State v. Waller
816 S.W.2d 212
Mo.
1991
Check Treatment

*1 argues only Plaintiff evidence of from Missouri,

the location of the vehicles came Respondent, STATE of testimony the inves- Seabaugh of Mrs. Nothing tigating trooper. deposition in the Myers regarding the location of the ve- WALLER, Appellant. Paul N. was presented hicles evidence. No. 73488. the con supporting The evidence tributory fault submission is considered Supreme Missouri, light to the defendant. most favorable En Banc. of all given the

The defendant is benefit reasonably Sept. favorable inferences evi Plaintiffs from the evidence. drawn disregarded unless it tends to

dence is contributory claim of fault. (Mo. Hyatt,

Welch

banc noted,

As the road previously twenty

where the accident occurred was investigating According

feet wide. ap

trooper, Seabaugh’s was Mrs. vehicle cen traveling in the tracks at the

parently approached she

ter of the road as that at trooper

curve. The also testified point impact, right front of the

Seabaugh feet from the vehicle was five edge front of

east the road and the left eight pickup was feet from the truck edge road. The vehicles struck

east Seabaugh, According to

head-on. Mrs. front struck “from pickup

left truck the left edge”

the middle to the over This viewed

front of her vehicle. verdict, light to the is suffi

in a favorable justify a conclusion

cient Seabaugh vehicle the left front of edge more ten feet from the east than impact, roadway point at the wrong travel.

placing it in the lane of judgment

Accordingly, the is affirmed. RENDLEN, C.J.,

ROBERTSON, BLACKMAR, JJ.,

COVINGTON, and HIGGINS,

TURNAGE, Judge, Special Judge, concur.

Senior J.,

BENTON, participating case was of the Court when

not member

submitted. *2 Columbia, Hogan, appellant.

Susan L. for Webster, Gen., Atty. William L. M. John Gen., Morris, Atty. City, Asst. Jefferson respondent. COVINGTON, Judge.

Appellant appeals Paul Waller from con- voluntary manslaughter, victions of 565.- § 1986, 023.1(1), RSMo and armed criminal 571.015, action, Following RSMo 1986. § Buckles, holding of State v. 914, (Mo.banc 1982), cited cases therein, Appeals, Court of District, judgment. Western affirmed the ad- prohibiting the rule Buckles reaffirms mission of of the victim’s evidence violence, known to the incident, the time of the defen- justifiably dant’s assertion apprehension bodily harm. reasonable affirming judgment, After the court case to this Court for reex- transferred the Today amination law. this Court holding Buckles, abrogates the reverses judgment, and remands the case for new trial. challenge

