State ex rel. Williams v. Williams, WD

• Decision Date: 02 December 1980
• Docket Number: No. WD,WD
• Citation: State ex rel. Williams v. Williams, 609 S.W.2d 456 (Mo. App. 1980)
• Parties: STATE of Missouri ex rel. Ericka L. WILLIAMS, a minor, by Karen Y. Williams, next friend, Plaintiffs-Appellants, v. Ronald E. WILLIAMS, Defendant-Respondent. 31086.
• Court: Missouri Court of Appeals

Page 456

609 S.W.2d 456

STATE of Missouri ex rel. Ericka L. WILLIAMS, a minor, by Karen Y. Williams, next friend, Plaintiffs-Appellants, v.Ronald E. WILLIAMS, Defendant-Respondent.

No. WD 31086.

Missouri Court of Appeals, Western District.

Dec. 2, 1980.

Carol A. Coe, Asst. Pros., Atty., Kansas City, for plaintiffs-appellants.

Michael J. Maloney, Popham, Conway, Sweeny, Fremont & Bundschu, P. C., Kansas City, for defendant-respondent.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

TURNAGE, Presiding Judge.

The State appeals from an adverse judgment in an action brought on behalf of Ericka Williams by her next friend and mother, Karen Williams, for a declaration of paternity and child support.The action was brought under § 208.040(5), RSMo 1978.¹The petition alleged the father of Ericka was Ronald Williams and the court by its judgment found that Ronald was not the father.

On this appeal the State complains of the rejection of certain evidence and of permitting Ronald to reopen his case and contends the judgment is against the weight of the evidence.Affirmed.

Ronald and Karen Williams had been married but were divorced in October, 1975.Karen testified that she was having sexual relations with Ronald in October, November and December, 1976, when Ericka was conceived, to the exclusion of anyone else.Ericka was born on October 14, 1977.An expert on blood types testified that he had performed blood tests on Ericka, Karen and Ronald, and although Ronald was not excluded as the father, based on a mathematical analysis of the blood types, there was an 81.15% possibility that Ronald was the father.The expert stated this was not to be taken as anything more than a "certain hint" of paternity.The expert testified that a possibility or probability of paternity of less than 80% is no help at all in determining paternity.He stated that he preferred a probability of more than 90%, and with 90 to 94% he would consider paternity likely.From 95 to 98% would be considered very likely, 99 to 99.7% would be extremely likely, and 99.8 to 99.9% would practically prove paternity.The expert further testified that a paternity index is generally more understandable than a probability of paternity because an 80% probability level sounds extremely high.He said in this case a paternity index showed that there was only one in 4.3 chances that Ronald was the father.He continued by stating: "In other words, if I was to stop five men at random on the street, I would expect one of those five men to be just as likely scientifically to be the father as well."The expert continued that by testing the five men present in the courtroom at the time of his testimony, he would expect one of the five to have a blood type which would give the same results as that given by the blood test performed on Ronald.

The State further introduced the birth certificate of Ericka which listed Ronald as the father.Karen stated that Ronald had acknowledged that he was the father of Ericka and had given the information for the birth certificate in the presence of a nurse at the hospital.Karen further testified Ronald had fed Ericka at the hospital and bought milk, diapers and baby food for her.

Ronald testified and denied having any sexual relations with Karen after their divorce and denied making any admissions that he was the father of Ericka.He stated his visits with Karen in the hospital were connected with another child which was born during their marriage.

After Ronald had apparently called his last witness, but before any formal announcement was made that Ronald was ready to rest, a woman, later identified as Saundra Rollins, appeared at the courtroom door and made some remark which was inaudible to the court reporter.Thereafter Mr. Maloney, Ronald's counsel, asked permission to visit with Saundra and later asked permission to reopen his case to call Saundra as a witness.It developed that Saundra had been subpoenaed by the State but the prosecutor had decided not to call her.Saundra testified that she had been engaged to Ronald after his divorce from Karen, but that engagement had been called off.She testified that she had heard Karen tell Ronald that if he did not hurry up with the child support for the child born to Ronald and Karen during their marriage, she would say that the child she was then carrying was Ronald's and would force him to pay for it also.She also stated that Karen told her that Ronald was not the father of Ericka, the child she was then carrying.

At the conclusion of the evidence the court stated that the burden of proof was the critical issue in the case because there was testimony that Ronald was the father and there was the testimony of Ronald denying the fact.The court found there was not enough evidence to show that Ronald was the father and entered judgment in favor of Ronald.

The State first contends the court erred in failing to admit Karen's diary ² as evidence of the dates on which she had sexual relations with Ronald.The diary was marked and offered as an exhibit after Karen testified that she could not recall "off hand" the exact dates.Thereupon the State had Karen identify her diary and had it marked and offered into evidence.Ronald objected and the court sustained the objection.In the offer of proof the State said the witness would testify, based on the diary, to the dates on which she had relations with Ronald, and would show that she had stopped taking the pill.In its second point, the State contends the court erred in failing to allow Karen to refresh her memory by use of the diary.

The applicable rule is set out in Watson v. Merideth Development Company, 410 S.W.2d 338(Mo.App.1966).It is there stated

"that a witness who does not recall or is uncertain about matters concerning which he is called upon to testify may, under certain circumstances and conditions, be permitted to refresh his memory by referring to a memorandum or writing."p. 341(1-3).

Whether to allow a witness to refresh his memory rests in the sound discretion of the court.As pointed out in Watson, a prerequisite for the refreshing of a witness's recollection would be his statement that he needed the aid of a writing to recall the facts to his mind.Watson further points out at 341(4-5) that there are two situations which arise in connection with a witness refreshing his recollection.The first is when the witness can refer to a writing and then testify independent thereof so that his recollection is refreshed and he is able to testify from his own recollection.The second situation is when a witness is unable to testify independent of the writing even after he has looked at it but can testify only by reading from the writing and not from his independent recollection, even after it is refreshed.Of course, in the first situation the writing is of relative unimportance because the witness is not testifying...