State v. Dizdar

• Citation: 622 S.W.2d 300
• Decision Date: 21 July 1981
• Docket Number: No. 42443,42443
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ivan DIZDAR, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 300

622 S.W.2d 300

STATE of Missouri, Plaintiff-Respondent, v. Ivan DIZDAR, Defendant-Appellant.

No. 42443.

Missouri Court of Appeals, Eastern District, Division Two.

July 21, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 21, 1981.

Application to Transfer Denied Nov. 10, 1981.

Daniel Devereaux, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Thomas G. Auffenberg, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.

WEIER, Judge.

On December 4, 1979, the defendant was convicted of the Class D felony of assault in the second degree in violation of § 565.060, RSMo 1978. Punishment was assessed at two years imprisonment.

Defendant asserts three points of error in this appeal. His first claim is that the trial court abused its discretion by allowing certain rebuttal testimony into evidence because it was improper rebuttal or alternately because it consisted of evidence of other crimes. His second point asserts that the trial court abused its discretion in failing to grant his motion for a new trial based on newly discovered evidence. Defendant's third point challenges the giving of an instruction which he alleges was vague, misleading, ambiguous and not in compliance with Rule 28.02. We affirm the judgment of the trial court.

A review of the evidence in the light favoring the conviction supports the following facts. On April 12, 1979, at approximately 4:45 a.m., Sulejman Grbic, a 28 year old butcher of Croatian descent, was walking to his car near the intersection of Spring and Itaska in the City of St. Louis with the intention of going to work. When he went to open the car door he heard a voice say to him, "Good morning." Looking up, his eyes caught the person of Stjephan Dizdar who was coming toward with a silver handgun. As Stjephan advanced he told Grbic he was going to kill him and that Kristo Moravic, a teammate, was next. At this point Grbic heard a noise behind him and turned to see the defendant Ivan Dizdar coming toward him armed with a baseball bat. The defendant advanced toward Grbic and tried to hit him on the head. Grbic raised his arm to shield his head from the blow and the weapon struck him on the left forearm. Defendant fell down at this point and Grbic took off running, Stjephan giving chase with gun in hand yelling "Stop." Defendant jumped into his automobile. Grbic then ran to the intersection of Gustine and Itaska Streets and sought help from a passing motorist. This person let Grbic in his car and took him to a nearby police station where Grbic gave his account of the incident to police and identified the Dizdar brothers as his assailants. Grbic was then taken to a hospital where he was diagnosed as having a fractured dislocation of the left forearm. He was unable to work for five months and as of the time of trial was unable to lift as much as five pounds.

Defendant in his first point maintains that the trial court abused its discretion in allowing the admission into evidence of the State's rebuttal testimony of John Kosic and Stanley Mayer because (1) it was improper rebuttal and as such was highly prejudicial, and (2) because the substance of the testimony consisted of evidence of other crimes not before the court. In order to intelligently discuss this point, it is necessary that we recount the evidence concerning an incident which occurred three weeks prior to the assault on Grbic. Ivan, Stjephan and Grbic are members of the Croatian community in St. Louis. Sulejman Grbic plays for a team known as Hrvat. On March 28, 1979, Grbic's team was engaged in a soccer match with a team by the name of Croatia or "Croatian-American." While not players, the Dizdar brothers were avid supporters of the Croatia team. On that day an altercation erupted. The transcript is replete with differing versions of what precisely happened. Grbic testified that the Dizdars were on the field and when someone on the Hrvat (Grbic's) team hit Ivan, Stjephan began to threaten everyone. Stjephan testified that only his brother and not he came on the field, that Ivan was knocked unconscious and that Stjephan took him to the hospital. Stjephan also testified that he saw Stanley Mayer, one of the rebuttal witnesses in question, but denied ever speaking to him. On rebuttal Mayer testified that after the fight at the game he was attacked by the Dizdar brothers and that Ivan was conscious and able to do him bodily harm. John Kosic testified similarly.

Was this improper rebuttal? State v. Williams, 442 S.W.2d 61 (Mo.banc 1968) overruled on other grounds in State v. Ayers, 470 S.W.2d 534, 538 (Mo.banc 1971), states the general principle that "(a)ny competent testimony that tends to explain, counteract, repel or disprove evidence offered by defendant may be offered in rebuttal of the defendant's testimony or evidence." Id. at 65(7). The scope of this testimony is largely within the discretion of the trial court and subject only to abuse of discretion or prejudice to the defendant's rights, this court will not reverse a trial court's decision to let challenged rebuttal testimony into evidence. Id. (8).

Here the State had initially brought up the subject of the soccer fight through the testimony of Mr. Grbic presumably to suggest a motive for the instant assault by showing that the Dizdars intended to seek revenge on all members of the Hrvat team and not merely those directly involved in the melee. The defense then brought in the Dizdar brothers who testified that no such altercation occurred after the soccer game and that they had not sought revenge on anyone other than to bring those responsible to justice. The challenged testimony of Kosic and Mayer followed. Since the rebuttal testimony directly contradicted the assertions of Ivan and Stjephan that they were not assaulting other players and threatening revenge after the soccer game, it was proper rebuttal. This is so because it is competent testimony that tends to explain, counteract, repel or disprove evidence offered by defendant. State v. Harris, 539 S.W.2d 793, 794-795 (7) (Mo.App.1976). The rebuttal testimony of Kosic and Mayer clearly meets that requirement.

The second thrust of defendant's point I is that it was an abuse of the trial court's discretion to allow the previously discussed rebuttal testimony into evidence because it introduced evidence of similar but collateral crimes which were not before the court, specifically assaults which were allegedly committed by the appellant after the soccer game on March 28, 1979.

The general rule is that the proof of the commission of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to establish directly the defendant's guilt of the charge for which he is on trial. State v. Lue, 598 S.W.2d 133, 137 (3) (Mo.banc 1980). The areas where this evidence is usually admitted are known as the "other crimes exceptions" and include evidence which tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan, and identity. State v. Simmons, 602 S.W.2d 13, 15 (1) (Mo.App.1980); McCormick on Evidence, 447-454 (1972). Here, the admission of the testimony of the two rebuttal witnesses as to the actions of defendant was proper, even though it consisted of evidence of a collateral crime, because it logically tended to prove a motive for attacking Grbic.

Finally, defendant adds in his argument that assuming that the evidence of the prior assaults was admissible, its admission as rebuttal, rather than as part of the State's case-in-chief, resulted in unfair and prejudicial surprise to defendant. The fact that challenged evidence could have, or perhaps even should have been presented in the State's case-in-chief, does not require its preclusion...