State v. Reese, WD

• Decision Date: 06 March 1990
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Constance REESE, Appellant. 41210.
• Court: Missouri Court of Appeals

Page 768

787 S.W.2d 768

STATE of Missouri, Respondent, v. Constance REESE, Appellant.

No. WD 41210.

Missouri Court of Appeals,

Western District.

March 6, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied March 27, 1990.

Application to Transfer Denied May 15, 1990.

David S. Durbin, Appellate Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.

Before GAITAN, P.J., and CLARK and MANFORD, JJ.

GAITAN, Presiding Judge.

Defendant, Constance L. Reese, was convicted by a jury of tampering in the first degree, in violation of Mo.Rev.Stat. § 569.080.1(2) (1986), and was sentenced to a term of four years. The defendant filed an appeal of conviction to this Court in October of 1988. Upon notice of the defendant's filing of a Rule 29.15 Motion, the Court suspended the appeal pending resolution of the motion. Defendant now reinstates her original appeal, as well as appeals the motion court's denial of the Rule 29.15 Motion Without An Evidentiary Hearing. The two appeals have herein been consolidated pursuant to Rule 29.15(l ).

The defendant raises six points of error: (1) the trial court erred in permitting James King, a witness for the state, to testify as a rebuttal witness because he was not endorsed pursuant to Rule 25.03; (2) the trial court erred in allowing King to testify as a rebuttal witness because his testimony was not offered to refute the evidence offered by the defendant; (3) the trial court erred in refusing to give MAI-CR 310.08 as modified by defendant in that defendant was entitled to have her theory of defense presented to the jury; (4) the trial court erred in refusing to give MAI-CR3d 308.06 because there was sufficient evidence to support the instruction; (5) the trial court erred in allowing into evidence state's exhibits six through nine, photographs, because their probative value was outweighed by their prejudicial impact; and (6) the motion court erred in denying defendant/movant to file a first amended Rule 29.15 motion pursuant to 50 U.S.C. App., §§ 501-91 (1981). Judgments affirmed.

Robert Zewert, an automobile salesman, testified that he was employed on February 8, 1988, at Blue Ridge Mazda in Jackson County, Missouri. Early that afternoon, an individual, subsequently identified by Zewert to be the defendant, came to the dealership and began looking at RX-7 model cars. The defendant and Zewert took several used automobiles off the lot for test drives; Zewert drove each time. The defendant then began to look at new vehicles. At this time another salesman, Wayne Rickel, also spoke with the defendant.

After speaking with both Zewert and Rickel, the defendant asked if she could test drive a maroon 1988 RX-7. Zewert drove the car off the lot and pulled into a nearby church parking lot. The defendant indicated that she intended to purchase the automobile and asked Zewert if she could drive it. Zewert got out of the vehicle, gave the defendant the keys, and held the driver side door open for defendant as she got behind the wheel of the car. Once Zewert closed the door, the defendant drove away in the RX-7, leaving him at the parking lot. Zewert returned to the Mazda dealership and called the police to report the theft of the car.

On March 23, 1988, Rickel was driving, with his family, westbound on Interstate 70 near the Highway 435 interchange. He observed a maroon 1988 RX-7 ahead of him, with a Blue Ridge Imports sticker over the left, rear tail light, and recognized it as the same vehicle stolen from Blue Ridge Mazda. Rickel pulled up beside the RX-7 to see who was driving; he saw the defendant. Rickel pursued the defendant as she exited westbound Interstate 70, drove around side streets, and reemerged on Interstate 70 eastbound. At approximately the east side of the downtown Kansas City area, the defendant lost control of and rolled the RX-7. Police responded to the scene of the accident. A computer identification check of license plates found in the car indicated that they belonged to a Mazda that had been stolen from Blue Ridge Mazda. Finding no paperwork to establish ownership, the police placed the defendant under arrest.

