Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF STONE COUNTY Honorable Jack
Goodman, Circuit Judge
JEFFREY W. BATES, P.J.
jury trial, Howard Gott (Defendant) was convicted of
second-degree assault and armed criminal action. Although
Defendant presents ten points on appeal, the alleged errors
fall into two groups: challenges to the admission of various
statements pursuant to the excited-utterance exception to the
hearsay rule (Points 1 through 4); and challenges to the
admission of evidence relating to Defendant's
post-Miranda silence in violation of Doyle v.
Ohio, 426 U.S. 610 (1976) (Points 5 through 10). We
affirm because: (1) we find no abuse of discretion in the
admission of the challenged statements as excited utterances;
and (2) Defendant "opened the door" to the
State's references to Defendant's
and Procedural Background
the evidence in the light most favorable to the verdicts.
State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc
2009); State v. Johns, 34 S.W.3d 93, 103 (Mo. banc
2000). Viewed from this perspective, the following evidence
was adduced at trial.
Larry Morris (Victim), John Carter (Carter) and Carl Dean
(Dean) went fishing on Bull Shoals Lake. They departed from
the Nolan's Point boat landing in two boats. Victim and
Defendant were in one, while Carter and Dean were in the
other. Victim and Defendant fished anywhere from one and
one-half miles to ten miles away from Nolan's Point. The
two boats initially remained close, but they ultimately
separated to the point that the fishermen in one boat could
not see the fishermen in the other boat.
moved to the back of the boat where Victim was fishing and
asked to use his new fishing pole. As Victim and Defendant
exchanged poles, Jerry Maggard (Maggard) sat on the lakeshore
fishing and made small talk with Victim. Shortly after Victim
and Defendant exchanged poles, Defendant cut the right side
of Victim's throat with a knife. Defendant continued to
stab Victim in the neck, arm, chest, thumb, hand and face.
Victim fought back, asking "why" and telling
Defendant to stop. Victim yelled at Maggard to call 911, but
Defendant did not speak.
dropped his knife at some point during the struggle, and
Victim kicked Defendant into the lake. After Victim wrapped
his sweatshirt around his neck as an impromptu tourniquet, he
drove the boat back to Nolan's Point. He met the owners
of Nolan's Point Resort, Sherry Lease (Sherry) and Ron
Lease (Ron), and asked them for help. Victim told Sherry and
Ron that his friend had tried to kill him. Victim then asked
Ron to call Carter and Dean, and inform them of Victim's
location. Carter and Dean soon arrived at Nolan's Point,
and Victim told them that Defendant had cut his throat.
Victim was taken to Cox Hospital in Springfield by
helicopter, where he was in surgery for several hours. His
wounds were closed using stitches and approximately 85
law enforcement officers arrived, Carter and Dean transported
two officers on the lake by boat to find Defendant. The
officers arrested Defendant and read him his Miranda
rights. Defendant was charged with first-degree assault and
armed criminal action. He was convicted of the
lesser-included offense of second-degree assault and armed
criminal action. This appeal followed. Additional facts
necessary to the disposition of the case will be included
below as we address Defendant's ten points.
1 through 4 - Excited-Utterance Exception to Hearsay
first four points claim that certain statements Victim made
to Sherry (Point 1), Ron (Point 2), Dean (Point 3) and Carter
(Point 4) were improperly admitted at trial under the
excited-utterance exception to the general prohibition
against hearsay evidence.
court's decision to admit hearsay evidence is reviewed
for an abuse of discretion. State v. Hosier, 454
S.W.3d 883, 896 (Mo. banc 2015). A trial court abuses its
discretion when "a ruling is clearly against the logic
of the circumstances and is so unreasonable as to indicate a
lack of careful consideration." State v.
Gonzales, 153 S.W.3d 311, 312 (Mo. banc 2005). We will
not reverse for an error in the admission of evidence unless
"there is a reasonable probability that the error
affected the outcome of the trial." State v.
Shelton, 314 S.W.3d 769, 773 (Mo. App.
hearsay statement is any out-of-court statement that is used
to prove the truth of the matter asserted and that depends on
the veracity of the statement for its value." State
v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997). A
hearsay statement is generally inadmissible unless it falls
within a recognized exception. Id. The
excited-utterance exception applies "when: (1) a
startling event or condition occurs; (2) the statement is
made while the declarant is still under the stress of the
excitement caused by the event and has not had the
opportunity to fabricate the story; and (3) the statement
relates to the startling event." State v.
