author: CLIFFORD H. AHRENS, Judge.

text:
    STATE of Missouri, Respondent, v. Stanley JOHNSON, Appellant.
    No. ED 93246.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 2, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 13, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      Craig A. Johnston, Columbia, MO, for appellant.
    Chris Koster, Terrence M. Messonnier, Jefferson City, MO, for respondent.
   OPINION

CLIFFORD H. AHRENS, Judge.

Stanley Johnson (Defendant) appeals the trial court’s judgment and sentence after a jury convicted him of first-degree murder and forcible rape. We affirm.

Background

In May 1994, Lela Warner was raped and strangled to death in her home in St. Louis County. Police collected evidence at the scene and on the victim including hair, blood, semen, two blood-stained towels, finger prints, and a palm print on the back door. The assailant’s DNA profile was entered into the Combined DNA Index System (CODIS). The case remained unsolved until 2006 when the CODIS database generated a “hit” matching the crime scene DNA evidence to Defendant, who was then incarcerated on an unrelated conviction. Police obtained a search warrant compelling Defendant to provide a buccal swab, from which further testing confirmed that Defendant’s DNA was consistent with that found on Ms. Warner.

In September 2006, the State charged Defendant with first-degree murder and forcible rape. Defendant filed a motion under the Uniform Mandatory Disposition of Detainers Law (UMDDL) demanding that his case be tried within 180 days. Defendant’s court-appointed co-counsel entered their appearance December 22 and requested additional time to prepare for trial. Defendant objected to the delay, so the trial court rejected counsel’s request and set the trial for March 2007. Counsel sought a writ of prohibition to prevent the trial court from convening the trial as scheduled. The Supreme Court of Missouri granted the writ, holding that, by exercising his right to counsel, Defendant had ceded to counsel the authority to seek reasonable continuances, which are allowed for good cause under the UMDDL. State ex rel. Wolfrum v. Wiesman, 225 S.W.3d 409 (Mo.2007).

In the months prior to trial, Defendant frequently expressed dissatisfaction with counsel and filed numerous motions to discharge them and represent himself. In July 2007, Defendant’s original counsel withdrew, and the court appointed new counsel. Defendant then complained about his new counsel and filed additional motions to discharge them and represent himself. In October 2008, the trial court held a hearing, conducted a thorough colloquy with Defendant, and ultimately denied Defendant’s motion, finding that Defendant’s request was equivocal and unknowing and that Defendant was incapable of conducting himself appropriately in the courtroom. Defendant continued to complain that his attorneys were not following his strategic instructions or communicating with him frequently enough, and he repeatedly asked the court to discharge them and either appoint new counsel or allow him to proceed pro se. On the morning of trial, the court denied all pending motions, including Defendant’s requests for different counsel or self-representation.

The trial was held April 15 to 22, 2009. Before jury selection, the trial court asked Defendant if he would be able to conduct himself appropriately in the courtroom. Defendant resumed his complaints about counsel, claimed that he wasn’t getting a fair trial, and requested leave from the proceedings. The trial court granted Defendant’s request and conducted a similar colloquy each morning of trial, in response to which Defendant lodged the same complaints and waived his right to be present. The trial proceeded in Defendant’s absence.

At the close of the evidence, Defendant’s counsel offered jury instructions including lesser offenses of second-degree felony murder and conventional second-degree murder. The trial court instructed the jury on the former but rejected the latter. After four hours of deliberation, the jury returned verdicts finding Defendant guilty of first-degree murder and forcible rape. The trial court sentenced Defendant, as a prior and persistent offender, to consecutive prison terms of life without the possibility of parole for first-degree murder and thirty years for forcible rape.

Defendant appeals and asserts that the trial court erred by (1) denying his motions to dismiss for violation of his right to a speedy trial under the UMDDL; (2) denying his motions to proceed pro se; (3) rejecting his jury instruction on the lesser included offense of conventional second-degree murder; and (4) denying his requests for new counsel. Additional facts are discussed below as relevant to the issues on appeal.

Discussion

I. Speedy trial wider UMDDL

First, Defendant asserts that the trial court erred in denying his motion to dismiss because the court lost jurisdiction before the case went to trial. Our review is de novo. State v. Taylor, 298 S.W.3d 482, 503 (Mo.2009). The UMDDL permits an incarcerated defendant to prompt final disposition of an untried indictment within 180 days, or longer for good cause, lest the trial court lose jurisdiction and be required to dismiss the cause with prejudice. When Defendant invoked it, section 217.460 RSMo 2000 stated:

Within one hundred eighty days after the receipt of the request and certificate, pursuant to sections 217.450 and 217.455, by the court and the prosecuting attorney or within such additional necessary or reasonable time as the court may grant, for good cause shown in open court, the offender or his counsel being present, the indictment, information or complaint shall be brought to trial. The parties may stipulate for a continuance or a continuance may be granted if notice is given to the attorney of record with an opportunity for him to be heard. If the indictment, information or complaint is not brought to trial within the period, no court of this state shall have jurisdiction of such indictment, information or complaint, nor shall the untried indictment, information or complaint be of any further force or effect; and the court shall issue an order dismissing the same with prejudice.

The statute provides three exceptions permitting the trial court to grant additional necessary or reasonable time beyond 180 days: (1) for good cause shown in open court, the offender or his counsel being present; (2) the parties stipulate to a continuance; or (3) notice is given to the attorney of record with an opportunity to be heard. Section 217.460; Wolfrum v. Wiesman, 225 S.W.3d at 412, n. 7.

Defendant filed his UMDDL request September 25, 2006. His trial commenced 933 days later on April 15, 2009. Defendant asserts that the additional time did not meet the exceptions to toll the statutory period. We consider each delay in chronological order.

Defense counsel’s first request for continuance and related writ proceedings

The parties agree that 105 days accrued from the filing of Defendant’s UMDDL motion until defense counsel first requested a continuance January 19, 2007. As previously mentioned, the trial court denied counsel’s request due to Defendant’s objections, so, on January 29, counsel-sought a writ of prohibition to prevent the trial court from proceeding to trial. This court denied the petition February 1, and counsel appealed to the Supreme Court of Missouri February 5. The Supreme Court issued its preliminary writ February 16 ordering the trial court to take no further action except to grant counsel’s request for additional time.

Defendant argues that, between January 19 and February 16 (27 days), the clock continued to run because no court order was in place to stop it. The State counters that the time should be excluded because a continuance should have been granted in the first instance, as the Supreme Court held in Wolfrum. In support of its position, the State cites Fischer v. Brancato, in which this court noted that an “appellate decision becomes the law of the case in a subsequent proceeding in the same cause and precludes re-examination of issues ... decided by the appellate court’s opinion either directly or by implication.” 174 S.W.3d 82, 86 (Mo.App.2005). Clearly, this rule prohibits re-examination of the central issues resolved in Wolfrum, namely defense counsel’s authority to request, and the trial court’s discretion to grant, a continuance over Defendant’s objection. We are not persuaded, however, that Wolfrum prescribes by implication the tolling of the UMDDL clock retroactively based on the outcome. Nonetheless, while neither party offers instructive authority, generally any delay resulting from the defendant’s affirmative action is ex-cludable from the 180 day period. Lee v. State, 97 S.W.3d 9, 14 (Mo.App.2002). Thus, the times during which counsel’s writ petitions were pending before this court (January 29 to February 1) and the Supreme Court (February 5 to 16) are excluded. This is consistent with other speedy trial authority excluding time during which trial proceedings are stayed pending interlocutory appeals. See for example U.S. v. Pete, 525 F.3d 844 (9th Cir.2008) (holding that the clock resumes upon the district court’s order but tolls upon filing of notice of interlocutory appeal). As such, 12 days accrued during this period (January 20-28 and February 2-4), for a new total of 118. The parties do not dispute that the clock was then tolled from February 16, when the Court issued its preliminary writ, until the Court issued its mandate June 26.

From mandate to new counsel’s request for continuance

Next, the parties dispute whether the clock resumed as of the Court’s mandate June 26 until July 11 (15 days) when the court appointed new counsel and granted them additional time to prepare for trial. Neither party offers authority for its position. The State suggests that Wolfrum implicitly approved original counsel’s request for an indefinite extension, which was unaffected by the June 26 mandate. We agree. The Supreme Court’s preliminary writ ordered the trial court to take no further action except to grant counsel’s request for additional time to prepare for trial. The Court’s subsequent opinion and mandate made the writ absolute, thereby reinforcing its earlier order to grant additional time. As such, the clock remained tolled from June 26 to July 11 and beyond, to January 18, 2008, pursuant to the continuance granted new counsel.

