State v. Revelle, 20879

• Citation: 957 S.W.2d 428
• Decision Date: 12 November 1997
• Docket Number: No. 20879,20879
• Parties: STATE of Missouri, Respondent, v. George Stanley REVELLE, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 428

957 S.W.2d 428

STATE of Missouri, Respondent, v. George Stanley REVELLE, Appellant.

No. 20879.

Missouri Court of Appeals,

Southern District,

En Banc.

Nov. 12, 1997.

Motion for Rehearing and Transfer

Denied Dec. 15, 1997.

Application for Transfer Denied

Jan. 27, 1998.

M. Shawn Askinosie, David R. Mercer, Springfield, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERT E. CRIST, Senior Judge.

A jury convicted George Stanley Revelle of first degree murder pursuant to § 565.020, RSMo 1994, for the murder of his wife, Lisa Revelle, on September 28, 1994. The trial court imposed a sentence of life imprisonment without possibility of parole or probation. Defendant appeals from the judgment imposing such sentence.

Defendant puts forth twelve points of error, only two of which need be considered in any detail by this Court. This Court finds the State made a submissible case but reverses and remands the case for a new trial because of the admission into evidence of an inadmissible hearsay note authored by Lisa and directed to Defendant.

Defendant contests the sufficiency of the evidence. Accordingly, this Court reviews all evidence together with all reasonable inferences favorably to the verdict, and evidence or inferences contrary to the verdict are ignored. State v. Twenter, 818 S.W.2d 628, 631 (Mo. banc 1991). This Court looks only to whether there is sufficient evidence from which reasonable jurors could have found the defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989).

In September of 1992, Defendant and his wife, the victim, Lisa Revelle, bought and moved into a house in Fremont Hills. They were in their 30s and had two children who were about 7 and 9 years of age. The house cost $342,000 and was mortgaged for about that amount. It was fitted with an elaborate alarm system.

In May of 1994, Defendant applied for life insurance for Lisa. It was approved in July 1994 in the amount of $500,000 with a double indemnity clause. Defendant was the sole beneficiary. Defendant was then hopelessly in debt. He was embezzling funds from his employer, Ozark Bank. He was also stealing money from the City of Fremont Hills while acting as its mayor.

In the spring of 1994, Defendant had a conversation with a bank colleague about the best type of firearms for home defense. Defendant was told a Colt .45 had stopping power. Later that spring they discussed different sized calibers of weapons. In August 1994, the Revelles had a discussion with another couple about fear of someone coming to the Revelle home to harm Defendant.

On September 23, 1994, Defendant and three others spoke of firearms over lunch. They discussed how a .45 would have stopping power and would crack a cinder block. Defendant asked, in reference to home defense, whether a .45 would "do it." He was assured that it would.

At 2:00 a.m. on September 27, 1994, Officer Hicks of the City of Ozark Police Department was dispatched to the Revelle home. Defendant said the motion detector lights on the west side of his house had activated and he wanted the area checked. Officer Hicks found no indication that anyone had been in or around the house. The garage door was open about a foot. Defendant said they left the garage door open for their cat to come and go. Defendant went to work that day. He told his co-workers about the motion lights being activated and that he would keep his shotgun close that night.

At approximately 5:00 a.m. on September 28, 1994, Officer Hicks was again dispatched to Defendant's Fremont Hills residence. As he drove to the residence, he saw no cars. Officer Gray, also with the City of Ozark Police Department and also dispatched to this residence, did not pass any cars and did not see any people running across the golf course near the Defendant's home. A neighbor who had been awakened by a call from the alarm company regarding an alarm at the Revelle home, noticed nothing amiss in the neighborhood when he looked outside his kitchen window. A newspaper delivery person was in the area of Defendant's home during those early morning hours and saw nothing unusual.

Officers Hicks and Gray found Defendant standing in the door of his house talking on a cellular telephone. Defendant said, "They shot my wife." The children were and remained in their upstairs bedrooms. Lisa had been shot in the head with a .45 caliber gun. She died shortly thereafter.

Defendant said the intruders were wearing dark clothing and one had a ball cap on backwards. He explained these intruders had left the residence through the garage door on the west side of the residence.

Officers Hicks and Gray noted that (1) the garage door was open about two feet; (2) none of the motion detector lights had been activated; (3) no dogs were barking; (4) though the grass was heavy with dew and water from the sprinkler system, there were no footprints; and (5) there were no unusual vehicles or anyone walking in the vicinity. The crime scene was sealed.