Hedges, 193 S.W.3d 784, 788 (Mo. App. 2006). "The
essential test for admissibility of a spontaneous statement
or excited utterance is neither the time nor place of its
utterance but whether it was made under such circumstances as
to indicate it is trustworthy." State v. Van
Orman, 642 S.W.2d 636, 639 (Mo. 1982). When statements
are "made under the immediate and uncontrolled
domination of the senses, and during the brief period when
considerations of self-interest could not have been fully
brought to bear by reasoned reflection, the utterance may be
taken as trustworthy and received as testimony."
Hedges, 193 S.W.3d at 788.
Among the factors to be considered [in determining whether an
excited utterance exists] are  the time between the
startling event and the declaration,  whether the
declaration is in response to a question,  whether the
declaration is self-serving, and  the declarant's
physical and mental condition at the time of the declaration.
While no one factor necessarily results in automatic
exclusion, all should be considered in determining whether
the declaration was the result of reflective thought.
Bynote v. Nat'l Super Markets, Inc., 891 S.W.2d
117, 122 (Mo. banc 1995) (brackets in original).
challenges the admission of Sherry's testimony that
Victim said his "buddy had tried to kill him." At
trial, Sherry testified that she and Ron "heard a truck
and trailer come up the launch road real quickly and a fella
got out of the truck and asked us to call 911 because he had
been stabbed on the lake." Victim "had a shirt or
jacket or something wrapped around his neck and he was just
covered in blood." Victim "was very scared …
pretty agitated, upset." When asked whether Sherry had
heard Victim say anything, Defendant asserted a hearsay
objection. The court overruled the objection "based upon
excited utterance." Sherry then testified that Victim
"said that his buddy had tried to kill him."
trial court did not abuse its discretion in allowing Sherry
to testify about Victim's statements to her. The evidence
supported the inference that Victim's statements were
made 10-20 minutes after he was stabbed. The statements were
made spontaneously, rather than in response to questions.
Victim's statements were not self-serving. In the context
of a criminal case, the self-serving factor focuses on
exculpatory statements by a defendant that are the result of
reflective thought. See State v. Williams, 673
S.W.2d 32, 35 (Mo. banc 1984); State v. Gray, 347
S.W.3d 490, 501 (Mo. App. 2011); State v. Thomas,
272 S.W.3d 421, 429 (Mo. App. 2008); State v. Smith,
265 S.W.3d 874, 878 (Mo. App. 2008); State v.
Stottlemyre, 752 S.W.2d 840, 843 (Mo. App. 1988);
State v. Boyland, 728 S.W.2d 583, 585-86 (Mo. App.
1987). A victim's identification of the defendant as the
perpetrator of the crime is not self-serving. See,
e.g., State v. Dixon, 495 S.W.3d 812, 819-20
(Mo. App. 2016); State v. Turner, 420 S.W.3d 666,
670-71 (Mo. App. 2014). Victim's mental and physical
state at the time support the conclusion that he was under
the immediate and uncontrolled domination of his senses when
he made the statements. Van Orman, 642 S.W.2d at
639. Therefore, the trial court did not abuse its discretion
in admitting Victim's statements to Sherry pursuant to
the excited-utterance exception to the hearsay rule. Point 1
challenges the admission of Ron's testimony that Victim
said his buddy had tried to kill him and was crazy. At trial,
Ron testified that Victim was "bleeding all over
… bleeding really bad" and "looked like he
was in pain a lot." Every time Victim would talk, blood
"would squirt out." Victim was nervous and
"kept saying he was scared, you know, like he was going
to not make it." Ron testified that, "[a]s soon as
I saw him first thing when he got out of the truck walking
toward me he said, My f-ing buddy tried killing me. He said,
he is f-ing crazy. That was his first statement to me."
court's discretionary ruling to admit evidence is
presumed correct, and the burden is on Defendant to overcome
that presumption. See State v. Adams, 443 S.W.3d 50,
53 (Mo. App. 2014). Defendant did not object to any of
Ron's testimony, so Point 2 may only be reviewed for
plain error. An appellate court's decision to
engage in plain error review is discretionary. State v.
Dean, 382 S.W.3d 218, 223 (Mo. App. 2012). Because
Victim's statements to Ron ...