State v. Revelle

GARRISON, Judge,

dissenting.

I respectfully dissent. Like Judge Prewitt, I disagree with any suggestion in the majority opinion that the note or letter from Lisa Revelle to Defendant was not relevant. Evidence which establishes a defendant’s motive to commit the crime for which he is on trial is relevant. State v. Snider, 869 S.W.2d 188, 193 (Mo.App. E.D.1993). See also State v. Shurn, 866 S.W.2d 447, 457 (Mo. banc 1993), cert. denied, 513 U.S. 837 , 115 S.Ct. 118 , 130 L.Ed.2d 64 (1994). Motive is the moving cause which induces action, and has to do with desire. State v. Young, 425 S.W.2d 177, 182, n. 5 (Mo.1968); State v. Willis, 632 S.W.2d 63, 65 (Mo.App. E.D.1982). To be relevant, it must be shown that the evidence which tends to establish motive was known to the defendant. Willis, 632 S.W.2d at 65 . It is not necessary that the evidence which allegedly supplies a motive be shown to be true, rather, the important factor is what the defendant believed. See id.

In the instant case, I believe that the note was relevant concerning Defendant’s motive to commit the crime with which he was charged. The note was evidence that Defendant’s wife had told him that she was unhappy with the marriage and felt that she could not continue to live under those circumstances. Considering the other evidence of Defendant’s lifestyle, the thefts he had committed to support that lifestyle, his precarious financial condition, and the existence of a $500,000 double indemnity life insurance policy, which was due to terminate soon, on his wife’s life, the note could have been interpreted as evidence of a moving cause to commit the crime. Whether Mrs. Revelle truly felt that way is not the crucial question on the matter of motive; rather it is what Defendant believed. As such, I believe the note was relevant. That does not, however, necessarily answer the question of whether it was admissible.

The majority opinion concludes that the note should have been excluded as hearsay. This presumes that a sufficient objection on that basis was made. I do not believe that Defendant’s objection based “on what’s already on the record previously,” was sufficient to preserve that issue. As Judge Prew-itt points out, the objection was not specific. Additionally, objections to the admissibility of evidence, made before trial, preserve nothing. Gage v. Morse, 933 S.W.2d 410, 417 (Mo.App. S.D.1996).

Nevertheless, the majority opinion relies on State v. Kelley, 953 S.W.2d 73 (Mo.App. S.D. 1997), United States v. Brown, 490 F.2d 758, 774-780 (D.C.Cir.1973); and State v. Singh, 586 S.W.2d 410, 417-19 (Mo.App. S.D.1979), to support the proposition that hearsay evidence cannot be admitted under the state of mind exception to show the mental state or motive of the defendant. In Kelley , a division of this court said that “[t]he state of mind exception does not justify or permit hearsay evidence when the primary purpose thereof is to show motive or any other state of mind of Defendant.” 953 S.W.2d at p. 85 . The Kelley court, however, recognized that “evidence of marital break-up or threats is admissible and is probative of a defendant’s intent, motive, or culpability where proof is by non-hearsay.” Id.

I agree with the result in Kelley under its facts. It is the universal application of the rule of exclusion announced in Kelley , regardless of the circumstances, with which I cannot agree. In Kelley the statement of the decedent which resulted in the reversal was multiple hearsay. Significantly, the statement that was the subject of the opinion in Kelley was made by the decedent to a third party witness. In the instant case, the statement in question was made directly to Defendant.

Kelley also relies heavily on Brown and Singh . Neither Kelley, Brown, nor Singh , however, involved the admissibility of statements that had been communicated to the *447 defendant by the decedent and which could be relevant to motive. Brown and Singh involved statements by the decedent expressing fear of the defendant. In fact, Brown contains language that could be interpreted as limiting its scope to cases involving a victim’s hearsay statements of fear of the defendant in homicide cases. 1 While the note in the instant case contains an expression of fear, other parts indicated that Mrs. Revelle’s state of mind was such that she did not intend to continue living with Defendant under the then existing circumstances.

Brown indicates that under the state of mind exception to the hearsay rule, the victim’s state of mind must be relevant to some material issue in the case, and the extrajudicial statement must be probative of that state of mind. 490 F.2d at 774 . The same principle is carried forward in Kelley, 953 S.W.2d at 83 , and Singh, 586 S.W.2d at 419 .

