State v. Steele

• Decision Date: 13 July 2010
• Docket Number: No. WD 70387.,WD 70387.
• Citation: 314 S.W.3d 845
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, Respondent, v. James Michael STEELE, Appellant.

314 S.W.3d 845

STATE of Missouri, Respondent, v. James Michael STEELE, Appellant.

No. WD 70387.

Missouri Court of Appeals, Western District.

July 13, 2010.

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Kent Denzel, Columbia, MO, for appellant.

Shaun L. Mackelprang and John W. Grantham, Jefferson City, MO, for respondent.

Before Division Three: JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS and GARY D. WITT, Judges.

GARY D. WITT, Judge.

James Steele ("Steele") appeals his conviction following a jury trial for first-degree domestic assault, pursuant to Section 565.072 RSMo.¹ We affirm.

Statement of the Facts

Steele and Victim were in a romantic relationship when an altercation occurred on July 3, 2007, which resulted in Steele's conviction for first-degree domestic assault, a class A felony. Victim testified at trial that during an argument at Steele's home, Steele knocked her down, kicked, hit, punched, and stomped on her while she was on the floor. Victim was able to escape Steele's home and ran to a neighbor's house where she contacted police. The neighbor, who knew Steele, then saw him drive away.

Police officers searched Steele's home, found no one else who needed medical attention, and then retrieved Victim's keys so she could leave. The officers noticed blood on the floor and disheveled furnishings. After Steele was arrested, he told police he and Victim had been arguing and said Victim had attacked him and damaged his property. Steele claimed he had left his home right after midnight on the night of the attack and denied causing Victim's injuries.

Victim went to the emergency room and met with Dr. Willingham, who ordered tests to determine the scope of her injuries. Victim had bruises on her face, right arm, back, a lip laceration, black eyes, and a concussion. Tests performed by Dr. Waddell showed Victim suffered from fractured vertebrae in her spine. Both Dr. Willingham and Dr. Waddell testified that Victim's injuries were consistent with a kick to the back. Victim was later examined by her primary care physician, Dr. Sollars, who prescribed bed rest, pain medication, and physical therapy. Victim was off work for six to seven weeks and continued to receive treatment at various times for her injuries.

In the closing portion of her argument, the prosecutor told the jury:

Well, ladies and gentlemen, which way does it go? Did he not do it at all, or did he not just—just not cause her physical injury? He's arguing both ways here. I didn't do it, but there's no serious physical injury anyway. So it doesn't seem to matter if I did it or not. That's Mr. Steele. That's his attorney right now just said that to you.

Defense counsel objected "to the argument about counsel's performance. It's improper." The Court responded by saying "okay. The objection is overruled. It's comment on your argument and I think it's fair. Proceed."

The jury returned with a verdict finding Steele guilty of first-degree domestic assault, and he was sentenced to twelve years imprisonment. Steele alleges two points of error on appeal.

In Point One, Steele argues that the trial court abused its discretion in overruling Steele's hearsay objection to statements made by Victim to her treating physician, Dr. Willingham. Steele argues that the statements resulted in improper hearsay concerning the identity of the attacker reaching the jury. Victim testified at trial that Steele was the person who beat and kicked her that night. The prosecutor called Dr. Sollars and asked what Victim had told him about what had happened to cause her injuries and defense counsel objected based on hearsay. The prosecutor argued the evidence was offered for medical diagnosis, but in overruling the objection, the court restricted the testimony to only statements about the cause of her injuries and did not allow any reference to the identity of the perpetrator. The prosecutor then called Dr. Willingham and asked what Victim had told him about what had happened to cause her injuries. Defense counsel objected once again based on hearsay. The court overruled the objection but failed to similarly restrict the testimony as to the cause of injuries and not to the identity of the perpetrator. Dr. Willingham responded, "she said she was struck by her boyfriend."

Steele argues that this was prejudicial to his case because he denied responsibility for Victim's injuries and the jury heard inadmissible testimony regarding the identity of her attacker. Steele argues that this ruling violated his right to due process of law and a fair trial before an impartial jury as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and sections 10 and 18(a) of the Missouri Constitution.

Standard of Review

"The standard of review for the admission of evidence is abuse of discretion." State v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009) (citing State v. Freeman, 269 S.W.3d 422, 426 (Mo. banc 2008)). "This standard gives the trial court broad leeway in choosing to admit evidence; therefore, an exercise of this discretion will not be disturbed unless it `is clearly against the logic of the circumstances.'" Id. at 426-27 (quoting Freeman, 269 S.W.3d at 426-27). Before evidentiary error can result in reversal, prejudice must be demonstrated. Id.

