PER CURIAM.
This memorandum is for the information of the parties and sets forth the reasons for the order affirming the judgments.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
Defendant Gary Muehlberg appeals from the judgment entered on a jury verdict finding him guilty of one count of first degree murder, in violation of Section 565.020 RSMo (1986), and one count of armed criminal action, in violation of Section 571.015 RSMo (1986). The trial court found Muehlberg to be a prior and persistent offender and sentenced him to a term of life imprisonment on his conviction for first degree murder and a term of three years imprisonment on his conviction for armed criminal action, both sentences to be served consecutively. Muehlberg filed a Rule 29.15 motion for post-conviction relief which was denied after an evidentiary hearing. Muehlberg appeals both the judgment of the trial court and the order of the motion court.
On direct appeal, Muehlberg contends that the trial court erred in 1) allowing three witnesses to testify to victim's statements about going to Muehlberg's home the night he was killed; 2) excluding exculpatory statements Muehlberg made to police following his arrest; and 3) in imposing sentence and judgment when the jury's verdict resulted from juror misconduct. On appeal from the order of the motion court, Muehlberg contends the court clearly erred in overruling his motion because his trial attorney provided ineffective assistance in failing to call several witnesses at trial. We affirm the judgment of the trial court and the order of the motion court.
The sufficiency of the evidence supporting Muehlberg's conviction is not in dispute. Muehlberg killed victim, Kenneth "Doc" Atchison, when victim came to his house on February 8, 1993 with $5,000.00 in cash and his Chrysler LeBaron to exchange it for Muehlberg's Cadillac.
DIRECT APPEAL
For his first point on direct appeal Muehlberg contends the trial court erred in permitting Kenneth Atchison, John Kennedy, and Wayne Halterman to testify that victim said he was going to buy a Cadillac from Muehlberg and that he was going to Muehlberg's house to buy a Cadillac. Muehlberg argues that the statements, though suggesting victim's state of mind, lacked sufficient reliability to be admissible and were more prejudicial than probative of any issue in the case.
A trial court has broad discretion in determining the admissibility of evidence and testimony. State v. Parkhurst, 845 S.W.2d 31, 36 (Mo. banc 1992). There must be a clear showing of an abuse of discretion for an appellate court to interfere with a trial court's ruling on the admissibility of evidence. Id.
Prior to trial, the trial court granted a continuing objection to the testimony of the witnesses to victim's statements concerning his purchase of the automobile from Muehlberg. At trial, Atchison testified that victim told him that he was going to trade his LeBaron and some cash for Muehlberg's Cadillac. Kennedy testified that victim told him he had decided to purchase Muehlberg's Cadillac and also said that he was in a hurry to leave the Eat-Rite Diner on the evening of February 8, 1993 because he was going to Muehlberg's house to purchase the red Cadillac. Kennedy offered to accompany victim to Muehlberg's house for the purchase but victim declined the offer. Halterman, who was also at the Eat-Rite Diner on the evening of February 8, testified victim told him that he was planning to go to Muehlberg's house to buy Muehlberg's Cadillac and that he had cash in his pocket to purchase the car. Victim told Halterman he was worried about going over to Muehlberg's house and asked Halterman if he would go with him, but then decided to go alone.
A crime victim's statements, which are not part of res gestae, dying declarations, or threats, are hearsay and inadmissible in evidence, though the declarant is dead, but a declaration indicating the declarant's present intention to do a particular act in the immediate future, if made in apparent good faith and not for self-serving purposes, is admissible, not as part of res gestae, but to prove that the act was in fact performed. State v. Benson, 142 S.W.2d 52, 54 (Mo. 1940); State v. Newson, 898 S.W.2d 710, 716 (Mo. App. 1995).
Here, there is no evidence supporting the conclusion that victim's statements that he was going to buy a car from Muehlberg at Muehlberg's house were made in bad faith or for a self-serving purpose. Therefore, victim's statements indicating his present intention to buy a car from Muehlberg at Muehlberg's house in the immediate future were admissible to prove that he was going to Muehlberg's house for that purpose when he left the Eat-Rite Diner on the night of February 8, 1993.
