State v. Dentman

Decision Date06 April 1982
Docket NumberNo. 42644,42644
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Tommie C. DENTMAN, Defendant-Appellant.
CourtMissouri Court of Appeals

Michael M. Frank, Clayton, for defendant-appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, John M. Morris, III, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.

STEPHAN, Presiding Judge.

Defendant Tommie C. Dentman was convicted of the class D felony of tampering with a witness in a felony prosecution, § 575.270, RSMo 1978, and sentenced to imprisonment for a term of five years. He appeals; we affirm.

The sufficiency of the evidence is not challenged, and we therefore make only a brief statement of the facts supporting the conviction. Other facts will be alluded to as necessary in the discussion of the points on appeal.

By its verdict, the jury found that defendant offered money to Richard Ford to induce him to absent himself from a capital murder trial. Ford had witnessed the killing of Jerome Brown by Dennis Haymon, while Brown was a passenger in an automobile driven by Ford. 1 Ford identified Haymon as the assailant and was endorsed as a witness for the state on Haymon's indictment. Some time after the endorsement, Ford was accosted by Haymon and another and received two bullet wounds in the chest and one in his wrist. Ford was hospitalized for thirteen days following that incident, during which time he had twenty-four hour police protection. One of the police officers assigned to protect Ford was defendant Dentman who guarded him during the January 17, 1979 daytime shift. The two discussed Ford's wounds, and defendant told Ford "some people that Dennis Haymon didn't know anything about" did not want Ford to testify against Haymon and would pay Ford $1,000 to $5,000 to refuse to testify. Ford countered that he would not testify if he were given $10,000 and a new Cadillac "so I can leave." Defendant expressed doubt that he could get the Cadillac, but defendant said he would "try for the ten." In accordance with his promise, defendant returned the next day for a brief visit, assured Ford he was trying to get the $10,000 and admonished Ford to "be cool." Upon his release from the hospital, Ford reported defendant's offer to the Circuit Attorney's office and was immediately sent with his mother to California where he remained until May 17, 1979 when he returned to testify at Haymon's trial. Ford stayed at a St. Louis hotel. At the request of the Circuit Attorney's office, Ford contacted defendant by leaving a message at the Sixth District police station. The call was promptly returned and defendant told Ford that the offer was still open. Ford suggested that he would accept $1,000 to $3,000, but defendant said he would "stick with the five" ($5,000).

Several other telephone calls were initiated by defendant, or by Ford at defendant's direction, the last being on May 19, 1979 from defendant to advise Ford that defendant had the money and would pick him up in a red Cadillac to take him to Chicago. Within an hour, defendant arrived at the hotel. When defendant was approached by a police officer who had been guarding Ford, defendant ran from the lobby and fled in a red Cadillac in spite of another officer's efforts to stop the vehicle. Defendant surrendered two days later.

Defendant's first contention is that the trial court erred in denying his motion to dismiss the indictment because trial did not begin within 180 days of the arraignment in violation of § 545.780, RSMo 1978.

Defendant argues that § 545.780, paragraph 2, mandates the commencement of trial within 180 days of arraignment. Defendant further argues that delays in the commencement of trial which are caused by continuances are excludable from the 180 day period only if the court states for the record "its reasons for finding that the ends of justice (will be) served by the granting of such continuance."

Defendant was arraigned on June 19, 1979, and went to trial on January 7, 1980, an interval of 202 days. During that period defendant requested a continuance of a July 23, 1979 setting which the court granted by the following order dated July 19, 1979:

"Cause continued at the request of the Defendant to 9-10-79 for the reason(s) that: the State has yesterday provided the defense with all the police reports in the case."

"WHEREFORE, the Court finds, for the above stated reason(s), that the ends of justice are served by granting the continuance and outweigh the best interests of the public and the defendant in a speedy trial."

The period of forty-nine days attributable to this continuance must be excluded from defendant's computation of 202 days. The order granting the continuance, which was signed by defendant's present counsel but not included in the record by him, 2 clearly shows that the continuance was granted because discovery had only recently been provided to defendant and the ends of justice would be served by granting it. Defendant argues: (1) that he should not be held responsible for the delay occasioned by his own request because the state had been dilatory up to that point in responding to his various discovery motions; and (2) that the preparation of his defense had been hampered by the state's bad faith in this regard. We are provided with no specific examples of how the defendant was thus prejudiced by the state's tactics or, indeed, what those tactics were. There is only the general charge of "delay." The record reveals no reason for not charging the forty-nine day continuance to the defendant, and the trial was therefore held well within the 180 day limit. Defendant's point is without merit.

