State v. Bebee, 10658
| Decision Date | 13 February 1979 |
| Docket Number | No. 10658,10658 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Jesse BEBEE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Carson Elliff, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
Charles Buchanan, Public Defender, Joplin, for defendant-appellant.
Jesse Bebee, appellant herein, was charged by information filed April 9, 1976, with felonious assault upon a fellow prisoner in the Jasper County Jail. Appellant was convicted after a trial by jury and sentenced to a term of five years. Appeal is taken from this conviction upon the following grounds:
(1) The trial court erred in overruling appellant's motions for mistrial or continuance based upon the prosecutor's failure to disclose an exculpatory statement in violation of Rule 25.32.
(2) Failure to disclose the exculpatory statement was a violation of due process.
(3) The trial court erred in denying a new trial based upon the ground that the exculpatory statement discovered during the course of the trial constituted newly discovered evidence.
Before discussion of the facts directly relevant to the grounds alleged as the basis for reversal, a brief statement regarding the underlying incident is required. It was undisputed at trial that appellant was involved in an assault upon one Sam Rankin while they were prisoners in the Jasper County Jail. The nature of appellant's involvement was sharply contested however. The victim and another prisoner, Ricky David Barnett, testified that appellant held the victim while he was beaten by Chris Brownfield, another prisoner. Appellant and Chris Brownfield, however, testified that appellant intervened only to stop a fight between Brownfield and Rankin. Carl Greeson, the chief jailer, testified that appellant had been placed in the cell because it was thought that he would have a "calming effect" on other prisoners.
Turning now to the facts which are directly related to the issues at hand, on January 10, 1977, the public defender filed a motion for discovery on appellant's behalf pursuant to Rule 25.32, requesting of the state, inter alia:
"(6) Any material or information within the possession or control of the State which tends to negate the guilt of the defendant as to the offense charged or mitigate the degree of the offense charged or reduce the punishment."
After filing the motion for discovery the public defender went to the prosecutor's office to seek discovery of information. 1 At the prosecutor's office, the public defender requested and received his client's file. Finding little information in his client's file, he asked the secretary if there were anything in the Brownfield file, a companion case, which was not in appellant's file. In response to this request the prosecutor's secretary went into the prosecutor's office and returned with an inculpatory statement (hereinafter State's Exhibit 7) made by Ricky David Barnett. The public defender was given State's Exhibit 7, and told by the secretary that there was no other material in the file other than an information showing the charges in the companion case. State's Exhibit 7, in addition to accusing appellant of holding the victim while he was beaten, contained the following statement:
During recess of appellant's trial, the public defender was informed by Carl Greeson, the chief jailer, that the statement referred to in State's Exhibit 7 had been turned over to the prosecutor's office. The public defender then requested that the prosecutor check to see if he could locate the statement. Within 5-10 minutes the prosecutor returned with the statement (hereinafter State's Exhibit 6) and told the public defender that it had been located in the Brownfield file where State's Exhibit 7 had been found.
State's Exhibit 6 contained the following statement:
On the back appeared the signatures of ten others, including appellant, Kelly Baggerly and James Seifried.
When the trial resumed, the public defender moved for either a mistrial or a continuance to afford an opportunity to interview the witnesses who signed the statement. Both motions were denied. After appellant's conviction, a hearing on appellant's motion for a new trial was held, but the motion was denied.
Rule 25.32(A) provides that:
In State v. Stapleton, 539 S.W.2d 655, 659(4, 5) (Mo.App.1976) the court stated:
Thus, the first inquiry is whether the rules of discovery have been violated.
Respondent argues that in order for the suppression of evidence to be established as error it must be established that the state "willfully" suppressed the evidence. The cases cited by respondent are not on point. The correct rule is stated in State v. Dayton, 535 S.W.2d 469, 477(14) (Mo.App.1976):
"The duty to disclose, whether under Brady or Rule 25.32, rests on the prosecutor, and (if) the material and information are within his possession or control, the cause of his failure cannot soften the sanction."
The respondent, like the trial court, places considerable weight upon the fact that an agreement existed between the prosecutor and the public defender, whereby the prosecutor agreed to open his files for inspection. It is argued that this constitutes compliance with Rule 25.36 2 and that the sanctions under Rule 25.45 3 are therefore inapplicable. Respondent's contention, however, ignores the fact that the duty to disclose is placed upon the prosecutor. State v. Dayton, supra. Even in the absence of a request, the prosecutor has an affirmative duty to disclose exculpatory evidence. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Abernathy, 525 S.W.2d 414, 416(1) (Mo.App.1975). In this case the public defender made a written request for disclosure as required by Rule 25.32 and attempted to obtain discovery of the information, but was informed by the prosecutor's secretary that the file contained only State's Exhibit 7. Respondent seeks to absolve the state of its responsibility to disclose by claiming that the secretary was unauthorized to speak on such matters. The record reveals, however, that the door to the prosecutor's office was closed, and that the public defender has assumed that the secretary had consulted with the prosecutor when she went into the office to obtain the file. Moreover, if the prosecutor's staff undertakes his duty to disclose without authority to do so it is the prosecutor who should suffer the consequences. The manner of discovery utilized in this case necessarily creates a risk of nondisclosure. When such nondisclosure occurs the state has failed to comply with the rules of criminal discovery. 4 Cf. State v. Dayton, 535 S.W.2d 469, 477(14) (Mo.App.1976).
Having concluded that the prosecutor's office failed to comply with the rules of discovery, the question remains whether the appellant is entitled to a new trial because of the nondisclosure. The mere failure to disclose does not in and of itself entitle appellant to a new trial; it must be shown that the nondisclosure resulted in fundamental unfairness, see State v. Davis, 556 S.W.2d 45, 48 (Mo. banc 1977); State v. Harrington, 534 S.W.2d 44, 48 (Mo. banc 1976); State v. Helms, 559 S.W.2d 587, 590 (Mo.App.1977); State v. Broyles, 559 S.W.2d 614, 615 (Mo.App.1977), or that the trial court abused its discretion in refusing to apply a proper sanction under Rule 25.45. State v. Davis, supra.
As the rules of discovery are the embodiment of due process, the guidelines set by United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) are instructive. In Agurs the Supreme Court concluded that the test for fundamental unfairness may vary depending upon the cause of the government's failure to disclose. Where, as in this case, there is merely a general request for "anything exculpatory" and the prosecutor innocently fails to disclose, due process requires reversal only "if the omitted evidence creates a reasonable doubt that did not otherwise exist . . . ." United States v. Agurs, supra, at 427 U.S. 112, at 96 S.Ct. 2402. This test also applies to nondisclosure under the rules of discovery. See State v. Helms, supra. In Helms the court stated at 590:
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