State v. Grant

• Decision Date: 13 February 1990
• Docket Number: Nos. 54673,56449,s. 54673
• Citation: 784 S.W.2d 831
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Timothy GRANT, Defendant-Appellant. Timothy GRANT, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 831

784 S.W.2d 831

STATE of Missouri, Plaintiff-Respondent, v. Timothy GRANT, Defendant-Appellant.

Timothy GRANT, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.

Nos. 54673, 56449.

Missouri Court of Appeals,

Eastern District,

Division Three.

Feb. 13, 1990.

Timothy A. Braun, Capital Conflicts Defender, St. Charles, Robert C. Wolfrum, Asst. Capital Conflicts Defender, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SATZ, Presiding Judge.

Defendant was convicted by a jury of one count of Second Degree Murder, § 565.021 RSMo.1986, two counts of First Degree Assault, § 565.050 RSMo.1986, and three counts of Armed Criminal Action, RSMo § 571.015 RSMo.1986. He appeals these convictions. He also appeals the denial of his Rule 29.15 motion. We reverse and remand defendant's convictions. We dismiss his Rule 29.15 appeal as moot.

The first trial of defendant on these charges ended in a mistrial. The sufficiency of the evidence at the second trial is not in issue here. According to the state's evidence, defendant and his brother, Sam Grant, went to the Phoenix Saloon on the evening of December 26, 1986. Also at the Phoenix Saloon were Jerry Fitzgerald, Carl Luper ¹, Steve Mackenberg, Eugene Jett and Tommy Tuttle. Fitzgerald and Luper were there with one group of people. Mackenberg, Jett and Tuttle were there together with another group.

At some point in the evening, Luper left the bar for several minutes. When he came back, he told Fitzgerald that he had just gotten into a fight outside. Fitzgerald and Luper then left the bar together, just to see what was going on. When Luper and Fitzgerald got outside, defendant looked directly at the two men, started walking toward them and pulled out a knife.

When defendant and Luper were facing off, Mackenberg, Jett, Tuttle, and the rest of their party, left the bar. Tuttle, a bouncer, picked up Sam Grant and placed him on the hood of a car, saying there would be no more fighting. Defendant turned from Luper, walked toward the other group, and stabbed Mackenberg, Jett and Tuttle. Tuttle died from his stab wounds. Defendant was charged with the murder of Tuttle, the assaults of Jett and Mackenberg, and three counts of armed criminal action.

In his direct appeal, defendant challenges a number of the trial court's rulings. Two of these rulings prejudiced defendant. Either one would be sufficient cause for reversal. We address each.

Defendant's sole defense was self-defense. He testified in his own behalf and also called his brother Sam Grant as a witness. Their testimony either contradicted the state's evidence or explained and justified defendant's conduct. Defendant testified that he was not the aggressor; he did not initiate the fight; he merely drew his knife in defense of himself and his brother against the verbal and physical attacks of others. Sam Grant corroborated defendant's testimony that defendant acted in response to an attack.

In cross-examining Sam Grant, the prosecutor attempted to impeach him by use of a statement Sam gave to the police shortly after the incident in issue occurred. The prosecutor noted a number of facts Sam Grant testified to at trial that Sam did not mention in his statement to police. This statement was videotaped.

On re-direct examination, defendant attempted to rehabilitate Sam by offering the videotape into evidence to show Sam was under stress at the time his statement was taken. This stress, defendant contended, would explain the omissions in Sam's statement. The trial court refused to admit the videotape into evidence. Defendant now contends this refusal was prejudicial error. We agree.

As an example of the prosecutor's cross-examination of Sam, the following exchange took place:

Q. Well, they asked you what kind of knife it was, they asked for a description, didn't they?

A. Sir, I was under a lot of stress when I made that statement out. I didn't know what end was up.

Q. Now, today you've testified that you heard threats made against you and your brother, verbal threats; is that correct?

A. Yes.

Q. And you never told that to the police when you made your statement on December 27th, did you?

A. I don't know. I told you I was under a lot of stress when I made the statement.

....

Q. Well, you knew an ongoing investigation was being conducted, didn't you? When did this memory come back to you, that you had--that people had been threatening you and your brother verbally?

When did you all of a sudden remember that?

A. I probably remembered it right then but just didn't say that. Like I said, I was under a lot of stress when I made that out.

