State v. Acklin

• Decision Date: 29 September 1987
• Docket Number: No. WD,WD
• Citation: 737 S.W.2d 743
• Parties: STATE of Missouri, Respondent, v. Phillip A. ACKLIN, Appellant. 39074.
• Court: Missouri Court of Appeals

Page 743

737 S.W.2d 743

STATE of Missouri, Respondent, v. Phillip A. ACKLIN, Appellant.

No. WD 39074.

Missouri Court of Appeals,

Western District.

Sept. 29, 1987.

Sean D. O'Brien, Public Defender, David S. Durbin, Asst. Public Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and PRITCHARD and CLARK, JJ.

CLARK, Judge.

Appellant, Phillip A. Acklin, was tried by a jury and on conviction for the offense of second degree murder, he was sentenced to life imprisonment. On this appeal, Acklin contends the trial court erred by (1) sustaining the state's objection to testimony offered of witness Rickey Pilgrim, (2) overruling an objection to the prosecutor's voir dire and closing argument discussion of reasonable doubt, (3) admitting evidence of other crimes committed by appellant, (4) permitting the state to introduce a show-up report in evidence, and (5) giving MAI-CR2d 1.02 and 2.20 defining reasonable doubt.

In broad outline, the evidence favorable to the state and consistent with the verdict established that on March 17, 1986, in the early evening hours, a black male and black female came to an apartment building in Kansas City and gained entrance on the pretext of looking for an apartment to rent. While inside the building, the pair attacked, robbed and murdered Daniel Tolle, an employee of the apartment owner. A resident of the building, Ruby Earnest, saw the two persons enter and later flee from the building. She identified appellant as the black male and Clarica Capelton as the black female, the perpetrators of the crime. The only issue at trial was the identity of appellant as the male companion of Clarica Capelton.

The first point raised on this appeal concerns a fragmentary statement given the police by Clarica Capelton. She was arrested after being identified from photographs displayed to the witness, Ruby Earnest. Capelton at first waived her rights to remain silent and in response to questions by detective Pilgrim, she stated that the murder had been committed by a man known to her as "Ferquan." An array of photographs was displayed and Capelton selected the photo of Hubert Holmes as Ferquan. Capelton also told the detective that two or three weeks before the murder, Ferquan had telephoned her to ask her if she would join him in robbing a white man who was known to carry large sums of cash. On the day of the murder, Capelton said Ferquan had come for her in his automobile, but at this point in the interrogation, Capelton broke off the interview and requested the opportunity to speak to her lawyer.

The details of the exchange between detective Pilgrim and Capelton were disclosed in questioning of Pilgrim outside the hearing of the jury. Pilgrim emphasized that Capelton had not admitted any responsibility for the crimes and had refused to say where she went or what occurred after she joined Ferquan in his automobile. The jury was aware, however, that witness Earnest had identified Capelton as the female involved in the crime.

Capelton was called as a witness for the defense. She acknowledged that she had been arrested and charged with the Tolle homicide and had been questioned by detective Pilgrim. Beyond that, she refused to answer further questions asserting her right not to incriminate herself. Appellant then called detective Pilgrim and sought to place in evidence the content of his interview with Capelton through the medium of Pilgrim's interrogation report. The state's objection to the report as hearsay was sustained.

Appellant contends the evidence of Capelton's statements to Pilgrim was admissible as a hearsay exception because the statements constituted admissions against Capelton's penal interest and were supported by substantial indicia of reliability. Appellant cites Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and State v. Turner, 623 S.W.2d 4 (Mo. banc 1981), among other cases.

As a general rule in Missouri, declarations against penal interest by a third party are not admissible as an exception to the hearsay rule in criminal proceedings. State v. Nunn, 697 S.W.2d 244, 246 (Mo.App.1985). This rule is subject, however, to the requirement for admitting such statements under circumstances defined in Chambers v. Mississippi, supra. That opinion held such statements to be admissible as a due process right of the accused if the statement were made under conditions which provided assurance the statement was reliable. Those circumstances present in Chambers included spontaneity of the statement, a later confession by the declarant, his proven ownership of a gun similar to the murder weapon, and observation of the declarant in possession of a gun immediately after the homicide. Chambers, supra, 410 U.S. at 300, 93 S.Ct. at 1048. The significance of the Chambers opinion in relation to Missouri decisions which deny admission in evidence of extra-judicial third party confessions is that federal due process requires admission of such evidence when buttressed by collateral and substantial proof that the statement is reliable. Reliability is not established under Chambers merely by showing the statement to be against the penal interest of the declarant.

The Missouri Supreme Court discussed Chambers in State v. Turner, supra, 623 S.W.2d at 9, and observed that opening the door to extra-judicial confessions made by one not a party to the proceeding held inherent dangers. The rule of Chambers was to be limited to facts presented there and would not justify a general abrogation of Missouri doctrine against admission of third party confessions. The court also emphasized that in addition to a showing of substantial indicia of reliability, the hearsay admission against penal interest would be admissible in evidence only if the declarant's acknowledgment of complicity would, if true, exonerate the accused. Turner, supra, 623 S.W.2d at 9. ¹

The first obstacle to admission of Capelton's hearsay declaration under the doctrine of Chambers is that the statement did not amount to a confession of Capelton's guilt for the crime with which appellant was charged. At most, the statement amounted to an acknowledgement by Capelton of some degree of complicity in the acquisition of information about the prospective event and the identity of the guilty party. Arguably, the information Capelton gave to detective Pilgrim was strongly suggestive of Capelton's participation in the crime. Her participation, however, was not admitted in the statement and is no more than a suspicion inferred from the information she supplied. The argument for admission of the hearsay declaration in Chambers was based on the general exception to the hearsay rule which attributes reliability to a statement made against the interest of the declarant. This is founded on the assumption that a person is unlikely to fabricate a statement against his own interest at the time it is made. Chambers, supra, 410 U.S. at 299, 93 S.Ct. at 1047. Unless the declarant has admitted participation in or responsibility for the crime, the statement is not an admission against interest and is therefore excludable generally as hearsay.

In this case, Capelton did not say she was involved with Ferquan in the commission of the crimes or even that she was in his company when any criminal acts were committed. She admitted only to having information about the proposed robbery and the identity of the perpetrator. This is not within the fact situation of Chambers, to which Missouri courts are limited by Turner, and certainly does not qualify as a confession. Capelton's statement did not meet the test of an admission against penal interest and was properly excludable as hearsay.

Secondly, the court in Turner has limited application of the Chambers rule to those situations in which the declarant's complicity would, if true, exonerate the accused. Here, even if it be assumed for purposes of the point that Capelton's statement was an acknowledgement of complicity in the murder, it does not thereby follow that appellant was innocent. All the evidence pointed to the participation of two persons in the crime, Capelton and a black male. The mere fact that Capelton admitted to being one of the suspects, if her statement be so construed, does not exonerate appellant. The two circumstances, the participation of Capelton and the guilt of appellant, are neither inconsistent nor incompatible. The condition for admission of the statement under Turner is therefore not satisfied.

Finally, the extra-judicial statement by Capelton was unsupported by collateral indicia of reliability which Chambers requires. There was no evidence presented tending to substantiate the identification of Ferquan as the killer nor was there any assurance that at the time the statement was made, Capelton was most apt to have been speaking truthfully. The excluded statement was merely an unverified and gratuitous assertion that the guilty person was someone other than appellant.

Appellant argues that testimony by his alibi witness contributed proof the Capelton statement was reliable because evidence appellant was elsewhere when the crime was committed was consistent with Capelton's identification of Ferquan. Of course, any evidence which tended to exonerate appellan...