State v. Powell
| Decision Date | 25 January 1983 |
| Docket Number | No. 45136,45136 |
| Citation | 648 S.W.2d 573 |
| Parties | STATE of Missouri, Respondent, v. Barry Leroy POWELL, Appellant. |
| Court | Missouri Court of Appeals |
Murray Stone, St. Louis, for appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George Westfall, Pros. Atty., Clayton, for respondent.
Defendant appeals from his conviction by a jury of stealing over $150.00 in violation of § 570.030, RSMo.1978 (amended 1981). The court found him to be a persistent offender and sentenced him to a term of 15 years' imprisonment.
On appeal, defendant challenges the admissibility and sufficiency of the evidence showing the amount stolen, and he alleges the court erred in overruling his motion to suppress the witnesses' in-court identifications of him.
The state introduced evidence tending to show the following facts. On February 6, 1980, the defendant entered the Wamser-Ferman Sporting Goods Store in Manchester, Missouri. He approached a cashier and threw some change down on the counter and the floor. The cashier stooped down to pick up the change and left her cash register drawer open. Kim, a secretary at the store, closed the cash register drawer. Defendant then picked up a pair of shoe laces and took them to a second cashier, Michele. After Michele had rung up the purchase and opened the cash register drawer, defendant threw some change down on the counter and floor. When Michele stooped down to pick up the change, defendant grabbed some money from the register. Michele grabbed him by the lapels and demanded that he return the money. Defendant threw down part of the money, approximately $100.00, and ran out of the store. At trial, both Michele and Kim identified defendant as the man who had stolen the money. The defendant moved to exclude the in-court identifications on the ground they had been irreparably tainted by the impermissibly suggestive out-of-court identification procedures which had been suppressed. The court overruled defendant's motion.
The manager of the store provided the evidence of the amount of cash missing. He testified that, immediately after the theft, he closed Michele's cash register and calculated the amount of cash that was missing. In testifying, he relied on two exhibits that were offered and admitted into evidence. State's Exhibit 2 consists of the day's cash register tapes taken from the cash register immediately after the theft, a gift certificate, and a copy of that day's bank deposit slip for that register. State's Exhibit 1 consists of two adding machine tapes which were prepared by the manager immediately after the theft and which show the amount of the cash missing. One of the figures on one of the tapes in Exhibit 1 represented the amount of cash in Michele's register at the start of the day. The manager testified that he had copied that figure from a journal prepared in the ordinary course of business. The other figures on the tapes were taken from Exhibit 2. Exhibit 1 was turned over to police officers. It was admitted over defendant's best evidence and hearsay objections.
In his first point, defendant alleges the trial court erred in admitting Exhibit 1 and the testimony pertaining to it because it was hearsay not within the business record exception. In his second point, he alleges the trial court erred in admitting Exhibit 1 because it was not the best evidence of the amount allegedly contained in the victim's cash register at the start of the day. We note at the outset that defendant did not properly preserve his hearsay objection to Exhibit 1 because he did not raise it in his motion for new trial. Rule 29.11.
Defendant's best evidence objection to state's Exhibit 1 is directed to the figure taken from the journal and showing the amount of cash in the cash register at the beginning of the day. The other figures on the tapes in Exhibit 1 were taken from the deposit slip and cash register tape in state's Exhibit 2, and those documents were properly admitted as business records. Defendant contends Exhibit 1 was not admissible to show the amount in the register at the start of the day because the page from the journal on which that amount was originally noted was the best evidence.
The best evidence rule does not preclude the introduction of secondary evidence; it merely embodies the law's preference for the best available evidence. Schnucks Twenty-Five, Inc. v. Bettendorf, 595 S.W.2d 279, 283 (Mo.App.1979). If the primary evidence is lost or destroyed, secondary evidence is admissible, and the unavailability of the primary evidence need not be proven "beyond the possibility of mistake." Id. The trial court has wide discretion in determining the admissibility of secondary evidence. State v. Stephens, 556 S.W.2d 722, 724 (Mo.App.1977).
In this case, the manager testified that he took the figure in question from a journal kept in the ordinary course of business. Each day, at the time the money is counted, the starting amount in each register is routinely recorded on a page in the looseleaf journal. These starting figures are recorded so that at the close of each day, the manager and the cashier can determine whether each register had a shortage or an excess of cash. Clearly, had the journal page for February 6, 1980, been available, it would have been admissible as a business record. However, the manager testified that he was not able to find the original page from the journal on which the starting amount for February 6, 1980, had been recorded and that, normally, the journal pages were disposed of at the end of each month. Further, he testified that he had copied the February 6, 1980, figure onto the adding machine tape. This was sufficient evidence of the reliability of the figure on the adding machine tape to support the court's admission of that tape as secondary evidence of the starting amount recorded in the journal. See Stephan v. Metzger, 95 Mo.App. 609, 69 S.W. 625 (Mo.App.1902). That the store manager or someone at the store destroyed the original record does not render secondary evidence inadmissible in view of the circumstances and lack of bad faith surrounding the destruction of the record. L.S. v. L.M.S., 538 S.W.2d 753, 755 (Mo.App.1976). Clearly, the court did not err in overruling defendant's best evidence...
To continue reading
Request your trial
-
State v. Snyder
...best evidence for the purpose of preventing its production in court. The state counters this question by reliance on State v. Powell, 648 S.W.2d 573, 575 (Mo.App.1983), which states the best evidence rule does not preclude secondary evidence, "it merely embodies the law's preference for the......
-
Berkel & Co. Contractors, Inc. v. JEM Development Corp., 15195
...evidence capable of production. Schnucks Twenty-Five, Inc. v. Bettendorf, 595 S.W.2d 279, 283 (Mo.App.1979). See also State v. Powell, 648 S.W.2d 573, 575 (Mo.App.1983). There was other evidence, apparently disregarded or misconceived by the parties and the trial court, which, if taken as t......
-
State v. Williams, 46496
...the defendant with the purse and its contents constitute an independent basis for the in-court identification. See State v. Powell, 648 S.W.2d 573, 577 (Mo.App.1983). Viewing the defendant while handcuffed did not render the identification unreliable. State v. Johnson, 628 S.W.2d 904, 908 (......
-
State v. Davis, 55801
...the introduction of secondary evidence; it merely embodies the law's preference for the best available evidence." State v. Powell, 648 S.W.2d 573, 575 (Mo.App.1983). A proponent of secondary evidence must prove three things: (1) the original is unavailable, (2) [the unavailability] is not t......
-
The Crawford confusion marches on: the confrontation clause and hearsay laboratory drug reports.
...properly when made contemporaneously with the events described by persons observing the incidents at issue). (64.) See State v. Powell, 648 S.W.2d 573, 576 (Mo. App. E.D. (65.) Id. (66.) Hobbs, 949 S.W.2d at 655. (67.) See Peters v. Johnson & Johnson Prods., Inc., 783 S.W.2d 442, 444 (M......