December Newsletter (Issue 12-2017)

Causation Shown In A High Speed Chase

Facts and Procedure: The Kansas City Board of Police Commissioners (Board) appealed a Jackson County Circuit Court judgment awarding damages to Mr. Antoine Moody who was injured by a drunk driver when an early morning police pursuit ended near Troost and 75th Street in Kansas City. The Board contended that proximate cause under these circumstances cannot be shown as a matter of law, the officers’ pursuit was not negligent, they did not breach any duty to Mr. Moody, and the trial court erred in submitting a verdict director to the jury not requiring the jury to find that the officers acted unreasonably.  Mr. Moody filed a cross-appeal, challenging the trial court’s decision to offset or credit certain settlement amounts from the jury’s $1 million verdict, and the court’s grant of summary judgment on his theory that the police were responsible for creating a dangerous condition on public grounds.

This case involved a high-speed chase in Kansas City in the early morning hours after the driver of a vehicle was observed by police officers speeding through a red light, which information was forwarded to other police officers.  The vehicle was later observed as having difficulty in maintaining its lane of travel, speeding through stop signs, and stoplights before the officer in pursuit of the vehicle lost sight of it.  Later the vehicle was located parked near an intersection with the driver’s leg and arm outside the fully opened driver door.  Before the driver exited the vehicle, the officer’s spotlight alerted the driver who then sped off at high speeds approaching 100 mph while continuing to run through red lights and stop signs swerving out of the drivers lane of travel and nearly running two vehicles off the road.

In coordination with other police officers the officers decided to deploy “stop sticks,” or tire-deflation devices, in a commercial area, in the anticipated line of travel.  When the vehicle hit the stop sticks, the SUV veered, flipped, and crashed into Mr. Moody’s vehicle, which was stopped because officers were in the roadway deploying tire-deflation devices.  This resulted in serious injuries to Mr. Moody who could not remember anything about that night, except it occurred after he left work, while driving to his security job at a nightclub.

Mr. Moody brought twenty-four counts against a number of defendants, focusing primarily on the alleged negligence of police officers in deploying stop sticks to end the pursuit under the circumstances.  He alleged negligence on Officer Brulja’s part in initiating a “second chase” knowing that the SUV driver, when or if not chased, “had [stopped] and likely would stop and pose no further danger to the public.”  Mr. Moody alleged that Officer Brulja was also negligent in failing to discontinue the pursuit “when it became apparent that chasing the vehicle created a danger to the public greater than would exist if the chase were to be discontinued.”  Counts against individual police officers were dismissed voluntarily or by summary judgment, and a number of counts were resolved through settlements purportedly totaling $600,000.

The only count remaining at trial was negligence/agency against the Board. The case was tried and submitted to the jury with a verdict director focusing on Officer Brulja’s alleged negligence either in initiating a pursuit when the driver of the pursued vehicle “did not pose a sufficient danger to the public” or in failing “to discontinue the pursuit . . . when the danger to the public outweighed any benefit to pursuing [the vehicle].” The jury awarded Mr. Moody $1 million, which the court reduced to offset the settlement amounts.  The court denied the Board’s motion for new trial and Mr. Moody’s motion to amend the judgment to omit the offset or credit.  This matter was appealed and cross-appealed to the Western District.

Opinion: Evidence of Negligence: The Board asserted that the trial court erred in submitting Mr. Moody’s negligence claim to the jury and denying its motion for judgment notwithstanding the verdict, because, as a matter of law, the proximate cause of Mr. Moody’s injuries was the erratic driving of the drunk driver.  The Board cited a number of cases that it claimed supported its categorical assertion that police are never responsible for injuries resulting from a collision with a vehicle driven by a fleeing suspect.  The Western District, distinguished these cases because the issue of negligence did not go before a jury, noting that the Missouri Supreme Court has recognized that officers’ negligence during a pursuit could be the proximate cause of injury resulting from a collision between the plaintiffs and the pursued vehicle, depending on the “fact situations.”

“True the police cars were some distance behind Fields when he crashed and a police car was not involved in the collision.  But, there were two chases of Fields, together lasting around fifteen minutes with the second chase lasting around four minutes starting after Fields was completely stopped.  The chase reached high speeds up to 100 miles per hour.  Further, unlike the other cases cited by Defendants, officers here chose to deploy a tire deflation device after which Fields’ car lost control and hit Plaintiff’s car. Under these facts, it cannot be found that compelling evidence establishes the absence of causation as a matter of law. (emphasis added).”