Psychiatric evaluation

In the interim, in November 2007, defense counsel asked the trial court to appoint a psychiatrist to evaluate Defendant’s mental competency to stand trial, his mental state at the time of the offense, mitigation, and possible mental retardation. Section 552.020 requires a trial court, whether on motion by a party or on its motion, to order a mental examination when the court has reasonable cause to believe that an accused lacks mental fitness to proceed. Here, defense counsel’s motion enumerated multiple bases for its request: (1) counsel’s own observations of Defendant’s behavior in meetings and in the courtroom; (2) Department of Corrections records suggesting Defendant’s use of psychotropic medication; (3) Defendant’s refusal to meet or cooperate with counsel; (4) Defendant’s refusal to meet with psychiatric experts in the preparation of his defense; (5) medical records of a past brain injury; and (6) school records indicating an IQ of 60.

On November 30 the trial court ordered the appointment of a psychiatrist to evaluate Defendant, and on December 31 the court issued a more detailed order requiring specific findings, opinions, and recommendations by the examiner as required by section 552.020.3. The record reveals that Defendant’s refusal to submit to the evaluation caused considerable delay in its completion. In a letter dated March 2008, the Department of Mental Health explained that “This evaluation has been delayed because most of the examiners who do these evaluations had been retained by the defense to evaluate Mr. Johnson, but Mr. Johnson has consistently refused to cooperate.” Defendant refused to cooperate during another attempt in April. Finally in June, Defendant’s evaluation was conducted over the course of three visits, and the examiner’s final report was submitted to the court July 10.

We find no basis to credit Defendant’s UMDDL count the time needed to evaluate, for his own benefit, his mental capacity at the time of the offense and his present competence to stand trial. Absent precedent specific to the UMDDL, we take guidance from other speedy trial authority instructing that time spent for mental examinations is weighed against the defendant. See for example State v. Farris, 877 S.W.2d 657, 660 (Mo.App.1994); and U.S. v. McGhee, 532 F.3d 733 (8th Cir.2008). The clock remained tolled to July 10, 2008.

Continuance to November 12, 2008

Meanwhile, in the spring of 2008, defense counsel requested additional time not only for the completion of the psychiatric evaluation but also for further DNA testing by its own experts. The court found good cause to grant additional time, and moreover the State stipulated to it. On April 3, 2008, the court issued its order granting more time and setting the case for trial November 12. Defendant challenges both the reasonableness of the delay and its validity for UMDDL purposes because good cause was not shown “in open court.”

We reject Defendant’s first contention that additional time was unreasonable here, given that Defendant’s refusal to undergo psychiatric evaluation engendered much of the delay. And given the importance of DNA evidence to the State’s case, we see no reason to question the trial court’s determination that further DNA testing by defense experts constituted good cause. It was well within the trial court’s discretion to grant additional time. As is the case here, in State v. Taylor, defense counsel requested, over the defendant’s objections, continuances to adequately prepare for a capital murder trial. 298 S.W.3d 482 (Mo.2009). Though the trial was held 30 months after the defendant filed his UMDDL motion, the Court found no speedy trial violation. “Given the complexity of the trial and the amount of preparation and investigation required, counsel established sufficient grounds for good cause for the delay, and the additional time ensured that [defendant] received effective assistance of counsel.” Id. at 504.

Regarding Defendant’s second complaint, that good cause was not shown “in open court,” no hearing was required here in that the parties stipulated to the continuance as contemplated by the third exception under section 217.460. This continuance is properly excepted from the UMDDL count.

Continuance to April 15, 2009

Finally, on October 17, 2008, defense counsel requested another continuance to complete further DNA testing on newly obtained towel swatches and to complete a second psychiatric evaluation due to Defendant’s previous obstinacy and the potential utility of further information in the penalty phase. The State did not object, and the court found good cause, shown in open court, to continue the matter. Though again Defendant challenges the reasonableness of the additional time granted, the record shows that counsel established sufficient grounds for good cause for the delay, and the additional time ensured that Defendant received effective assistance of counsel. We again find no basis to second-guess the court’s finding of good cause. This continuance, too, is properly excepted from the UMDDL count.

Excepting all continuances properly granted as discussed above, the remaining time did not exceed 180 days. There was no UMDDL violation, and therefore the trial court retained jurisdiction. Point denied.

II. Right of self-representation

Defendant also asserts that the trial court erred by denying his request to discharge counsel and proceed pro se. The Sixth Amendment right to counsel “implicitly embodies a correlative right to dispense with a lawyer’s help.” State v. Black, 223 S.W.3d 149, 158 (Mo.2007) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). This right is applicable to the states by way of the Due Process Clause of the Fourteenth Amendment and prevents a state from forcing upon a defendant unwanted counsel. Id. Denial of a defendant’s right of self-representation is structural error and therefore is not amenable to harmless error analysis. Id. There is no discretion for a trial court to force an attorney upon a competent defendant who makes a (1) timely, (2) unequivocal, (3) knowing, and (4) intelligent waiver of the right to counsel. Id. To the extent appellate review involves a determination of whether these factors were met to constitute a valid waiver, it is de novo. U.S. v. Kind, 194 F.3d 900, 903-904 (8th Cir.1999). However, a defendant’s right of self-representation is not absolute; it can be terminated when the defendant engages in serious obstructionist misconduct. U.S. v. Edelmann, 458 F.3d 791, 808-809 (8th Cir.2006) (quoting Faretta at 834, n. 46, 95 S.Ct. 2525). On that determination, we review for an abuse of discretion. Id.

Here, neither party challenges Defendant’s competence to waive counsel, and the psychological evaluation contained in the record confirms that he was capable of making decisions with respect to counsel. There is also no question that Defendant’s request was timely. He filed the first of many requests March 8, 2008, over one year prior to trial. The parties dispute, however, whether Defendant’s request was unequivocal, knowing, and intelligent. “This standard is met when the trial court specifically informs the defendant of the dangers and disadvantages of self-representation, or if the entire record evidences that the defendant knew or understood the disadvantages.” United States v. Ladoucer, 573 F.3d 628, 633 (8th Cir.2009). “The court is not required to ensure that the defendant is capable of representing himself as well as a trained and experienced lawyer, only that he understands the risks involved in representing himself and that he has knowingly and intelligently chosen self-representation.” Id.

The record contains multiple handwritten letters to the trial court and countless transcript excerpts where Defendant complains about his lawyers and asks to proceed pro se. The trial court found Defendant’s request equivocal in that he conflated it with complaints of counsel. Specifically, toward the end of the Faretta colloquy, when the court asked, “[do] you truly want to represent yourself ... or ... you’re just really unhappy with these attorneys?” Defendant replied that he was “very unhappy with the attorneys” and “[did not want] to be represented by these people.” But at the beginning of the colloquy, in response to the same question, he stated “I want to represent myself.” We do not agree that Defendant’s expression of dissatisfaction with counsel dilutes the clear and repeated invocation of his right to self-representation. Indeed, one would expect the two to coincide. Rarely would a defendant seek to discharge an attorney with whom he was satisfied. Viewed in its entirety, the record demonstrates Defendant’s unequivocal desire to waive his right to counsel and represent himself.

The trial court also found Defendant’s request unknowing and unintelligent in that Defendant was mistaken about one consequence of self-representation, namely that Defendant would not have a light to assert a claim of ineffectiveness of standby counsel. Again here, we do not find that Defendant’s misconception on this point rendered his waiver unknowing and unintelligent. The trial court took pains to educate Defendant and correct his understanding on that point. More generally, a review of the lengthy colloquy reveals that Defendant answered affirmatively when asked if he understood all of the following: the court system; the role of the judge and prosecutor; the jury selection process, including his rights under Batson v. Kentucky; his right to counsel; his right to a jury trial; the severity of the charges; the inadvisability of self-representation in a capital murder trial; the likelihood of conviction and the possibility of the death penalty; the expectation of compliance with rules of evidence and procedure; general concepts of the presentation of evidence, including objections and hearsay; the mechanism of jury instructions, including those on lesser included offense; and generally the risk that, in representing himself, Defendant might act or omit to his own detriment. This record does not support a finding that Defendant’s request was unknowing and unintelligent.

