State v. Nastasio

• Decision Date: 18 November 1997
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Joseph A. NASTASIO, Appellant. 52320.
• Court: Missouri Court of Appeals

Page 454

957 S.W.2d 454

STATE of Missouri, Respondent, v. Joseph A. NASTASIO, Appellant.

No. WD 52320.

Missouri Court of Appeals Western District.

Nov. 18, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 23, 1997.

Application for Transfer Denied

Jan. 27, 1998.

Susan L. Hogan, Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before SMART, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Joseph Nastasio appeals his convictions for first degree murder, armed criminal action, and the unlawful use of a weapon. He claims that the trial court erred in allowing a witness to testify that the victim was afraid of him. He also contends that the trial court abused its discretion in overruling his objections to statements in the State's closing argument that he had been served with an ex parte order of protection at the time of the victim's death. Finally, Mr. Nastasio asserts that the trial court erred in allowing a police officer to testify that Mr. Nastasio requested an attorney, voluntarily made a statement to the police, and then terminated questioning by again requesting an attorney. Finding no reversible error, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The evidence, considered in the light most favorable to the verdict, shows as follows. Joseph Nastasio lived with Margot Highbarger in her home in Kansas City, Missouri, for approximately eight months. When the couple broke up in July 1994, Mr. Nastasio went to live with his daughter, JoMarie Nastasio, and her family. Shortly thereafter, Ms. Highbarger asked James Stith, an ex-boyfriend, to move back in with her. In the middle of July 1994, Mr. Nastasio went with his daughter to Ms. Highbarger's house to move some of his things. While they were there, Mr. Nastasio and Ms. Highbarger argued.

On the evening of July 21, 1994, Mr. Nastasio left his daughter's apartment with a gun and refused to tell her where he was going. At approximately 9:00 p.m. that evening, Mr. Stith was in Ms. Highbarger's neighbor's back yard when he saw Mr. Nastasio holding a shotgun and dragging Ms. Highbarger up the back steps of her home by her ponytail. Ms. Highbarger was yelling. Mr. Stith jumped the fence between the yards to help her. Mr. Nastasio told Mr. Stith to "stay out of it, it's none of your business. I'm going to kill the bitch." Mr. Stith then wrestled the gun away from Mr. Nastasio. In the course of the struggle, Mr. Nastasio fired the gun, but no one was hurt. Mr. Stith ultimately hit Mr. Nastasio in the head with a wooden shovel handle. When the police arrived, they took Mr. Nastasio into custody.

The next morning, Mr. Nastasio's daughter picked him up at the police station. She testified that for the rest of that day, he repeatedly threatened to kill Ms. Highbarger. Mr. Nastasio's daughter also testified that once or twice a week following the July 21, 1994, incident, she drove Mr. Nastasio by Mobil-Teria, where Ms. Highbarger worked, and by Ms. Highbarger's home.

After the incident on July 21, 1994, Mr. Nastasio did not bring his gun home. He told his daughter, however, that he was going to purchase another gun. In early August 1994, David Buckley came to the apartment where Mr. Nastasio was living. The two men got into Mr. Nastasio's car, and Mr. Buckley sold Mr. Nastasio a .22 caliber Ruger Target II semi-automatic pistol. Mr. Buckley removed the ammunition from the gun, and Mr. Nastasio put the gun between the seats of his car.

On the evening of August 24, 1994, Mr. Nastasio and his daughter went to Motorsports in Raytown, Missouri. Mr. Nastasio test drove a blue Chevrolet Cavalier. He told the man at the car dealership that he wanted to have his mechanic look at the car and took the car to do so. He then kept the car overnight. At approximately 8:00 a.m. the next morning, on August 25, 1994, Mr. Nastasio's daughter and her family left to run errands. She saw Mr. Nastasio get in the Cavalier, but she did not see him leave. Mr. Nastasio was wearing dark blue pants and a dark blue shirt.

At approximately 8:15 or 8:30 a.m. on the morning of August 25, 1994, Janet Bradley, a co-worker of the victim, arrived at Mobil-Teria for work. While getting out of her car in the parking lot, she saw a light blue car drive in and noticed the man driving was wearing dark blue clothes and had black hair that could have been a wig. Ms. Bradley later identified the car as the light-blue Cavalier being test-driven by Mr. Nastasio. She also testified that Mr. Nastasio resembled the driver.

