Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable David C.
W. LYNCH, J.
a jury trial, Jose A. Huckleberry, Jr.
("Defendant"), was found guilty of two counts of
felony murder in the second degree, see section
565.021, and one count of burglary in the first degree,
see section 569.160. Defendant waived jury sentencing
and was sentenced by the trial court to life imprisonment for
each of the murder counts, to be served consecutively, and to
15 years in prison for burglary, to be served concurrently.
Defendant timely appeals, claiming the trial court abused its
discretion in excluding several hearsay statements proffered
Generally, a trial court's decision to exclude testimony
is reviewed for an abuse of discretion, granting substantial
deference to the trial court's decision. When reviewing
allegations of improperly excluded testimony the focus is not
on whether the evidence was admissible but on whether the
trial court abused its discretion in excluding the evidence.
This discretion is abused only when the ruling is clearly
against the logic of the circumstances, or when it is
arbitrary and unreasonable. Even if the exclusion of
testimony is erroneous, we will not reverse the judgment
absent a finding that the error materially affected the
merits of the action.
State v. Mort, 321 S.W.3d 471, 483 (Mo.App. 2010)
(internal quotation marks and citations omitted). While not
the ultimate focus of our review, determining that the
proffered evidence is admissible is a necessary prerequisite
to any finding of an abuse of discretion in its exclusion.
See State v. Taylor, 298 S.W.3d 482, 495 (Mo. banc
2009) (no abuse of discretion to exclude inadmissible
multifarious point, Defendant claims the trial court abused
its discretion in excluding hearsay statements purportedly
"incriminating someone else in the homicides"
proffered by him in five separate and different offers of
proof. Eschewing individual analysis of each offer of proof
and its purported admissibility or abuse of discretion in its
exclusion, Defendant generally asserts that all of the
proffered statements in all five offers of proof are
admissible under an exception to hearsay recognized in
Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct.
1038, 35 L.Ed.2d 297 (1973), and discussed and applied by our
supreme court in State v. Hartman, 488 S.W.3d 53
(Mo. banc 2016). "This narrow exception applies to
out-of-court statements that exonerate the accused
and are 'originally made and subsequently offered at
trial under circumstances providing considerable assurance of
their reliability.'" Id. at 57
(quoting Chambers, 410 U.S. at 300, 93 S.Ct. 1038)
excluding the hearsay statements, the trial court expressly
found that "the statements in question do not clearly
exonerate the Defendant in the murder[s.]" Defendant,
however, completely ignores that finding and the
Chambers' exoneration requirement in his point
and argument in his brief on appeal. Rather, Defendant's
brief focuses entirely upon the purported reliability of the
statements as a whole.
courts exclude hearsay because the out-of-court statement is
not subject to cross-examination, is not offered under oath,
and is not subject to the fact finder's ability to judge
demeanor at the time the statement is made."
Taylor, 298 S.W.3d at 492 (internal quotation marks
and citation omitted). The proponent of a hearsay statement
has the burden to demonstrate that the statement fits into a
recognized exception to the hearsay rule. State v.
Reed, 282 S.W.3d 835, 837 (Mo. banc 2009). Defendant,
however, fails to point us to any place in the trial record,
and our ex gratia review finds none, where he
purported to demonstrate to the trial court that any of the
hearsay statements in the five offers of proof exonerate him
of the murders. Similarly, nothing in his brief before this
court purports to demonstrate how each of the hearsay
statements in his offers of proof exonerates him of the
were to engage in an exoneration analysis of all of the
proffered hearsay statements, in the absence of Defendant
providing such an analysis to the trial court or in his brief
before us, we would have to scour the record and devise
arguments on his behalf, thereby becoming his advocate.
State v. Massa, 410 S.W.3d 645, 657 (Mo.App. 2013).
This is not an appropriate function for an appellate court,
State v. Conaway, 912 S.W.2d 92, 96 (Mo.App. 1995),
and is something we cannot and will not do, State v.
Bell, 266 S.W.3d 287, 290 (Mo.App. 2008) ("This
court will not act as an advocate by scouring the record for
facts to support Defendant's contentions.").
has not met his burden to demonstrate how the hearsay
statements in his five offers of proof fit into the
Chambers exception to the hearsay rule. See
Reed, 282 S.W.3d at 837. We cannot, therefore, conclude
that the statements are admissible under this exception.
Because hearsay statements are generally inadmissible, the
trial court did not abuse its discretion in their exclusion.
See Taylor, 298 S.W.3d at 495.
point is denied, and his convictions are affirmed.
W. SHEFFIELD, P.J., DON E. BURRELL, JR., J. concurs