State v. Yole

• Decision Date: 15 June 2004
• Docket Number: No. WD 62241.,WD 62241.
• Citation: 136 S.W.3d 175
• Parties: STATE of Missouri, Respondent, v. Frederick S. YOLE, Appellant.
• Court: Missouri Court of Appeals

136 S.W.3d 175

STATE of Missouri, Respondent, v. Frederick S. YOLE, Appellant.

No. WD 62241.

Missouri Court of Appeals, Western District.

June 15, 2004.

James R. Wyrsch and J. Justin Johnston, Kansas City, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels and Charnette D. Douglass, Jefferson City, MO, for respondent.

Before ROBERT G. ULRICH, P.J., HAROLD L. LOWENSTEIN and EDWIN H. SMITH, JJ.

ROBERT G. ULRICH, P.J.

Frederick Yole appeals his convictions following jury trial for murder in the second degree, section 565.021, RSMo 2000, and armed criminal action, section 571.015, RSMo 2000, and consecutive sentences of twelve and three years imprisonment, respectively. Mr. Yole raises four points on appeal. He contends that the trial court (1) erred in sustaining the State's motion in limine to exclude his taped statement given on the morning of the incident, (2) plainly erred by allowing the expert testimony of William Newhouse regarding his and his wife's relative positions when Mrs. Yole was fatally shot, (3) plainly erred by failing to quash the entire venire panel when two venirepersons improperly raised the issue of the death penalty, and (4) erred in denying his motions for a new trial and for judgment of acquittal because the State failed to prove beyond a reasonable doubt that he was guilty of murder in the second degree. The judgment of convictions is affirmed.

FACTS

On November 18, 2001, law enforcement officers were dispatched to the Yole's home in Lee's Summit in response to a shooting, a possible suicide attempt. Officers Stephen Doogs and Rachel Casady were among the first officers to arrive at the scene at approximately 1:30 a.m. The officers knocked on the front door, and Mr. Yole let the officers in. He was very distraught and had blood on his clothes. Mr. Yole immediately led the officers to the master bedroom where Mrs. Yole was lying on the floor in a fetal position in a large amount of blood. She had towels wrapped around her head. Officer Doogs asked Mr. Yole where the weapon was located, and Mr. Yole reached underneath a pillow on the bed and handed a handgun to the officer. The officers then instructed Mr. Yole to leave the bedroom. Officer Casady secured the handgun. Officer Doogs observed that Mrs. Yole had a gunshot wound to her head and right hand. He unsuccessfully checked her for a pulse.

In the meantime, Officer John Heil and Detective Roger Bowers separately asked Mr. Yole what had happened that night. Mr. Yole told Officer Heil that he and Mrs. Yole had gone out drinking. When they arrived back home, they got into a fight, and he left. When he returned home again, Mrs. Yole was gone. She arrived shortly thereafter and went to the master bedroom. He remained in the living room. Mr. Yole then heard a gunshot. At that point in the conversation, Mr. Yole began crying, so Officer Heil ended the questioning.

Mr. Yole told Detective Bowers that he and Mrs. Yole had gone to a party that night with some friends. When they returned home they began fighting, and he left. When Mr. Yole returned home again, he found Mrs. Yole gone. She had left a message that she was going to kill herself. Mrs. Yole then arrived back home and went into the master bedroom. Remembering Mrs. Yole's threat to kill herself, Mr. Yole went into the master bedroom to find the handgun that he kept under the bed. He and Mrs. Yole then engaged in a physical altercation, and Mr. Yole hit Mrs. Yole. Mr. Yole told Detective Bowers that the fight got out of control and that he had the handgun. He stated that he thought the magazine (in which the bullets are located) was not in the gun and that he shot her. The detective then ended the interview.

An autopsy was subsequently performed on the decedent, and the cause of death was determined to be a gunshot wound to the head. Mr. Yole was charged by information in lieu of indictment with murder the first degree and armed criminal action. Following jury trial, Mr. Yole was convicted of the lesser-included offense of murder in the second degree and armed criminal action. He was sentenced to consecutive terms of twelve and three years imprisonment, respectively. This appeal by Mr. Yole followed.

