Henderson v. State

765 S.W.2d 336, 1989 Mo. App. LEXIS 47, 1989 WL 1350
CourtMissouri Court of Appeals
DecidedJanuary 13, 1989
DocketNo. 15688
StatusPublished
Cited by2 cases

This text of 765 S.W.2d 336 (Henderson v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henderson v. State, 765 S.W.2d 336, 1989 Mo. App. LEXIS 47, 1989 WL 1350 (Mo. Ct. App. 1989).

Opinion

FLANIGAN, Presiding Judge.

Movant Benjamin Henderson appeals from the trial court’s order, entered after evidentiary hearing, overruling his Rule 27.261 motion to set aside a judgment and sentence for vehicular manslaughter. The conviction, based on a jury verdict, was affirmed by this court. State v. Henderson, 721 S.W.2d 100 (Mo.App.1986).

Movant’s first point is that he was entitled to relief on his motion, and the trial court erred in ruling otherwise, because movant’s counsel at the jury trial, attorney Ty Gaither, rendered movant ineffective assistance of counsel. The alleged ineffectiveness consisted of the conduct of Mr. Gaither in “failing to preserve for appellate review and precluding from appellate review the erroneous admission into evidence of [Exhibit G] since [attorney Gaither] himself offered [Exhibit G] into evidence, after the state had offered [Exhibit G] into evidence over [attorney Gaither’s] objection, which prejudiced movant by permitting [the] inadmissible hearsay statement into evidence with the appearance that movant acquiesced in its admission.”

Movant’s first point is based on the assumption that Exhibit G was inadmissible. The brief of the state does not challenge that assumption. For the reasons which follow, this court holds that Exhibit G was admissible and that movant was not prejudiced by any conduct on the part of attorney Gaither which may have precluded the issue of the admissibility of Exhibit G from being raised on movant’s appeal from the jury verdict.

The fatal collision, on which the manslaughter conviction was based, occurred on June 14, 1984, at approximately 6:15 p.m. in Springfield. There were four occupants of movant’s vehicle at the time it collided with the vehicle of the victim. Those occupants were movant, his wife Annie Henderson, Jacqueline Swyers, and movant’s young daughter Angie.

Movant did not testify at the jury trial but the theory of his defense was that at the time of the collision Annie Henderson, and not movant, was driving the Henderson vehicle.

At the jury trial Jacqueline Swyers testified that movant was the driver, and her testimony was supported by that of two independent eyewitnesses. Movant’s daughter did not testify. Annie Henderson was present at the trial but invoked the Fifth Amendment and refused to testify.

Officer Ted Hunt obtained a written statement, Exhibit F, from Annie on the evening of June 14. In that statement Annie said that she was the driver. On June 15, 1984, Officer Hunt reinterviewed [338]*338Annie and obtained a second written statement, Exhibit G, from her. In Exhibit G Annie stated that movant was driving at the time of the accident.

Exhibit F was offered into evidence, through defense witness Hunt, by defense attorney Gaither as a “declaration against penal interest.” See State v. Turner, 623 S.W.2d 4 (Mo. banc 1981); State v. Carroll, 629 S.W.2d 483, 485[3] (Mo.App.1981).

On the instant appeal movant argues that Exhibit F was admissible, the state does not dispute that argument and, for present purposes, this court assumes that Exhibit F was admissible. On cross-examination of Officer Hunt, the prosecutor introduced Exhibit G over the objection of attorney Gaither. The contents of Exhibit G were read to the jury by Officer Hunt. At the conclusion of his testimony attorney Gaither offered Exhibit F and Exhibit G into evidence. His conduct in offering Exhibit G is the basis for movant’s instant complaint.

“[Pjrior inconsistent statements of a witness are admissible to impeach or discredit a witness to affect credibility.... Impeachment is not improper in this state on the ground that the impeaching statements are hearsay or that they implicate the defendant in the commission of a crime, or are made out of the presence of the defendant_” (Citing authorities.)

State v. Davis, 566 S.W.2d 437, 450[14] (Mo. banc 1978).

In refusing to testify at the jury trial by invoking the Fifth Amendment, Annie Henderson made herself “unavailable” as a witness. State v. Turner, supra, 623 S.W.2d at 8, n. 4; State v. Brooks, 693 S.W.2d 211, 212[1] (Mo.App.1985). Both Exhibit F and Exhibit G are extrajudicial statements of Annie Henderson. After Exhibit F was received into evidence, Exhibit G was admissible, for impeachment purposes, as a prior inconsistent statement of Annie Henderson, and her unavailability at the trial rendered it unnecessary for the state to lay the foundation of first examining Annie Henderson with regard to the giving of Exhibit G and the circumstances under which it was given. State v. Ivicsics, 604 S.W.2d 773, 780-781[16] (Mo.App.1980); Murphy v. State, 636 S.W.2d 699, 701[5-7] (Mo.App.1982); State v. Yingst, 651 S.W.2d 641, 644[6, 7] (Mo.App.1983); State v. Cole, 547 S.W.2d 494, 496-497[2, 3] (Mo.App.1977). The fact that Exhibit G was given by Annie Henderson after, rather than before, she gave Exhibit F is of no moment. Such was the situation in State v. Ivicsics, supra.

Formidable out-state authority also supports the admissibility of Exhibit G. Carver v. United States, 164 U.S. 694, 17 S.Ct. 228, 41 L.Ed. 602 (1897); U.S. v. Wuagneux, 683 F.2d 1343, 1357-1358 (11th Cir.1982); People v. Collup, 27 Cal.2d 829, 167 P.2d 714 (1946); Mobley v. Lyon, 134 Ga. 125, 67 S.E. 668 (1910); State v. Kline, 11 Ohio App.3d 208, 464 N.E.2d 159, 163, 165[2 — 5] (1983); State v. Hall, 329 S.E.2d 860, 864 — 865[8] (W.Va.1985). See Rule 806, Fed.Rules of Evid.; 3A Wigmore, Evidence, § 1033 (Chad.Rev.1970).

The only objection to Exhibit G made by movant at the jury trial and in his instant brief is that it was hearsay. Under the foregoing authorities, that objection had no validity. Movant’s first point has no merit.

Movant’s second point is that he was entitled to relief on his motion, and the trial court erred in ruling otherwise, because attorney Gaither was ineffective in representing movant at the jury trial “by failing to obtain fingerprints and blood samples from the [Henderson] car, which could have supported movant’s claim that he was not driving the car at the time of the accident.”

Attorney Gaither was not appointed to represent movant in the criminal proceeding until the case, according to movant’s brief, “was almost two months old.” Counsel previously appointed to represent mov-ant had been excused because of a conflict of interest.

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Bluebook (online)
765 S.W.2d 336, 1989 Mo. App. LEXIS 47, 1989 WL 1350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-state-moctapp-1989.