Opinion
No. ED74904
September 28, 1999
Appeal from the Municipal Court of St. Louis County, Missouri, Hon. Robert Adler
Dennis J. Curland, 225 S. Meramec, Ste. 1123, Clayton, MO 63105, Attorney for Appellant.
John A. Ross, County Counselor, Micki Worchner, Assistant County Counselor, 41 S. Central Ave., 9th Floor, Clayton, MO 63105, Attorney for Respondent.
Russell Schenewerk (Husband) appeals his conviction of assault in the third degree. Section 716.065 Revised Ordinances of St. Louis County. He was tried in the Municipal Court of St. Louis County, and found guilty on April 16, 1998 of assaulting Jacqueline Schenewerk (Wife). The judge sentenced Husband to 10 days imprisonment in the St. Louis County Jail. His sentence was suspended and he was placed on two years probation. We have jurisdiction over his appeal. Section 66.010.8 RSMo 1994.
Section 66.010.8 provides, in part, "all final decisions of the county municipal court shall be appealable on such record to the appellate court of appropriate jurisdiction." Section 66.010 RSMo 1994.
We granted leave to file a late appeal. On appeal, Husband argues that the trial court erred in finding him guilty of assault in the third degree in that (1) the police officer's testimony reciting statements of Wife regarding an assault should not have been received as excited utterances, and (2) without that testimony, there was insufficient evidence to convict Husband. Wife did not testify. We reverse.
Husband was charged by information, which alleged Husband on or about November 29, 1997 knowingly assaulted his wife by grabbing her by the neck, pushing her into a wall and choking her, causing bruising to her neck in violation of section 716.065 of the Revised Ordinances of St. Louis County.
The only evidence adduced by St. Louis County (County) to support the charge was the testimony of Officer Miriam, the police officer who investigated the alleged offense. Officer Miriam testified that at approximately 8:45 a.m. on November 20, 1997, she received a call. She went to a house on Butler Hill Estates Drive in unincorporated St. Louis County. A 911 call had been made from that residence. When she arrived, she was met by Husband at the front door. She approached him and asked if there was a problem. He responded by saying there was no problem and suggesting that she ask his wife since she made the call.
Officer Miriam then spoke to Wife. According to Officer Miriam, Wife was very visibly and emotionally upset. She was sitting down, crying and her neck was red in the center on the left side. Officer Miriam also noticed that she was pregnant.
Husband timely objected to all questions calling for hearsay statements of Wife. The court accepted the County's contention that Wife's statements were excited utterances. Wife told Officer Miriam that Husband tried to choke her. Officer Miriam asked her why that happened. She said Husband wanted her to walk their son to school that morning since she does not drive. It was cold and she did not want to walk their son to school. Husband called her specific obscenities. Officer Miriam testified that Husband stated to her that he might have struck Wife's arm. Wife said she had previously lived in a shelter for abused women because of abuse by Husband.
On cross-examination, Officer Miriam stated that she did not take photographs of the red marks she observed on Wife's neck. She did not see what made the red marks on Wife's neck. She conceded that Wife's statements could have been fabricated.
Officer Miriam further testified that she saw Wife's mother, who does not speak English, making gestures at the scene. Specifically, she observed Wife's mother grabbing her neck, which Officer Miriam interpreted as mimicking Husband choking Wife. However, she conceded that the gestures could mean anything.
After hearing all of the evidence, the court found Husband guilty, sentencing him to 10 days in jail and suspending the execution of sentence. In his one point on appeal, Husband argues that the trial court erred in finding him guilty of assault in the third degree because (1) the hearsay testimony of Officer Miriam should not have been received into evidence as an excited utterance, and (2) without the testimony in question, the County did not introduce sufficient evidence to support finding him guilty. He specifically argues that there was insufficient evidence to support finding that Wife's statement to Officer Miriam was spontaneous. In addition, he argues that Wife did not blurt out her statements. Rather, they were responses to questions. We agree.
An out-of-court statement offered to prove the truth of the matter contained therein is hearsay. State v. Kemp, 919 S.W.2d 278, 280 (Mo.App.W.D. 1996). An excited utterance exception to the hearsay rule applies when "(1) a startling event or condition occurs; (2) a statement is made while the declarant is under the stress of excitement caused by the event and has not had an opportunity to fabricate; and (3) the statement relates to the startling event." State v. Post, 901 S.W.2d 231, 234 (Mo.App.E.D. 1995). In Missouri, a claimed excited utterance is presumably inadmissible as hearsay. Kemp, 919 S.W.2d at 280. The premise of an excited utterance is spontaneity. Post, 901 S.W.2d at 235; Jones v. Wahlic, 667 S.W.2d 729, 730-31 (Mo.App. 1984). The burden of making a sufficient showing of spontaneity is on the party offering the statement as an excited utterance. Kemp, 919 S.W.2d at 280.
In determining spontaneity, the following factors should be considered: (1) the time between the startling event and the declaration; (2) whether the declaration was in response to a question; (3) whether the declaration is self-serving; and (4) the declarant's physical and mental condition at the time of the declaration. Jones, 667 S.W.2d at 731. Ultimately we must decide whether the declaration was a result of reflective thought, which is the antithesis of the excited utterance. Post, 901 S.W.2d at 235; Id.
Here, there is no evidence of the time of the alleged assault by Husband on Wife; thus, there is no evidence to support finding the time between the alleged assault and Wife's statement to Officer Miriam. Officer Miriam testified she received a call at approximately 8:45 a.m. and arriving at the scene within 5 minutes of the call. She testified that she believed the 911 call was at approximately 8:45 a.m. There is no evidence as to when of the alleged assault occurred.
Additionally, Officer Miriam testified that when she arrived at the house, she separated Husband and Wife. She then questioned Wife. Officer Miriam stated that Wife did not blurt anything out and that Wife started talking to her in response to a question. The County's evidence supports finding there was a lack of spontaneity in Wife's statements. Thus, they were not admissible as excited utterances.
There remains a question of sufficiency of the evidence to support Husband's conviction if Wife's answers to questions are disregarded. The information charged Husband with assault by grabbing and choking Wife. As we indicated in Post, "[t]here is a considerable logical difficulty in allowing into evidence a statement admissible only because it arises from a startling event as proof also that the startling event occurred." Post, 901 S.W.2d at 235. We concluded that " some independent proof that the event could have occurred is necessary." Id.
The only evidence offered by the County is the testimony of Officer Miriam. In addition to the excluded statements of Wife, she also testified as to observing Wife's mother (mother) make choking gestures. However, mother did not speak English and when she did speak, Officer Miriam conceded that mother's foreign language words were of no value to her. She also conceded that the gestures of mother could mean something other than mimicking Husband choking Wife. As for physical evidence, Officer Miriam testified to seeing a red mark on Wife's neck, "the typical red mark you get that will fade in a matter of time." However, she did not know how Wife received the red marks.
We conclude that the court erred in admitting the hearsay testimony. Moreover, the evidence introduced in addition to the alleged excited utterances does not constitute independent evidence of the startling event, choking. Thus, Husband's assault conviction is reversed.
We reverse.
William H. Crandall, Jr., P.J. and Mary K. Hoff, J. concur.