State v. Hanson, 51002

• Citation: 735 S.W.2d 100
• Decision Date: 30 June 1987
• Docket Number: No. 51002,51002
• Parties: STATE of Missouri, Respondent, v. Donald E. HANSON, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 100

735 S.W.2d 100

STATE of Missouri, Respondent, v. Donald E. HANSON, Appellant.

No. 51002.

Missouri Court of Appeals,

Eastern District,

Division Five.

June 30, 1987.

Motion for Rehearing and/or Transfer Denied July 30, 1987.

Application to Transfer Denied Sept. 15, 1987.

Frank A. Anzalone, Clayton, for appellant.

William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

CARL R. GAERTNER, Presiding Judge.

Defendant, Donald Eugene Hanson, was convicted after a jury trial of robbery in the first degree under § 569.020, RSMo.1978 and armed criminal action under § 571.015, RSMo.1978. Defendant appeals, claiming: 1) the trial court committed plain error by admitting into evidence an extrajudicial prior consistent statement by the state's key witness; 2) the trial court committed plain error by allowing counsel for the same witness to participate generally in and make objections during trial proceedings; and 3) the trial court erred by admitting into evidence a photostatic copy of a newspaper clipping without a proper foundation laid by the state to explain the absence of the original article. ¹ We affirm.

Defendant does not challenge the sufficiency of the evidence, hence the relevant facts may be stated in brief. The state's evidence established the defendant and Glenn Barr entered J & P Liquor Store in St. Peters, Missouri, at about 5:35 p.m. on December 6, 1984. Both men wore some type of facial covering. Defendant held a gun on the store's two employees, while Barr demanded and received the money in the cash register.

On December 12, 1984, St. Charles County Sheriff's Department Deputy George Benya seized two photo albums from the home of a female friend of defendant during an investigation of an unrelated burglary. Deputy Benya alerted the St. Peters police detective assigned to the liquor store robbery, Detective Vince Caudry, that one of the albums contained a newspaper clipping about the robbery of J & P Liquor store headlined, "Liquor Store Robbed." The album, filled with defendant's photos and memorabilia of prison, had been stolen from the home of Janet Weidner, with whom defendant then was living. On December 21, defendant, after waiving his Miranda rights, confessed the robbery to Detective Caudry and implicated Barr.

Glenn Barr testified at trial as part of a plea bargain, corroborating defendant's confession. Defendant denied committing the robbery in his testimony, contending he had confessed because Detective Caudry threatened to arrest Weidner and take away her child.

In his first point, defendant claims the trial court committed plain error by admitting into evidence an extrajudicial prior consistent statement by the state's principal witness, Glenn Barr. Defendant argues no prior inconsistent statement was introduced during cross-examination to impeach the witness, thus making improper the rehabilitation of Barr by the prosecutor.

We may invoke the plain error rule when defendant fails to object and preserve the objection for appellate review. State v. Hubbard, 659 S.W.2d 551, 555 (Mo.App.1983); Rule 30.20. Resort to plain error imposes a heavy burden on defendant to make a clear showing of manifest injustice if the rule is not invoked. Hubbard at 556. Defendant makes no effort to show the requisite miscarriage of justice, contending only the "the use of such consistent statements constituted improper rehabilitation and bolstering of the witness to the prejudice of the appellant."

During Barr's direct examination, full disclosure was made of the fact that he had agreed to testify against defendant as a part of a plea bargain entered into in connection with several charges pending against him. The defense counsel subjected Barr to extensive cross-examination regarding the promises made to him by the prosecuting attorney in return for his testimony. The cross-examination culminated in the defense counsel eliciting from Barr an admission that his "job" was to help put defendant in jail, coupled with the suggestion that if he did not do so the "deal might fall through." On re-direct examination, Barr responded to questions about the details of the statement he had given to the police shortly after his arrest. These details were entirely consistent with his trial testimony. His written statement was marked for identification and received in evidence, although it does not appear from the transcript that the prosecution read the statement in its entirety to the jury.

Relying on Nielsen v. Dierking, 418 S.W.2d 146 (Mo.1967) and State ex rel. Berberich v. Haid, 333 Mo. 1224, 64 S.W.2d 667 (1933), defendant argues because no inconsistent statement had been introduced, it was plain error to allow evidence of the prior consistent statement. Defendant reads the rule of these cases too narrowly. It is not only the impeachment of a witness by a prior inconsistent statement that renders admissible an earlier statement consistent with his trial testimony. Any evidence tending to permit an inference the testimony of a witness is recently fabricated opens the door to the introduction of a statement consistent with the witness's testimony if made prior to the suggested fabrication. In State v. Johnson, 684 S.W.2d 581, 583 (Mo.App.1984), we held it was proper to admit, over objection, the statement of a witness given to the police in order to rebut an inference that the witness's testimony was fabricated as a part of a later plea...