author: STEPHEN N. LIMBAUGH, JR., Judge. RONNIE L. WHITE, Chief Justice, WILLIAM RAY PRICE, JR., Judge,

text:
    Wayman SMITH, III, et al., Respondents, v. STATE of Missouri, et al., Appellants.
    No. SC 86050.
    Supreme Court of Missouri, En Banc.
    Jan. 11, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, MO, for Appellants.
    Patricia A. Hageman, Edward J. Han-lon, St. Louis, MO, for Respondents.
   STEPHEN N. LIMBAUGH, JR., Judge.

Respondents, who are members of the St. Louis Board of Police Commissioners, and certain named officers of the St. Louis Police Department filed a declaratory judgment action against the State of Missouri, the Attorney General, the Commissioner of Administration and the State Treasurer alleging that respondents are entitled to coverage under the State Legal Expense Fund (“SLEF”), sec. 105.711 et seq., RSMo 2000. The SLEF provides for representation by the Attorney General and reimbursement for monies expended in defending certain lawsuits and for satisfaction of judgments or settlements pertaining to those lawsuits. This Court previously heard an appeal of this case in Wayman Smith v. State of Missouri, 63 S.W.3d 218 (Mo. banc 2001), but the appeal was dismissed for the reason that the trial court’s grant of summary judgment in favor of respondents did not dispose of all the claims, and, as such, there was not a final and appealable judgment. On remand, the trial court granted respondents’ amended motion for summary judgment. The judgment was then appealed to the Court of Appeals, Western District, and after opinion, this Court granted transfer, Mo. Const, art. V, sec. 10. The judgment is affirmed.

The petition alleged that the respondents have been named as defendants in various lawsuits arising out of actions that they had taken in their capacities either as members of the Board or as police officers and that the attorney general had refused to represent them in these actions. In granting summary judgment in favor of respondents, the trial court held that the SLEF applies to the St. Louis Police Board and to the St. Louis police officers with the result that 1) the attorney general is required to provide a defense to those parties when they are named as defendants in lawsuits arising out of actions taken in their official capacity under section 105.716.1(2); and 2) the state treasurer and the commissioner of administration are required to pay any judgment that might result from such lawsuits under section 105.711.4. Applying these holdings to the facts of the case, the trial court then ordered that the respondents are to be reimbursed by the SLEF in the amount of $35,065.35 for settlement amounts, costs, and attorneys fees related to the lawsuits specified in the petition. Because the facts are not in dispute, and the only issues are matters of law, appellate review is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993).

The SLEF provides coverage for lawsuits brought against:

(1) The state of Missouri, or any agency of the state, pursuant to section 536.050 or 536.087 or section 537.600 RSMo;
(2) Any officer or employee of the state of Missouri or any agency of the state, including, without limitation, elected officials, appointees, members of state boards or commissions and members of the Missouri national guard upon conduct of such officer or employee arising out of and performed in connection with his or her official duties on behalf of the state, or any agency of the state,

Sec. 105.711.2(l)-(2) (emphasis added).

The statutory framework governing the St. Louis Police Board, sec. 84.010 et seq., RSMo 2000, leads this Court to the conclusion that the Board is indeed an “agency of the state,” as that term is used in section 105.711.2(1), as opposed to a local or municipal agency. The members of the Board, other than the mayor of St. Louis ex-officio, are appointed by the governor with the advice and consent of the senate, and they receive their commissions from the governor. Sec. 84.030. It is also the governor who is authorized by statute to remove any commissioner for misconduct in office. Sec. 84.080. In addition, the general assembly has imposed upon the Board numerous requirements pertaining to the Board’s duty to establish and employ a “permanent police force,” sec. 84.100, including those that establish the qualifications of police officers, sec. 84.120, the number of police officers of each rank that the Board may employ, sec. 84.150, and the maximum amount that officers of each rank can be paid, see. 84.160. Further, the Board is required to make its records available for inspection by the general assembly or any committee thereof. Sec. 84.250. In all these respects, the Police Board is answerable to the state rather than the City.

In fact, the general assembly has expressly prohibited the City of St. Louis and its officials from presuming to exercise authority or control over the Board or the Police Department. In particular, section 84.010 states in pertinent part:

[N]o ordinances heretofore passed, or that may hereafter be passed, by the common council or municipal assembly of the cities, shall, in any manner, conflict or interfere with the powers or the exercise of the powers of the boards of police commissioners of the cities as created by section 84.020, nor shall the cities or any officer or agent of the corporation of the cities, or the mayor thereof, in any manner impede, obstruct, hinder or interfere with the boards of police or any officer, or agent or servant thereof or thereunder, except in any case of emergency....

Furthermore, any City official or employee who does so is subject to a fine of $1,000 and is disqualified from holding an office or employment. Sec. 84.220.

The conclusion that the Police Board is a state agency is further supported by more than a century of case law that has consistently recognized the Board as such, albeit in contexts different than the SLEF. Shortly following the 1861 enactment of the statute creating the Police Board, 1861 Mo. Laws 466-67, this Court declared, “[T]he Police Commissioners are an agency of the State Government, and required to perform within a specific locality some of the most important duties of the government.” State ex rel. Police Commissioners of City of St. Louis v. County Court of St. Louis County, 34 Mo. 546, 571 (1864). This Court later expanded on that idea, stating:

[T]he protection of life, liberty, and property, and the preservation of the public peace and order, in every part, division, and subdivision of the State, is a governmental duty, which devolves upon the state, and not upon its municipalities, and further than the state, in its sovereignty, may see fit to impose upon or delegate it to the municipalities ... From this duty, existing in the very nature of the state government, flows the corresponding power to impose upon municipalities of its own creation a police force of its own creation, and to compel its support out of the municipal funds ... [I]t is almost universally conceded that police boards and metropolitan police forces are state officers, and fall clearly within legislative control.

State ex rel. Hawes v. Mason, 153 Mo. 23, 54 S.W. 524, 529 (1899).

More recent cases are in accord. In State ex rel. Sayad v. Zych, 642 S.W.2d 907 (Mo. banc 1982), this Court held that the Board is a “state agency” as that term is used in the Hancock Amendment, article X, section 21, of the Missouri Constitution. The Court’s rationale was that the state has the power to compel the City to fund a police force, that under section 84.210, the state has delegated that power to the Board, and that in doing so, the Board performs a “state function.” Id. at 910. In State ex rel. Sanders v. Cervantes, 480 S.W.2d 888, 891 (Mo. banc 1972), this Court characterized certain decisions of the Police Board as “the acts of any public official or administrative agency of this state,” in determining that those decisions are subject to judicial review. Also, in Slater v. City of St. Louis, 548 S.W.2d 590, 592-93 (Mo.App.1977), a pay dispute brought by members of the City-controlled security force at St. Louis Lambert Field, the Court of Appeals distinguished between the authority of the City over the airport security force, which is a matter of local concern, and the authority of the state to maintain control over the Police Department, which is a matter of state concern.

Although the status of the Board as an agency of the state under the SLEF is based on a structural analysis of the statutes creating the Board and analogies to case law holding that the Board is an agency of the state in other contexts, the police officers’ status as “officers of the state” is set out expressly in section 84.330, which states:

The members of the police force of [St. Louis], organized and appointed by the police commissioners of said cities, are hereby declared to be officers of the said cities under the charter and ordinances thereof, and also to be officers of the state of Missouri, and shall be so deemed and taken in all courts having jurisdiction of offenses against the laws of this state or the ordinances of said cities.

(Emphasis added). Nonetheless, appellants rely on Cates v. Webster, 727 S.W.2d 901 (Mo. banc 1987), for the proposition that officers and employees who work for state agencies but who are paid by a county or municipality are not state employees for purposes of the SLEF. Cates held, in particular, that a circuit court bailiff was not covered by the SLEF because he was paid by the county, despite the fact that he was hired by and served at the pleasure of the circuit judges and that his sole job was to assist the judges in the performance of their state responsibilities. Id. at 905-07. Although the Cates Court rejected a “control” test in favor of a “payment” test, in this case, the outcome is dictated instead by the express language of the statute: St. Louis police officers are both officers of the City and officers of the state. As officers of the state, they are covered by the SLEF. Sec. 105.711.2(2).

In a separate point, appellants argue that the monetary relief awarded against the state violated the doctrine of sovereign immunity because the state has not waived its immunity. They focus on sec. 105.726, which provides: “Nothing in sections 105.711 to 105.726 shall be construed to broaden the liability of the state of Missouri beyond the provision of sections 537.600 to 537.610, RSMo, [pertaining to waiver of sovereign immunity in tort cases] nor to abolish or waive any defense at law which might otherwise be available to any agency, officer, or employee of the state of Missouri.” As this Court understands this point, a claim for damages under the SLEF is not a tort claim for which sovereign immunity has been waived. This point, however, overlooks the fact that sec. 105.711 applies to lawsuits brought against any officer or employee “arising out of and performed in connection with his or her official duties on behalf of the state, or any agency of the state” — broad language that necessarily operates to waive sovereign immunity. The point has no merit.

For the foregoing reasons, the judgment is affirmed.

WOLFF, STITH and RUSSELL, JJ., concur.

WHITE, C.J., concurs in separate opinion filed.

TEITELMAN, J., concurs in opinion of WHITE, C.J.

PRICE, J., concurs in separate opinion filed.

WOLFF and RUSSELL, JJ., concur in opinion of PRICE, J.

RONNIE L. WHITE, Chief Justice,

concurring.

