State v. Ivory, 41087

• Decision Date: 05 November 1980
• Docket Number: No. 41087,41087
• Citation: 609 S.W.2d 217,12 A.L.R.4th 731
• Parties: STATE of Missouri, Plaintiff-Respondent, v. William IVORY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 217

609 S.W.2d 217

12 A.L.R.4th 731

STATE of Missouri, Plaintiff-Respondent, v. William IVORY, Defendant-Appellant.

No. 41087.

Missouri Court of Appeals, Eastern District, Division One.

Nov. 5, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 12, 1980.

Application to Transfer Denied Jan. 13, 1981.

Robert C. Babione, Public Defender, Blair K. Drazic, Richard Burke, Asst. Public Defenders, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Richard F. Engel, Lisa M. Camel, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.

STEWART, Presiding Judge.

Defendant William Ivory appeals from a jury verdict and judgment finding him guilty of robbery first degree and armed criminal action. The court assessed punishment under The Second Offender Act at twenty years imprisonment for the robbery and ten years on the conviction for armed criminal action.

We affirm in part and reverse in part.

For reversal the defendant contends that the court erred in (1) refusing to issue a certificate to secure attendance of his alibi witnesses from the State of Colorado in accordance with the uniform law providing for attendance of witnesses outside the State of Missouri; (2) in failing to take any action toward compelling the attendance of his requested witnesses in violation of his right to compulsory process; (3) in permitting the State to draw an adverse inference from defendant's failure to call his alibi witnesses for the reason that the court had refused his request under the uniform law providing for attendance of witnesses from outside the State of Missouri; (4) in limiting defendant's opening statement to evidence that defendant would adduce; (5) in overruling his objection to questions of the State that informed the jury that an investigation led to the arrest of defendant because the "prosecutor drew the hearsay inference that other persons had implicated defendant"; and (6) in failing to discharge defendant because a mistrial, at defendant's request in a prior trial on the same charge, was required because of prosecutorial misconduct that constituted overreaching.

On January 3, 1977 at about 11:30 AM defendant entered the Romero Jewelry Store where Joseph Romero and his wife Mary Louise were working. Defendant looked at some rings for five to ten minutes. As he started to leave he knocked down a clock that was hanging on the wall. When Mr. Romero came from behind the counter to help replace the clock, defendant turned around with a sawed off shotgun and announced a holdup.

A juvenile then entered the store. When he came in he pulled back his coat and drew a machete from a sheath. Mr. and Mrs. Romero were herded into the back room. The juvenile went behind the counter, put on a pair of gloves, and began pulling merchandise into a shopping bag. An errand man came into the store and he was made to lie on the floor in the back room. Defendant then made all three persons go into a small bathroom and put a ladder against the door and warned them that they would be shot if they came out. They were able to free themselves after about five minutes and called the police.

We first consider whether the court erred in denying defendant's motion to secure attendance of out-of-state witnesses under the provision of the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings, § 491.400 et seq. RSMo 1969.

The portion of The Act relevant to our consideration provides that if any person in any state that has adopted a similar act "is a material witness in a prosecution pending in a court of record in this state ... a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will require." § 491.420(1).

Defendant's motion alleged that five named persons, residents of Denver, Colorado, were "material witnesses" in the case. It further alleged "that the reason that their testimony is material is that each would give evidence that the defendant was in their presence in Colorado at or near the time of the alleged incident. Their testimony would cumulatively constitute evidence of alibi."

The motion prayed that the court issue a certificate as called for in the statute or that the court secure the attendance of the witnesses "by other means."

At the hearing on the motion counsel for defendant testified "I have talked to the defendant and, based upon my confidential communications I believe that the testimony of these witnesses are absolutely necessary to his defense in that they establish an alibi." The trial court's order denying the motion stated that "the record before this court, at this time, is insufficient for the court to find that the 'witnesses' in question are 'material witnesses' under Section 491.020 RSMo."