Analysis

Hearsay evidence is an out of court statement used to prove the truth of the matter asserted. State v. Skillicorn, 944 S.W.2d 877, 884 (Mo. banc 1997). Hearsay is generally inadmissible unless it falls within a recognized exception to the rule. Id. One exception in Missouri is statements made to a physician for diagnosis or treatment. State v. Miller, 924 S.W.2d 513, 515 (Mo.App. W.D.1996). Missouri law allows a treating physician to testify to what a patient said "`insofar as such statements are reasonably pertinent to diagnosis and treatment.'" Id. (quoting Breeding v. Dodson Trailer Repair Inc., 679 S.W.2d 281, 285 (Mo. banc 1984)). However, generally, statements regarding the identity of an alleged perpetrator are not admissible under the exception because these statements are not relevant to diagnosis or treatment. Id.

The State agrees that the statement regarding the identity of Victim's attacker was hearsay and inadmissible. The State argues that because Steele is unable to show he was prejudiced by the admission, he is not entitled to relief. In addition, because Steele did not request the trial court to similarly restrict the testimony, as was done with the previous physician's testimony, this issue was not preserved for appeal.

"Even if the court finds hearsay evidence was improperly admitted, the conviction will be reversed only if defendant can prove both error and prejudice." State v. Hamilton, 892 S.W.2d 371, 378 (Mo.App. E.D.1995), Citing, State v. Isa, 850 S.W.2d 876, 895 (Mo. banc 1993). "Trial court error is prejudicial when there is a reasonable probability that it affected the outcome at trial." State v. Reed, 282 S.W.3d 835, 838 (Mo. banc 2009). The reason why hearsay is generally inadmissible is because the person who made the offered statement is not under oath or subject to cross-examination. State v. Mozee, 112 S.W.3d 102, 107 (Mo.App. W.D. 2003). Accordingly, prejudice will not be found from the admission of hearsay testimony where the declarant was also a witness at trial, testified on the same matter, and was subject to cross-examination because the primary defects in hearsay testimony are alleviated. State v. Robinson, 484 S.W.2d 186, 189 (Mo.1972); see also State v. Forrest, 183 S.W.3d 218, 224 (Mo. banc 2006). In the case before us, the hearsay declarant (Victim) was a witness at trial, did testify on the same matter, and was subject to extensive cross-examination. Victim testified at trial that it was Steele who kicked her and was the cause of her injuries and broken back. Further, Steele was able to cross-examine Victim repeatedly at trial over the subject matter of the contested hearsay. Accordingly, the admission of improper hearsay evidence in this case was not prejudicial to Steele and did not deny him the right to a fair trial. Under these facts, the admission of this single hearsay statement during Dr. Willingham's testimony was not prejudicial. See State v. Placke, 290 S.W.3d 145, 156 (Mo.App. S.D.2009); State v. Link, 25 S.W.3d 136, 145-46 (Mo. banc 2000).

Steele also argues that the admission of Victim's prior consistent statements through the hearsay testimony of Dr. Willingham constituted unfair bolstering of Victim's testimony at trial. Prior consistent statements by a witness may be admitted when the witness has been impeached on the content of those statements. State v. Clark, 711 S.W.2d 928, 933 (Mo.App. E.D.1986). The State does not argue that these statements qualify as prior consistent statements, and the State did not need to do so because, even if the statements were improperly admitted, Steele must also demonstrate prejudice in order to gain relief. State v. Hutton, 825 S.W.2d 883, 887 (Mo.App. E.D.1992). To determine whether prejudice resulted, our courts look to whether the declarant is available for cross-examination and whether the statements are simply cumulative evidence. Id. As previously discussed, Victim testified at trial and was cross-examined over the subject matter of the hearsay. Statements are cumulative if the substance of the witness's trial testimony is proven by evidence other than the statements. Id. Here Victim testified that Steele was her attacker. Further, there was a substantial amount of circumstantial evidence to support her testimony, including Steele's admission he was with Victim until shortly before the attack, the attack occurred at Steele's home, a neighbor saw Steele leave the premises shortly after the attack, and Victim's physicians concluded her injuries were consistent with her testimony. Steele cannot show he was prejudiced by the admission of Victim's statements about the identity...