I. Admissibility of Taped Statement

In his first point on appeal, Mr. Yole claims that the trial court erred in sustaining the State's motion in limine to exclude his taped statement given at the police station after his arrest. Initially, the State contends that Mr. Yole failed to preserve this point for appellate review. First, it argues that Mr. Yole failed to make an offer of proof at trial to preserve the error. A ruling on a motion in limine is interlocutory only and subject to change during the course of the trial. State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992); State v. Albanese, 9 S.W.3d 39, 51 (Mo.App. W.D.1999). Thus, the motion in limine itself preserves nothing for appeal. Id. Instead, the proponent of the evidence must attempt to present the excluded evidence at trial. Purlee, 839 S.W.2d at 592. If an objection to the proffered evidence is sustained, the proponent must then make an offer of proof in order to preserve the record for appeal and to allow the trial court to consider further the claim of admissibility. Id.; State v. Hefflinger, 101 S.W.3d 296, 299 (Mo.App. E.D.2003).

The State also contends that Mr. Yole's point relied on is insufficient. "A point relied on that refers only to a ruling on a motion in limine is technically deficient." Hefflinger, 101 S.W.3d at 299. If the deficiency in the brief does not, however, impede disposition on the merits, an appellate court may exercise its discretion to review it. Id.

In this case, although Mr. Yole did not technically make an offer of proof at trial, the record shows that the trial court viewed the videotaped statement during trial, giving it sufficient opportunity to reconsider its ruling on the motion in limine. Additionally, a transcript of that taped statement has been provided to this court to facilitate appellate review. Finally, the point relied on provides sufficient notice to this court and the parties of the specific issue on appeal. This court exercises its discretion to review the claimed error.

In his statement at the police station, Mr. Yole said the following, in pertinent part:

I want my son, I just, he needs to, to know that this wasn't intentional. He needs to be with his mother, she needs him at this point. Has anybody got a hold of him yet?

* * * * *

It was an accident. It was not good, but it was an accident.

* * * * *

I'd never hurt her intentionally. We were fighting, stupidly, and she threatened to kill herself and it really made me mad. `Cuz we had a friend kill himself in our house. I didn't know it was loaded. I didn't....

On appeal, Mr. Yole claims that the trial court's exclusion of this statement violated the rule of completeness. A trial court has broad discretion to admit or exclude evidence at trial. State v. Williams, 97 S.W.3d 462, 468 (Mo. banc 2003), cert. denied, 539 U.S. 944, 123 S.Ct. 2607, 156 L.Ed.2d 631 (2003). An appellate court will review such decision for abuse of discretion. Id. The rule of completeness ensures that a statement is not admitted out of context. State v. Skillicorn, 944 S.W.2d 877, 891 (Mo. banc 1997), cert. denied, 522 U.S. 999, 118 S.Ct. 568, 139 L.Ed.2d 407 (1997). When the State introduces part of a confession or admission into evidence, the defendant is authorized to introduce the remaining portion, although it may be self-serving. Williams, 97 S.W.3d at 468. "The rule is violated only when the admission of the statement in an edited form distorts the meaning of the statement or excludes information that is substantially exculpatory to the declarant." Id. (citing Skillicorn, 944 S.W.2d at 891).

Mr. Yole claims that his statement at the police station was admissible because the State introduced his statements at the scene to Officer Heil that he heard a gunshot from the bedroom and to Detective Bowers that he didn't think the magazine was in the handgun and that he shot his wife. Mr. Yole argues that the statement made later at the police station was a continuation of the original statements made to police at the scene and, thus, admissible under the rule of completeness.

The statements made at the scene and the statement made at the police station were, however, distinct and not part of one confession. State v. Chambers, 891 S.W.2d 93, 103 (Mo. banc 1994)(statement to police made 36 hours after a different statement to police was not part of one confession and not admissible under rule of completeness). Furthermore, even if all of the statements had been part of one whole confession, the exclusion of the statement made at the police station did not distort the meaning of the admitted statement. The statement made at the police station was merely redundant of Mr. Yole's statement to Detective Bowers at the scene that he didn't think the magazine was in the handgun when he shot Mrs. Yole. The trial court's exclusion of Mr. Yole's statement did not, therefore, violate the rule of completeness. Point one is denied.

II. Plain Error Review

In his second and third points on appeal, Mr. Yole contends that the trial court committed plain error in two instances. First, he asserts that the trial court plainly erred by allowing William Newhouse, a firearm expert, to testify regarding the relative positions of Mr. and Mrs. Yole when Mrs. Yole was shot. Mr. Yole argues that Mr. Newhouse was not recognized by the court as having the requisite expertise to state his opinion of the relative positions of Mr. Yole and his wife when Mrs. Yole was shot.

The State contends that Mr. Yole waived even plain error review of this claim because defense counsel specifically stated, "No objection" to Mr. Newhouse's testimony. Where a party affirmatively states that he has no objection to the introduction of evidence at trial,...