State v. Gott

• Decision Date: 05 July 2017
• Docket Number: No. SD 34324,SD 34324
• Citation: 523 S.W.3d 572
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Howard B. GOTT, Defendant-Appellant.
• Court: Missouri Court of Appeals

523 S.W.3d 572

STATE of Missouri, Plaintiff-Respondent,

v.Howard B. GOTT, Defendant-Appellant.

No. SD 34324

Missouri Court of Appeals, Southern District, Division One.

Filed: July 5, 2017

Attorney for Appellant: Margaret M. Johnston of Columbia, MO.

Attorney for Respondent: Joshua D. Hawley, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., of Jefferson City, MO.

JEFFREY W. BATES, P.J.

After a jury trial, Howard Gott (Defendant) was convicted of second-degree assault and armed criminal action. Although Defendant presents ten points on appeal, the alleged errors fall into two groups: challenges to the admission of various statements pursuant to the excited-utterance exception to the hearsay rule (Points 1 through 4); and challenges to the admission of evidence relating to Defendant's post- Miranda¹ silence in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (Points 5 through 10). We affirm because: (1) we find no abuse of discretion in the admission of the challenged statements as excited utterances; and (2) Defendant "opened the door" to the State's references to Defendant's post- Miranda silence.

Factual and Procedural Background

We view the evidence in the light most favorable to the verdicts. State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc 2009) ; State v. Johns, 34 S.W.3d 93, 103 (Mo. banc 2000). Viewed from this perspective, the following evidence was adduced at trial.

Defendant, Larry Morris (Victim), John Carter (Carter) and Carl Dean (Dean) went fishing on Bull Shoals Lake. They departed from the Nolan's Point boat landing in two boats. Victim and Defendant were in one, while Carter and Dean were in the other. Victim and Defendant fished anywhere from one and one-half miles to ten miles away from Nolan's Point. The two boats initially remained close, but they ultimately separated to the point that the fishermen in one boat could not see the fishermen in the other boat.

Defendant moved to the back of the boat where Victim was fishing and asked to use his new fishing pole. As Victim and Defendant exchanged poles, Jerry Maggard (Maggard) sat on the lakeshore fishing and made small talk with Victim. Shortly after Victim and Defendant exchanged poles, Defendant cut the right side of Victim's throat with a knife. Defendant continued to stab Victim in the neck, arm, chest, thumb, hand and face. Victim fought back, asking "why" and telling Defendant to stop. Victim yelled at Maggard to call 911, but Defendant did not speak.

Defendant dropped his knife at some point during the struggle, and Victim kicked Defendant into the lake. After Victim wrapped his sweatshirt around his neck as an impromptu tourniquet, he drove the boat back to Nolan's Point. He met the owners of Nolan's Point Resort, Sherry Lease (Sherry) and Ron Lease (Ron), and asked them for help. Victim told Sherry and Ron that his friend had tried to kill him. Victim then asked Ron to call Carter and Dean, and inform them of Victim's location. Carter and Dean soon arrived at Nolan's Point, and Victim told them that Defendant had cut his throat. Victim was taken to Cox Hospital in Springfield by helicopter, where he was in surgery for several hours. His wounds were closed using stitches and approximately 85 staples.

After law enforcement officers arrived, Carter and Dean transported two officers on the lake by boat to find Defendant. The officers arrested Defendant and read him his Miranda rights. Defendant was charged with first-degree assault and armed criminal action. He was convicted of the lesser-included offense of second-degree assault and armed criminal action. This appeal followed. Additional facts necessary to the disposition of the case will be included below as we address Defendant's ten points.

Points 1 through 4—Excited-Utterance Exception to Hearsay

Defendant's first four points claim that certain statements Victim made to Sherry (Point 1), Ron (Point 2), Dean (Point 3) and Carter (Point 4) were improperly admitted at trial under the excited-utterance exception to the general prohibition against hearsay evidence.²

A trial court's decision to admit hearsay evidence is reviewed for an abuse of discretion. State v. Hosier, 454 S.W.3d 883, 896 (Mo. banc 2015). A trial court abuses its discretion when "a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration."

