author: CROW, Judge.

text:
    STATE of Missouri, Respondent, v. David T. ROLLER, Appellant.
    No. 23340.
    Missouri Court of Appeals, Southern District, Division Two.
    Sept. 22, 2000.
    Motion for Rehearing and Transfer to Supreme Court Denied Oct. 19, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Nancy A. McKerrow, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for respondent.
   CROW, Judge.

A jury found Appellant guilty of murder in the second degree, § 565.021, and armed criminal action, § 571.015. The jury assessed punishment at twenty-five years’ imprisonment for each crime. The trial court entered judgment per the verdicts, running the sentences consecutively.

Appellant brings this appeal from that judgment. He maintains the trial court erred in (1) ordering voir dire by the State to proceed in his absence, and (2) receiving in evidence six weapons that were “unrelated to the murder” for which he was tried.

Because Appellant does not claim the evidence was insufficient to support the verdicts, this opinion sets forth only the evidence germane to Appellant’s claims of error.

On February 22, 1998, Appellant was residing with Catherine Stolp (“Victim”) and her daughter, Julie, a high school senior.

Julie arrived home around 10:00 p.m. that date. Her nineteen-year-old sister, Jody, a college student who resided “on campus,” and Jody’s boyfriend, Tyler Thompson, were there. So was Appellant. Julie testified: “[A]s I went inside Jody ... told me that mom was gone and that [Appellant] had told mom that if she left never to come back, because they were in an argument about Tyler and Jody being there at the house.”

Julie entered her bedroom and went to bed.

Jody, Tyler and Appellant left the residence around 10:30 in Tyler’s car.

Julie was awakened several hours later. She recalled: “Mom ... came home and she was just hysterical, wanting to know where [Appellant] was ... my bedroom door was shut and she came in and threw it open and just like, ‘Well, where’s he at?’ And I went like, T don’t know.’ ”

After that exchange, Julie tried to go back to sleep.

Sometime later, Jody, Tyler and Appellant returned to the residence. Jody estimated it was around 3:30 a.m.

Appellant, alone, entered the residence. Jody and Tyler departed.

Julie heard Appellant and Victim arguing. Julie recounted, “[T]hey were just both yelling back and forth.” During the argument, Julie heard a gunshot. She then heard Appellant say, “How’s that for scaring you.” She heard no voices thereafter.

A minute or two passed. Then, Julie heard another gunshot.

She arose, left her bedroom, and “peeked around the corner” to see “what was going on.” She saw Appellant “on the phone to 911.” Asked what she heard Appellant say, Julie responded, “They needed an ambulance over there.” Julie also heard Appellant say “[h]is girlfriend or wife or somebody had been shot.”

A “911 call taker” received Appellant’s call at 3:50 or 3:51 a.m. In the call-recorded on tape — Appellant said, “I was trying to scare my wife by shooting over her head and I think I just pulled down a little bit low.”

Appellant hung up while the “call taker” was contacting the fire department and police department. However, he called back. This time, he said, “She grabbed the gun and it just sort of went off, I was just threatening her.”

Meanwhile, Julie had retreated to her bedroom and telephoned her pastor’s wife. Julie explained, “I really didn’t know what had happened and I was hysterical and needed to calm down.” Julie feared Victim had been shot.

After talking briefly with the pastor’s wife, Julie exited her bedroom because she “wanted to see mom.”

Julie saw Appellant standing by the kitchen table. She asked him where Victim was. He gave her a “blank stare.”

Julie entered the living room and saw Victim in a chair, “leaning back with her eyes shut, with a bullet [hole] in her neck.” Julie “saw the blood.”

Julie never saw Appellant try to help Victim.

Officer Bridgeforth was dispatched to Appellant’s residence about 3:53 a.m. and arrived “within a minute or shortly after that.” Officer King arrived simultaneously with Bridgeforth. They saw no sign of forced entry.

Julie met the officers at the door. They entered and found Victim in a chair. Bridgeforth saw blood “oozing out of’ Victim’s neck wound.

Appellant was seated in a chair, smoking a cigarette, six to eight feet from Victim.

Bridgeforth checked Victim’s pulse and “found a very weak, slow pulse.”

Bridgeforth handcuffed Appellant and “handed him off to another officer who had come in.”

About that time, paramedics arrived and took Victim to a hospital.

Bridgeforth found a Lorcin .380 caliber semi-automatic pistol on the floor by the chair where Appellant had been seated. There were bullets in the magazine and one in the firing chamber.

Officer Novakovieh escorted Appellant from the residence to Novakovich’s patrol car. As Novakovieh opened the door, Appellant said, “It was no excuse, she scratched my forehead.” En route to jail, Appellant told Novakovieh he had “shot three times, the first two didn’t hit her, and it was an accident.” The gunshot injured Victim’s spinal cord, rendering her a quadriplegic. She also sustained brain damage “from not getting oxygen to her brain.” She never regained sufficient consciousness to communicate, and died in the hospital March 13, 1998. Death resulted from pneumonia, “a normal complication and result of the gunshot wound.”

Tyler Thompson talked to Appellant while Appellant was in jail. Asked at trial whether Appellant said anything about the shooting, Tyler responded: “I never got a straight answer ... he really did not confide in me.... [H]e didn’t know, he was asleep in his chair.”

Jody talked to Appellant sometime after the shooting; the date and place of the conversation are unrevealed by the record. Jody’s testimony:

“Q. Did you ask him what had happened the night of the shooting?
A. Yes.
Q. And what explanation did he give you?
A. He said that when he got home my mom was going to shoot herself, and that he convinced her to lay the gun on the coffee table between their two chairs, and the gun just went off.”

Julie testified without objection that Appellant owned guns. She added, “I was told that at the house they found seven.” Julie was aware Appellant kept a “real small gun” in a black bag that he carried with him. She recalled hearing him firing guns in “the basement of the house.”

Jody testified without objection that Appellant had “a lot” of guns in the house. She, like Julie, recalled he carried one in a black bag. Jody confirmed Julie’s testimony that Appellant practiced shooting “in the basement.” A wall there had “a bunch of holes in it.”

Officer Rader searched the residence of Appellant and Victim on the afternoon of February 23, 1998, pursuant to a search warrant. Rader testified without objection that in addition to the Lorcin .380 caliber pistol (found by Bridgeforth on the floor by the chair where Appellant was seated), he — Rader—found four to five other guns. Some were “underneath the bed in the bedroom in the lower part of the house,” and some were on shelves along the bedroom wall.

The transcript shows that prior to voir dire, the trial court heard argument on “some defense motions in limine.” The remarks of Appellant’s lawyer (“Defense Counsel”) included this:

“Number five, there were a lot of guns, pistols and rifles in the basement. We don’t see how this is relevant, particularly in view of the fact that a lot of their testimony is going to be that these were owned by the deceased. But I think the inference will be that these guns or pistols were owned or possessed by the defendant. We believe that that’s irrelevant and immaterial.”
The prosecutor responded:
“This element goes to the question of knowing, which is one of the elements that we have to prove. Mr. Roller has indicated on the 911 tape that it was an accident. He mentions fired over her head and the gun kind of rolled down and he shot her inadvertently. And we want to show the jury that this is a man who doesn’t just collect guns, this is a man who carries them with him, who fires them in the house. He has his only [sic] little tiny practice area down in the basement where he’s trying to line up his shots. This is a knowing act. And his knowledge of weapons and how to use weapons and the fact that he carries these weapons is very relevant to that.”
The trial court ruled:
“ ... if we’re going to have an issue as to whether or not this was an accidental shot or not, or whether his aim was bad, I’m going to allow the testimony that he’s got a range that he’s been practicing on, at least at some point. So that’ll be denied.”
Appellant’s second point relied on reads:
“The trial court erred and abused its discretion in overruling Appellant’s Motion in Limine and in permitting the State to introduce during trial, State’s Exhibits 43, 44, 45, 46, 47, and 48, six weapons which were unrelated to the murder for which Appellant was being tried because those rulings denied Appellant his right to due process and to a fair trial by a fair and impartial jury as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§10 and 18(a) of the Missouri Constitution as well as Missouri case law in that the admission of those unconnected weapons was inherently prejudicial since they had no probative value and could not assist the jury in deciding any of the issues presented in the case.”

The exhibits listed in the above point were offered by the State during the testimony of Officer Rader. The first one about which he testified was Exhibit 44. He identified it as a “Beretta, Model 21.” It was “one of the [guns] under the bed.”

At that point in the trial, Julie and Jody had already testified, and Rader had already testified about finding guns in the residence. Defense Counsel had registered no objection to any of that testimony.

A motion in limine preserves nothing for appellate review unless objections are made at the appropriate time during trial. State v. Copeland, 928 S.W.2d 828, 848[49] (Mo. banc 1996), cert. denied, 519 U.S. 1126, 117 S.Ct. 981, 136 L.Ed.2d 864 (1997). Because Defense Counsel voiced no objection to the testimony identified in the preceding paragraph, Appellant cannot, in this appeal, use his motion in limine as a basis for claiming the trial court erred in receiving (a) Julie’s testimony about Appellant’s guns and his shooting in the basement, (b) Jody’s testimony about Appellant’s guns and his shooting in the basement, and (c) Rader’s testimony about finding guns in the residence. Furthermore, where testimony is received without objection, no issue about its admissibility is preserved for appellate review. State v. Graves, 588 S.W.2d 495, 499[4] (Mo. banc 1979). Consequently, inasmuch as Defense Counsel remained mute while the State presented the evidence referred to in this paragraph, Appellant cannot now question its admissibility.

