State v. Sutherland, 78884

• Decision Date: 25 February 1997
• Docket Number: No. 78884,78884
• Citation: 939 S.W.2d 373
• Parties: STATE of Missouri, Respondent, v. Roy SUTHERLAND, Appellant. Roy SUTHERLAND, Appellant, v. STATE of Missouri Respondent.
• Court: Missouri Supreme Court

Page 373

939 S.W.2d 373

STATE of Missouri, Respondent, v. Roy SUTHERLAND, Appellant.

Roy SUTHERLAND, Appellant, v. STATE of Missouri Respondent.

No. 78884.

Supreme Court of Missouri En Banc.

Feb. 25, 1997.

Rehearing Denied March 25, 1997.

As Modified March 25, 1997.

Deborah B. Wafer, Dist. Defender, St. Louis, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Cheryl Caponegro, Assistant Attorney General, Jefferson City, for Respondent.

PRICE, Judge.

Roy Sutherland appeals his conviction of one count of robbery and one count of armed criminal action. Sutherland alleges that the trial court erred in: (1) allowing a prison visitor card into evidence over his hearsay objection; (2) overruling his Batson challenge to the prosecution's peremptory strikes; and (3) overruling his Rule 29.15 motion and his claim of ineffective assistance of counsel. Because we find that the trial court did not err in regard to any of these points, the judgments are affirmed.

I.

On the morning of July 1, 1993, at around 12:30 a.m., the hotel clerk at a Holiday Inn in St. Louis County was confronted by a black man wearing a white shirt and sunglasses. The man brandished a gun and said, "Give me your money." The clerk put the recently-counted cash drawer on the counter. The robber, later identified as Kevin Adell, reached into the tray, grabbed the bills, and left the hotel.

Shortly after the robbery, Officer Jerome Paskiewicz of the St. Louis County police department received a broadcast describing the suspect and warning that the suspect was probably armed. Officer Paskiewicz spotted a car being driven by a person matching the description. As Officer Paskiewicz pulled behind the car, he noticed that the rear license plate was covered with a piece of brown paper bag. He activated his lights and began to pursue the vehicle up to speeds of ninety miles per hour. The car was stopped at 12:38 a.m., seven miles from the Holiday Inn. After the driver, defendant Roy Sutherland, and the front-seat passenger, Arnita Tate, were removed from the car and frisked, the police found Adell lying in the back seat of the car. A further search of the car revealed money in nearly the exact bill denominations as were taken from the hotel, a gun, and sunglasses. The front license plate of the car also had been covered by brown paper. The hotel clerk was taken to the location of the search where she identified Adell as the robber, and the gun and sunglasses as identical to the ones used in the robbery.

Sutherland's theory at trial was that he did not have knowledge of the robbery and that he did not know Adell prior to picking him up on the highway as a hitchhiker. Arnita Tate, Sutherland's girlfriend, testified that she did not know Adell, but urged Sutherland to pick him up on the night of the robbery. To rebut that claim, the prosecution introduced into evidence, over the objection of defense counsel, Adell's prison visitor card. The card showed that Adell listed Sutherland as a welcomed visitor to the county jail. James Sutton, II, custodian of records for the St. Louis County Department of Justice Services, testified that he maintained the visitor logs and that the visitor cards were made and kept in the regular course of business. The trial court overruled defense counsel's continuing objection and admitted the visitor card.

The jury found Sutherland guilty as charged. Sutherland was sentenced as a prior, persistent, and class X offender, to thirty years on Count I, robbery in the first degree, and thirty years on Count II, armed criminal action, with those sentences to be served concurrently. Sutherland's Rule 29.15 motion was overruled by the trial court.

II.

Sutherland claims that the prison visitor card was not admissible because it was hearsay. Sutherland also claims that admission of the visitor card violated his rights as protected by the Confrontation Clause of the Sixth Amendment of the United States Constitution and article I, section 18(a) of the Missouri Constitution.

A.

