State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007). See Menorah Medical Center v. Davis, 463 S.W.2d 618 (Mo.App.1971).Where testimonial statements are at issue, the Confrontation Clause demands that such out-of-court hearsay statements be admitted at trial only if the declarant is unavailable and there has been a prior opportunity for cross-examination. There is no argument that the declarants of the hearsay statements contained in exhibit 1 were unavailable and that Leibel had a prior opportunity to cross-examine them. Whether Leibel's right to confrontation was violated thus depends entirely on whether the statements contained in the DMV records and in the certifications of those records were “testimonial.” This presents an issue of first impression for our court.
See Stewart-Smith Haidinger v. Avi-Truck, Inc., 682 P.2d 1108 (Alaska 1984). As expressed in Menorah Medical Center v. Davis, 463 S.W.2d 618, 621 (Mo.App.1971): What is necessary [for admissibility of a "verbal act"] is that the conduct out of which the verbal act arises be equivocal and germane to the issues of the case so that such conduct is relevant and material evidence.
In determining the admissibility of statements in which the decedents express that they had already forgiven portions of the debt, the court should consult Ryterski v. Wilson, 740 S.W.2d 374 (Mo.App.S.D. 1987). In determining whether some of the statements could be admitted as verbal acts the court should consult the following:Bright v. Ward, 669 S.W.2d 238, 239 (Mo.App.E.D. 1984); Menorah Medical Center v. Davis, 463 S.W.2d 618,621 (Mo.App.W.D. 1971). RUSSELL, P.J., and J. DOWD, C. concur
However, the hospital was not a defendant and attending physicians cannot be bound by an admission of the hospital. See Menorah Medical Center v. Davis, 463 S.W.2d 618, 621-22 (Mo.App. 1971) and Louisiana Lumber Co. v. Burbridge, 220 S.W.2d 760, 764 (Mo.App. 1949). The letter was properly rejected.
A declaration that indicates a present intention to do a particular act in the immediate future, relevant to a fact in issue, is admissible to prove that the act was in fact performed. A statement of that kind explains or gives color to the conduct of the declarant and so is not received as an assertion of the truth of the matter spoken, but as a verbal act. An utterance of that kind is not testimonial, and so the hearsay rule does not apply. Menorah Medical Center v. Davis, 463 S.W.2d 618, 621[2-4] (Mo.App. 1971); State v. McClure, 504 S.W.2d 664, 671[13, 14] (Mo.App. 1974). The verbal act, although still treated by our decisions as a species of res gestae, rests on a separate grounding of trustworthiness.
The evidence could not have come in under the "verbal acts" doctrine because the utterances did not accompany any ambiguous or equivocal act, itself material, which needed the statement to complete the act and give it legal significance. Menorah Medical Center v. Davis, 463 S.W.2d 618, 621 (Mo.App. 1971). If it was offered to show a state of mind, it was admissible to show the state of mind of the declarant the witness's father. State v. Singh, 586 S.W.2d 410, 418 (Mo.App. 1979).
State v. Schuh, 497 S.W.2d 136, 138 (Mo. 1973). The verbal act must be used to explain conduct that is equivocal. Menorah Medical Center v. Davis, 463 S.W.2d 618, 621 (Mo.App. 1971). The statements Mary Stephen says were made by the two unidentified nurses do not meet the verbal act test.
When declarations accompany an ambiguous or equivocal action and give the action definite legal significance, the out-of-court declaration may be admitted as an exception to the hearsay rule. Menorah Medical Center v. Davis, 463 S.W.2d 618, 621 (Mo.App. 1971); Hamilton v. Missouri Petroleum Products Co., 438 S.W.2d 197, 199-200 (Mo. 1969). Presumably the ambiguous or equivocal act to which the excluded statement gave legal significance was appellant's occupation of certain properties.
We will assume that David Grant Hall was defendant Holley's agent for the purpose of driving the car, so that any negligence of his would be attributed to her. Such authority, however, did not extend to the making of admissions as her agent. Roush v. Alkire Truck Lines, supra; Rogers v. McCune, 19 Mo. 557 (1854); Menorah Medical Center v. Davis, 463 S.W.2d 618, 621-622 (Mo.App. 1971). Appellant says we should reexamine the law, calling our attention to cases from other jurisdictions which would allow proof of the driver-agent's statements against the owner-principal, and citing also the Model Rules of Evidence of the American Law Institute, § 508(c).
31A C.J.S. Evidence § 403(1), pages 978-980. Appellant's cited cases, Menorah Medical Center v. Davis, 463 S.W.2d 618 (Mo.App. 1971) and Baker Theodore, Inc. v. Quinn, 400 S.W.2d 477 (Mo.App. 1966), do not support his position. In Menorah Medical Center the court noted that the verbal acts doctrine as enunciated in the Quinn case was applicable only where the conduct of the declarant was at issue; under those circumstances his statements were admissible to explain and give color to his conduct.