1 concur in the principal opinion. I write separately only to object to the obi-ter dicta suggestions offered to the legislature by our respected colleague, Judge Price, in his concurrence. There is no question that the courts are the final arbiters of the law and that the judiciary may not shirk their duty to interpret the law. Coupled with this noble pursuit, however, is the unqualified need and long-standing tradition of exercising judicial restraint and avoiding the political thicket to serve the public interest of “allowing the political process to function free from judicial supervision.”

Appellate courts lack jurisdiction to issue advisory opinions on matters of law that are not part of a live case or controversy and do not decide nonexistent issues. “Courts having a proper respect for the constitutional divisions of state power cannot invade the province of another coequal branch of the government.” “It is not the Court’s province to question the wisdom, social desirability or economic policy underlying a statute as these are matters for the legislature’s determination.”

WILLIAM RAY PRICE, JR., Judge,

concurring.

I agree with the statutory construction set out in the majority opinion. There can be no serious doubt that the St. Louis Board of Police Commissioners is an agency of the State of Missouri. As such, the literal interpretation of the State Legal Expense Fund (SLEF), as established in section 105.711 et seq., RSMo 2000, provides coverage. Nonetheless, section 105.711 is somewhat at odds with the spirit of chapter 84, particularly section 84.210, RSMo 2000, which requires the City of St. Louis to pay the expenses of the Board of Police Commissioners and the St. Louis Police Department.

This Court cannot rule on the basis of speculation, especially in the face of the literal language of a statute. Should the general assembly find the result of this case undesirable, it might simply except either the St. Louis Police Department or the St. Louis Board of Police Commissioners, or both, from coverage by the SLEF and provide that this expense should be paid by the City of St. Louis. Alternatively, of course, should the general assembly find that the result of this case is precisely what it intended, no further action would be necessary.

      . The Board members named as plaintiffs in the petition are Wayman Smith, Jeffrey Ja-mieson, Edward Roth, Clarence Harmon, and Leslie Bond, M.D.; and the officers named as plaintiffs are Sergeant Jim Ousley, Lieutenant Art Ruehl, and Officers Antwan Boyd, Bryan Vickers, Thomas Scanlon, Amy Sprout, James Long, James Joyner, Joseph Crews, Joseph Morici, Joseph Speiss, and William March.

      . Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803).

      . Colegrove v. Green 328 U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946); O’Brien v. Brown, 409 U.S. 1, 5, 92 S.Ct. 2718, 34 L.Ed.2d 1 (1972); State ex rel. Holland v. Moran, 865 S.W.2d 827, 832 (Mo.App.1993).

      . Riverside-Quindaro Bend Levee Dist, Platte County, Missouri v. Missouri American Water Co., 117 S.W.3d 140, 153 (Mo.App.2003); State ex rel. Mathewson v. Board of Election Com’rs of St. Louis County, 841 S.W.2d 633, 635 (Mo. banc 1992).

      . Lutman v. American Shoe Mach. Co. 151 S.W.2d 701, 708 (Mo.App.1941)(overruled on other grounds).

      . Greenlee v. Dukes Plastering Service, 75 S.W.3d 273, 277 (Mo. banc 2002).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J.H. BERRA CONSTRUCTION CO., INC., Appellant, v. Randy HOLMAN, Assessor for Jefferson County, Missouri, Respondent.
    No. SC 86046.
    Supreme Court of Missouri, En Banc.
    Jan. 11, 2005.

      David L. Welsh, St. Louis, MO, for Appellant.
    Robert Bilbrey, David P. Senkel, Hills-boro, MO, for Respondent.
   PER CURIAM.

J.H. Berra Construction Co., Inc., uses heavy equipment in its construction projects. On January 1, 2001, some of its equipment was located in Jefferson County, Missouri. The Jefferson County assessor assessed personal property tax against the value of the equipment. Berra contests the assessment. The state tax commission agreed with the assessor that the equipment was subject to taxation in Jefferson County. On judicial review, the circuit court agreed with the commission. That judgment is affirmed.

On appeal, this Court reviews the commission’s decision, rather than the trial court’s judgment, to determine whether the agency action: (1) is in violation of constitutional provisions; (2) is in excess of

the statutory authority or jurisdiction of the agency; (3) is unsupported by competent and substantial evidence upon the whole record; (4) is, for any other reason, unauthorized by law; (5) is made upon unlawful procedure or without a fair trial; (6) is arbitrary, capricious or unreasonable; or (7) involves an abuse of discretion. Section 536.11).0.2. Questions of law are matters for the independent judgment of this Court. State Bd. of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146, 152 (Mo. banc 2003).

Berra asserts that the commission erred in affirming the assessed valuation of its equipment in Jefferson County because the construction equipment at issue had only a temporary presence in Jefferson County; therefore, it was not “situated” there for personal property tax assessment purposes under section 137.095.1. Berra has the burden to show that the commission’s decision that the equipment is situated in Jefferson County is unsupported by competent and substantial evidence upon the whole record.

In Buchanan County v. State Tax Commission, 407 S.W.2d 910, 913-14 (Mo.1966), this Court found that the word “situated” connotes a more or less permanent location or situs. “Situated” refers to the place where the personal property is regularly kept. The Court cited cases suggesting that “situated” implies some element of permanency and that it requires more than a mere temporary presence. “Situated” does not mean, however, that the property needed to be “physically present” in the taxing county on tax day.

When Buchanan was decided, section 187.095 did not distinguish taxation for motor vehicles from taxation of other personal property. Following Buchanan, however, the legislature enacted section 137.095.2 to reflect that motor vehicles should be taxed where they are “based” on tax day. This amendment sought to account for the mobility of vehicles used in commercial enterprises. Be-Mac Transp. Co., Inc. v. State Tax Comm’n of Mo., 725 S.W.2d 599, 601 (Mo. banc 1987). The commission correctly found that the amended version of section 137.095 clearly contemplates that there can be a difference between where a piece of property is “situated” and where a piece of property is based. In particular, unless the property is regulated pursuant to chapter 390, the correct analysis for tax purposes is to determine where the property is “situated,” not where it is based. Because the equipment at issue in this case is not property regulated pursuant to chapter 390, the fact that it is based in St. Louis County, where Berra operates its corporate headquarters, does not preclude it from being “situated” in some other county for tax purposes.

The commission found that Berra’s equipment was “situated” in Jefferson County for 2001 tax purposes. In making its decision, the commission considered both written and oral testimony of the parties and a variety of documents and records from both parties. The commission found that Berra failed to present substantial and persuasive evidence tending to show that Jefferson County’s assessment was erroneous. The commission determined that Berra owned 48 pieces of equipment that were physically located in Jefferson County on January 1, 2001, but it found Berra’s records were inadequate to identify the number of days each piece of equipment was physically located in the county. The commission acknowledged that the equipment would be returned to Berra’s corporate headquarters in St. Louis County when not in use, but it found that Berra had a practice of parking unused equipment on job sites to reduce transportation costs. The commission also noted that Berra sometimes repaired equipment at its corporate facilities, but other times serviced the equipment on job sites. The commission further found that the assessor’s employees had observed Berra’s equipment in Jefferson County for a number of years, and it found that Berra maintained an office trailer at the job site.

There was competent and substantial evidence to show that the equipment was “situated” in Jefferson County under the standards set forth in Buchanan. There was substantial evidence that the equipment had some element of permanency in Jefferson County, that it had more than a mere temporary presence there, and that it was regularly kept there during 2001 while Berra completed several large-scale and long-term projects in that county.

Berra’s assertion that the purpose of its property being located in Jefferson County should be considered, rather than the length of time it was located there, is not persuasive. Buchanan instructs that whether property is “situated” for tax purposes in a given county should be determined by considering whether it had more than a mere temporary presence there or whether it was regularly kept there. 407 S.W.2d at 914. These standards suggest that determining where property is “situated” under section 137.095.1 should focus on the length of time the property is in a given taxing jurisdiction, and not its purpose for being there.

Berra also asserts that the commission erred because it utilized an incorrect standard in requiring Berra to prove that its equipment was continuously and habitually employed in another county, rather than to assess whether the equipment was “situated” in Jefferson County under section 137.095.1. In finding that Berra’s equipment was “situated” in Jefferson County for 2001 tax purposes, the commission cited Buchanan for the proposition that “situated” refers to where a piece of property has a more or less permanent location and not where it is physically located on tax day. The commission also cited Bi Go Markets, Inc. v. Morton, 843 S.W.2d 916 (Mo. banc 1992), for the proposition that location cannot be discounted when determining tax situs.

Nothing in Bi Go negates the standards set forth in Buchanan for determining whether property is “situated” within a given taxing jurisdiction. Bi Go merely offers further guidance as to the type of factual considerations that are relevant in assessing whether property is regularly kept or more or less permanently located in a given taxing jurisdiction. The preeminent consideration under both Bi Go and Buchanan is whether the property at issue is “situated” in the taxing authority pursuant to section 137.095.1. ■

For the foregoing reasons, the commission’s finding that the equipment was situated in Jefferson County, and its rejection of Berra’s contention that it was situated in some other county, is supported by competent and substantial evidence upon the whole record.

The judgment is affirmed.

WHITE, C.J., WOLFF, STITH, PRICE, TEITELMAN and LIMBAUGH, JJ., and BLACKMAR, Sr.J., concur.

RUSSELL, J., not participating.

      . The Court of Appeals, Eastern District, transferred this case to this Court by an opinion authored by the Honorable Mary R. Russell. Mo. Const, article V, section 10. Parts of that opinion are incorporated without further attribution.

      . All statutory references are to RSMo 2000.