The trial court did not abuse its discretion in admitting the testimony of victim's statements. Point one is denied.
For his second point Muehlberg contends the trial court erred in excluding testimony of police officers concerning a statement Muehlberg made to the police following his arrest. Muehlberg argues that his statement was admissible to show his own state of mind and to explain his course of conduct.
During defense counsel's cross-examination of a police detective who had interviewed Muehlberg, defense counsel advised the trial court that he wanted to ask the police officer to testify that Muehlberg told the police that "Chuck Nichols did it":
[Defense Counsel]: Judge, and I also would want to ask that [Muehlberg] told [the police] that Chuck Nichols did it to show that they did investigate Chuck Nichols.
[The State]: No; that's purely exculpatory.
The Court: No, I won't allow that.
[Defense Counsel]: Judge, the purpose is not for the truth of what was said but to show that — to give meaning to the actions of the police department or inactions of the police department relating to Chuck Nichols.
The Court: I think that there is plenty of that in evidence; I'm not going to allow you to get any statements in of the Defendant unless they're admissions against interest, or unless he takes the witness stand.
The ground asserted at trial for admission of Muehlberg's statements — that the testimony would explain the police department's action or inaction relating to Chuck Nichols — is different from the grounds now asserted on appeal — that the statement was relevant to show Muehlberg's state of mind and explain his course of conduct. An objection and the grounds for the objection must be made at trial, the same objection must be set out in the motion for new trial and must be carried forward in the appeal brief to preserve it. State v. Petty, 967 S.W.2d 127, 140 (Mo. App. 1998). Accordingly, this point is not preserved.
Even if the point had been preserved, the trial court did not err in excluding, as self-serving hearsay, Muehlberg's statement to police that Chuck Nichols committed the murder. A defendant cannot create exculpatory evidence by introducing self-serving, hearsay statements which are not part of the offense's res gestae. State v. Sweet, 796 S.W.2d 607, 614 (Mo. banc 1990),cert. denied, 499 U.S. 932, 111 S.Ct. 1339, 113 L.Ed.2d 270 (1991). Point two is denied.
For his third point Muehlberg contends the trial court erred in imposing judgment and sentence because the jury's verdict resulted from juror misconduct. Muehlberg argues that, once he notified the trial court that jurors had read newspapers in violation of the court's instruction, the state had the burden to show that the jury was not improperly influenced by the newspapers. Muehlberg argues that the verdict must be reversed because the state made no such showing.
During the trial the trial court instructed the jury not to read newspapers. In Muehlberg's motion for new trial he first brought to the attention of the trial court his claim that jurors had in fact read newspaper accounts of the trial and alleged:
19. That the court should grant a new trial to the Defendant for the reason that there was juror misconduct in that Defendant believes that one or more of the jurors intentionally read newspaper accounts of the trial during the pendency of the trial, in direct contravention of the court's order. On Friday, September 29, 1995 juror no. 11 was observed to be in possession of a St. Louis Post Dispatch newspaper while being seated in the jury box. Upon information and belief juror no. 11 and other jurors impermissibly read newspaper accounts of the trial which contained misleading and inaccurate accounts of the trial proceedings and which were slanted in favor of the State and against defendant.
To support the motion, defense counsel offered into evidence three newspaper articles about the trial which were printed during trial and the parties stipulated that, if defense counsel's paralegal, Steve Ohrt, and Mrs. Muehlberg were called to testify, they would testify that "during the course of the trial, they saw jurors with newspapers; at least the second to last day before the jury — the day before the jury was given the case, and perhaps the day the jury was given the case."
Where a defendant first raises misconduct of jurors in a motion for new trial, a defendant must make an affirmative showing that neither defendant nor his attorney knew of the misconduct until after the trial. State v. Brown, 599 S.W.2d 498, 502 (Mo. banc 1980). The reason for the rule is that a defendant is not entitled to wait until the verdict is in, gamble on a favorable verdict, then seek a new trial if a verdict of guilty is returned. Id.