The Western District found that the evidence was sufficient to submit the question of negligence to the jury.

“…the dash-cam video showed that Mr. Fields accelerated from about 60 miles per hour to about 100 miles per hour over the course of 20 seconds during which time Officer Brulja did not report that this was occurring until just before the crash.  He had conceded on cross-examination that the KCPD tire-deflation-device deployment policy indicated that stop sticks cause a “rapid” release of air when struck.  It would not have been unreasonable for jurors to conclude that the natural and probable consequence of Officer Brulja’s failure to accurately report the SUV driver’s speed and acceleration as stop sticks were deployed was the crash that injured Mr. Moody.”

The Western District found that Mr. Moody presented evidence showing, KCPD vehicle-pursuit policies were violated by the following actions:

“(1) the officers’ conversations indicated that the chase was a personal challenge; (2) the officers had information from which they could have identified Mr. Fields and apprehended him at a later time, but chose instead to pursue him; (3) the pursuit took place over roads with icy patches, and Mr. Fields drove the SUV erratically at very high speed, forcing other vehicles off the road, creating danger to the public that a jury could have found exceeded the danger presented by his remaining at large; and (4) tire-deflation devices were deployed in a manner that did not ensure public safety.”

Mr. Moody’s Cross-Appeal of Offset of $600,000: Mr. Moody argued that the trial court erred in (1) admitting evidence, over objection, of the amount he received in settlement of his claims against other defendants, and (2) amending the judgment to reduce the jury’s verdict by that amount, because “offset or credit is an affirmative defense” and it was never properly pleaded.  Less than two weeks before trial, the Board was given leave of court to file an amended answer to Mr. Moody’s third amended petition, purportedly raising the following affirmative defenses:

Defendants are entitled to any credits or offsets applicable to Plaintiff’s alleged damages.  Plaintiff’s claims against Defendants are to be reduced as a matter of law by the amount of any settlement, release, covenant not to sue or covenant not to enforce a judgment that may occur prior to or during trial pursuant to Section 537.060, RSMo., including but not limited to those with the City of Kansas City, Missouri, Stop Stick, Stop Tech, Automobile Club of Missouri, Avis Budget Car Rental, Jam[e]l Fields, and any other tortfeasors.”

The Western Missouri District held that Missouri law is well settled that  “…a double recovery ” is a species of unjust enrichment.  The Western District affirmed the trial court’s judgment.  Moody v. Kansas City Board of Police Commissioners, (WD80194, 11/14/17)

Comment Howard: What could possibly go wrong when you deploy tire deflating stop sticks that causes tires to rapidly deflate when a vehicle is going 100 mph in a commercial area?  Seems like this case could well serve as a training exercise for police officers.

Failure To Paint Curb Contrasting Color Then Driveway Walk Area To Hospital Created Question Of Fact For Jury

 Facts and Procedure: The Plaintive drove her employer’s minivan to the premises of the St. Francis Medical Center to pick up a client at the hospital.  The drop-off and pickup area consisted of a two-way curved drive past the hospital doors.  A canopy stretched over the driveway supported on the far side of the drive by a pillar that stood on a traffic island.  The traffic island, which has a curb, was not painted to contrast with the drive.

The plaintiff had been to the patient drop-off and pickup on several occasions, including earlier that day when she transported her client to the hospital.  She however always stopped at the curb adjacent to her right at the hospital doors.  The plaintiff testified that she had never noticed the island in which the pillars stood.  When the plaintiff approached the area in the right-hand lane near the hospital doors, a valet motioned her to the left lane of the oncoming traffic lane, which she had not done before and the valet gave her instructions about leaving the van with the keys in it for valet parking and opened the van door.  As she exited, the plaintiff stumbled on the adjacent curb, which she alleged she did not see nor did the valet warn her about, causing her to fall and suffer a compound fracture to her femur.  She filed suit against the hospital, which filed a motion for summary judgment that was granted by the trial court.

Opinion: On appeal the Eastern District concluded that based on the record, that as a matter of law, there was a genuine dispute as to whether or not the curb was so open and obvious that invitees could reasonably rely on and appreciate the risk of danger as they exited their vehicle at the direction of the defendant where there was congested traffic conditions.  Because there was a factual dispute the case was remanded for further proceedings, before a jury, to determine whether or not the curb was a dangerous condition.  Christian vs. St. Francis Medical Center, (ED105186, 11/14/17)

Comment Howard: Seems to me that risk managers or traffic engineers should be able to identify curbs that present a risk with respect to persons entering or exiting a vehicle where the curb should be painted a contrasting color to the walking area.