      . Section 137.095.1 provides:
      The real and tangible personal property of all corporations operating in any county in the state of Missouri and in the city of St. Louis, and subject to assessment by county or township assessors, shall be assessed and taxed in the county in which the property is situated on the first day of January of the year for which the taxes are assessed, and every general or business corporation having or owning tangible personal property on the first day
      of January in each year, which is situated in any other county than the one in which the corporation is located, shall make return to the assessor of the county or township where the property is situated, in the same manner as other tangible personal property is required by law to be returned, except that all motor vehicles which are the property of the corporation and which are subject to regulation under chapter 390, RSMo, shall be assessed for tax purposes in the county in which the motor vehicles are based.
      Section 137.095.2 goes on to define "based” as used in section 137.095.1 as "the place where [a motor] vehicle is most frequently dispatched, garaged, serviced, maintained, operated or otherwise controlled....”

      . The commission’s finding that Berra had 48 pieces of equipment in Jefferson County on January 1, 2001, cites to Complainant’s Exhibit B. That document, however, lists only 42 pieces of equipment.


author: MICHAEL A. WOLFF, Judge. STEPHEN N. LIMBAUGH, JR., Judge, RICHARD B. TEITELMAN, Judge,

text:
    John IGOE, Respondent, v. The DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS OF the STATE of Missouri, et al., Appellants.
    No. SC 85945.
    Supreme Court of Missouri, En Banc.
    Jan. 11, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., James R. Layton, State Solicitor, James R. McAdams, Deborah Bell Yates, Asst. At-tys. Gen., Jefferson City, MO, for Appellants.
    William E. Moench, Patavee Vanadilok, St. Louis, MO, for Respondent.
   MICHAEL A. WOLFF, Judge.

Introduction

John Igoe was one of many qualified applicants in 1997 competing for one of two administrative law judge positions and one of two legal advisor positions in the Division of Workers Compensation in the Department of Labor and Industrial Relations. He was not selected. Igoe applied again in 1999 for one of several new administrative law judge and legal advisor positions and again was not selected.

After his first rejection, Igoe filed complaints with the Missouri Human Rights Commission and the federal Equal Employment Opportunity Commission alleging that he had been discriminated against on the basis of age — he was age 63 when he first applied — and sex. After his second rejection, Igoe complained to the Missouri Human Rights Commission he had been discriminated against on the basis of age, sex, and retaliation for filing his first complaint with the commission.

After receiving notices of his right to sue, Igoe filed suit on his claims, alleging sex and age discrimination and retaliation in violation of chapter 213 RSMo and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. see.2000 et seq.

Section 287.610 gives “the division” the authority to appoint administrative law judges and legal advisors. In this case, however, because the workers compensation division director was a candidate for one of the administrative law judge positions in both 1997 and 1999, the director of the department — at the direction of the governor’s staff — assumed the role of screening candidates and formally making the appointments.

The Department of Labor and Industrial Relations and the Division of Workers Compensation, but not the governor, were named as defendants in Igoe’s suit. The defendants moved to transfer venue to the circuit court of Cole County, where the acts of alleged discrimination occurred. The circuit court of the City of St. Louis overruled the motion for change of venue.

The St. Louis circuit court heard Igoe’s claims with an advisory jury. After the verdict, the circuit court entered findings of fact, conclusions of law, and judgment in favor of Igoe, awarding damages that were determined by the jury and that matched Igoe’s claims. The circuit court also ordered that Igoe be instated to an administrative law judge position. After opinion in the court of appeals, this court granted transfer. Mo. Const, art. V, sec. 10.

The Nature of Igoe’s Claims

When Igoe applied for these positions in 1997, he was one of 27 applicants. In 1999 there were over 50 applicants. Igoe met the minimum experience and training requirements — a law degree and admission to The Missouri Bar for at least two years — as did all of the applicants.

The statutory duties of an administrative law judge include conducting hearings on workers’ claims for compensation that result from injuries on the job. Section 287.610.5. The judge makes findings of facts and conclusions of law in decisions that are then reviewed by the Labor and Industrial Relations Commission. Once appointed, an administrative law judge serves until retirement, unless removed for cause. Section 287.610.1. Legal advisors are appointed to assist all parties in making sure their claims are presented and heard. Section 287.642. A legal advisor can also serve in the capacity of an associate administrative law judge. Section 287.616.

These judge and legal advisor positions, the state points out, represent the governor’s administration in dealing with the resolution of workers’ compensation claims. The governor’s staff told the director that the governor wanted candidates who would best represent his administration and emphasized a combination of skills and personal attributes that would best serve the public. As an elected official, the governor — not the department director — is held politically responsible for those who are chosen for these executive-branch administrative law judge positions. Further, an administrative law judge may be discharged or removed only by the governor. Section 287.610.1.

The director of the Department of Labor and Industrial Relations reviewed applications for these positions and interviewed candidates. The governor’s staff reviewed the applications and told the department director the names of the persons who were to be appointed. Under the constitutional and statutory scheme, the governor can tell the department director which candidates he wants selected. The governor appoints the director of the department. The director serves at the governor’s pleasure. Mo. Const, art. IV, sec. 17. Though a statute may assign the appointment authority to a department or division, the director serves at the pleasure of the governor and can be removed if he or she fails or refuses to carry out the governor’s wishes. Mo. Const, art. IV, sec. 17.

The state contends that the judgment in this case violates the constitutional doctrine of separation of powers. The Missouri Constitution establishes three departments (commonly referred to as branches) of government — executive, legislative and judicial — and provides that “no person ... charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others.” Mo. Const, art. II, sec. 1. The courts “have the duty and obligation to protect the right of the legislative ... [or] ... the executive branch,” the state argues, “to exercise those powers specifically delegated to it in the same manner we would [protect against] a similar challenge to the powers of the judiciary.” State on Information of Danforth v. Banks, 454 S.W.2d 498, 500 (Mo. banc 1970).

Igoe’s claims actually were started in the executive branch with the fifing of his complaints with the Missouri Commission on Human Rights, an executive branch agency. The fifing of a complaint with the commission is a prerequisite to seeking judicial relief. Section 213.111. The commission had an opportunity to determine, in the first instance, the validity of Igoe’s claims because the commission and its staff have the statutory authority to investigate, to determine whether there is probable cause to believe discrimination has occurred, and to hold a hearing. Section 213.075. The commission did not hold a hearing on Igoe’s claims. No inference, however, can be drawn from the commission’s inaction. The commission has very limited resources and must determine which few cases to investigate thoroughly in order to proceed with its own hearing and determination of the claims. The other option is for the claims to be litigated— as Igoe’s were — after the commission has issued a letter giving notice of his right to sue. See Stuart v. General Motors Corp., 217 F.3d 621 (8th Cir.2000). In this case the commission issued Igoe a letter giving notice of his right to sue; this action was commenced under section 213.111 within 90 days of the notice.

Venue in Missouri Human Rights Act Cases

Although Igoe received a right-to-sue letter, he filed suit in the wrong venue. The basic question posed by the judgment of the circuit court—whether and to what extent the executive branch appointment authority over these administrative law judge positions is subject to the constraints of chapter 213—need not be addressed at this time. Reversal is warranted because venue was not proper in the circuit court of St. Louis City.

Igoe chose to assert claims under chapter 213 and to file those claims in state court. His action is subject to Missouri venue provisions. The fact that Igoe asserts a federal claim under Title VII does not make the federal venue statute, 42 U.S.C. sec.2000e-5(f)(3), applicable. Where a federal claim is brought in state court, venue is determined by reference to the laws of the state, not the federal statute. Bainbridge v. Merchants’ & Miners’ Transportation Co., 287 U.S. 278, 280-81, 53 S.Ct. 159, 77 L.Ed. 302 (1932).

Section 213.111.1 provides that “an action may be brought in any circuit court in any county in which the unlawful discriminatory practice is alleged to have occurred .... ” This is a specific venue provision; it supersedes the general venue statute, section 508.010. State ex rel. City of St. Louis v. Kinder, 698 S.W.2d 4,6 (Mo. banc 1985). Section 213.111 was interpreted in State ex rel. Diehl v. O’Malley, 95 S.W.3d 82, 91, fn. 18 (Mo. banc 2003) as limiting venue to “a county in which the unlawful discriminatory practice is alleged to have occurred” and not subjecting a defendant “to the range of plaintiffs venue options in chapter 508 available for civil cases generally.” Id.

Igoe, in his petition, was not required to plead facts establishing venue. "When the state defendants challenged venue in St. Louis, however, Igoe had the burden of showing that the city of St. Louis is “a county in which the unlawful discriminatory practice is alleged to have occurred.” The procedure for challenging venue is now expressed in Rule 51.045, but the burden of showing that venue is proper always has been with the plaintiff when venue is challenged. “Where venue is an issue, the plaintiff carries the burden of proof to show an honest belief that there is a justiciable claim against a resident party.” Raskas Foods, Inc. v. Southwest Whey, Inc., 978 S.W.2d 46, 49 (Mo.App.1998).

The only connection of this case to the city of St. Louis is that some of the vacant positions were in the city. It appears that all of the acts—the receipt and review of applications, the interviews, and the decision making—all occurred in Cole County. Igoe has not shown that any act occurred in the city of St. Louis; thus, he has not alleged that any “discriminatory practice” occurred, in whole or in part, in St. Louis.

Venue in Missouri is determined by statute. State ex rel. SSM Health Care v. Neill, 78 S.W.3d 140, 142 (Mo. banc 2002). A plaintiff who faces a challenge to venue must make allegations that bring his claim within an appropriate statutory venue provision. There is no support for Igoe’s contention that venue is proper in the city of St. Louis under section 213.111.

