STATE of Missouri, Respondent, v. George Stanley REVELLE, Appellant, 957 S.W.2d 428

ROBERT E. CRIST, Senior Judge. A jury convicted George Stanley Revelle of first degree murder pursuant to § 565.020, RSMo 1994, for the murder of his wife, Lisa Revelle, on September 28, 1994. The trial court imposed a sentence of life imprisonment without possibility of parole or probation. Defendant appeals from the judgment imposing such sentence. Defendant puts forth, twelve points of er-. ror, only two of which need be considered in any detail by this Court.

This Court finds the State made a submissible case but reverses and remands the case for a new trial because of the admission into evidence of an inadmissible hearsay note authored by Lisa and directed to Defendant. Defendant contests the sufficiency of the evidence. Accordingly, this Court reviews all evidence together with all reasonable inferences favorably to the verdict, and evidence or inferences contrary to the verdict are ignored. State v. Twenter, 818 S.W.2d 628, 631 (Mo. banc 1991).

This Court looks only to whether there is sufficient evidence from which reasonable jurors could have found the defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). In September of 1992, Defendant and his wife, the victim, Lisa Revelle, bought and moved into a house in Fremont Hills. They were in their 30s and had two children who were about 7 and 9 years of age. The house cost $342,000 and was mortgaged for about that amount. It was fitted with an elaborate alarm system. In May of 1994, Defendant applied for life' insurance for Lisa.

It was approved in July 1994 in the amount of $500,000 with a double indemnity clause. Defendant was the sole beneficiary. Defendant was then hopelessly in debt. He was embezzling funds from his employer, Ozark Bank. He was also stealing money from the City of Fremont Hills while acting as its mayor. In the spring of 1994, Defendant had a conversation with a bank colleague about the best type of firearms for home defense. Defendant was told a Colt .45 had stopping power. Later that spring they discussed different sized calibers of weapons.

In August 1994, the Revelles had a discussion with another couple about fear of someone coming to the Revelle home to harm Defendant. On September 23, 1994, Defendant and three others spoke of firearms over lunch. They discussed how a .45 would have stopping power and would crack a cinder block. Defendant asked, in reference to home defense, whether a .45 would “do it.” He was assured that it would. At 2:00 a.m. on September 27, 1994, Officer Hicks of the City of Ozark Police Department was dispatched to the Revelle home.

Defendant said the motion detector lights on the west side of his house had activated and he wanted the area checked. Officer Hicks found no indication that anyone had been in or around the house. The garage door was open about a foot. Defendant said they left the garage door open for their cat to come and go. Defendant went to work that day. He told his co-workers about the motion lights being activated and that he would keep his shotgun close that night. At approximately 5:00 a.m. on September 28, 1994, Officer Hicks was again dispatched to Defendant’s Fremont Hills residence.

As he drove to the residence, he saw no cars. Officer Gray, also with the City of Ozark Police Department and also dispatched to this residence, did not pass any cars and did not see any people running across the golf course near the Defendant’s home. A neighbor who had been awakened by a call from the alarm company regarding an alarm at the Revelle home, noticed nothing amiss in the neighborhood when he looked outside his kitchen window. A newspaper delivery person was in the area of Defendant’s home during those early morning hours and saw nothing unusual.

Officers Hicks and Gray found Defendant standing in the door of his house talking on a cellular telephone. Defendant said, “They shot my wife.” The children were and remained in their upstairs bedrooms. Lisa had been shot in the head with a .45 caliber gun. She died shortly thereafter. Defendant said the intruders were wearing dark clothing and one had a ball cap on backwards. He explained these intruders had left the residence through the garage door on the west side of the residence.

Officers Hicks and Gray noted that (1) the garage door was open about two feet; (2) none of the motion detector lights had been activated; (3) no dogs were barking; (4) though the grass was heavy with dew and water from the sprinkler system, there were no footprints; and (5) there were no unusual vehicles or anyone walking in the vicinity. The crime scene was sealed. Sergeant Isringhausen with the Missouri Highway Patrol also came to the scene of the Revelle shooting. He noted and photographed the readout on the alarm keypad.

