State v. Dethrow, 45964

Decision Date26 June 1984
Docket NumberNo. 45964,45964
Citation674 S.W.2d 546
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Ronnie David DETHROW, Defendant-Appellant.
CourtMissouri Court of Appeals

John Ashcroft, Atty. Gen., Janet T. Papageorge, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Almond & Williams, Hillsboro, for defendant-appellant.

SIMON, Judge.

Ronnie David Dethrow (Dethrow) appeals his conviction on five counts of possession of controlled substances following a jury trial in the Circuit Court of Jefferson County. On appeal, he contends the trial court erred in: (1) failing to direct a verdict of acquittal at the close of all the evidence because the evidence was insufficient to support the verdict; (2) excluding the testimony of Dethrow's witness since the evidence was relevant and material; (3) failing to give a circumstantial evidence instruction; and (4) submitting a definition instruction on possession which is broad and general in nature, and failed to instruct the jury properly on the applicable law. We affirm in part and reverse in part.

On December 1, 1980, police officers of the Jefferson County Sheriff's Department, the City of St. Louis Police Department and St. Louis County Police Department went to a mobile home where Dethrow resided in order to execute a search warrant. The officers approached the mobile home, knocked on the door, announced their identity and the purpose of their visit, but there was no response from inside the trailer.

Before the officers entered the premises, a man and a woman in a car, were seen hurriedly pulling away from the location of the mobile home. The woman, later identified as Nana Hart (Hart), was driving and the man, later identified as Dethrow, was in the front seat. Three police officers, in a marked police car, followed the car to the parking lot of a grocery store. The officers approached the car but there was no one in it and it was locked. Dethrow walked up to the officers and said, "Here I am. I'm the one you're looking for" and he voluntarily entered the back seat of the police car. The police officers requested Dethrow get out of the car at which time he was frisked and was advised of his Miranda rights. The officers then asked for keys to the car in order to inspect it, but Dethrow did not have the keys, Hart did. Hart was escorted out of the grocery store by the officers and at their request, Hart drove the car after it was searched, to the mobile home. Dethrow was also taken to the mobile home and informed that officers were executing a search warrant.

Police officers, who had remained at the mobile home, forced their entry into and proceeded to search the residence for controlled substances. Pursuant to the search, the following items were found in a jewelry box located on the top of a dresser in the mobile home's master bedroom: oxycodone or percodone (Count I); benyphetamine or Upjohns (Count III); pentazocine or Talwin (Count IV); marijuana; a Missouri Uniform Traffic Ticket issued by the City of Times Beach to Dethrow; an insurance check payable to Dethrow from Ford Life Insurance; and some jewelry belonging to Dethrow and Hart. Two small bottles containing phenobarbital (Count V) and amobarital (Count II) and some needles were found in the vanity under the bathroom sink. In addition, a small scale was found in the master bedroom and some marijuana and cigarette papers were removed from beneath the couch.

When Dethrow arrived at the mobile home, he asked to speak with Officer Joseph Mokwa with whom he was acquainted. Officer Mokwa handed him a copy of the search warrant and after Dethrow read the warrant he said, "Did you find any Dilaudid? I don't think you will. I know what I had and I didn't have any D's. I had some Upjohns and Talwin, Schedule III and IV stuff." After the search was completed, an officer read the warrant aloud to Dethrow, informed him that he was under arrest for suspicion of possession of controlled substances and advised him of his Miranda rights. Dethrow and the items seized were taken to the Jefferson County Sheriff's Department.

Hart, with whom Dethrow had co-habitated at the mobile home, testified at trial. Hart testified that she moved into the mobile home in July of 1980 and at that time she noticed the two bottles containing the substances described in Counts V and II above. Hart believed they were left by a former resident so she allowed them to remain in the vanity. She also testified Dethrow did not move in with her until about four weeks later. Hart said some of the controlled substances found in her jewelry box were her medications and were legally obtained.

On the first day of trial, after the jury was sworn in, defense counsel attempted to endorse Wilma Landers (Landers) as a witness. Landers is a friend of Dethrow and Hart. This was the first time the state heard of this witness and objected to her endorsement, claiming that the endorsement at such a late time imposed a great burden on the state. Defense counsel said the late endorsement of Landers was due to the fact that he had first talked to her on Monday, the morning of the trial, after learning about her from Dethrow or Hart on Saturday. After an offer of proof, the trial court sustained the state's objection and excluded Landers' testimony.