Conclusion

The judgment is reversed, and the case is remanded with directions to transfer this action to Cole County.

WHITE, C.J., STITH, J. and BLACKMAR, SR.J., concur.

LIMBAUGH, J., concurs in separate opinion filed.

PRICE, J., concurs in opinion of LIMBAUGH, J.

TEITELMAN, J., dissents in separate opinion filed.

RUSSELL, J., not participating.

STEPHEN N. LIMBAUGH, JR., Judge,

concurring.

I concur in the decision of the Court reversing the judgment for improper venue and transferring the case to Cole County. I write separately only to object to the obiter dicta discussion of issues other than the venue issue.

RICHARD B. TEITELMAN, Judge,

dissenting.

I respectfully dissent. The party challenging venue bears the burden of persuasion and proof to show that venue is improper. State ex rel. Etter, Inc. v. Neill, 70 S.W.3d 28, 31 (Mo.App.2002). A plaintiff is not required to plead venue. Wood v. Wood, 716 S.W.2d 491, 494 (Mo.App.1986).

Igoe did not specifically plead venue and the defendants’ arguments challenging venue in the City of St. Louis were limited to the application of the MHRA and Title VII venue provisions. Although the defendants bore the burdens of persuasion and proof, they did not make an argument that venue was improper under the MHRA. The MHRA governs venue in this case. Consequently, I would hold that the defendants did not carry their burden of proving that venue was improper in the City of St. Louis under the MHRA. The judgment should be affirmed.

      . All statutory references are to RSMo 2000 unless otherwise indicated.

      . The trial of Igoe's claim occurred before this Court's decision in State ex rel. Diehl v. O’Malley, 95 S.W.3d 82 (Mo.2003), which held that a plaintiff has a right to a jury trial in claims under section 213.010 et seq.

      . The director of the department is nominated by the Labor and Industrial Relations Commission, section 286.005.1, but the governor makes the appointment so that the person nominated generally is the one the governor would appoint.

      . When a statute assigns the appointment authority to a division, as section 287.610 does, the effect is that the General Assembly has thereby allowed the appointment to be made without Senate confirmation. See, Mo. Const, art. IV, secs. 19, 51. The statutory designation of the appointment power does not alter the governor’s constitutional prerogatives.

      .The record does not reflect at what point in the administrative process the commission issued the right-to-sue letter. Under the statute, if the commission does not elect to pursue the complaint under its own procedures, it can terminate the administrative proceedings by issuing a right-to-sue letter. Sections 213.075 and 213.111. This can be done sua sponte at any time within the statute of limitations period, without completing an investigation. Alternatively, a complainant is entitled to receive, upon request, a letter giving notice of his right to sue after his claim has been pending with the commission for 180 days or more where the commission has not completed its administrative processing and has not already issued a right-to-sue letter during that period. Use of the right-to-sue letter to terminate administrative proceedings conserves the commission's resources, because termination by a finding of no probable cause requires an investigation and is subject to judicial review. State ex rel. Martin-Erb v. Missouri Commission on Human Rights, 77 S.W.3d 600 (Mo. banc 2002).

      . By contrast, the federal statute, which does not apply in state court, specifies that venue in Title VII cases is proper in, among other places, "the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice....”

      . Igoe’s motion for attorney’s fees and costs is overruled.


author: PAUL M. SPINDEN, Judge.

text:
    STATE of Missouri, Respondent, v. Richard I. BUCHLI, II, Appellant.
    No. WD 62178.
    Missouri Court of Appeals, Western District.
    Sept. 28, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 23, 2004.
    Application for Transfer Denied Jan. 25, 2005.

      Michael L. Belancio, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels and Leslie E. McNamara, Office of Attorney General, Jefferson City, for Respondent.

      . To the extent that Buehli complains that the state’s evidence was insufficient to establish a financial motive for him to kill Armitage, motive is not an element of first-degree murder. State v. Petty, 967 S.W.2d 127, 139 (Mo.App.1998).

   PAUL M. SPINDEN, Judge.

A jury found that Richard I. Buchli II beat Richard Armitage to death in their law partnership office on May 5, 2000, in downtown Kansas City. The jury convicted Buchli of first-degree murder and armed criminal action. Buchli appeals on a number of grounds, including a challenge of the sufficiency of the state’s evidence. We affirm the circuit court’s judgment.

A legal assistant in the law office, Shannon Miller, apparently was the first to find Armitage after he was beaten. He was unconscious, lying on his office’s floor in a pool of blood. She had decided to investigate when she heard unusual growling and gurgling emanating from Armitage’s office. When she saw Armitage, she yelled for Buchli, who was in his office. Buchli took a few steps into Armitage’s office and told her to telephone 911. While Miller was talking on the telephone to emergency personnel, Buchli pulled Armitage from behind his desk and dragged him across the floor. Buchli testified that he moved Ar-mitage so he could assess his injuries and to make room to perform CPR, if needed. A brief time later, emergency personnel arrived and began administering aid to Armitage. When Buchli quit administering aid to Armitage, he had blood on his hands.

The emergency personnel transported Armitage to Truman Medical Center where he died two days later. Physicians concluded that the cause of death was nine or more blows to his head by a blunt object.

In investigating the incident, police determined that, at about 1:46 p.m. on the day of the incident, Armitage had received a long distance telephone call from a client with whom he had talked until 2:01 p.m. Miller had left for lunch a few minutes earlier. Buchli was in his office when she left. At about 2 p.m„ an employee in an office on the floor directly below Armi-tage’s and Buchli’s offices heard two loud noises that occurred close together. The employee thought that the noises sounded like file cabinets tipping over.

Buchli left the building at approximately 2:06 P.M., got into his car in the building’s parking garage, and drove it away. He returned to the parking garage at approximately 2:30 p.m. Buchli was smoking a cigarette on the building loading dock when Miller returned from lunch, and they walked together to the office. The office’s front door was locked. Miller unlocked the door, and she and Buchli went to their desks. Miller found Armitage beaten in his office a few minutes later.

Blood experts analyzed the clothes that Buchli was wearing on the day of the beating and found impact blood spatters on them. An impact spatter can result from an object’s hitting blood with force. Experts concluded from DNA testing that the blood on Buchli’s clothes was Armi-tage’s blood. The state’s experts concluded that at least two events produced the bloodstains on Buchli’s clothes and that they were consistent with Buchli’s being in close proximity to the victim when the spatter was produced and with Buchli’s being the attacker.

Sufficiency of the Evidence

Buchli contends that the state failed to produce sufficient evidence to support the jury’s verdict that, beyond a reasonable doubt, he was the person who caused Armitage’s death. In considering Buchli’s point, we must consider the evidence most favorable to the state to be true, and we must disregard evidence to the contrary. State v. Gilbert, 103 S.W.3d 743, 749 (Mo. banc 2003). We do not reweigh the evidence or determine witnesses’ credibility. Rousan v. State, 48 S.W.3d 576, 595 (Mo. banc 2001). We are obligated to reject the challenge if we conclude that the state presented enough evidence to permit a juror to find, beyond a reasonable doubt, that the defendant was guilty. Gilbert, 103 S.W.3d at 749.

A person commits murder in the first degree if he “knowingly causes the death of another person after deliberation upon the matter.” Section 565.020.1, RSMo 2000. Hence, the state’s burden was to establish that Buchli caused Armitage’s death by striking him, that Buchli was aware that his conduct was practically certain to cause Armitage’s death, and that Buchli acted with deliberation.

In attacking the sufficiency of the state’s evidence, Buchli first asserts that the time between when Armitage’s telephone conversation ended and when Buchli walked out of the building to his car was not sufficient for him to have been the assailant. He argues:

If Mr. Buchli [were] the assailant, the only way he could have committed the assault would have been to do so immediately after the telephone call ended. Under that scenario, Mr. Buchli had only four to nine minutes to beat his law partner nine times, ensure that there was no blood on his clothing, secrete the murder weapon in his briefcase (as argued by the state) without getting blood inside the briefcase ..., compose himself well enough to ride down [from the thirteenth floor] on the elevator, where he might meet other tenants of the building, casually walk through the parking lot to his Jeep, and then drive away without arousing suspicion.
There was no evidence to indicate how fast the elevators in the ... [b]uilding operate, but it is probable that no matter what time he left his office, Mr. Buchli spent at least a few minutes waiting for an elevator to arrive. This wait reduces that nine minute window of opportunity even further. Additionally, if Mr. Buchli had committed such a brutal attack on Mr. Armitage only minutes earlier, it would make sense that he would look at least somewhat flustered or in a hurry as he made his way to his car. Yet [a building employee] did not notice anything unusual about Mr. Buch-li’s appearance when he walked to his car[.] [The employee] did not even claim that Mr. Buchli drove out of the parking lot at a higher speed than normal. All of the evidence bearing on timing in this case indicates that there was no way Mr. Buchli could have committed the assault on Mr. Armitage within the four to nine minute window.

Buchli’s argument has merit only if his getting to his car in four to nine minutes after beating Armitage was truly impossible. Buchli’s own argument contradicts his assertion that/‘there was no way” for him to have beaten Armitage and still make it to his car within four to nine minutes without arousing suspicion. To the contrary, Buchli’s own argument, by setting out the variables that had to fall into place for him to accomplish the feat, describes how it was possible. Even assuming that the feat would have been difficult, the jury had a reasonable basis for concluding that this is precisely what happened. That Buchli could have gotten to his car in four to nine minutes after the beating was not impossible, so, viewing the evidence in the light most favorable to the jury’s verdict — as we are obligated to do— we cannot concur with Buchli that “there was no way” for him to have been Armi-tage’s attacker. From the state’s evidence, the jury had a sufficient basis for inferring that the attack of Armitage occurred while Buchli was in the building.

