State v. Allen, WD 59970.

• Decision Date: 04 June 2002
• Docket Number: No. WD 59970.,WD 59970.
• Citation: 81 S.W.3d 227
• Parties: STATE of Missouri, Respondent, v. Charles H. ALLEN, IV, Appellant.
• Court: Missouri Court of Appeals

81 S.W.3d 227

STATE of Missouri, Respondent, v. Charles H. ALLEN, IV, Appellant.

No. WD 59970.

Missouri Court of Appeals, Western District.

June 4, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 2, 2002.

Application for Transfer Denied August 27, 2002.

Sara Weber Patel, Appellate Defender Office, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John Munson Morris and Andrea Mazza Follett, Office of Attorney General, Jefferson City, for Respondent.

PAUL M. SPINDEN, Chief Judge.

Charles Allen appeals the circuit court's judgment convicting him of driving while intoxicated and driving while his license was revoked. He argues that the circuit court abused its discretion when it overruled his objection and request to instruct the jury to disregard one of the state's statements during closing argument. He also complains that the circuit court abused its discretion by excluding one of his witnesses on the ground that he had not disclosed the witness to the state. We affirm the circuit court's judgment.

In complaining about the prosecutor's closing argument, Allen asserts that the prosecutor aroused the jurors' personal hostility toward him by implanting fear that acquitting him would endanger their children's and grandchildren's safety. The prosecutor said in her closing argument:

The state would ask during your deliberations that you think and that you return a guilty verdict of driving while intoxicated against this defendant, Mr. Allen, and that you return a guilty verdict on Count 2 for driving while revoked against this defendant, Mr. Allen, sending the message that you are to protect your community, your neighborhood, your children, and your grandchildren from drunk drivers. Thank you.

The prosecutor's statement was not improper personalization. "The use of the word `you' [during closing argument] does not automatically amount to an improper personalization." State v. Lyons, 951 S.W.2d 584, 595 (Mo. banc 1997). The phrase "your children, and your grandchildren" is a general, all-encompassing form to include society as a whole, rather than as a reference to the jurors' specific children and grandchildren. State v. Kriebs, 978 S.W.2d 460, 467 (Mo.App.1998); compare State v. Raspberry, 452 S.W.2d 169, 172 (Mo.1970) (prosecutor stated that jury should convict defendant "for the sake of your children, and for your wives, and for your families"); State v. Groves, 295 S.W.2d 169, 173 (Mo.1956) (prosecutor stated that jury should convict because "if any of you have any daughters ... your daughter could be the next one, or your grandchild"). The prosecutor was advocating the personal safety of the community's citizens, and this is permissible. State v. Norton, 949 S.W.2d 672, 677 (Mo.App. 1997). Moreover, the prosecutor's asking the jury to "send a message" is permissible. State v. Cobb, 875 S.W.2d 533, 537 (Mo. banc 1994).

Allen's second point on appeal is whether the circuit court's exclusion of one of Allen's witnesses, Saundra Gray, was an abuse of discretion. Allen failed to timely disclose his intention to call Gray as a rebuttal witness to rebut Officer David Nathan's demeanor.

The circuit court's ruling on the admission or exclusion of evidence will be reversed only on a showing of abuse of discretion. State v. Wahby, 775 S.W.2d 147, 153 (Mo. banc 1989). When considering whether the circuit court has abused its discretion, we must consider what prejudice the state suffered as a result of the untimely disclosure and whether the remedy resulted in fundamental unfairness to the defendant. State v. Mansfield, 637 S.W.2d 699, 703 (Mo. banc 1982). "Fundamental unfairness" exists if an earlier disclosure of the requested information would have affected the result of the trial. State v. Royal, 610 S.W.2d 946, 951 (Mo. banc 1981). A new trial is necessary if the defendant establishes the information withheld was material and was not previously known or expected by the defendant in trial preparation. State v. Scott, 943 S.W.2d 730, 736 (Mo.App.1997). We must review the circumstances of this case to determine whether Allen suffered prejudice sufficient to establish fundamental unfairness, including the nature of the charge, the evidence presented, and the role the excluded evidence would have played in Allen's defense. State v. Simon ton, 49 S.W.3d 766, 781 (Mo.App.2001).

