State v. Brown, 41252.
| Decision Date | 29 July 1980 |
| Docket Number | No. 41252.,41252. |
| Citation | 604 S.W.2d 10 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Gary Sylvester BROWN, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Samuel Raban, St. Louis, for defendant-appellant.
John Ashcroft, Atty. Gen., Paul Robt. Otto, Asst. Atty. Gen., Jefferson City, Mary C. P. Pincus, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
A jury found defendant guilty of the crimes of operating a motor vehicle without the owner's consent and assessed punishment at a $100.00 fine and of robbery first degree with punishment of five years imprisonment. Defendant appeals from the judgment entered upon the jury verdict.
Defendant contends that the trial court erred in (1) permitting the introduction of evidence of crimes other than those for which defendant was charged, (2) permitting certain exhibits into evidence where the State failed to disclose them prior to trial, (3) permitting irrelevant pieces of clothing into evidence, (4) restricting cross-examination of State witnesses, and (5) orally instructing jurors.
Defendant does not question the sufficiency of the evidence to support the judgment and we therefore state the facts briefly.
On February 25, 1978 Mary Alice Turner's 1973 green Gremlin automobile was stolen from in front of her residence.
Defendant was seen driving the green Gremlin for about two weeks prior to March 14, 1978. On that date, defendant, with two other young men riding in the car with him, drove up to Christopher Moore, age 12 who was standing on the corner of Taylor and Carter Avenues selling candy for a charity. Defendant said to his companions, "I know he got some money." Christopher Moore started to flee. The two passengers got out of the car and ran after Christopher, one of them pointed a gun at him, and they took the candy and thirty dollars in cash.
The victim, who knew the defendant, reported the incident to a police officer and gave the officer defendant's address. The Gremlin was subsequently stopped by police and the defendant, who was driving the car, jumped out and ran. A shot was fired by a police officer but defendant kept running. He was later found in the basement stairwell of his home with a small wound from a shotgun pellet in the back.
In his defense defendant, who was 18 years of age, testified that at the time of the robbery he was at the home of Mrs. Doris Moore watching television. Defendant was a friend of Mrs. Moore's grandchildren. Mrs. Moore asked him to purchase some beer for her and gave him a $20.00 bill for that purpose. When he left the house he saw three friends of his in the green Gremlin. He testified that they drove him to the store where he purchased the beer and drove him back to Mrs. Moore's. He got out of the car and started up to the door when he was shot. He stated that he had not removed the beer from the car at the time.
Because defendant's issues deal primarily with the admission and exclusion of evidence and instructions we shall develop the facts with respect to those issues as they arise.
Defendant's first point questions the admissibility of three areas of testimony. He first objects to the testimony of Ms. Turner, the owner of the Gremlin automobile, that the license plates on her car, when it was recovered, were not the plates that were on the car when it was taken, and of the testimony of a Mr. Cogut that on March 1, 1978 the witness noticed that his license plates had been removed and replaced by the license that had been removed from Ms. Turner's car. Mr. Cogut's license was found on Ms. Turner's car when it was recovered. It is defendant's position that this constituted impermissible evidence of other crimes. Defendant has not preserved this matter for our review because he made only general objections to this evidence at the trial.1 State v. Lang, 515 S.W.2d 507 (Mo.1974). No reference to this testimony was made in defendant's motion for new trial. State v. Edwards, 574 S.W.2d 956 (Mo.App.1978).
Defendant also complains of the admission into evidence of photographs of the interior of the Gremlin automobile that show a six pack of beer because it constituted evidence of other crimes in that defendant was a minor at the time of his arrest. Defendant however, did not object to the introduction of this evidence and thus the issue has not been preserved. State v. McKinney, 475 S.W.2d 51, 55 (Mo.1971). Further, when the court originally announced that it was not going to admit this evidence, counsel for defendant stated "may I take exception as to why the liquor was not admitted?" It was only after defendant indicated that the pictures should be in evidence that they were admitted. It is apparent that defendant wanted these pictures in evidence because the presence of the beer was corroborative of defendant's testimony that he made a purchase of beer for Mrs. Moore. Defendant obtained what he wanted; he may not now complain of admission of this evidence. State v. Williams, 486 S.W.2d 201 (Mo.1972).
Defendant also complains of the introduction into evidence of items of clothing that were found in the Gremlin automobile because they constitute evidence of other crimes. Defendant made no objection when these items were identified. The only objection made when they were offered into evidence was:
This objection pertains to the next issue raised by defendant which will be discussed below. It does not raise the issue which defendant argues at this point. The points relied on upon appeal must be based upon the objections made in the trial court. Defendant may not broaden his trial objections on appeal. State v. Jones, 515 S.W.2d 504 (Mo.1974).
Defendant next contends that the court erred in admitting into evidence exhibits consisting of photographs, clothing, beer, and fingerprints because they were not made available to defendant prior to trial in response to his general motion for discovery.
We consider first defendant's objections to the introduction of the photographs into evidence. On the first day of trial after the voir dire the State had the court reporter mark all the photographs as exhibits. On the morning of the second day of trial the State sought to have a witness identify some of the photographs when defendant objected because the photographs had not been previously made available to the defense. After some discussion out of the hearing of the jury, defendant's counsel requested three hours time to check the photographs of the locations involved in the case. The following then occurred:
Subsequently the following occurred in chambers:
Under Rule 25.32(A)(6)2 the State upon motion for discovery was required to produce the photographs for inspection or be subject to sanctions under Rule 25.45. Defendant contends that the court should have excluded the photographs. Whether a sanction is to be imposed or the nature of the sanction, if imposed, is a matter within the discretion of the trial court. State v. Sykes, 559 S.W.2d 643, 646 (Mo.App.1977). The sanctions which a court may impose against the party failing to produce when the matter is brought to its attention are to "order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances." Rule 25.45. Exclusion of the evidence not previously disclosed is but one of the sanctions that a court may impose. In the instant case the court required the State to make all of the proposed exhibits available to the defendant. The court took a recess and the defendant and his counsel were given an opportunity to examine the exhibits and to determine whether they required anything further after viewing the exhibits. After viewing the exhibits counsel stated he was not satisfied but stated "I'll accept it." When asked what more he wanted counsel did not answer but complained that the Circuit...
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