After Rader identified Exhibit 44, the State offered it in evidence.

Defense Counsel said, “We’ll object to it, Your Honor.”

The trial court overruled the objection and received Exhibit 44 in evidence.

Specific objections are required to evidence; the objection must call the trial court’s attention to the ground or reason for the objection to the proffered evidence. State v. Lang, 515 S.W.2d 507, 511[6] (Mo.1974). An objection such as “we object” preserves no question for appellate review. Id. at [7]. The trial court must be given an opportunity to rule upon an objection giving stated reasons for exclusion of the challenged evidence. Id.

Measured by Lang, Defense Counsel’s objection to Exhibit 44 preserved nothing for appellate review. Consequently, Appellant’s second point is denied as to Exhibit 44.

After Exhibit 44 was received, Rader identified Exhibit 46 as a gun that “came from under the bed,” Exhibit 43 as a gun that “came out of the bedroom downstairs,” Exhibit 45 as “a two shot Derringer” that “also came out of the bedroom,” Exhibit 47 as another weapon he seized in the residence, and Exhibit 48 as “a single shot firearm” he found “in the master bedroom downstairs.”

Defense Counsel objected to Exhibits 43 and 45 through 48. The trial court received those exhibits in evidence. While some of Defense Counsel’s objections were not as precise as they could have been, this court shall consider them sufficient to preserve the claim of error in Appellant’s second point.

Appellant maintains the exhibits listed in the preceding paragraph were immaterial to any issue at trial, as the State “knew that the Lorcin .380 found near Appellant’s chair was the weapon used to shoot [Victim].” Therefore, argues Appellant, “Introduction of these unrelated weapons served no purpose other than to prejudice the jury.”

Any error in receiving evidence is not considered prejudicial where similar evidence has been received elsewhere in the case without objection. State v. Brown, 949 S.W.2d 639, 642[5] (Mo.App. E.D.1997); State v. Matheson, 919 S.W.2d 553, 557-58[7] (Mo.App. W.D.1996).

Here, when the trial court received Exhibits 43 and 45 through 48, the jurors had already heard Julie’s testimony about Appellant’s guns and his shooting in the basement, Jody’s testimony about Appellant’s guns and his shooting in the basement, and Rader’s testimony about finding guns in the residence. As underscored earlier in this opinion, all of that testimony was received without objection. Additionally, Exhibit 44 had already been received over an objection that was insufficient to preserve any issue for appellate review. This court is unpersuaded that Appellant was prejudiced by Exhibits 43 and 45 through 48, as they established little, if anything, the jurors did not already know from earlier evidence.

The only prejudice Appellant identifies in the argument following his second point is that the State used Exhibits 43 and 45 through 48 as a basis for the following argument to the jury: “The defendant knew guns. Remember that wide array of guns that we showed you that were found in his house.”

That argument could have been made whether or not Exhibits 43 and 45 through 48 were received in evidence. Julie’s testimony about Appellant’s guns and his shooting in the basement, Jody’s testimony about Appellant’s guns and his shooting in the basement, and Rader’s testimony about finding guns in the residence supplied an ample basis for the State’s argument. This court therefore rejects Appellant’s complaint that the exhibits identified in this paragraph created jury prejudice against him.

There is a second reason Appellant’s second point supplies no basis for reversal.

A weapon found at or near the scene of a crime is usually held admissible if it “throws any relevant light upon any material matter in issue.” State v. LaRette, 648 S.W.2d 96, 103-04[12, 13] (Mo. banc 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). Generally, it may be said that any legally competent evidence which, when taken alone or in connection with other evidence, affords reasonable inferences upon the matter in issue, tends to prove or disprove a material or controlling issue or to defeat the rights asserted by one or the other of the parties, and sheds any light upon or touches the issues in such a way as to enable the jury to draw a logical inference with respect to the principal fact in issue is relevant and admissible. State v. Knight, 356 Mo. 1233, 206 S.W.2d 330, 333[9] (1947). Trial courts are given broad discretion on questions of relevancy of evidence and, without a clear showing of an abuse of that discretion,appellate courts will not interfere with the trial court’s ruling. State v. Parkhurst, 845 S.W.2d 31, 36[11] (Mo. banc 1992). Judicial discretion is abused when a trial court’s ruling is clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the trial court’s action, it cannot be said that the court abused its discretion. Anglim v. Missouri Pacific Railroad Co., 832 S.W.2d 298, 303[8] (Mo. banc 1992), cert. denied, 506 U.S. 1041, 113 S.Ct. 831, 121 L.Ed.2d 701 (1992).

Here, Appellant admitted in the first 911 call that he was trying to scare Victim by shooting over her head and he “pulled down a little bit low.” Shortly thereafter, he told Officer Novakovich that he shot three times and “it was an accident.”

The State’s theory was that Appellant shot Victim intentionally, not accidentally, hence he committed murder in the second degree. Defense Counsel told the jurors in final argument: “Recklessness and carelessness and involuntary manslaughter is what we’re asking. [] ... The state has failed to make their [second degree murder] case.”

Obviously, to convict Appellant of murder in the second degree, the jurors had to accept the State’s theory that Appellant shot Victim intentionally, not recklessly. The trial court’s ruling on Appellant’s motion in limine shows the court concluded Appellant’s level of skill in handling firearms was relevant to that issue. Consequently, the court indicated it would allow the State to present evidence that Appellant had guns at the residence and practiced shooting them. Receiving Exhibits 43 through 48 in evidence enabled the jurors to see the guns Julie, Jodie and Rader had already testified about, and to evaluate Appellant’s ability to handle firearms and avoid mishaps.

Applying LaRette, 648 S.W.2d at 103-04[12, 13], Knight, 206 S.W.2d at 333[9], Parkhurst, 845 S.W.2d at 36[11], and Anglim, 832 S.W.2d at 303[8], discussed earlier in this opinion, this court cannot convict the trial court of abusing its discretion in ruling that Exhibits 43 and 45 through 48 were relevant to the issue of whether Appellant shot Victim intentionally or only recklessly. For that reason and the one set forth earlier, this court denies Appellant’s second point.

The events on which Appellant bases his first point began on the first day of trial, September 7, 1999. Appellant appeared in person and with Defense Counsel. The trial court ruled on several issues (including the one that was the subject of Appellant’s second point) before convening the venire at 10:17 a.m.

At 11:38 a.m., during voir dire, the trial court recessed the venire for lunch. During the recess, the trial court announced:

“Okay, we’re on the record in State versus Roller. Present are all of the attorneys. Mr. Roller is not present.[] Counsel, I understand there’s something you want to take up on the record at this time.”
Defense Counsel responded:
“Defense counsel is moving at this time to, with leave of Court, to enter a plea of not guilty by reason of mental disease or defect excluding responsibility on the grounds that the defendant is not able to aid counsel today, on September 7th, 1999, in his own defense. And in the alternative for a continuance to have him examined mentally prior to entering such a plea, and/or, in the alternative, for a physical examination of him today or tomorrow to determine whether the man is physically able to endure this trial.
He is unable to aid counsel ... so we are either moving for a mental exam by entering a plea of not guilty by reason of, or we’re moving for a continuance ... for twenty-four or forty-eight hours to get him examined, or third, in the alternative, we’re moving to withdraw as counsel of record in this case.
Without abridging the attorney-client privilege, our client today, for the first time, has voiced complaints against us, that we haven’t spent enough time with him. He’s arguing with us over trial strategy, such as whether to call good character witnesses, which will kill him because of his prior arrests that he has, which a good character witness can be cross-examined about.
He is changing his story repeatedly. Without telling you what the story is, it affects how I’m going to do the voir dire and the opening statement. He is denying what is in the written depositions. He’s arguing with us. He has illusions. It’s almost as if he isn’t here and we are not on the same wave length.”

Defense Counsel reminded the trial court that Appellant was afflicted with several physical maladies and took a multitude of prescribed medications. Defense Counsel continued:

“ ... I don’t feel that I can tell you what he wants me to argue in the case. But I can tell you that if I argue and handle this case the way he’s now ... demanding and insisting that I do it, this man would be convicted of perjury if he was charged with it....
And I’m arguing with him, talking with him, and you can’t get an answer out of him, and he goes on with circuitous reasoning for ten or fifteen minutes, and argues and argues....
Now, I’m not claiming that he was crazy February 23rd of ’98.[] ... I’m claiming that today he cannot aid counsel in his own defense.... I believe it’s from the multiplier effect of all these medicines....
And I realize the Court may say you should have thought of all this and everything. All I know is today he cannot aid me and I’m ineffective. And I don’t mind getting out and making a refund of his money.”

The prosecutor expressed skepticism, saying:

“ ... I think this is another delaying tactic. This is nothing new for Mr. Roller. And it’s nothing new for [Defense Counsel] in dealing with it. If the Court has a concern, I think there is a physician that comes to the jail on a regular basis and we may arrange to have that person see him tonight or whenever the Court wants to do that, to determine if he, in fact, has some ... condition that’s clouding his ability to proceed at this point.
But it looks to me like Mr. Roller is getting around just fine. I’ve seen him in the hall. He doesn’t seem to be having any difficulty. The Court may want to speak to him directly and see if he seems to be clear and coherent and cogent, or if this is another delaying tactic that Mr. Roller is employing, or another manipulative design, because I’m convinced that he is using his medical condition as a delaying tactic.”

