D.K.L. by K.L. v. H.P.M., 15596
| Decision Date | 15 November 1988 |
| Docket Number | No. 15596,15596 |
| Citation | 763 S.W.2d 212 |
| Parties | D.K.L., by K.L., her Next Friend, Appellant, v. H.P.M., Respondent. |
| Court | Missouri Court of Appeals |
James E. Reeves, Ward & Reeves, Caruthersville, and Charles Sampson Williams, Welman, Beaton, Williams & McVey, Kennett, for appellant.
Michael B. Hazel, Hazel and Ford, Caruthersville, and William M. Barvick, Jefferson City, for respondent.
On May 28, 1985, K.L. ("the mother"), an unmarried woman, gave birth to D.K.L. ("the child"). Some 18 months later the mother, as next friend of the child, instituted this action on the child's behalf against H.P.M. ("defendant"), seeking a judgment declaring defendant to be the child's father. Trial by jury produced a verdict in favor of defendant. Judgment was entered per the verdict. The child appeals.
We are presented with two assignments of error by the child's brief. The first maintains the trial court erred in allowing a witness for defendant, one J.W., an adult male, to testify, over the child's objection, that he (J.W.) and the mother engaged in sexual intercourse in September, 1984. The second avers the trial court erred in excluding the results of a "paternity blood test" performed at the instance of defendant. We summarize only the evidence necessary to decide the appeal.
The mother, age 29 at time of trial, 1 testified she met defendant, age 41 at time of trial, in August, 1981, and that they began "dating and going places together" about a month later. The relationship, according to the mother, lasted until Thanksgiving, 1984, and throughout it she and defendant engaged in sexual intercourse. The mother disclosed that during the relationship she "had trouble using the birth control pill" so defendant suggested she use a diaphragm and took her to a physician where she was fitted for one. The mother conceded she and defendant had "breakups" during the three years of their relationship, and that she did not have sexual intercourse with defendant from March, 1984, until September 2, 1984.
Defendant, in his testimony, admitted "a long history of sexual relationship" with the mother, and confirmed her testimony about the diaphragm.
Regarding the date of conception of the child, the mother testified that on Saturday night, September 1, 1984, she was working at a bar, that the bar closed at 1:30 a.m., Sunday, September 2, and that she departed some 30 minutes later. She was uncertain whether she left alone or whether defendant picked her up, but she testified unequivocally that she went to defendant's home where she and he spent the remainder of the night alone together. The mother avowed that she and defendant had sexual intercourse at 4:00 a.m., explaining, "I looked at the clock." Asked whether she used "any form of birth control" on that occasion, the mother answered, "No, I did not."
Defendant, in his testimony, admitted the mother came to his home "on the early morning of September 2nd, 1984," but he insisted he did not bring her there. He conceded they had sexual intercourse "one time that morning" and that he did not "wear any type of contraceptive." In excerpts from his deposition, read to the jury, defendant admitted he is "a normal healthy male" and that he ejaculated in the mother's vagina during the liaison September 2, 1984.
A physician specializing in obstetrics and gynecology performed an ultrasound examination on the mother October 19, 1984, and determined that she had become pregnant September 2, 1984. Asked about the accuracy of the examination, the physician replied, "[P]lus or minus three to four days." The physician calculated an "expected delivery date" of May 27, 1985. The child, as noted earlier, was born one day later. The physician described the child as "a full-term, fully-developed child" weighing eight pounds, six ounces, characterized by the physician as "a normal weight for a full term child."
On February 11, 1987, some eight months before trial, samples of blood were drawn from the child, the mother and defendant at the blood bank at Baptist Memorial Hospital in Memphis, Tennessee. Laboratory tests of seven "blood group systems" resulted in the following determination:
At trial the child introduced the results of the blood test through the deposition testimony of the technical director of the blood bank. Explaining the meaning of the combined paternity index, the director testified, "This can be deemed as odds 85 to 1, the likelihood that [defendant] is the father."
