State v. Cameron

• Decision Date: 15 October 1980
• Docket Number: No. 40971.,40971.
• Citation: 604 S.W.2d 653
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Rodney CAMERON, Defendant-Appellant.
• Court: Missouri Court of Appeals

604 S.W.2d 653

STATE of Missouri, Plaintiff-Respondent, v. Rodney CAMERON, Defendant-Appellant.

No. 40971.

Missouri Court of Appeals, Eastern District, Division Four.

July 29, 1980.

Motion for Rehearing and/or Transfer Denied September 12, 1980.

Application to Transfer Denied October 15, 1980.

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Robert W. Meyers and David A. Bloch, Clayton, for defendant-appellant.

John Ashcroft, Atty. Gen., by Paul Robert Otto and Steven D. Stenhilber, Asst. Attys. Gen., Jefferson City, George R. Westfall, Pros. Atty., St. Louis, Clayton, for plaintiff-respondent.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 12, 1980.

SATZ, Judge.

Defendant was convicted by a jury, in Count I, of second degree burglary and stealing ("burglarious stealing", § 560.110 RSMo 1969) and, in Count II, of burglary, second degree (§ 560.070 RSMo 1969). He was sentenced to concurrent sentences, six years on each charge of burglary and three years for the charge of stealing. Defendant appeals. We affirm.

At approximately 2:00 a. m. on December 6, 1977, officers Dannie Wilhoit and Eddy Williams of the Overland police department responded to a burglar alarm at Brockmann's Radio Company, a retail store located in Overland, Missouri. As the officers entered the store, the defendant jumped from behind a display rack and attempted to wrest a shotgun from the hands of one of the officers. A struggle ensued. Defendant was subdued, arrested and searched. In searching defendant, the officers found sunglasses and other merchandise which did not come from the radio store. The officers then investigated the surrounding neighborhood and found a broken window at the Overland Optical Company, located in a building near the radio store. An inspection revealed the optical store had been ransacked. The merchandise, including the sunglasses, found on defendant was identified as merchandise from the optical store. Defendant was charged with burglary of and stealing from the Overland Optical Company ("burglarious stealing") and with burglary of Brockmann's Radio Company.

Defendant raises 7 main points on appeal, none of which are persuasive.

Defendant first contends the trial court erred in allowing the state to present the rebuttal testimony of Joseph Bono, a criminalist at the St. Louis police department. After the jury had been sworn and prior to opening statements, the state informed the court that it had just learned of an analysis which had been made of glass particles taken from the defendant's clothing. The state requested that Mr. Bono be endorsed for the purpose of testifying that these glass particles matched glass samples taken from the broken window at the optical store. The court denied this request but indicated that Mr. Bono's testimony could become proper rebuttal. At trial, defendant testified in his own behalf. He explained his presence at the scene of the alleged crimes by testifying that after work he visited a couple of bars, consumed over a case of beer and got drunk. The last bar was near the Overland Optical Company. He left the bar about 2:00 a. m. and, while crossing the street immediately in front of the optical store, he noticed the store's window was broken. He walked over to the window, saw "two or three pairs of sunglasses on the ground", picked up the sunglasses and put them in his pocket. In rebuttal, over defendant's objection, Mr. Bono testified that his laboratory analysis showed glass particles removed from defendant's clothing matched glass samples taken from the broken window at the optical store.

Defendant's complaint that Mr. Bono's testimony was not proper rebuttal rests upon a new definition of rebuttal evidence. Defendant concedes that rebuttal evidence includes evidence which tends to explain, counteract, repel or disprove evidence offered in defense. State v. Williams, 442 S.W.2d 61, 65 (Mo. banc 1968), rev'd on other grounds; State v. Kerr, 548 S.W.2d 295, 298 (Mo.App.1977). However, defendant would further restrict this definition by additionally limiting rebuttal evidence to evidence whose relevancy and materiality become apparent only after the introduction of a defendant's evidence. Thus, under defendant's definition, any evidence which is relevant and material to the state's case in chief would not be proper rebuttal, and this evidence must be introduced in the case in chief or not at all. Defendant reaches his new and more limited definition of rebuttal evidence by extending the witness endorsement requirement of Rule 25.32 to the order of proof at trial. Rule 25.32 requires the state to endorse all the witnesses it intends to call at trial. This requirement is nullified, defendant argues, if the state is permitted to call witnesses in rebuttal who could have been called in the state's case in chief. In the present case, if properly endorsed, Mr. Bono could have been called and his testimony elicited in the state's case in chief and, therefore, defendant reasons, the state should not have been permitted to call Mr. Bono and elicit his testimony in rebuttal. We disagree.