In holding that statements by the victim are not admissible to show motive by the defendant, Kelley also referred to State v. Randolph, 698 S.W.2d 535 (Mo.App. E.D.1985). In Randolph , the appellate court rejected the state’s contention that statements by the victim alleging that defendant had committed a similar act on another occasion, and that he was afraid of defendant, were admissible concerning the defendant’s motive. 698 S.W.2d at 539-542 . Randolph , however, also involved a situation where there was no indication that the subject statements by the victim had been made to the defendant, could have reasonably affected his state of mind, or were relevant to his motive to commit the crime. The court did, however, say that “there may be other fact situations which would make the state of mind of a deceased relevant ...” 698 S.W.2d at 540 . This is consistent with the statements in Brown that “the victim’s state of mind must be relevant to some material issue in the case,” and “there is no claim of self-defense, suicide, accidental death or any other plausible issue that would justify an inquiry into the victim’s state of mind. ” (emphasis added) 490 F.2d at 774, 780 . Singh recognized that “factors which make the state of mind of an alleged victim of a homicide relevant are myriad.” 586 S.W.2d at 419 .

I believe that a statement made by the victim of a homicide to the defendant cannot be summarily dismissed as irrelevant and inadmissible if it expresses the victim’s existing state of mind, and is also relevant to the defendant’s motive. In that instance, it seems to me that the expression of the victim’s state of mind is relevant if it was communicated to the defendant and could have provided a motive for the murder.

The hearsay rule prohibits evidence which constitutes an out-of-court statement used to prove the truth of the matter asserted. Shum, 866 S.W.2d at 457 . In Brown , the court acknowledged the rule of multiple admissibility, saying “[a] statement which would be pure hearsay as to the truth of the matters alleged is not made inadmissible thereby if introduced solely to show the de-clarant’s state of mind and if accompanied by a limiting instruction.” 490 F.2d at 763 . The Singh court also recognized this distinction, but did not explore it. 586 S.W.2d at 417 . If an out-of-court statement is not offered for the truth of the matters asserted therein, by definition it is not hearsay, and there is no issue about whether the state of mind exception applies. If it is offered for the truth of the matter asserted, then the out-of-court statement will be excluded, on proper objection, unless it fits within one of the recognized exceptions to the hearsay rule.

In the instant case, there were discussions between counsel and the trial court in pretrial hearings relating to Defendant’s motions to suppress. Assuming, for the sake of argument, that those discussions sufficiently delineate the purpose the note was later offered, they indicate that the State was seeking to admit the note to demonstrate that Defendant lied to investigators about *448 the condition of his marriage. 2 , 3 When used in this fashion, the note could be characterized as hearsay because it would be relevant only if the matters contained therein were true. Accordingly, it would be admissible, if otherwise relevant, only if it fit within a recognized exception to the hearsay rule. If it were offered only to show Mrs. Revelle’s state of mind as it related to Defendant’s possible motive to commit the murder, without regard to its truth, it would not be hearsay and would be admissible without the necessity of applying an exception to the hearsay rule.

In my opinion, the trial court did not err in admitting the note. If it was offered for the truth of its contents, I believe it was relevant as an expression of Mrs. Revelle’s existing state of mind at the time it was written, and was relevant and admissible, under the circumstances here, as bearing on Defendant’s motive to commit the crime. As indicated earlier, however, it is what the defendant believes to be true, rather than what may actually be true, which is important when considering evidence of motive. Bearing that in mind, if the note was not offered for the truth of its contents, the hearsay rule would not bar its admission, and I believe it was relevant as bearing on the existence of a motive. 4 Under neither scenario was the note precluded by the hearsay rule, even assuming a sufficient objection on that basis was made.

I would affirm the conviction to the extent it is attacked on the basis of the admission of the note. I agree with the majority opinion with respect to its discussion of the issue about whether the trial court should have sua sponte recused.

. In Brown the court said, "[t]he threshold requirement of admissibility of such hearsay statements of fear of defendant in homicide cases is *448 some substantial degree of relevance to a material issue in the case.” 490 F.2d at 767 .

. Evidence that a defendant lied to investigators may be admissible as evidence of his knowledge of guilt. State v. Spica, 389 S.W.2d 35, 53 (Mo. 1965); State v. Burton, 618 S.W.2d 199, 201 (Mo.App. E.D.1981); State v. Ross, 606 S.W.2d 416, 425 (Mo.App. E.D.1980). I am, however, aware of no cases making such evidence admissible regardless of whether it fits within one of the exceptions to the hearsay rule.

. Proceedings concerning motions in limine or to suppress, however, are interlocutory in nature because matters may change between then and the time the issue arises at trial. See State v. L _R_, 896 S.W.2d 505, 508-509 (Mo.App. S.D.1995); State v. Clements, 849 S.W.2d 640, 645, n. 3 (Mo.App. S.D.1993).

.Judge Shrum’s concurring opinion suggests that I have overlooked the importance of a limiting instruction, citing Brown, 490 F.2d at 766, n. 25 . I do not believe Brown stands for the proposition that the State has a duty to request a limiting instruction concerning evidence which it offers. As indicated in Judge Prewitt’s dissent, a defendant may request such an instruction if there is a risk that evidence may be used for improper purposes.