State v. Anding
| Decision Date | 05 March 1985 |
| Docket Number | No. WD,WD |
| Citation | 689 S.W.2d 745 |
| Parties | STATE of Missouri, Respondent, v. James L. ANDING, Appellant. 34834. |
| Court | Missouri Court of Appeals |
Donald L. Wolff, Wolff & Frankel, Ellyn L. Sternfield, Clayton, for appellant.
John Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.
Before CLARK, P.J., and SHANGLER and NUGENT, JJ.
The defendant Anding, an attorney, was convicted by a jury of tampering with a witness in violation of § 575.270, RSMo 1978, and was sentenced to a term of three years. The conviction rests on an episode of misconduct alleged against Anding in the defense of one Robert Watters, Jr., charged in the circuit court of Franklin County with the theft of a watercraft, a class C felony. The essence of that accusation was that Watters stole a johnboat and trailer, the property of one George Hall. The conviction of defendant Anding was for tampering with Hall by payment of money to induce his absence as a witness from the preliminary hearing in the cause against Watters.
The genesis of events was an incident observed on January 19, 1981, by Susan Hall, wife of George Hall. The husband was away from home and Susan was baby-sitting, her usual gainful occupation. As she looked out the window, Susan saw a blue Datsun pickup truck back onto the driveway, attach a chain onto the tow of a johnboat the Halls owned, and drive away. Susan telephoned a neighbor and another man to learn if George had consented to its use by either, and then notified the police of the theft. Two weeks later Susan saw the Datsun truck parked at a residence nearby and both she and her husband informed the police. The police made an arrest and at the lineup Susan identified Watters as the person who towed the boat away.
In due course Watters was arraigned and the preliminary hearing set for April 10, 1981. The accused was represented by Anding and the state by assistant prosecutor Melenbrink. The cause was continued at the instance of first one and then the other of the principals, and rescheduled for July 30, 1981. Subpoenas had reissued to compel the attendance of both George and Susan Hall, but only George Hall appeared on that date. The cause was reset for August 6, 1981, subpoenas reissued to each Hall spouse for that date, but neither was found for service--and on August 5, 1981, prosecutor Melenbrink entered a nolle prosequi. 1 The prosecutor assigned no formal The original information charged Anding with three counts of criminal conduct: Count I alleged the class D felony of tampering with physical evidence [§ 575.100]; 3 Count II alleged the class D felony of concealing an offense [§ 575.020]; Count III alleged the class D felony of tampering with a witness [§ 575.270]. On the day of trial, the prosecutor entered a memorandum of nolle prosequi as to Count I and interlined the information to redesignate the other two counts numerically. The two counts for concealing an offense and for tampering with a witness, now renumbered Counts I and II, were pleaded and submitted as alternatives. The verdict of guilty was returned on Count II, tampering with a witness.
reason for the discontinuance. 2 Thereafter, within the month, prosecution commenced against Anding
The terms of that accusation bear on contentions of error the defendant asserts for reversal, so we delineate the full charge:
COUNT II
Comes now Richard G. Callahan, Special Prosecuting Attorney for the County of Franklin ... and ... charges that the defendant, James L. Anding, in violation of Section 575.270, RSMo, committed the class D felony of tampering with a witness ... in that on or between May 1, 1981 and July 31, 1981 ... the defendant with the purpose to induce George L. Hall to absent himself as a witness in an official proceeding, to-wit: the preliminary hearing in State v. Robert Watters, Jr., Cause No. CR381-200F, wherein Robert Watters, Jr., was charged with the felony of stealing a watercraft, and conferred benefits upon George L. Hall, namely, money payments. [emphasis added]
The submission of that count was in the essential terminology of the information, and conformable to the MACH-CR 29.86 prototype for that offense which requires the identity of the tampered witness.
The prosecution case was presented through witnesses Corinne Wagner, Susan Hall, Timothy Melenbrink, and Mari Koppelmann. George L. Hall was endorsed as a witness, and [as noted by the court] appeared at the trial, but was not called. Corrine Wagner, circuit court division clerk, came as custodian of the court records and established the essential events of the State v. Watters watercraft theft prosecution by reference to the contents of that file--including the discontinuance of the cause by nolle prosequi.