Defendant reads too much into the witness endorsement requirement of Rule 25.32. This requirement does not create the definition suggested by defendant nor compel the conclusion reached by him. The requirement simply limits the state's choice of witnesses in its case in chief to those witnesses disclosed to defendant. The requirement is not designed to control the order of proof at trial. The order of proof is left to the good sense and discretion of the trial court. Thus, whether a witness may be a proper rebuttal witness is determined by the trial court witout regard to Rule 25.32, and rebuttal witnesses need not even be endorsed. E. g. State v. Hooker, 536 S.W.2d 487, 490 (Mo.App.1976). Furthermore, evidence admissible in the state's case in chief and evidence admissible in rebuttal are not mutually exclusive categories and, contrary to defendant's bald conclusion, Rule 25.32 does not create such categories. The fact that the challenged evidence could have been presented in the state's case in chief does not require its preclusion from rebuttal. State v. Adams, 465 S.W.2d 536, 540 (Mo.1971); State v. Feltrop, 343 S.W.2d 36, 38 (Mo.1961). "It is within the trial court's broad discretion to allow evidence in chief to be introduced in rebuttal." State v. Hoyel, 534 S.W.2d 266, 269-270 (Mo.App.1975); State v. Feltrop, supra; see also, State v. Washington, 320 S.W.2d 565, 567 (Mo.1959). Having been shown no compelling reason for a change in the law, we decline to accept defendant's new definition of rebuttal evidence.

Defendant also complains that Mr. Bono's testimony was not proper rebuttal evidence under the presently accepted definition of rebuttal. We disagree. Rebuttal evidence may explain, counteract, repel or disprove a defendant's evidence either directly or by implication. State v. Myers, 538 S.W.2d 892, 898 (Mo.App.1976). The precise scope of the rebuttal testimony is within the discretion of the trial court. State v. Huff, 454 S.W.2d 920, 923 (Mo. 1970). Here, defendant admitted he approached the broken window at the optical store and picked up some sunglasses outside the store. By implication, Mr. Bono's testimony showed that defendant accumulated the glass particles on his clothing while entering the store through the broken window. Therefore, the admission of Mr. Bono's testimony as rebuttal was within the trial court's discretion.

Defendant next contends the trial court erred in allowing the endorsement of a police dispatcher, Officer Richard Lloyd, during trial. We disagree.

During opening statement, defendant's counsel stated his evidence would show that defendant did not break and enter either store and that another known burglar was at the scene of the crimes. The known burglar, according to defendant's counsel, was a Lt. Dempsey of the Overland police department. From questions and additional statements made by defendant's counsel during the state's case in chief, it appeared that defendant's counsel was going to pursue the implied defense that Lt. Dempsey committed the crime or crimes in question rather than defendant. In anticipation of this defense, the state, in its case in chief, requested that Officer Lloyd be endorsed for the purpose of testifying that he and Lt. Dempsey were present at the station when the burglar alarm sounded indicating a burglary at Brockmann's Radio Company. Over defendant's objection, Officer Lloyd was endorsed and so testified. Defendant contends he was surprised by this late endorsement and the late endorsement violated Rule 25.32. He also contends that before permitting Officer Lloyd to testify, the trial court should have required the state to show the unavailability of Lt. Dempsey, because Dempsey was an endorsed witness who could testify about the same subject matter.

Defendant's claim of surprise, based on the late endorsement of Officer Lloyd, raises two separate but parallel questions about the trial court's exercise of its discretion: (1) whether the trial court abused its discretion to control the endorsement of witnesses and (2) whether the trial court abused its discretion to control the order of proof at trial and improperly permitted Officer Lloyd's rebuttal testimony to be elicited in the state's case in chief. Rule 24.17 specifically authorizes endorsement of witnesses at any time upon order of court. This rule vests broad discretion in the trial court to permit late endorsements, and we will not reverse a judgment of conviction "because the name of a witness was endorsed. . . during trial unless it is shown that defendant was thereby prejudiced". State v. Jordan, 532 S.W.2d 776, 780 (Mo.App.1975). The mere fact of late endorsement does not in itself show prejudice. See State v. Barker, 572 S.W.2d 185, 187 (Mo.App.1978).

Moreover, the trial court has equally broad discretion to control the...