The trial court expressed a desire “to finish voir dire as much as we can today and have him examined tonight and have some kind of report for me in the morning.”

After further discussion, the court ruled that Appellant would be immediately escorted to jail by the bailiff to undergo a physical examination by Dr. Shane. After that, Appellant would report to the office

of Dr. Meyars — “a private doctor of his own choosing” — for another physical examination at 3:30 p.m. The trial court further ordered Appellant to undergo a psychological evaluation by Dr. Burstin, a psychiatrist, at 9:00 the following morning (September 8, 1999) to determine whether “he’s currently competent to stand trial and assist counsel in this case.” After that, Appellant was to return to the courtroom.

The trial court informed the prosecutor and Defense Counsel that voir dire would proceed in Appellant’s absence, “at least to the extent of allowing the state to ask its questions of the panel.” The court added: “Once the state has completed its voir dire questions we will recess and not take up again until after we have Dr. Burstin’s evaluation tomorrow morning.”

Voir dire resumed at 1:58 p.m. Defense Counsel immediately asked for, and received, permission from the trial court to make a record outside the presence of the venire. During that exercise, Defense Counsel asserted Appellant “has the right to be present.” Consequently, Defense Counsel objected to “going further without him being here.”

The prosecutor responded:
“If he is not competent, then we’re going to have a problem in any event. We’d probably have to stop the trial until he’s found competent. If he is competent, then I think what the Court can conclude is that Mr. Roller is deliberately manipulating, creating the situation as his desire to delay the trial. And the Court does have the ability to proceed without Mr. Roller when it is his actions that are causing the problems.”
The trial court agreed, saying:
“If he’s incompetent, then we certainly won’t be proceeding forward with the trial. And if he is competent, I think it can be interpreted as a device to try and delay this proceeding.”

Defense Counsel expressed concern that the venire would draw an adverse inference from Appellant’s absence. The trial court said it would announce that Appellant was absent at the court’s direction.

Voir dire thereupon resumed. The trial count announced that Appellant was absent at the court’s direction and the venire was to draw no inference “one way or another.”

The State completed its voir dire during the afternoon. The prosecutor and Defense Counsel agreed that one venire member should be stricken for cause. The court then adjourned overnight.

Proceedings resumed at 12:40 p.m. the next day, September 8, 1999. Appellant appeared in person and with Defense Counsel.

The record establishes that Dr. Shane and Dr. Meyars concluded Appellant was physically able to stand trial, and Dr. Bur-stin concluded Appellant, although suffering from depression and anxiety, was mentally able to proceed with trial.

The trial court found Appellant “physically and mentally competent to stand trial.” Accordingly, the court denied Defense Counsel’s motion for continuance and motion to withdraw.

The prosecutor asked the trial court to order that Appellant be placed in custody for the duration of the trial so his condition could be monitored and jail personnel could ensure he took the proper medication.

The trial court announced it would grant the prosecutor’s request based on the court’s “inherent powers to preserve this trial setting.” The court added Dr. Shane would be directed to make sure Appellant was “taking his medications as directed by his physicians.”

Defense Counsel objected to that procedure, reminding the trial court that Appellant was free on bond. After a private discussion with Appellant, Defense Counsel told the trial court Appellant indicated jail personnel “put him in the old part of the jail” which is “not air conditioned and not very pleasant.” Defense Counsel asked the court to have Appellant placed “in the newer part of the jail.”

The trial court reconvened the venire at 1:30 p.m., September 8, 1999, and Defense Counsel, with Appellant present, began voir dire.

During an afternoon recess, the trial court told counsel it had received a message from the jail that “they don’t have access to all Mr. Roller’s medications.” The court asked for suggestions to solve the problem.

After conferring with Appellant, Defense Counsel recommended that the court let Appellant “go home tonight [and] direct him to bring all of his paraphernalia tomorrow.”

The trial court granted that request, directing Defense Counsel to instruct Appellant to “report back tomorrow” with “all his medications.”

The trial then proceeded without any further dilemma until overnight adjournment at 6:25 p.m.

Appellant appeared in person and with Defense Counsel on the morning of the third day of trial (September 9, 1999). That day passed without any problem about Appellant’s mental or physical condition. During the overnight adjournment, Appellant was housed in jail.

When the trial resumed the next morning (September 10, 1999), Defense Counsel complained that Appellant “was not allowed to shave last night.”

Appellant then interjected, “I wasn’t allowed to bathe.”

Defense Counsel also complained that Appellant “was withheld all of his pain medication.”

Appellant identified the medication as Oxycodone and Valium.

The trial court assured Defense Counsel and Appellant it would investigate the matter and “make sure that doesn’t happen again.”

After that, the fourth day of trial passed without any further problem regarding Appellant’s mental or physical condition.

The trial resumed at 9:05 a.m., September 13, 1999. Defense Counsel told the trial court Appellant did not receive needed medication the previous night and was not “particularly alert to what’s going on today.” Defense Counsel asked for a continuance.

The prosecutor responded that Appellant “seems to be quite mobile.” The prosecutor continued: “I was here when he was speaking to counsel earlier. He certainly was not making any effort to make it a secret. He appears to be quite coherent and able to carry on conversations.”

The trial court remarked that Appellant’s appearance seemed to be “satisfactory and not different from what I’ve observed throughout the trial.” The court denied the motion for continuance.

Nothing else noteworthy occurred during the fifth day of trial or the sixth (and final) day, September 14,1999.

On November 17, 1999, the trial court took up Appellant’s motion for new trial. Appellant appeared in person and with Defense Counsel.

Defense Counsel argued, inter alia, that the trial court erred in conducting voir dire on the afternoon of the first day of trial when Appellant was absent from the courtroom, being examined by Dr. Shane and Dr. Meyars.

In denying the motion for new trial, the trial court remarked:

“He claimed to have a fever and some other problems that turned out not to be true. In my opinion his absence, although important, is able to be waived under certain conditions. And I believe that the facts did not support his claim and it was an attempt to delay the beginning of our trial and that he forfeited the right to be present during that portion of the voir dire.”
Appellant’s first point relied on reads:
“The trial court erred in ordering the trial to continue and the State to conduct its voir dire examination of the jury in Appellant’s absence because that action violated Appellant’s rights to due process, a fair trial and to be present during all critical stages of his trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United State Constitution, by Article I, §§ 10 and 18(a) of the Missouri Constitution, by § 546.080 and by Rule 31.03(a) V.A.M.R. in that Appellant did not voluntarily absent himself nor did he or counsel waive his right to be present during trial.”

In adjudicating the above point, this court shall assume the constitutional provisions cited in the point, together with the statute and rule identified there, conferred upon Appellant the right to be present throughout the entire voir dire. See: State v. Knese, 985 S.W.2d 759, 776-77[51, 52] (Mo. banc 1999), cert. denied, 526 U.S. 1136, 119 S.Ct. 1814, 143 L.Ed.2d 1017 (1999); State v. Smulls, 935 S.W.2d 9, 17[11] (Mo. banc 1996), cert. denied, 520 U.S. 1254, 117 S.Ct. 2415, 138 L.Ed.2d 180 (1997). Although Appellant concedes the right may be waived, he insists “no waiver occurred in this case, either by Appellant personally, or by counsel.”

An accused can lose his right to be present at trial by misconduct. Illinois v. Allen, 397 U.S. 337, 342-43, 90 S.Ct. 1057, 1060-61, 25 L.Ed.2d 353 (1970). While this court finds no Missouri case factually similar to this one, three Missouri cases are helpful by analogy.

In State v. Drope, 462 S.W.2d 677 (Mo. 1971), the accused, free on bond, was being tried by jury for a felony. Id. at 679-80. After four witnesses testified, the court recessed. Id. at 680. The accused did not appear the following morning. Id. The court ordered the trial to proceed; the accused was convicted. Id. at 679-80. After hearing evidence on the accused’s motion for new trial, the trial court found the accused intentionally shot himself to avoid attending the trial. Id. at 680-81. Affirming the conviction, the Supreme Court of Missouri, after an extensive discussion of an accused’s right to be present at trial, concluded an accused should not be at liberty, whenever he pleases, to break up a trial already commenced. Id. at 683. The practical result of such a proposition would be to prevent any trial whatever until the accused permitted it. Id.

In State v. Warren, 579 S.W.2d 723 (Mo.App. E.D.1979), the accused, free on bond, was being tried by jury for a felony. Id. at 724. He failed to appear on the second day of trial. Id. at 725. After efforts to find him were unsuccessful, the court ordered the trial to proceed; the accused was convicted. Id. Later, the accused told the court he arrived at the courthouse on the second day, but became “scared” and left. Id. The appellate court held the accused voluntarily and willfully absented himself from part of his trial and thereby waived his right to be present, hence the trial court did not err in proceeding with the trial. Id. at 727.

In State v. Welth, 744 S.W.2d 889 (Mo.App. S.D.1988), the accused was being tried by. jury for six felonies. Id. at 890. He asked to be removed from the courtroom as a protest for what he considered inadequate medical treatment in jail and the failure of the county to provide him a prescription. Id. at 891. The trial court granted the request. Id. at 890-91. The accused was convicted. Id. at 890. The appellate court affirmed. Id. at 891.

The gist of Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353, and the three Missouri cases last discussed is that an accused, through his own conduct, can forfeit his right to be present at his trial. Furthermore, an accused has no right to abort a trial in progress. Drope, 462 S.W.2d at 683.

