not express his or her opinion of evidence in the case[.]" State v. Bass, 81 S.W.3d 595, 613 (Mo.App.W.D. 2002). This does not mean, however that the trial court "may not summarize evidence in explanation of a ruling, as long as it is not a statement of the facts as a matter of law[.]" State v. Mitchell, 693 S.W.2d 155, 160 (Mo.App.E.D. 1985).
The trial court never stated that it did not recall testimony about contamination. This distinguishes the present case from that relied on by Defendant, Rose v. Kansas City, 102 S.W. 578, 580 (Mo.App. K.C. 1907), in which the trial court stated incorrectly in response to an objection: "I don't think that was the testimony of Dr. Wilson." In finding error with the trial court's statement, the Court stated that "[t]he fact that defendant's counsel was stating the evidence of Dr. Wilson correctly, the action of the court practically deprived defendant of the benefit of that evidence[.]" Id. The jury, in this case, was never given the impression that Hoey did not testify about contamination, and the possibility of contamination of the DNA evidence was reinforced by defense counsel's closing argument as previously discussed.
For the aforementioned reasons, consideration of the testimony which Defendant complains was omitted does not change the result reached in our opinion. Other issues raised in Defendant's motion require no further discussion. Defendant's motion is denied.
Bates, C.J., and Barney, J., — concur