State v. Luallen, 12524

• Decision Date: 26 May 1983
• Docket Number: No. 12524,12524
• Citation: 654 S.W.2d 226
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Diane LUALLEN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 226

654 S.W.2d 226

STATE of Missouri, Plaintiff-Respondent, v. Diane LUALLEN, Defendant-Appellant.

No. 12524.

Missouri Court of Appeals,

Southern District,

Division Two.

May 26, 1983.

Motion for Rehearing Overruled and to

Transfer to Supreme Court Denied

June 17, 1983.

Application to Transfer Denied

Aug. 16, 1983.

John D. Ashcroft, Atty. Gen., Janet E. Papageorge, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Debra Sterling Hans, Asst. Public Defender, Springfield, for defendant-appellant.

PREWITT, Judge.

Following jury trial defendant was convicted of felonious restraint. § 565.120, RSMo 1978. Thereafter, she was found to be a "persistent offender", § 558.016, RSMo 1978, and was sentenced to seven years' imprisonment. Defendant was charged with using a butcher knife to force another woman, Dianna Hall, to drive her in a motor vehicle from Springfield to Kimberling City. Hall testified that defendant pulled the butcher knife from a large paper sack and threatened her with it.

Defendant asserts in her first point that the trial court erred in failing to grant her motion for a mistrial because the assistant prosecuting attorney representing the state "brandished a large 14-inch butcher knife: in the first instance, to the assembled panel of veniremen in the hallway of the courtroom; and, subsequently, to the jury during his opening statement."

The record reveals that the following occurred as the prosecuting attorney was relating the evidence in making the state's opening statement:

"[A]nd the defendant pulls a butcher knife,--(counsel holding up knife) which I believe the evidence will show that this (indicating) is the butcher knife. She pulls the butcher knife, and tells Dianna Hall, 'You're taking me to Kimberling City. I--don't want to hurt you, but I will, if necessary. You're taking me to Kimberling City.' "

Following the conclusion of the state's opening statement, defendant's attorney moved for a mistrial on the grounds asserted in this point. The request was denied. The knife was identified as the knife used by defendant and was received in evidence without objection.

The drastic nature of a mistrial requires that it be granted only in extraordinary circumstances where the prejudicial effect cannot be removed in any other way, and such a determination rests largely within the discretion of the trial judge. State v. Dees, 639 S.W.2d 149, 159 (Mo.App.1982). As the knife was subsequently admitted into evidence, we see no prejudice to defendant and cannot say that the trial court abused its discretion in not granting a mistrial. Point one is denied.

For her second point defendant contends that the trial court erred in failing to grant her a continuance because of the serious illness of a "material witness" for her. Defendant's mother was involved in a serious automobile accident a week before the trial commenced and was in critical condition in the hospital at the time of trial.

On the morning of trial defendant's counsel made an oral motion for continuance on several grounds, including that defendant's mother was in critical condition. He asked for a continuance "in view of the fact that she may be a witness in this case, and has been a valuable aid to me in the investigation of this case, and has interviewed three or four witnesses, and talked with me on the phone numerous times and supplied me with some tape recordings of her investigation in this matter, giving me the background, and so forth, and in view of the fact that my client is indigent, is in--and is in jail, and is unable to investigate the case on her own". Defendant's point is limited to the contention that she was prejudiced because her mother was unable to testify at the trial.

A trial court has broad discretion in granting or denying a continuance, and its decision will not be reversed unless there is an abuse of discretion. Phillips v. State, 639 S.W.2d 270, 275 (Mo.App.1982). Unless a party requesting a continuance because a witness is unavailable shows the materiality of the evidence sought to be obtained and the particular facts the witness will prove, a trial court does not abuse its discretion by denying the continuance. Id. 639 S.W.2d at 275-276. See also Rule 24.10. Before refusal to grant a continuance will constitute an abuse of discretion, a defendant must demonstrate that denial of the continuance prejudiced his defense. State v. Lane, 551 S.W.2d 900, 906 (Mo.App.1977). No facts that the witness might testify to were shown here, nor has defendant shown how In her third point defendant contends that the trial court erred in overruling her motion for a new trial because after the trial she was advised of evidence that at a new trial would probably produce an acquittal. In her motion for new trial defendant alleged:

the denial prejudiced her defense. The trial court did not abuse its discretion in denying the continuance.

"That the Defendant is advised, informed and believes that there are one or two white male individuals who were tenants at the Oak Rest Motel on West Sunshine on the night of August 26 or 27, 1981, who may have seen Defendant with a large paper sack, look in the sack and discovered personal items of Defendant and specifically would testify that there was no large butcher knife contained therein, and that such newly discovered evidence would constitute grounds for a new trial herein."

For defendant to obtain a new trial on the basis of newly discovered evidence, she must show: (1) the evidence must have come to her knowledge after the end of the trial; (2) not learning of it before then was not due to any want of due diligence on her part; (3) the evidence is so material that it will probably produce a different result on a new trial; and (4) the evidence is not cumulative only or merely of an impeaching nature. State v. Dizdar, 622 S.W.2d 300, 303 (Mo.App.1981). Although contending that this was "newly discovered evidence" the motion does not allege that it came to the knowledge of the defendant after the trial ended. However, whether requirements (1), (3), and (4) were met makes no difference here, as clearly there was no allegation or proof of requirement (2). Point three is denied.

Defendant's fourth point contends that the trial court erred in failing to grant a mistrial when a witness for the state, Detective Merrill Coffman, of the Springfield Police Department was permitted to testify as to alias names given by defendant. Defendant commences the argument portion of her brief, stating:

"Detective Merrill Coffman of the Springfield Police Department was allowed by the trial court, over the objection of defendant, to testify as to alias names of defendant (Tr. 344)."

No other reference to his testimony was made in defendant's brief. Page 344 of the transcript is set forth below. ^*

Neither there nor elsewhere in the detective's testimony did he testify to any other names used by defendant nor was any request for mistrial or objection made by defendant during his testimony. By failing to make a timely request for a mistrial defendant has not preserved this point for review. State v. Fanning, 647 S.W.2d 177, 178 (Mo.App.1983). Nor do we see how the matters complained of in this point could have justified a mistrial or how they could constitute plain error. They are not so...