He noticed the open garage but found no signs of forced entry, either through doors or windows. When he walked past the garage, the motion detector light came on and stayed on in excess of a minute. The Revelles’ dog barked. He found no footprints in the dew-covered grass, nor did he find any footprints leading from the residence through the backyard. Defendant varied his story about what had happened. No attempt is made to detail such variances. An alarm system expert explained there could have been no house intruder or intruders as told by Defendant.

There was other evidence indicating Defendant’s participation, but further evidentiary detail is not necessary to show a submissible case was made by the State. The evidence established Defendant’s monetary motive for the murder. The chain of circumstances was completed by

(1) Defendant’s interest in a killer gun, (2) access by Defendant and his two minor children, (3) non-access by other persons, (4) stealing and embezzlement by Defendant, and (5) variances in Defendant’s story regarding the intruders. The facts are consistent with each other, consistent with guilt, and inconsistent with any reasonable theory of innocence. The evidence was sufficient to show Defendant knowingly and after deliberation caused the death of Lisa. The one, real, overriding issue in this case concerns the hearsay note of Lisa directed to her husband, the Defendant.

During its case in chief, the State introduced into evidence a note written by Lisa to Defendant. The note contained expressions of Lisa’s dissatisfaction with the state of their marriage. The note was written as much as six months prior to Lisa’s death. Defendant objected to its admission as inadmissible hearsay. The note in pertinent

part is as follows: I can’t seem to tell you anything without feeling your anger, .... I’m very scared about our marriage and our family. I can’t continue living this way. I’m afraid of you and afraid of your anger and your silence.... I don’t want a big new home or a Mercedes or a Highland [sic] membership. I only want someone who loves me and accepts me as I am.... I’m hurt and alone, and the kids feel it too.... I will always love you, but I won’t live with you like this. A similar hearsay issue was exhaustively considered by this Court in State v. Kelley, 953 S.W.2d 73 (Mo.App. S.D. 1997).

This Court will discuss much of the reasoning of the Kelley court as applicable to this case. At oral argument, the State admitted that the marital note was hearsay. Therefore, it was inadmissible unless it fell within one of the exceptions to the hearsay rule. “A hearsay statement is any out-of-court statement used to prove the truth of the matter asserted.” State v.

Shurn, 866 S.W.2d 447, 457[19] (Mo.banc 1993). “Hearsay statements are generally inadmissible.” Id. at 457-58[19], The State contends the marital note was admissible as a “present state of mind exception.” Briefly described, the general rule is that extrajudicial statements of a declarant-victim’s present state of mind are excepted from the hearsay ban, provided the declarant’s state of mind at the time is an issue in the case. State v. Boliek, 706 S.W.2d 847, 850 (Mo. banc 1986) (citing United States v. Brown, 490 F.2d 758 (D.C.Cir.1973)). See State v. Ford, 639 S.W.2d 573, 574-75 (Mo.1982); State v.

Pagano, 882 S.W.2d 326, 336[15] (Mo.App.1994); State v. Kennedy, 842 S.W.2d 937, 942-44 (Mo.App.1992); State v. Singh, 586 S.W.2d 410, 417-19 (Mo.App.1979). From Singh onward, Missouri courts have relied on Brown to define the scope of the state of mind exception.

Under Brown, the exception cannot be used to allow hearsay testimony offered primarily to prove the state of mind of an accused; rather, the rule only has application where the proffered hearsay shows primarily the then state of mind of the declarant and declarant’s state of mind, in itself, is probative of an ultimate issue in the case. 490 F.2d at 774-780. Most commonly, courts recognize and approve the state of mind exception in homicide cases where an accused claims self-defense, suicide, or accidental death. Id. at 767.

In such instances, hearsay statements made by the victim that illustrate his or her present state of mind are relevant, and the need for such statements ordinarily overcomes any possible prejudice. Id. See Singh, 586 S.W.2d at 418. Where an accused claims self-defense, the déceased’s state of mind is relevant to the issue of which participant in the killing was the aggressor. See Ford, 639 S.W.2d at 575.