Employee Who Asked The Chancellor Of UMKC To Undertake Comprehensive Investigation Into Preferential Treatment For Student Athletes Was Not Engaged In Protected Speech

 Lyons v. Vaught, an Eighth Circuit Court of Appeals case, provides an opportunity to consider when a government employee is engaged in protected speech that relates to his or her employment.  This case focuses on the juncture between speech, related to the employees work, versus employee speech about matters of a public concern.  Speech that is part of the employee’s work is not considered protected, thereby allowing the employer to discipline an at-will employee without regard to its consequences.

Facts and Procedure: Henry Lyons worked as a part-time lecturer at the University of Missouri Kansas City (“UMKC”) for seven semesters, teaching a self-developed Career and Life Development course.  In the Fall of 2010 Lyon’s gave a student athlete an “F” grade in his course.  The student challenged his grade through UMKC’s appeal process and was ultimately allowed to write a second paper graded by an independent faculty committee, which was given a 75% grade, and recorded as a D+ by the registrar.

Thereafter, Lyons arranged a meeting with UMKC Chancellor Morton and invited three community leaders to attend: UMKC’s former Deputy Chancellor for Diversity, Access, and Equity; a past Chairman of the Minority & Cultural Affairs Committee and past Vice President of UMKC’s Alumni Association Board; and the President of the local NAACP chapter.  During this meeting, Lyons expressed concerns about preferential treatment given to student athletes at UMKC, summarized other professors’ complaints about the problem, and noted that such treatment could lead to adverse publicity and sanctions.  Lyons requested that Chancellor Morton “undertake a comprehensive investigation into the preferential treatment afforded to student athletes.”  Morton declined to get involved with student-faculty matters on campus. Lyons never heard back regarding his complaints.

During a subsequent meeting, Lyons told Vaught and Bassa, (who were later involved in the decision to not offer Lyons a contract to teach) what he had discussed “… at the meeting with Chancellor Morton — that student athletes “were receiving preferential treatment,” that it was unfair “to let student athletes take advantage of the grading system,” that this could lead to adverse publicity and sanctions, and that “he asked Chancellor Morton to undertake a comprehensive investigation into the preferential academic treatment afforded to student athletes.

Subsequently, Lyon’s was not offered a part-time lecturer contract for the following semester, based on the recommendation and approval of Vaught and Bassa.

Lyons then sued Morton, Vaught, and Bassa in state court, alleging unlawful First Amendment retaliation.  Defendants removed the case to federal court (Lyons I) and Vaught and Bassa moved to dismiss on grounds of qualified immunity and failure to state a claim.  The trial court denied the motion, and defendants appealed Lyons I to the Eighth Circuit, which agreed that the alleged speech in the First Amended Complaint (FAC) during the grade-appeal process was not protected against public-employer retaliation, although it was not clear from the FAC whether Lyon’s speech at the meeting with Chancellor Morton was connected to the appeal process, or whether Lyons spoke at the meeting as a citizen on a matter of public concern.  In Lyons I, review of the FAC by the Eighth Circuit found no allegation that Vaught and Bassa were ever apprised of Lyons’s speech at the meeting with Morton, which they did not attend.  A First Amendment retaliation claim requires proof of a causal connection between the protected activity and the adverse employment action; therefore, the Eighth Circuit in Lyons I reversed the denial of qualified immunity and remanded for further proceedings.

On remand, rather than grant defendants’ motion for qualified immunity, the trial court permitted Lyons, to file a Second Amended Complaint (“SAC”) to cure the FAC’s fatal defects.  The SAC again alleged that Lyons’s First Amendment claim “stems from the preferential academic treatment afforded student athletes. . . one of which [sic] challenged a grade received in [Lyons’s class].”  The SAC added an allegation that “Lyons told Bassa and Vaught what he had discussed” at the meeting with Chancellor Morton — that student athletes “were receiving preferential treatment,” that it was unfair “to let student athletes take advantage of the grading system,” that this could lead to adverse publicity and sanctions, and that “he asked Chancellor Morton to undertake a comprehensive investigation into the preferential academic treatment afforded to student athletes.”

