# State v. Kelly > Supreme Court of Missouri · July 12, 1976 · 539 S.W.2d 106 URL: https://www.frixlaw.com/law-library/cases/9674461 ## Case - **Full name:** STATE of Missouri, Respondent, v. Donald Lee KELLY, Appellant - **Court:** Supreme Court of Missouri - **Decided:** July 12, 1976 - **Citations:** 539 S.W.2d 106; 1976 Mo. LEXIS 302 - **Precedential status:** Published - **Opinion:** Dissent by Seiler - **Judges:** Holman, Morgan, Henley, Finch, Donnelly, Seiler, Bardgett - **Cited by:** 50 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9674461 ## Opinion text SEILER, Chief Justice (dissenting). I respectfully dissent. I agree with the court of appeals, Kansas City district, in the opinion written by Dixon, J., that the trial court erred in denying defendant’s request for a hearing on the issue of voluntariness of defendant’s statement to a police officer offered to impeach defendant’s testimony. As the court of appeals said, the facts bearing on this issue may be concisely stated. On direct examination, defendant described his activities on the night of the robbery, saying he was in a tavern and went home soon after it closed. The robbery occurred in the early morning about one and three-fourths hours after the tavern closed and therefore about one and one-half hours after defendant said he went home. On cross-examination, defendant said he told Officer Schott of his whereabouts and activities in the early morning hours after the tavern closed. The state called Officer Schott who testified in partial corroboration of defendant’s testimony, but who, on the vital issue, testified he did not recall defendant telling him where he went in those early morning hours. Thus, the actual impeachment consists of a denial that the defendant made the statement he claims to have made which was exculpatory and consistent with defendant’s testimony at trial. The state treats this as if a prior inconsistent statement were in dispute, contending the issue is whether “a statement of a criminal defendant [is] admissible, without a hearing as to its voluntariness, when it is to be introduced as a prior inconsistent statement for the purpose of impeaching the defendant on a matter directly bearing on his guilt . . .” The general rule in Missouri is that the state must prove the voluntariness of statements by a criminal defendant if it introduces the statements into evidence. State *114 v. Monteer, 467 S.W.2d 48, 51 (Mo. banc 1971); State v. Thompson, 465 S.W.2d 590 (Mo.1971); State v. Auger, 434 S.W.2d 1 (Mo.1968). I see no reason why the state should be permitted to use prior statements of the defendant in rebuttal without first establishing their voluntariness any more than it can use prior statements of the defendant as a part of the main case of the state against defendant without first establishing voluntariness. Both are being used against the defendant, and if an involuntary confession is to be rejected as evidence because it is considered testimonially unreliable and untrustworthy, State v. Ussery, 357 Mo. 414 , 208 S.W.2d 245 (1948), the same would be true of involuntary rebuttal statements. Although the majority opinion states that defendant has at no time asserted that the statement to the officer was not voluntary, the opposite seems to me to be the case, because defendant did bring vol-untariness into question by objecting to the admission of the testimony of the police officer and by requesting the hearing. The request was overruled, but defendant did all that could be done to raise the issue. Once the issue is raised, the reliability and, thus, the admissibility of the evidence is in doubt and the burden of proof of voluntariness is upon the state, State v. Hunter, 456 S.W.2d 314 (Mo.1970); State v. Garrett, 510 S.W.2d 853 (Mo.App.1974). I do not see how § 546.260, RSMo 1969, the statute referred to in the principal opinion, meets this issue. The statute simply restates the common notion that if a defendant takes the stand on his own behalf, the state may cross-examine and attempt to impeach him. The statute does not authorize impeachment which would violate defendant’s right to a fair trial. There can be no fair trial where unreliable evidence is introduced. The majority opinion takes the position that the request for a hearing came too late, that defendant had already waived any question of voluntariness by not asking for a hearing when he was cross-examined about what he told Officer Schott. No one, either in the court of appeals, or in this court, or among counsel on either side, has been able to find a case closely in point, but the majority opinion refers to State v. Henderson, 510 S.W.2d 813 [4] (Mo.App.1974) and State v. Simmons, 494 S.W.2d 302 [2, 6] (Mo.1973) as being analogous situations. The Henderson case involved waiver of the right not to have the police testify as to defendant’s refusal to permit a search of his bedroom and the Simmons case involved waiver by failure to object to an improper question until after the answer was given. The doctrine of waiver, of course, runs all through the law and is found in criminal as well as in civil cases. But it is universally held that for waiver to exist there must be an intentional or voluntary relinquishment of a known right or conduct such as warrants an inference of the relinquishment of a known right. 92 C.J.S. Waiver p. 1041. In the case before us I do not believe it follows from defendant’s having testified on cross-examination without objection to what he said he told Officer Schott that defendant thereby conceded the voluntariness of whatever statement Officer Schott might attribute to him. Defendant, of course, knew what he claimed he told Schott and knew that it was exculpatory. Obviously he considered it voluntary. Defendant, however, had no way of knowing what Schott was going to testify that defendant said or did not say. At this stage of the trial, defendant’s guilt or innocence had not yet been determined. He was still clothed with the presumption of innocence. It remained to be decided whether what defendant said or what Schott said was to be believed. It seems to me that defendant’s own testimony on cross-examination amounts to no more than an assertion of the reliability of what defendant said he told Schott; I see no implied or concurrent vouching thereby'on the part of the defendant for the reliability or voluntariness of what Schott said defendant said, nor do I see any waiver thereby on the part of defendant as to the question of voluntariness of a statement which is to be attributed to him by Officer Schott (not testified to by defendant himself) and which clearly is going to be radically different from what *115 defendant testified to, as it is being offered against defendant by the state. Because defendant testifies to facts A, B, and C, it does not follow that defendant thereby waives the question of voluntariness of an admission or inconsistent statement attributed to him by another witness who testifies that defendant did not say A, B, and C, but instead said X, Y, and Z, facts completely opposite. If, as I maintain, defendant in the case before us did not waive the question of voluntariness of the alleged rebuttal statement used against him, then there should have been a hearing on the voluntariness of the statement and a finding by the court that it was voluntary, if so, before it was heard by the jury. We should not be less careful that statements used in rebuttal are voluntary than we are that statements used against defendant as a part of the state’s direct case are voluntary. Oftentimes, rebuttal testimony is critical to the outcome of a particular case. I gather from the fact that the principal opinion relies upon waiver that in the absence of such waiver there would have to be a hearing on voluntariness of the statement purportedly made by defendant to the police and sought to be used against him in rebuttal. As said, I do not find any waiver on the part of defendant in this case. Actually, even had defendant asked for a hearing on voluntariness at the time the question was first put to him on cross-examination about what he said to the officers, it would have established voluntariness only as to what it was that defendant said he told officers and there was really no dispute as to the voluntariness of this. I do not see how it could have established volun-tariness with respect to a statement which was not what defendant said that he said and was in fact contrary thereto. It seems to me that even if there had been a hearing as to voluntariness before defendant testified on cross-examination, it would still be necessary to have another hearing when the state was about to show, allegedly from defendant’s mouth a contrary statement, and, if so, I am unable to see any waiver in not asking for a hearing earlier in the ease. In fact, the first hearing would be largely a waste of time, as it would not disclose anything as to voluntariness of a statement not then before the court and which unless the state later offered it, might never be before the court. It seems to me, therefore, that the defendant’s request for a hearing was timely and came at the logical place in the trial. I would reverse and remand. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9674461. Public record. Not legal advice.