However, even when the waiver of counsel comports with the requirements of Faretta, “the right of self-representation is not a license to abuse the dignity of the courtroom.” U.S. v. Mosley, 607 F.3d 555, 558 (8th Cir.2010). A defendant is not entitled to use the right of self-representation as a tactic for delay, disruption, distortion of the system, or manipulation of the trial process. Id. “The government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.” Id. Mosley is instructive. There, the magistrate judge initially allowed the defendant to represent himself but revoked the right and ordered a competency examination after the defendant filed incoherent pro se pleadings. The defendant “continued a pattern” of disruption and unresponsiveness in pre-trial proceedings. He repeatedly asserted his right to waive counsel and represent himself, but the magistrate judge denied all motions. At trial, the defendant reasserted his right before the district court and was unsuccessful. The district court explained that it had reviewed the pre-trial proceedings and noted that the defendant “wanted to talk ... about everything but this case.” Id. at 559. The Eighth Circuit took the district court’s statement as an adoption of the magistrate judge’s conclusion that the defendant could not proceed pro se because he was unwilling to participate in the proceedings. Id Ultimately the Eighth Circuit held that:

“Mosley’s obstreperous conduct provided sufficient grounds for the district court to terminate and disallow Mosley’s self-representation. Mosley’s behavior interfered with pretrial proceedings and delayed the trial. There was good cause to believe that Mosley would continue to disrupt the proceedings.... Mosley essentially forfeited his right to represent himself by engaging in conduct that obstructed the proceedings against him.” Id.

As described by the Eighth Circuit, the record in Mosley resembles the record before us as relevant to Defendant’s obstructionist behavior and the procedural posture of the case at the time when the court denied the right of self-representation based on pre-trial conduct. Defendant sent numerous handwritten (and occasionally typed) letters to the court impugning his lawyers, the State, law enforcement and corrections officers, and the trial judge himself. As previously mentioned, Defendant’s counsel felt compelled to request, and the trial court ordered, a psychiatric evaluation due to what counsel described as Defendant’s “bizarre” and “unruly” behavior and “nonsensical and rapidly tangential” statements. In September 2007, a hearing was held on the State’s motion to order Defendant to provide finger and palm prints to compare with those found at the scene of the crime. Defendant previously had refused to comply with such orders, and here he continued to object, accusing experts of doing “something illegal” with the prints, complaining of cruel and unusual punishment, demanding probable cause, and indicating that he would continue to resist future attempts to obtain his prints. During another pre-trial hearing, in October 2008, Defendant’s behavior was even more belligerent. He again impugned the motives of both his lawyers and the trial judge and ranted incessantly, weaving from one topic to another, in what the judge described as a tirade. The judge cautioned:

Now wait. Now wait. We have to proceed in an orderly fashion. I asked you a very simple question and you went into a tirade ... If you proceed in this fashion, you’re telling me that you’re really not capable of following the court’s procedures, and I will not allow you to represent yourself under those circumstances because there is no way that a fair trial can be conducted if you’re acting out all the time as you have started doing, as you have done every time you appear in court here.

Even after this warning, Defendant continued to interrupt the court, arguing that the Supreme Court of Missouri wrongly decided Wolfrum v. Weisman. Again, the court explained, “If I can’t stop you from talking, there’s no way if you represented yourself that we would ever be able to conduct this trial in an orderly fashion.... I can guarantee you that within fifteen minutes after we start the trial of this case, I’m going to have to disqualify you and have [back-up counsel] take over.” Defendant retorted that the “Supreme Court hasn’t gave you no right to stop me from — prohibiting my right to a speedy trial. You’re doing this, your honor.”

After further haranguing, the court swore in Defendant and proceeded with the Faretta colloquy. In addition to finding that Defendant’s waiver of counsel was not unequivocal, knowing, or intelligent, the trial court also found, in essence, that Defendant had waived his right of self-representation by engaging in serious obstructionist behavior:

The court finds that, by your conduct both during this inquiry and during all previous proceedings that have been held before me, that you have unequivocally established that you ... have and will continue to fail and refuse to follow the proper procedures and have and will continue to engage in improper conduct including arguing with the court and refusing to abide by the rulings of the court and conducting yourself in an uncivil manner during trial proceedings.

Following the court’s ruling, Defendant continued to berate and interrupt the court until he was removed from the courtroom after the following exchange:

Court: This tirade has gone on long enough. I’m terminating the hearing. Based on the representations that were made by defense counsel in this case—
Defendant: Fuck you.
Court: — the court finds that there is good cause for the continuance request.
Defendant: Fuck you all.
Court: I will need to meet with counsel to try to find a future date to set this for trial because—
Defendant: Fuck you, too.
Court: — I think we need to, under the hundred and eighty day detainer law, know a future specific date. Mr. Johnson, are you leaving the courtroom?

The foregoing exchange took place during a pre-trial motion hearing before Judge Weisman, who retired in January 2008 and was succeeded by Judge Harten-bach. On the first day of trial, Judge Hartenbach referred to the incidents in pre-trial proceedings and spoke with Defendant about his willingness to behave during trial. Defendant told the judge that, “evidently you’ve been misinformed. ... I never disturbed a courtroom to that effect and that’s false information. ... I don’t know where he get this from.” Defendant then launched into another diatribe about his displeasure with counsel and reiterated his request to proceed pro se. The court denied the request, and the jury venire was brought into the courtroom to begin voir dire.

This record firmly supports the conclusion that Defendant forfeited his right of self-representation by engaging in serious obstructionist behavior. Recalling Mosley, Defendant’s similarly obstreperous conduct provided sufficient grounds for the trial court to prohibit Defendant’s self-representation based on his behavior in pre-trial proceedings, and there was good cause to believe that Defendant would continue to disrupt the trial.

Point denied.

III. Jury instruction

In his third point, Defendant asserts that the trial court erred when it refused to submit to the jury Defendant’s proposed instruction for conventional second-degree murder. A trial court is obligated to instruct the jury on lesser included offenses that are supported by the evidence so as to give the jury a third choice beyond either acquittal or first-degree murder. State v. McLaughlin, 265 S.W.3d 257, 270 (Mo.2008). The issue is not what the trial court could have done, but whether prejudice resulted. Id.

Felony murder and conventional second-degree murder are both lesser included offenses of first-degree murder. Section 565.025.2(7 )(a). Both instructions may be submitted to the jury. MAI-CR 3d §§ 313.00 Note 4, 313.04 Note 3, and 313.06 Note 5. In McLaughlin, the trial court instructed the jury on conventional second-degree murder but not felony murder — the inverse of the present case. The Supreme Court of Missouri found no error, noting that “the trial court could have submitted felony-murder rather than or in addition to conventional second-degree murder without committing error if both were supported by the evidence.” 265 S.W.3d at 271. (emphasis added) So both the Missouri Approved Instructions and our Supreme Court contemplate that a trial court may submit one instruction without the other. Moreover, we are not convinced that the absence of the conventional second-degree murder instruction deprived the jury of the opportunity to make a factual finding on the element of deliberation. If the jury did not believe that Defendant deliberated, it could have found Defendant guilty of felony murder based on the underlying rape conviction. But instead the jury found Defendant guilty of first-degree murder, which necessarily implies a finding of deliberation. So the verdict would have been the same even if the jury had also received the conventional second-degree murder instruction. “The failure to give a different lesser-included offense instruction is neither erroneous nor prejudicial when instructions for the greater offense and one lesser-included offense are given and the defendant is found guilty of the greater offense.” State v. Johnson, 284 S.W.3d 561 (Mo.2009). (emphasis in original) The felony murder instruction was sufficient to provide the jury with a third option beyond either acquittal or first-degree murder. Defendant suffered no prejudice. Point denied.

IV. Change of counsel

Finally, Defendant contends that the trial court abused its discretion by denying his motions for new counsel. As a preliminary matter, Defendant notes that his lawyers — the ones whom he sought to discharge — did not preserve this issue for appeal in Defendant’s motion for a new trial. Defendant therefore requests plain error review under Rule 30.20. A similar situation existed in State v. Black, and our Supreme Court held that the defendant had sufficiently preserved the point through his requests of self-representation:

[T]he exercise of his right to do so cannot be dependent upon the renewal of that position by the very counsel he sought to dismiss. Similarly, a defendant does not need to endlessly renew his position or object to the presence of counsel. After Black’s unequivocal and timely assertion of his right was clearly rejected, he was not required to “make fruitless motions or forego cooperation with defense counsel to preserve the issue on appeal.”

223 S.W.3d at 154, citing United States v. Arlt, 41 F.3d 516, 523 (9th Cir.1994). Consistent with Black, Defendant’s point here is deemed sufficiently preserved for appellate review beyond plain error. Rather, we review for abuse of discretion. “The ultimate determination as to whether appellant should have been allowed to discharge his attorney is a matter of discretion with the trial court.” State v. Boyd, 913 S.W.2d 838, 844 (Mo.App.1995). This court will not interfere unless there has been a clear abuse of discretion, and every intendment in favor of the trial court will be indulged. Id.