The evidence established that Officer David Nathan stopped a car driven by Allen to investigate a violation of a speed limit. When the officer asked Allen why he did not park the car immediately in response to Nathan's emergency lights, Allen replied that he was "[p]artying." Nathan noticed that Allen's eyes were watery and dilated and that Allen smelled of alcohol. Allen's speech was slurred and he was slow to respond to Nathan's questions. Allen was barely able to stand up and needed Nathan's help to walk to the rear of the vehicle. After Allen was taken to the police station, he failed horizontal gaze nystagmus and walk-and-turn tests. A breath test revealed that Allen's blood alcohol content was twice the legal limit. The officer who performed the breath test, Officer Terry Donovan, noticed that Allen's eyes were glassy and dilated and that Allen smelled of alcohol.

Allen testified that he was not driving the car. He said that he was in the passenger seat, that he was drunk, and that he "got smart" with Nathan and that his arrest resulted from Nathan's becoming angry at him.

Brian Strother testified that he was the car's driver. He said that Allen was belligerent to Nathan and that Nathan responded with "an attitude." Strother said that he identified himself to officers as "Charles Allen" and told them that he had been drinking all day.

The state requested Allen's list of potential witnesses some time before September 28, 2000. Allen sought to introduce the testimony of Gray, a bystander who witnessed the arrest. He offered her testimony as rebuttal on the trial's last day. Allen offered this explanation for his delay in identifying Gray as a witness:

[W]e would note that a week ago Monday, on the 22nd of this month, a deposition was held by our office of Officers Lombardo and Tomanio. From those depositions we learned that there were people from the neighborhood who were eyewitnesses to the events at issue in this case.

Upon receiving that information in deposition, Mr. Stephens and our investigator, Winifred Varner, went to the neighborhood to try to find these people who could be eyewitnesses, and their investigation led to contacts with Miss Gray.

Miss Varner conducted a telephone interview of Miss Gray and then on Friday, a week ago today, reported the results of that telephone interview to me.

My impression upon hearing the report was that Miss Gray would not contribute to the theory of defense, which we were contemplating at that time. Therefore, it was my considered decision that we would not call her as a part of our case-in-chief.

Our trial has begun this week. We picked our jury two days ago, on Wednesday. Yesterday evidence began.

In the course of the giving of that evidence, it became clear to me that one topic that Miss Gray could give testimony about which had not seemed to be a crucial topic when I originally heard the report about her potential evidence was something which was emerging in the course of trial as a pivotal issue. That subject is the degree to which the arresting officers exhibited any emotional response to the behavior of the men that they were arresting.

Officer Nathan denied being angry. He denied any kind of belligerent action on his part. It is that testimony which I believe Miss Gray's own testimony would contradict.

She was there. She thought he was angry when she first saw him. She saw him from the beginning of this and then she saw the angry conversation between the men who were seated on the curb and the arresting officers. If for no other purpose, we ask leave of the Court to call Miss Gray as a rebuttal issue on that point alone.

The circuit court responded:

Well, this matter has been pending since June, the discovery request was made seven months ago, and to suggest that we have to continue this case into next week because no attempt was made to investigate, apparently, whether or not there were other witnesses who witnessed this is unconscionable to the Court and I'm not going to permit that.

I do not believe that the testimony that would be provided by Miss Gray is of such overwhelming nature that it is imperative to the defense['s] case and, quite frankly, I didn't hear anything from Miss Gray that I believed to be substantially contradictory of what Officer Nathan testified to.

Aside from that, I am greatly disturbed by the fact that the defendant feels free, when he finds out about testimony that he believes to be contradictory of what occurred during this trial, especially in light of the fact that Officer Nathan was deposed in this case and the interview with the witness did not occur until after that deposition, under those circumstances, I do not believe there is any fundamental unfairness in excluding this testimony.

During Allen's offer of proof, Gray testified that she saw the officers' confrontation with Allen and Strother as she stood on her neighbor's porch. She said that the officer driving the "paddy wagon" appeared to her to be "kind of agitated because either he had followed them, chased them, or something to that effect[.]" She said that three men got out of the car, but officers let one of them go. Officers handcuffed two of the men and that those two "were doing a lot of cursing and everything, and the police officers was telling them to shut up and that they caught doing whatever they were doing." She opined that "the situation ... looked like it was kind of getting out of control" and that her neighbor wanted to videotape the scene because "the police officers wasn't doing the guys in the car right."

The...