Sometime between the time Ms. Bradley arrived at work and 9:10 a.m., Ms. Highbarger arrived at work at Mobil-Teria. She was shot four times in the head at close range in the parking lot and died of extensive brain injuries and acute hemorrhaging. Police officers recovered four .22 caliber shell casings. Two of these shell casings had markings that matched live cartridges kept by Mr. Buckley and were consistent with being fired from a .22 caliber Ruger semi-automatic pistol of the type which Mr. Nastasio had purchased from Mr. Buckley.

At approximately 9:20 a.m., Mr. Nastasio returned the Cavalier to Motorsports and got the keys to his own car. Mr. Nastasio's daughter returned home shortly after 10:00 a.m. and saw that Mr. Nastasio's Crown Victoria was again parked in front of the house. When she went inside, she found Mr. Nastasio at home. He had showered and was wearing different clothes than those he had been wearing that morning. Mr. Nastasio was very nervous to get out of the house, and asked if he could go with his daughter and her fiance wherever they were going. While they were out, Mr. Nastasio told his daughter that the police might be at the house when they returned home and asked her to tell the police that he had been with her all morning. When they returned home around noon, the police were at the apartment. Mr. Nastasio told his daughter to leave the apartment's parking lot, but she refused to do so. She originally told police that Mr. Nastasio had been with her all morning, but later said this was not the case. At trial, she testified that sometime after the shooting she found a short, dark-haired wig in her father's car.

Mr. Nastasio was charged by indictment with the class A felony of first degree murder, the class A felony of armed criminal action, and the class D felony of unlawful use of a weapon. The jury found Mr. Nastasio guilty on all three counts, and the judge sentenced him to concurrent terms of life in prison for murder, three years for armed criminal action, and one year for unlawful use of a weapon. This appeal followed.

II. ADMISSIBILITY OF TESTIMONY REGARDING VICTIM'S FEAR OF MR. NASTASIO AND OF OBTAINING AN EX PARTE ORDER AGAINST HIM

As his first point on appeal, Mr. Nastasio claims that the trial court erred in allowing a witness to testify that Ms. Highbarger was afraid of Mr. Nastasio. He claims that this evidence of the victim's fear of him was not relevant to the issues at trial and unduly prejudiced the jury.

More specifically, Helen Deicidue, Ms. Highbarger's neighbor, testified that Ms. Highbarger had changed her telephone number after Mr. Nastasio moved out, and that Mr. Nastasio asked Ms. Deicidue for Ms. Highbarger's new number. When the prosecutor asked Ms. Deicidue if she knew why Ms. Highbarger had changed her number, defense counsel objected. The trial court overruled the objection and also denied defense counsel's subsequent motion for a mistrial. Ms. Deicidue then testified that Ms. Highbarger had changed her phone number because Mr. Nastasio had been contacting her.

Ms. Deicidue also testified that she spoke to Ms. Highbarger the night before the murder. When the prosecutor asked if Ms. Highbarger said she was scared of Mr. Nastasio, defense counsel objected on the basis of hearsay and requested a mistrial. The court overruled the objection and allowed the prosecutor to rephrase the question. Ms. Deicidue then testified:

She had been to court that afternoon trying to get an ex parte order [of protection] and she had indicated that she didn't think that he had been served, and she was very disturbed about that and her very final words to me were, "I'm afraid that he's going to kill me before I ever get the ex parte order."

On appeal, Mr. Nastasio argues that Ms. Deicidue's testimony constituted inadmissible hearsay because it was an out-of-court statement used to prove the truth of the matter asserted. State v. Chambers, 891 S.W.2d 93, 102-03 (Mo. banc 1994). The State argues, however, that although the statement was hearsay it was admissible under the "state of mind" exception to the hearsay rule as evidence of her fear of Mr. Nastasio at the time she made the statement.

We agree that statements of a victim's fear of the defendant can be admissible under the state of mind exception to the hearsay rule. We also note, however, that in State v. Bell, 950 S.W.2d 482 (Mo. banc 1997), the Missouri Supreme Court reaffirmed that the state of mind exception only permits admission of the statements "in limited situations when they are relevant and the relevancy outweighs their prejudicial effect." Id. at 483 (quoting State v. Boliek, 706 S.W.2d 847, 850 (Mo. banc), cert. denied, 479 U.S. 903, 107 S.Ct. 302, 93 L.Ed.2d 276 (1986)). See also State v. Shurn, 866 S.W.2d 447, 458 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). The Court also cautioned that because of the danger that the jury might be inclined to consider statements about a victim's fear of the defendant for purposes other than the limited state of mind exception under which they are admissible, the use of that exception "is generally limited to cases where hearsay declarations of mental condition are especially relevant--particularly where the defendant has put the...