State v. Jamison

• Decision Date: 10 May 2005
• Docket Number: No. ED 82695.,ED 82695.
• Citation: 163 S.W.3d 552
• Parties: STATE of Missouri, Respondent, v. Jason JAMISON, Appellant.
• Court: Missouri Supreme Court

163 S.W.3d 552

STATE of Missouri, Respondent, v. Jason JAMISON, Appellant.

No. ED 82695.

Missouri Court of Appeals, Eastern District, Division Two.

May 10, 2005.

COPYRIGHT MATERIAL OMITTED

Lisa M. Stroup, St. Louis, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Attorney General, Jefferson City, MO, for respondent.

ROBERT G. DOWD, JR., Judge.

Jason L. Jamison (Defendant) appeals from the judgment upon his conviction by a jury of murder in the second degree, Section 565.021, RSMo 2000,¹ and armed criminal action, Section 571.015, in the death of Jeron Hamilton (Victim). The trial court sentenced Defendant to two terms of thirty years' imprisonment to be served concurrently. On appeal, Defendant argues the trial court erred in allowing the state to use a taped statement that was not provided to defense counsel to impeach a witness and in allowing a witness to testify about an uncharged crime. We affirm.

Defendant does not challenge the sufficiency of the evidence. Viewed in the light most favorable to the verdict, the evidence established that on December 1, 2001, Defendant was at the home of his girlfriend, Latasha Smith (Smith). Defendant and Smith sat on steps outside of the front door while Smith's niece and nephews played in the front yard. Defendant told Smith to take the kids in the house. Smith told the kids to go inside while Defendant descended the steps. Defendant approached Victim and John Johnson (Johnson) who were walking down the street. Johnson noticed that Defendant was hiding a sawed-off shotgun in his shirt sleeve. Defendant asked Victim if he participated in a fight that occurred on the previous day in which Defendant was allegedly injured. Victim said that he did not know what Defendant was talking about. After Smith took the kids into the house, she followed Defendant down the street. Smith told Defendant, Johnson, and Victim to stop arguing. Smith turned and began walking away. Defendant said to Victim, "I think your buddy is one of the ones who did it." Both Johnson and Victim replied: "Put that gun up. That gun don't mean nothing." In response, Defendant shot Victim. After hearing the gunshot, Smith ran to her house. Defendant ran past Smith and continued to run past her house. Victim died as a result of a gunshot wound to the head.

Upon hearing that he was a suspect in the case, Defendant turned himself in. At trial, Defendant testified that he did not shoot Victim. Defendant claimed he was not carrying a gun as he approached Johnson and Victim. Defendant claimed he asked them about why they "jumped him" on the previous day and in response, Victim replied, "I had my peoples knock you." Defendant testified that as he began to walk away he heard a gunshot which caused him to run for his own safety. At the close of evidence, the jury returned a verdict of guilty of the lesser-included offense of murder in the second degree and armed criminal action. This appeal follows.

In his first point, Defendant argues the trial court abused its discretion in allowing the state to impeach Smith with information from her taped statement to police because the State failed to provide Defendant a copy of the tape during discovery in accordance with Rule 25.03. Defendant argues this violation restricted his ability to prepare an effective defense against Smith's previous statements and ultimately resulted in fundamental unfairness. We disagree.

Before trial, defense counsel filed a request for discovery asking for the names of all persons the State intended to call as witnesses at any hearing or trial, including their written or recorded statements. The state provided defense counsel with a list of witnesses, which included Smith, but did not provide any written or recorded statement made by Smith. After the shooting, police questioned Smith about the incident and recorded her answers. A police report disclosed to Defendant mentioned this recording. At Defendant's first trial, which resulted in a hung jury, Smith testified, but the tape was never used. At the retrial, the state again called Smith as one of its witnesses. During Smith's testimony the prosecutor realized that her testimony had changed since the first trial. At that point, the prosecutor sought to impeach her as a hostile witness with prior inconsistent taped statements she made to the police. The defense attorney objected as follows:

MR. BASHIR: [defense counsel] This tape appeared right here, one minute from now. While they set up the rules of discovery, never gave defense a copy.

MS. BRYANT [prosecutor]: That's —

COURT: Wait a second; one second.