Dethrow was found guilty on all five counts and was sentenced to serve concurrent terms of imprisonment of thirty (30) years for Count I, thirty (30) years for Count II, fifteen (15) years for Count III, fifteen (15) years for Count IV and fifteen (15) years for Count V.

Initially, we shall address Dethrow's second point because it's dispositive of Counts II and V.

Dethrow contends the trial court erred in excluding the testimony of Landers because her testimony was relevant and material and he was prejudiced by its exclusion. The state argued that Landers' endorsement at such a late time was a violation of Rules 25.05(A)(2) and 25.08 (1982). The defense counsel offered the state an opportunity to speak with Landers and the court reserved judgment on whether to allow her endorsement until after such time. The state questioned Landers but she replied, "I'll do my testifying in court." At this point the prosecutor called Detective Gober, who had already been endorsed as a witness in this case, into the room to witness Landers' intention to do her talking in court. The court recessed for the day and that evening the state checked on Landers' criminal history and discovered she had been charged with not having a city sticker for the City of St. Louis. She was arrested that same evening and released after it was determined there had been a computer error. The next day an offer of proof was made out of the presence of the jury.

The testimony of Landers elicited during the offer of proof revealed that the substances named in Counts II and V and found in the vanity under the sink were observed by Landers while she was living in the mobile home and were left there by her when she moved out. Landers had occupied the mobile home before Hart rented it.

The trial court sustained the state's objection that Landers was not properly endorsed as a witness as required by Rules 25.05(A)(2) and 25.08 (1982). Accordingly, pursuant to Rule 25.16 (1982) the court ruled that Landers' testimony be excluded. The basis of the trial court's ruling was that her endorsement would be an unfair burden on the state and her testimony was cumulative and corrobative of Hart's.

Rule 25.05(A)(2) provides that upon request by the state the defendant shall disclose names and addresses of witnesses he intends to call at trial along with a summary of their statements. Pursuant to Rule 25.08, the duty to disclose is a continuing one remaining throughout the trial.

"When non-compliance with the applicable discovery rule is brought to the attention of the court, the trial court is given the discretion..." to impose sanctions. State v. Mansfield, 637 S.W.2d 699, 703 (Mo. banc 1982). The choice of what sanction to impose is solely within the sound discretion of the trial court. In Mansfield, supra, the trial court, as a sanction excluded testimony of an alibi witness that had not been previously disclosed. Our Supreme Court found the testimony to be relevant and material, stating that, "[t]he remedy of disallowing the relevant and material testimony of a defense witness essentially deprives the defendant of his right to call witnesses to his defense." Id. at 703 . The court found that the trial court had abused its discretion. On appeal, the issue is whether the trial court's action results in fundamental unfairness to Dethrow.

In determining whether the application of the sanction resulted in fundamental unfairness, we keep in mind that errors committed in criminal proceedings are presumed to be prejudicial, but that presumption is not conclusive and may be overcome by the facts and...

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20 cases
  • State v. Moiser
    • United States
    • Missouri Court of Appeals
    • 1 septembre 1987
    ...of the presence and nature of the substances in question." State v. Carouthers, 714 S.W.2d 867, 869 (Mo.App.1986). In State v. Dethrow, 674 S.W.2d 546, 550 (Mo.App.1984), controlled substances were found in a jewelry box in defendant's residence. The box also contained defendant's jewelry a......
  • Rutlin v. Griffith
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    • 25 septembre 2018
    ...contradictory statements and explanations, as well as his access to the area where the object was found. State v. Dethro, 674 S.W.2d 546, 550 (Mo. App. E.D. 1984). The commingling of the item with the defendant's personal belongings can also show knowledge and control. State v. Steward, 844......
  • State v. Simonton
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    • Missouri Court of Appeals
    • 17 juillet 2001
    ...that Dr. Harry's testimony "was of greater significance[]" and certainly could have impacted the outcome of the case. State v. Dethrow, 674 S.W.2d 546, 549 (Mo. App. 1984). The testimony of both doctors, and especially that of Dr. Harry, was a significant part of Mr. Simonton's ability to p......
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    • 17 juillet 2001
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1 books & journal articles
  • Section 7.21 List of Witnesses and Copies of Statements
    • United States
    • The Missouri Bar Criminal Practice Deskbook Chapter 7 Discovery by Right or Through Court Action
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    ...reversal if the proposed testimony was relevant and material and its exclusion prejudiced the defendant. See, e.g., State v. Dethrow, 674 S.W.2d 546, 549 (Mo. App. E.D. 1984). 2012 CUMULATIVE SUPPLEMENT (§7.21) 2. (§7.21) List of Witnesses and Copies of Statements If the trial court decides......

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