A criminal defendant has no absolute right to a particular attorney. State v. Kent, 637 S.W.2d 119, 122 (Mo.App.1982). To warrant substitution of lawyers, the defendant must first demonstrate justifiable dissatisfaction with appointed counsel. State v. Denny, 619 S.W.2d 931, 933 (Mo.App.1981). “A criminal defendant who is dissatisfied with appointed counsel must show good cause to warrant substitution of counsel, such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.” Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.1991).

Here, Defendant claims that there was an irreconcilable conflict between him and his counsel and a total breakdown in the attorney-client relationship. Specifically, Defendant objected to counsel’s trial strategy, accused him of professional misconduct, and filed a civil suit against him alleging assault. Similar facts existed in Boyd, but this court found no basis for relief because the defendant failed to prove that a conflict of interest actually existed and affected counsel’s performance. A defendant who files a lawsuit against his attorney does not necessarily create a conflict of interest. Boyd, 913 S.W.2d at 844. Likewise here, Defendant failed to prove to the trial court the existence of a true conflict of interest affecting counsel’s performance. In fact, the record suggests that Defendant might have attempted to create a conflict in so far as his psychological evaluation reveals that he intended to “get rid of’ his second attorneys just as he had “gotten rid of’ the first ones. Such a maneuver is “an improper manipulative undertaking to obstruct the orderly administration of justice.” State v. Kent, 637 S.W.2d 119, 122 (Mo.App.1982) (citing U.S. v. Hart, 557 F.2d 162, 163 (8th Cir.1977)).

Additionally, as in Kent and Denny, Defendant here complained to the trial court that his counsel was incompetent and had “no concern for [his] welfare.” But the record contains no justification for Defendant’s dissatisfaction. On the contrary, it depicts counsel’s efforts to defend his client competently and professionally in spite of Defendant’s refusal to communicate or cooperate in the preparation of his own defense. The breakdown in communication was Defendant’s own doing, and disagreement on trial strategy does not equate to an irreconcilable conflict creating grounds to substitute counsel. Boyd at 846. We find no abuse of discretion by the trial court on this record. Point denied.

Conclusion

The judgment of the trial court is affirmed.

SHERRI B. SULLIVAN, P.J., and LAWRENCE E. MOONEY, J., concur.

      . In 2009, the General Assembly amended the statute so as to mandate dismissal only when the trial court finds a violation of the defendant's constitutional right to a speedy trial.

      . Though the trial court issued its order days after defense counsel’s motion, the court purports to act on its own motion. Either way, the record fully supports the court’s order and its underlying finding of reasonable cause pursuant to section 552.020. Aside from the bases stated in counsel's motion, the record is replete with Defendant’s handwritten pro se letters to the court, the substance of which provides an independent basis for the court to have ordered the evaluation sua sponte. The trial court was well within its discretion to order the evaluation.

      . Some cases state that the right of self-representation is unqualified when demanded before trial and the court’s discretion to deny it based on a defendant's behavior vests when the trial commences. United States v. Wesley, 798 F.2d 1155 (8th Cir.1986). While we agree that denial of the right of self-representation cannot be justified on grounds of anticipated disruptive behavior (e.g., People v. Freeman, 76 Cal.App.3d 302, 142 Cal.Rptr. 806 (1977)), we do not interpret the law to mandate the futile and potentially prejudicial exercise of permitting an individual with Defendant’s pre-trial courtroom track record (further described infra) to advance to jury selection for another disruptive display before the judge may finally revoke his pro se status. Moreover, even such a rigid interpretation fails Defendant here. Even accepting arguendo that Judge Weisman’s ruling of October 2008 was premature, Judge Harlen-bach’s ruling on the morning of trial coincided with commencement of the trial. At that time, the ample pre-trial record and Judge Hartenbach's own personal interaction with Defendant were sufficient to support his decision to deny Defendant’s renewed motion to proceed pro se.

      . Conducted pursuant to section 600.051.1 RSMo.


source: Caselaw Access Project

author: THOMAS H. NEWTON, Presiding Judge.

license: Public Domain

text:
    COWBELL, LLC, Respondent, v. BORC BUILDING AND LEASING CORP. and Knight Construction Company, Appellants.
    Nos. WD 72052, WD 72231.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      James B. Jackson, Independence, MO, for Appellants.
    Hugh L. Marshall, Kansas City, MO, for Respondent.
    Before: THOMAS H. NEWTON, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   THOMAS H. NEWTON, Presiding Judge.

BORC Building and Leasing Corporation (“BORC”) and Knight Construction Company (“Knight”) (referred to collectively herein as “the Corporations”) appeal the trial court’s judgment ordering specific performance of a land sale and awarding Cowbell, LLC (“Cowbell”), the buyer, attorney fees. The Corporations contend that they had no authority to sell the land, that the signatures executing the contracts were invalid, that the sale was unconscionable, and that it was unconscionable to award Cowbell attorney fees. We affirm the judgment of the trial court, grant Cowbell’s motion for attorney fees on appeal, and remand to the trial court for hearing and judgment entered accordingly.

Factual and Procedural Background

The Corporations owied three contiguous parcels of undeveloped land in Independence, Missouri, totaling approximately twelve acres. The properties were acquired between 1974 and 1983 for a total purchase price of $199,000.

In February 2007, an Auction Contract and a Sales Contract were executed between owners of interests in the Corporations and the Land Source as the listing broker. The Auction Contract provided that the Corporations were the sellers and for the land to be sold “as is.” The form also provided an option for the sale of the property to be “with reserve,” for an additional fee. The sellers did not choose this option; it was hand marked as “N/A.” Instead, the contract provided for the property to be sold “absolute, without reserve.” A Sales Contract was also signed in conjunction with the Auction Contract by the same parties, as well as by two additional owners of interests in the Corporations.

In March 2007, the three tracts of land were auctioned without reserve. According to the testimony of Cowbell’s managing partner, Mr. David Block, the auction was heavily advertised for six months preceding the auction. Cowbell bid $27,500, plus a premium of $2,750 for the listing broker, for a total of $30,250. This was the highest bid. Cowbell wired the money to the title company, but the owners of interests in the Corporations refused to execute a deed to convey the land or to accept payment. Cowbell sued for breach of contract and sought specific performance of the sale. The Corporations raised as affirmative defenses, inter alia, lack of capacity to contract and unconscionability.

At the bench trial in September 2008, an appraiser testified for the Corporations that the property’s market value was $785,000. However, in 2006, the county listed the value of the land at $115,503. It was also adduced that the Corporations had attempted to sell the land several times and the only offer they received was for $100,000.

The trial court found that all persons who had an interest in the proceeds of the sale or had a right to control the business of the Corporations participated in preparing and signing the Auction and Sales Contracts. Consequently, it found the Corporations bound by the contracts. It further found that “[ujnconscionability based on inadequacy of price is not an available defense to a voluntary no-reserve auction.” It then ordered specific performance of the land conveyance, decreed the Corporations divested of title, and assessed costs against the Corporations. After trial, Cowbell sought $53,515.81 for its attorney fees and expenses. The trial court entered judgment awarding Cowbell $30,000 of its fees and expenses, payable from the purchase monies Cowbell had placed in escrow. The Corporations appeal, raising four points.

Standard of Review

We review the judgment of a bench-tried case under the standard pronounced in Murphy v. Carton, 536 S.W.2d 30, 32 (Mo. banc 1976). We determine “whether the judgment is not supported by the evidence, is against the weight of the evidence, or erroneously declares or applies the law.” Jackson v. O’Dell, 851 S.W.2d 535, 536 (Mo.App. W.D.1993). We view the evidence and inferences to be draw from it in the light most favorable to the judgment, disregarding contrary evidence and inferences. Landers v. Sgouros, 224 S.W.3d 651, 655 (Mo.App. S.D.2007).

Legal Analysis

In their first and second points on appeal, the Corporations argue that the trial court erred in ordering specific performance because the contracts were not validly executed. The Corporations argue the trial court erred in finding the contracts enforceable because their execution did not comply with section 351.400, which governs the procedure for the disposition of all of a corporation’s assets. They further contend the contracts’ execution was invalid because there were insufficient shareholders of record or directors to make up a quorum, no resolutions had been adopted authorizing the sale, the articles did not authorize the sale, no officer or director had inherent authority to sell the land, and the signatories signed in their own names. We do not agree.