Moreover, Buchli told police three times that he left the building at 1:50 p.m. The surveillance videotape established that he did not leave the building until 2:05:52 p.m. “ ‘Exculpatory statements, when proven false, evidence a consciousness of guilt[.]’ ” State v. Clay, 975 S.W.2d 121, 140 (Mo. banc 1998), cert, denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999) (citation omitted). “Guilt may be inferred when an accused attempts to deceive the police, as in making a false exculpatory statement.” State v. Hibbert, 14 S.W.3d 249, 253 (Mo.App.2000).

The jury also had substantial evidence from which it could conclude reasonably that Buchli had Armitage’s blood on his clothes and shoes and that this was consistent with Buchli’s being the attacker. Buchli, however, attacks this evidence by contending that the jury could not rely on it because the state’s experts did not give opinions based on a reasonable degree of scientific certainty.

The rules regarding expert testimony are the same in criminal cases as they are in civil cases. State v. Maxie, 513 S.W.2d 338, 344 (Mo.1974), cert, denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402. The state’s experts based their conclusions on their training and experience in the field of blood analysis. An expert’s not speaking the precise phrase, “within a reasonable degree of scientific certainty,” does not render his or her testimony inadmissible if the expert’s testimony establishes that his or her opinion was based on reasonable certainty and not on speculation. Bynote v. National Super Markets, Inc., 891 S.W.2d 117, 125 (Mo. banc 1995).

Buchli asserts, however, that “ ‘[w]hen a party relies on expert testimony to provide evidence as to causation when there are two or more possible causes, that testimony must be given to a reasonable degree of certainty.’ ” Abbott v. Haga, 77 S.W.3d 728, 732 (Mo.App.2002) (citation omitted). But the Abbott court concluded only that an expert’s using “equivocal language” would render his or her opinion inadmissible. Id. at 733.

Buchli contends that the experts’ testimonies established at least two possible causes for the blood spatter on his clothing. The state’s experts concluded that the bloodstain evidence was consistent with Buehli’s being the attacker, and Buch-li’s experts concluded that the evidence was inconsistent with Buchli’s being the attacker but was consistent with blood spatters produced by clapping. Indeed, Miller testified that, while she was on the telephone talking to emergency personnel, she heard Buchli yelling Armitage’s name and two sets of handclaps. Although the state’s experts agreed that handelapping could cause blood spatters, both opined that handelapping did not cause the spatters on Buchli’s clothes and shoes.

State expert Stuart James testified that he based his conclusions and opinions on his experience and examination of the evidence in this case. Although he opined that handclapping was capable of producing blood spatter, he concluded that it was “a vague possibility” in this case. When asked whether or not he could state with a reasonable degree of scientific certainty that handclapping caused the bloodstains on Buchli’s clothes and shoes, he said, “Not as a single event. [W]hen you add the shoes, that fits with the beating situation as well, or additional events that cannot be accounted for by just clapping in one location.... You’ve got to clap in the right places at the right time.”

The state’s other expert, Linda Netzel, testified that, based on the totality of the case, she could rule out handclapping as the cause for the bloodstains on Buchli’s clothes and shoes. She opined, “[B]ecause we had multiple events occurring, we had two events on the shoes, another event on the shirt, and the events on the shoes to me, physically you could not produce this spatter doing clapping.”

Neither James nor Netzel used equivocal language in expressing their opinions. Both concluded that the blood spatter on Buehli’s clothes and shoes was consistent with Buchli’s being in close proximity to the victim when the spatter was produced and was consistent with Buchli’s being the attacker, and both concluded that hand-clapping did not cause the blood spatter as a single event in this case.

Buchli further asserts that insufficient evidence existed to show deliberation. “Deliberation” is a “cool reflection for any length of time no matter how brief.” Section 565.002(3), RSMo 2000. Proof of deliberation does not require a showing that the defendant contemplated his actions for a long period of time, and the fact-finder may infer it from the circumstances surrounding the crime. State v. Ervin, 979 S.W.2d 149, 159 (Mo. banc 1998), cert, denied, 525 U.S. 1169,119 S.Ct. 1090, 143 L.Ed.2d 91 (1999). Deliberation may be properly inferred where the defendant had ample opportunity to terminate the crime, where the victim sustained multiple wounds or repeated blows, or where the defendant and victim were involved in a prolonged struggle. Id. The evidence established that Armitage was beaten several times in the head with a blunt object and that the beating began in one part of the office and moved to another part. Such evidence shows repeated blows and multiple injuries to Armitage and indicates a struggle. From this evidence, the jury was reasonable in concluding that Buehli deliberated.

Viewing the evidence in the light most favorable to the verdict, we conclude that the state presented sufficient evidence from which a jury could find Buehli guilty beyond a reasonable doubt of murder in the first degree. Buehli’s contention is without merit.

Rebuttal Testimony

In his next point, Buehli contends that the circuit court erred in permitting John Wilson to testify in rebuttal about tests that he performed on carpeting that had been analyzed by defense experts. Buehli assets that Wilson’s testimony was improper because (1) the state did not show a chain-of-custody for the carpet, (2) the evidence was not proper rebuttal, and (3) the state violated discovery rules by not disclosing the tests performed by Wilson prior to trial. We disagree.

Armitage bled profusely onto his office’s carpet. The day after the beating, acting in accord with police instructions, the building’s manager hired a company to clean Armitage’s office. When the company’s personnel could not clean bloodstains from the carpet, they removed the carpet, placed it in a plastic bag, and took it to a dump. Police later recovered a bag with carpeting from the dump and stored it at the Regional Crime Lab.

At trial, defense expert Terry Laber testified that he had examined the carpet from Armitage’s office. The prosecuting attorney cross-examined him:

Q. [D]id you see any impact spatter on that carpet?
A. By the time I looked at the carpeting in this particular area, because of the bloodstaining and blood trails[,] I could not say whether there was spatter there or not at any one time. I couldn’t pick out individual spatters there.
Q. Did you attempt to do that?
A. I looked at areas there, and I looked around here for spatter. I looked around in this area for a void—
Q. Mr. Laber, I’m going to stop you a second. I’m still in this area back here around the general area where it says 11.
Did you look at the carpet in that area?
A. Yes.
Q. And you said you were unable to see any impact spatter on that carpet; is that what you just said?
A. I was unable to see whether there was impact spatter there or not because of the condition of the carpet.
Q. Did you notice any?
A. No. It was all smeared.
Q. I’m talking on either side of that. Did you notice anything there?
A. No.
Q. Did you use a microscope or attempt magnification to try to identify bloodstains in that area in terms of spatter?
A. I used a magnifying light source. I’m not sure that I used a[ — ]I mean the high-power microscope that we have[ — ]you couldn’t get the carpeting under that.
Q. Are you telling us we don’t know whether there is spatter in this area or not?
A. I’d say, I don’t know if there is spatter in that area because of the nature of the carpeting.
Q. Moving over here around this area that is just to the east of the pool of blood on the diagram, did you see any blood spatter on the carpet in this area?
A. Again, I couldn’t see any spatter.
Q. And again, did you attempt to look?
A. Yes.
Q. And you tried to identify it and you couldn’t?
A. Yes.
Q. Does that mean that you were unable to or you did not see any? I want to be clear on this.
A. Based on the carpeting, just whether there was spatter there or not.
Q. So that’s inconclusive?
A. Whether there was spatter or not is inconclusive.
Q. [Y]ou didn’t look at the carpet in such a way that you could note whether there was spatter there[;] is that right?
A. No, I did look at the carpet; because of the condition of the carpet I couldn’t tell whether there was spatter there or ... not.
Q. At the time that you examined it were you aware that some cleaning has been done to the carpet before it had been taken? That’s my question.
A. No.

To rebut Laber’s testimony, the prosecuting attorney called John Wilson, chief criminalist in charge of the Trace Evidence Section of the Kansas City Police Crime Laboratory, to testify about his examination of the carpet. Wilson testified that he examined the same carpet that Laber had examined, and he found 71 small blood spatters and four larger blood spatters on the carpet.

Buchli asserts that the circuit court erred in admitting Wilson’s testimony because the prosecuting attorney did not establish that the carpet was in the same condition when Wilson examined it as it was at the crime scene. Buchli claims that, because the carpeting had been subjected to some sort of cleaning process, had been removed from Armitage’s office, and had been sent to a dump, the prosecuting attorney did not provide a reasonable assurance that the carpet had not been tampered with or contaminated.

Wilson’s testimony, however, was rebuttal to the defense expert’s testimony regarding the carpet. Buchli’s expert, La-ber, had testified concerning his findings from examining the carpet after it was taken from the crime scene. Wilson testified that he retrieved the carpet from the freezer in the lab and gave it to Laber. He said that the container holding the carpet was sealed when he gave it to La-ber and that, when Laber finished examining the carpet, Laber resealed the bag and gave it back to Wilson. A week later, Wilson retrieved the same container that had been resealed by Laber and examined the same carpet inside the container that Laber had examined. Any deficiencies in the evidence as to whether the carpet was the actual carpet taken from the crime scene or whether it had been altered from its original state was brought about by the defense’s introduction of Laber’s testimony that he examined the carpeting and his identification of the carpet as that which was taken from the crime scene. “A defendant may not ... complain about matters he himself brings into the case.” State v. Kelly, 689 S.W.2d 689, 640 (Mo.App.1985).

