State v. Helms

• Decision Date: 05 December 1977
• Docket Number: No. KCD,KCD
• Citation: State v. Helms, 559 S.W.2d 587 (Mo. App. 1977)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donald HELMS, Defendant-Appellant. 28811.
• Court: Missouri Court of Appeals

Page 587

559 S.W.2d 587

STATE of Missouri, Plaintiff-Respondent, v. Donald HELMS, Defendant-Appellant.

No. KCD 28811.

Missouri Court of Appeals, Kansas City District.

Dec. 5, 1977.

Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before PRITCHARD, P. J., and SWOFFORD, C. J., and DIXON, J.

DIXON, Judge.

Defendant appeals a conviction of second degree murder. The jury fixed punishment as 40 years imprisonment.

Defendant raises issues of (1) error in admitting testimony of witnesses as to exhibits, reports and memoranda because the state had violated discovery procedures; (2) error in admitting evidence of defendant's prior assaultive behavior toward the victim.

Defendant does not challenge sufficiency, and a short statement of fact will be sufficient. The victim was discovered dead in the defendant's apartment January 24, 1976. In the early morning hours of January 24, 1976, defendant and the victim, his girlfriend, who was living with him, were having a loud argument. This argument was heard by the tenant of the adjoining apartment. The argument continued from 2:30 a.m. until 3:45 a.m. when the neighbor heard water running in the bathroom of defendant's apartment. The defendant and his deceased girlfriend had engaged in tumultuous arguments before and defendant had beaten her on several occasions prior to January 24, 1976. The victim was lying next to defendant who had slit his wrists with a razor blade after telephoning his mother in Chicago. The cause of the victim's death was numerous blunt force body blows with contribution from burns caused by scalding and drowning. The defendant had been in the apartment all that night, having arrived there at 12:30 p.m. He had entered his apartment about thirty minutes earlier and had found his girlfriend with another man. The defendant admitted striking the victim. On one occasion, he stated to police officers that he had killed his girlfriend. Wet cloths, some with blood stains on them, were found about the apartment. Also found were wet men's boots and socks. Blood stains were found on a radiator, the carpet, wall, and baseboard. A wet mop was found in the bathtub. The apartment building is locked twenty-four hours a day. No signs of forced entry to the apartment could be detected. Some of the blood stains found in the apartment were Type B, the same type as the deceased's blood.

The thrust of the defendant's first point is that the trial court erred in permitting witnesses to testify whose names were not furnished to defendant upon discovery. The fact that these witnesses were not furnished to defendant on discovery is conceded. The real issue is the propriety of the trial court's refusal to apply the sanction of exclusion under the circumstances.

Some more detailed statement of the circumstances and the evidence adduced is necessary to resolve the issue. Two months before trial, defendant filed a request for discovery which was detailed and all inclusive. On the morning of the trial, the State endorsed the coroner, a lab technician, and a policeman. Upon the offered endorsement, defendant objected, asserting, as was the fact, that these witnesses had not been disclosed. The trial court permitted the endorsement, but directed that the defendant be given access to the witnesses and reserved the question of the admissibility of the evidence.

The coroner testified after the noon recess on the second day of trial. During the direct examination, defense counsel interrupted and established that Dr. Peterson was referring to a handwritten memorandum she had prepared from her official report. She also had the official report with her on the stand. Defense counsel objected that he had not been provided a copy of the official report at any time in violation of the rules of discovery. The State countered, saying the defense had a preliminary report of the results of the autopsy. The court ruled that Dr. Peterson's testimony was not that much of a surprise, but nevertheless took a recess so that defense counsel might have an opportunity to study the official report. Defense counsel read it during the recess, but upon resumption of the proceedings objected to Dr. Peterson's testimony on the ground that the official report had not been furnished him. The court overruled the objection opining that the recess given for the purpose of allowing defense counsel to study the report appeared sufficient. The court noted that "if the defense is able to show prejudice to itself in any way, by either the failure to disclose the report of the autopsy, or the report of this more recent fingernail examination and comparison, that will be given further consideration; and the objection may be renewed or any other appropriate request may be renewed at that time, when it becomes clear." The fingernail examination went out of the case because the state was unable to present expert testimony as to a comparison.

Later on, defense counsel objected to the pictures of the victim taken by a policeman on the grounds that they were not provided him pursuant to his request for discovery but were provided only at the proceedings of the previous day. The court overruled the objection and admitted the photographs into evidence noticing that the defendant had suffered no prejudice.

The court indicated that the delay in providing photographs of the scene and the reports of blood samples made at the time of the original investigation did not prejudice the defendant since even if he had them earlier he could not have taken any other pictures or obtained any other samples since these were factual matters available only at the time of the original investigation.

A forensic chemist testified for the State. During his direct examination, the defense counsel objected to his testifying on the grounds that the State had not complied with the rules of discovery by supplying defense counsel with reports of examinations made. These reports had been supplied on the morning of the second day of trial. The objection was overruled.

There is no question that these witnesses and the various reports and exhibits should have been made available to the defendant upon the original discovery motion. The State's failure to so provide does not, as defendant...