State v. Woodard, KCD

Decision Date03 March 1975
Docket NumberNo. KCD,KCD
Citation521 S.W.2d 498
PartiesSTATE of Missouri, Respondent, v. Alvin C. WOODARD, Appellant. 27092.
CourtMissouri Court of Appeals

Willard B. Bunch, Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.

John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P.J., PRITCHARD, C.J., and TURNAGE, J.

PRITCHARD, Chief Judge.

Defendant, Alvin C. Woodard, was originally convicted of second degree murder in the circuit court of Jackson County, Missouri. On Appeal to this court, the case was reversed and remanded for a new trial, State v. Woodard, 499 S.W.2d 553 (Mo.App.1973), because of prejudicial error in allowing the state to impeach its own witness by means of an extra-judicial statement of one of the state's witnesses as constituting substantive evidence in support of the elements of the offense charged. On retrial, defendant was found guilty by a jury of the crime of manslaughter (Section 559.070, RSMo 1969, V.A.M.S.). The jury was unable to agree upon a punishment and accordingly, the court assessed same at ten years imprisonment in the Department of Corrections. Defendant's sole assignment of error on the present appeal is the exclusion by the trial court of a purported dying declaration of the victim.

The record shows that the victim, Larry McNeal, was shot in a tavern in Kansas City, Missouri, by defendant, around 6:00 p.m., on November 13, 1971, and sustained a massive wound in his right groin from which he died seven days later. Following the shooting, decedent underwent surgery and regained consciousness in the early hours of November 14. At this time he conversed with his wife, Ann McNeal (also defendant's sister), and her testimony in material part is as follows: 'Q. Can you state at approximately what time your husband was returned to the hospital room? A. Returned to the room? Q. Yes. From the operating room to the hospital room that you were in? A. It was in the early hours of Saturday morning, the 14th of November. Q. Was that the--it was after midnight? A. Yes. Q. And had he been shot--when--when had he been shot? A. About six o'clock on the 13th, I guess. Q. All right. After--upon his return, on that occasion, did he make any statements to you with respect to his physical condition? * * * Q. You may answer that question, Mrs. McNeal. Did he make any statements with respect to his physical condition? A. Yes. He said, 'My leg', he says, 'My leg is gone.' Q. All right. Did he ask you for anything? A. Yes. Q. What was that? A. He wanted water; and the doctor told us he was to have no fluids, whatsoever; and I told him I couldn't give him any. * * * Q. Did he make any statements to you with respect to his tongue? A. Yes. Q. What was that? A. He told me he felt like he was swallowing his tongue, if I could take a cloth and drop a few drops of water in his mouth; and I told him 'no'. Q. Did he make any statement to you with respect to God? A. Yes. Yes. Q. What was that? A. 'Oh, God, please help me.' Q. Now, Mrs. McNeal, after that conversation, did you have occasion to ask your husband what had happened?'

The objection of the state was sustained upon the ground that defendant had not sufficiently proved decedent's belief of impending death and abandonment of hope of recovery and thus no proper foundation was laid for the admission of the dying declaration as an exception of the hearsay rule. Defendant offered to prove, that if the witness would have been permitted, to answer the question her answer would have been that deceased stated, 'A.C. didn't mean to do it.'

The matter of further proof of a proper foundation was reserved to defendant upon remand for a new trial. State v. Woodard supra, loc. cit. 499 S.W.2d 559. Upon new trial, decedent's hospital records, and reports of attending physicians, were received in evidence, along with the testimony of Dr. Thomas Fritzlen, M.D., consultant pathologist to the Jackson County Medical Examiner's office, which specifically was: 'q. Dr. Fritzlen, you say that your records indicate that at the time he was admitted to General Hospital, he had bled extensively? A. Yes, sir. Q. Do your records indicate how many pints of blood were given prior to the time he was removed from the operating room? A. My--my notes don't indicate that; for my purpose it was not--I didn't feel it important to exactly record that; those would be available in the record--Q. Q. Yes? A.--but several transfusions were given. Q. Do your records indicate that he was--at the time he was removed from the operating room, he was suffering from profound shock? A. His blood pressure was somewhat restored by the time he left the operating room; it fluctuated again, according to these notes; sometimes it was quite low and other times it was normal after surgery. Q. Well, did he have a period of several hours with extremely low blood pressure? A. Yes, sir; he did. Q. And that indicates shock, itself, does it not? A. Yes, sir. Q. And...

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2 cases
  • State v. Paschall
    • United States
    • Missouri Court of Appeals
    • 15 Mayo 2020
    ...that he was dying, it is not necessary that the declarant so state or that death immediately follow the declaration. State v. Woodard , 521 S.W.2d 498, 500 (Mo. App. 1975). The declarant's subjective belief of death "may be inferred from the declarant's condition and other circumstances whi......
  • State v. Boyd
    • United States
    • Missouri Court of Appeals
    • 13 Marzo 1984
    ...condition and other circumstances which indicate her apprehension of imminent death. State v. Carr, 610 S.W.2d at 299; State v. Woodard, 521 S.W.2d 498, 500 (Mo.App.1975). Here, the circumstances dictate the conclusion that Miss Woolridge knew her death was imminent. Her numerous wounds wer......

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