ST. LOUIS • Thirty minutes after a woman was robbed at gunpoint in the Central West End on Aug. 10, 2012, someone used her stolen cellphone.
A call went to a woman named Kaylin Perry. Her boyfriend, Keith Esters, would later be convicted of the daylight holdup and killing of former St. Louis University volleyball player Megan Boken in a similar robbery a few blocks away just eight days later.
Despite a number of parallels, Esters was never investigated for the first robbery. But Cornell McKay was — and ultimately convicted of first-degree robbery based on the victim’s identification of him.
And while jurors in McKay’s trial would hear about calls to Perry from the stolen phone in the days after the Aug. 10 robbery, they never learned about that very first call.
On Wednesday, McKay’s attorneys argued to a three-judge appellate court panel that a record of the first phone call should have been allowed into evidence. The lawyers said it cast doubt on a prosecution claim at trial that McKay might have sold the phone before Perry was called.
The appellate hearing was on a motion to overturn McKay’s conviction and 12-year sentence by showing “plain error” at trial. The high standard requires proof of mistakes so great that there is “a reasonable probability” the verdict otherwise would have been different.
The attorneys pointed to other excluded evidence that seemed to incriminate Esters — for example, that he had purchased a gun, similar to the one used in the crime, from Lamont Carter, who also received a call from the stolen phone.
Lawyer Bob Ramsey argued that all of that evidence should have been admitted once the defense established “a direct connection” between Esters and the robbery. That’s the legal benchmark needed for putting on an alternative perpetrator defense.
That connection, he said, was that Perry admitted in a deposition that Esters gave her the phone some weeks after Aug. 10, telling her he stole it from a white woman in a robbery.
Ramsey said the trial judge originally didn’t allow that into evidence either, but changed her decision at midtrial. By then, he said, it was too late to use the information to cross-examine prosecution witnesses.
And Perry was not allowed to say that Esters told her he also took cash in the robbery.
Assistant Attorney General Shaun Mackelprang said Wednesday, “I don’t quibble with the fact that they had a direct connection.” But he said Circuit Court Judge Robin Vannoy used proper discretion in excluding evidence that was either immaterial or confusing, while allowing most of the salient information.
He noted that even the full phone records would not have proved who made the call at issue. And he said nobody could say with certainty whether Esters bought the gun before the robbery.
The victim had kept service active on the stolen phone and gave police a printed record of the calls. For unknown reasons, that record did not show the first call to Perry. But it did appear in a phone record prosecutors subpoenaed from Sprint a month later.
Mackelprang said that excluding the Sprint record from evidence was proper because, without expert testimony to explain the conflict, it didn’t make sense. McKay’s trial lawyers, no longer on the case now, did not attempt to introduce it through expert testimony.
One of the appellate judges, Glenn Norton, puzzled over “how we let it happen” that a partial record from the victim was allowed into evidence while an official record from the phone company was not.
He noted that the law’s purpose in requiring a direct connection to an alternative suspect is to prevent every defendant from crying “not me” and pointing to “a mystery man.”
“But at some point,” he said, “we have to count on the jurors to sift through all of it and make up their own minds.”