State v. Luster, WD

• Citation: 750 S.W.2d 474
• Decision Date: 08 March 1988
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Eddie L. LUSTER, Appellant. 39657.
• Court: Missouri Court of Appeals

Page 474

750 S.W.2d 474

STATE of Missouri, Respondent, v. Eddie L. LUSTER, Appellant.

No. WD 39657.

Missouri Court of Appeals,

Western District.

March 8, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 3, 1988.

Application to Transfer Denied June 14, 1988.

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

William Webster, Atty. Gen., Deborah L. Ground, Asst. Atty. Gen., Jefferson City, for respondent.

Before GAITAN, P.J., and TURNAGE and CLARK, JJ.

GAITAN, Presiding Judge.

The defendant/appellant, Eddie L. Luster, was found guilty following a jury trial of murder in the second degree, a class A felony, in violation of § 565.021, RSMo 1986, and armed criminal action, a class A felony, in violation of § 571.015, RSMo 1986. He appeals alleging the trial court erred in the following respects: (1) by admitting over objection statements made by the victim regarding her fear of defendant; (2) by admitting an involuntary statement made by defendant after his arrest; (3) by giving MAI-CR3d 300.02 and 302.04; (4) by allowing the State during voir dire to question the venire panel regarding their religious, moral and philosophical beliefs and the impact of same upon their ability to make a decision; (5) by permitting the State to question the venire panel during voir dire regarding their ability to assess life imprisonment; and (6) by failing to grant defendant's request of a judgment of acquittal at the close of all the evidence. We affirm.

Prior to trial, the defendant filed a motion to suppress statements. In his motion, the defendant alleged in part that his statement was involuntary because he was "suffering from knife wounds to his hands, face, ear and back and was not in physical condition to knowingly, understandingly, and voluntarily waive his constitutional rights." The defendant also filed a motion in limine seeking to bar introduction of testimony concerning prior violent acts of the defendant against the victim and the victim's complaints about the defendant. Several police officers testified regarding defendant's arrest and his refusal of medical treatment. Additionally they testified as to defendant's version of what happened. The defendant took the stand and told his version which was different. These motions were denied. The court found the officers' testimony to be more credible.

Thereafter, the defendant argued in support of his motion in limine, asserting that the testimony in question would inject evidence of the defendant's bad character and the victim's state of mind, a fact which was not in issue. The State argued that it wanted testimony of the victim's state of mind, namely her fear of the appellant, because it was relevant to the issues in the case. The court overruled the defendant's motion in limine.

The defendant and his victim, Sherrie Stewart, were married in May of 1984, and during the marriage, had three children. In the summer of 1986, Ms. Stewart and the defendant permanently separated.

On Christmas Eve, Ms. Stewart moved to the home of Joyce Stewart, at 2315 Spruce. The victim left the house at 1:30 p.m. and returned at about 7:30 p.m. Bill Whitfield, Ms. Stewart's friend, who had come to visit from Texas, arrived at the house at about 7:00 or 7:30. The defendant telephoned, and Joyce Stewart answered the phone; the victim talked with him briefly. Joyce Stewart left the house at 9:30, and the defendant called again. The victim talked with him a moment or two in "a hard voice."

Ms. Stewart, Mr. Whitfield, and Ms. Stewart's three children went to bed in the same room, and Tamesa Stewart, the victim's eleven-year-old niece, was also asleep when she heard a knock on the door. It was the defendant at the door, and she let him in. The defendant asked for Ms. Stewart, and he followed Tamesa into the bedroom and flashed a lighter in Ms. Stewart's face. The defendant began to push Ms. Stewart's head against the wall, and he put both hands around her neck, choking her. With Tamesa's help, the victim was able to break loose, and she ran to the kitchen and obtained a knife. Ms. Stewart told the defendant to go home and leave her alone, but he said "if I can't have you, nobody else can", and threw a lamp at her. During a struggle, the defendant was cut three times, on his hand, arm, and below his eye.

The victim ran outside to the house next door, and the defendant followed her, where he took the knife away from her. The defendant said "now I'm going to show you how it feels to get stabbed with a knife", and stabbed her repeatedly, even though Ms. Stewart twice called for help.