Appellant does the suffi- ciency evidence. The evidence that, February appel- showed Todd, companion, lant and a David visited Sedalia, Oldenburg’s apartment Sheila arrived, Missouri. Olden- When victim, Larry Tyler, burg and the former Oldenburg boyfriend and father of her child, 121 A.L.R. sitting against defendant, others than were with the child on a couch (1939). In Duncan this Court living apartment. in the room of the excluding noted two bases for Appellant Oldenburg whether she asked com- the victim’s Oldenburg baby replied could sit him. (1) parties: character mitted not. Todd that she could As *3 judged by general and should be the tenor prepared apartment, Tyler leave to the life, in by episode a a current of not mere appellant twenty asked dollars that about it; (2) specific evidence of acts would and appellant Tyler. Appellant indicated owed collateral issues that likely raise numerous Tyler he for to money that had and trials, surprise lengthen cause unfair would get come and it. witnesses, to and the minds of divert dispute as to subse- While factual exists jurors issue. Id. at 868. from main events, dispute ap- that quent there is no rule in This followed the enunciated pellant Tyler with a maul hit several times Maggitt, 517 S.W.2d Duncan State v. object. handle similar As result of or 105, (Mo.banc 1974), recently and most 107 injuries beating and Tyler suffered brain Buckles, 636 reiterated the rule in later, approximately died three weeks on (Mo.banc 1982): 914 S.W.2d 3, March 1989. of can be On the issue self-defense there of the rule that evidence of the no doubt At the defense of appellant trial asserted reputation for and deceased’s turbulence The self-defense. trial court instructed is as relevant to show violence admissible murder, degree voluntary jury on second and aggressor who was the whether involuntary manslaughter, manslaughter, apprehension danger of exist- reasonable action, armed and self-defense. criminal by ed; proved must but such evidence appellant guilty of jury The found volun- general reputation testimony, specif- not manslaughter ac- tary and armed criminal violence, ic must acts of and defendant tion. show he knew of such when appeal, appel In the first on issue apprehension. is the issue reasonable right he to lant claims that was denied Id. at 922. a fair when the trial court excluded holdings on issue jurisdictions’ Other Larry Tyler's prior act of vio evidence of arguments additional include Appellant con against lence David Todd. excluding specific of the victim’s evidence tends that the evidence was relevant acts of violence committed appellant’s claim of self-defense because Compilation provides princi- parties. five act; prior knowledge had present pal retaining the rule: reasons for therefore, have demon the evidence would (1) exceptional, single may act have been A justifiably in strated that uncharacteristic; an isolated and unusual bodily apprehension of harm. reasonable picture episode provide true does long adhered to the rule potential person. of a The character specific of the victim’s acts of evidence Duncan, prejudice great. is See unfair having with the de- violence no connection State, 868; 467 Henderson v. inadmissible. State v. Dun- fendant is See (1975); 827, 218 615 234 Ga. S.E.2d (Mo.1971), can, and 867-68 (Iowa Jacoby, 260 N.W.2d State v. has followed cases cited therein.1 Missouri 1977). (2) could collateral issues Numerous re- general what had until raised, lengthy been resulting in a trial. See Annotation, cent Admissibil- (3) might decades. See cloud the issues id. Collateral (or jury. The ity on issue and confuse the real issues defense of of self-defense another), or charac- prosecution homicide led to consider on could be in con- assault, specific ter infer that the victim acted evidence acts (4) deceased, assaulted, former conduct. formity with See id. person or aware of victim's the defendant was Although contains the most State Duncan present- thorough the issue recent discussion of violence. case, claim Duncan ed in there was no anticipate prepare an subject state cannot imminent attack every specific prior rebut act of violence of is a reasonable belief. The defendant’s Henderson, therefore, mind, See a deceased victim. state of is critical. The 615; Jacoby, paramount purpose S.E.2d at 260 N.W.2d at 838. rules of evidence is (5) Since the state cannot introduce to ensure that of fact will evi- the trier reliable, past relevant, dence proba- of the defendant’s acts of vio- before it all lence, permit- dispute. the defendant should not be tive issues in Tribble, ted to benefit from evidence of 428 A.2d at 1085. Since the defen- To significance, victim. allow the evidence cre- dant’s state of of such mind is ates a important double standard favorable to the it is be able to State, See Williams v. defendant. her relate