Defendants moved to dismiss the SAC, arguing they are entitled to qualified immunity because at the time of the alleged retaliation, “it was not clearly established that a teacher complaining about academic favoritism towards student athletes (which included one of Plaintiff’s own students) were engaged in constitutionally protected speech.” The district court denied the motion, concluding it was clearly established “that a public employee had a First Amendment right to speak on matters of a public concern so long as that speech was not part of the employee’s job duties.”

Defendants appealed to the Eighth Circuit setting the stage for this opinion.

Opinion: The central focus of the courts inquiry (to determine if the professors were entitled to qualified immunity) was whether it was clearly established that Lyon’s speech at the meeting with Chancellor Morton was as a citizen, not a part-time lecturer.  The court reasoned that Lyons SAC did not eliminate the ambiguity in his first complaint that was earlier dismissed by the Eighth Circuit.  The court suggested that Lyons was merely seeking an outside investigation of the athletes appeal, rather than an investigation of whether or not UMKC engaged in preferential treatment for athletes in the academic process.

Under the Supreme Courts opinion in Garcetti, “a public employee speaks without First Amendment protection when he reports conduct that interferes with his job responsibilities, even if the report is made outside his chain of command.”  Again the focus in UMKC case was whether or not by broadening the issue, when he met with the UMKC Chancellor and “community leaders,” was sufficient to transform his earlier unprotected speech, during the appeal process, to protected speech.  The Eighth Circuit reasoned that defendants could reasonably conclude that Lyons spoke solely as an aggrieved lecturer in asking the Chancellor to investigate grading policies for student athletes; therefore, the professors were entitled to qualified immunity.  Lyons v. Vaught, (U.S .8th Cir., 16–1062, 11/22/17)

Comment Howard: I am particularly bothered by this case because it seems to me that finding the pleadings insufficient is a drastic remedy where additional facts might show with clarity whether or not Lyons was simply extending his appeal of a student grading or if he was speaking to the Chancellor on a matter of public interest.  For example, any right to an appeal of a test score to the Chancellor might be prohibited or as the Chancellor said he does not get involved.  If the decision, with respect to the committee to allow the student athlete to submit a second paper in the grading of that paper to allow a revised grade to be given to the athlete is final it seems that the effort to get the UMKC Chancellor to look at the preferences given to athletes is a matter of public concern and does not pertain to changing the grade.  Requesting the Chancellor to undertake a comprehensive investigation into the preferential academic treatment afforded to student athletes based upon comments by other professors and Lyons should be sufficient and ambiguity should be construed against the defendants.  In any event, this case is a good starting point to determine whether or not speech made by an employee is a matter of public interest or if the employee is speaking about the duties of his job.

The Constitutional Amendment Guaranteeing The Right To Farm Does Not Protect The Growing of Marijuana

 Factual and Procedural History:  St. Louis City police detectives went to Shanklin’s residence after a “utility inquiry” showed excessive electricity use consistent with marijuana cultivation.  Shanklin answered the door and consented to a search.  Police discovered more than 300 live marijuana plants.  Police also discovered several hundred grams of packaged marijuana, a mesh dryer, and a digital scale commonly used to prepare and package marijuana for distribution.  Shanklin told police he was growing marijuana to help pay off his stepchildren’s debts and for his own use.

The State charged Shanklin with producing a controlled substance in violation of state law.  Shanklin argued that the state law was unconstitutional because the statutes violated the constitutional right to farm guaranteed by Article I, Section 35. (Amendment)

The circuit court overruled Shanklin’s motion to dismiss and found Shanklin guilty, which was appealed to the Missouri Supreme Court.

Opinion: In 2014, Missouri voters approved Article I, Section 35, which provides:

“That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri’s economy.  To protect this vital sector of Missouri’s economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by Article VI of the Constitution of Missouri.”

Shanklin argued that, as a result of the Amendment, his marijuana cultivation and harvest were constitutionally protected and the statues making it a crime were unconstitutional as applied to his “farming practice” protected by Article I, Section 35.

