State v. Sykes , 569 S.W.2d 258 ( 1978 )

SMITH, Judge,

dissenting.

I respectfully dissent. I am unable to conclude that the trial court committed error, much less plain error, in allowing the testimony of Harris about the statement which he, Harris, made to defendant.

I do not believe the testimony was hearsay. When an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule does not apply. Such a statement may be admitted if it is relevant. In re Thomasson’s Estate, 347 Mo. 748, 148 S.W.2d 757 (1941) [10]; Bond v. Wabash Railroad Company, 363 S.W.2d 1 (Mo.1962) [3, 4]; State v. Trotter, 536 S.W.2d 877 (Mo.App.1976) [3]. Harris’ testimony was offered not for the truth of what Jones said but to show the circumstances under which defendant made his statements. The question presented is not one of hearsay, it is one of relevancy. While a plausible argument of non-relevancy could be made had the question arisen on direct examination, relevancy was clearly established by defendant’s cross-examination. It is simply not accurate to say that voluntariness of the confession was not in issue. The cross-examination by defendant was directed to establishing that the confession was the product of either trick or coercion. In addition, the jury was instructed that it must find the defendant’s statements were freely and voluntarily made before it could consider the statements in arriving at its verdict. Such an instruction is required if requested. See MAI-CR 3.44, Notes on Use 1. The State had the burden of establishing the voluntariness of the defendant’s statements and in doing so was entitled to elicit the circumstances under which the statements were made. This is particularly true where defendant in cross-examination had elected to elicit part but not all of the conversation between Harris and defendant.

In fact, the question asked on redirect was not directed to what Jones told Harris but only to what Harris told defendant, and Harris was available for cross-examination on that subject. Whether or not Jones in fact made the statement attributed to him and whether it was true or not does not determine the admissibility of the testimony. Admissibility must be determined on the basis of the relevancy of what Harris told defendant prior to defendant making a statement. That relevancy is clear.

The foregoing discussion also points up the impropriety of treating this matter as plain error. Had a proper objection been made and proper relief been requested, the trial court could have cautioned or instructed the jury of the purpose of the testimony and the limitations on its relevancy. Defendant did not accord the court this opportunity.

I would affirm the judgment.