During the opening statement of defendant's lawyer an exchange occurred that became the first incident in a chain of events upon which the child bases her first assignment of error. The exchange was:
"[Defendant's lawyer]: [The mother will] tell you that during, I believe, August or September of 1984, that the evidence will be that she, on several occasions, went to the home of a friend of [defendant's], a man by the name of [J.W.]. [J.W.] will tell you that in the month of September, 1984, that she came to his house in the early morning hours, two or three o'clock in the morning, after apparently working at the ... Bar, and came on two occasions after this September 2, 1984 date. The first occasion after that, they had sexual intercourse.
... The second time they did not have sexual intercourse.... And that was the last time that she went over there.
Now, ladies and gentlemen, don't get me wrong, we're not trying to say [J.W.] is the father of this child; we're not. He probably isn't.
THE COURT: Whoa. What will the evidence be ...? That's what your opening statement is, what your evidence will be.
[Defendant's lawyer]: The evidence--Excuse me, Your Honor. The evidence will be that [J.W.] had a vasectomy back in the early '70s. The evidence will be that he's probably not the father.
[The child's lawyer]: Well, Judge, I move all of this be stricken from the record and counsel reprimanded for bringing up a collateral matter that could have absolutely no relevancy at all.
[Defendant's lawyer]: It's very relevant, Your Honor, to the credibility of this--their chief witness.
THE COURT: Well, this is an opening statement. You state what you expect the evidence to be. It is not necessary that this be stricken because I've instructed the jury that this is not evidence. Neither the opening statements nor the arguments. You may proceed."
The child presented the mother as a witness during the child's case in chief. In the mother's direct examination by the child's lawyer we find this:
"Q. ... During [defendant's lawyer's] opening statement he stated that [J.W.] had sexual intercourse with you. Is that true or false?
A. No. That is not true.
Q. Have you ever had sexual intercourse with [J.W.]?
A. No, I have not.
Q. What was [J.W.'s] relationship to [defendant]?
A. Best friend.
....
Q. ... tell the ladies and gentlemen of the jury just what your relationship with [J.W.] was?
A. When [defendant] and I first started dating ... we would go out to the country club and [J.W.] being [defendant's] friend would sit and join us. And on several occasions he would come and sit and join us, talking, visiting. I felt like he was my friend as well as [defendant's] by our--we dated over a three-year period. I talked to [J.W.] about [defendant] several occasions about our--every time we would break up, thinking he might know something that would help in our relationship or help me deal with [defendant]. Basically, I thought he was my friend also."
During the mother's cross-examination by defendant's lawyer this colloquy occurred:
"Q. In the winter of 1983, did you have occasion to go to Blytheville with [J.W.]?
[The child's lawyer]: Judge, I object. Immaterial.
[Defendant's lawyer]: Pardon?
THE COURT: What--What do you intend to show by that?
[Defendant's lawyer]: Well, I intend to show a prior relationship with [J.W.].
THE COURT: At or about the time of the conception of this child?
[Defendant's lawyer]: She has testified that there was no sexual relationship with him at or about that time, which is the time we're talking about. I've--If the Court will permit me, I will offer some evidence to impeach her or at least I think is impeaching in regard to that.
[The child's lawyer]: Judge, furthermore, [defendant's lawyer] has stated that [J.W.] is sterile.
THE COURT: No.
[Defendant's lawyer]: I didn't state he was sterile, I said he had a vasectomy.
[The child's lawyer]: I say this is collateral, attempt to bring any collateral matters in and at the best, an attempt to impeach upon a collateral matter which is not permissible....
THE COURT: Sustained."
Defendant's lawyer, outside the hearing of the jury, offered to prove, by the mother's testimony, that she went to Blytheville with J.W. in the winter of 1983, that "a number of days or weeks" thereafter she went to J.W.'s house and engaged in sexual intercourse, and that she went to his house and engaged in sexual intercourse "approximately five different times," the last occasion being in September of 1984.
The child's lawyer objected on the ground of remoteness and on the ground that defendant was attempting to impeach the mother on a "collateral matter."
The trial court sustained the objection and denied the offer of proof.
Defendant, during his case in chief, called J.W. as a witness. During questioning by defendant's lawyer the following exchange occurred:
"Q. Mr. [W.], calling your attention to after September the 2nd, 1984, did [the mother] ever have occasion to be at your house?
A. Yes.
Q. On how many occasions?
A. Two times.
Q. And during...
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