First, the purpose of section 351.400 is to protect the stockholders of the corporation. Beaufort Transfer Co. v. Fischer Trucking Co., 451 S.W.2d 40, 43 (Mo. banc 1970). It does not implicate public policy and a sale not in compliance with its procedures is not “of necessity, unlawful or void.” Id. Consequently, where all owners of shares in the corporation have signed an agreement to dispose of the corporations assets, noncompliance with the formalities will not invalidate the agreement. See id. at 43-44. In Beaufort, the signatory owned all the shares in a corporation and executed a sales contract. Id. The signatory argued that the corporation’s Board, composed of his wife and daughter, did not ratify the sale as required by its bylaws. The court, finding the argument neither “new nor novel,” rejected this contention because all ownership interests had signed the contract. Id. at 43. It relied on an early statement in Union National Bank v. Shoemaker, 68 Mo.App. 592 (1897), where three shareholders who collectively owned all the shares in the corporation sought to invalidate a sale: “ ‘they were in fact the corporation, and whatever all these shareholders did or consented to must be treated as the act of the corporation.’ ” Beaufort, 451 S.W.2d at 43; see also Wooster Republican Printing Co. v. Channel 17, Inc., 533 F.Supp. 601, 618 (W.D.Mo.1981) (“[F]ail-ure of the corporate seller to comply with all technical requirements ... is not fatal ... as long as the primary purpose of the statute has been achieved.”). Here, because each of the holders of interests in the Corporations was represented in the agreements, the purpose of the statute was served.

Nor do we accept that the Corporations lacked capacity to contract because a quorum of shareholders or directors was allegedly lacking. Although shares had passed from decedents to their heirs, the record books had not been updated to reflect these transfers. The Corporations contend they could not contract because their record shares were in the names of dead persons and their Board members had died with no new elections. A corporation cannot fail to elect directors, fail to update records, and then use its own failure to comply with formalities to defeat the claims of third parties with which it contracted. See Beaufort, 451 S.W.2d at 43; Still v. Travelers Indem. Co., 374 S.W.2d 95, 101 (Mo.1963). “The corporation laws are designed to provide investors with protection from personal liability,” Jackson, 851 S.W.2d at 537, and the laws governing the sale of corporate assets are designed primarily to protect the interests of minority and dissenting shareholders. Wooster, 533 F.Supp. at 617. It does not follow that non-compliance with the formalities permits the corporation to subvert a contract with a third party that was agreed to by all owners of interests in the corporation. See Beaufort, 451 S.W.2d at 43; see also Still, 374 S.W.2d at 99-100 (“The legislature has prescribed a procedure to be followed ... it has not declared a transaction which does not follow the prescribed procedure ‘unlawful’ or ‘fraudulent and void.’ ”).

For the same reasons, we disagree with the Corporations’ argument that because the signatories signed in their own names rather than indicating a representative capacity, the contracts were not validly executed. See Jackson, 851 S.W.2d at 536 n. 1. The Corporations’ first and second points are denied.

In their third point on appeal, the Corporations contend that the trial court erred in finding that unconscionability did not apply to the sale. They rely principally on Miller v. Coffeen, a case in which the Missouri Supreme Court reversed an order of specific performance of a home sale where the sale was for “shockingly inadequate consideration” and the contract was “conspicuously harsh, biting, and oppressive.” 365 Mo. 204, 280 S.W.2d 100, 105 (1955). They argue that the disparity between their appraiser’s testimony of the market value of the property and Cowbell’s winning bid at auction shows that to order specific performance of the sale was unjust.

The doctrine of unconscionability is meant to guard against one-sided contracts, oppression, and unfair surprise. Landers, 224 S.W.3d at 664 n. 12. Uncon-scionability may be procedural, substantive, or a combination of both on a “sliding scale.” Brewer v. Mo. Title Loans, Inc., 323 S.W.3d 18, 21-23 (Mo. banc 2010). A contract is found unconscionable where it is so strongly, grossly, and manifestly unequal that someone with common sense would exclaim at the inequality of it. Landers, 224 S.W.3d at 664 n. 12. However, “inequality in value between the subject matter and the price, standing alone, does not rise to the level of unconscionability which requires the refusal of specific performance.” Coale v. Hilles, 976 S.W.2d 61, 67 (Mo.App. S.D.1998) (internal quotation marks and citation omitted). Rather, we determine whether an agreement is unconscionable in view of the circumstances in which the contract was made. Landers, 224 S.W.3d at 664 n. 12. Inadequate consideration will not mandate the denial of specific performance “ ‘unless accompanied by other inequitable incidents or unless the disparity is so gross as to show fraud.’ ” Coale, 976 S.W.2d at 67 (quoting Seabaugh v. Sailer, 679 S.W.2d 924 (Mo.App. E.D.1984)). In analysis of the facts, we are guided by “principles of equity, real estate, and contract law.” Landers, 224 5.W.3d at 663-64.

Here, the Corporations agreed to the sale of the property “without reserve,” which is a term of art. See Wilcher v. McGuire, 537 S.W.2d 844, 846 (Mo.App.1976). When an auction is made “without reserve,” an owner enters into a collateral contract with anyone bidding at the auction, promising that the property will be sold to the winning bidder. Id. Once the auctioneer accepts the bid as the seller’s agent, the seller may not reject the bid and is bound to complete the sale. Coleman v. Duncan, 540 S.W.2d 935, 937-38 (Mo.App.1976). Consequently, just as Cowbell agreed to bear the risk of the “as is” sale, the Corporations agreed to bear the risk of “inadequate” consideration.

The Corporations do not dispute the general law of no reserve auctions. Instead, they argue this is “an exception to the rule because of the circumstances.” However, other than them allegation of inadequacy of price, the only allegations of “other inequitable incidents” are the comparison between the real estate experiences of Cowbell’s managing partner, Mr. Block, and that of the Corporations’ interest holders, and their allegation that the shareholders “did not understand just how risky no-reserve auctions could be.”

We do not agree that the circumstances surrounding the contracts’ execution support a finding of uneonscionability. First, the Corporations had previously attempted to sell the land and refused a prior offer, by which we must infer the Corporations had some idea of the land’s value. Second, the evidence does not show an imbalance of contracting power. The Corporations elicited testimony from two owners of interests in the Corporations. Mr. Billie Collins, a retired electrician, testified that he was not given a copy of the contracts to read, though he could have requested one. However, he authorized Mr. Robert Hogge to sign the Auction Contract for him and signed the Sales Contract himself. Ms. Loretta Cortner, whose last job had been as an IRS clerk, testified that she was not shown the Auction Contract, yet signed the signature page. She stated that at that time she did not understand what “reserves” were or what “absolute” meant. She testified she did not recall signing the Sales Contract, though she acknowledged her signature. “The law is well settled that one who signs a contract is presumed to have known its contents and accepted its terms.” Warren Supply Co. v. Lyle’s Plumbing, L.L.C., 74 S.W.3d 816, 819 (Mo.App. W.D.2002) (internal citation and quotation marks omitted). The signatories’ alleged failure to read the contracts is not a defense. See id.

Third, the Auction Contract gave the seller an option to auction the land with reserve for an additional advertising fee and the Corporations specifically opted out of this provision. Rather than the Corporations being misled to enter into a shockingly unjust contract, it appears they chose to gamble in an auction that did not meet their hopes and expectations.

Finally, although the Corporations point us to law governing inequities in tax sales and sheriffs’ sales, we find the law of forced sales to be inapplicable to the present case, which was a voluntary sale. See, e.g., Yokley v. Wian, 877 S.W.2d 179, 182 (Mo.App. W.D.1994) (grossly inadequate amounts paid at forced sales may be evidence of constructive fraud) (internal citation and quotation marks omitted); Wieser v. Linhardt, 257 S.W.2d 689, 690 (Mo.1953) (inadequacy of consideration may be of “so gross a nature as to amount in itself to conclusive and decisive evidence of fraud”). In those cases, the courts’ clear concern was that the state action involved may have amounted to a confiscation. The Corporations’ third point is denied.

In their fourth point, the Corporations argue that it was unconscionable to award Cowbell its attorney fees. We follow the “American Rule,” under which litigants generally bear their own attorney fees. Rosehill Gardens, Inc. v. Luttrell, 67 S.W.3d 641, 648 (Mo.App. W.D.2002). However, there are several exceptions to the rule, including where the payment of attorney fees is provided for by statute or contract. See id.

In the present case, the Sales Contract provided that:

In the event either party shall institute (or be joined as a party) in any action or proceeding (including arbitration proceedings) due to the performance, nonperformance, misperformance, breach, or default under this Contract, then the party who or which substantially prevails in such action or proceeding shall be entitled to recover from the other party such substantially prevailing party’s reasonable attorneys’ fees, court cost [sic], and investigative expenses.

