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Collins v. Hertenstein9/3/2002
e jury: whether the officers acted reasonably or used more force than was reasonably necessary when they shot Wilson. See Schoor v. Wilson, 731 S.W.2d 308, 314 (Mo. App. 1987) ("Whether a person has reasonable cause to apprehend that he is in danger is to be resolved upon the facts and circumstances as they appeared to the defendant at the time he committed his acts of self-defense."). We decline plain error review. The officers next assert that, because the circuit court admitted into evidence a gun found in Wilson's truck, the circuit court should have also admitted the drugs and drug paraphernalia. They argue that " he decision to admit one claimed 'prejudicial' item and not admit the other claimed 'prejudicial' item was an abuse of discretion."
We disagree. Because Hertenstein testified that he believed that Wilson was reaching for a gun, the circuit court did not abuse its discretion in allowing the introduction of the gun into evidence. The drugs, on the other hand, played no part in the determination of whether or not the officers used more force than was reasonably necessary when they shot Wilson.
The officers next contend that the circuit court abused its discretion when it allowed Collins to make "references to a planted or throw down gun" in Wilson's truck. The officers, however, do not identify in the record the testimony, evidence, or argument that they objected to in regard to the planted gun or identify any rulings of the circuit court on any objections concerning the planted gun. In their reply brief, the officers acknowledge that the only objection found in the record concerning evidence of a planted gun was in voir dire. Thus, they attempt to change their point relied on in their reply brief to assert that statements made by Collins' attorney in voir dire were prejudicial and that the circuit court should have granted a mistrial. A party's failure to object at trial to testimony, evidence or argument preserves nothing for review on appeal. Brandt v. Pelican, 856 S.W.2d 658, 664 (Mo. banc 1993); Letz v. Turbomeca Engine Corporation, 975 S.W.2d 155, 171 (Mo. App. 1997). Moreover, assertions of error made for the first time in a reply brief do not present issues for appellate review. Pearman v. Department of Social Services, 48 S.W.3d 54, 55 (Mo. App. 2001). The officers next claim that the circuit court abused its discretion when it refused to allow them to present evidence of Wilson's character and state of mind. They contend that Collins "opened the door" for character evidence by characterizing Wilson's actions as those of a scared teenager who sneaked out of his house, drove a vehicle without being of legal age, committed traffic violations and attempted to flee from the police. The officers argue that Collins repeatedly referred to Wilson as "the kid," the "child," "the twelve year old," and "the thirteen year old" and that such references reinforced the idea to the jury that Wilson was a young, scared individual who was out in a truck committing traffic violations when executed by the police. They assert that they should have been allowed to show the true character of Wilson, which would have included evidence that he possessed drugs and appeared to be an active drug dealer, that he had been arrested twice, that he had served time in a halfway house, and that he was not even living full-time at Collins' home.
The officers appear to be contending that evidence of Wilson's character should have been allowed in the first phase of the bifurcated trial--the phase in which the jury determined the liability of the officers and the compensatory damages. In their argument, the officers point to comments by counsel during voir dire, opening argument and closing argument an
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