State v. Carr, 40409

• Court: Court of Appeal of Missouri (US)
• Citation: 610 S.W.2d 296
• Docket Number: No. 40409,40409
• Parties: STATE of Missouri, Respondent, v. Elmer CARR, Appellant.
• Decision Date: 26 August 1980

Page 296

610 S.W.2d 296

STATE of Missouri, Respondent, v. Elmer CARR, Appellant.

No. 40409.

Missouri Court of Appeals, Eastern District, Division Two.

Aug. 26, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 17, 1980.

Application to Transfer Denied Dec. 15, 1980.

Shaw, Howlett & Schwartz, James J. Knappenberger, Clayton, for appellant.

Joseph R. Aubuchon, Asst. Pros. Atty., Union, John Ashcraft, Atty. Gen., Paul Robert Otto, Robert Presson, Asst. Attys. Gen., Jefferson City, for respondent.

PUDLOWSKI, Judge.

Defendant, Elmer Carr, appeals a jury conviction of murder in the second degree, with a sentence of fifteen years imprisonment.

On January 31, 1976, Maurice Mense was a bartender at the Town and Country Club in Washington, Missouri. During the evening of that day two female patrons of the bar began to fight. The evidence shows that defendant and a companion, Peter Bauer, who had accompanied one of the fighting women to the bar, joined in the fight. Defendant Carr and Bauer knocked Mense to the floor, beat and kicked him. As a result Mense's leg was broken. He was immediately hospitalized and his leg placed in a cast. Mense was released from the hospital on February 11, but readmitted two days later. Mense's condition deteriorated and he died of a pulmonary embolism on February 26, 1976.

Defendant's first contention concerns the prosecution's failure to produce x-rays of Mense's broken leg. The x-rays were taken when he reentered the hospital and revealed a misalignment of the fracture. Defendant timely filed a motion to produce the x-rays. They were previously used by the prosecution and defense in the trial of defendant's companion, Peter Bauer. Unfortunately the x-rays could not be located at the time of the defendant's trial. Because of the missing evidence, defendant filed a motion to dismiss or in the alternative for a continuance under Rule 25.08(b). ¹ The trial court denied the motions. The x-rays were subsequently found in the chambers of the judge who heard the previous trial. However, the discovery was too late to be utilized in defendant's trial.

Defendant claims the trial court erred in denying his motion to dismiss or for a continuance because the prosecution had suppressed the x-rays in violation of his right to due process as guaranteed by the fourteenth amendment to the United States Constitution. Defendant cites Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to support his contention. Brady held that the prosecution violates due process by suppressing evidence favorable to and requested by an accused person where the evidence is material to either guilt or punishment.

The state argues that the facts of the instant case cannot support a claim under Brady because the x-rays had been misplaced by state officials not involved in prosecuting defendant Carr and because the x-rays were unavailable to both parties during the trial. See U. S. v. Johnston, 543 F.2d 55 (8th Cir. 1976).

The state relies too heavily on the prosecution's lack of actual possession of or control over the evidence. It defies common sense to contend that the state may avoid its responsibility to produce requested material evidence under a shield of negligence.

The deception from a negligent nondisclosure causes no less injury to the administration of criminal justice than a suppression made by design or guile. The duty to disclose whether under Brady or Rule 25.32, rests on the prosecution and if the material and information are within his possession or control, the cause of his failure cannot soften sanction.

State v. Dayton, 535 S.W.2d 469, 477 (Mo.App.1976). The fact that the prosecution could not locate physical evidence entrusted to it does not relieve it of its responsibility. If the prosecution loses or in some way deprives the defense the use of an item of material evidence entrusted to it, a new trial will be ordered "irrespective of the good or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83 at 87, 83 S.Ct. 1194 at 1197, 10 L.Ed.2d 215.

We emphasize that the evidence must be material and that there must be established that the state was responsible for the evidence's safekeeping. In the present circumstances the prosecution took possession and signed for x-rays when defendant's accomplice, Peter Bauer, was tried. At the end of the prosecution of Peter Bauer the trial court admonished both parties that they were responsible for regaining possession of all exhibits. The state cannot now ignore that admonishment by contending that it could not produce this evidence because it lacked possession or control.

The vital point which remains is whether the evidence which was not produced was material to defendant's guilt or innocence. Essentially, the question is whether the failure to produce the evidence resulted in a fundamental unfairness to the defendant. State v. Moten, 542 S.W.2d 317, 320 (Mo.App.1976); State v. Buckner, 526 S.W.2d 387, 393 (Mo.App.1975). Upon the failure or inability of the prosecution to produce evidence, the imposition of a sanction is within the sound discretion of the trial court. Rule 25.16; State v. Davis, 572 S.W.2d 243, 248 (Mo.App.1978). An abuse of discretion occurs only where the trial court fails to impose a sanction when the nonproduced information was of such a character that a reasonable likelihood existed that it would have affected the outcome of the trial. State v. Davis, 572 S.W.2d at 249. In the instant case no such abuse occurred because the x-rays were not material to either defendant's guilt or punishment. They would only have shown that the fracture was misaligned upon the victim's readmittance to the hospital. This fact was independently established by undisputed medical testimony. Therefore it cannot be said that the trial court abused its discretion in denying defendant's motion.

The defendant, in the alternative, argues that the court erred by not granting a continuance to give the defendant time enough to locate the evidence. In the pretrial hearing the prosecution and defense offered evidence demonstrating their individual diligence in attempting to locate the x-rays. The testimony convinced the trial court that the x-rays were actually misplaced and undiscoverable. Since there was no testimony that there was a reasonable probability that the x-rays would be located within the foreseeable future the trial court did not abuse its discretion by denying defendant's motion for a continuance. State v. Johnson, 539 S.W.2d 493, 505-506 (Mo.App.1976).

The defendant's second contention is that the court erred in admitting two out of court statements of the victim under the dying declaration exception to the hearsay rule. One of the statements was made to a Mr. Welscher on the day before the victim's death. The second statement was made to a police officer, Captain Malone, some twenty-five days before the victim's demise. To be admissible a dying declaration must be uttered while the declarant believes death is...