Cowbell prevailed at trial and was, therefore, “entitled to recover ... reasonable attorneys’ fees” under the terms of the Sales Contract. The Corporations concede that a court may award attorney fees based on the contract but argue this case represents “unusual circumstances” in which an exception should apply. We do not agree. “If a contract provides [for] the payment of attorney[] fees and expenses incurred in the enforcement of a contract provision, the trial court must comply with the terms of the contract and award them to the prevailing party.” Rx Recalls, Inc. v. Devos Ltd., 317 S.W.3d 95, 96 (Mo.App. E.D.2010) (internal quotation marks and citation omitted). Contrary to the Corporations’ argument, a suit brought for specific performance does not alter that rule. See, e.g., Vaughn v. Willard, 37 S.W.3d 413, 417 (Mo.App. S.D.2001) (reversing trial court’s denial of contractual attorney fees in suit for specific performance). The Corporations’ fourth point is denied.

Finally, pursuant ’ to Local Rule XXIX, Cowbell has moved for an award of attorney fees and expenses incurred in this appeal and requested an award of $24,073.94. “With respect to attorney[] fees on appeal, a party may be allowed to recover these fees if they are based upon a written agreement that is the subject of the issues that are presented in the appeal.” Rosehill Gardens, 67 S.W.3d 641, 648 (Mo.App. W.D.2002) (internal quotation marks and citation omitted). In accord with the parties’ contract, because Cowbell is the prevailing party on appeal, Cowbell is entitled to its attorney fees for time spent on the issues on appeal. Consequently, the motion for attorney fees is granted. While we have the authority to award attorney fees on appeal, “we exercise this power with caution.” Id. Because the trial court is better equipped to determine the “reasonable attorneys’ fees, court cost [sic], and investigative expenses” incurred on appeal of the issues on which Cowbell prevailed, we remand to the trial court to hold a hearing and award such amount. See Rx Recalls, Inc., 317 S.W.3d at 97.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court. We grant Cowbell’s motion for attorney fees and remand the determination of the amount of “reasonable attorneys’ fees, court cost [sic], and investigative expenses” incurred on appeal to the trial court for a hearing and judgment entered accordingly.

SMART and ELLIS, JJ. concur.

      . The Corporate ownership interests at the time of the contract’s signing were shown by stipulated facts as follows: BORC:
      • Mr. Billie Collins owned twenty-five percent.
      • Mr. Ralph Cortner owned twenty-five percent on the corporate certificates and books. He died prior to 2007, and his interest passed to Loretta Cortner through probate.
      • Mr. Oscar Knight owned fifty percent on the corporate certificates and books. He died prior to 2007, passing his interest to Esther Knight through probate, who also died prior to 2007, passing the interest to Ms. Pamela Haggard and Ms. Lora Houston through probate.
      ¿Knight:
      • Mr. Robert Hogge owned one-seventh.
      • Mr. Billie Collins owned one-seventh.
      • Mr. David Rogers owned one-seventh.
      • Mr. Ralph Cortner owned one-seventh on the corporate certificates and books. He died prior to 2007, and his interest passed to Loretta Cortner through probate.
      • Ms. Esther Knight owned one-seventh. She died prior to 2007, passing the interest to Ms. Pamela Haggard and Ms. Lora Houston.
      The trial court further found with respect to Knight that:
      • Mr. John O’Shields died owning one-seventh. His son was Mr. John O'Shields. (For ease of reference, "John O'Shields, Jr.").
      • Mr. Gene Jury died owning one-seventh. His sons were Mr. Michael Jury and Mr. Mitchell Jury.
      No evidence was offered to dispute that Mr. O'Shields, Jr. or Mr. Michael or Mitchell Jury inherited their fathers' ownership interests.

      . The Auction Contract was signed by Mr. Robert Hogge, Mr. David Rogers, Mr. Billie Collins, Mr. Michael Jury, Ms. Loretta Cort-ner, Ms. Pamela Haggard, and Mr. John O’Shields. The Sales Contract was additionally signed by Ms. Lora Houston and Mitchell Jury.

      . The tax assessments were offered by Cowbell and objected to by the Corporations for any use to evidence the land’s value. The trial court overruled the objection, stated it would give the assessments their appropriate weight, and later sustained an objection to a question by Cowbell that characterized the assessments as showing the value of the property.

      . Statutory references are to RSMo 2000.

      . The trial court made no specific finding as tó the value of the property.

      . The Corporations have not suggested what they believe would have been a fair price for the land "as-is” at an auction "without reserve”; their appraisal was for market value. See Yoldey v. Wian, 877 S.W.2d 179, 182 (Mo.App. W.D.1994) (stating that to determine fair price at a sheriff's sale it was necessary to discount fair market value for the inherent risks).

      . The Corporations do not argue unilateral mistake.


author: PER CURIAM.

text:
    MASTERMARK BUILDERS, INC., Respondent, v. Tim ECHELMEIER and Casey Echelmeier, Appellant.
    No. WD 71331.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2010.
    Application for Transfer Denied Jan. 25, 2011.
    Thomas M. Dunlap, Esq., Fulton, MO, for appellant.
    Christopher Schappe, Esq., Columbia, MO and Mick D. Wilson, Esq., Ashland, MO, for respondent.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, JAMES E. WELSH, Judge and JAMES VANAMBURG, Special Judge.
   Order

PER CURIAM.

Tim and Casey Echelmeier appeal from a judgment awarding damages in favor of Mastermark Builders, Inc. and denying the Echelmeier s’ counterclaim for attorneys’ fees. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment.

AFFIRMED. Rule 84.16(b).


author: SHERRI B. SULLIVAN, P.J.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Jeffrey GARVEY, Defendant/Appellant.
    No. ED 93221.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 9, 2010.
    Application for Transfer to Supreme Court Denied Dec. 21, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      Shaun J. Mackelprang, John W. Grant-ham, James B. Farnsworth, Jefferson City, MO, for Plaintiff/Respondent.
    Michael A. Gross, St. Louis, MO, for Defendant/Appellant.
   SHERRI B. SULLIVAN, P.J.

Introduction

Jeffrey Garvey (Appellant) appeals from the trial court’s judgment entered upon a jury verdict convicting him of four counts of first-degree statutory sodomy, two counts of first-degree molestation, and one count of attempted first-degree statutory rape. We affirm.

Factual and Procedural Background

The State charged Appellant with four counts of first-degree statutory sodomy (Counts I, II, IV, and V), two counts of first-degree child molestation (Counts III and VI), and one count of first-degree statutory rape (Count VII). Appellant does not contest the sufficiency of the evidence to support his conviction. The evidence, viewed in the light most favorable to the verdict, is as follows.

In 2002, the victim in this case, O.B., and her mother (Mother), moved in with Appellant, Mother’s boyfriend. At that time, O.B. was in the third grade. While O.B. and Mother lived there, Appellant would watch O.B. when Mother was at work or otherwise not at home.

When O.B. was in the fourth grade, Appellant began touching her breasts and vagina with his fingers and his tongue. Appellant touched her this way two or three times per month. Appellant continued to touch O.B.’s breasts and vagina with his hands and mouth during her fifth and sixth grade years of school. When O.B. was in the sixth grade, Appellant tried to put his penis into her vagina but was unable to complete the act.

When O.B. was in the fourth grade, Appellant took a photo of her in her pan ties, a tank top, a hat, and high heeled shoes. Appellant also took a photograph of O.B. in which she appeared to be wearing a hat and a tank top and was wrapped in a sleeping bag. Appellant showed Mother photos on the internet of young girls posing in their underwear, and told her that he wanted to take similar photos of O.B. as a way to make money. Mother was alarmed and told him no, but Appellant brought the subject up again later.

In February 2006, when O.B. was in the seventh grade, Appellant and O.B. got into an argument over what O.B. wanted to wear to school, during which Appellant spanked O.B. Appellant and Mother got into a disagreement over how to discipline O.B., resulting in Mother and O.B. moving out.

Shortly thereafter, Mother and Appellant tried to reconcile. For Valentine’s Day, Appellant gave Mother a card and flowers and sent O.B. a card with $20 in it. Mother pressed O.B. to call and thank Appellant for the card, but O.B. refused. When it appeared that Mother was going to reunite with Appellant, O.B. told Mother that she did not want to go back and that Appellant had been sexually abusing her. Mother took O.B. to St. Anthony’s Hospital the next day where she was examined by Dr. Peter Berglar (Dr. Berg-lar).

At trial, Appellant called Dr. Berglar, who testified that he conducted a pelvic examination on O.B. upon allegations that she was sexually assaulted. Dr. Berglar testified that O.B.’s examination was normal, but that a lack of physical exam findings did not rule out penetration. Dr. Berglar testified that in the overwhelming majority of pelvic examinations he conducted due to allegations of sexual abuse, he found no physical evidence of abuse.

