State v. Smoot

363 S.W.3d 108, 2011 WL 6776068, 2011 Mo. App. LEXIS 1709
CourtMissouri Court of Appeals
DecidedDecember 27, 2011
DocketNo. ED 95499
StatusPublished
Cited by5 cases

This text of 363 S.W.3d 108 (State v. Smoot) 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. Smoot, 363 S.W.3d 108, 2011 WL 6776068, 2011 Mo. App. LEXIS 1709 (Mo. Ct. App. 2011).

Opinion

KENNETH M. ROMINES, J.

This case involves the admissibility of an audio recording.

Background and Procedural History

Kenneth Smoot (Appellant) was convicted of one count each of forcible rape and forcible sodomy and was sentenced to concurrent life terms without the possibility of parole as a persistent sexual offender. The convictions were the result of an attack Appellant perpetrated against L.L. (Victim). Appellant was 49 years old at the time of the attack and Victim was 74 years old.

Appellant had known Victim almost all of his life, having grown up with her children. For an unspecified time prior to and at the time of the attack, Appellant was homeless. Prior to the attack, Victim had allowed Appellant to come to her house to use her bathroom, she would cook him meals, and on the coldest nights, she permitted him to sleep on the couch in her living room.

Appellant was having lunch with Victim at her home on 2 March 2009 when something during their conversation made him angry. Appellant made an aggressive [110]*110move towards Victim which prompted Victim to go to her kitchen phone to call 9-1-1. Appellant slammed the phone down before Victim could complete the call and would not allow Victim to call from another phone in the house. When Victim started towards the front door to leave, Appellant grabbed her, pushed her down and proceeded to forcibly rape and sodomize her. During the entire attack Victim resisted and screamed “stop it.”

Victim testified that during the attack her phone rang and she heard the voice of a friend (Friend) on her answering machine. Friend testified that when she phoned Victim, Victim did not answer but she could hear her yelling “Stop it, stop it, stop it.” Apparently, during the struggle, Victim hit the record button on her answering machine and recorded the attack as the outgoing message. Police heard the recording when they responded to Victim’s residence and made a digital recording which was admitted at trial as State’s Exhibit # 31.

When police responded to her home, Victim told police that “he did this to me,” indicating Appellant. Victim was taken to a local hospital and treated for wounds consistent with a sexual assault against an elderly woman. A rape kit was also performed.

Appellant’s defense at trial was based primarily on a theory of consensual conduct, although he admitted on the stand that he continued to kiss Victim after she told him to stop and that he forcibly sodomized her. He denied forcibly raping her.

In this appeal, Appellant contends that the trial court erred in admitting Exhibit # 81 and allegedly involuntary statements made to police after he was arrested which were admitted at trial for impeachment purposes.

Standard of Review

This Court reviews a trial court’s decision to admit or exclude evidence for abuse of discretion. State v. McKinney, 336 S.W.3d 499, 502 (Mo.App. E.D.2011) (internal citations omitted). The trial court abuses its discretion if its ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration. Id. “Additionally, on direct appeal, this Court reviews the trial court for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” Id. An error is prejudicial only if there is a reasonable probability that but for the court’s error the outcome of the trial would have been different. Id.

Discussion

In his first point on appeal, Appellant claims the trial court erred in admitting into evidence an audio recording made by police of Victim’s outgoing message on her answering machine allegedly recorded during the attack. Appellant argues that the recording included hearsay which was not covered by an exception, and was so prejudicial that it deprived him of a fair trial.

This Court finds that all statements made in the recording, both by Appellant and Victim, were admissible as part of the res gestae of the crime.

Res gestae refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or immediately after the commission of the crime, when the circumstances are such that the statements made were a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement. [111]*111Spontaneous utterances which qualify under the res gestae rule are admissible whether they are those of the defendant, the victim, or third persons and may be testified to in court by the declarant or by persons who heard them. State v. Pflugradt, 463 S.W.2d 566, 572 (Mo.App.1971) (internal citations omitted).

“The essential test for the admissibility of such statements, therefore, is spontaneity.” Id. These statements could not have been more spontaneous in nature as they were made at the time the crime was being committed.

Appellant argues that the State did not lay a sufficient foundation to establish that the recording qualified as a spontaneous utterance. Specifically, Appellant claims the State made no showing that the recording was made at or around the time of the commission of the rape, nor that that the voices on the recording belonged to the Appellant and Victim. Appellant’s argument faces two fatal obstacles. First, to the extent that Appellant argues there was insufficient proof as to when the recording was made, i.e. whether the recording was made at the time of the assault, he has abandoned this basis for objection. “Claims of inadequate foundation will not be considered for the first time on appeal.” State v. Blue, 875 S.W.2d 632, 633 (Mo.App. E.D.1994). Contrary to Appellant’s counsel’s statements at trial, he did not move to exclude Exhibit # 31 through a motion in limine. In his motion in limine, Appellant only moved to exclude the 911 call between Friend and the dispatcher in which Friend recounted the content of Exhibit #31. Nor did Appellant raise this grounds for objection at trial. Appellant’s stated grounds for objection at trial were hearsay, improper foundation as to the identity of the speakers on the recording, and due process and confrontation clause issues. He did not make any mention of the issue of timing. In his subsequent motion for new trial, Appellant again only raised the issues of hearsay and improper foundation as to the identity of the voices on the recording. At no point prior to this appeal did he raise the issue of whether the State had made a sufficient showing that the recording was made at the time of the assault. Foundational objections should not be considered when raised for the first time on appeal because foundational deficiencies can often be easily remedied at trial. State v. Hodges, 998 S.W.2d 572, 574 (Mo.App. S.D.1999). Appellant’s failure to raise this objection means the State was never given the opportunity to remedy this supposed defect. Therefore, this court will not review the issue.

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Cite This Page — Counsel Stack

Bluebook (online)
363 S.W.3d 108, 2011 WL 6776068, 2011 Mo. App. LEXIS 1709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smoot-moctapp-2011.