State v. Cox, 36903

CourtCourt of Appeal of Missouri (US)
Citation542 S.W.2d 40
Docket NumberNo. 36903,36903
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Donald Garfield COX, Defendant-Appellant. . Louis District. Division Three
Decision Date10 August 1976

Page 40

542 S.W.2d 40
STATE of Missouri, Plaintiff-Respondent,
Donald Garfield COX, Defendant-Appellant.
No. 36903.
Missouri Court of Appeals, St. Louis District. Division Three.
Aug. 10, 1976.
Motion for Rehearing and for Transfer to Supreme Court
Denied Sept. 30, 1976.
Application to Transfer Denied Nov. 8, 1976.

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William Shaw, Public Defender, Richard L. Rodemeyer, Asst. Public Defender, Clayton, for defendant-appellant.

Courtney Goodman, Jr., Pros. Atty., and Frank J. Kaveney, Asst. Pros. Atty., Clayton, John C. Danforth, Atty. Gen., Preston Dean, Paul Otto, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

SIMEONE, Presiding Judge.

Defendant-appellant, Donald Garfield Cox, was charged, tried and found guilty by a jury of murder in the first degree and sentenced by the court to life imprisonment. § 559.010, RSMo 1969. He appeals. On this appeal he raises two contentions: that the trial court erred (1) in permitting the state on redirect examination to interrogate a state's witness concerning prior statements which were consistent with direct examination but inconsistent with statements made on cross-examination, and (2) in precluding the defendant from testifying as to his 'movements and location' on the day of the alleged murder for the reason that the defendant or his counsel did not comply with an order to disclose a defense of alibi. Rule 25.34(A)(5). For reasons hereinafter stated, we affirm the judgment of conviction.

On December 27, 1973, Mr. Edward Meixner was killed. The appellant, Donald Cox, was arrested for the murder on the evening of December 27, 1973, later released and then rearrested on February 17, 1974, for the offense. On March 18, 1974, he was indicted but was subsequently charged by information in lieu of indictment with two prior convictions and with the murder of Meixner. The information charged that defendant Cox assaulted Meixner with a 'board, bottle and knife' and that the victim died therefrom.

Prior to trial, the state, on July 15, 1974, filed its motion to produce and requested among other matters:

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'The names and addresses of witnesses to any alibi defense as well as the location of such alibi defense. Rule 25.34(A)(5). Said alibi defense is in regard to an alleged incident which occurred on December 27, 1973 . . . between the hours of 9:00 a.m., and 3:39 P.M. Rule 25.34(A)(5).'

The motion was sustained. On September 27, 1974, defendant's answer to the state's request for disclosure was filed, which read in pertinent part as follows:

'5(a) Any intent of the Defendant to rely on the defense of alibi: Yes.

'5(b) Location where Defendant claims to have been: Location uncertain.

'5(c) Names and addresses of any witnesses to establish said alibi: None other than all State's witnesses.'

Apparently not satisfied with this response, the state moved to compel defendant to notify the state and the court 'of any intent to rely on the defense of alibi and the location where the Defendant claims to have been and the names and addresses of any witnesses to establish said alibi . . ..' This motion was also sustained. In response, defense counsel, on November 22, 1974, forwarded a letter to the prosecutor which stated:

'This is notification that the defense may assert that Defendant was not present at the scene of the crime when it occurred. His location is uncertain. Other than the Defendant, should he testify, I have no witnesses or addresses to give you.' (Emphasis added.)

Trial was held in December, 1974. The jury could reasonably find the following facts.

Mr. Meixner lived in a 'shack' in a wooded area in Berkeley, St. Louis County. He had been known to be a heavy drinker. On the morning of December 27, 1973, Mr. Meixner was driven to the home of his friend, Roger Melton, who lived a few blocks away from the deceased. When he came to Melton's home, Meixner 'was carrying a bottle and drinking . . ..' '(H)e wasn't loaded but he was getting that way pretty fast . . ..' After a little while, Melton and Meixner drove to Meixner's house in Melton's car and 'drove right in the drive-way or in the yard, more or less.' On the way to Meixner's house they saw a pickup truck in which were Jack Hall and the appellant, Donald Cox. Hall and Cox, also acquaintances of Meixner, pulled into the Meixner driveway. Hall and Cox 'got out of the pickup truck and got in the back of my (Melton's) car.' Melton was in the driver's seat, Meixner was in the front passenger's seat, Hall was sitting behind Melton and Cox behind Meixner. They all sat there drinking. There was some discussion about going to a tavern in Pine Lawn. According to Mr. Melton, 'Cox said, will you (Meixner) pay for the drinks when we get down there?' Meixner 'said, yes, I've got the stuff to do it with.' With that, Melton testified that 'Ed (Meixner) was pulling something out of his pocket and putting his hand back in his pocket. . . .' According to Jack Hall, when Cox asked Meixner if he would buy, 'Ed says 'Yes' . . . he had a little bit of money folded, you know, green, folded in a thing like that, and when he pulled it out Don (appellant) kind of raised up in the seat . . .' Hall saw the money and saw 'Don raise up and look just like that at the money.' 1 Eventually, Hall and the appellant left in the pickup truck. And Meixner left the Melton automobile and went into his house. Melton waited until Meixner got into the house, 'decided to go in and see if he was all right and he was sitting in a chair with his head over on the cot and I (Melton) asked him if he was all right and he said, yes, and so I put a little wood in the stove and turned around and went home.'

