State v. Oliver

Decision Date30 June 1989
Docket NumberNo. 53716,53716
Citation775 S.W.2d 308
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Ronald OLIVER, Defendant-Appellant.
CourtMissouri Court of Appeals

David O. Fischer, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PUDLOWSKI, Judge.

Defendant Ronald Oliver was convicted by a jury of murder in the first degree, assault in the first degree and kidnapping. He was sentenced to two consecutive life terms plus fifteen years. He appeals and we affirm.

On the evening of June 6, 1985 the defendant Ronald Oliver went to the home of Elizabeth Palmer. His brother, codefendant Gregory Oliver had been there for some time. Ronald watched as Gregory, Elizabeth and several other persons played cards. For no apparent reason Ronald kicked out a window, produced a .38 caliber pistol and fired one shot into the ceiling of the apartment and one into the fireplace.

Gregory and Ronald left the apartment and Palmer followed them outside of the building where Ronald forced Palmer into his car at gunpoint. After being held captive in the car for some time, Palmer was able to escape. The brothers proceeded to the home of Diane Moore in the 3500 block of Fair. Moore, Andrew Chambers, James Crate and several children were in the apartment. Gregory carried a can of gasoline which he splashed on the floor and threatened to ignite. Moore wrested the gas can from Gregory and went to the kitchen to dispose of it. As Moore came out of the kitchen she saw Ronald emerge from the bathroom, stand behind James Crate, who was seated on a footstool, and shoot him in the head. Moore yelled at Ronald who turned and shot her four times. Crate died; Moore and Chambers were injured in the attack. The defendants were arrested shortly thereafter.

Gregory and Ronald were jointly tried before a jury. Ronald relied solely on the defense of mental disease or defect. The jury found both defendants guilty of first degree murder, first degree assault and found Ronald guilty of kidnapping. The defendants' motion for a new trial was denied and now Ronald appeals his conviction.

In his first point the defendant argues that the trial court erred in allowing the state to impeach its own witness with her prior inconsistent statements. The statements at issue are those made by Elizabeth Palmer, a witness for the state. Palmer testified that she was kidnapped by the Olivers, driven around St. Louis and eventually escaped. Palmer was asked by the state on direct examination if she had made any statements to police or anyone else regarding the Olivers' planned destination and deeds. Palmer denied making any such statement. Using Section 491.074, RSMo 1986, as authority the state presented evidence of prior inconsistent statements made by Palmer to two police officers and two other persons. Each of these witnesses testified that Palmer told them she had been told by the Olivers while being held captive that they were going to an address on Fair Street to kill some people. Defendants argue that this is improper impeachment and application of Section 491.074.

The rule in Missouri has been, until recently, that a party could not impeach its own witness in a civil or criminal trial absent a showing that the witness is hostile. State v. Byrd, 676 S.W.2d 494, 502 (Mo. banc 1984). When such impeachment was proper, prior inconsistent statements were not admissible as substantive evidence. State v. Granberry, 491 S.W.2d 528, 531 (Mo. banc 1973). In 1985 the Missouri Legislature enacted Section 491.074 which provides:

Notwithstanding any other provisions of law to the contrary, a prior inconsistent statement of any witness testifying in the trial of an offense under chapter 565, 566 or 568, RSMo, shall be received as substantive evidence, and the party offering the prior inconsistent statement may argue the truth of such statement.

That same year our Supreme Court abrogated the traditional rule against impeaching one's own witness with his prior inconsistent statements in civil cases. Additionally, the court held that such statements could be used as substantive evidence provided the declarant is available for cross-examination. Rowe v. Farmers Insurance Co., Inc., 699 S.W.2d 423, 425 (Mo. banc 1985).

Two years later the Supreme Court had an opportunity to consider the Rowe rationale in a criminal setting. In State v. Bowman, 741 S.W.2d 10 (Mo. banc 1987) the defendant argued that the state failed to lay a proper foundation for impeachment of its own witness by showing surprise or hostility. The court stated:

The old rule about impeachment of one's own witness is inappropriate, in view of the statute. Inconsistent statements are available as substantive evidence, and may be used just as soon as the inconsistency appears from the testimony. The only necessary foundation is the inquiry as to whether the witness made the statement, and whether the statement is true. Any requirement of additional foundation would dilute the effect of the statute. Id. at 13-14 (footnote omitted).

However, Bowman does not resolve the issue pending before us. The Bowman court specifically declined to express an opinion as to whether inconsistent statements may be used as substantive evidence if the witness does not admit making them or declines to submit to cross-examination. Id. at 14 n. 6. For the reasons stated below we hold that in a criminal case, the prior inconsistent extrajudicial statements of a witness may not be admitted as substantive evidence when the witness denies at trial having made the statements.