reasons for his or state of mind. *4 Smith, 503, (Tenn.1978). v. 99, 505 State App.3d S.W.2d 10 Ohio 460 693, (1983). N.E.2d 696-97 “The fact that reveals, An examination of recent cases creating apprehension the circumstance is a however, that jurisdictions several that had acts, single act or series of instead of a long adhered to of the rule evidence Mis- general character, necessarily not does de- souri has followed have abandoned the stroy capacity apprehension.” its to create See, e.g., Fontes, Commonwealth v. rule. Tribble, 1084 2 (quoting 428 A.2d at J. 733, 760, (1986); 396 Mass. 488 N.E.2d 762 Wigmore, Evidence, (3d 248 at 61 ed. § Tribble, State v. 1079, A.2d 428 1085 1940)). the Knowledge recently victim Miller, People (R.I.1981); v. 543, 39 N.Y.2d engaged specific of likely violence is 841, 741, 848, 349 N.E.2d 384 N.Y.S.2d 748 greater to have effect a defendant’s (1976). The trend of decisions is toward knowledge state of mind than of the vic- evidence, of admission such now the rule in general tim’s for violence. majority jurisdictions.2 of Fontes, 488 “A N.E.2d at 763. demonstrat- Although underlying the capacity considerations ed for acts extreme violence the rule prohibiting specific admission of will quickly no doubt instill a fear more acts of violence persons deeply are more than a veiled threat or knowl- valid, compelling edge there are adopt reasons to of a generally proclivity.” violent prosecuted Miller, 847, majority the rule. A defendant 349 384 N.E.2d at N.Y.S.2d at claim, may for homicide or jury assessing assault as a 747. “A the reasonableness defense, that use physical upon force the defendant’s reaction to the events alleged leading victim was not unlawful because it to the should in homicide fairness Fontes, necessary protect himself or others information.” 488 563.031, from the aggression. highly probative N.E.2d at 763. na- § “[T]he may RSMo A 1986. defendant appro- assert ture of such relevant in an defense, however, case, only priate outweighs any prejudice where his belief far State, (Alaska 80, (1934); App. Jennings, 2. Amarok v. 671 P.2d 882 P.2d 96 Mont. 448 Bur 28 1983); 221, 43, State, (1986); Young, geon State v. Ariz. v. 109 508 P.2d 51 102 Nev. 714 P.2d 576 State, (1973); 168, 708, McCarter, v. 277 Ark. 639 State v. 93 N.M. 604 P.2d 1242 Halfacre (1982); (1980); 543, Miller, People Wright, People S.W.2d 734 v. 39 39 N.Y.2d Cal.3d v. 349 576, 212, 841, 848, 741, (1985); Cal.Rptr. (1976); 217 703 P.2d 1106 N.E.2d 384 N.Y.S.2d 748 236, 66, Barbour, People Lyle, v. 200 Colo. 613 P.2d 896 State v. 243 S.E.2d 295 N.C. 380 (1980); 83, State, (1978); Smith, 99, App.3d v. Del. 50 123 A.2d 461 State v. Ohio 10 460 Ruffin (1956); States, State, (1983); Johns v. 434 A.2d N.E.2d v. United 463 693 Harris 400 P.2d 64 Smith, 1965); Stewart, (D.C.App.1981); (Okla.Cr.App. State v. 573 So.2d 306 Commonwealth v. (Fla.1990); 510, 176, (1978); Basque, 66 State v. Haw. 666 483 Pa. 394 A.2d State v. Trib 968 Adams, (1983); ble, (R.I.1981); State, People Ill.App.3d P.2d 599 v. 71 428 Williams v. A.2d 1079 70, 277, State, (1979); (Tenn.1978); 27 Ill.Dec. N.E.2d Medina v. 388 1326 503 State, (Ind.1991); 1982); Randolph (Tex.Cr.App. Holder v. 1250 571 N.E.2d 639 S.W.2d 947 v. Edwards, Commonwealth, 256, (La.1982); State v. 663 420 So.2d Wil 190 Va. 56 S.E.2d 226 State, 338, 195, (1949); Md.App. Wash.App. Upton, v. liamson (1975); 25 333 A.2d 653 State v. 16 556 Fontes, Louk, 639, (1976); Commonwealth v. 396 Mass. P.2d 239 State v. 171 W.Va. 733, Daniels, (1986); (1983); People Kerley, 488 N.E.2d 760 301 S.E.2d 596 v. 160 95 74, 85, (1991); (1980); Mich.App. 883 Wis.2d State v. Goet 289 N.W.2d State v. 465 N.W.2d 633 tina, 420, (1945). Irby, (Minn.App.1985); Wyo. 368 N.W.2d 19 State v. 61 158 P.2d 865 may proof evidence.” court caused the admission of such decline admit Tribble, at 428 A.2d 1084. into evidence. Id. adopt pro- rule is not so To The trial court must caution the present departure from Missouri’s found a jury that the is to be considered appear. might as first rule courts regard to solely with reasonableness evidence of currently admit the victim’s apprehension the defendant’s that the vic upon defendant. bodily upon tim was about to inflict harm See, Hafeli, e.g., State defendant, purpose not for the (Mo.App.1986). distinguish To be- establishing probably the victim tween acts directed at the defen- violent conformity prior acts with of violence. persons dant and acts directed toward third Tribble, 1085; Miller, 428 A.2d knowledge is a of which 747. N.E.2d at 384 N.Y.S.2d at distinction; significant factor is blurred trial court should caution the that the awareness at the time of defendant’s character of the deceased and de past the incident of the victim’s violent past are not ceased’s violent acts behavior, target violence. otherwise relevant to the issues before

