State v. Flemming, 18224
| Citation | 855 S.W.2d 517 |
| Decision Date | 22 June 1993 |
| Docket Number | No. 18224,18224 |
| Parties | STATE of Missouri, Respondent. v. Benny J. FLEMMING, Appellant. |
| Court | Court of Appeal of Missouri (US) |
Roger C. Jones, Springfield, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Joan F. Gummels, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found Benny J. Flemming (Defendant) guilty of distributing a controlled substance, a class B felony. He was sentenced to a term of five years' imprisonment.
On appeal, Defendant contends (1) he was entitled to a new trial because the State failed to disclose "all written statements or notes of the Missouri State Highway Patrol which had been requested by the Defendant," (2) he was entitled to a new trial based on newly discovered evidence, and (3) the evidence was insufficient to sustain his conviction.
On our review we must accept as true all evidence favorable to the State, including all favorable inferences drawn from the evidence, and disregard all evidence and inferences to the contrary. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). Viewed in that light, the evidence reveals the facts which follow.
During the Summer of 1990 Corporal James M. Stuart of the Missouri State Highway Patrol conducted an undercover drug operation in Greene and Webster Counties. His undercover name was J.D. Simpson. He worked with a confidential informant named Dion Horman.
On June 10, 1990, Stuart and Horman met about 12:45 a.m. in Webster County to discuss a possible drug purchase from Brent Fox at his mobile home. Both persons drove together to the Fox residence where Stuart waited inside his vehicle while Horman went to the door of the mobile home. Defendant answered the knock on the door and allowed Horman inside the residence. Fox, Horman and Defendant were acquaintances who spent time together at the Fox home. While inside, Horman learned Fox was absent but Defendant was willing to sell him a gram of crank or methamphetamine for $100. Horman left the home and returned to the waiting Stuart to advise him of the proposed sale. Stuart agreed to the sale, searched Horman's pockets and gave him $100 to make the buy. Horman went back inside and gave Defendant $100 for the gram of methamphetamine.
While Stuart was waiting outside, he observed three motor vehicles parked at the residence. He described the vehicles as an older model pickup, a blue Datsun, "real sleek, like a 280 or 260," and another car. Stuart testified he did verify that Defendant drove a Datsun, possibly a 260 model.
The day after the drug purchase Stuart and Horman went back to the Fox residence and the Datsun vehicle was still there. Regarding this trip, Stuart testified as follows:
Q. Were the same vehicles there the second day?
A. There was a--I believe all the ones that were there that night were there and then there was an additional one there. I believe it was an AMC product. I'd have to look at some notes to remember what it was, but I remember the Datsun was there.
Defendant's first point is premised entirely upon Stuart's testimony that he would "have to look at some notes" concerning the vehicles. Defendant complains that after his request the State failed to produce any information regarding the cars parked at the Fox residence during the time in question. Defendant says this evidence was highly prejudicial because it was the only evidence corroborating Horman's testimony that Defendant sold him drugs.
Defendant argues the State violated Rule 25.03(A)(1) which provides:
(A) Except as otherwise provided in these Rules as to protective orders, the state shall, upon written request of defendant's counsel, disclose to defendant's counsel such part or all of the following material and information within its possession or control designated in said request:
(1) The names and last known addresses of persons whom the state intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memoranda, reporting or summarizing part or all of their oral statements.
Defendant's contention has no merit because the record reveals his request never designated for disclosure any particular material or information discoverable under Rule 25.03. His request for disclosure consisted of a letter to the prosecutor stating, inter alia, "I would appreciate your forwarding to me copies of all discoverable material in your file." 1 The State provided Defendant with a copy of Stuart's official report on the buy from Defendant, but it contained no information on vehicles parked at the Fox residence.
Rule 25.03 contains some nine categories of material and information which a criminal defendant can discover without court order on proper request. After such request the State is required to disclose to Defendant "such part or all of the following material and information within its possession or control designated in said request." Rule 25.03(A) (emphasis added).
Assuming Defendant's letter was a request under Rule 25.03, he failed to designate for disclosure any part or all of the nine categories of material and information described by the Rule. 2 Defendant's general request invited the prosecutor to speculate on what information was requested and what material was discoverable.
The State cannot violate Rule 25.03 unless the defendant makes a proper request for the material or information discoverable under the Rule. State v. Gilmore, 797 S.W.2d 802, 809 (Mo.App.1990); State v. Dusso, 760 S.W.2d 546, 549 (Mo.App.1988). See State v. Masterson, 733 S.W.2d 40, 44-45 (Mo.App.1987).
Here, the State did not fail to disclose any information designated in Defendant's request. Therefore, we cannot convict the trial court of error in denying Defendant relief on this issue.
Defendant's second point claims he was entitled to a new trial based on newly discovered evidence. He hypothesizes (1) it was not possible for him to know of any evidence about his car parked near the Fox residence because the State failed to disclose that information before trial, and (2) if he had a new trial, he could show his car was not parked at the Fox residence on June 10, 1990.
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State v. White
...for discoverable information or material, the State cannot be in violation of Rule 25.03 for failing to produce it. State v. Flemming, 855 S.W.2d 517, 519 (Mo.App.1993). Defense counsel neglected to include a copy of his discovery requests in the record on appeal. However, the record does c......
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