Here, Appellant had been free on bond some fourteen months prior to trial. According to Defense Counsel’s statement to the trial court on the first day of trial, Appellant had expressed no complaints to Defense Counsel during that period and had voiced no disagreements about trial strategy until voir dire commenced. Then, according to Defense Counsel, Appellant unexpectedly became argumentative and unreasonable, making it impossible for Defense Counsel to provide effective representation.

The trial court aptly observed that if Appellant’s sudden change in behavior was caused by mental or physical afflictions, the trial could not proceed; however, if such behavior was feigned, it was a “device to try and delay this proceeding.”

The court-ordered examinations confirmed the prosecutor’s suspicion that Appellant’s behavior toward Defense Counsel was a charade designed to vex Defense Counsel and induce him to seek relief that would derail the trial. That there was in fact no disaffection between Appellant and Defense Counsel was demonstrated by Appellant’s remarks during the post-trial procedure required by Rule 29.07(b)(4), Missouri Rules of Criminal Procedure (1999). There, this dialogue occurred:

“THE COURT: ... let me talk to you ... as far as the job that your attorneys did for you in defending you in the ease, were you satisfied with their services?
MR. ROLLER: Yes, sir, I was.
THE COURT: Do you feel like they did a correct and proper job in representing you?
MR. ROLLER: I feel like they done an excellent job.
THE COURT: All right. Well, that was my view of it as well, but I wanted to make sure that you had a chance, if there is anything that you think was subpar from them or not up to snuff, I want you to tell me about it.
MR. ROLLER: No, sir.”

That Appellant’s behavior toward Defense Counsel on the first day of trial was a ploy to stop the trial is further demonstrated by Appellant’s conduct after the doctors pronounced him physically and mentally able to stand trial. During the overnight adjournment after the second day of trial, Appellant was able to go home, gather his medicine, and appear at the appointed time on the third day of trial.

When it became evident that the trial court was not deceived and would go forward with the trial, Appellant began complaining about his treatment at night in jail. On the morning of the fourth day of trial, Defense Counsel, on Appellant’s behalf, told the trial court Appellant was not allowed to shave. Appellant himself then protested he was not allowed bathe. Appellant also identified two medications that were withheld. At the start of fifth day of trial, another complaint about lack of medication prompted Defense Counsel to again request a continuance. The trial court denied the request, noting that Appellant’s appearance did not seem different from what the court had observed throughout the trial.

In sum, besides receiving the doctors’ verbal reports, the trial court had the opportunity to observe Appellant throughout the six days of trial. The court’s comments in denying Appellant’s motion for new trial show the court believed Appellant’s behavior on the first day was a stratagem to postpone the trial. This court holds the record supports the trial court’s finding.

Consequently, whether the complaint in Appellant’s first point mandates reversal of the judgment and a new trial hinges on whether, by his guileful conduct, Appellant waived his right to be present on the afternoon of the first day of trial during the State’s voir dire.

Had Appellant engaged in disruptive behavior that made it impossible to conduct his trial in an orderly and decorous manner, he could have been removed from the courtroom. Allen, 397 U.S. at 343-47, 90 S.Ct. at 1060-63; State v. Moton, 733 S.W.2d 449, 452[5] (Mo.App. E.D.1986). Had that occurred, Appellant would not have been present during the State’s voir dire.

Here, Appellant’s conduct on the first day of trial did not offend the decorum of the proceedings or create a disruption in the jury’s presence, but it did prevent Defense Counsel from conferring in a meaningful way with Appellant about voir dire. During Defense Counsel’s entreaty to the trial court, Defense Counsel lamented: “We’ve asked [Appellant] to help us pick the jury, to write things down, which he is literate.... And he is unable to aid us one iota in helping to pick the jury. He isn’t rational. And we are ineffective as a result of it.”

Faced with Defense Counsel’s announced plight, the trial court had to determine whether Appellant’s demeanor toward Defense Counsel was genuine or staged. The court enlisted the doctors to find out. Obviously, Appellant could not be in the courtroom when Dr. Shane and Dr. Meyars were examining him; consequently, he missed the State’s voir dire. However, according to Defense Counsel, Appellant’s attitude was making it impossible to confer about voir dire anyway.

The question this court must decide is whether Appellant should now be rewarded for his scheme by obtaining a new trial.

This court believes not. To award a new trial in this case would give defendants in criminal cases carte blanche to fabricate day-of-trial crises with their lawyers in the hope of forestalling the trial. Justice Brennan, concurring in Allen, wisely observed:

“To allow the disruptive activities of a defendant ... to prevent his trial is to allow him to profit from his own wrong. The Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes.”

397 U.S. at 350, 90 S.Ct. at 1064.

This court holds Appellant, by his own artifice, relinquished his right to be present on the afternoon of the first day of trial. His first point is denied, and the judgment is affirmed.

BARNEY, C.J., and PREWITT, J., concur.

PER CURIAM.

In a motion for rehearing or, in the alternative, to transfer this case to the Supreme Court of Missouri, Appellant avers State v. Drope, 462 S.W.2d 677 (Mo.1971), one of the cases relied on by this court in denying Appellant’s first point, “was reversed by the United States Supreme Court in Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).” That averment is misleading.

After the Supreme Court of Missouri affirmed the judgment in Drope, the accused evidently filed no petition for a writ of certiorari in the Supreme Court of the United States. Instead, the accused commenced a proceeding for post-conviction relief under former Rule 27.26. 420 U.S. at 168, 95 S.Ct. at 902. The motion court denied relief; the Missouri Court of Appeals affirmed. 420 U.S. at 169, 95 S.Ct. at 903. The Supreme Court of the United States granted certiorari. 420 U.S. at 171, 95 S.Ct. at 903.

The Supreme Court of the United States held the accused’s “suicide attempt,” coupled with the information about his mental condition prior to trial and the testimony of his wife at trial, “created a sufficient doubt of his competence to stand trial to require further inquiry on the question,” hence the trial court should have suspended the trial until a mental evaluation could be made. 420 U.S. at 180-81, 95 S.Ct. at 908.

Having decided that, the Supreme Court of the United States did not reach the issue of whether it was “constitutionally impermissible” to conduct the remainder of the trial in the accused’s absence. 420 U.S. at 182, 95 S.Ct. at 909. On that subject, the Supreme Court of the United States said: “However, even assuming the right to be present was one that could be waived, what we have already said makes it clear that there was an insufficient inquiry [into the accused’s mental condition] to afford a basis for deciding the issue of waiver.” 420 U.S. at 182, 95 S.Ct. at 909.

This court holds the decision of the Supreme Court of the United States in Drope does not compel reversal in the instant case for three reasons.

First, the accused in Drope had been examined by a psychiatrist before trial; the psychiatrist had suggested treatment. 420 U.S. at 164, 95 S.Ct. at 900. Appellant’s post-opinion motion in the instant case does not aver he had ever been examined by a psychiatrist until the court-ordered examination by Dr. Burstin during the recess on the second day of trial.

Second, no evaluation of the accused’s mental condition occurred during — or even after — the trial in Drope, whereas in the instant case the trial court immediately arranged for Appellant to be examined by two physicians during the afternoon of the first day of trial, and by psychiatrist Bur-stin the next morning. After the State completed voir dire (during Appellant’s absence), the trial court recessed the trial until the court received the reports of the examinations. After finding Appellant physically and mentally competent to proceed, the trial court resumed the trial and, with Appellant present, Defense Counsel commenced voir dire. From then on, Appellant was present throughout the trial.

Third, the Supreme Court of the United States did not imply in Drope that an accused could not waive his right to be present during part of his trial. The reason the Supreme Court of. the United States vacated the conviction in Drope appears at the end of its opinion:

“The question remains whether petitioner’s due process rights would be adequately protected by remanding the case now for a psychiatric examination aimed at establishing whether petitioner was in fact competent to stand trial in 1969. Given the inherent difficulties of such a nunc pro tunc determination under the most favorable circumstances ... we cannot conclude that such a procedure would be adequate here.[] The State is free to retry petitioner, assuming, of course, that at the time of such trial he is competent to be tried.”

420 U.S. at 183, 95 S.Ct. at 909[19] (citations omitted).

If Appellant believes Defense Counsel’s complaints to the trial court about Appellant’s intransigence on the first day of trial were inaccurate or exaggerated, or that Defense Counsel, by voicing the complaints, rendered ineffective assistance or caused Appellant to involuntarily lose his right to be present during the State’s voir dire, Appellant can present those claims in a proceeding under Rule 29.15, Missouri Rules of Criminal Procedure (2000). However, given the existing record, this court adheres to its holding that the trial court did not err in finding that Appellant, by his own conduct, relinquished his right to be present during the State’s voir dire.

Appellant’s post-opinion motion is denied.

      . References to statutes are to RSMo 1994.

      . The record shows Appellant was released on bond July 6, 1998.

      . The lawyer representing Appellant in this appeal concedes: "Appellate counsel has been unable to obtain copies of these two motions in limine and the court file does not show them as ever being filed.

      . Defense Counsel is not the lawyer representing Appellant in this appeal,

      . Perhaps the word "only” should be “own.”

      . Prior to the final arguments, the trial court gave the jury instructions hypothesizing murder in the second degree and involuntary manslaughter.

      . Nothing in the record indicates Appellant left the courtroom before 11:38 a.m. Infer-ably, he exiled during or immediately after the venire’s departure.

      . That remark appears inconsistent with Defense Counsel's earlier request to enter a plea of not guilty by reason of mental disease or defect excluding responsibility.

      . None of the three doctors testified. The results of their examinations appear in comments by counsel and the trial court.

