State v. Favell, 36823

Decision Date06 April 1976
Docket NumberNo. 36823,36823
PartiesSTATE of Missouri, Respondent, v. Donna Jean FAVELL, Appellant. . Louis District, Division One
CourtMissouri Court of Appeals

E. Rex Bradley, St. Charles, for appellant.

Preston Dean, Neil McFarlane, Asst. Attys. Gen., Jefferson City, James Millan, Pros. Atty., Bowling Green, for respondent.

RENDLEN, Judge.

Donna Jean Favell, convicted of manslaughter and sentenced to seven years imprisonment, appeals her conviction.

Appellant contends the trial court erred: (1) by permitting hearsay testimony concerning the circumstances of the attack; (2) by instructing on murder second degree without sufficient evidence to support the charge; and (3) in refusing appellant leave to call a witness on the ground of appellant's failure to disclose the witness' name under V.A.M.R., 25.34.

Don Wolf, an employee of Southwestern Bell Telephone Company, went to the residence of William E. Spahn, a summer cabin near Elsberry, Missouri, on Friday, December 14, 1973, to investigate a telephone trouble report. Knocking several times and believing he heard someone say 'come in,' Wolf entered the cabin. He found William Spahn lying nude on his back in the middle of the floor in the living room. Wolf asked if he was drunk and Spahn responded, 'No, I was shot.' On examination Wolf found Spahn was shot in the upper right shoulder close to the base of the neck. Noting the telephone in the cabin had been ripped from its connection, Wolf went outside and phoned Mr. Tapley at the Elsberry office of the telephone company, who in turn called Officer Don Bizelli of the State Highway patrol. Tapley and Bizelli drove to the Spahn residence in the officer's automobile. An ambulance was summoned and Mr. Spahn removed to the Pike County Hospital in Louisiana, Missouri. He was later transferred to the Barnes Hospital in St. Louis and six days later, on December 20, died of pneumonia.

Officer Bizelli testified that on arrival at the scene he asked Spahn if he was comfortable. Mr. Spahn requested a drink of water but was told he could have nothing to eat or drink until he reached the hospital. Officer Bizelli then testified to Mr. Spahn's detailed account of the events surrounding the attack. Exclusive of Bizelli's recital of Spahn's statements, there was abundant evidence placing appellant at Spahn's summer home when the shooting occurred including fingerprints and appellant's parent's phone number on note paper at the scene. Some days later appellant was found in California and returned to Missouri by the Pike County Sheriff to whom she related her version of the crime. She admitted being present as a paid prostitute, claiming she was picked up by the decedent in a St. Louis bar, taken in his car to the summer cabin where they spent some time drinking. The decedent paid her $120, and after each was undressed, decedent without explanation struck her with a gun, which she grabbed, and in the ensuing struggle the gun discharged, the bullet striking Spahn. Spahn's account of these events to Officer Bizelli were in complete variance with that of appellant. He told Bizelli the shooting involved an unprovoked assault in which a black female and two white males came uninvited to his house, threatened and attacked him. During the attack, he was shot but did not identify to Officer Bizelli who had fired the shot.

After the shooting appellant took Spahn's car and attempting to leave, drove into a ditch. She was assisted by several witnesses who later identified appellant, the car was pulled from the ditch and she proceeded to St. Louis, abandoning the car at the Welfare Office parking lot on De Baliviere Avenue.

Appellant's request for leave to call her mother as a witness was denied under authority of Rule 25.45, V.A.M.R., 1 on the grounds that appellant's mother's name was not disclosed or listed in response to the State's motion for discovery under Rule 25.34, V. A.M.R. 2

Appellant first contends the court erred in permitting Officer Bizelli to testify to Mr. Spahn's account of events preceding the shooting, as such evidence was hearsay. The disputed testimony is as follows:

'I asked him what had happened, how he received the injury and he stated that early in the morning or--(defendant's objection, overruled) . . . He said either early morning which would have been Thursday, the 13th, I believe it was, or late on the evening of the 12th, some people came to his door, a black female and two white male subjects and asking for gasoline. They stated to him that apparently--(defendant again objects, overruled) . . . Anyway the people stated that they had run out of gas and need gasoline. Mr. Spahn told me that he told these people to go and ahead and take as much gasoline as they need out of the tank which is near his residence on his property. He stated they left and were gone for a period of time, and then they returned. He stated to me that he thought they were going to pay him for the gasoline.

He said they came in and when he asked what they were doing or what they were going to do, he stated they didn't have any money and one of them hit me. He stated, 'we fought and I was shot."

Respondent asserts Bizelli's testimony was not hearsay since it was not offered for the truth of the matters asserted or in the alternative that its admission was not prejudicial. We find this contention without merit.

Following defense counsel's timely objections to Bizelli's recital of Spahn's statement, a conference was held out of the jury's hearing, (the content of which does not appear in the record) and appellant's objection to the hearsay was overruled. This evidence, though hearsay, was pertinent to the issues, constituting substantial proof of what happened on the night in question and there can be little doubt it was given some weight by the jury. We are unimpressed with respondent's argument, unsupported by the record, that Spahn's statement was not offered for the truth of the matters it contained. First we note no limiting or cautionary instructions were given and the claimed purpose for its offer, i.e. to let the officer relate the circumstances of his contact with the victim, does not alter its character as hearsay nor effect its admissibility. We do not know the grounds on which appellant's objection was overruled but the testimony was in evidence for whatever value the jury chose to give it. On this state of the record we must decide the issue, since an 'appellate court must take the trial record as it finds it.' State v. Matthews, 512 S.W.2d 248, 249(1) (Mo.App.1974).

The evidence was hearsay thus inadmissible, unless it is found to be a dying declaration or other exception to the rule and none is suggested by respondent. Decedent's statement to the officer fails to qualify as a dying declaration, as that exception to the hearsay rule is described and delineated in State v. Woodard, 499 S.W.2d 553, 557(7, 8) (Mo.App.1973). There the court stated:

'To be admissible, a dying declaration must have been made by the declarant in extremis 'in the belief on the part of the declarant of impending death, after hope of recovery has been abandoned.' State v. Custer, 336 Mo. 514, 80 S.W.2d 176, 177 (Mo.1935). See also State v. Davis, 337 Mo. 411, 84 S.W.2d 930 (1935) and State v....

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