In this case of first impression we observe that The Act requires that "(t) his law shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it." § 491.440. With a view to achieving uniformity we have reviewed cases from other jurisdictions that have a statute similar to The Act under consideration.

These cases which we find to be persuasive hold that the issuance or denial of the certificate is a matter largely within the discretion of the trial judge. Commonwealth v. Watkins, 375 Mass. 472, 379 N.E.2d 1040, 1050 (1978); People v. Newville, 33 Cal.Rptr. 816, 220 Cal.App.2d 267 (Ct.App.1963). It is also generally held that the party seeking to compel the attendance of a witness from without the state has the burden of proving that the testimony of the witness is material; and that the testimony is admissible, and relevant to the party's case. People v. McCartney, 38 N.Y.2d 618, 381 N.Y.S.2d 855, 345 N.E.2d 326 (1976); State v. Smith, 87 N.J.Super. 98, 208 A.2d 171 (1965); State v. Dragon, 130 Vt. 334, 292 A.2d 826, 830 (1972).

In the case at bar the only evidence submitted in support of defendant's motion was the testimony of his counsel that, based upon confidential communication with his client he was of the opinion that the testimony of the witnesses would establish the defense of alibi. It was the duty of defendant to present to the court facts from which the court could find that the testimony of the out-of-state witnesses would be material and that it would be admissible. It was not the prerogative of defendant's counsel to make the determination that the facts disclosed to him in the confidential communication with his client revealed that the testimony of the witnesses would be material to the defense of his client. The defendant presented no facts upon which the court could make a determination that the testimony of the witnesses would be material. The defendant made no attempt to provide additional evidence on the subject between the time that the motion was heard and the time the case went to trial. We are in agreement with the trial court's conclusion that the record was insufficient for the court to find that the " 'witnesses' in question were 'material witnesses' under Sec. 491.020 RSMo."

Though obscure, defendant's point may also be read as complaining that because defendant failed to comply with § 491.020, the court should have found some other means of procuring the attendance of the witnesses. The defendant claims that the failure to do so deprived defendant of his right to compulsory process under the Sixth Amendment to the United States Constitution and Article I, Section 18(a) of the Missouri Constitution. We cannot agree.

Process issued out of the courts of the State of Missouri does not have any extraterritorial power. State ex rel. Suter v. Wilder, 196 Mo. 418, 95 S.W. 396, 399 (1906). This rule is not changed by the uniform law because The Act is reciprocal and a matter of comity. "It is operative only between states that have enacted it or similar legislation ..." State of New York v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959). The failure of defendant to comply with the terms of The Act left the court powerless to compel the presence of the witnesses in any other manner. See People v. McCartney, supra; Commonwealth v. Watkins, supra.

Defendant urges us to grant him a new trial because the trial court permitted the prosecutor to argue an adverse inference from defendant's failure to produce his relatives and friends as witnesses in support of his alibi because the court refused to issue the certificate which would have permitted him to obtain process for the witnesses in the State of Colorado.

Defendant testified that he was in Denver, Colorado on January 3, 1977, the date of the robbery. He stated that he took a bus to Denver on December 24 to celebrate Christmas and his birthday with his daughters, his wife, other relatives and friends. His two daughters, two of their friends and the husband of one of the daughters drove him back to St. Louis the second week in January. No witnesses corroborated his testimony.

Counsel for the State, over the objection of defendant, argued:

"It's a little bit strange. A man who is convicted in 1939 and from then right on through, and has had a life conviction, and you're supposed to believe that man who told you he was visiting relatives, they drove him back here by car, the family. If they knew the way back to St. Louis from out there and they had a car, why didn't he get those relatives.

MR. FISCHER: These are daughters and his relatives and friends-"

In State v. Price, 541 S.W.2d 777 (Mo.App.1976), relied upon by defendant, Ms. Price testified that she had been framed and that she was accompanied by named persons. Defendant then proffered those persons as witnesses. They were not permitted to testify under the sanctions of Rule 25.45 when the State objected because the defense had not disclosed the names of the witnesses in...