Buchli also asserts that Wilson’s testimony was improper rebuttal because it was scientific or expert testimony and that the prosecuting attorney should have presented it in her case-in-chief. To the contrary, “ ‘[a]ny competent testimony that tends to explain, counteract, repel or disprove evidence offered by defendant may be offered in rebuttal of the defendant’s testimony or evidence.’ ” State v. Gardner, 8 S.W.3d 66, 72 (Mo. banc 1999) (quoting State v. Peterson, 518 S.W.2d 1, 3 (Mo.1974)). This would include expert testimony. The prosecuting attorney offered Wilson’s rebuttal testimony to counteract and to disprove Laber’s testimony that blood spatter could not be found in the carpet. We find no abuse of discretion.

Buchli also asserts that the circuit court should not have allowed Wilson’s testimony because the prosecuting attorney did not disclose the results of Wilson’s testing on the carpet before trial as required by Rule 25.03. We disagree.

Because Wilson was a rebuttal witness, the state had no obligation to announce to the defense that he was a witness. State v. Menteer, 845 S.W.2d 581, 586 (Mo.App.1992) (“Generally, there is no obligation to disclose rebuttal witnesses, unless they are called to rebut an alibi.”); State v. Cook, 5 S.W.3d 572, 576 (Mo.App.1999), cert, denied, 531 U.S. 943, 121 S.Ct. 339, 148 L.Ed.2d 272 (2000) (state must “identify a rebuttal witness before calling him or her at trial if the defendant relies on the defense of mental disease or defect[.]”). Moreover, “ Whether a witness may be a proper rebuttal witness is determined by the [circuit] court without regard to Rule 25.03.’ ” State v. Moody, 645 S.W.2d 152,157 (Mo.App.1982) (citation omitted).

To the extent that Buchli contends that the prosecuting attorney did not disclose the results of Wilson’s tests on the carpet, the record does not establish that the state did, in fact, possess any document, as described in Rule 25.03(A)(5), containing the opinions by Wilson about which Buchli complains. See State v. Enke, 891 S.W.2d 134, 137-38 (Mo.App.1994). “Rule 25.03 requires the state to disclose ... existing written statements or memoranda but it does not require a sum-marization of a witness’ testimony.” Id. at 138. Although State v. Kehner, 776 S.W.2d 396, 398 (Mo.App.1989), suggests that the state must disclose rebuttal evidence, if requested, under Rule 25.03, Wilson did not have “[a]ny reports or statements, ... made in connection with the particular case, including results of ... scientific tests, experiments, or comparisons[.]” The circuit court, therefore, did not abuse its discretion in permitting Wilson to testify in rebuttal about tests he performed on the carpet.

Closing Argument

In his next point, Buchli asserts that the circuit court erred in overruling his objections to the state’s improper closing arguments. He contends that the circuit court allowed the prosecuting attorney on rebuttal to redefine MAI-Cr3d 302.06 regarding “reasonable inferences” by encouraging the jury to “speculate and guess” as to the evidence and allowed the state to argue on rebuttal matters outside the evidence, implying that Buchli had committed other unknown and uncharged bad acts.

During the state’s rebuttal closing, the prosecuting attorney argued:

[T]his is the first instruction that you have in the case. Let me pick out something here that we’re going to talk about right now before we get any further. Right here, “It is your duty to determine the facts and determine them only from the evidence and the reasonable inferences to be drawn from the evidence.” That’s your job.
And [Buchli’s attorney] gets up here and tries to mislead you by saying you can’t guess, you can’t speculate—
[BUCHLI’S ATTORNEY]: Judge, I object to personalization.
THE COURT: Yeah.
[PROSECUTING ATTORNEY]: I’m merely stating what he said in closing arguments, Your Honor[;] I’m not personalizing.
[THE COURT]: Well—
[BUCHLI’S ATTORNEY]: Saying I misled the jury is wrong.
THE COURT: If that’s what you’re doing, overruled.
[PROSECUTING ATTORNEY]: He said to you, you cannot guess, cannot speculate. Well, you know what? That’s part of your job. Speculation is the same as drawing a reasonable inference from what you’ve heard.
You can’t answer every single question in this case. There are questions we don’t have answers to. And you do have to sit down and figure out what happened. You can speculate about the motive, there is nothing wrong with that.

Although Buchli objected in part to the argument, he did not object on the ground that it was inconsistent with the court’s instructions and the law. Buchli’s only objection at trial was that the prosecutor was improperly personalizing the argument; hence, he did not preserve the issue for review and is entitled, if at all, to plain error review only.

Rarely should an appellate court grant relief on assertions of plain error in closing argument. State v. Clemmons, 753 S.W.2d 901, 907 (Mo. banc), cert, denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). “This is because, in the absence of objection and request for relief, the [circuit] court’s options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention.” Id. at 907-08. The Supreme Court has instructed:

[T]he absence of an objection is fatal to the defendant’s contention [that the circuit court should have intervened, sua sponte, when a prosecutor makes an improper argument]. Had objection been made the trial judge could have taken appropriate steps to make correction. The defendant was not necessarily entitled to a mistrial. The judge could consider the state of the evidence and the apparent effect on the jury and might conclude that it would be sufficient to sustain the objection and then caution the jury if requested. Defense counsel did not give him this chance.

State v. Kempker, 824 S.W.2d 909, 911 (Mo. banc 1992). We find no basis for plain error review of this point. Indeed, we presume that the jury knew and followed the court’s instructions regarding reasonable doubt and reasonable inferences. State v. Madison, 997 S.W.2d 16, 21 (Mo. banc 1999). Moreover, although the prosecutor’s argument that “Speculation is the same as drawing a reasonable inference” was erroneous, taking the argument in context, she told the jury only that it could speculate on Buchli’s motive, which was not an element of the charged offense. See State v. Spidle, 967 S.W.2d 289, 298 (Mo.App.1998) (no plain error as a result of the state’s comments to the venire panel suggesting that it need not find all of the facts beyond a reasonable doubt but only find the elements of the crime beyond a reasonable doubt).

Buchli also contends that the circuit court abused its discretion in allowing the prosecuting attorney to argue on rebuttal matters outside the evidence by implying that Buchli had committed other, unknown and uncharged bad acts. During the closing argument on rebuttal, the prosecutor argued that Buchli lied to the Internal Revenue Service in reporting his income. Buchli objected, and the circuit court sustained the objection and instructed the jury to disregard the comment. The prosecutor then reminded the jury of evidence that indicated that in 1998, 1999, and 2000, Buchli had significantly more deposits going into his account than he claimed as income on his income tax returns. She said, “He’s misrepresenting what his income is or he’s stealing the money.” Buchli objected, but the circuit court overruled the objection. The prosecutor continued:

You can look at the income tax forms[;] you can see what he filed in terms of expenses and deductions ... he’s putting income down that is low compared to what is going into his personal account. Where is that money coming from? We don’t know. But he’s misrepresenting about what he’s having in income or else he’s getting money from some illegal source that’s going into his bank account.

Buchli objected, asserting that it was improper argument because the evidence did not support the prosecutor’s contention, and the circuit court sustained the objection. The prosecutor then continued her rebuttal argument:

And going back to the motive and the money being the framework, ladies and gentlemen, you know something happened. Did Richard Armitage find him taking money from the trust account? We don’t know. Did he catch him in some impropriety that he could report to the Bar—
[BUCHLI’S ATTORNEY]: Your Honor, this is just so outside the evidence and it’s so improper. There’s no evidence to support that.
[PROSECUTING ATTORNEY]: Your Honor, it’s argument and it’s rational.
[BUCHLI’S ATTORNEY]: It’s not proper argument.
THE COURT: Well, overruled.
[PROSECUTING ATTORNEY]: Ladies and gentlemen, something happened. Could have been that he caught him in some impropriety, something that would have challenged his very method of making money, his very existence.
What if he knew something [and] he said[,] “I’m going to report you,” or what if he said[,] “I’m not going to practice with you anymore[.] I’m tired of supporting you[.] I’m not going to continue the lease when it’s up next year.”
Something happened to make this man go out 'and make a decision to take Richard Armitage’s life.

To the extent that Buchli contends that the prosecutor’s arguments about Buchli’s lying to the IRS and about his getting the money from an illegal source were improper, the circuit court sustained Buchli’s objections to those arguments. Buchli requested no other corrective action. He received the relief he requested and cannot now complain of error. State v. White, 835 S.W.2d 942, 952 (Mo.App.1992).

The circuit court also did not abuse its discretion in overruling defense counsel’s other objections to the state’s rebuttal argument because the comments were reasonable inferences from the evidence. “Attorneys are allowed substantial latitude in closing argument, and may suggest reasonable inferences for the jury to draw from the evidence.” State v. Francis, 60 S.W.3d 662, 672 (Mo.App.2001). The prosecutor merely presented to the jury possible motives that may have been what prompted Buchli to' kill Armitage. From the evidence, the jury reasonably could have inferred that Buchli misrepresented his income. The prosecutor simply argued that “something happened” to make Buchli “go out and make a decision to take ... Armitage’s life.” Buchli’s contention is without merit.

Motion to Suppress

In his next point, Buchli asserts that the circuit court erred in denying his motion .to suppress and in admitting into evidence financial documents recovered during a search of Buchli’s house. Buchli contends that the search was unconstitutional because police did not have probable cause to search for the documents, because the application for the search warrant was not sufficiently particular as to those documents, and because police did not file a proper return.