Where a defendant concedes his or her presence and involvement in a victim’s death but claims an accident or suicide caused the death, the deceased’s statements as to fear of guns or similar state of mind are relevant to rebut these defenses. See Singh, 586 S.W.2d at 419. Defendant Revelle testified he thought the man who killed his wife did so accidentally but denied that he, Revelle, had killed her. In State v. Post, 901 S.W.2d 231 (Mo.App.1995), the state claimed that the defendant drowned his wife in a bathtub. The defendant claimed she drowned in a bathtub while he was away from the scene.

At trial, the court admitted out-of-court statements of the victim via other witnesses to the effect that the victim wanted or intended to divorce the defendant. The state asserted that because the defendant contended the death was accidental, the victim’s state of mind was relevant.

The Post court concluded that the trial court committed prejudicial error by admitting the statements because the victim’s state of mind was not relevant. “The accident cases referred to in the Singh case are those situations where the defendant as the actor causing the death is undisputed but the issue raised is whether he acted intentionally or accidentally. Defendant here denied any participation in the death of his wife and denied that he was present when the incident which caused it occurred.

Under those facts the decedent’s particular state of mind that she was unhappy with her husband has no relevance.” (Emphasis added.) 901 S.W.2d at 236[9]. As in Post, here Defendant denied any involvement in causing his wife’s death. Defendant did not claim self-defense, did not assert that his wife died by her own hand, did not admit that he was the actor but caused Lisa’s death accidentally, nor did Defendant inject any other plausible issue that would justify an inquiry into the victim Lisa’s state of mind.

Given the facts of this case, Lisa’s state of mind “as to her belief in the future of the marriage” and “as to her .future relations with [Defendant]” had no relevance. See Post, 901 S.W.2d at 236[9]. Based on Brown and Post, we conclude that Lisa’s statements were not admissible under the state of mind exception to the hearsay rule.

The State further argues Lisa’s note was admissible as it was “relevant to refute the defense’s suggestion that the relationship between Defendant and Lisa had been amicable, with its corresponding suggestion that [Defendant] was not responsible for her death.” This argument fails for the simple reason that the State—not Defendant—first injected the issue of whether Defendant and Lisa’s relationship was amicable.

Under the doctrine of curative admissibility, “[w]here the defendant has injected an issue into the case [via inadmissible evidence], the State may be allowed to admit otherwise inadmissible evidence in order to explain or counteract a negative inference raised by the issue defendant injects.” State v. Lingar, 726 S.W.2d 728, 734-35 (Mo.banc 1987) (citing State v. Starr, 492 S.W.2d 795, 799 (Mo.banc 1973)). See also Shurn, 866 S.W.2d at 458; State v. Chambers, 891 S.W.2d 93, 103 (Mo.banc 1994).

However, this doctrine has no applicability in this case because the State first injected the issue of the parties’ non-amicable marriage, albeit in opening statements the State made no reference to the memo, and Defendant first mentioned the memo and the “good relationship” between the Revelles. However, before opening statements were made, the trial court had ruled against the Defendant on his pretrial motion to exclude the memo from evidence. Accordingly, the State first injected the issue by offering evidence thereon in its ease-in-chief.

The State cites no authority for the notion that it can submit incompetent evidence solely to refute an issue not yet injected into the case by the defense. Our independent research discloses no such rule. Since the State first injected the “good marriage” issue into the case, Lisa’s note did not qualify as rebuttal evidence, the statements remained inadmissible, and their admission only served to improperly bolster an inference negative to Defendant.

The State also argues that, despite the hearsay nature of Lisa’s note to Defendant, such evidence “was relevant and admissible because it established [Defendant’s] motive for Lisa’s death....” A similar argument was rejected by the Eastern District in State v. Randolph, 698 S.W.2d 535 (Mo.App.1985). In that case, witnesses were allowed to testify over objection that the victim had said that the defendant had robbed Larry Jackson and placed him in a bathtub full of water. Another witness was permitted to testify that victim was afraid of the defendant.