Sergeant Isringhausen with the Missouri Highway Patrol also came to the scene of the Revelle shooting. He noted and photographed the readout on the alarm keypad. He noticed the open garage but found no signs of forced entry, either through doors or windows. When he walked past the garage, the motion detector light came on and stayed on in excess of a minute. The Revelles' dog barked. He found no footprints in the dew-covered grass, nor did he find any footprints leading from the residence through the backyard.

Defendant varied his story about what had happened. No attempt is made to detail such variances. An alarm system expert explained there could have been no house intruder or intruders as told by Defendant. There was other evidence indicating Defendant's participation, but further evidentiary detail is not necessary to show a submissible case was made by the State.

The evidence established Defendant's monetary motive for the murder. The chain of circumstances was completed by (1) Defendant's interest in a killer gun, (2) access by Defendant and his two minor children, (3) non-access by other persons, (4) stealing and embezzlement by Defendant, and (5) variances in Defendant's story regarding the intruders. The facts are consistent with each other, consistent with guilt, and inconsistent with any reasonable theory of innocence. The evidence was sufficient to show Defendant knowingly and after deliberation caused the death of Lisa.

The one, real, overriding issue in this case concerns the hearsay note of Lisa directed to her husband, the Defendant. During its case in chief, the State introduced into evidence a note written by Lisa to Defendant. The note contained expressions of Lisa's dissatisfaction with the state of their marriage. The note was written as much as six months prior to Lisa's death. Defendant objected to its admission as inadmissible hearsay. The note in pertinent part is as follows:

I can't seem to tell you anything without feeling your anger, .... I'm very scared about our marriage and our family. I can't continue living this way. I'm afraid of you and afraid of your anger and your silence.... I don't want a big new home or a Mercedes or a Highland [sic] membership. I only want someone who loves me and accepts me as I am.... I'm hurt and alone, and the kids feel it too.... I will always love you, but I won't live with you like this.

A similar hearsay issue was exhaustively considered by this Court in State v. Kelley, 953 S.W.2d 73 (Mo.App. S.D. 1997). ¹ This Court will discuss much of the reasoning of the Kelley court as applicable to this case.

At oral argument, the State admitted that the marital note was hearsay. Therefore, it was inadmissible unless it fell within one of the exceptions to the hearsay rule. "A hearsay statement is any out-of-court statement used to prove the truth of the matter asserted." State v. Shurn, 866 S.W.2d 447, 457 (Mo.banc 1993). "Hearsay statements are generally inadmissible." Id. at 457-58. The State contends the marital note was admissible as a "present state of mind exception." Briefly described, the general rule is that extrajudicial statements of a declarant-victim's present state of mind are excepted from the hearsay ban, provided the declarant's state of mind at the time is an issue in the case. State v. Boliek, 706 S.W.2d 847, 850 (Mo. banc 1986) (citing United States v. Brown, 490 F.2d 758 (D.C.Cir.1973)). See State v. Ford, 639 S.W.2d 573, 574-75 (Mo.1982); State v. Pagano, 882 S.W.2d 326, 336 (Mo.App.1994); State v. Kennedy, 842 S.W.2d 937, 942-44 (Mo.App.1992); State v. Singh, 586 S.W.2d 410, 417-19 (Mo.App.1979).

From Singh onward, Missouri courts have relied on Brown to define the scope of the state of mind exception. Under Brown, the exception cannot be used to allow hearsay testimony offered primarily to prove the state of mind of an accused; rather, the rule only has application where the proffered hearsay shows primarily the then state of mind of the declarant and declarant's state of mind, in itself, is probative of an ultimate issue in the case. 490 F.2d at 774-780.

Most commonly, courts recognize and approve the state of mind exception in homicide cases where an accused claims self-defense, suicide, or accidental death. Id. at 767. In such instances, hearsay statements made by the victim that illustrate his or her present state of mind are relevant, and the need for such statements ordinarily overcomes any possible prejudice. Id. See Singh, 586 S.W.2d at 418. Where an accused claims self-defense, the deceased's state of mind is relevant to the issue of which participant in the killing was the aggressor. See Ford, 639 S.W.2d at 575. Where a defendant concedes his or her presence and involvement in a victim's death but claims an accident or suicide caused the death, the deceased's statements as to fear of guns or similar state...