      . Footnote 2, supra.

      . The fourth day of trial, September 10, 1999, was a Friday. No proceedings were conducted Saturday, September 11, or Sunday, September 12.

      . Footnote 2, supra.

      . Compare People v. Burnside, 254 A.D.2d 98, 679 N.Y.S.2d 110 (N.Y.A.D. 1 Dept.1998), where the defendant sought reversal of his conviction of multiple felonies because he was not present at a suppression hearing. The appellate court held:
      "Defendant's right to be present at the suppression hearing was not violated by the hearing court's refusal to adjourn the proceedings on a particular Friday court session at which defendant opted not to appear, purportedly for religious reasons. Since the hearing court was clearly warranted in finding that the religious excuse offered by defendant to circumvent a court appearance was merely a sham, particularly considering defendant’s prior Friday court appearances, there was ample support in the record for the court’s conclusion that defendant had voluntarily waived his right to be present.”
      679 N.Y.S.2d at 111[4],

      . Rule 27.26 was repealed effective January 1, 1988, by order of the Supreme Court of Missouri. Vol. 721-722 S.W.2d Missouri Cases, pp. XXV-XXXVII.

      . As this court understands the transcript, the State’s voir dire during which Appellant was absent consumed less than two hours of the six-day trial.

      . The Supreme Court of the United States decided Drope in 1975, some six years after the trial.


source: Caselaw Access Project

author: PATRICIA BRECKENRIDGE, Judge.

license: Public Domain

text:
    Terry DENSON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 58017.
    Missouri Court of Appeals, Western District.
    Sept. 26, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 31, 2000.
    Application for Transfer Denied Dec. 5, 2000.

      Vanessa Caleb, Asst. Public Defender, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
    Before BRECKENRIDGE, P.J., ELLIS and EDWIN H. SMITH, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Terry Denson appeals from the judgment of the circuit court denying his motion for post-conviction relief pursuant to Rule 29.15 without an evidentiary hearing. On November 22, 1996, a jury in the Circuit Court of Jackson County found Mr. Denson guilty of murder in the second degree, § 565.021.1 RSMo 1994, armed criminal action, § 571.015, and arson in the second degree, § 569.040. He was sentenced as a prior offender under § 558.016 to a period of life in prison for both murder in the second degree and armed criminal action, and to seven years for arson. The sentences for armed criminal action and arson were to run consecutive to the sentence for second degree murder.

On appeal, Mr. Denson claims that the motion court clearly erred in denying his Rule 29.15 motion without granting an evi-dentiary hearing. Mr. Denson’s basis for post-conviction relief is that he was denied effective assistance of trial and appellate counsel. First, he claims that trial counsel failed to request instructions which would have submitted the issue of whether he killed Mary Brown while under the influence of a sudden passion. He also asserts that trial counsel failed to investigate and present fact and expert witness testimony that would have assisted in his defense. Finally, he claims that appellate counsel was ineffective for failing to assert error on appeal for the submission of an instruction on self-defense that was not supported by the evidence. Because Mr. Denson pled facts entitling him to an evidentiary hearing on his claim of ineffective assistance of counsel for failure to call an expert witness, that portion of the motion court’s judgment is reversed and the cause is remanded for a hearing on that issue. His motion fails to set forth facts that entitle him to an evidentiary hearing on the remainder of his claims, so the motion court’s denial of those claims is affirmed.

Accordingly, the judgment of the motion court is affirmed, in part, and reversed, in part, and the cause is remanded for an evidentiary hearing on the sole issue of whether trial counsel was ineffective for failure to call an expert witness to rebut the State’s expert.

Factual Background

Mr. Denson and Ms. Brown met in 1988 while both were working at Truman Medical Center. Soon after, Mr. Denson moved into an apartment with Ms. Brown and her son, Brian High. Over the next few years, Mr. Denson and Ms. Brown had two children, Terry B. Denson, Jr., and Tiara Denson. Although Mr. Denson described their relationship as“the American dream,” there was evidence to the contrary. The police were called to their home several times. Specifically, in July 1990, police were called after Mr. Denson held Ms. Brown down on the bed, yelled at her, and chased her from their apartment with a knife. In December of that year, Ms. Brown told the police that Mr. Denson had struck her in the face and pushed her against the wall. Mr. Denson was taken into custody. When he was released later in the day, Mr. Denson, carrying a loaded weapon, entered their house by breaking in the frame of a door. He was arrested for the municipal offense of destruction of property for this conduct. In September of 1993, Ms. Brown obtained an ex parte order of protection against Mr. Denson, which ordered him not to stalk her.

In March 1995, Mr. Denson was upset because Ms. Brown had not been home all day, so he waited in their dark garage with an axe handle until Ms. Brown came home. When Ms. Brown got out of her car, he hit her on her head and back with an axe handle. Ms. Brown, who was covered with blood, ran from the garage into the street, with Mr. Denson chasing and hitting her with the axe handle. Quentin Canton, who was driving down the street, stopped to help her. Despite Mr. Canton’s telling Mr. Denson to stop hitting Ms. Brown, Mr. Denson continued to strike her until Mr. Canton threatened to shoot him. Mr. Canton then took Ms. Brown to her mother’s house, where she was taken to the hospital in an ambulance. Mr. Denson was convicted of misdemeanor assault for this incident.

In September 1995, Mr. Denson, Ms. Brown, and the three children were living at a house which Ms. Brown had rented in her name only. Ms. Brown’s mother, Clarey Brown, and several other family members were staying at the house following the murder of Ms. Brown’s brother in August 1995. The family members’ presence in the house caused strain between Mr. Denson and Ms. Brown, and led to several arguments. In fact, Ms. Brown told Mr. Denson that she wanted him to move out of the house after he received his paycheck on September 29, 1995. Two days before he was supposed to move out, Mr. Denson told Ms. Brown’s son, Brian, “I’m gonna kill your mama.”

Around 11:00 A.M. on September 28, 1995, Mr. Denson and Ms. Brown got into an argument over which of them would drive Clarey Brown back to work from her early lunch hour. Mr. Delbert Smith, the owner of Ms. Brown’s rental house, was in the house doing some repair work when he overheard this argument.. Mr. Smith observed that Mr. Denson looked “very dis-. tressed.” Mr. Denson finally agreed to take Clarey Brown to work, but he was angry and drove Ms. Brown’s car recklessly. When Clarey Brown commented on his driving, he threatened to “tear up this MF.” When she asked if Mr. Denson would tear up her daughter’s car, he said, “You’re hearing what you want to hear.”

After taking Clarey Brown to work, Mr. Denson returned to the house, and the argument with Ms. Brown resumed. The argument escalated, and Mr. Denson accused Ms. Brown of sleeping around, including with her relatives. Their next door neighbor, Deborah Blake, and Ms. Blake’s son overheard this argument, which was occurring in Ms. Brown’s bedroom. Ms. Blake heard an “Uhh” like someone had been hit in the stomach. The argument then stopped. Ms. Blake next heard Mr. Denson say, “Bitch, bitch, bitch,” but did not hear any other voices after that time. Soon after, Mr. Denson came out of the house, pulled the car into the garage and went back into the house. Later, Mr. Denson came back out of the house, got into the car, and drove away quickly. Ten or fifteen minutes later, Ms. Blake’s son noticed that Ms. Brown’s house was on fire, and Ms. Blake called 911. Ms. Blake also called Mr. Smith, who was the landlord for her home as well as Ms. Brown’s, and tried to reach Ms. Brown by calling her home telephone and her pager. She did not answer.

The fire in Ms. Brown’s house was reported at 12:22 P.M. The fire department found evidence that it was an incendiary fire, so the bomb and arson unit of the police department was dispatched to the house. A detective with the bomb and arson unit investigated and found burn patterns that indicated that the fire originated in Ms. Brown and Mr. Denson’s bedroom, and that an accelerant like gasoline or kerosene was used to start the fire.

Originally, the police investigation focused on arson. When the police completed their initial investigation, they permitted Mr. Smith and his assistant to return to board up the house. In the course of doing that, Mr. Smith’s assistant discovered blood on a phone book in the hall and on shoes and other things in a bag on the floor. They called the police. When the police arrived, they found blood in the hallway, den, dining room, kitchen, basement, and garage, and on two pair of shoes and a washcloth that were in a plastic bag. The officers then contacted the homicide unit.

Meanwhile, around 2:00 P.M. that same afternoon, Mr. Denson went to the Veterans Administration Hospital for treatment of a severe cut to his thumb. Due to the nature of Mr. Denson’s injury, the hospital staff contacted the police department. When Officer Steven Wilhoit asked Mr. Denson how he was injured, Mr. Denson told him that he was walking down Belmont between Truman Road and 14th Street when three men attacked him. According to Mr. Denson, the men struck him on the back of the head, hit him in the face, and struck him with an object, which cut his hand. Mr. Denson described the three men in detail, including their clothing and haircuts. Mr. Denson stated that he thought Ms. Brown, who he said was his wife, was responsible for or involved in the attack. He said he got away from the men and ran to his home. Although Officer Wilhoit did not see any cuts or bruises on Mr. Denson’s face or head, he did observe a laceration in the palm of Mr. Den-son’s right hand that went completely through his hand into the web. Mr. Den-son still had movement in his thumb, but the cut went almost to the bone, nearly severing his thumb. A nurse who treated Mr. Denson also noticed lacerations to his right and left index fingers.

