State v. Wolfe
| Decision Date | 29 June 1990 |
| Docket Number | No. 56735,56735 |
| Citation | 793 S.W.2d 580 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Ronald WOLFE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Charles Clifford Schwartz, Jr., Charles M. Shaw, St. Louis, for defendant-appellant.
William L. Webster, Atty. Gen., Frank A. Jung, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant, Ronald Wolfe, was convicted by a jury of driving while intoxicated, § 577.010 RSMo 1986 and possession of marijuana, § 195.020 RSMo 1986. 1 Defendant appeals. We affirm.
Defendant does not question the sufficiency of the evidence. On January 22, 1988, Officer Loyd Gaddie saw defendant drive through a stop sign without stopping. Officer Gaddie followed defendant and "pulled him" over. He noticed defendant's eyes were bloodshot and watery and defendant's speech was slurred. He also smelled the odor of an "alcoholic beverage" on defendant's breath. Officer Gaddie administered three field sobriety tests, and, when defendant failed all three, Officer Gaddie arrested him.
Lieutenant Barry Knipfel joined Officer Gaddie as Gaddie conducted the field sobriety tests. Lieutenant Knipfel, using his flashlight, looked into defendant's car. He saw an opened bottle of beer lying against the console on the passenger's side of the car and a hand rolled cigarette lying on the floorboard of the driver's side.
After Officer Gaddie arrested defendant and read him his Miranda rights, he searched defendant's car while Lieutenant Knipfel watched defendant. Defendant reached under his coat and removed something from beneath it. Lieutenant Knipfel grabbed defendant, placed him against defendant's car, took the item from defendant and then handcuffed him. The item was a bag containing marijuana and a small piece Defendant was then taken to the police station where he took a breath alcohol test. Then defendant was taken to a hospital where he was given a blood alcohol test. The breath test showed defendant had a blood alcohol level of .136%, and the blood test showed a level of .18%.
of paper containing lysergic acid diethylamide.
At trial, defendant's defense against the possession charge was that the bag containing the marijuana was found in the jacket he was wearing but the jacket belonged to a James Blades. Mr. Blades died before trial.
On appeal, defendant raises Nine Points and additional Sub-Points as error. We address the issues raised in those Points as defendant has defined them. None has merit.
Defendant makes three different challenges to the trial court's rulings on a statement he made to the police. None is persuasive.
Defendant's first two challenges focus on the part of his statement in the following question and answer:
Q. What about the marijuana in the bag that you pulled from the back of your pants?
A. I found it in my jacket and didn't know what it was. I don't normally wear this jacket [and] I think someone else put it in there. I was afraid of officers finding what might be in there.
During the state's case in chief, defendant argues, the state was allowed to read into evidence the question but only part of the answer. Defendant contends the part of his answer that which was admitted was:
A. I found it in my jacket.
He argues that his entire answer should have been admitted because "[t]he explanation made by the Defendant is reasonably related to an explanatory (sic) of the question of ownership of the jacket." On this issue, defendant's argument is misdirected and, thus, misses the mark.
Defendant argues the excluded portion of his statement should have been admitted under the entire conversation exception to the hearsay rule. See State v. Stevens, 757 S.W.2d 229, 234 (Mo.App.1988). To come within this exception, the excluded portion of the statement must tend to explain, contradict, or qualify the portion of the statement already admitted. Id. The portion of the statement admitted into evidence was offered as an admission by defendant that the jacket was his. Defendant argues the excluded portion tends to explain and qualify the portion admitted. We disagree.
The only portion of the excluded part of defendant's statement that can even remotely be thought to relate to the issue of ownership of the jacket is the language "I don't normally wear this jacket." Even this portion, however, does not speak to the issue of ownership of the jacket. Whether and how often defendant wears the jacket is of no relevance to the question of who owns it.
