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Collins v. Hertenstein9/3/2002
the circuit court made its ruling disallowing the evidence. Because, however, this issue may arise on retrial, we address the merits of this point. In the aggravating circumstances phase of the trial, the officers attempted to present character evidence of Wilson and Wilson's parents and made this offer of proof:
e would like to present evidence of the character of the injured party in this case.
We consider the injured party to be Timothy Wilson, Sr., because of the nature of the wrongful death case and he is a member of the class.
We consider an injured party to be Valerie Collins.
We also suggest to the court that an injured party is Timothy Wilson, Jr., whose parents have a right to recover on his behalf.
Therefore, all three being injured parties, we believe we have a right to present character evidence.
The offer of proof that we would make is that if allowed to present this type of evidence, we would establish the character of Timothy Wilson, Sr., by establishing the fact that he has been convicted on more than one occasion and is now and has previously served time in jail, in addition to the evidence that was presented in the liability section of this trial.
As to Valerie Collins, in addition to the evidence that was presented in the liability section of this trial, that she has been arrested and is currently pending charges involving drugs and possession of drugs.
As to Timothy Wilson, Jr., we would offer to prove to the Court that at the time of his death [Wilson] had on his person, in his pockets, drug paraphernalia, cocaine, in 30 individually packaged packets, handcuffs, and other items that would be unusual for a 13-year-old boy to have, that he has a juvenile record, has spent time in a halfway house, all factors that his mother knew--or at least the juvenile record and the halfway house, his mother knew.
We would offer to prove all of those as a part of the determination of the character of the injured party in this phase of the trial.
The circuit court did not allow the evidence and limited the evidence in the aggravating circumstances phase of the trial to only the officers' net worth. As we previously have discussed, limiting the evidence to net worth only was error. The issue then becomes what evidence should be allowed in the aggravating circumstances phase of the trial. In 1916, the Supreme Court faced the issue of whether or not an award of exemplary damages for malicious trespass was excessive, even after the remittitur by the circuit court. Sperry v. Hurd, 185 S.W. 170, 174 (Mo. 1916). The court, relying in part on its previous opinion in Buckley v. Knapp, 48 Mo. 152, 162-63 (1871), held:
A review of the many cases awarding exemplary damages discloses that a hard and fast rule for the measuring of such damages cannot be declared. Each case turns more or less upon its own peculiar facts. The character and standing of the parties, the malice with which the act was done, and the financial condition of the defendant are elements which should be taken into consideration in awarding damages of this character (Buckley v. Knapp et al., 48 Mo. 152; 8 R. C. L. sections 151, 152, and cases therein cited; 2 Sutherland on Damages [3d Ed.] p. 1092), and the amount may be such as would by way of punishment and example serve to deter the occurrence of like acts in the future. Sperry, 185 S.W. at 174.
The Buckley case relied on by Sperry involved a libel action. In Buckley, the court announced in dicta:
or assault and battery . . . the jury not confined to the mere corporal injury which the plaintiff has sustained, but they
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