After leaving the hospital, Mr. Denson called Ms. Brown’s house. The police were still at the house investigating the fire, so Mr. Denson spoke with Detective William Martin. Mr. Denson asked Detective Martin why police officers were at the house. When Detective Martin told him that there had been a fire and the police were concerned about the whereabouts of Ms. Brown, Mr. Denson indicated that he had no knowledge of the fire or of the whereabouts of Ms. Brown and the children. Mr. Denson stated that he had not returned to the house after he took Ms. Brown’s mother to work, but he did have Ms. Brown’s car. According to Detective Martin, Mr. Denson told him that he was at the VA Hospital “getting his head straight.” When Detective Martin said that he needed to speak with Mr. Denson, Mr. Denson agreed to wait at the hospital until he arrived. While he had Mr. Den-son on the telephone, Detective Martin dispatched officers to the hospital. Mr. Denson was not at the hospital when the officers arrived, and a nurse said that Mr. Denson had left several hours ago.

Mr. Denson was not seen or heard from until October 4, 1995, six days after the fire, when he appeared at Terry, Jr.’s school and attempted to take his son. School officials had been notified to contact police if Mr. Denson came to the school. Terry, Jr.’s teacher attempted to detain Mr. Denson while police were called. When Mr. Denson insisted that he was leaving with his son, the principal instructed someone to call 911. Mr. Denson ran away, leaving Terry, Jr. behind.

Mr. Denson was arrested later that day. During the first hour of interrogation after his arrest, Mr. Denson maintained that he was attacked. He told a detective that he and Ms. Brown were arguing and he left to go to the store around the corner. He said that he was then confronted by three of Ms. Brown’s friends, who rushed at him and asked if he was Ms. Brown’s man. Mr. Denson stated that he returned home after that, but Ms. Brown was not there. He took Tiara with him, and dropped her off before he went to the VA Hospital to have his hand treated. Mr. Denson stated that he later called the house and found out that the house was on fire. When asked about the fire, he stated that Ms. Brown had probably left the stove on because she had done that in the past.

After the detective told Mr. Denson about the blood found in the residence, the location of the fire and other evidence, Mr. Denson then told the detective that Ms. Brown had attacked him and that he had gotten the knife from her and stabbed her. Mr. Denson gave a video-taped statement, and showed the detective where Ms. Brown’s body was located.

An autopsy was performed on Ms. Brown’s body on October 5, 1995. The autopsy revealed a stab wound to the upper abdomen, a stab wound to the left lower back, and some other small wounds. The stab wound to the upper abdomen was in the midline of the body and measured about one and three-quarters inches in length and penetrated to a depth of about six and one-half inches. It was at a moderately sharp upward 30 to 45-degree angle extending into the chest cavity. It penetrated Ms. Brown’s heart and aorta. The pathologist who performed the autopsy testified that this was the wound that caused death. Death from this wound would have occurred within a matter of minutes.

The wound to the left lower back was toward the side of Ms. Brown’s body, about eight inches below the armpit. This wound was in an “L” or “T” shape. This would indicate that there had been at least two thrusts of a knife, with the blade angle changing, to cut this perpendicular wound. This wound was at about a 30 to 45-degree downward angle. In addition to the two major wounds, there were other defensive-type wounds to Ms. Brown’s hand and wrist.

In addition to recovering Ms. Brown’s body, the police also recovered her car. The police found blood on the trunk lid, the floor of the trunk, the back edge of the trunk, the rubber seal of the trunk and on a floor mat in the trunk. Blood was also observed on the gearshift lever next to the steering column, on the steering wheel and on a paper sack that was underneath the left front seat. The blood found on the gearshift and floor of the trunk was matched to Mr. Denson.

Because Ms. Brown’s body was too decomposed to provide an adequate blood sample for DNA testing, a sample was obtained from Clarey Brown. This sample and a sample from Mr. Denson were compared with samples of the blood discovered in the hallway, den, dining room, kitchen, basement and garage and on two pair of shoes and a washcloth that were in a plastic bag. The knife that Mr. Denson admitted caused Ms. Brown’s death was found on the kitchen counter. Although most of the samples taken were not sufficient for DNA testing, the blood sample taken from the handle of the garage matched Mr. Denson and the blood sample taken from a telephone book found in the dining room floor matched the genetic profile of the offspring of Clarey Brown.

At trial, Mr. Denson testified that on the morning of September 28, 1995, he had gotten off work at 2:00 A.M. He was not able to get to sleep until around 4:15 or 4:30 A.M. Soon after, he was awakened by the commotion in the house as Ms. Brown’s mother was getting the children ready for school. After Clarey Brown took the children to school, Mr. Denson was able to get some rest until Clarey Brown returned to the house, needing a ride back to work. Mr. Denson and Ms. Brown argued over who would take her back to work, and Mr. Denson finally agreed to do it. When he returned, he and Ms. Brown began arguing again. They argued about money and the overcrowded house. Mr. Denson accused Ms. Brown of “sleeping around” and made a statement about her “sleeping with her relatives.” Their arguing continued, and each was calling the other names. Finally, Mr. Denson went into the bedroom, picked up his daughter, and turned on the television. He then set his daughter down and laid back on the bed. Mr. Denson stated that at that point, Ms. Brown came through the door with a knife and “slashed down at” him. He threw up his right hand to block the knife and the blade hit his hand, cutting his thumb. Mr. Denson jumped back and screamed “What are you doing?” Ms. Brown came at him again, and Mr. Denson stated that he tried to hold her off of him. Mr. Denson testified that he was “really scared of what she was doing” and did not have “any function of [his] right hand.” They stumbled onto the bed and wrestled around on the bed. They then fell off of the bed, and Ms. Brown “stopped.” Mr. Denson got up and went to the bathroom to get a towel to wrap up his hand. He went back into the bedroom and told Ms. Brown to get up, but she did not move. He touched her and took her pulse. Mr. Denson testified that, at that point, panic and confusion set in.

Mr. Denson testified on cross-examination that he then went downstairs to the basement and got a green rug similar to one in the breakfast room. He pulled the car into the garage. He carried and dragged Ms. Brown through the den, dining room, and kitchen, and down to the basement and placed her in the trunk of her car. After placing Tiara in the car, he poured gasoline in the bedroom and started a fire. On his way out, he grabbed a change of clothes. He disposed of Ms. Brown’s body in the woods, and covered her with the rug. Mr. Denson then changed his clothes. He dropped Tiara off at his sister’s house, and went to the VA Hospital to have his hand treated. Mr. Denson and Tiara went to his friend’s house, where they spent the night after he explained that he and Ms. Brown had had a fight and he could not go home. When he left the friend’s house the next morning, Mr. Denson went to work to pick up his check and began driving, ultimately ending up in South Dakota. Somewhere in South Dakota, he discarded the bloody clothes that he was wearing when he fought with Ms. Brown. Mr. Denson testified that he returned to Kansas City on October 4 because he wanted to see his son and have his son with him.

In rebuttal, Mr. John Cayton, chief forensic firearm and tool mark examiner at the Regional Criminalistics Laboratory, Kansas City, Missouri, testified concerning the knife that Mr. Denson said Mr. Brown fell on during a struggle. The knife, an Old Hickory kitchen butcher knife, was recovered from the kitchen counter. Mr. Cayton testified that the knife was six inches long from wooden handle to the tip of the blade, and the widest point was 1 % inches. This particular knife did not have a cross guard or hand guard. The cross guard, often present on combat or hunting knives, prevents the handle of the knife from going further into the wound and protects the person using the knife from being cut. Without a guard, when the knife is used in a confrontation, the person using the knife could be cut when the person’s hand slipped down the blade. Mr. Cayton also testified that the depth of Ms. Brown’s wounds indicated that the knife was thrust into her body beyond the length of the blade. Once the blade has opened up the track, the handle without a guard could follow to where the hand would cause it to stop. Mr. Cayton testified that he would expect that the frontal wound would have been at a downward angle if persons of the same height as Mr. Denson and Ms. Brown were facing each other and struggling for the knife as Mr. Denson had described. Mr. Cayton further testified that the wound to the victim’s back was consistent with two distinct penetrating cuts in the same location. There was one thrust, a withdrawal and change in knife angle, and then another thrust. Mr. Cayton would not expect a knife to penetrate beyond the length of the blade from just rolling around, especially when there were two wounds on the opposite side of the body that are deeper in the same place.

Following the jury trial, Mr. Denson was convicted of murder in the second degree, armed criminal action and arson in the second degree. He was sentenced as a prior offender to a period of life in prison for both murder in the second degree and armed criminal action, and to seven years’ imprisonment for arson. The sentences for armed criminal action and arson were to run consecutive to the sentence for second degree murder. His conviction was affirmed by this court in the summary order of State v. Denson, 966 S.W.2d 409 (Mo.App.1998). Mr. Denson then filed a motion for post-conviction relief pursuant to Rule 29.15 claiming, inter alia, ineffective assistance of trial and appellate counsel. This appeal follows the motion court’s denial of his motion, without an evidentiary hearing.

Standard of Review

In reviewing a denial of a motion for post-eonviction relief, this court is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). Such a finding will be made only if, after a review of the entire record, the appellate court is left with a definite and firm impression that a mistake has been made. Id. An evidentiary hearing on a motion for post-conviction relief will be required if the movant satisfies three requirements: (1) the movant must plead facts, not conclusions, which, if true, would warrant relief; (2) the facts pled must not be refuted by the record; and (3) the movant must have been prejudiced. Id. When the basis for relief is ineffective assistance of counsel, the movant is entitled to an evidentiary hearing if the movant “allege[s] facts, not refuted by the record, showing that counsel’s performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney and that movant was thereby prejudiced.” State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Prejudice is shown when the movant establishes “a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998), cert. denied, 526 U.S. 1151, 119 S.Ct. 2034, 143 L.Ed.2d 1043 (1999).

