‘Where an accused claims self-defense, the deceased’s state of mind is relevant to the issue of which participant in the killing was the aggressor. Where a defendant concedes his or her presence and involvement in a victim’s death but claims an accident or suicide caused the death, the deceased’s statements as to fear of guns or similar state of mind are relevant to rebut these defenses.’ (citations omitted)
How later courts described this case
- ‘Where an accused claims self-defense, the deceased’s state of mind is relevant to the issue of which participant in the killing was the aggressor. Where a defendant concedes his or her presence and involvement in a victim’s death but claims an accident or suicide caused the death, the deceased’s statements as to fear of guns or similar state of mind are relevant to rebut these defenses.’ (citations omitted)
- in prosecution for murder of wife, wife’s earlier handwritten note concerning the status of the marriage was held to be inadmissible and prejudicial hearsay
- "hearsay note” written by victim could not be used by state to refute an issue "not yet injected” by defense
Written by the judges who cited it.
The opinion
PARRISH, Judge,
concurring.
I concur in the principal opinion and in the concurring opinion of Judge Shrum. In doing so I have considered the dissenting opinions herein and find it appropriate to refer to one of the cases from which a quotation appears in Judge Prewitt’s dissenting opinion.
In contending the defendant in this case should not be permitted to complain on appeal about the admission in evidence of the victim’s memo because defendant’s attorney referred to it in opening statement, Judge Prewitt’s dissenting opinion quotes a statement in Bushong v. Marathon Electric Mfg. Corp., 719 S.W.2d 828, 841 (Mo.App.1986), “Plaintiff may not complain of the admission into evidence of the result of the blood test because plaintiffs counsel himself conveyed that information to the jury during his opening statement.” The statement in Bushong , however, is followed by, “ ‘[A] party who has introduced evidence concerning a certain fact may not on appeal complain that his opponent was allowed to introduce related evidence, in rebuttal or explanation.’ 5 Am. Jur.2d App. and Err., § 716, p. 163.”
In Bushong the jury was told that certain evidence would be introduced by plaintiff. Plaintiff thereafter introduced that evidence then sought to complain on appeal about the evidence (which he had unsuccessfully sought to preclude by a pre-trial motion in limine). In this ease the evidence was introduced, over defendant’s objection, by the state, not by the party who complains on appeal. For that reason I do not find Bushong to be applicable to this case.
Defendant’s trial attorney referred to the memo in his opening statement. However, the jury in this case, as in every other criminal case, was instructed, “The opening statements of attorneys are not evidence.” MAJOR 3d 302.02. Cases holding that jurors are presumed to follow the instructions of the court are legion.