State v. Belk, 52984
| Decision Date | 16 August 1988 |
| Docket Number | No. 52984,52984 |
| Citation | 759 S.W.2d 257 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Larry BELK, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Lew Kollias, Columbia, for defendant-appellant.
William L. Webster, Atty. Gen., Deborah L. Ground, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant appeals from his conviction by a jury of manslaughter and the resultant sentence as a prior offender by the court of 10 years imprisonment. We affirm.
The victim was shot while operating his automobile in the City of St. Louis. The evidence was sufficient to establish that defendant and two others, Eric Wallace and Bruce Sampson, agreed to participate in the robbery of someone to obtain a car for a trip to Illinois. In the early morning hours they positioned themselves near a stop sign at an exit from Interstate 70. When the victim approached the stop sign, Sampson strolled slowly across in front of the automobile so that it remained stopped. Wallace or defendant, armed with a gun ran to the driver side of the stopped vehicle and announced a robbery. Wallace or defendant served as a lookout to warn of other persons in the vicinity. The victim resisted the attempt to take his vehicle and was shot, resulting in his almost immediate death. Defendant testified that he had refused to participate in the robbery and just happened to be in the vicinity when the robbery attempt and killing occurred. Defendant was charged with first degree murder occurring during the commission of a felony.
Defendant raises four issues on appeal. Initially he contends that the trial court erred in admitting a tape-recorded statement of Eric Wallace as substantive evidence of defendant's guilt. Wallace testified at the trial. His trial testimony exonerated defendant as a participant in the killing. Such testimony was directly contrary to his taped statement which stated defendant's involvement in the crime and that defendant had in fact done the shooting. The prosecution in redirect examined Wallace extensively on the statements he had made on the tape. Wallace's response was essentially that he had no recall of what he told the police although he did recall being questioned by them at the station. The prosecution then utilized one of the interrogating officers to qualify the tape as a prior inconsistent statement.
Sec. 491.074 RSMo 1986 provides:
" ... a prior inconsistent statement of any witness testifying in the trial of an offense under Chapter 565, 566, or 568 RSMo, shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statement."
That section became effective on July 19, 1985. The crime here occurred on July 25, 1984. The trial was on February 23, 1987. Defendant contends that application of Sec. 491.074 to his trial is an ex post facto application of the law and unconstitutional. A law is retrospective if it changes the legal consequences of acts committed before its effective date. A law cannot be applied retrospectively if it changes ingredients of an offense or the ultimate facts necessary to establish guilt or increases the punishment. Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) S.Ct. [1, 4]. The prohibition does not apply to changes in modes of procedure which do not affect matters of substance. Id. The statute here is a matter of procedure. It provides what can be utilized as evidence in a trial. It does not change the ingredients of the crime nor the ultimate facts necessary to prove the crime nor change the consequences of defendant's acts. State v. Moutray, 728 S.W.2d 256 (Mo.App.1987) . Its application does not run afoul of the prohibition on ex post facto laws.
Defendant also asserts that he was denied his right to confrontation because of Wallace's inability to recall the circumstances surrounding the taking of the statement, the substance of the statement or even that he gave a tape-recorded statement. In State v. Bowman, 741 S.W.2d 10 (Mo. banc 1987) the Supreme Court upheld the constitutionality of Sec. 491.074 against a challenge of lack of confrontation. It stated that the only necessary foundation is the inquiry as to whether the witness made the statement and whether the statement is true. It specifically did not express an opinion as to the use of such statements as substantive evidence where the witness does not admit making them or declines to submit to cross-examination. In Bowman the statements were upheld as substantive evidence even though the declarant stated at trial they were not true. It is not necessary, therefore, for the declarant to admit the truth of the statement in order to establish admissibility. We also do not believe it is necessary for the declarant, himself, to admit he made the statements if from his testimony and other evidence the fact that such statements were made is established. Here Wallace did not state that he did not make the statements, he said only that he could not recall making them and if he did he lied. He admitted having been questioned by police. He listened in court to portions of the tapes and did not deny that the voice was his, although he thought he sounded different on the tape. The testimony of the police officer of the circumstances and the timing of the recording was in accord with Wallace's testimony. The officer clearly testified that the recording was made of the questioning of Wallace and was an accurate recording of that questioning. The foundation was sufficient to allow the admission of the taped statement under the statute. Wallace did not refuse to be cross-examined. We find no error in the admission of the taped statement as substantive evidence.
Defendant next contends that the trial court erred in sentencing him under the prior offender act. The thrust of this contention is rather complex and involves the interplay between Sec. 565.031 RSMo 1978 (repealed L.1983, S.B. 276 Sec. 1) applicable to defendant's crime, Sec. 557.011.1, RSMo 1986, Sec. 557.021.3 RSMo 1986, and Sec. 558.016, RSMo 1986. When the new criminal code was enacted effective January 1, 1979, the offense of manslaughter was not repealed by that code. L.1977, S.B. 60. It became therefore a non-code offense. State v. Durley, 603 S.W.2d 72 (Mo.App.1980). Sec. 557.011.1 provided that non-code offenses were to be punished in accordance with the statute defining the offense. Sec. 565.031 provided the punishment for manslaughter at the time of the offense here. The criminal code effective in 1979 did not provide for sentencing of prior offenders by the court. In Sec. 558.016 it did provide for extended terms of imprisonment for persistent or dangerous offenders. Defendant was not charged as either a persistent or dangerous offender although by his own testimony he had three prior felony convictions. Sec. 557.021.3 provided in 1979 and still does provide:
"For the purpose of applying the extended term provisions of Sec. 558.016, RSMo, and for determining the penalty for attempts and conspiracies, offenses defined outside of this code shall be classified as follows: ..." (Manslaughter would be a Class C felony).
Effective in 1981, Sec. 558.016 was amended to provide for sentencing by the court of prior offenders. Sec. 557.021.3 was not amended thereafter.
Defendant's contention is that the language of Sec. 557.021.3 precludes classifying non-code crimes except for the purpose of applying "extended term"...
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