The performance evaluation is based upon the presumptions that the actions of trial counsel were trial strategy and that assistance was adequate and decisions were made “in the exercise of professional judgment.” Luster v. State, 10 S.W.3d 205, 210 (Mo.App.2000). In showing prejudice, Mr. Denson must establish that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. Mr. Denson bears the burden of proving grounds for relief by a preponderance of the evidence. Weston v. State, 2 S.W.3d 111, 114 (Mo.App.1999).

Trial Counsel Not Ineffective for Failing to Request “Sudden Passion” Language in Second Degree Murder Instruction and a Voluntary Manslaughter Instruction

Mr. Denson first claims that trial counsel was ineffective for failing to request instructions which would have submitted to the jury the issue of whether he caused the death of Ms. Brown while under the influence of sudden passion arising from adequate cause. He first claims that his counsel was ineffective for failure to request a voluntary manslaughter instruction as a lesser-included offense of murder in the second degree. He further claims that the instruction for second-degree murder should have been modified to include the “sudden passion” language contained in MAI-CR3d 313.04. Mr. Denson asserts that he was entitled to these instructions because Ms. Brown’s actions in attacking him with a knife and severely cutting his thumb were adequate cause for his sudden passion, and that the jury could have found that he was acting under this sudden passion when he stabbed Ms. Brown, causing her death.

If there is evidence from which a jury could believe that a defendant was acting under the influence of sudden passion when the defendant killed the victim and the defendant’s trial counsel requests instructions on sudden passion, the jury could find the defendant not guilty of second-degree murder and guilty of voluntary manslaughter. See State v. Price, 928 S.W.2d 429, 431 (Mo.App.1996). In Price, the court explained that the existence of sudden passion from adequate cause precluded a conviction for second-degree murder:

Sudden passion arising from adequate cause is a special negative defense to conventional second-degree murder. It is an element of the crime and when properly introduced, it requires a finding by the jury that the defendant did not commit the murder under the influence of sudden passion to find the defendant guilty of second degree murder. Once a defendant has properly injected the issue of sudden passion, the state bears the burden of disproving it beyond a reasonable doubt. The defendant is entitled to have the jury consider voluntary manslaughter instead of second-degree murder when the defense introduces adequate evidence of the special negative defense.

Id. (citations omitted). A person commits the crime of voluntary manslaughter if the person “[clauses the death of another person under circumstances that would constitute murder in the second degree under subdivision (1) of subsection 1 of section 565.021, except that he caused the death under the influence of sudden passion arising from adequate cause.... ” Section 565.023.1. “Sudden passion” is defined as “passion directly caused by and arising out of provocation by the victim or another acting with the victim which passion arises at the time of the offense and is not solely the result of former provocation.” Section 565.002(7).

In this case, Mr. Denson testified at trial that he and Ms. Brown had been arguing that morning, and she attacked him with a knife. He then testified that she was killed while they were struggling over the knife. He relied upon this evidence to support a self-defense instruction, which he requested and the court gave. He asserts in his post-conviction motion that his trial counsel should have also requested that the jury instructions pertaining to sudden passion be given and that, if they had been given, he would not have been found guilty of second-degree murder. He asserts that the jury could have disbelieved that it was necessary for him to kill Ms. Brown in self-defense, but believed that he killed her under the influence of sudden passion. At least one case supports a finding that this type of evidence would support the submission of instructions on the issue of sudden passion. See State v. Fonts, 939 S.W.2d 506, 511 (Mo.App.1997) (finding it was reversible error not to give instructions raising issue of sudden passion when husband testified that the injury he inflicted was in the heat of an altercation with his wife, even though husband denied strangling wife and testified that he was merely protecting himself from wife’s attack).

Nonetheless, the sole issue before this court is whether trial counsel was ineffective in failing to request an instruction under the law in effect at the time of trial, so we need not decide whether the evidence supports the giving of instructions on sudden passion. Under current case law, a trial court is required to give an instruction on voluntary manslaughter and modify the language of the second-degree murder instruction when requested if there is evidence to support that the death of the victim occurred under the influence of sudden passion arising from adequate cause. State v. Stanley, 990 S.W.2d 1, 5 (Mo.App.1998). But at the time of Mr. Denson’s trial, case law held that the theories of self-defense and sudden passion were mutually inconsistent if the same evidence or conduct was the basis for both theories. State v. Jennings, 778 S.W.2d 294, 296 (Mo.App.1989). Although the Missouri Supreme Court rejected this rationale in State v. Redmond, 937 S.W.2d 205, 209-210 (Mo. banc 1996), that decision was handed down the month following Mr. Denson’s trial. This court must look to the law as it existed at the time of trial when determining whether trial counsel was ineffective. State v. Parker, 886 S.W.2d 908, 923 (Mo. banc 1994). “[F]ailure to predict a change in the law is not ineffective assistance.” Id. Since the submission of a voluntary manslaughter instruction or a murder in the second degree instruction with the sudden passion language would not have been supported by the law existing at the time of trial, Mr. Denson’s trial counsel cannot be found ineffective for fading to submit such an instruction.

The judgment of the motion court is affirmed with respect to trial counsel’s failure to offer a voluntary manslaughter instruction or to request inclusion of the “sudden passion” language in the second-degree murder instruction.

Trial Counsel was not Ineffective for Failing to Investigate and Present Fact Witnesses

Next, Mr. Denson claims that trial counsel failed to investigate and present the testimony of fact witnesses who would have assisted in his defense. Mr. Denson argues that trial counsel should have presented the testimony of Dr. Doug Burton, Dr. Barbara Erdwein and Nurse Nichole Foster, the medical personnel who treated his thumb at the VA Hospital. To establish that counsel was ineffective for failure to present witness testimony, Mr. Denson must show: (1) the witness could have been located through reasonable investigation; (2) the witness would have testified if called; and (3) the testimony would have provided a viable defense. Williams v. State, 8 S.W.3d 217, 219 (Mo.App.1999).

With regard to whether his counsel could have located the witnesses through reasonable investigation, Mr. Den-son alleged in his motion that defense counsel had “notice of the potential testimony” from the police report of one of the detectives. Furthermore, Mr. Denson stated that trial counsel knew that the witnesses worked at the VA Hospital. He further alleged that they could have been subpoenaed, and that they would have been willing to honor the subpoena. Finally, Mr. Denson alleged that the testimony of these witnesses would have shown the extent of his injury and would have supported his self-defense claim. Specifically, Mr. Denson alleges that Dr. Erdwein or Dr. Burton would have indicated that his injury was one of the worst wounds they had seen that did not cut a tendon. He alleges that the doctors’ testimony could have provided evidence of the extent of his injury and its effect on his ability to grasp objects with his right hand. Mr. Denson also argues that although a stipulation was read to the jury concerning Nurse Foster’s observation of lacerations to Mr. Denson’s right and left index fingers, the jury did not hear evidence concerning the extent of the lacerations.

At trial, Officer Wilhoit testified that when he went to the VA Hospital to investigate Mr. Denson’s injury, he observed that the cut to Mr. Denson’s thumb was quite deep and looked as if it was almost to the bone. On cross-examination, he agreed that the thumb was almost severed. The jury also heard the stipulation, read from Officer Wilhoit’s report, that Nurse Foster had observed other lacerations to Mr. Denson’s right and left index fingers. In addition to this independent testimony, Mr. Denson testified to the extent of his injury and to the presence of other “nicks and cuts” he received when he defended himself. This testimony provided the jury with sufficient evidence of the extent of the injury, as well as the existence of what he characterizes as defensive-type wounds. The testimony of the medical personnel would have been cumulative, and the failure to present cumulative evidence is not ineffective assistance of counsel. State v. Johnston, 957 S.W.2d 734, 755 (Mo. banc 1997).

Further, Mr. Denson fails to show how the testimony of the medical personnel could have provided any additional evidence to support his claim of self-defense. Mr. Denson’s defense at trial was that Ms. Brown died because he reacted to being attacked and injured when Ms. Brown struck him with a knife. He asserts that Dr. Burton, Dr. Erdwein and Nurse Foster would provide testimony in support of his defense, but he does not allege how evidence as to the general nature or extent of the injury to his thumb is supportive of his defense. The testimony Mr. Denson claims his counsel should have presented does not assist him in proving that his thumb was injured when he was defending himself against an attack by Ms. Brown, or disprove the State’s theory that his injury occurred when his hand slipped down the blade of the knife as he was stabbing Ms. Brown. While Mr. Denson asserts that the evidence from the medical witness would support his testimony that he could not grasp the knife after his injury, this does not aid his defense. The State’s theory was that Mr. Denson was injured in the course of stabbing Ms. Brown, so the fact that he would have trouble holding a knife after he had stabbed Ms. Brown would not benefit his defense. Accordingly, Mr. Denson failed to show that the testimony of the medical witnesses would have provided a viable defense.

The motion court’s denial of Mr. Den-son’s claim of ineffective assistance of counsel for failure to investigate and call Dr. Burton, Dr. Erdwein and Nurse Foster as witnesses is not clearly erroneous.

