State v. Wells

940 S.W.2d 30, 1997 Mo. App. LEXIS 339, 1997 WL 87264
CourtMissouri Court of Appeals
DecidedMarch 4, 1997
DocketNo. WD 52914
StatusPublished
Cited by2 cases

This text of 940 S.W.2d 30 (State v. Wells) 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. Wells, 940 S.W.2d 30, 1997 Mo. App. LEXIS 339, 1997 WL 87264 (Mo. Ct. App. 1997).

Opinion

SPINDEN, Judge.

Anthony Wells appeals his conviction of two counts of first degree robbery and two counts of armed criminal action. He charges the circuit court with four points of error: (1) excluding from evidence a co-participant’s statement that Wells did not commit the robbery; (2) not admitting a police report indicating that an identification witness was uncertain of her identification; (3) not allowing Wells to testify as to how much he had in Ms bank account at the time of the robbery; and (4) admitting into evidence a gun recovered from a co-participant.' We find no error and affirm his convictions.

Wells does not contest the sufficiency of the state’s evidence. The state charged Wells with being one of two persons who used a revolver to take a ear and cash from its owner at a carwash in Kansas City on October 24, 1994. The state also charged Wells with using a gun on October 26, 1994, to take cash from a person who had just withdrawn the cash from an automatic teller machine in Kansas City.

In his first point, Wells complains that the circuit court erred in refusing to let the jury hear a statement by Kevin Shelton to a police detective that he was present when one of the robberies occurred and that someone other than Wells committed it. The circmt court declared that Shelton was not available as a witness after Shelton invoked Ms constitutional right not to incriminate himself. Wells offered Shelton’s statement, but the circmt court rejected it on the ground that the statement did not have sufficient indicia of reliability. As an offer of proof, Wells proffered the testimony of the police detective who had received the statement:

Q [Did Kevin Shelton] make a statement that would have implicated him [in the October 26th robbery]?
A Yes. He stated that he was present when the robbery occurred.
Q And he also indicated that he knew the robbery had occurred and he drove the car away; is that right?
A Correct.
[32]*32Q Now, during that interview, did he indicate who the person was that committed that robbery?
A Yes. He identified him as an individual known to him as Gordon Nelson.
Q Did he describe Gordon Nelson?
A Yes, he did.
[[Image here]]
Q Now, did you also during that interview show Mr. Shelton ... a picture of Anthony Wells?
A Yes, I did.
Q And what did he indicate when you showed him that picture?
A He indicated that he did not know the individual in the picture.
Q And that he was not the one that committed the robbery?
A That’s what he stated.

In cross-examination, the detective testified:

Q [W]ho did Kevin Shelton — what name did he first give you?
A He initially identified himself as Wesley Augmen.
[[Image here]]
Q After he lied to you about his name, then he told you that he was there at the robbery; is that correct?
A Correct.
Q But he was in the car not paying any attention to what was going on?
A Yes, that’s what he stated.
Q And that this man who robbed the victim jumped in the car and told him to drive off; is that correct?
A Yes, that is accurate.
Q So he was not an active participant in the robbery?
A No, not in the robbery itself.
[[Image here]]
Q Never able to give you an address for Mr. Nelson?
A No.1
Q Were you able to track down this Gordon Nelson?
A No. I made some attempts, but I did not find any individual under that name that matched the identifiers that he had provided me.
Q Okay. So you were unable to verify his account of the story?
A Right.

As an out-of-court statement offered to prove the truth of the matter asserted, Shelton’s statement was hearsay. State v. Shunt, 866 S.W.2d 447, 457-58 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). Wells asserts that Shelton’s statement was a declaration against penal interest and should have been admitted. Missouri courts reject the notion that a declaration against penal interest should be admitted in a criminal case unless “substantial indicia of reliability appear and declarant’s complicity if true would exonerate the accused.” State v. Turner, 623 S.W.2d 4, 9 (Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982)(empha-sis in original omitted). From Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), Missouri courts have recognized these indicia as the standard for judging admissibility of the purported declaration against interest: (1) the confession was self-incriminatory in a real sense and was unquestionably against interest; (2) the declarant made the statement spontaneously to others; and (3) other evidence in the case corroborated the statement. State v. Blankenship, 830 S.W.2d 1, 7 (Mo. banc 1992). None of these indicia of reliability describe Shelton’s statement.

It was not self-incriminatory in a real sense. Shelton did not admit that he actually committed the robberies — only that he was present and knew who committed it. He claimed that Gordon Nelson jumped in the car and told him to drive away. As the Supreme Court noted in Blankenship:

Even if [the declarant’s] alleged statement implicates him as an accessory, the portion of his statement suggesting his own complicity is distinguishable from that aspect of his statement in which he names the others who actually committed the crimes. The disserving aspect of [the declarant’s] statement is inconsequential. The only [33]*33significant aspect of [the declarant’s] statement and the only purpose for which it was offered was to establish the identity of others who actually committed the crimes.2 The portion of the statement in which [the declarant] named those who committed the actual robbery and murders is not against [the declarant’s] interest. That portion is either neutral or selfserving in nature.

Id. at 8. We have no evidence that Shelton made the statement at or near the time of the incident to others, and nothing in the record corroborates his statement. Moreover, Shelton lied to officers about his name, and he could not tell officers where Gordon Nelson lived. The circuit court did not err in rejecting Wells’ proffered testimony.

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Related

State v. Riggins
987 S.W.2d 457 (Missouri Court of Appeals, 1999)
State v. Neely
979 S.W.2d 552 (Missouri Court of Appeals, 1998)

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Bluebook (online)
940 S.W.2d 30, 1997 Mo. App. LEXIS 339, 1997 WL 87264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wells-moctapp-1997.