Miller, 349 N.E.2d at 384 N.Y.S.2d at them. *5 within the trial court’s discre Also Weighing the under considerations responsibility place tion rests the to limita rules, in lying minority the and prior to tions on the extent which violent conjunction present authority with proved. may be While the defendant general question the of of on admission permitted his should be to substantiate behavior, evidence relevant to the victim’s it justification claim of informs the present concludes the Mis this Court that on jury the state of the defendant’s mind at abrogated. souri rule should be Where incident, thereby the the time of and en case, justification is an issue in a criminal jury decide whether defendant ables the to may permit court a to the trial circumstances, rationally acted under the prior spe introduce of the evidence victim’s the trial court should not allow the of the cific acts violence of which defen progress of a criminal trial to become un knowledge, provided the acts dant had that by necessarily evidentiary slowed conflicts sought reasonably be to established are questionable over matters of relevance. to the crime the defen related with which charged. dant is Having and reexamined the law con appropriate adopt rule an

To the extent that this Court has cluded it changed rule, nounced, is it new discretion in left determine vests application appellant In the new in this case should the trial court. of whether granted Arguing The a trial. courts must exercise caution. new trial, lay proper grant of a the state contends defendant must a foundation new evidence would have the evidence can be admitted. Oth that the additional before merely and would not must raised the been cumulative competent er Fontes, of changed jury’s perception ap question of 488 have self-defense. must claim. The state pellant’s N.E.2d at 763. The defendant show self-defense it evidence of the act or notes that the had before that he was aware Tribble, 428 at violent when intoxicat of A.2d victim was violence. ed, in was intoxicated must not be too remote that the victim incidents incident, appellant as of and that quality and must such to be time time knowledge response in capable contributing to the defendant’s his Miller, relies reputation. N.E.2d at The state fear of the victim. Minor, (Mo.App. at 747. Where acts are 384 N.Y.S.2d “[a]ny the court held that quality in or a substan In Minor too remote time excluding testimony is harmless tially the act the defen error in different from import is committing, testimony similar subse the where dant accuses the victim of quently objection.” Tyler Appellant Id. minutes. feared that was introduced without seriously going to kill or hurt him because at 320. drunk, Tyler Ty- and knew was by the state The evidence cited includes reputation being “crazy” he ler’s when Oldenburg testimony Ty- of Sheila Tyler was drunk. Even after lost reputation being for sometimes ler had a knife, de- appellant believed was consuming alcohol violent when and that Tyler fending himself because continued anything could “set him off.” Ol- almost fight back. testified denburg also that she had dis- changing the In view of the reasons for Tyler’s appellant’s cussed im- testimony rule of of “similar presence. Tyler She testified that had port” not introduced. The defense was drinking apart- been when he arrived at the upon appellant’s he was founded belief that evening beating ment the and that attack, subject to an imminent engaged argument he an with another that his was reasonable. In addition- belief apartment man at her before ar- appellant’s al defense of self- previous year rived. Within the she had defense, appellant sought, through pretrial Tyler weap- seen with club similar to proceedings proof offer at the by appellant. on used trial, conclusion of to introduce evidence of concerning Ty- others testified Several Todd, Tyler’s prior violence to David during ler’s condition and behavior the eve- person accompanied appellant who to Ol- ning neighbor beating. A who ad- denburg’s apartment. Appellant offered ministered first aid testified that she deposition testimony by Oldenburg Sheila police smelled alcohol on him. Two offi- that several months to the incident Tyler appeared cers testified that intoxicat- Oldenburg Tyler push open witnessed ed. Tyler The doctor who first treated swing door at Todd’s house and David *6 the emergency room testified that he “was by appellant similar the one in club to used us, fairly belligerent, combative to abusive Tyler. Tyler his attack on struck Todd nursing toward us and the staff” and that and, perhaps, person. According another strong “he had a odor of alcohol on his proof, appellant to the offer of would also “obviously breath” and was intoxicated.” he have testified that was aware of the police The hospital were summoned to the incident. Tyler “starting because was to be combat- proffered by The if believed ive.” jury, probative question would on the be Appellant support testified in of his claim apprehen- of defendant’s reasonableness he in According self-defense. safety. sion for his This cannot own his testimony, Tyler he did not know that significant proba- conclude that there is no Oldenburg’s would apartment. be at When bility jury might that the have credited the appellant Tyler appeared arrived in- to be justification apprised defense of had it been appellant apart- toxicated. When left the prior specific act of violence. ment, Tyler him hallway followed into the above, knowledge As noted the victim swing and commenced to a club at him. recently engaged specific in vio- After the third blow knocked the in likely lence is to instill fear the mind of Tyler’s Tyler club from hands and returned quickly deep- the defendant more and more Appellant to the kitchen. followed him. ly knowledge general than of the victim’s Tyler grabbed large a Appellant knife. Fontes, 488 for violence. hallway went back into the retrieved 763; Miller, 349 N.E.2d at N.E.2d at Tyler the club. came after him awith consequence, a 384 N.Y.S.2d at 747. As club, swings knife. After several with the perceptions and the state of mind of the Tyler’s knocked the knife from participants in the altercation are critical fight hands. The moved into the kitchen justification. the defense Under these living Appellant circumstances, and then into the jury permit- room. should Tyler hit proof four to times with the seven club ted to consider took, most, fight Tyler’s prior and the entire four attack was aware of violent 218 victim, above, Tyler, person, a third Larry it within the As noted is Todd. quali- This determine the ex- one David Todd. claim does not

