State v. Harris, 571 S.W.2d 443, 446 (Mo.App. 1978). It is well established that such testimony is admissible to explain the officers' conduct, supplying relevant background and continuity to the action. State v. McRoberts, 485 S.W.2d 70, 73 (Mo. 1972); State v. Barnes, 345 S.W.2d 130, 131-32 (Mo. 1961); State v. Bright, 269 S.W.2d 615, 623 (Mo. 1954); State v. Lewis, 576 S.W.2d 564, 566-67 (Mo. App. 1978). Under this rule the triers of fact can be provided a portrayal of the events in question, more likely to serve the ends of justice in that the jury is not called upon to speculate on the cause or reasons for the officers' subsequent activities.
Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct. State v. Lopez, 182 Kan. 46, 318 P.2d 662, 666 (Sup.Ct. 1957); State v. Barnes, 345 S.W.2d 130, 132 (Mo.Sup.Ct. 1961); Foster v. Commonwealth, 209 Va. 297, 163 S.E.2d 565 (Sup.Ct. App. 1968). However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule.
Officer White's testimony that a communication came over the police radio describing the robbery, an automobile and a license number was properly admitted for the same reasons. And see State v. Barnes, Mo. Sup., 345 S.W.2d 130. No error appearing, the judgment is affirmed.
The admission of the questioned hearsay constituted prejudicial error. Respondent cites State v. Hale, Mo., 371 S.W.2d 249, State v. Williams, Mo., 448 S.W.2d 865, Bond v. Wabash R. Co., Mo., 363 S.W.2d 1, 5 [3, 4] Mash v. Mo. Pac. R. Co., Mo., 341 S.W.2d 822, State v. Barnes, Mo., 345 S.W.2d 130, State v. Sarkis, Mo., 313 S.W.2d 723, and Nash v. United States, 405 F.2d 1047 (8 Cir. 1969). Bond v. Wabash, supra, was a suit for false imprisonment and malicious prosecution.
This objection, not having been raised at the earliest opportunity, was waived. State v. Barnes, Mo., 345 S.W.2d 130, 133. That statute has, however, been upheld as against sundry constitutional objections in opinions which definitely preclude the present contention.
If the prior judgment was not void, the complaint now made has been waived. State v. Barnes, Mo., 345 S.W.2d 130. Counsel seeks to attack the judgment collaterally. The prior proceedings were instituted by information filed in the Circuit Court of Cole County.
In his brief defendant purports to raise several constitutional questions, some of which were not at any time presented to the trial court, and none of which were presented in a motion for new trial as far as shown by the record, and for that reason, if not because of the limited scope of our review, they are not preserved for appellate review. State v. Barnes, Mo., 345 S.W.2d 130; State v. Griffin, Mo., 339 S.W.2d 803, certiorari denied, 366 U.S. 938, 81 S.Ct. 1666, 6 L.Ed.2d 849; State v. Malone, Mo., 301 S.W.2d 750. However, in his brief defendant does challenge the sufficiency of the amended information.
The court, outside the presence of the jury panel, heard the evidence on the habitual criminal charge and announced its finding that defendant had been convicted of two prior felonies within the provisions of § 556.280. See State v. Barnes, Mo., 345 S.W.2d 130, 133; State v. Griffin, Mo., 339 S.W.2d 803, 806[8,9], certiorari denied 366 U.S. 938, 81 S.Ct. 1666, 6 L.Ed.2d 849. The jury was empaneled and sworn.
When the testimony of an in-court witness about another's statement is offered to explain the conduct of the witness who is testifying rather than as proof of the facts asserted in the statement, the testimony does not constitute hearsay. State v. McCann, 792 S.W.2d 890, 893 (Mo.App.E.D. 1990); See also State v. Barnes, 345 S.W.2d 130, 132 (Mo. 1961) (testimony as to a statement tending to explain subsequent conduct of the testifying witness is admissible); State v. Brooks, 618 S.W.2d 22, 25 (Mo. banc 1981) (police officer's testimony of informant's observation properly offered to show police officer's conduct); But see State v. Shigemura, 680 S.W.2d 256, 257 (Mo.App.E.D. 1984) (court rejects state's position that statement was offered merely to explain subsequent police conduct and not for its truth where statement connected defendant directly to the crime); State v. Douglas, 131 S.W.3d 818, 824 (Mo.App.W.D.2004) (out-of-court statements that go beyond what is necessary to explain subsequent police conduct are hearsay). The concurring opinion argues that Robert Hoover's statements were offered only to prove the fact that they were made rather than for their truth and thus were offered for a non-hearsay purpose.
Only after the trial court announced it would find the statements admissible did the defendant contend the action was contrary to said Art. I, § 18(a). This did not preserve the question of the constitutionality of that statute for review. Cf. State v. Barnes, 345 S.W.2d 130 (Mo. 1961). Defendant's belated argument of unconstitutionality does not remove this case from the jurisdiction of this court.