State v. Post

• Decision Date: 02 May 1995
• Docket Number: 65799,Nos. 61971,s. 61971
• Citation: 901 S.W.2d 231
• Parties: STATE of Missouri, Respondent, v. Edward T. POST, Appellant. Edward T. POST, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 231

901 S.W.2d 231

STATE of Missouri, Respondent, v. Edward T. POST, Appellant.

Edward T. POST, Appellant, v. STATE of Missouri, Respondent.

Nos. 61971, 65799.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 2, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 12, 1995.

Application to Transfer Denied July 25, 1995.

Richard H. Sindel, Sindel & Sindel, Clayton, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John R. Watson, Asst. Atty. Gen., Jefferson City, for respondent.

SMITH, Presiding Judge.

Julie Post drowned in a bathtub in the then Omni Hotel in St. Louis. Defendant, her husband, was charged with her murder. He appeals from his conviction by a jury of murder first degree and resultant sentence of life imprisonment without probation or parole for fifty years. We reverse and remand. ¹

At 7:43 a.m. on June 3, 1986, a telephone operator at the hotel received a call from defendant stating that he had found his wife in the bathtub, reporting that she was not breathing and requesting an ambulance. Security officers went to the room and one of them, along with defendant, began CPR. Paramedics arrived shortly thereafter and Mrs. Post was transferred to a hospital, where she was pronounced dead. The first police officer at the scene testified that defendant told him that he and his wife awoke at approximately 6:30 a.m., that he gave Julie a back massage, drew her a bath, and then went jogging. Upon defendant's return he found his wife in the bathtub. Extensive expert testimony was adduced as to the cause of death and analysis of physical evidence, in particular a towel ring which had been pulled from the wall above the bathtub and was found in the water in the tub. If believed, the state's evidence established that Julie Post was drowned by a criminal agency and that agency was her husband. If defendant's evidence is believed, Julie Post fell in the tub and drowned.

In June, 1989, defendant was convicted by a jury of murder first degree. Upon a motion alleging newly discovered evidence of serious juror misconduct, the trial court ordered a new trial. We affirmed that order. State v. Post, 804 S.W.2d 862 (Mo.App.1991). This retrial followed. The state introduced evidence on several theories of motive, including that defendant physically abused his wife and she planned to divorce him. There was also evidence of substantial insurance coverage of wife and of defendant's economic difficulties.

The first issue we will address is the defendant's contentions that the trial court erred in allowing hearsay evidence from several witnesses pertaining to the physical abuse issue and Julie's plans to divorce her husband. ²

The first incident concerns the testimony of friends of the Post's, Harby and Dianne Kreeger. The exact year of the incident was not certain but was believed to be either 1975 or 1976. The testimony evolved as follows:

Prosecutor: Did you have occasion after the [July 4th party] to receive any phone calls?

Harby Kreeger: Later that night I did ...

Q: Did you recognize the voice?

A: I did.

Q: Who was it?

A: Julie Post.

Q: How would you describe what she said or what she was doing?

A: She was screaming hysterically that Ed had been or was beating her.

Q: What did you do.

A: Frankly, I passed the phone to my wife, I didn't know what to do.

Dianne Kreeger, who testified before her husband, testified that:

Later in the night during the middle of the night we got a phone call. Harby answered and handed the phone to me and in which Julie said Ed had beaten her and she was okay at that point and I asked if I could come over there, did she want me to come and get her and come to my house with the children and she said no, she was okay, she just wanted me to know about it.

The state contended at trial and before us that the hearsay statements of Julie about Ed beating her were admissible under the excited utterance exception to the hearsay rule. The excited utterance, or as sometimes referred to "spontaneous exclamations," exception applies when (1) a startling event or condition occurs; (2) a statement is made while the declarant is under the stress of excitement caused by the event and has not had an opportunity to fabricate; and (3) the statement relates to the startling event. State v. Scott, 716 S.W.2d 413 (Mo.App.1986) [1-3]; 2 McCormick on Evidence § 272 (4th Ed.1992). This exception is based on the human "experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts." Walsh v. Table Rock Asphalt Construction Co., 522 S.W.2d 116 (Mo.App.1975) l.c.120, (quoting VI Wigmore on Evidence § 1747(I) (3rd ed.)).