Our review of a circuit court’s ruling on a motion to suppress is limited to determining whether or not the evidence was sufficient to support the circuit court’s ruling. State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990). We consider the facts in a light favorable to the circuit court’s denial of the motion to suppress. State v. Blankenship, 830 S.W.2d 1, 14 (Mo. banc 1992). We disregard any evidence contrary to the court’s decision. State v. Hutchinson, 796 S.W.2d 100, 104 (Mo.App.1990). We will reverse the circuit court’s ruling only if we find it was clearly erroneous. State v. Taber, 73 S.W.3d 699, 703 (Mo.App.2002).

The Fourth Amendment to the United States Constitution guarantees that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Probable cause is “determined from the four corners of the application of the search warrant and any supporting affidavits.” State v. Willis, 97 S.W.3d 548, 554 (Mo.App.2003). Whether or not probable cause exists in a particular case is a question of fact. State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990). Our review, therefore, is not de novo, and we give “great deference on review to the initial judicial determination of probable cause made at the time of the issuance of the warrant and we reverse only if that determination is clearly erroneous.” Id.

“The test for determining whether probable cause has been established for the issuance of a search warrant is the ‘totality of the circumstances.’ ” State v. Hill, 854 S.W.2d 814, 817 (Mo.App.1993) (quoting Illinois v. Gates, 462 U.S. 213,103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “ ‘In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Gates, 462 U.S. at 231, 103 S.Ct. 2317 (citation omitted). Search warrants, therefore, should not be deemed invalid by “interpreting affidavits in a hypertechnical rather than common sense manner.” Hill, 854 S.W.2d at 818. As such, the issuing magistrate must “make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238,103 S.Ct. 2317.

In the affidavit and application for a warrant to search Buchli’s house for “[tjrace evidence, a belt with blood, blood, receipts, documents, and correspondence,” Detective Randall Morris said:

On 05-05-00 at 1518 hours, officers of the Kansas City Police Department were dispatched to 106 W. 14th, Kansas City, Jackson County, Mo. on a reported ambulance call. Upon arrival they found the victim, Richard Armitage, in his office bleeding from the head. The victim was transported to Truman Medical Center where he later died from head trauma.
The victim’s business partner, Richard Buchli ... provided [his] clothing for lab examination. The clothing belonging to Buchli had high velocity blood spatter on his pants, shirt and shoes. The blood belonged to the victim.
After being interviewed on 05-05-00, Mr. Buchli was allowed access to his office. He reentered his office, the crime scene, on that date and according to the “key card” records reentered the office on 05-06-00 at 1015:05 hours and [at] 1029:15 hours on 05-07-00 and has continued to do business at 106 W. 14th. This would allow Mr. Buchli to transfer documents and trace evidence to his residence, along with the belt he was wearing.

The affidavit is clear that Buchli may have taken business documents to his home and that these documents could relate to Armitage’s murder. The affidavit supported a finding that finding evidence in Buchli’s house was probable.

Buchli asserts, however, that the application and warrant were not particular enough concerning documents to be seized during the search. The warrant listed only “receipts, documents, and correspondence,” permitting officers to conduct “an unrestrained search.” Assuming, however, that the warrant was defective for lack of particularity, the evidence was admissible nonetheless because officers acted in good faith reliance on the search warrant and did not conduct an unbounded search.

“[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” United States v. Leon, 468 U.S. 897, 916, 104 S.Ct. 3405 (1984). When police act in reasonable reliance on a facially valid search warrant issued by a detached and neutral magistrate, the exclusionary rule will not operate to bar evidence obtained under the search warrant, even though the warrant may be invalid. Id. at 920-21, 104 S.Ct. 3405; State v. Brown, 708 S.W.2d 140 (Mo. banc 1986).

Officer Randy Morris testified that during the search he was looking for financial documents, receipts, and correspondence and that police did not seize any items unless the materials related to Buchli’s finances. Officer Diane Lutman also testified that the search warrant authorized her to search for evidence pertaining to the homicide, including business documents and correspondence. Applying the good-faith exception to the present facts, the circuit court did not err in admitting the items seized pursuant to the search warrant, even assuming arguendo that the warrant was invalid.

Buchli asserts, however, that the good faith exception does not apply in this case because police misled the judge in obtaining the warrant. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). He alleges that the search warrant contained three lies: (1) “[ejxperts at the Regional Crime Lab stated this [blood spatter] could only be on someone within two feet of the victim when the injuries occurred,” (2) the belt Buchli was wearing on the date of Armitage’s attack was in Buchli’s home, and (3) digital photographs taken on the date of the murder show high velocity spatter on Buchli’s belt. Even stripping these challenged statements from the affidavit and application for search warrant, the affidavit and application were sufficient to establish probable cause to search. See State v. Laws, 801 S.W.2d 68, 71 (Mo. banc 1990).

Buchli also contends that the circuit court should have suppressed the evidence because officers did not leave an itemized list of the property seized with him after the warrant was executed and did not file a proper return. A return to a search warrant, however, is a ministerial act, and even the total failure to file a return does not affect a warrant’s validity. State v. Hunt, 454 S.W.2d 555, 559-60(Mo.), cert, denied, 400 U.S. 942, 91 S.Ct. 239, 27 L.Ed.2d 245 (1970); State v. Elliott, 845 S.W.2d 115, 120 (Mo.App.1993). Buchli’s contention is without merit.

Motion to Dismiss — Breach of Contract, Speedy Trial and Pre-Indictment Delay

In his next point, Buchli asserts that the circuit court erred in denying his motions to dismiss with prejudice because the prosecuting attorney acted in breach of contract, violated his Sixth Amendment right to a speedy trial, and violated his Fifth Amendment right' by the pre-indictment delay. We disagree.

On May 30, 2000, the prosecutor filed an information charging Buchli with murder in the second degree and armed criminal action. The next day, Buchli filed a request for a speedy trial pursuant to § 545.780, RSMo 2000. On June 8, 2000, the prosecutor and Buchli agreed to a special trial setting of October 30, 2000. On October 30, 2000, the parties appeared before the court and jointly requested a continuance of the special trial setting. Buchli’s attorney noted on the record that Buchli was waiving his right to a speedy trial and said, “The only thing I could ask is that whatever date we set it for with the experts that that would be the date that we would go.” The court granted the continuance and set the case for a special trial setting on April 16, 2001.

On March 20, 2001, the prosecutor applied for a continuance, and the parties appeared before the court on this matter two days later. The circuit court indicated that it would not grant a continuance and that, if the state was not ready to proceed, it should dismiss the case. In anticipation of the prosecutor’s seeking to dismiss the case without prejudice, Buchli filed a motion to dismiss the case with prejudice on March 23, 2001. Buchli asserted that any dismissal by the prosecutor would be made in an effort to obtain a de facto continuance and to thwart Buchli’s right to a speedy trial, which he had waived in exchange for the special trial setting on April 16, 2001. On March 29, 2001, the prosecutor filed a motion to dismiss the case, noting that the case would be re-filed.

On January 23, 2002, the prosecutor charged Buchli by indictment with murder in the first degree and armed criminal action. Buchli reasserted his right to a speedy trial on January 24, 2002. On February 11, 2002, Buchli filed a motion to dismiss, alleging breach of contract, a violation of his right to a speedy trial, and a violation of his right to due process because of pre-indictment delay. The circuit court overruled Buchli’s motion on June 6, 2002, and the case proceeded to trial on July 15, 2002. On appeal, Buchli asserts the circuit court should have granted his motion to dismiss with prejudice.

First, Buchli asserts that the state breached an agreement it had with him to go to trial on April 16, 2001. He contends that, when the parties agreed on a special setting date after his speedy trial waiver, the prosecutor waived her right to dismiss the case without prejudice. We disagree. The parties’ agreement was as to a trial date only. A nolle prosequi is a prosecutor’s formal entry on the record indicating that he or she will no longer prosecute a pending criminal charge. It results in a dismissal without prejudice unless jeopardy attaches to bar subsequent prosecution. Jones v. State, 771 S.W.2d 349, 351 (Mo.App.1989). “[A] prosecutor has broad discretion to determine when, if, and how criminal laws are to be enforced, and ... this decision is seldom subject to judicial review.” State v. Honeycutt, 96 S.W.3d 85, 89 (Mo. banc 2003) (citation omitted). Contrary to Buchli’s assertion, the state did not enter into an agreement with Buchli to give up its right to enter a nolle prosequi.

Second, Buchli contends that his Sixth Amendment right to a speedy trial was violated. In deciding whether a defendant has been denied his constitutionally-guaranteed right to a speedy trial, Missouri courts have adopted the four-prong balancing test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). State v. Owsley, 959 S.W.2d 789, 793 (Mo. banc), cert, denied, 959 S.W.2d 789 (1997). “The factors include the ‘[Uength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ ” Id. (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182).

The state filed the charges in the current case on January 23, 2002, and Buchli went to trial on July 15, 2002. This delay was less than six months. It was, therefore, not presumptively prejudicial. State v. Williams, 120 S.W.3d 294, 300 (Mo.App.2003). “Until there is some delay that is presumptively prejudicial, we need not inquire into the other three factors used to determine if the defendant has been deprived of his right to a speedy trial.” Id.