State v. Gonzales, 153 S.W.3d 311, 312 (Mo. banc 2005). We will not reverse for an error in the admission of evidence unless "there is a reasonable probability that the error affected the outcome of the trial." State v. Shelton, 314 S.W.3d 769, 773 (Mo. App. 2009).³

"A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value." State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997). A hearsay statement is generally inadmissible unless it falls within a recognized exception. Id. The excited-utterance exception applies "when: (1) a startling event or condition occurs; (2) the statement is made while the declarant is still under the stress of the excitement caused by the event and has not had the opportunity to fabricate the story; and (3) the statement relates to the startling event." State v. Hedges, 193 S.W.3d 784, 788 (Mo. App. 2006). "The essential test for admissibility of a spontaneous statement or excited utterance is neither the time nor place of its utterance but whether it was made under such circumstances as to indicate it is trustworthy." State v. Van Orman, 642 S.W.2d 636, 639 (Mo. 1982). When statements are "made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been fully brought to bear by reasoned reflection, the utterance may be taken as trustworthy and received as testimony." Hedges, 193 S.W.3d at 788.

Among the factors to be considered [in determining whether an excited utterance exists] are [1] the time between the startling event and the declaration, [2] whether the declaration is in response to a question, [3] whether the declaration is self-serving, and [4] the declarant's physical and mental condition at the time of the declaration. While no one factor necessarily results in automatic exclusion, all should be considered in determining whether the declaration was the result of reflective thought.

Bynote v. Nat'l Super Markets, Inc., 891 S.W.2d 117, 122 (Mo. banc 1995) (brackets in original).

Point 1 challenges the admission of Sherry's testimony that Victim said his "buddy had tried to kill him." At trial, Sherry testified that she and Ron "heard a truck and trailer come up the launch road real quickly and a fella got out of the truck and asked us to call 911 because he had been stabbed on the lake." Victim "had a shirt or jacket or something wrapped around his neck and he was just covered in blood." Victim "was very scared ... pretty agitated, upset."⁴ When asked whether Sherry had heard Victim say anything, Defendant asserted a hearsay objection. The court overruled the objection "based upon excited utterance." Sherry then testified that Victim "said that his buddy had tried to kill him."

The trial court did not abuse its discretion in allowing Sherry to testify about Victim's statements to her. The evidence supported the inference that Victim's statements were made 10-20 minutes after he was stabbed. The statements were made spontaneously, rather than in response to questions. Victim's statements were not self-serving. In the context of a criminal case, the self-serving factor focuses on exculpatory statements by a defendant that are the result of reflective thought. See State v. Williams , 673 S.W.2d 32, 35 (Mo. banc 1984) ; State v. Gray, 347 S.W.3d 490, 501 (Mo. App. 2011) ; State v. Thomas, 272 S.W.3d 421, 429 (Mo. App. 2008) ; State v. Smith, 265 S.W.3d 874, 878 (Mo. App. 2008) ; State v. Stottlemyre, 752 S.W.2d 840, 843 (Mo. App. 1988) ; State v. Boyland, 728 S.W.2d 583, 585-86 (Mo. App. 1987). A victim's identification of the defendant as the perpetrator of the crime is not self-serving. See, e.g. , State v. Dixon, 495 S.W.3d 812, 819-20 (Mo. App. 2016) ; State v. Turner, 420 S.W.3d 666, 670-71 (Mo. App. 2014). Victim's mental and physical state at the time support the conclusion that he was under the immediate and uncontrolled domination of his senses when he made the statements. Van Orman, 642 S.W.2d at 639. Therefore, the trial court did not abuse its discretion in admitting Victim's statements to Sherry pursuant to the excited-utterance exception to the hearsay rule. Point 1 is denied.

Point 2 challenges the admission of Ron's testimony that Victim said his buddy had tried to kill him and was crazy. At trial, Ron testified that Victim was "bleeding all over ... bleeding really bad" and "looked like he was in pain a lot." Every time Victim would talk, blood "would squirt out." Victim was nervous and "kept saying he was scared, you know, like he was going to not make it." Ron testified that, "[a]s soon as I saw him first thing when he got out of the truck walking toward me he said, My f-ing buddy tried killing me. He said, he is f-ing crazy. That was his first statement to me."

A trial court's discretionary ruling to admit evidence is presumed correct, and the burden is on Defendant to overcome that presumption. See State v. Adams , 443 S.W.3d 50, 53 (Mo. App. 2014). Defendant did not object to any of Ron's testimony, so Point 2 may only be reviewed for plain error.⁵ An appellate court's decision to engage in plain error review is discretionary. State v. Dean, 382 S.W.3d 218, 223 (Mo. App. 2012). Because Victim's statements to Ron were so similar to those properly admitted during Sherry's testimony, we decline to engage in plain error review and deny Point 2.

In Points 3 and 4, Defendant contends the trial court abused its discretion in admitting: (1) Dean's...