The Court breaks down the Amendment into two parts.  The first sentence of the Amendment: “That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri’s economy” was prefatory and does not provide a constitutional right to engage in unregulated agriculture. “The scope of constitutionally protected farming and ranching practices is, therefore, informed by the prefatory clause of Article I, Section 35, as including those practices that are part of the agricultural sector of Missouri’s economy.”  The Amendment did not include any language suggesting that it was intended “to nullify or curtail long-standing laws regulating or prohibiting, cultivation, and harvest of controlled substances.”  In addition, the Amendment recognizes farming and ranching practices are subject to local governmental regulation making it absurd to conclude that the Missouri voters intended to curtail state and federal regulatory authority over illegal drug trade while allowing local government to regulate the practice.  State of Missouri v, Shanklin, (SC96008, 12/5/17)

Comment Howard: You may find the following post relating to farming on my blog of interest.  Missouri Supreme Court Lays Waste to the Constitutional Amendment Guaranteeing the Right to Farm – The hopes of the Missouri Farm Bureau, that the constitutional Amendment, guaranteeing the right to engage in farming and ranching, would be interpreted broadly were dashed by the Missouri Supreme Court in its recent decision in Shoemyer v. Kander.  The Court’s statement in its opinion   that “…no constitutional right is so broad as to prohibit all regulation” poured cold water over the Farm Bureau’s arguments.

Also see my earlier  pre-election post relating to the Amendment.  You may also find an earlier post dealing with large-scale industrial farming of interest as well as a post discussing acquisition of rights to farm while polluting another person’s property.

Discussion Of Superseded Pleading And Misstatement Of Standard To Find Causation

Factual and Procedural History: On June 22, 2009, Minze filed a petition against the Department, the Missouri Capitol Police Department (Department), and Todd Hurt, individually and in his official capacity as Chief of the Missouri Capitol Police, alleging that while employed as a Capitol Police Officer, she was subjected to unlawful discrimination based on sex and retaliation in violation of the MHRA.  A jury trial was conducted on August 21, 2012.  The jury returned a verdict for the Department, the Missouri Capitol Police, and Todd Hurt on Minze’s sex discrimination claim (Count I) and for Minze against the Department on Minze’s unlawful retaliation claim (Count II). The jury awarded her $70,000 in actual damages and $70,000 in punitive damages. The trial court entered judgment for Minze and against the Department in the total amount of $500,113.42, which included $360,113.42 for attorney’s fees and costs.  The Department appealed and this court issued its opinion in Minze v. Mo. Dep’t of Pub. Safety, 437 S.W.3d 271 (Mo. App. W.D. 2014) (“Minze I”)) reversing the trial court’s judgment due to instructional error and remanding the case for a new trial.

Upon remand, Minze amended her pleadings as to the retaliation claim against the Department and the case was again tried to a jury, which returned a unanimous verdict for the Department.  The trial court entered judgment on the jury’s verdict in favor of the Department.  Minze’s motion for new trial was overruled by operation of Rule 78.06.

Minze again appealed to the Western asserting that the trial court erred: (1) in admitting evidence and permitting the Department to use that evidence to impeach her; (2) in overruling her objections to the Department’s closing argument; and (3) lacked jurisdiction to hear retrial of the case.

Opinion: Superseded Pleading: Minze’s asserted that the trial court erred in admitting certain evidence because Minze had filed an amended pleading, making it subject to the rules applying to “superseded pleadings,” including the Charge of Discrimination (“Charge”) that was attached as an exhibit to her original petition, in Minze I and in permitting the Charge to be used during her cross-examination to impeach her.

First, the Western District, determined whether or not the Charge that was attached to her pleadings, as an exhibit, was a pleading.  As a general rule, if an amended petition is filed the amendment abandons any prior pleadings not referred to or incorporated into the new pleading.  Even though the definition of a pleading is extremely broad the court reasoned that the Charge, which was attached as an exhibit to the pleading was not itself a pleading in the discrimination lawsuit because they were statements, not a superseded pleading.  Since the Charge enumerated 11 specific reasons for the discrimination the statements and omissions from the statement could be used for impeachment purposes.  Missouri law permits cross-examination of a witness when the testimony at trial by the witness is inconsistent with prior statements about a material issue.

In this case, the Charge omitted an allegation that’s the Chief of the Capitol Police retaliated against Minze by refusing to extend her leave until she could come back to work full duty.  The failure of Minze to include this is one of the reasons for retaliation when she specifically alleged other retaliatory actions allowed cross-examination of Minze for this purpose.

Closing Argument – “Caused” versus “Contributing”: During closing argument counsel for the Department made the following statement: “So we just looked at what it takes for you to find for Stacy Minze. Right? She has to prove to you that her complaint of discrimination caused the deemed resigned, the light-duty denial, the additional leave denial or—” (Emphasis added.)