Defendant also argues the admission into evidence of the part of his statement admitting the jacket was his was evidence of a prior inconsistent statement which allowed him to introduce a prior consistent statement. As defendant argues in his brief: "[t]here was then a question before the jury of a statement inconsistent with the [d]efendant's innocence." Defendant also argues the trial court "prevented [him] from testifying [about] his own prior statement made to the police consistent with his innocence." This argument is also misdirected and, thus, misses the mark.
The terms "prior inconsistent statement" and "prior consistent statement" are terms of art. A "prior inconsistent statement" is a prior statement inconsistent with trial testimony. State v. Wilkerson, 638 S.W.2d 308, 311 (Mo.App.1982). The inconsistency exists between the prior statement and the testimony, not between the prior statement and defendant's innocence. Here, defendant's prior statement was not offered to rebut his testimony, but as substantive evidence during the state's Even if we were to hold defendant may introduce a prior consistent statement, defendant's point would still fail. To be admissible to rebut a prior inconsistent statement, the proffered prior statement must be relevant to the issue on which the witness was impeached. State v. Renner, 675 S.W.2d 463, 466 (Mo.App.1984). As we stated, defendant's statement that he doesn't usually wear the jacket is not relevant to the issue of who owns it. Therefore, defendant's testimony about his prior statement was properly excluded.
case in chief. It was offered as an admission by defendant and, as such, was evidence of his guilt. State v. Fitzgerald, 778 S.W.2d 689, 691 (Mo.App.1989). Because it was offered before defendant testified, the prior statement could not have been inconsistent with defendant's testimony.
Defendant next challenges the exclusion of his entire statement. This challenge is neither clear nor explicit. If not grounded on the exclusion itself, the challenge, as we understand it, is related to the exclusion and the content of the statement. We have set out the entire written statement in the Appendix.
As we understand this challenge, defendant complains he was prevented from testifying about the statement at trial and he was also prevented from cross-examining Officer Gaddie about the contents of the statement. This dual prevention, defendant contends, prevented him from showing and arguing that someone other than defendant committed the crimes he was charged with.
As can be seen in the statement, the only reference to someone else who might have committed the crimes is speculative: However, evidence that some person other than defendant had an opportunity or motive to commit the crime charged is inadmissible without proof that the other person did some act directly connecting him with the commission of the crime. State v. Easley, 662 S.W.2d 248, 251-52 (Mo. banc 1983). Defendant has shown no such evidence.
Additionally, we note defendant was allowed to suggest another person may have committed the crime. During his direct testimony, defendant testified the jacket he was wearing belonged to Mr. Blades.
Defendant argues the trial court improperly limited his voir dire by refusing to allow him to ask certain questions about Mr. Blades. During voir dire, defense counsel asked:
Jurors, do any of you know or did anyone of you know a Jim Blades? May I assume by your silence you didn't? Jim Blades died recently, and he's an endorsed witness for us. Was, I think you'll find--
The state objected to further questioning about Mr. Blades. Defense counsel said he wanted to determine whether the veniremembers were familiar with Mr. Blades' death. The state argued such questioning would be irrelevant.
When asked by the court to explain how the questioning would be relevant, defense counsel refused to explain. He said he would have to reveal his evidence to explain the relevance of the questioning. He said he would tell the court what his evidence was and how the questioning was relevant, but he would not tell the prosecutor. The trial court then sustained the state's objection.
Defendant now argues the trial court's refusal to allow him to ask the further questions about Mr. Blades' death prejudiced him. It prevented him, he argues, from knowing to his satisfaction whether any of the veniremembers knew of Mr. Blades or his friends. And, therefore, he did not have the information to properly exercise his strikes.
Our standard of review is well settled. The trial court has broad discretion to control the scope of examination of prospective jurors. State v. Lottmann, 762 S.W.2d 539, 540 (Mo.App.1988). We will not interfere with the exercise of that discretion At trial, defendant did not give the trial court and the state the opportunity to hear why he felt continued questioning about Mr. Blades would be relevant. He did indicate a willingness to tell the trial court why his questions were relevant, but he was not going to give the state an opportunity to respond. The trial court would have had to make a decision on the relevance of the questions...
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State v. Williams, WD
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