Mr. Denson Pled Sufficient Facts to Support a Claim of Ineffective Assistance of Counsel for Failure to Present Expert Witness

Mr. Denson next claims that trial counsel was ineffective for failing to investigate and present an expert witness to counter the testimony of the State’s rebuttal witness John Cayton. Mr. Cayton testified that the injuries of the victim were inconsistent with Mr. Denson’s account of the struggle.

To be entitled to a hearing on his claim, Mr. Denson must have alleged: (1) “that such an expert existed at the time of trial”; (2) that the expert “could have been located through reasonable investigation”; and (3) that the expert’s testimony “would have benefited movant’s defense.” See State v. Davis, 814 S.W.2d 593, 603-604 (Mo. banc 1991); State v. Colbert, 949 S.W.2d 932, 945 (Mo.App.1997). Mr. Denson pled in his motion that Dr. Jay Dix was a forensic pathologist at the University of Missouri-Columbia who has testified at numerous trials in the past. These facts, if true, sufficiently allege that an expert existed at the time of trial and that he could have been located through reasonable investigation. Mr. Denson further pled that Dr. Dix would have testified that Ms. Brown’s wounds were consistent with Mr. Denson’s testimony. Specifically, he alleged that:

Dr. Dix would have testified that, after reviewing the autopsy report and Movant’s testimony, he concluded that the victim’s wounds, given their locations, depth, and angles, were indeed consistent with Movant’s account of the struggle. Dr. Dix would have been willing, ready and available to testify on Movant’s behalf. The testimony of Dr. Dix would have changed the outcome of the trial by providing solid testimony that Movant’s account was consistent with the physical evidence. Without Dr. Dix’s testimony, the jury was left with John Cayton’s uncontested opinion that Movant’s account was not possible.

Mr. Denson also pled that in support of this claim he would present the testimony of Dr. Dix at the evidentiary hearing.

In rejecting Mr. Denson’s assertion of ineffective assistance of counsel on this point, the motion court found that Mr. Denson was merely speculating as to what Dr. Dix would have said and that, in light of the overwhelming evidence against Mr. Denson, the expert testimony would not have exonerated nor have been “outcome determinative.” The motion court appears to have understood the allegations of the motion to be that, if Dr. Dix were to review the autopsy report and Mr. Den-son’s testimony, it was anticipated that he would form an opinion that supported Mr. Denson’s version of the events. The alie-gations in the motion can also be read to assert that Dr. Dix has, in fact, reviewed the autopsy report and the testimony of Mr. Denson, and that Dr. Dix has expressed the opinion that Ms. Brown’s wounds were consistent with Mr. Denson’s version of the events of September 28, 1995. In determining whether Mr. Den-son has alleged facts to support a claim for ineffective assistance of counsel, “allegations subject to differing interpretations must be considered in the light most favorable to the pleader.” Brown v. State, 882 S.W.2d 154, 156 (Mo.App.1994). Therefore, the motion must be read to allege that Dr. Dix has reviewed the relevant materials and has expressed an opinion that would have benefited Mr. Denson’s defense.

Defense counsel presented only the testimony of Mr. Denson with respect to the events that occurred on September 28, 1995. The additional witnesses were merely character witnesses. Arguably, the testimony of Dr. Dix would have provided the defense with supporting evidence of Mr. Denson’s version of the events. Since Mr. Denson has identified an expert by name who could have testified and has shown that the testimony would have benefited his defense, he has met the burden necessary to warrant an evidentiary hearing on this point. At the conclusion of the evidentiary hearing, after the motion court observes Dr. Dix’s testimony and hears his responses to cross-examination, the court can then determine whether Dr. Dix’s testimony would have caused the result of the proceeding to be different. Without a hearing, this court cannot find that, as a matter of law, it would not.

The judgment of the motion court denying Mr. Denson’s claim that his counsel was ineffective for failure to present the testimony of Dr. Dix was clearly erroneous and is, therefore, reversed. The cause is remanded to the motion court for an evi-dentiary hearing on that claim.

Appellate Counsel was not Ineffective for Failing to Raise Alleged Instructional Error

Finally, Mr. Denson argues that appellate counsel was ineffective for failing to raise on appeal the properly-preserved claim that the trial court erred by refusing the defense version of the self-defense instruction and instead submitting the State’s self-defense instruction that included “initial aggressor” language. Mr. Den-son argues that the State presented no evidence to support the inclusion of the initial aggressor language, but only presented evidence that he had struck Ms. Brown in the past.

The standard for ineffective assistance of appellate counsel requires that the basis for the claim is such that “would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it.” Moss, 10 S.W.3d at 514. To be entitled to relief, Mr. Denson must show that “the error that was not raiséd on appeal was so substantial as to amount to a manifest injustice or a miscarriage of justice.” Id. at 514-515.

Instruction No. 6, the instruction on self-defense, informed the jury that an initial aggressor is not justified in using force to protect himself from a counter-attack which the initial aggressor provoked. Specifically, the relevant portion of the instruction stated:

One of the issues as to Count I is whether the use of force by the defendant against Mary Brown was in self-defense. In this state, the use of force including the use of deadly force to protect oneself from harm is lawful in certain situations.
A person can lawfully use force to protect himself against an unlawful attack. However, an initial aggressor, that is, one who first attacks or threatens to attack another, is not justified in using force to protect himself from the counter-attack which he provoked.

MAI-CR3d 306.06. The “initial aggressor” language is to be included only if there is evidence that defendant was the initial aggressor by first attacking or threatening to attack. Subsequent paragraphs in the instruction advise the jury that evidence of the prior relationship between the defendant and the victim may be considered in determining who was the initial aggressor.

Mr. Denson’s allegation of ineffective assistance of counsel is based on his assertion that the only evidence of who initiated the attack is his direct testimony that Ms. Brown attacked him. Although there was no direct evidence that Mr. Denson first attacked Ms. Brown, there is circumstantial evidence sufficient to support the inference that he was the initial aggressor. For example, the prior relationship between Mr. Denson and Ms. Brown included several instances when Mr. Denson was the initial aggressor in attacking Ms. Brown when he was angry with her. On one occasion he was so angry that he beat her with an axe handle in front of two witnesses, and stopped only when one of the witnesses threatened to shoot him. Moreover, there was sufficient evidence to prove that Mr. Denson was angry with Ms. Brown on the day she was killed. He was angry because she gave her family permission to move into the house and then-presence was disrupting his life. It is also reasonable to infer that he was angry that she was making him move out at the end of the week. His anger was apparent when he stated his intention to kill her to her son on the day before she was killed. In addition, he was angry with her immediately before she was killed because he was required to give her mother a ride to work.

Other evidence indicating that Mr. Den-son was the initial aggressor was the testimony of Ms. Blake concerning the argument she overheard between Mr. Denson and Ms. Brown at the time Ms. Brown was killed. Ms. Blake’s recitation of the argument is not consistent with Mr. Denson’s claim that Ms. Brown initially attacked him. While Ms. Blake was not ■ able to hear everything being said because water was running, she did hear the end of the argument. Of significance, she did not hear any screams by Mr. Denson, which he claimed he made in response to an attack by Ms. Brown. Instead, her testimony was that Mr. Denson and Ms. Brown were engaged one of their regular arguments when she heard an “uhh,” like someone had been hit in the stomach. The only speech she heard after that sound was Mr. Denson caking Ms. Brown “bitch, bitch, bitch.” Ms. Blake’s testimony supports the reasonable inference that Mr. Denson was the initial aggressor, not Ms. Brown.

Moreover, Mr. Denson’s behavior after Ms. Brown was killed is evidence of his consciousness of guilt. After Ms. Brown was killed, Mr. Denson immediately loaded her body in her car and set the house on fire, starting the fire in the bedroom where her death occurred. Mr. Denson then disposed of her body in the woods. When he went to the V.A. Hospital for treatment of his cut thumb and was asked how his thumb was injured by a police officer, he lied and claimed that three men attacked him. Later that evening when he called home, he lied to the police when he told them that he had not been home since he took Ms. Brown’s mother to work and that he did not know anything about the fire or the whereabouts of Ms. Brown and the children. Mr. Denson further bed to his friend when he asked if he could spend the night because he and Ms. Brown had a fight. The next morning, he picked up his paycheck and then fled from Missouri. When he left town, he took his daughter, but he left his son behind without making any arrangements for his care. When he returned to Missouri and was arrested, he continued to lie to the police until he was confronted with the evidence that was contrary to his story. Only then did he tell the police that Ms. Brown had attacked him and she had been killed when he was struggling to protect himself. This behavior by Mr. Denson would support the reasonable inference that he was guilty of attacking Ms. Brown, and was contrary to his version of the facts that she was the initial aggressor who attacked him.

This court has stated that “[u]pon contradictory evidence as to who was the initial aggressor, it [is] a question of fact and [is] properly submitted to the jury.” State v. Allison, 845 S.W.2d 642, 647 (Mo.App.1992). This court finds that the inclusion of the initial aggressor language in the self-defense instruction did not result in manifest injustice. Therefore, the decision of the motion court is affirmed with respect to Mr. Denson’s claim of ineffective assistance of appellate counsel.

The judgment of the motion court is affirmed in part and reversed in part. The cause is remanded for an evidentiary hearing on Mr. Denson’s claim that his trial counsel was ineffective for failure to call an expert witness.

All concur.

      . Ail statutory references are to the Revised Statutes of Missouri 1994.

      . The Court ruled that "[e]ach instruction should be evaluated separately and should be given if supported by the evidence, without regard to whether the other instruction is also being given.” State v. Redmond, 937 S.W.2d 205, 210 (Mo. banc 1996).