Buchli contends that we should consider the 10 months that the charges were pending in the first action in calculating whether the delay was presumptively prejudicial. In the first action, however, Buchli waived his right to a speedy trial, and jointly requested a continuance with the prosecutor for a special trial setting of April 16, 2001. Buchli, therefore, agreed to the delay, and such delay does not count in calculating whether the delay was presumptively prejudicial. “[T]he delay attributable to the defendant’s continuances, motion or other actions must be first subtracted from the total delay.” State v. Davis, 903 S.W.2d 930, 936 (Mo.App.1995). Moreover, to the extent that Buchli complains about the prosecutor’s voluntary dismissal of the charges, the period between the voluntary dismissal of the charges and their re-filing does not count in determining Sixth Amendment speedy trial violations. State v. Anderson, 687 S.W.2d 643, 647 (Mo.App.1985); United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982).

Third, Buchli asserts that the pre-indictment delay required dismissal of the charges with prejudice. “[T]he test for determining whether pre-indictment delay requires the dismissal of charges is whether (1) the defendant was prejudiced by a pre-indictment delay which (2) was intended by the prosecution to gain a tactical advantage over the defendant.” State v. Griffin, 848 S.W.2d 464, 467 (Mo. banc 1993). The defendant must show that the delay caused substantial prejudice to' his right to a fair trial. Dillard v. State, 931 S.W.2d 157, 163 (Mo.App.1996). Pre-indictment delay is prejudicial if it impairs the defendant’s ability to defend himself. State v. Clark, 859 S.W.2d 782, 786 (Mo.App.1993). “ ‘The prejudice shown must be more than the real possibility of prejudice inherent in any extended delay; that memories will dim, witnesses will become inaccessible, and evidence will be lost.’ ” A defendant must do more than speculate; he must indicate the nature of possible evidence which could be adduced. Id. (quoting United States v. Marion, 404 U.S. 307, 326, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)).

Buchli asserts that he was prejudiced because his ability to provide for himself economically was substantially impaired. Buchli, however, does not explain how this hampered his defense. He further claims that he was prejudiced because the state did not preserve the crime scene and because the crime scene was “obliterated by the remodeling of the building.” In particular, he complains about the alteration and cleaning of the carpeting. The cleaning company, however, attempted to clean carpeting the day after the murder. Failure to preserve the carpet as evidence was not a result of any pre-indictment delay.

Buchli also alleges that “possibly exculpatory [I]nternet service provider records were destroyed in the time between the dismissal of the first case and the filing of the second case.” Buchli contends that the records could have shown the exact time of the attack by showing when Armi-tage last used his computer. Buchli claims that he was deprived of the opportunity to discover this information because the first mention of Armitage’s being online when he was attacked was during the prosecutor’s closing argument. This claim, however, is too speculative to constitute the “substantial prejudice” which must be shown to demonstrate a violation of Buchli’s right to a fair trial and justify a dismissal.

Vindictive Prosecution

In his next point, Buchli contends that the circuit court abused its discretion in denying his motion to dismiss for vindictive prosecution. In the first filing of the charges, the prosecuting attorney charged Buchli with murder in the second degree. After entering its nolle prosequi, the prosecuting attorney re-filed and charged Buchli with murder in the first degree. Buchli asserts that the prosecutor failed to rebut the presumption of vindictiveness after the charges were increased. We disagree.

“To prove an allegation of prosecutorial vindictiveness, a defendant must show that the additional charges were brought solely to penalize him for exercising his constitutional rights and cannot be justified as a proper exercise of prosecutorial discretion.” State v. Miller, 981 S.W.2d 623, 629 (Mo.App.1998). “The test for prosecutorial vindictiveness is whether the facts show a realistic likelihood of vindictiveness in the prosecutor’s augmentation of charges.” State v. Gardner, 8 S.W.3d at 70. In making such determination, the courts consider two factors: “(1) the prosecutor’s stake in deterring the exercise of some right, and (2) the prosecutor’s conduct.” Id. The defendant bears the burden of showing that a realistic likelihood of vindictiveness exists. State v. Juarez, 26 S.W.3d 346, 354 (Mo.App.2000). “Only if this is shown does the burden shift to the prosecutor to show, by objective on-the-record explanations, the rationale for the [s]tate’s actions.” Id.

Buchli did not meet his burden of showing that the prosecutor enhanced the charge solely to penalize him for exercising his constitutional rights. Buchli points to two constitutional rights he as-serted which he claims led to the prosecution’s enhancement of the charge: his motion to suppress the evidence obtained from his residence and his motion to dismiss for violation of his right to a speedy trial. The pretrial exercise of a procedural right, such as the routine filing of a pretrial motion to suppress evidence, however, does not raise a presumption of pros-ecutorial vindictiveness. United States v. Goodwin, 457 U.S. 368, 381, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). “It is unrealistic to assume that a prosecutor’s probable response to such motion[ ] is to seek to penalize and to deter.” Id. Moreover, Buchli also waived his right to a speedy trial by agreeing to a continuance to a special setting for trial. Because Buchli did not meet his burden of showing that a realistic likelihood of vindictiveness exists, the state did not have to come forward with objective evidence justifying the pros-ecutorial action.

Cumulative Error

In his final point, Buchli contends that the circuit court abused its discretion by not dismissing the case or by not granting him a new trial because the cumulative effect of all the previously alleged errors prejudiced him. The Supreme Court has rejected this point: “ ‘Numerous non-errors cannot add up to error.’ Having determined that none of defendant’s previous points amount to reversible error, there can be no reversible error attributable to their cumulative effect.” State v. Gray, 887 S.W.2d 369, 390 (Mo. banc 1994), cert, denied, 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995) (citation omitted); State v. Gardner, 8 S.W.3d at 74.

Conclusion

We affirm the circuit court’s judgment convicting Buchli of murder in the first degree and armed criminal action.

EDWIN H. SMITH, Chief Judge, and HAROLD L. LOWENSTEIN, Judge, concur.

      . Three times, Buchli told police that he left the office at 1:50 p.m. An employee in the building testified that he saw Buchli walk out of the building at 2:10 p.m. The building’s security surveillance videotape set the time at which Buchli walked out of the building to his vehicle at 2:05:52 p.m. Twelve days after the attack, a police detective compared the time on his pager to the surveillance equipment. He discovered that the time on the surveillance equipment was three minutes behind the time on his pager. The detective, however, said that he did not know whether the time on his pager was accurate.

      . A building employee testified that he saw Buchli drive his vehicle into the parking garage at 2:28 p.m. The security surveillance videotape set the time of Buchli’s return to the parking garage at 2:30:05 p.m.

      . The claps were audible on the audio recording of the 911 call.

      . Buchli’s expert, Terry Laber, disagreed. He concluded that a single event and handclap-ping from the same location could have caused the blood spatter.

      . To the extent that Buchli relies on Gassen v. Woy, 785 S.W.2d 601, 605 (Mo.App.1990), for support of his contention that scientific or expert testimony is not proper rebuttal, we are not persuaded. The Gassen court simply said that "[a] party cannot, as a matter of right, offer in rebuttal evidence which was proper or should have been introduced in chief[J” Id. That the state could have presented the challenged evidence in its case in chief does not preclude its being offered in rebuttal. " 'It is within the [circuit] court’s broad discretion to allow evidence in chief to be introduced in rebuttal.' ” State v. Cameron, 604 S.W.2d 653, 657-58 (Mo.App.1980) (citation omitted).

      . Rule 25.03 says, "(A) Except as otherwise provided in these Rules as to protective orders, the state shall, upon written request of defendant’s counsel, disclose to defendant’s counsel such part or all of the following material and information within its possession or control designated in said request: ... (5) Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons [.]”

      . Mo. Const, art. I, § 15 (1945), provides identical guarantees: See also § 542.276, RSMo 2000.

      . Sound.net, Armitage’s Internet service provider, allegedly used an automatic log-off timer to disconnect a user from the Internet exactly 30 minutes from his or her last keystroke or mouse click. Sound.net destroyed its records as a matter of course around January 1, 2002.

      . Buchli contends that this case is analogous to State v. Quimby, 716 S.W.2d 327 (Mo.App.1986), in which the prosecutor informed the defendant that, if he requested a jury trial, the prosecutor would dismiss the misdemeanor charge and re-ñle it as a felony. Id. at 328. The Quimby court concluded no factual basis existed "on which it could be contended by the state that the felony charge was filed for any reason other than in retaliation for the request by appellant for a jury trial.” Id. at 330. The court found that the defendant was entitled to a jury trial on the original charge "without fear that an attempt to exercise that right would expose him to the risk of a substantially increased punishment.” Id. at 331. In this case, the prosecutor made no such threat to deter Buchli from filing a motion to suppress or from asserting his right to a speedy trial.


text:
    Janice C. CAMPBELL, Plaintiff Albert W.L. Moore, Jr., Appellant-Respondent, v. Joseph CAMPBELL, et al., Respondent-Appellant Rebbecca Lake Wood, Respondent.
    Nos. WD 62056, WD 62097.
    Missouri Court of Appeals, Western District.
    Sept. 28, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 23, 2004.
    Application for Transfer Denied Jan. 25, 2005.
    Albert W.L. Moore, Jr., Independence, pro se.
    Rebbecca L. Overman and Rickey L. Jeffries, Kansas City, MO, for Respondent.
    Robert K. Ball, II, Kansas City, MO, for Respondents-Appellants.
    Before ROBERT G. ULRICH, P.J., HAROLD L. LOWENSTEIN and EDWIN H. SMITH, JJ.
   ORDER

PER CURIAM.

Albert Moore appeals and Richard and Joseph E. Campbell cross appeal from the decree of distribution of the probate division approving the final settlement of the estate of Joseph F. Campbell. The appeals involve attorney’s fees of Mr. Moore for services performed for the estate. The judgment of the probate division is affirmed. Rule 84.16(b).