On appeal, the state argued that the state of mind of the victim was relevant to prove defendant’s motive for killing his victim. The Eastern District rejected that argument, saying: Motive concerns the state of mind of the [defendant], not that of the victim. It was the motive of the [defendant] or the state of mind of the [defendant] to which the prosecution refers, not the state of mind of the victim. This court can conceive of no justification for admitting what the state recognizes is hearsay testimony. It was not relevant to the decedent’s state of mind except to show that he feared the [defendant].

His alleged fear of the [defendant] does not even show a motive. One does not kill another because the other is afraid of him. Self-defense was not an issue. Id. at 540, 541. Randolph applies to this case. The state of mind exception does not justify or permit hearsay evidence when the primary purpose thereof is to show motive or any other state of mind of Defendant. Randolph teaches that although the State is entitled to prove motive in a murder ease and has wide latitude in doing so, motive can no more be proved by inadmissible and objected-to hearsay than any other fact.

Moreover, Randolph rejects any notion that the “present state of mind” exception renders hearsay evidence admissible to prove a defendant’s state of mind or motive. Following the views expressed in Brown and Randolph, we hold that otherwise inadmissible hearsay cannot be admitted under the state of mind exception as direct evidence of Defendant’s state of mind or a true indication of Defendant’s motive. In reaching this conclusion, we recognize that evidence of marital break-up or threats is admissible and is probative of a defendant’s intent, motive, or culpability where proof is by non-hearsay.

See Pagano, 882 S.W.2d at 331. As explained in State v. Copeland, 928 S.W.2d 828 (Mo.banc 1996), cert. denied,-U.S.-, 117 S.Ct. 981, 136 L.Ed.2d 864 (1997): Not all out-of-court statements are hearsay. The hearsay rule only prohibits admission of evidence of out-of-court statements offered to prove the truth of the out-of-court declaration. Defendant overlooks the well-established “verbal acts” rule. Utterances made contemporaneously with or immediately preparatory to

an act which is material to the litigation that tends to explain, illustrate or show the object or motive of an equivocal act and which are offered irrespective of the truth of any assertion they contain, are not hearsay and are admissible. Id. at 848 [50,51] (citations omitted). A similar explanation is found in State v. Joiner, 823 S.W.2d 50 (Mo.App.1991): The testimony of a witness regarding the statement of another is hearsay only when the statement is offered as proof of the matters stated therein. The state did not offer the statements for the truth of the matter asserted.

Rather, the evidence was offered to show knowledge and motive. This was a permissible use of the statement. Id. at 55 (citations omitted). However, these well-recognized principles do not aid the State because the State conceded that Lisa’s note was hearsay. The marital note was hearsay, not saved by any exception and was prejudicial to Defendant. And, the recent case of State v. Bell, 950 S.W.2d 482, 483 (Mo. banc 1997), leaves little doubt that this case must be reversed and remanded for a new trial. One of Defendant’s points alleges the trial judge should have recused sua sponte due to lack of impartiality.

Defendant concedes he did not move for the judge’s disqualification, and the record contains no reference to such issue. Because this issue is unpreserved, we decline to review it. See State v. Foster, 854 S.W.2d 1, 7 (Mo.App.1993) (deciding that a defendant may not claim plain error because the judge did not sua sponte remove himself after the defendant elects not to disqualify and the strategy goes awry). We do not comment on the propriety of Defendant’s moving to disqualify the judge after remand under the provisions of § 545.660.

For the reason this Court cannot know what specific evidence will be offered at the new trial, Defendant’s other points relied on need not be considered. State v. Santillan, 948 S.W.2d 574, 577 (Mo.1997). The judgment and conviction are reversed, and the cause remanded for a new trial. SHRUM, J., concurs and files separate opinion. MONTGOMERY, C.J., and BARNEY, J., each concur in the principal opinion and the concurring opinion of SHRUM, J. PARRISH, J., concurs in the principal opinion, in the concurring opinion of SHRUM, J., and files separate concurring opinion. PREWITT, J., dissents in separate opinion.

GARRISON, J., dissents in separate opinion. CROW, J., recused. . On September 30, 1997, the Supreme Court of Missouri denied applications for transfer of Kelley.