Prior to the events of the morning of December 27, 1973, and before Messrs. Hall and Cox met Melton and Meixner at Meixner's driveway, Hall and Cox had been at a tavern that night until about 2:00 a.m. At about 2:00 a.m., early in the morning of the

Page 44

27th, the two men went to the home of Barbara Finley, a friend of Cox's, who resided on Springdale Ave. Hall went to bed there, but Cox and Barbara Finley sat up 'talking.' About 7:00 a.m. Hall and Cox left the Finley home, 'took a ride over through Ferguson' and that is when they met Melton and Meixner in Meixner's driveway. They sat there and drank 'maybe forty-five . . . minutes and then we took Don (Cox) to Springdale (Barbara Finley's home).' Hall left Cox off and 'went to Smith Brothers Junk Yard.' 'That was about 9:30 or 10:00.' When Cox returned to Barbara's home, according to Barbara Finley, '(h)e asked me for the butcher knife.' She told him it was 'underneath the mattress, under my bed.' After he asked for the knife '(h)e stuck it in his pants and went out the door.' At the time, he was wearing a blue jean jacket and boots. When he left Barbara's home, she saw him to 'across and down the street across Midway.' 2

Sometime later, Cox returned to Barbara's home. On direct examination Barbara Finley testified that when Cox returned she heard him tell her teen-age daughter, Brenda, to 'wash his clothes or something.' He came in 'my front room and sat in the chair.' When he returned, Barbara noticed blood on his boots and 'a spot of blood' on the pocket flap and sleeve of his jacket. He was then a 'lot drunker.' He went to the chair and fell asleep.

On direct examination Barbara Finley was interrogated about the butcher knife found at the scene of the murder. She said, 'It looks like it. . . . It looks like it. Can't tell too much.' 3

She was extensively cross-examined concerning the knife and other matters. She indicated that she bought a knife some two weeks before Christmas at National food stores. The knife introduced as an exhibit had 'lines or stripes horizontally' on the blade (8 1/4 1 1/4 ) but she did not know whether the knife she purchased had such stripes. '(The knife) looks like my butcher knife, but I don't know what it had on it.' She also indicated that her knife had the word 'Hickory' on it, but the exhibit did not, and that her knife was a new knife but the exhibit did not look like a new knife. On cross examination also, she was unsure whether she saw Cox take the knife and put in it his trousers.

After the extensive cross-examination, the prosecutor claimed 'surprise' and requested permission to cross-examine her and show prior consistent statements that she had made on videotape in February, 1974, and in a statement made to him earlier. Defense counsel objected on the ground that he had, prior to Barbara' § testimony, informed the prosecutor that she would not be able to identify the knife on direct so that the prosecutor could not claim 'surprise.' 4 During the colloquy, outside the hearing of the jury, the court stated:

'He (the prosecutor) doesn't have to claim surprise to rehabilitate her (Barbara) with a prior consistent statement. Perhaps he's using the wrong terminology by using surprise as far as he can rehabilitate her with a prior consistent statement.'

The court therefore ruled that the prosecutor could interrogate Barbara Finley concerning (a) '(w)hether it is or is not her knife,' and (b) whether 'she saw him take

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the knife from the mattress and put it in his pants,' and whether he left with the knife.

On redirect examination, the prosecutor then brought out that Barbara had made a videotaped statement to the police in February, 1974, in which she stated that the knife was her knife--"Yes sir, I'm pretty sure it is my knife"--and that the exhibit was the knife shown to her in the videotaped statement. She also stated on the videotape that "Don asked me where the butcher knife was. He wanted it for something. And I told him it was underneath the mattress on my bed. He got (it), and stuck it down the front of his pants, and then he went out the front door." The prosecutor also brought out that in a statement made to him she stated, "Yes sir, I'm pretty sure it is my knife."

One of the witnesses for the state was...

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