Hemphill v. Pollina
400 S.W.3d 409
Mo. Ct. App.2013Background
- Hemphill and Pollina fought inside Karen's Kozy Cabin; another altercation occurred outside and Pollina fired a gun, injuring Hemphill.
- Pollina was charged with assault in the second degree and armed criminal action; Pollina entered an Alford plea to assault in the second degree and the armed action charge was dismissed; sentence was suspended and Pollina completed probation.
- Hemphill filed a civil damages petition alleging Pollina assaulted him with a deadly weapon; Pollina denied liability and asserted self-defense.
- Pollina moved in limine to exclude the criminal case and the Alford plea as admissions; the court granted the motion and excluded Pollina’s custodial silence as well.
- A two-day jury trial occurred; Hemphill and Pollina offered competing versions of events in the bar; the court gave a self-defense instruction MAI 32.11; the jury returned a verdict for Pollina.
- This appeal challenges evidentiary exclusions and the self-defense instruction; the appellate court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of custodial silence | Pollina's silence was an admission against interest. | Silence in police questioning is not a duty to speak after Miranda warnings. | No abuse; silence not admissible as admission. |
| Admissibility of Alford plea | Pollina's Alford plea constitutes an admission against interest. | Alford plea does not satisfy admission criteria and is not an admission of guilt. | No abuse; Alford plea excluded as not an admission. |
| Self-defense instruction | Insufficient evidence to support self-defense theory. | Evidence supports reasonable apprehension and necessary, reasonable force. | Instruction properly given; substantial evidence supported all four MAI 32.11 elements. |
Key Cases Cited
- Khoury v. ConAgra Foods, Inc., 368 S.W.3d 189 (Mo.App. W.D. 2012) (abuse-of-discretion review for evidentiary exclusions)
- United Missouri Bank, N.A. v. City of Grandview, 179 S.W.3d 362 (Mo.App. W.D. 2005) (admission against interest framework)
- Creager v. Chilson, 453 S.W.2d 941 (Mo. 1970) (circumstances under which silence may admit an admission)
- Keim v. Blackburn, 280 S.W.1046 (Mo. 1926) (duty to speak prerequisite for admission by silence)
- State v. Dorris, 191 S.W.3d 712 (Mo.App. S.D. 2006) ( Miranda warnings and silence as non-duty to speak)
- Nguyen v. State, 184 S.W.3d 149 (Mo.App. W.D. 2006) (Alford plea explained)
- Bott v. State, 353 S.W.3d 404 (Mo.App. S.D. 2011) (Alford plea and sentencing implications)
- Prell v. State, 35 S.W.3d 447 (Mo.App. W.D. 2000) (impeachment in civil/criminal contexts; conviction status)
- M.A.B. v. Nicely, 909 S.W.2d 669 (Mo. banc 1995) (conviction status for impeachment purposes)