State v. Williams, 65542
| Decision Date | 17 July 1984 |
| Docket Number | No. 65542,65542 |
| Citation | 673 S.W.2d 32 |
| Parties | STATE of Missouri, Respondent, v. Charles Edwin WILLIAMS, Appellant. |
| Court | Missouri Supreme Court |
Ray Gordon, Charles E. Buchanan, Public Defender, Joplin, for appellant.
John Ashcroft, Atty. Gen., Victorine Mahon, Asst. Atty. Gen., Jefferson City, for respondent.
This case presents a sordid tale of unrestrained and violent behavior. The defendant was charged with capital murder, § 565.001, RSMo 1978, and found guilty of murder in the second degree. § 565.004, RSMo 1978.
The deceased victim, Karen Hedges, had lived for a time in a trailer house with her two children and the defendant. She and her children then moved from defendant's trailer into another trailer occupied by a couple named Hodkin and their children. On the evening of July 16, 1982, after Karen had moved, the defendant discovered that she had gone out with another man, and, while he was looking for her, she and her date drove up in a truck about 10:35 PM. The defendant warned the date off, slapped her, dragged her to the Hodkin trailer, and shoved her inside. He determined by manual investigation that she was not wearing a brassiere. He then slapped her into apparent unconsciousness, revived her by pouring iced tea on her, and ascertained by further probing that she was wearing panties under her blue jeans. He then rose, kicked her several times, and warned her that she had "better be there" when he returned. There was evidence, disputed, that he made mention of getting a gun and killing "us all." He then departed the trailer.
Defendant returned after an interval and asked "Where's Karen?" Mrs. Hodkin and a 12-year old girl were seated in the living room of the trailer. The younger children were in bed. On being told that Karen was in the bathroom, perhaps 20 feet away, he went there. Very soon afterwards the occupants of the trailer heard a shot. Defendant started down the hall toward the living room saying, "Somebody get an ambulance; Karen's been shot." He then returned to Karen, who had fallen into the hallway, and was heard to say, "Karen, wake up!" These statements came within seconds after the shot and were admitted without objection.
Counsel offered to prove that defendant then said "that the gun was unloaded and 'I didn't mean to shoot her.' " Counsel also offered to prove that these words were uttered within 15 seconds following the shot. The trial judge sustained the state's objection to the offer. We set forth the balance of the colloquy.
We conclude that this evidence was admissible under the "excited utterance" exception to the hearsay rule. Modern commentators discourage the use of the term "res gestae" as lacking in analytical precision, and as covering different hearsay exceptions having diverse rationale. 1 It is recognized that utterances made under stressful circumstances and relating to the event producing the stress have sufficient reliability to require that they be considered by the trier of the fact, rather than being excluded at the threshold by the trial judge. 2 In State v. Griffin, 662 S.W.2d 854 (Mo. banc 1983), we gave a rather wide application to the excited utterance exception and held that statements which are essentially testimonial may qualify as excited utterances if made under conditions of stress.
The present utterance was made almost immediately after the shot was fired. There was argument about whether the angle at which the bullet entered was an unlikely one from which a shot intended to kill would be fired. The defendant was charged with capital murder and the element of premeditation was fundamental to a determination of the degree of guilt. The statement supplements other utterances which were admitted and is not redundant. We believe that the statement was necessary to give the jury a complete picture and that it should have been received.
The prosecutor objected on the basis that the declaration was "self-serving." If a statement otherwise meets the "excited utterance" test it should not be excluded simply because it is helpful to the declarant's position. 3 The trial judge has a measure of discretion, and does not have to admit studied attempts at exculpation, but the question of admissibility is basically a question of law subject to appellate review. Discretion is not a complete answer. See extensive discussion, Straughan v. Asher, 372 S.W.2d 489, 496 (Mo.App.1963). The proponent of evidence does not have to show that the evidence is without flaw, or that the jury could not find it to be reflective rather than spontaneous, if it meets the general standards for admissibility. Utterances coming so soon after the shooting, and demonstrative of the defendant's intent, should be weighed by the jury rather than by the trial judge. This is especially so when there is no eyewitness testimony.
Because of our holding on this point no extended discussion is necessary as to the admissibility of a second and possibly inconsistent declaration made by the defendant to an ambulance attendant several minutes later, to the effect that he and Karen were struggling for the gun when it went off. If this statement is offered again the trial judge should be entitled to make a preliminary determination as to whether it meets the excited utterance standard. 4 We will not foreclose the trial judge at this point. He may evaluate it on retrial under the standards of this opinion.
The defendant also complains about statements made during closing argument by the prosecution which, it is suggested, amount to a comment on the defendant's failure to testify. The first of these is as follows:
Let me stop right there. Now, ladies and gentlemen, there is no eyewitness as to what happened in that bathroom that the State can produce for you today. There's only two people back there that knows exactly what happened and can...
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