The Department’s counsel continued, “Or that the policy was changed somehow because of her complaint of discrimination.” (Emphasis added.)

Proper objections were made to the above statements but were overruled.  Minze argued that applying the statements by the Department the jury was allowed to define liability only if the complaint of retaliation “caused” or was “because of” as opposed to “contributing;” thereby allowing the jury to apply the incorrect standard to determine causation.

The Western District noted that the Missouri Supreme Court has described the “contributing factor” language as a “causation standard.”  In addition, in Minze’s First Amended Petition, she alleged that “[a] causal relationship existed between Plaintiff’s MHRA protected sex discrimination complaint and the denial of” her requests. Therefore, both the Missouri Supreme Court and Minze recognize words like “cause” or “causal” constitute broad terms that encompass the specific “contributing factor” standard for liability.  By specifically referencing the “contributing factor” standard in closing argument, followed by more general and generic terms, such as “caused” or “because,” the Department’s counsel did not make statements that were “plainly unwarranted” in the context that they were used.  Furthermore, the jury instruction used the contributing factor standard.  Consequently, Minze could not demonstrate that the alleged misstatement of the law by the Department’s was “clearly injurious.” Minze v. Missouri Department of Public Safety, (WD79644, 12/5/17)

“Rule Of Completeness” – Exception To Admissibility Of Lie Detector

Factual and Procedural History: The Missouri Children’s Division placed a 10-year-old and his three siblings in the custody of their Aunt.  The Aunt and Uncle were close friends with Defendant.  The 10-year-old (Victim) was apparently molested by the Defendant.  Sometime later the Victim disclosed the abuse to his older sister but begged her not to tell anyone.  The sister reported the abuse to her camp counselor, who informed the Aunt and Uncle the following day.

In discussing the matter with a pastor, the Aunt and Uncle were advised to ask the Defendant to take a privately administered polygraph test, which he passed.  The Aunt and Uncle told the Victim they were going to keep it within the family; therefore, they didn’t report the abuse allegation to the Children’s Division but did subsequently prevent Victim from being alone with the Defendant.  Approximately a year later, the abuse was anonymously reported to the Children’s Division, which led to the loss of custody of the Victim and his siblings.

The Defendant was prosecuted for child molestation.  During the trial the trial court sustained a motion in limine to exclude the polygraph results and the surrounding circumstances.  The Defendant was convicted and appealed his conviction to the Eastern District.

Opinion: On appeal, the Defendant argued that the results of the polygraph examination and the surrounding circumstances should have been admitted under the “rule of completeness” because this evidence would show that the Aunt and Uncle’s believed the Defendant and not the Victim, thereby casting reasonable doubt as to the Defendant’s guilt.  Defendant asserted that the denial of this evidence violated his right of due process, right to a fair trial, and the right to present a defense as guaranteed by the Constitution of Missouri and the United States.

The Western District, starts its analysis with the general rule that the results of a polygraph examination are generally inadmissible in criminal trials to prove a defendant’s truthfulness.  This is because polygraph examination results are unreliable. Even the fact that a person took a polygraph examination or volunteered to take the examination is inadmissible.

A limited exception to this rule is the “rule of completeness,” which allows a party to introduce circumstances of a writing, statement, conversation, or deposition so the jury can have a complete picture of the contested evidence even though the evidence was in the first place illegal.  The Missouri Supreme Court described this rule to apply when a party introduces part of an act, occurrence, or transaction then the opposing party is entitled to introduce or to inquire into other parts of the whole in order to explain or rebut adverse inferences, which might arise from fragmentary or an incomplete characterization of the evidence.

Defendant argued that under the rule of completeness, the evidence should have been admitted because it showed why the Aunt and Uncle believed the Defendant.  To support this argument the Defendant cited a 2006 case where the Missouri Supreme Court, held that a trial court erred by excluding facts surrounding a polygraph examination because the police officers lied to her about the results of a polygraph test in order to induce her to confess.  Nevertheless, in this case the Eastern District was not persuaded and concluded that the polygraph examination results had no bearing on the case since it was a collateral matter not subject to the rule of completeness. After all, the Defendant could have argued, without the admission of the polygraph test, that the support of the Aunt and Uncle for the Defendant rather than the Victim showed that the Victim was not believable.  State of Missouri v. Drago, (ED104614, 08/22/17)