State v. Buckner

Decision Date04 August 1975
Docket NumberNo. KCD,KCD
Citation526 S.W.2d 387
PartiesSTATE of Missouri, Respondent, v. John L. BUCKNER, Appellant. 27415.
CourtMissouri Court of Appeals

Willard B. Buch, Public Defender, Sixteenth Judicial Circuit, Robert A. Simons, Asst. Public Defender, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Clarence Thomas, Asst. Atty. Gen., Jefferson City, for respondent.

Before WASSERSTROM, P.J., and SHANGLER and DIXON, JJ.

SHANGLER, Judge.

The defendant was convicted for the armed robbery of taxicab driver Hatch and was sentenced to a term of imprisonment for five years in accordance with the verdict of the jury.

The conviction was returned on the evidence of witness Hatch that, as he stopped his Yellow Cab to discharge a fare, a young man (whom he identified as the appellant) engaged the conveyance and took a seat beside the driver. Immediately, two other men jumped into the backseat and directed Hatch to an address. As Hatch came to a stop at the designated destination, all three men announced it was a hold-up and loudly demanded his money. Hatch observed a gun held by one of the men in the backseat, and relinquished about $65 to them. He was commanded to go on, and pulled away leaving the trio standing on the sidewalk.

Hatch reported the incident to the police who initiated a search in which Hatch joined. The appellant was found standing on the sidewalk near the site of the robbery. He was taken into custody and while he and Hatch were alone momentarily in the police car, so Hatch related at the trial, the appellant offered: 'If you don't testify against me I'll pay you anything you want'. Upon cross-examination, Hatch disclosed that he had given a signed written statement to the police, but could not recall whether he had mentioned the offer attributed to the appellant at the trial.

The appellant Buckner took the stand and testified that he took no part in the robbery and that the other two, who were only casual acquaintances, got into the cab without previous intimation; that he was unarmed and all the incidents of the robbery were perpetrated by the other two, from whom he fled in fear afterwards. The only words he spoke to Hatch while together in the police car were: 'Man, it wasn't me that robbed you, I don't know who robbed you.'

In advance of trial the appellant by motion formally requested, and the court granted, discovery of

Any written or recorded statements or the substance of any oral statements of all persons whom the prosecuting attorney intends to call as witnesses at the trial. 1

In response, the State produced a copy of an unsigned statement of the witness Hatch, marked at the trial by appellant as his Exhibit 1. On cross-examination, counsel for appellant confronted witness Hatch with Exhibit 1, with the purpose of eliciting his acknowledgment that the statement was what it purported to be, a narrative to the police of the events leading to the charge, and to show that the statement made no mention of the offer attributed to the appellant by Hatch. After numerous objections by the prosecution, more jobation than orderly response, the court refused the exhibit as not the best evidence for the purpose intended since it was neither signed by the witness nor in his hand.

Counsel for the appellant resumed cross-examination of witness Hatch:

Q. Did you give a signed written statement to the police on that date or shortly thereafter?

A. Yes.

Q. And do you now recall whether or not you included mention of this conversation in that report?

A. I can't recall.

Thereupon, Mr. Simons, counsel for appellant, and Mr. Edwards, the prosecutor, approached the bench for the following proceedings. (Our emphasis throughout):

MR. SIMONS: Your Honor, at this time I'm going to move the Court for a mistrial based on the fact that if a signed and written statement does exist in the hands of the police as the witness has just testified that I was entitled to receive a copy of that statement under the discovery rules that have been enforced consistently in this jurisdiction during the past months in response to my discovery motion which was filed with the Court and which is part of the record of this case. I have received only this copy that Mr. Edwards has provided to me which is, as the Court has previously noted, unsigned and I was aware of no other report, signed or otherwise.

MR. EDWARDS: You received exactly what the discovery calls for, the substance of anything that was applicable to the case. I have provided you with copies of everything in our file. If you saw a report was not signed it is certainly up to you to find out if you wanted to use it or not use it and investigate your own evidence. It is not up to me. I provided you with the entire file including the copy you have just presented to the Court.

MR. SIMONS: Your Honor, I would like the record to reflect that I am not in any way or respect questioning Mr. Edwards' good faith in giving me what was in his file.

I would like to point out that the request was made for written statements of witnesses if they existed.

MR. EDWARDS: It doesn't say signed statements of anyone.

THE COURT: This is what the motion for discovery called for, any written or recorded statements or the substance of any oral statements of all persons the prosecuting attorney intends to call as witnesses at defendant's trial.

MR. EDWARDS: Which they have received.

MR. SIMONS: I would contend to the Court that the statement of this man as referred to is just such a statement and that I have not received it. All I have received is the one that I attempted to use in Court today.

MR. EDWARDS: Apparently you don't understand the English language or you didn't listen to the Judge. It doesn't say anything about the signed statement. It gives the context or content of the statement. You have had both in this trial.

THE COURT: The written statement would mean a signed statement, either hand written by him or typed by somebody else and signed by him or hand written by somebody else and signed by him.

MR. EDWARDS: It does not say signed, Your Honor.

THE COURT: That doesn't make any difference. It said written or signed statement and I think that a written statement means one that is signed by him or one which is not signed by him but written by him because in the same sentence or the substance of any oral statement. (sic)

Now if this was an oral statement that somebody took down that's one thing and that is differentiated from the written statement.

(This colloquy on the mistrial motion of the appellant for failure of the State to make discovery of the signed statement described by witness Hatch was then distracted by a comment of the prosecutor on the inadmissibility as evidence of Exhibit 1, the unsigned statement of Hatch, a ruling already made by the court and accepted by the appellant.)

MR. EDWARDS: In any event, your Honor, that doesn't relieve the defendant of the burden of best evidence.

THE COURT: I think that's true. It doesn't relieve him of the burden of the best evidence.

(The colloquy resumed with counsel for appellant probing the existence of, and reasserting his right to discover, a separate, signed statement by Hatch and the prosecutor and the court reconsidering the possible admissibility of the unsigned statement as evidence for purposes of impeachment.)

MR. SIMONS: From what I can determine from this witness' testimony there is another statement other than the one I have been given.

MR. EDWARDS: I don't determine that at all.

THE COURT: I suppose that you could hand this to him and ask him if he can tell whether or not from looking at it whether this is an exact copy of the statement that he gave to the police.

MR. EDWARDS: I think that is highly improper, your Honor.

THE COURT: I don't think so.

MR. EDWARDS: There is no way a man can say some months earlier this is not a copy, an identical copy of anything unless his signature is affixed thereto and is identical and signed on that date. He can say, yes, this is without any way to determine it actually is an exact copy but it still would not be admissible for the purposes as the defense attorney used it for. He has asked did he report it. That's all related.

MR. SIMONS: Your Honor, the motion I have made now is broader in its application and what Mr. Edwards is addressing himself--

MR. EDWARDS: You motion is so asinine. I directed it to your burden. It is not mine. You have the entire existence of this file.

MR. SIMONS: May I finish my statement?

MR. EDWARDS: Yes, you may.

MR. SIMONS: I am not questioning the existence of anything I have no idea whether there is another written statement except for the fact that this witness has testified here that he did make a written and signed statement to the police and what Mr. Edwards provided me with a written and unsigned statement (sic). I must presume at this point that we are referring to two different...

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