State v. Gray
| Decision Date | 19 July 2007 |
| Docket Number | No. 27702.,No. 27700.,No. 27701.,27700.,27701.,27702. |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Christopher GRAY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
M. Shawn Askinosie, Stacie Bilyeu, John Gore, Askinosie & Bilyeu, LLC, Springfield, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, for respondent.
Christopher L. Gray (defendant) appeals judgments rendered in three criminal cases consolidated for trial. He was charged in No. 27700 with sexual exploitation of K.G., a minor, § 573.023;1 in No. 27701 with five counts of statutory sodomy in the first degree, § 566.062, and one count of statutory rape in the first degree, § 566.032; and in No. 27702 with one count of statutory rape in the first degree, § 566.032, and one count of statutory sodomy in the first degree, § 566.062. He was found guilty of all charges. This court affirms the judgment of conviction in No. 27700, reverses the judgments of conviction in Nos. 27701 and 27702, and remands Nos. 27701 and 27702 for new trial.
Defendant waived trial by jury. Nevertheless, "[t]he same standard of review applies to criminal cases tried by the court without a jury as in cases tried by a jury." State v. Wirth, 192 S.W.3d 480, 481 (Mo. App.2006).
Id. at 481-82, quoting State v. Mayfield, 83 S.W.3d 103, 104-05 (Mo.App.2002).
Defendant was a foster parent. He and his then wife, Michelle McDonald, received custody of three girls, K.G., A.G., and R.G. in 1991. Defendant's marriage with Ms. McDonald was later dissolved; however, he continued to have custody of the girls and, subsequently, adopted them as a single person. Thereafter, he met and married Maya Gasa. The children were removed from defendant's home in 2004 following a report to the Christian County Children's Division that defendant was sexually abusing them. The children were placed in foster care.
Charges were filed in the Circuit Court of Christian County in 2004. Defendant's cases were transferred to Camden County on change of venue. Trial was held in Camden County February 21, 22, and 24, 2006.
The state filed a "Motion to Endorse" that appears to have been faxed to the circuit court on February 14, 2006, and filed February 16, 2006. One of the persons the motion sought to endorse as a witness was criminalist Staci Bollinger, a DNA expert. On February 17, 2006, defendant filed suggestions in opposition to the request to endorse Staci Bollinger as a witness. The state's motion requested the trial court to "shorten the time for hearing on [the] State's Motion to Endorse Witnesses" and, on the bottom of the motion, included a "Notice of Hearing" that states, "The foregoing motion shall come before the Court on the 21st day of February, 2006 at 8 am, [sic] or as soon thereafter as counsel may be heard."
The trial court heard the state's motion the morning trial commenced, February 21, 2006. The prosecuting attorney told the trial court that Ms. Bollinger was "a DNA expert with the Missouri State Highway Patrol." He stated that defendant's attorney "had notice of her in previous lab reports," but acknowledged "[t]here was a later one that [he did] not know if [he] sent . . . until the last minute or not." He added, "I may have sent it earlier but I cannot tell the Court that." The prosecuting attorney did not identify the nature of any of the reports to which he referred, nor did he tender copies of those reports to the trial court.
Defendant's attorney told the trial court that he had "asked for testimony of expert witnesses and any evidence"; that he had received a faxed copy of a DNA report the previous week.3 The trial court permitted Ms. Bollinger to be endorsed as a witness. It denied defendant's request for continuance, but suggested to the prosecutor, "If you have a curriculum vitae for the DNA expert, you should provide it to [the defense attorney] at the earliest opportunity." The record is silent as to whether any information was provided.
Point II is directed to the trial court allowing the state to endorse Ms. Bollinger as a witness and denying defendant's request for continuance. Point II asserts that the trial court erred in permitting the late endorsement of Ms. Bollinger or, alternatively, in denying defendant's request for continuance. Defendant argues that the lateness of the endorsement prevented defendant from adequately preparing "to counter her damaging testimony" in that defendant could not have anticipated the evidence she provided.