MR. BASHIR: Has never given me a copy; she never used it in the last trial. And whatever she wants to, somehow, she wants the tape — but she has given all the answers, whatever she asked. I haven't heard any contradictions so far. So how can she play something which I don't know what does it contain?

COURT: What about this tape? Has he ever received the tape?

MS. BRYANT: I don't know. He never — when I was talking to him at lunch, I mentioned the tape.

MR. BASHIR: Today.

MS. BRYANT: You know the tape is in the police report. You got discovery. You never sent me any blank tapes. You want to take a recess, you can listen to it.

MR. BASHIR: The tape was never mentioned in the last trial —

* * * *

THE COURT: If he didn't have the tape, you can't use the tape. Now, if you want to impeach your witness, something she said recently, and not through the use of the tape, if you didn't give that to [defense counsel].

* * * *

MS. BRYANT: Wait a minute. Just because I shouldn't (sic) be penalized because he didn't take it upon himself to come and get it. He was told about it.

THE COURT: If you've got some evidence that he was told to come and get the tape, then —

MS. BRYANT: Yes; the police report. It is in there.

(State retrieves police report; presents it at side bar.)

MR. BASHIR: Well, it's in there, in the police report, but she never used it in the last trial. She never gave me a copy of it. How do I know what the tape contains, and the witness is alive and present, and that's the point. How does she even get to play the tape? What — for what purpose?

The court asked Defendant for his general discovery request. Both parties continued to disagree about the discovery practice of providing recorded statements. The prosecuting attorney argued that defendants were responsible for sending a blank tape on which the recording could be copied. The defense attorney argued that this requirement only applied to video tapes, but not audio tapes. The court responded:

THE COURT: All right; here's what I'll do. I will allow you to impeach her, based on your information of what's in the tape. I'm not going to allow the tape to be used. Now, later on, if I discover the practice is somewhat different, then we'll deal with that. But I'll declare her a hostile witness. You may impeach her and ask her question about, did she say such-and-such on the tape. If she denies it right now, it's going to rest at that. You won't be able to play the tape until I've found out just what the practice is.

The state proceeded to impeach Smith with her taped statements. Smith testified that she did not recall telling the police on her taped statement that Defendant yelled at her, that no one was outside during the incident, that she and Defendant took five to ten steps away from Victim while arguing in the street, or that Defendant shot Victim. Smith admitted to previously saying that Johnson and Victim were standing down the street "minding their own business," and that Defendant told her, "That's the nigger who jumped me," as he walked down the steps. Smith also recalled saying that she never thought that "Defendant would do something like this." Defense counsel cross-examined Smith about her answers. Smith testified that on the day of the incident, a lot of people were outside. She further testified that after she intervened, Defendant stepped back and started walking away and then she heard a shot. Smith reiterated that she did not see Defendant shoot Victim.

If requested in writing by defense counsel, the state must disclose the written or recorded statements of the witnesses it intends to call at trial and must also disclose the substance of any oral statement made by the defendant along with the names of those persons who witnessed defendant making the statement. Rule 25.03; State v. Grant, 784 S.W.2d 831, 835 (Mo.App. E.D.1990). The purpose of this discovery rule is to grant the defendant a decent opportunity to prepare his case in advance of trial and avoid surprise. Grant, 784 S.W.2d at 835. Compliance with this rule is mandatory, not discretionary. Id. Appropriate sanctions for failure to make timely disclosure are left to the sound discretion of the trial court. State v. Myers, 997 S.W.2d 26, 33 (Mo.App. S.D.1999). Appellate courts will intervene only where a defendant shows that the failure to make a timely disclosure resulted in fundamental unfairness. Id. Fundamental unfairness turns on whether there was a reasonable likelihood that an earlier disclosure of the requested evidence would have affected the result of the trial. Grant, 784 S.W.2d at 835. Here, the state violated Rule 25.03. However, this failure to disclose did not result in fundamental unfairness because there was overwhelming evidence of Defendant's guilt. At trial, Johnson testified that Defendant approached him and Victim while carrying "a big sawed-off shotgun" in his sleeve. Johnson testified that after the verbal confrontation between Johnson, Victim and Defendant, Defendant shot Victim and ran away. Johnson later picked Defendant out of a police line-up. There was no showing at trial that Johnson was a biased witness. Further, Smith's trial testimony, unaided by the tape, indicated that after Defendant told her to take the kids inside, she believed Defendant was angry and was going to fight...