A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value. State v. Harris, 620 S.W.2d 349, 355 (Mo. banc 1981). Hearsay statements generally are inadmissible. State v. Shurn, 866 S.W.2d 447, 457-58 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). A hearsay statement is admissible, however, when the statement falls within a recognized exception to the hearsay rule. State v. Spica, 389 S.W.2d 35, 46 (Mo.), cert. denied, 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966); see, e.g., Hamilton v. Missouri Petroleum Prods. Co., 438 S.W.2d 197, 201 (Mo.1969) (excited utterance exception); Oglesby v. St. Louis Pub. Serv. Co., 338 S.W.2d 357, 363 (Mo.App.1960) (exception for statements for purposes of medical diagnosis or treatment); Stewart v. Sioux City & New Orleans Barge Lines, Inc., 431 S.W.2d 205, 210-11 (Mo.1968) (business record exception).

In Missouri, one of the hearsay exceptions, the business records exception, is codified in the Uniform Business Records as Evidence Law ("the Act"):

A record of an act, condition, or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

§ 490.680, RSMo 1994. Essentially, the Act sets out three requirements that must be met as a predicate to admissibility of a document as a business record: (1) the custodian of records must testify to the record's identity and mode of preparation; (2) the custodian must testify that the record was made in the regular course of business, at or near the time of the act, condition or event; and (3) the court must find that admission is justified by the sources of information, and the method and time of preparation. § 490.680, RSMo 1994.

Kevin Adell's prison visitor card met these three requirements. First, James Sutton testified to the identity of Exhibit No. 25 by stating that it was the "visiting card of Kevin Adell." Sutton also explained the mode of preparation in the following way:

Q. Would you explain to the jury how this works, how a visitors log works?

A. When a prisoner is first inducted into the Department of Justice Services system, they talk to their social workers who give them this visiting card, in order to put visitors names down, so they can get visitors during the time that they are in our custody.

....

Q. If someone's name is not on the visitors card, are they allowed to visit the inmate?

A. No.

Second, Sutton acknowledged that the visitor card was made in the regular course of business at or near the time of the event at the St. Louis County Department of Justice Services. Third, it was not error for the trial court to find that the sources of the information and the method and time of preparation indicated sufficient reliability so as to justify the admission of the record. Adell had no motivation to misrepresent who he wanted to have visit him. Additionally, neither the social worker, who gave Adell the card, nor the custodian of records, who maintained the records, had any motivation to alter the visitor card. Furthermore, the regular manner in which visitor cards are made and maintained and the purpose for which they are made and maintained support the conclusion that the record is reliable.

Even if a document falls under the business record exception, however, the document will not be admissible if the underlying statement is inadmissible hearsay. A hearsay statement contained within other hearsay evidence is admissible only where both the statement and the original hearsay evidence are within exceptions to the hearsay rule. Killian Const. Co. v. Tri-City Const. Co., 693 S.W.2d 819, 835 (Mo.App.1985).

Here, there is no problem of "double hearsay", however, because the underlying statement is not hearsay. "[E]vidence is hearsay only if its evidentiary value depends on drawing an inference from the truth of the statement. If the relevance of the statement lies in the mere fact that it was made, no reliance is placed on the truth of the statement or the credibility of the out-of-court declarant, and the statement is not hearsay." JOHN C. O'BRIEN & ROGER L. GOLDMAN, FEDERAL CRIMINAL TRIAL EVIDENCE 345 (1989) (emphasis added); see also Bond v. Wabash R.R. Co., 363 S.W.2d 1, 5 (Mo.1962); JOHN C. O'BRIEN, MISSOURI LAW OF EVIDENCE 345 (3d ed., 1996). The underlying statement that Adell wanted Sutherland to visit him was not offered to prove that Adell actually wanted Sutherland to visit him. The mere fact that Adell put Sutherland's name on the card tended to prove that Adell and Sutherland knew one another and inferentially supported the prosecution's contention that Sutherland and Adell planned the robbery and getaway together. Therefore, the statement on the visitor card, "I would like Roy Sutherland to visit me," was not hearsay.

Because the visitor card met the requirements of § 490.680, RSMo 1994, and because the underlying statement was not hearsay, the trial court did not abuse its discretion in admitting the visitor card into evidence.

B.

Sutherland also contends that the admission of the visitor card violated his rights protected by the Confrontation Clauses of the United States Constitution and the Missouri Constitution. Under the Sixth Amendment of the United States Constitution and article I § 18(a) of the Missouri Constitution, criminal defendants have the right to confront witnesses against them. This usually requires that if a person's statement is used by the prosecutor against a defendant, that person must be produced to testify under oath at trial,...