trial court’s discretion to charge in which a error fy manner as of reversible tent to which and may proved. exclusionary ruling incident court’s rule of evi- consistent with traditional point, Appellant raises second in of a vic- dence Missouri that evidence may Appellant arise on retrial. which having no tim’s in the trial court erred submit claims that is the defendant inadmissi- connection with patterned ting jury instruction after Duncan, 467 S.W.2d 866 ble. State v. 3d 302.04. In that instruction MAI-CR. (Mo.1971); 517 Maggitt, S.W.2d State is de “proof beyond a reasonable doubt” 1974); Buckles, (Mo.banc 636 proof jurors fined as which leaves 1982).1 (Mo.banc S.W.2d guilt. “firmly of the defendant’s convinced” accomplish im- Appellant In order to its reversal and contends that definition proof remand, permissibly majority abrogates the standard of lowers the tradi- in imposed upon state a criminal case. by deference rules tional Missouri rule consistently appel rejected This Court employed jurisdictions. in other of evidence Wacaser, argument. State v. lant’s See per- The rationale of those rules does not (Mo.banc Ap concededly an five suade override pellant’s point is without merit. second majority, at valid recited reasons The rule. judgment is reversed and the cause The majority’s although purporting to new is remanded new trial. court,” is discretion in the trial vest “new accompanied that the by a caveat courts ROBERTSON, C.J., and HOLSTEIN application “must exercise caution” BLACKMAR, JJ., concur. gives then the new rule. HIGGINS, Judge, Senior dissents requiring pre- directions in seven situations separate opinion filed. re- cautionary instructions to with No such admo- spect its considerations. RENDLEN, HOUSER, J., and Senior the trial court’s nitions or limitations on dissenting concur in Judge, dissent and necessary discretion have been considered HIGGINS, Judge. opinion of Senior *7 existing Be- administering rule. BENTON, J., participating necessity the new nu- cause under case not member of the Court when issues will be raised merous collateral submitted. engaged various where the victim parties in previous encounters with HIGGINS, dissenting. Judge, Senior attempts violent and to demonstrate his will, turn, dissent, respectfully, I from the cause turbulent nature. This and to be opinion lengthened, in its reversal conviction issues clouded trials new for trial. A trial could be juries remand to be confused. to a trial subverted and converted thus of volun- N. Waller was convicted Paul trial of the defen- the victim instead re- tary manslaughter Larry Tyler and dant. action. He concedes armed criminal lated sufficiency sustain his of evidence to nullify the use case to I would not convictions. overrule the cases Missouri rule and n applied consistently and without it nevertheless, claims, Waller would, instead, continue to difficulty. I new be awarded a trial because should “sound, practical and recognize rule as proffered court excluded defendant’s 869, and, Duncan, logical,” prior of violence act discussion, contrast, application, provide distinction By way See 1. Missouri does S.W,2d 524, (Mo.App. Hafeli, a victim’s acts of of evidence of admission personally. if directed to the defendant unchallenged sufficiency of on the evi-

dence, judgment of affirm the conviction.

SCHOOL DISTRICT OF RIVERVIEW

GARDENS, al., Appellants, et COUNTY,

ST. LOUIS et

al., Respondents.

No. 73625.

Supreme Missouri, Court of

En Banc.

Sept. *8 Tueth, Schlafly,

Thomas E. Thomas F. Louis, appellants. St. Webster, Gen., Atty.

William L. B.J. Jones, Gen., Atty. City, Asst. Jefferson respondents. Bean, Cherrick, B. An-

Bourne Jordan Mello, Mayfield, drew B. James E. St.