State v. Bell

83 S.W.3d 670, 2002 Mo. App. LEXIS 1591, 2002 WL 1610277
CourtMissouri Court of Appeals
DecidedJuly 23, 2002
DocketNos. ED 75683, ED 80029
StatusPublished
Cited by3 cases

This text of 83 S.W.3d 670 (State v. Bell) 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
State v. Bell, 83 S.W.3d 670, 2002 Mo. App. LEXIS 1591, 2002 WL 1610277 (Mo. Ct. App. 2002).

Opinion

CLIFFORD H. AHRENS, Judge.

Winston Bell-Bey (“movant”) appeals the judgment of the motion court denying his motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15 on the merits after an evidentiary hearing. In his motion, movant claims he was denied effective assistance of counsel because his trial counsel opened the door to hearsay evidence that movant previously abused his wife, Fay Allen (“victim”). Movant also filed a motion to recall the mandate concerning the direct appeal of his conviction, which was consolidáted with this appeal.1 In this motion, movant asks the court to recall the mandate issued in Bell II. We affirm the judgment of the motion court and deny the motion to recall mandate.

On June S, 1994, a 911 emergency call was received from victim requesting help and stating that movant had set her on fire. Police and paramedics arrived at victim’s home and determined that victim was alert and oriented. Victim told them that movant had poured gasoline on her and set her on fire. She suffered second and third degree burns over ninety-one percent of her body and died two weeks later from resulting complications. Mov-ant was charged with one count of murder in the first degree and one count of armed criminal action. His first jury trial resulted in a conviction on both counts. When the jury could not reach a verdict on punishment, the trial court sentenced movant to death for the first-degree murder count and seventy-five years for armed criminal action. The Missouri Supreme Court reversed the conviction based upon the admission of victim’s statements to others regarding prior abuse by movant. In Bell I, the Supreme Court held these statements inadmissible under the state-of-mind exception to the hearsay rule. State v. Bell, 950 S.W.2d 482 (Mo. banc 1997). The case was remanded to the trial court and retried. Prior to the second trial, a hearing was held concerning the exclusion of any hearsay statements victim made to others. The trial court determined that certain hearsay statements made by victim to others were admissible. Specifically, statements made by victim to a co-worker, Annette Smith (“Smith”) were admissible under the residual hearsay exception. The court found that the statements evidenced movant’s intent, and they were reliable and trustworthy. In the second trial, Smith testified about her observation of injuries to victim and conversations she had with victim concerning acts of abuse by movant. Movant was again convicted of first-degree murder and armed criminal action, and was sentenced to life imprisonment without parole. Movant appealed his convictions based upon the alleged error of the trial court in admitting Smith’s hear[672]*672say testimony regarding movants prior abuse of victim. In Bell II, this court cited portions of the trial transcript of Smith’s direct examination by the state. Specifically, the court noted that the relevant portion of the transcript included the following testimony elicited by the prosecutor:

Q. During that time when you were driving [victim] to work, did you ever observe any injuries to her?
A. Yes.
Q. And could you tell the jury what those injuries were in regard to her face?
A. She had some black eyes. She came in with a busted lip.
Q. The first time you saw [victim] with a black eye, did you ask her how she got that black eye?
A. Yes.
Q. And what did she initially tell you?
A. She told me that her cousin done it.
Q. Was this cousin a male or female according to [victim]?
A. A female.
Q. Did you believe her when she told you that?
A. No, I didn’t.
Q. And did you continue to question her about that?
A. Yes, I did.
[[Image here]]
What did [victim] tell you?
Her cousin done it.
What was the nickname she used for her cousin?
June. i>
[[Image here]]
Q. Can you tell the manner which [victim] told you what her demeanor was like when she was telling you how she got the black eye from June?
A. The second black eye and busted lip she told me June had done it. She was in a down spirit.

The court also noted the following relevant testimony which was elicited on cross-examination by movant’s trial counsel during the second trial:

Q. Now when — excuse me — when [victim] told you initially that her cousin and she had gotten into a fight, you didn’t believe her, right?
A. No, I didn’t.
Q. You, yourself, are a victim of domestic abuse, aren’t you?
A. Yes, I am.
Q. You have strong feelings about domestic violence don’t you?
A. What do you mean strong feelings?
Q. You feel strongly — you have strong personal feelings about it, don’t you?
A. No.
Q. Because of that incident you don’t?
A. No.
Q. Well you felt strongly enough at that time to press [victim], because you thought she wasn’t telling the truth, right?
A. Yes.
Q. Because you believe it was domestic abuse?
A. Yes.
Q. And during that time period of time, how many days past [sic] before [victim] told you that [movant] had done it the first time?
A. It was the second time she came in with a black eye.
Q. Which was a few weeks later?
A. Yes.
Q. And during that time, you pressed her continuously?
[673]*673A. Yes.
Q. You kept going over and over at her every day, tell me what happened, tell me what happened?
A. Not every day, but I asked her.
Q. Over that course of a two week period, you continued to press her over and over again, didn’t you?
A. I asked her.
Q. Sometimes more than once a day?
A. I wasn’t counting the times I asked her.
Q. Weren’t there days you asked more than one time?
A. I can’t remember.
Q. All right, but you pressed her. You asked her over that two week period?
A. I asked her, yes.
Q. During that two week period, she never changed what she said.

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Related

Smith v. State
267 S.W.3d 829 (Missouri Court of Appeals, 2008)
Bell-Bey v. Roper
499 F.3d 752 (Eighth Circuit, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
83 S.W.3d 670, 2002 Mo. App. LEXIS 1591, 2002 WL 1610277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bell-moctapp-2002.