State v. Clark
Decision Date | 12 July 1988 |
Docket Number | No. WD,WD |
Citation | 756 S.W.2d 565 |
Parties | STATE of Missouri, Respondent, v. Will E. CLARK, Appellant. 38406. |
Court | Missouri Court of Appeals |
James R. Wyrsch, Charles E. Atwell, and Susan M. Hunt, Koenigsdorf, Kusnetzky & Wyrsch, Kansas City, for appellant.
William L. Webster, Atty. Gen., and Jatha B. Sadowski, Asst. Atty. Gen., Jefferson City, for respondent.
Before CLARK, P.J., and REINHARD and DOWD, Special Judges.
Will E. Clark was convicted by a jury of second degree murder, first degree robbery and armed criminal action, and sentences of life imprisonment were imposed. On this appeal, he raises six points of alleged trial error. No merit is found in any of the points and the judgment and sentences are affirmed.
The sufficiency of the evidence to support the convictions is not in issue. On January 30, 1985 at approximately 6:20 p.m., a black man entered the Payless Shoe Store at 4922 Swope Parkway in Kansas City. He first confronted Harold Mayberry, a security guard on duty at the store, and while pointing a gun at Mayberry, demanded that he surrender his weapon. Mayberry complied. The man then proceeded to a counter where he told a clerk, Darleatha Briggs, to hand over the money from the cash register. A shot was fired and Briggs fell, mortally wounded in the abdomen. The events were also witnessed by Joe Fulson, the store manager and Cynthia Fields, a sales clerk. Mayberry, Fulson and Fields all identified Clark as the robber. The defense was alibi. Other facts relevant to the points on appeal will be included in the discussion of those points.
Appellant's first point concerns the admission in evidence of prior inconsistent statements made by witnesses Wanda Jones and Jamie Bowman, who were appellant's girlfriends but who were called to testify for the state. Appellant argues that the prior statements of Jones and Bowman, repudiated by them at trial, were improperly received as substantive evidence to prove the contents of the statements.
The point arises in the following factual setting. In the course of investigating the crime, the police questioned Jones and Bowman. Jones was interviewed because it had been determined that she owned a 1976 Lincoln automobile similar in appearance to a car seen at the Payless store at the time the robbery occurred. In a statement given to the police, Jones acknowledged that she had loaned the car to appellant earlier and that appellant's father had returned it the day after the Payless robbery. The police also questioned Jamie Bowman known by them to be appellant's companion. Bowman gave a statement to the effect that appellant had admitted to her his participation in the Payless crime.
The state was aware in advance of calling Jones and Bowman as witnesses that they would not testify in accordance with their statements. Jones had professed not to remember the statement and Bowman contended the statement was coerced by the police and was untrue. Jones and Bowman were called as witnesses for the state essentially for the purpose of introducing in evidence the contents of their prior statements. The latter were received in evidence, over defendant's objections, as substantive evidence of the facts recited in the statements.
Appellant first argues that the prior statements of Jones and Bowman should have been excluded because the state laid no foundation, and in fact could lay no foundation, for admission of a prior inconsistent statement by a witness called on behalf of the state. The required foundation, appellant asserts, can only be established if the party calling the witness demonstrates surprise at the contradictory testimony and also shows that by his in-court testimony, the witness has become a witness for the adverse party. Cited are the cases of State v. Byrd, 676 S.W.2d 494 (Mo. banc 1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1233, 84 L.Ed.2d 370 (1985), and State v. Moutray, 728 S.W.2d 256 (Mo.App.1987).
In State v. Byrd, supra, defendant's putative wife, Sandra, was called as a witness for the state. She had previously given a statement in which she quoted the defendant as having admitted committing the crime. At trial, however, she denied giving the statement. Over defendant's objection, the state was permitted to play a tape recording of Sandra's prior statement. The opinion held it to have been proper for the court to admit the recording as impeachment of Sandra's in-court testimony because that testimony had come as a surprise to the state and because the evidence Sandra otherwise gave was to the benefit of the defense.