Kansas City police officers arrived on the scene at 11:30 p.m. where they found Ms. Stewart lying on the porch at 2317 Spruce, unconscious and badly injured, with a weak pulse and eyes dilated. Ms. Stewart died at 2:37 a.m. on December 25, 1986. Dr. John Overman, Jackson County Assistant Medical Examiner, testified that she sustained nine stab wounds. Ms. Stewart was stabbed in her right shoulder, in the right side of her chest, twice in the left side of her abdomen, in her left arm, in her right hip, and three times in her back. Dr. Overman characterized the wound in her back which penetrated her chest wall and her aorta as fatal. She also sustained several crescent-shaped abrasions on the left side of her neck which Dr. Overman testified could have resulted from manual strangulation. The internal examination revealed a laceration of her liver, indicative of blunt trauma.

The defendant challenges in Point I the admission of the statements made by Ms. Stewart to her family and friends expressing her fear of the defendant. In Point II, the defendant alleges trial court error in the admission of evidence concerning Ms. Stewart's attempt to obtain an order of protection and the denial of that order.

Those statements and the circumstances leading up to them are reflected in the record as follows. Lisa Anderson, Ms. Stewart's co-worker at Newberry's Nursing Home, testified that on a night in September, 1986, she and Ms. Stewart were taken to work at 11:00 p.m. by Ms. Stewart's brother and male cousin. The defendant emerged from the darkness and ran up behind the two women, telling the victim he had seen her get out of a car with other men the night before and wanted to know why she was doing that to him. Ms. Stewart told the defendant to leave her alone, but in response, the defendant pulled Ms. Stewart down the steps and put both hands around her neck, choking her. Ms. Anderson grabbed the defendant and pushed him off of Ms. Stewart, but the defendant continued to pursue her and pushed her head into a window. Ms. Anderson pushed the defendant down the stairs, and she and Ms. Stewart were able to enter the building. That night, Ms. Stewart told Ms. Anderson that "she was scared of Eddie."

In November, 1986, Patricia Charles, Ms. Stewart's sister, received a telephone call from the defendant. Ms. Charles asked him to leave Ms. Stewart alone, telling him that they should both "go their separate ways." The defendant told Ms. Charles that Ms. Stewart was "his wife, and if he couldn't be with her, nobody else was."

Also in November, 1986, Joyce Stewart, another sister of the victim, went with the victim to the home she had shared with the defendant to obtain clothing for the children. That night, the defendant kicked and hit Ms. Stewart. Ms. Stewart told her sister that she did not trust the defendant anymore and that "he was sneaky."

On December 2, 1986, Ms. Stewart approached Karen White, the director of a domestic violence project called Project Assist, operated by Legal Aid of Western Missouri. Ms. Stewart told Ms. White that she was frightened of the defendant, and Ms. White explained to her the procedure for filing for an order of protection. Caterina Vittoria, an adult abuse clerk in Jackson County, testified that on December 2, 1986, she provided Ms. Stewart with a petition for a protective order and reviewed the form after Ms. Stewart had completed it. The order was denied because Ms. Stewart had sufficient earnings to make her ineligible for in forma pauperis status, and she failed to pay a filing fee.

Further, on December 15, 1986, Ms. Stewart told her sister, Ms. Charles, that she "was scared" of the defendant.

All of the evidence in dispute was admitted over the defendant's objection, after his motion in limine was overruled. On appeal, under both points, the defendant alleges that the admission of this evidence was highly inflammatory and prejudicial, and that the testimony was irrelevant because Ms. Stewart's state of mind was not in issue.

The trial court is vested with broad discretion in ruling on questions of relevancy of evidence, and an appellate court will not interfere with the trial court's ruling absent a clear showing of an abuse of discretion. State v. Wood, 596 S.W.2d 394, 402 (Mo. banc 1980), cert. denied, 449 U.S. 876, 101 S.Ct. 221, 66 L.Ed.2d 98 (1980); State v. Brown, 718 S.W.2d 493, 493-494 (Mo. banc 1986). Whether or not evidence is relevant "depends upon whether it tends to prove or disprove a fact in issue or to corroborate evidence which is relevant and which bears on the principal issue." State v. Clark, 711 S.W.2d 928, 932 (Mo.App.1986).

In overruling the appellant's motion in limine, the court stated that, its ruling was not without limitation. The court stated that if the statements in question were made within the time frame of July to December, 1986, they would be admissible, but the court expressed concern about evidence becoming too remote in time. Prior to the introduction of the disputed testimony, the State summarized what it expected to hear from each witness and the court concluded that the statements were admissible as an exception to the hearsay rule because they demonstrated the deceased's state of mind.

It is widely recognized that declarations of a decedent demonstrating...