Then, as noted, on re-direct examination, defendant requested leave to play the entire videotape of Sam's statement to the jury to show the stress Sam was under at the time he made this statement. The prosecutor objected to the showing of the tape because, he contended, Sam could verbally describe what his condition was at the time he made his statement. The court sustained the prosecutor's objection. After questioning Sam briefly about his prior statement, defendant again asked to play the tape. Again, the court sustained the prosecutor's objection.

On re-cross examination, the prosecutor again attempted to impeach Sam, this time by eliciting the fact he had not previously told the police he was afraid for his life, in order to suggest that defendant's theory of self-defense was developed solely for trial. On re-re-direct, defendant again asked for leave to play the tape. Again, the court sustained "the same objections as before". Finally, at the close of defendant's case, defendant again offered the tape into evidence and asked to play it for the jury. The prosecutor raised the "[s]ame objection", and the court made the "[s]ame ruling."

On appeal, defendant first argues that, during trial, the prosecutor agreed to permit the videotape to be introduced into evidence. Defendant also argues the refusal to admit the videotape into evidence to show Sam's stress is prejudicial error whether a bargain to do so existed or not. We agree with defendant's second argument and, therefore, do not address his first. As to the second argument, the state admits the trial court may have erred, but argues the error was harmless because the contents of the tape were properly before the jury. We disagree.

Errors committed in a criminal trial are presumptively prejudicial. Burton v. State, 641 S.W.2d 95, 99 (Mo. banc 1982). The presumption may be rebutted by the facts in a particular case. Id. The state relies on State v. Williams, 742 S.W.2d 616 (Mo.App.1987), to support its argument that the error here was harmless.

Williams is distinguishable. In Williams, the contents of the defendant's statement to the police were in issue. In affirming the trial court's denial of the defendant's request to show the videotape of his statement to the jury, our colleagues in the Western District said the contents of the tape were already before the jury, and, therefore, even if the trial court's denial was error, it was not prejudicial error. Id. at 618-619.

Here, the issue is not the contents of Sam Grant's statement; rather, the issue is the manner in which he made his statement. At trial, Sam testified he failed to tell the police about certain matters raised by the state because he was "under a lot of stress" when he made his statement. His credibility was in issue. The precise issue was whether his explanation for the omissions in his prior statement was credible. Merely hearing him say he was under stress is significantly different from actually seeing his demeanor and the manner of his speech that could show the stress. Indeed, a jury is specifically instructed that "[i]n determining the believability of a witness and the weight to be given to testimony of the witness, you may take into consideration the witness' manner while testifying; ..." MAI-CR3d 302.01. And, on appeal, we consistently emphasize that the proper determination of a witness's credibility depends in large part upon his demeanor and manner of testifying. See, e.g. State v. Skillman, 128 S.W. 729, 731 (Mo.1910). If these statements are to make sense in the present context, they must mean the jury should have been allowed to observe Sam's demeanor and manner at the time he made his statement to the police, in order to determine whether his explanation based on stress was credible. But, the jury was denied this opportunity and was limited to his explanation at trial: "I was under a lot of stress."

We have reviewed the videotaped statement. Sam Grant appeared unsteady and tense. At one point in the statement, when describing defendant's actions, he broke down and began crying. Throughout the interview, his voice was cracking, perhaps, from the strain of the night's events. None of these signs of stress can be captured by his testimony at trial that he was "under a lot of stress". This statement simply does not convey to the jury the degree or intensity of the stress that is evident from the videotape. Quite simply, a picture is worth a thousand words. Logic and fairness required the pictures of Sam making his statement be made available to the jury.

It was error not to admit the videotape into evidence. We can declare this error to be harmless only if we believe the error was harmless beyond a reasonable doubt. State v. Miller, 650 S.W.2d 619, 621 (Mo. banc 1983). We cannot do so.

Defendant raises a second dispositive issue. Prior to the first trial, the state had audiotaped interviews of at least six of its endorsed witnesses: Jerry Fitzgerald, Eugene Jett, Steve Mackenberg, Linda Jett, James Needy and Steve Green. Defendant made a timely written request for the "written or recorded statements" of the state's witnesses and for the "substance of any oral statements made by the defendant" and "a list of the witnesses to...