State v. McCann, s. 55224

• Decision Date: 26 June 1990
• Docket Number: 56786,Nos. 55224,s. 55224
• Citation: 792 S.W.2d 890
• Parties: STATE of Missouri, Respondent, v. Clarence C. McCANN, Appellant. Clarence C. McCANN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 890

792 S.W.2d 890

STATE of Missouri, Respondent, v. Clarence C. McCANN, Appellant.

Clarence C. McCANN, Appellant, v. STATE of Missouri, Respondent.

Nos. 55224, 56786.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 26, 1990.

John A. Klosterman, Columbia, for appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.

HAMILTON, Presiding Judge.

A jury convicted Appellant, Clarence McCann (hereinafter McCann), of two counts of attempted robbery in the first degree, § 564.011 RSMo.1986, and two counts of armed criminal action, § 571.015 RSMo.1986, on June 22, 1988. The trial court ultimately sentenced McCann, as a prior and persistent offender, to concurrent twenty-five year terms on the attempted robbery counts, and to concurrent ten-year terms on the armed criminal action counts to run consecutively to the robbery sentences. ¹

On October 15, 1988, McCann filed a motion for post-conviction relief pursuant to Rule 29.15. He filed an amended motion on December 16, 1988. Following an evidentiary hearing, the motion judge denied McCann's petition for post-conviction relief. McCann now appeals both his original conviction and the denial of his 29.15 motion.

The record discloses the following facts. On September 17, 1986, at 10:50 a.m., Margaret O'Shaughnessy (hereinafter O'Shaughnessy), an off-duty St. Louis Police officer, entered Chapter One Bookstore in University City. Judy Brust (hereinafter Brust), the store clerk, was the only other person in the store at that time. After O'Shaughnessy selected a book, she and Brust proceeded to opposite sides of the cashier's counter to complete the sales transaction. As O'Shaughnessy was writing her check, an individual, later identified as McCann, entered the store. McCann approached the women and demanded O'Shaughnessy's wallet and the contents of the cash register. Both women saw the gun in McCann's right hand and began to comply with his request. As O'Shaughnessy reached into her purse, she felt her gun and decided to defend herself. She simultaneously reached for her wallet in her back pocket and attempted to remove her gun from her purse. Her badge was visible as she handed McCann her wallet. She then announced that she was a police officer and turned with gun in hand towards McCann. As McCann stepped back, his gun discharged. McCann began to run, collided with a bookcase, and dropped his gun. O'Shaughnessy ordered him to the floor and handcuffed him as Brust called the police. When the police arrived, McCann was arrested and transported to the police station.

McCann raises two points on appeal. ² He first contends that the trial court improperly excluded hearsay testimony intended to show that McCann had been involuntarily intoxicated at the time of the robbery. Secondly, McCann asserts that he was denied effective assistance of counsel because his trial counsel failed to call an expert to testify about the effects of PCP intoxication.

At trial, McCann asserted the defense of involuntary intoxication. He claims that his friend Danny Mason (hereinafter Mason), who died prior to trial, had given him a cigarette laced with PCP on the morning of the robbery. McCann also claimed that he smoked the cigarette, not knowing of the alleged PCP, and began to hallucinate. He alleged that he had no memory of the events that occurred from the time he smoked the cigarette until the time he was being questioned at the police station.

To substantiate his defense, McCann sought to introduce the testimony of another friend, Michael Bragg (hereinafter Bragg), concerning a statement Mason made to Bragg. According to McCann's offer of proof, Bragg would testify that Mason told him that the cigarette Mason gave to McCann contained PCP. Sustaining the prosecutor's objection, the trial court first excluded Mason's statement as hearsay when defense counsel sought to refer to it in his opening statement. The trial court again sustained the prosecutor's hearsay objection to this testimony when Bragg was introduced as a witness.

In Point I, McCann contends that the trial court erred in excluding, as inadmissible hearsay, Bragg's testimony regarding Mason's assertion that the cigarette contained PCP. In the alternative, he argues that the testimony should have been admitted under the exception to the hearsay rule that allows declarations against penal interest.

Hearsay evidence is in-court testimony of an extrajudicial statement that is offered to prove the truth of the matters asserted therein, resting for its value upon the credibility of the out-of-court declarant. State v. Harris, 620 S.W.2d 349, 355 (Mo. banc 1981). McCann contends that Bragg's testimony constituted no inadmissible hearsay because it was not offered to prove the truth of Mason's statement itself, that is to say, that the cigarette did contain PCP. The testimony was instead intended to explain McCann's conduct and his loss of memory after smoking the cigarette. McCann relies on the principle that testimony by an in-court witness about another's statement, offered in explanation of conduct rather than as proof of the facts asserted in the statement, does not constitute inadmissible hearsay. State v. Murray, 744 S.W.2d 762, 773 (Mo. banc 1988); State v. Brooks, 618 S.W.2d 22, 25 (Mo. banc 1981); State v. Jordan, 751 S.W.2d 68, 75 (Mo.App.1988).

We first note that because McCann failed to advance this particular argument at trial when the State raised its hearsay objections, the issue has not been properly preserved for appellate review. We can, however, examine the alleged error for "plain error" under Rule 30.20.

Courts have held the that a statement offered in explanation of conduct is not inadmissible hearsay when the statement in question is being offered to explain the conduct of the person who heard the statement. See State v. Murray, 744 S.W.2d at 773; State v. Brooks, 618 S.W.2d at 25; State v. Jordan, 751 S.W.2d at 75. In each of these cases, the relevance of the statement in question does not depend on its truthfulness. For example, in Brooks, the prosecutor was allowed to testify that an informant told police that drugs were being sold at defendant's home because this statement was offered not to prove that the information received by police was true, but rather to explain subsequent police surveillance of the house. Brooks, 618 S.W.2d at 25.

This principle is, however, inapplicable to the facts of this case. Bragg's testimony about Mason's statement that PCP was in the cigarette would only explain McCann's conduct if the facts of the statement were believed to be true. Because Mason's statement was only relevant if offered to prove the truth of the matter asserted therein, the trial court correctly excluded this testimony as hearsay.

In the alternative, McCann argues that Bragg's testimony is admissible as an exception to the hearsay rule because it constitutes a declaration against Mason's penal interest. This issue also has not been properly preserved for appellate review because defense counsel failed to assert this exception to the hearsay rule at trial. McCann asks this Court to consider the alleged error as "plain error."

The general rule in Missouri is that declarations against penal interest by a third party are not admissible as an exception to the hearsay rule in criminal proceedings. State v. Turner, 623 S.W.2d 4, 8 (Mo. banc 1981); State v. Rogers, 758 S.W.2d 199, 201 (Mo.App.1988); State v. Acklin, 737 S.W.2d 743, 745 (Mo.App.1987). An exception to the general rule requires that such statements be admitted as a due process right if made under circumstances assuring their reliability. State v. Rogers, 758 S.W.2d at 201; Acklin, 737...