State v. Brauch, 36765

• Citation: 529 S.W.2d 926
• Decision Date: 04 November 1975
• Docket Number: No. 36765,36765
• Parties: STATE of Missouri, Respondent, v. Donald BRAUCH, Appellant. . Louis District, Division Four
• Court: Court of Appeal of Missouri (US)

Page 926

529 S.W.2d 926

STATE of Missouri, Respondent, v. Donald BRAUCH, Appellant.

No. 36765.

Missouri Court of Appeals, St. Louis District, Division Four.

Nov. 4, 1975.

Paskal, Edwards, Olian & Hadican, J. Martin Hadican, Clayton, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

ALDEN A. STOCKARD, Special Judge.

Donald Brauch, charged with murder in the first degree was found guilty thereof by a jury and sentenced to the custody of the Missouri Department of Corrections for Life.

Appellant does not challenge the sufficiency of the evidence. We need only relate that from the evidence a jury reasonably could find that in Lincoln County, Missouri, on February 10, 1973, appellant shot and killed Dennis Wayne Cox under circumstances that would constitute murder in the first degree.

Appellant first asserts that it was error for the trial court to permit the testimony of police officer Kenneth A. Koch when he had not been endorsed on the information.

The prosecuting attorney stated to the court that he had first learned of the witness the previous afternoon, and he proposed that if appellant was surprised or believed he was prejudiced because the name of the witness had not previously been endorsed, a recess should be declared to permit appellant to take the deposition of Officer Koch. That proposal was not accepted. Instead, appellant merely objected to Officer Koch being permitted to testify and orally asserted surprise.

Officer Koch was permitted to testify that Exhibit 10 was a 'master fingerprint index card' from the records of the St. Louis County Department of Police showing the fingerprints of Dennis Wayne Cox, the victim of the murder charged against appellant, and that he had prepared the card, or as stated in the record, he had 'rolled these prints.' The prosecuting attorney relied on the provision of Rule 24.17 that 'It shall not be necessary to endorse upon the indictment or information the name of any person who appears upon the trial for the production or identification of public records.' Appellant's contention is that Officer Koch was not the custodian of the records and he testified to more than a witness would have done who, as custodian of the public record, appeared to identify the record because he testified that he prepared the record. In substance, it is appellant's contention that the only person who need not be endorsed upon an indictment or information, pursuant to the paragraph quoted above from Rule 24.17, is the custodian of a public record who appears to testify pursuant to the Uniform Business Records as Evidence Act, § 490.660 et seq., RSMo 1969.

Aside from the broad discretion in the trial court to permit the endorsement of the names of additional witnesses on the indictment or information under certain circumstances, State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969), which in our opinion would permit the testimony of Officer Koch, we conclude that the court correctly permitted the officer to testify.

There is no contention that Exhibit 10, consisting of the 'master fingerprint index card' from the records and files of the St. Louis County Police Department, was not a public record. Prior to the adoption of the Uniform Business Records as Evidence Act, in order to prove the contents of a public record it was necessary to produce as a witness the person who made or prepared the record, an impossibility in many cases. 'The purpose of the act has been stated to be to eliminate the necessity of calling, qualifying, and interrogating each person who made the individual entries, * * *.' 30 Am.Jur.2d Evidence § 933. The best evidence of the identity of a public record is the testimony of the person who actually prepared the record and made the entries thereon. When that person is not available as a witness, the Uniform Business Records as Evidence Act permits other identification. There is nothing in Rule 24.17 which requires or intimates that the production or identification of a public record can be made, as appellant contends, only by the custodian of that record. Officer Koch did not testify to anything other than that the card identified as Exhibit 10 was prepared by him and that it was a record of the St. Louis County Police Department. When the witness was not the custodian of that record, which he was not, the fact that he prepared the record was the basic fact necessary for its production or identification as authorized by Rule 24.17. The trial court did not err in permitting the testimony of Officer Koch.

