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Collins v. Hertenstein9/3/2002
t photograph of Wilson. Second, the officers contend that the circuit court erred in not allowing them to present evidence of what was contained on all the property inventory sheets, which included all the items found in Wilson's pockets. They assert that Collins opened the door to this evidence when a crime scene technician mentioned the inventory sheets in her testimony. We do not understand how a crime scene technician's testimony that she had signed the inventory sheet used to recover the gun and that someone else approved the inventory sheets containing the other evidence "opened the door" to the officers' introducing other evidence found on the inventory sheets.
We do not discern plain error. Next, the officers complain that the circuit court erred in not allowing them to impeach Phyllis Rose with the testimony of two witnesses who had interviewed Rose previously and to whom she had made statements inconsistent with her testimony. The alleged error does not rise to the level of plain error. We do not understand facially from the record how the evidence was relevant to the issues of the case.
Rose testified that, when she told Collins that the police had killed her son, Collins replied, "If the police shot my son, they are going to pay." The officers wanted to impeach Rose with the testimony from two witnesses who would have testified that Rose told them that Collins said, "I'm in the money now," and "now I'll get paid." Although the officers contend that they were attempting to impeach Rose's testimony, they assert that the evidence was admissible, not for impeachment purposes, but for the purpose of establishing the relationship between Collins and Wilson and the amount of damages suffered by Wilson's death. "Immaterial and incompetent evidence may not be got before the jury under the guise that it impeaches or discredits the witness." Hungate v. Hudson, 185 S.W.2d 646, 649 (Mo. 1945).
The circuit court instructed the jury to compensate Collins "for any damages you believe [Timothy Wilson's survivors] and Timothy Wilson sustained and that they are reasonably certain to sustain in the future as a direct result of the fatal injury to Timothy Wilson." The circuit court also instructed the jury to not consider "grief or bereavement suffered by reason of the death." Whether or not Collins believed that she was "in the money" is not material to the issue of damages in a wrongful death action.
Hence, the circuit court did not abuse its discretion in refusing the evidence. Next, the officers contend that the circuit court abused its discretion in prohibiting them from introducing into evidence the items found in Wilson's pockets because Collins introduced into evidence a diagram of the crime scene which contained notations: "Jacket--Item #15 Containing Items 23-30" and "Items 16-22, 31 in victim's pant pockets."
They contend that the jury was entitled to an explanation about the notations made on the face of the diagram. From the face of the diagram itself, we see no reason why the jury would be entitled to an explanation of the notations. We do not discern plain error and, therefore, do not review the issue. Finally, in regard to this point, the officers assert that the circuit court erred in not allowing them to present character evidence of Wilson, Collins, and Wilson's father, Timothy Wilson, Sr., during the aggravating circumstances phase of the trial. They contend that rejection of the evidence was prejudicial because the evidence pertained to the amount of damages suffered by Collins. Again, in their argument, the officers fail to direct this court to where in the record they attempted to introduce the evidence. They also do not cite the record where
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