Byrd is not authority applicable to the present case, even were it representative of the current law, because the prior inconsistent statement was offered only to impeach the credibility of the witness. The jury in Byrd was instructed that the prior inconsistent statement was to be considered, "only for the purpose of determining the weight and credibility of the witness' testimony and not as evidence of guilt." Byrd, 676 S.W.2d at 503. Byrd is inapposite to the issue in this case where the prior statements by Jones and Bowman were used as substantive evidence.
Even were there to be some authoritative analogy to be drawn from Byrd, however, the effect of that opinion has been diminished if not negated by the enactment of § 491.074, RSMo 1986, 1 and by the court's opinion in Rowe v. Farmers Insurance Co., 699 S.W.2d 423 (Mo. banc 1985).
Section 491.074 provides that in any criminal prosecution for an offense under Chapters 565, 566 or 568 of the Missouri Statutes, a prior inconsistent statement of a testifying witness is admissible as substantive evidence. In criminal cases, the statute therefore displaces prior case law which limited the use of such statements. Section 491.074 is authority for the receipt in evidence of the statements by Jones and Bowman.
Also relevant to the point and to subsequent discussion of State v. Moutray, supra, is the opinion in Rowe v. Farmers Insurance Co., supra. Although Rowe announces the law applicable to use of prior inconsistent statements in civil cases, it demonstrates the progressive concept of eliminating the restrictions which have formerly prevailed in this area.
The opinion in Rowe announced that in civil cases, a prior inconsistent statement could be used to impeach a witness, regardless of which party called the witness, thereby abandoning the former rule that a party could not impeach his own witness because by calling the witness, the party had vouched for the credibility of the witness. Rowe also held that a prior inconsistent statement was available for use as substantive evidence if the witness were present for cross-examination. In the opinion, the court took note of the enactment that same year of § 491.074, and suggested that the decision conformed the evidence rules in civil cases to those prevailing in criminal cases.
Apparently, from the contents of appellant's and respondent's briefs filed in this case, the opinion in State v. Moutray, supra, has created some confusion as to the conditions under which the prior inconsistent statements of the party's own witness may be used. In Moutray, the appellant complained of two errors, the use of Cherisse Moutray's prior statement as impeachment when the state claimed surprise by her testimony on direct examination and the use of the statement as substantive evidence. Citations in that opinion to State v. Byrd, supra, and Rowe v. Farmers Insurance Co., supra, require clarification.
Although Byrd has not been expressly overruled, it would appear that the conditions Byrd announces as preliminary to use of a prior inconsistent statement for impeachment no longer obtain. If, as § 491.074 provides, the statement is available without the former restrictions for use as substantive evidence, there is little if any justification to continue the restrictions where the statement is to be used only for impeachment. Moreover, by its opinion in Rowe, the supreme court has demonstrated its purpose to eliminate the restrictions generally on use of prior inconsistent statements.
It is clear that under Rowe, a party to a civil case may use a prior inconsistent statement to impeach his witness without showing surprise and without demonstrating that the witness has transferred allegiance to the adversary. Moreover, by reason of § 491.074, a party in a criminal case is free to use the statement as substantive evidence just as a party to a civil case may use such a statement under the decision in Rowe, free from the former constraints of the common law rules. If the Byrd restrictions on impeachment were considered to have survived Rowe and the enactment of § 491.074, the anachronistic and incongruous result would be that the state in a criminal prosecution could show the contents of a prior inconsistent statement as substantive evidence but could not use the same statement to impeach a witness without showing surprise and the fact the witness was testifying for the defendant. This is contrary to the spirit of liberality from dogma expressed in Rowe and incompatible with the legislative purpose expressed in § 491.074. To the extent Moutray may be construed to so hold, we believe it was in error and withdraw from that position.
As to appellant's first point, we conclude that § 491.074, RSMo 1986, authorizes admission in evidence of the statements made by Jones and Bowman and that such statements were available to be used by the state for impeachment or as substantive evidence, or both. Appellant further contends, however, that if the statute does apply, it is unconstitutional in his case.
Consideration must first be given to the question of whether this court has jurisdiction to decide the constitutional challenge. If the case does involve the validity of a statute of...
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