Missouri courts approach the exception on the basis that the utterance should be regarded as presumably inadmissible because of the rule against hearsay. The burden of making a sufficient showing of spontaneity to render the statement admissible is on the party who offers it. Walsh v. Table Rock Asphalt Construction Co., supra at [3-9]. The utterance must be made under the immediate and uncontrolled dominion of the senses and during the time when consideration of self-interest could not have been brought to bear through reflection or premeditation. Id. at .

In the case before us one aspect not usually present in excited utterance cases is present. In the usual case, there is independent evidence of the existence of the starting event. For instance, car wreckage in an automobile accident. The statements testified to by the Kreegers are the only evidence that an event had occurred, what that event was, and who was involved. There is a considerable logical difficulty in allowing into evidence a statement admissible only because it arises from a startling event as proof also that the startling event occurred. "The difficulty in using the statement to prove the event is the element of bootstrapping or circularity." Mueller and Kirkpatrick, Federal Evidence § 436 (2d Ed.1994). Nonetheless a majority of the courts and the commentators appear to support the proposition that the statement may prove the event. Id., 2 McCormick, supra at § 272; Fed.R.Evid. 803 advisory committee notes on 1972 proposed notes; United States v. Moore, 791 F.2d 566 (7th Cir.1986) [1-3]; Collins v. Equitable Life Ins. Co., 122 W.Va. 171, 8 S.E.2d 825 (1940) [1, 2]. None of these courts or commentators explain with any detail the reasoning for their position. Some authorities note that collateral indicators of the declarant's physical condition and demeanor constitute independent circumstantial evidence of the exciting event, making this issue largely academic. Mueller and Kirkpatrick, supra; Committee Notes, supra; United States v. Moore, supra.

Some courts have held that an excited utterance is admissible only where independent evidence supports a finding of fact that an exciting event occurred. People v. Burton, 433 Mich. 268, 445 N.W.2d 133 (1989); Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (Tex.1963). The matter is discussed in great detail in the Burton case. In it the court distinguished many of the "majority rule" cases on the basis that in fact some independent evidence existed in each case which tended to show the existence of a startling event. The court concluded that the excited utterance could not serve by itself to establish the fact of a startling event but that some independent evidence is required. The court held that independent evidence must establish by a preponderance of evidence that the exciting event did occur, not that it could have occurred. In Truck Insurance Exchange the Texas court applied a less stringent standard that some independent proof that the event could have occurred is necessary. We believe the Texas court approach to be sound.

Mrs. Kreeger's testimony clearly does not meet the Missouri requirements for an excited utterance set forth in Walsh v. Table Rock Asphalt Construction Co., supra. In her statement to Mrs. Kreeger Julie stated that she was "okay", did not need Mrs. Kreeger's assistance and "Just wanted [Mrs. Kreeger] to know about it". The last statement, in particular, indicates reflective thought in making the statement and even in making the phone call to a non-emergency number. Reflective thought is the antithesis of the excited utterance, which requires as its root, spontaneity. Mr. Kreeger's testimony is similarly deficient. Again the making of the phone call in itself is an indication of reflective thought since the intention expressed to Mrs. Kreeger was that someone would know. Further, there is no independent evidence that the startling event occurred. Mr. Kreeger did not observe the declarant. His statement that she was hysterical is conclusory and the state did not elicit what that conclusion was based on. Neither of the Kreegers heard anything on the telephone that indicated that a beating was in progress nor was it possible from the impreciseness of the witnesses' reporting of Julie's statement to determine when any alleged beating had occurred. There was no testimony that Julie evidenced signs of physical abuse after this incident. There was a very large amount of evidence that the Post marriage was one of heavy drinking by both partners...