The State introduced letters and cards written by Appellant to O.B., which included the following sentiments:

“Do you know that my heart beats only because of you ? You mean the whole world to me.”
“Do you realize how much I love you ? All of my heart and soul.”
“I love and miss you sooo ... very much, it hurts.”

The State also introduced the video deposition of Detective Jeffery Munzlinger (Munzlinger). Munzlinger testified that during an interview with Appellant, Appellant told Munzlinger, “I know that I shouldn’t tell you this, but I trusted her.”

Appellant testified in his own defense at trial. Appellant denied having sexual intercourse with O.B. or touching her in a sexual way.

The trial court directed a verdict as to Count VII, first-degree statutory rape, but pei'mitted the State to submit an instruction to the jury on attempted first-degree statutory rape. The jury found Appellant guilty on all counts. The jury recommended sentences of 20 years’ imprisonment on each of the four first-degree statutory sodomy convictions, 10 years’ imprisonment on both of the first-degree child molestation convictions, and 23 years’ imprisonment for the attempted statutory rape conviction. The trial court sentenced Appellant in accordance with the jury’s recommendation and ordered that all sentences be served concurrently. This appeal follows.

Points Relied On

In his first point on appeal, Appellant argues the trial court erred in denying his challenges to two prospective jurors, one of whom was a rape victim and the other who was the husband of a child molestation victim, or the court committed plain error in failing to make further inquiry into the qualification of those individuals, because the denial of his challenges for cause and the absence of meaningful inquiry into the effect of each individual’s exposure to sexual assault crimes deprived him of his right to trial by an impartial jury under Mo. Const. Art. I, Section 18(a), and to due process and a fair trial under U.S. Const, amend. XIV and Mo. Const. Art I, Section 10, in that (1) sexual assault crimes have a singularly devastating emotional impact upon victims, (2) the sole affirmative basis for finding each of the challenged jurors qualified was the individual’s unexamined self-qualifying statement, (3) the context in which those self-qualifying statements were made was suggestive or coercive of such an affirmative response, (4) so many veniremembers disclosed that they or their family members had been victims of sexual assault that the peremptory challenges available to Appellant were insufficient to afford him a reasonable prospect of a trial before impartial jurors, and (5) each of the challenged jurors served on the jury that unanimously found Appellant guilty of all seven charges proffered by the prosecution.

In his second point on appeal, Appellant argues the trial court committed plain error in failing to declare a mistrial or to admonish the prosecuting attorney before the jury and provide the jury with a remedial instruction after the prosecutor twice told jurors in summation that defense counsel had lied to them, because that disparagement of counsel resulted in manifest injustice and a miscarriage of justice and deprived Appellant of his right to due process and a fair trial under U.S. Const, amend XIV and Mo. Const. Art I, Section 10, in that (1) the evidence of Appellant’s guilt was marginal at best, (2) the prosecuting attorney enjoys unique trust from the jury because of his quasi-judicial status, and (3) his disparagement of defense counsel was unfounded and likely to have an effect on the jury’s verdict in this close case.

In his third point on appeal, Appellant argues the trial court erred in overruling Appellant’s objection to testimony by Dr. Berglar regarding the frequency with which he found sexual trauma evidence in other emergency room examinations he had conducted, because evidence of the presence or absence of evidence in other cases was irrelevant in this case, in that the evidence did not tend to prove any fact material to the issues in this case and its potential to prejudice Appellant by making jurors more likely to find O.B. credible substantially outweighed whatever theoretical probative value it might have.

Discussion

Point I — Juror Challenges for Cause

During the prosecutor’s voir dire examination, the prosecutor asked the panel members if they had been the victim of a sexual assault or had a close friend or family member who had been the victim of a sexual assault. L.L. and C.L. were two of the panel members that responded affirmatively.

L.L. reported that she had been sexually assaulted by a stranger who was hitchhiking approximately 15 years earlier and that no one had been prosecuted. In response to the prosecutor’s questioning, L.L. indicated that this was not something she still thought about. L.L. responded affirmatively that she would follow the court’s instructions and could be fair to both parties. Later, defense counsel made additional inquiries of L.L., asking:

[Defense Counsel] ... Is there anything about that that you think during the course of the trial if issues would be similar, or if things would come up that you think would effect [sic] you in any way?
[A.] No, not at all.
[Defense Counsel] I guess our concern would be if you said, well I can’t go on with the case or anything like that, if that brought back memories for me, or anything like that?
[A.] No.
[Defense Counsel] Okay. Same question on the sentencing range. Any issues with respect to that?
[A.] No, sir, not at all.
[Defense Counsel] Considering the minimum issues?
[A.] No.
[Defense Counsel] Thank you. I think we are cool there.

C.L. reported that his wife had been sexually assaulted when she was a child by a family member, possibly her stepfather. C.L. stated that he was familiar with the facts of his wife’s experience but that she did not continue to discuss it. C.L. stated that his wife’s experience would not affect his ability to follow the court’s instructions and that he could be impartial. In response to questioning from defense counsel, C.L. stated that his wife’s experience would not affect him during trial and would not make him favor one party over the other. C.L. indicated that he could consider the minimum range of punishment during the sentencing phase.

Defense counsel argued to the trial court that those panel members who had close family experiences with sexual abuse should be stricken for cause even if the veniremember stated that he or she could follow the court’s instructions. The court denied defense counsel’s request to strike all such veniremembers. Both L.L. and C.L. served on the jury and concurred in the verdicts. Appellant argues on appeal that the trial court erred in failing to sustain his motion to strike veniremembers L.L. and C.L. for cause.

The defense’s challenge to a prospective juror’s qualifications during voir dire may constitute grounds for the granting of a new trial or the reversal of a conviction only when the prospective juror actually serves on the jury and participates in the verdict rendered against the defendant. Section 494.480.4 RSMo 2008; State v. Gill, 167 S.W.3d 184, 194-195 (Mo. banc 2005). “To qualify as a juror, the venireperson must be able to enter upon that service with an open mind, free from bias and prejudice.” State v. Ervin, 835 S.W.2d 905, 915 (Mo. banc 1992).

The trial court has wide discretion in detenninmg the qualifications of a prospective juror, and we will not disturb the court’s ruling unless it is clearly erroneous. Ervin, 835 S.W.2d at 915. The trial court is in a substantially better position than this court to determine a challenge for cause and all doubts are resolved in favor of the trial court’s ruling. State v. Treadway, 558 S.W.2d 646, 649 (Mo. banc 1977). As the party seeking to strike these panel members, it was Appellant’s burden to probe into the areas he considered grounds for disqualification during voir dire. Ervin, 835 S.W.2d at 916-17.

At trial and on appeal, Appellant contends that every prospective juror that has been the victim of, or is a close relative of a victim of, sexual assault should be automatically eliminated, for cause, from sitting on a jury for a trial involving allegations of sexual assault. While it is beyond dispute that sexual assault can have a joro-found impact on its victims, Appellant’s contention that the exposure to sexual assault automatically renders an individual unqualified to serve on such a jury is without basis in fact or law. The courts will not assume that an entire category of people are simply incapable of serving on a jury fairly and impartially. Instead, voir dire is the method by which a prospective juror’s qualifications are determined. The trial judge has the duty of evaluating the venire’s responses and determining whether their views would prevent or substantially impair their ability to perform as jurors. State v. Deck, 303 S.W.3d 527, 535 (Mo. banc 2010).

Here, voir dire revealed experiences, i.e., exposure to sexual assault, which may cause an individual to be biased or prejudiced on issues involving sexual assault and may prevent that individual from being able to serve fairly and impartially as a juror on a trial involving such allegations. However, because a juror falls into the category of people that may have a propensity to be biased on a particular subject does not mean that he or she is, in fact, biased. Counsel for both sides questioned the veniremembers without limit, some members indicating that they could serve fairly and impartially while others indicating that they could not. L.L. and C.L. both stated unequivocally that they could be a fair and impartial juror and that they could follow the court’s instructions. Appellant has not demonstrated that L.L. and C.L.’s exposure to sexual assault prevented or substantially impaired them from performing their duties as jurors. The trial court did not abuse its discretion in refusing to strike L.L. and C.L. for cause.

Appellant also argues that the trial court erred in failing to strike L.L. and C.L. for cause without making an independent examination into the jurors’ qualifications beyond that made by the attorneys.

Appellant is correct that the trial judge has the duty of determining whether a challenged venireperson is qualified to serve as a juror and that a venireperson may not pass upon his own qualifications to serve. State v. Thompson, 541 S.W.2d 16, 17-19 (Mo.App. W.D.1976). However, the court only has a duty to make an independent inquiry when the venireman is equivocal about his ability to be fair and impartial. State v. Walton, 796 S.W.2d 374, 377 (Mo. banc 1990).