Appellant also contends he was denied due process of law 'by the failure of the State to disclose in full the agreement that had been made with Charles Wheeler, the principal witness for the prosecution, in return for his testimony' implicating appellant as the one who killed Dennis Wayne Cox. We note here that Wheeler was also charged with the murder of Cox, and that he testified that he was present and saw appellant shoot Cox in the head with a pistol, and that after he helped appellant throw Cox's body in a ditch where it was later found, he saw appellant again shoot Cox, this time with a shotgun.

Appellant does not purport to set forth in the point the terms of the agreement which he contends were not revealed. This is not in compliance with Rule 84.04(d). However, in a most liberal exercise of judicial discretion we have looked to the argument portion of appellant's brief and we there find that he contends that in addition to the agreement, testified to by Wheeler, that in exchange for his testimony the prosecutor would recommend to the court that upon a plea of guilty Wheeler be sentenced to a term of twenty-five years to run concurrently with other sentences, the prosecutor also agreed that Wheeler would be confined 'in the Lincoln County Jail for a substantial period of time, approximately eight (8) months, after formal sentencing and prior to confinement in the penitentiary.'

There is no testimony or evidence in the record to the effect that the agreement between the prosecuting attorney and Wheeler included the additional provision as now asserted by appellant. Appellant attempts to support this contention by referring to matters outside the record, such as the information by which Wheeler was charged with murder, and the judgment and sentence imposed following a plea of guilty. These records do not in anyway support appellant's contention. Appellant relies primarily upon the alleged fact, but this also is not shown in the record, that Wheeler remained at the Lincoln County Jail for several months after judgment was entered. It is speculation only on the part of appellant that the reason Wheeler remained at the Lincoln County Jail, if he did, was the result of an agreement with the prosecutor. If speculation were permitted, the reason may have been that there were negotiations between the Missouri, Illinois and Federal authorities as to where he was first to be confined, or that the officials of the institution where he was to be confined delayed in transporting him.

In this case the appellant was advised that there was an agreement between Wheeler and the prosecutor. If appellant desired to pursue the matter further he could have cross-examined Wheeler as to whether all the terms thereof had been disclosed, or he could have called upon the prosecutor to reveal the terms, neither of which he did. There is nothing in the record to indicate any intentional concealment by the prosecution. The bald assertion by appellant in his brief that terms existed, other than those previously revealed, does not prove itself. State v. Sims, 501 S.W.2d 161 (Mo.1973). Appellant's claim must fail for lack of proof.

Appellant next asserts that the trial court erred 'in not permitting (him) to question witness Williams in the presence of the jury, having determined through examination of witness Paul Williams out of the hearing of the jury that the jury had not been fully informed of the agreement between the State and Wheeler.'

Mr. Williams was the appointed attorney for Wheeler. He was called as a witness by appellant, and when he was asked about plea negotiations on behalf of Wheeler the trial court called for a conference with counsel. Two conferences were held 'off the record,' but there is absolutely nothing in the record to indicate, as asserted by appellant, that the court examined Mr. Williams and determined that the jury 'had not been fully informed of the agreement between the State and Wheeler.' Therefore, the only language in the point that pertains to a possible issue is that the court erred 'in not permitting (appellant) to question witness Williams in the presence of the jury,' and this is so indefinite as to present nothing for appellate review. However, again in the exercise of our discretion we have looked to appellant's argument in effort to ascertain his real contention.

Following the first conference, counsel for appellant said: 'It is my understanding from the Court's previous statement made off record * * * that he is not going to permit the defendant to inquire of Paul Williams * * * as to whether or not (the prosecutor) has made a deal with witness Wheeler, also a co-defendant. That if he were to testify in the case against (appellant), that he would recommend twenty-five years to this Court * * * to run concurrent with his present sentence, but that if this Court did not go along with it, that he would dismiss the charge.' The Court then corrected the statement of appellant's counsel as follows: '* * * the Court did not put it quite in the language you did. The Court is not refusing to allow Mr. Williams to testify. The Court says that couns...