Ms. Bollinger's testimony was primarily directed to State's Exhibit Nos. 9A and 10A. K.G. identified Exhibit No. 9A as a vibrator that had been at defendant's house. K.G. said it was Maya Gasa's vibrator but that she had been directed to use the vibrator to "get ready" for defendant. She was asked, "Ready for what?" K.G. answered, "For him to put his penis inside my vagina."
Ms. Bollinger told the trial court that she had developed a DNA profile from Exhibit 9A and compared it to known DNA samples that had been obtained for her use. She said the procedure she followed was a scientifically accepted practice. She testified that the DNA profile she developed from the samples obtained from Exhibit No. 9A was consistent with a mixture of two individuals; that K.G. could not be eliminated as a contributor to the DNA mixture she identified. She further testified that Maya Gasa could not be eliminated as a contributor to the DNA obtained from Exhibit No. 9A.
Exhibit No. 10A was "white cotton panties" found in a chest located in the master bedroom of defendant's residence in the course of executing a search warrant. K.G. told the trial court that Exhibit No. 10A was her underwear that she had when she lived at defendant's residence. K.G. said that defendant would take her dirty underwear from the laundry and stash it in other places, including his room; that defendant liked to smell her underwear. Ms. Bollinger testified that K.G., defendant, or Ms. Gasa could not be eliminated as contributors to the DNA profile removed from Exhibit No. 10A.
As an expert witness, the evidence Ms. Bollinger presented was particularly strong in that it was based on objective, scientific principles. By not having been timely endorsed as a witness, albeit she was known to the state as an important contributor to its case, defendant was not alerted as to the need to secure independent testing to obtain evidence that might be contrary to the testimony Ms. Bollinger provided or learn information that might have been helpful for purposes of cross-examination.
In considering whether a trial court abused its discretion in permitting the endorsement of additional witnesses, an appellate court will consider the following factors: (1) whether the defendant waived the objection; (2) whether the State intended to surprise the defendant or acted deceptively or in bad faith intending to disadvantage the defendant; (3) whether the defendant was, in fact, surprised and suffered disadvantage; and (4) whether the type of testimony given might have been readily contemplated by the defendant. State v. Thomas, 965 S.W.2d 396, 399 (Mo.App. S.D. 1998). The main consideration is whether the late disclosure resulted in fundamental unfairness or prejudice to substantial rights of the defendant. Id.
State v. Downen, 3 S.W.3d 434, 437 (Mo. App.1999).
This court does not find, under the facts in this case, that defendant waived the objection to Ms. Bollinger's participation in the trial as a witness. See n. 3, supra. Although there was discussion before the trial judge the morning trial commenced concerning whether and when reports may have been sent by the prosecuting attorney to defendant's attorney, the record does not include copies of any such reports. Further, the state has offered no explanation for why the request for Ms. Bollinger to be added as a witness was not made until one week before trial was to commence. Neither is there any explanation as to why the state made no effort to obtain a ruling on its request to endorse the witness until the morning trial was to commence. Nevertheless, although the in-action by the state in not timely notifying defendant's attorney of the state's wish to have Ms. Bollinger testify was a questionable practice, the record does not suggest the state's actions were prompted by bad motives. Regardless, defendant was prejudiced in that he did not have time in which he could reasonably be expected to secure services of an expert to verify or contradict the DNA testing and evidence the state presented at trial.
The record before this court does not cause it to believe that prior to the state endorsing Ms. Bollinger as a witness, defendant should have readily contemplated that DNA evidence would be presented at trial. As in State v. Whitfield, 837 S.W.2d 503, 507 (Mo.banc 1992), where a similar situation existed with respect to a firearms expert, the prejudice that arose in this case by reason of Ms. Bollinger's testimony is real. Forcing defendant to trial immediately upon the endorsement of the DNA expert witness was fundamentally unfair and prejudiced defendant's right to defend charges that were pending against him. The prejudice to defendant outweighed any harm that would have resulted had defendant...
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