Defendant next contends the trial court erred in admitting the testimony of state's witness Richard Ford because the state failed to disclose "material information" requested in defendant's discovery motions. The point relied on does not indicate the nature of this material information or even if the information pertained to witness Ford, and thus violates Rule 84.04(d). The argument portion of defendant's brief enumerates five items which he claims were not disclosed to him until after trial had begun. Although the defective point is not cured by inclusion of the missing elements in the argument, we will address defendant's point. See Thummel v. King, 570 S.W.2d 679, 686 (Mo.banc 1978). Defendant alleges that the state failed to disclose: (1) that Ford was arrested in California in October, 1979; (2) that Ford subsequently pled guilty in California to one traffic violation and to one charge of stealing under $50 which had been pending since 1975; (3) that Ford had a felony charge (possession of marijuana) pending against him in the City of St. Louis; (4) that an assistant circuit attorney knew of the California and St. Louis charges; and (5) that the marijuana charge was nolle prossed in June, 1980.

Assuming that each of the items was properly described in one or more of defendant's pre-trial discovery motions, a thorough examination of the trial transcript fails to reveal how any prejudice to his defense could conceivably have resulted. Each fact was made known to defense counsel at or before the trial and each was thoroughly explored in the presence of the jury. 3 Moreover, the state elicited from witness Ford that he had also been convicted of an earlier stealing charge and of three counts of illegal possession of narcotics for which he served time and was later reincarcerated for a parole violation.

Several of the items which defendant now enumerates would have been of questionable admissibility regardless of when revealed to defendant, e.g., arrests, traffic violations, the mere pendency of charges against him. 4 With respect to the last item, it is true that a pending charge against a witness may be shown where it can give rise to an inference that it might motivate a witness to testify favorably to the state in exchange for leniency. State v. Lockhart, 507 S.W.2d 395, 396(3) (Mo.1974). As mentioned, however, the charge against witness Ford had been nolle prossed some seven months prior to the time he testified and obviously did not loom in his mind as a threat to his freedom at the time of trial. Moreover, the prosecutor elected to clear the air by asking whether Ford had been promised anything for testifying, to which question he received a negative response. Finally, even in that setting, the defense was not foreclosed from arguing to the jury that when Ford started to testify he did not realize that the charge had been dismissed, as there was evidence to support this, or from arguing that Ford's testimony was affected by a fear that the charge would be re-filed.

Prosecutors are not to be encouraged by this opinion to respond to disclosure requests contemplated by Rule 25 with anything less than diligence, good faith, and complete candor. The salutary purposes of the Rule demand nothing less. Upon review, the issue before us is whether the trial court abused its discretion in failing to exclude Ford's testimony in view of the state's failure to respond promptly and fully to the defendant's disclosure requests. "The ultimate question being: whether or not the failure to produce...

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7 cases
  • Scott v. Jones
    • United States
    • U.S. District Court — Western District of Missouri
    • June 22, 1988
    ...request, the question is whether the failure has resulted in fundamental unfairness or prejudice to the defendant. State v. Dentman, 635 S.W.2d 28, 32 (Mo.App.1982)." Id. at 6 Scott I explained that "an interview with these witnesses during a trial recess fell far short of meeting the stand......
  • State v. Hurt, 13156
    • United States
    • Court of Appeal of Missouri (US)
    • March 12, 1984
    ...the random arguments of the defendant, under, but beyond the scope of his first point as stated, need not be considered. State v. Dentman, 635 S.W.2d 28 (Mo.App.1982). However, it is appropriate to observe that they too present no real constitutional question. His argument the sentence is d......
  • State v. Reichert
    • United States
    • Court of Appeal of Missouri (US)
    • May 5, 1993
    ...(Mo.App.1988). This opinion should not be construed as an endorsement or encouragement for any violation of Rule 25. State v. Dentman, 635 S.W.2d 28, 32 (Mo.App.1982). Our opinion that there has been no abuse of discretion requiring a new trial in this instance is based upon the circumstanc......
  • State v. Scott, WD
    • United States
    • Court of Appeal of Missouri (US)
    • February 15, 1983
    ...request, the question is whether the failure has resulted in fundamental unfairness or prejudice to the defendant. State v. Dentman, 635 S.W.2d 28, 32 (Mo.App.1982). If the trial court believes fundamental unfairness may result, one sanction to be employed is exclusion of the matter not dis......
  • Request a trial to view additional results

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