In his incisive dissent in Rowe Judge Billings recognized the potential for abuse in the admission of extrajudicial prior inconsistent statements as substantive evidence. The risk of distortion, fabrication and undue influence in the recordation of witness statements by overzealous police officers and prosecutors is ever present. Rowe, 699 S.W.2d at 435. The admission of fabricated or inaccurate statements as substantive evidence over the repudiation of those statements by the alleged declarant may, in cases where other evidence is lacking, allow a party to permissively indulge in establishing an essential element of a crime by the applicable quantum of proof. Id. at 429. The potential for conviction on the basis of a statement which is denied by the person to whom it was imputed cannot be tolerated.

The Bowman court also indicated that the use of prior inconsistent statements as substantive evidence in criminal cases where the witness denies making them may run afoul of the Confrontation Clause. Bowman, 741 S.W.2d at 14 n. 6 citing Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). In Douglas the Supreme Court found that when a witness, in response to questions regarding whether or not he made a particular statement, asserts his Fifth Amendment privilege against self-incrimination, the ability to cross-examine that witness is, in effect, foreclosed. "Similarly, [the witness] could not be cross-examined on a statement imputed to but not admitted by him. Nor was the opportunity to cross-examine the law enforcement officers adequate to redress this denial of the essential right secured by the Confrontation Clause." Id. at 419-420.

On direct examination Palmer emphatically denied making any statement regarding the Olivers' purported destination and plan to police officers or anyone else. That denial, in effect, foreclosed any opportunity for cross-examination in regard to the content of the statement. When the issue was pursued by introduction of the officers testimony, the crucial inquiry became whether Palmer made the statement or not. This dispute is collateral to the issue of substantive evidence and examination in that regard should not have been pursued. See Note, Missouri's New Evidentiary Rules--Use of Prior Inconsistent Statements as Substantive Evidence and for Impeachment of One's Own Witness, 52 Mo.L.Rev. 191, 204 (1987). We find that the admission of Palmer's prior inconsistent statements as substantive evidence under Section 491.074 after she denied making those statements was error. However, such error was not prejudicial.

Strong evidence of premeditation was elicited at trial by eyewitness testimony. That testimony revealed that the defendant entered the home of Diane Moore armed with a concealed gun, walked into the apartment, used the bathroom, then stood behind Crate and shot him in back of the head. No provocation by Crate was shown. Such solid evidence of premeditation was sufficient to find the defendant guilty as charged and the admission of the inconsistent statements under the facts of this case was not prejudicial.

The defendant also argues in Point I that Section 491.074 applies only to cases arising under Chapters 565, 566 and 568, RSMo, in which a child is a victim or witness. This argument is made for the first time on appeal. The record reveals that no objection on this ground was offered at trial nor did the defendant move for a new trial on this basis. A defendant may not broaden his trial objections on appeal. State v. Webb, 725 S.W.2d 901, 904 (Mo.App.1987). Because the issue has not been properly preserved we review only for plain error. Rule 29.12(b).

The legislature is presumed to have intended what the statute says and if language is clear and unambiguous there is no room for construction. State v. Nevels, 712 S.W.2d 688, 690 (Mo.App.1986). Had the legislature wished to so limit the application of the statute, it would have done so by the language of the statute. Further, the courts of this state have consistently applied this statute to adult witnesses. See State v. Bowman, 741 S.W.2d 10 (Mo. banc 1987); State v. Ayers, 724 S.W.2d 556 (Mo.App.1987); State v....

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  • State v. Woodworth
    • United States
    • Missouri Court of Appeals
    • February 25, 1997
    ...recalling that he ever made the out-of-court statement. Bowman, 741 S.W.2d at 14, n. 6. The State then notes that in State v. Oliver, 775 S.W.2d 308, 310 (Mo.App. E.D.1989), the Eastern District answered this question by holding that "in a criminal case, the prior inconsistent statements of......
  • State v. Blankenship
    • United States
    • Missouri Supreme Court
    • April 21, 1992
    ...by another witness precludes admission of the out-of-court statement where the declarant denies making the statement. State v. Oliver, 775 S.W.2d 308, 310 (Mo.App.1989). However, a different panel of the same district of the court of appeals held that even though a witness denied making the......
  • State v. Deason
    • United States
    • Missouri Court of Appeals
    • December 17, 2007
    ...more than unsupported, conclusory statements that he was prejudiced by the denial of his request for a continuance. See State v. Oliver, 775 S.W.2d 308, 312 (Mo.App.1989). Given the facts before us, we cannot say the trial court abused its discretion by denying Defendant's request for an ad......
  • State v. Jennings
    • United States
    • Missouri Court of Appeals
    • July 30, 1991
    ...statements may not be admitted as substantive evidence when the witness at trial denies having made the statements. State v. Oliver, 775 S.W.2d 308, 310 (Mo.App.1989). However, statements a witness admits having made may be admissible under § 491.074 without the declarant's admitting their ......
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