Melenbrink also established the sequence of events of that earlier prosecution through recollections refreshed by prior consultation with the official case file. He gave explanation that he was prompted, first to continue the cause to August 6th when Susan Hall failed to appear for the preliminary hearing on July 30, 1981, and then to the entry of nolle prosequi because "[he] was unable to contact [his] witnesses and assure their appearance on the 6th [of August]." The prosecutor elaborated the reason for the continuance: that although George Hall appeared, the testimony of wife Susan was essential to the case, and Q. As a matter of fact, there was another reason that you asked for the continuance [from July 30 to August 6, 1981] that had nothing to do with Sue Hall's being there, or not being there, isn't that true?
he could not have "gotten by at a preliminary hearing with only his testimony." The responses elicited from Melenbrink on cross-examination, however, disclosed a decision for continuance already formulated, and a decision for nolle prosequi whatever the readiness of Susan Hall to testify
A. There was another reason, yes.
I indicated to the Judge that information had been provided to me that day that I wanted to check into and Mrs. Hall was not available, yes.
* * *
Q. I understand. So part of the reason for asking for the continuance had nothing to do with Sue Hall not being there, isn't that right?
A. Yes.
Q. And as a matter of fact, the defendant stands here tried on a charge that has nothing to do with Sue Hall not being here....
* * *
A. It has nothing to do with Sue Hall's non-appearance on July 30th, yes, that's correct.
* * *
Q. So the fact that the subpoena [for the August 6, 1981 hearing date] wasn't served, that subpoena's got nothing to do with why you dismissed?
A. No, I wasn't waiting for a subpoena. 4
[emphases added]
Thus, these responses of Melenbrink make clear that whatever prompted the entry of the nolle prosequi to the Watters theft prosecution, the discontinuance was not based on the failure of Susan Hall to testify. That is to say, there is no issue that any want of responsiveness to judicial process by Susan Hall induced the charge against Anding, or bears to prove his guilt. The criminal culpability of the defendant Anding rests--if at all--on the proof of the charge [in the terms of the information and submission] that Anding "conferred benefits upon George L. Hall, namely, money payments, ... with the purpose to induce George L. Hall to absent himself as a witness in an official proceeding, to-wit: the preliminary hearing in State v. Robert Watters, Jr., Cause No. CR381-200F. " [emphasis added] The proof essential for conviction, therefore, was evidence of a transfer of money by Anding to George L. Hall with the purpose to induce Hall to absent himself from the Watters prosecution. § 575.270.
In the perspective of the issue as defined, we turn to the testimony of Susan Hall. She was presented as a witness for the prosecution, and her testimony, if allowed to stand, sustains conviction. The defendant contends that her trial narrative was for the most part inadmissible hearsay. That extensive testimony is punctuated with objections by counsel, voir dire examinations, offers of proof, and consultations at the bench. There were responses of admissible fact elicited from the witness [other than the observation of the theft of the boat], however, about which there is no cavil: Susan and George Hall were husband and wife, the parents of two children. The husband had been idle for some six months from the usual employment at Chrysler. The wife was a babysitter for hire. The johnboat and trailer were purchased from one Longreer for $500 about a year before the theft. The property was It was when inquiry turned to the subject of the Watters preliminary hearing prosecution that the hearsay objections of counsel were lodged. Susan Hall had responded that she and her husband had not been served with subpoena for appearance until some time in June of 1981. They did not appear [no doubt because, as Melenbrink testified, the cause was continued at the request of the prosecutor]. Susan then testified that they were again served with subpoena for July 30, 1981, but that she did not respond, although her husband did. The inquiry by the prosecutor continued:
insured under the Hall homeowners policy and on February 18, 1981 [about a month after the theft], the insurance company paid the Halls $500 for the loss, and they transferred title. George Hall purchased an Atari set with that sum. The only income available to the Hall couple during the early and middle of 1981 was the $105 weekly unemployment compensation George received and some $50 Susan earned weekly from babysitter work. During that period, however, husband George came into an unexplained sum of $2000. They used the money for a car and a carport.
Q. And how did your husband get to court? Who took him? Did he drive or did somebody take him?
A. No, Jim Anding came and picked him up in a brown van.
Q. Well why didn't you go to court with your...
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