Here, Muehlberg failed to affirmatively show that he and his attorney were ignorant of the alleged juror misconduct. The trial record and motion for new trial provide no basis for determining Muehlberg and his attorney did not know jurors were reading newspapers during the trial. Point three is denied.
29.15 APPEAL
For his only point in his Rule 29.15 appeal, Muehlberg contends the motion court clearly erred in finding his trial counsel was not ineffective in failing to call witnesses Ronald Tate, Sharon Tate, Melissa Harper and Pam Huddleston. Muehlberg argues that these witnesses would have been beneficial to his defense. We review the motion court's findings and conclusions for clear error. State v. Johnson, 968 S.W.2d 686, 695 (Mo. banc 1998).
Counsel's decision not to call a witness is presumed to be a matter of trial strategy and will not support a claim of ineffective assistance of counsel unless the appellant clearly establishes otherwise. State v. Clay, 975 S.W.2d 121, 143 (Mo. banc 1998).
In his first amended Rule 29.15 motion, Muehlberg alleged that Rodney Tate, Sharon Tate and Melissa Harper would have impeached the state's evidence by showing that Muehlberg supplied drugs to Ronald Silanskas. In his motion Muehlberg further alleged that Pam Huddleston would have testified that movant had a large amount of money with him almost all of the time and that she had seen movant with a large amount of money three weeks prior to the murder.
At his evidentiary hearing, when asked what testimony of Ronald and Sharon Tate would help him, Muehlberg testified that they "would give information contrary" to information offered by Ron Silanskas and would testify that Silanskas was with Muehlberg numerous times when Muehlberg delivered drugs to the Tate's home. Muehlberg testified that he believed the Tates' testimony would have only been able to impeach Silanskas' on his prior drug involvement with Muehlberg. When asked what Melissa Harper and Pam Huddleston might say at trial that would help him, Muehlberg testified he believed they would say that he was seen in the vicinity of the Eat-Rite Diner after victim was reported missing.
At Muehlberg's evidentiary hearing his trial attorney testified that he did not call the Tates to testify for the purpose of impeaching Ronald Silanskas because he believed Silanskas had impeached himself through his statements. Trial counsel testified that his decision not to call the Tates was a matter of trial strategy. Trial counsel further testified that, as a matter of trial strategy, he decided not to call Pam Huddleston or Melissa Harper because he did not believe they would aid in Muehlberg's defense.
The motion court found as follows:
13. That [trial counsel] was made aware of witnesses whose names were provided by Movant and appeared in the police reports. Movant and [trial counsel] discussed the possibility of calling on these witnesses to testify for the defense during trial. However, after much discussion, as a matter of trial strategy, Movant and [trial counsel] chose to call only those witnesses that were eventually called at trial by the defense as those were the only witnesses they believed, weighing all the factors, would ultimately benefit movant.
The failure to call impeachment witnesses does not warrant relief where the facts, even if true, do not establish a defense. State v. Gollaher, 905 S.W.2d 542, 548 (Mo. App. 1995). The decision to impeach is presumed to be a matter of trial strategy.Id. To overcome the presumption that the decision not to impeach was trial strategy, movant must show how the impeachment would have provided him with a defense or would have changed the outcome of the trial. Id. Muehlberg's motion fails to allege that the testimony of witnesses Ronald Tate, Sharon Tate and Melissa Harper would have provided a viable defense. Muehlberg's motion alleges only that the witnesses' testimony would have impeached the state's evidence, it does not allege that the testimony could provide a defense to the charges.
Muehlberg's motion also fails to allege the testimony of Pam Huddleston would have provided him with a viable defense. Moreover, the record clearly shows defense counsel believed Pam Huddleston would not have helped Muehlberg to establish a defense. "If counsel believes that the witness's testimony would not unqualifiedly support the defense, the decision of whether to call the witness is a matter of trial strategy that will not support a finding of ineffective assistance of counsel." State v. Johnson, 901 S.W.2d 60, 63 (Mo. banc 1995).
The motion court's findings and conclusions are not clearly erroneous.
CONCLUSION
The judgment of the trial court and the order of the motion court are affirmed.