While the court in the instant case did not independently examine L.L. and C.L., nothing in either venireperson’s responses to counsels’ questions indicated that they could not perform their duties as jurors in accordance with the court’s instructions; thus there is no basis to believe that an independent examination by the court was necessary.

Appellant has not demonstrated that L.L. and C.L.’s experiences prevented or substantially impaired them from performing their duties as jurors in accordance with the court’s instructions. The trial court did not err in not striking L.L. and C.L. for cause without making an independent inquiry into the jurors’ qualifications. Appellant’s Point I is denied.

Point II — Closing Argument

During closing arguments, the defense argued at length that O.B. had made numerous inconsistent statements throughout the investigation and at trial, and that these inconsistencies were evidence that the allegations were entirely made up and that O.B. was lying. Defense counsel also argued that by amending the information the State was “changing the game” and doing “anything to get a conviction.”

During its rebuttal, the State argued:

[The State]: ... You remember yesterday when he kept approaching her and he kept showing her those preliminary hearing transcripts? And he kept showing her those deposition transcripts? And every time she said I don’t know, he clarified. She didn’t contradict herself, she would say, I don’t know, I don’t think about it, and he would clarify it. The deposition transcript that [O.B.] took last year, she specifically said that [Appellant] had intercourse with me one time. You have been lied to. You have been lied to by the defense attorney. Because yesterday she testified, after he had it clarified with her, and her deposition transcript of last year, she talked about sexual intercourse one time. He made a big deal about how oh, this is the first time she has ever said it. He lied to you. And it’s not comfortable for me to say that.
[Defense Counsel]: I would object ... it is a misstatement. She said attempted for the first time ...
THE COURT: Sustained.
[The State]: ... It’s not easy to hear up there. But her accounts of all of those instances are consistent. The only thing that is slightly problematic are the sexual description terms for count seven. He hasn’t blown a hole in anything with regards to counts one through six. And it is not all or nothing. He was lying to you. You have to consider—
[Defense Counsel]: Objection, Your Honor, to the mis — -just personal attack on the attorney. I think that’s improper argument.
THE COURT: Sustained.

On appeal, Appellant contends that the trial court committed plain error in failing to sua sponte declare a mistrial or to admonish the prosecuting attorney before the jury. Under plain error review, this Court must first determine whether the trial court actually committed an evident, obvious, and clear error that affected a substantial right. Rule 30.20; State v. Washington, 260 S.W.3d 875, 879 (Mo.App. E.D.2008). Then, we must determine whether the error resulted in manifest injustice or a miscarriage of justice. Washington, 260 S.W.3d at 879.

The parties are afforded substantial latitude during closing arguments, and the trial court has broad discretion in determining when counsel exceeds the permissible scope of argument. State v. Kee, 956 S.W.2d 298, 303 (Mo.App. W.D.1997). Improper closing arguments that are reviewed under plain error do not constitute reversible error unless the improper remark had a decisive effect on the outcome of the trial. State v. Chism, 252 S.W.3d 178, 186 (Mo.App. W.D.2008). Appellant has the burden of demonstrating that there is a reasonable probability that the verdict would have been different absent the improper argument. Id.

The State may not argue matters not in evidence and statements that defense counsel acted improperly, without basis in the record, degrade the defense and are error. State v. Greene, 820 S.W.2d 345, 347 (Mo.App. S.D.1991). Here, the prosecutor’s rebuttal argument that defense counsel had lied was based upon the prosecutor’s interpretation of the evidence, namely that defense counsel was not being truthful in arguing that O.B.’s testimony was wholly inconsistent with her prior statements. The prosecutor’s argument did not reference matters outside the record, and the jurors were capable of determining which characterization of the testimony was accurate.

In addition, the State’s comments were made solely in response to defense counsel’s closing argument that O.B. was lying and that the State would do anything to get a conviction. State v. Davenport, 924 S.W.2d 6, 12 (Mo.App. E.D.1996) (“When responding to an issue raised in the defendant’s closing argument, the prosecutor can go further than the normal bounds of closing arguments.”).

“Granting a mistrial is a drastic remedy and should be exercised only in extraordinary circumstances where the prejudice to the defendant cannot be removed any other way.” State v. Albanese, 9 S.W.3d 39, 51 (Mo.App. W.D.1999). Although the trial court did not sua sponte take additional remedial efforts beyond that requested by defense counsel, the jury was instructed that counsels’ arguments were not evidence, that they should disregard questions and items for which the court sustains an objection, and that it was the jury’s duty to determine the facts from the evidence presented.

Based on the foregoing, the trial court did not plainly error in failing to sua sponte declare a mistrial as a result of the State’s closing argument. Appellant’s Point II is denied.

Point III — Admission of Irrelevant Testimony

At trial, Appellant called Dr. Berglar to testify as to the physical findings of the pelvic examination he conducted on O.B. in February 2006. Dr. Berglar did not find any evidence of trauma, and testified that the results of the examination were normal. During the State’s cross-examination, Dr. Berglar testified that a lack of physical examination findings does not rule out penetration. Dr. Berglar testified that he had performed approximately 30 pelvic examinations during his tenure at St. Anthony’s Hospital. The State then asked, over the defense’s objection:

Q. As you sit here today, do you have a recollection of how many that you had physical findings on?
A. I can’t give you an absolute number. But, the overwhelming majority would have no physical exam findings. Now remember, these are cases of alleged sexual abuse.
Q. Right.
A. As a physician, on the front end of the whole thing, I have no idea whether anything happened or not in any of these cases, this happened and that happened from the mother or the child or whatever, but the overwhelming majority had no physical exam findings of sexual abuse.

On appeal, Appellant contends the trial court erred in allowing the admission of Dr. Berglar’s testimony regarding his physical findings in other cases because it had no probative value and an abundant potential for prejudice to Appellant.

The trial court has broad discretion on the determination of the admissibility of evidence and we will not reverse the court’s ruling absent an abuse of discretion. State v. Mozee, 112 S.W.3d 102, 105 (Mo.App. W.D.2003). The trial court abuses its discretion “when its ruling is clearly against the logic of the circumstances before it and when the ruling is so arbitrary and unreasonable as to shock our sense of justice and indicate a lack of careful consideration.” State v. McGowan, 184 S.W.3d 607, 610 (Mo.App. E.D.2006). We review the trial court’s admission or exclusion of evidence for prejudice and not mere error, and will affirm the court’s ruling unless it was so prejudicial that it deprived the defendant of a fair trial. Mozee, 112 S.W.3d at 105.

To be admissible, evidence must be logically and legally relevant. State v. Anderson, 306 S.W.3d 529, 538 (Mo. banc 2010). “Evidence is logically relevant if it tends to make the existence of a material fact more or less probable.” Id. Evidence is legally relevant when its probative value outweighs any prejudice. Id.

Appellant acknowledges that medical evidence which might establish involvement in sexual activity reflected upon the reliability of O.B.’s testimony, and that Dr. Berglar’s testimony regarding why evidence of sexual activity might not be present had a logical nexus to O.B.’s credibility. However, Appellant contends that allowing Dr. Berglar to testify that he failed to find medical evidence in the overwhelming majority of his other examinations had no tendency to prove or disprove any issue in this case.

Appellant relied on Dr. Berglar’s testimony that there were no physical findings in arguing that O.B. was lying, stating that “the medical evidence blows her out of the water.” Dr. Berglar’s testimony was logically relevant to negate the inference raised by Appellant that the lack of physical findings in O.B.’s pelvic examination made O.B.’s allegations of sexual abuse less probable. The State was entitled to introduce evidence that a normal pelvic examination did not refute O.B.’s allegations.

In addition, any alleged potential prejudice was substantially limited by Dr. Berg-lar’s testimony regarding the qualifications of his findings. Dr. Berglar testified that while there were no physical examination findings in the overwhelming majority of his cases, these were all cases of alleged sexual abuse. Based on this testimony the jury could have concluded that that the lack of physical evidence does not exclude the possibility of penetration, or that the majority of girls who alleged that they have been sexually abused are not truthful. The former conclusion is cumulative of other evidence presented, while the latter is beneficial to Appellant.

The trial court did not abuse its discretion in admitting Dr. Berglar’s testimony concerning his conclusions in the pelvic examinations he conducted in other cases. Appellant’s Point III is denied.

Conclusion

The judgment of the trial court is affirmed.

CLIFFORD H. AHRENS, and LAWRENCE E. MOONEY, JJ., concur.

      . All rule references are to Mo. R.Crim. P.2008, unless otherwise indicated.