Defendant Reese testified in her own defense, providing an alibi for her whereabouts on the afternoon of February 8, 1988. The defendant claimed that she borrowed the RX-7 from a man named Richard, nicknamed "Counselor," that she had met at a restaurant on 29th and Prospect in Kansas City, Missouri. The defendant admitted that she did not remember Richard's last name and did not know where he lived.

I.

In her first and second points on appeal, the defendant contends that the trial court erred in allowing James King to testify as a rebuttal witness for the state because he was not endorsed pursuant to Rule 25.03 and his testimony was not offered to refute evidence offered by the defendant, but rather supported elements of the state's case in chief.

The record indicates that the defendant submitted a Request for Discovery pursuant to Rule 25.03 on April 6, 1988. The state complied with the request, but as it was unaware of King's existence at that time, did not include his name. Following the defendant's late disclosure of an alibi and alibi witnesses, the state conducted a last minute investigation approximately two days before the trial date of August 25, 1988. During this investigation, the state discovered King. While the state did not disclose the name of King to the defendant, the state did inform defense counsel at the onset of the trial and prior to the defendant taking the stand, that a rebuttal witness existed who could testify that the defendant had driven the maroon RX-7 to his place of employment and had told him that she owned the vehicle. The trial court refused defendant's request to order disclosure of King's identity, but gave defense counsel an opportunity to speak to the witness before he was called into court. The record reflects that defense counsel did not avail himself of the trial court's offer.

Defendant Reese testified that she borrowed the maroon RX-7 from a man called Richard; that she borrowed the car on only two other occasions prior to March 23, 1988; and that on those three occasions she drove the automobile around the block of 29th and Prospect, to 11507 Palmer in south Kansas City, and to Grandview, Missouri.

On rebuttal the state called King who testified that from mid-February to late March of 1988 he had seen the defendant driving the maroon RX-7 near his place of employment in Westport and on approximately three occasions in the neighborhood of 42nd and Prospect. King stated that when he saw defendant Reese with the vehicle outside his place of employment, he asked, "Whose car," and that the defendant responded, "My car."

The rule that requires endorsement of state witnesses does not apply to rebuttal witnesses, unless they are called to rebut a defense of alibi or mental disease, and the decision of whether the individual is a proper rebuttal witness is determined by the trial court. State v. Curtis, 544 S.W.2d 580, 582 (Mo. banc 1976); State v. Williams, 742 S.W.2d 616, 618 (Mo.App.1987); State v. Mitchell, 689 S.W.2d 143, 147 (Mo.App.1985). As the determination of the scope of rebuttal rests within the trial court's discretion, an appellate court may only reverse for an abuse of that discretion. State v. Leisure, 749 S.W.2d 366, 380 (Mo. banc 1988). Rebuttal evidence may directly or indirectly explain, counteract, repel or disprove a defendant's evidence either directly or by implication. State v. Moiser, 738 S.W.2d 549, 565 (Mo.App.1987). Further, testimony used in rebuttal is not improperly admitted merely because it could have been used by the state in its case in chief. State v. Piphus, 749 S.W.2d 26, 27 (Mo.App.1988).

Defendant contends that the analysis used by the eastern district in State v. Kehner, 776 S.W.2d 396 (Mo.App.1989), is applicable in this case. In Kehner the appellate court found that the state had improperly characterized an individual, whose testimony was evidence of an admission of guilt by defendant, as a rebuttal witness, thereby eradicating the need for endorsement. The individual was not a witness in the defendant's first trial in which the jury failed to reach a verdict. Testifying at defendant's second trial, the witness' impact was significant. He provided direct evidence of defendant's guilt and destroyed the defendant's self defense theory. Our brethren in the eastern district found that the surprise testimony of the witness was fundamentally unfair and prejudicial to the defendant.

We find Kehner distinguishable to the case at bar. King's rebuttal testimony served to disprove defendant Reese's testimony that she borrowed the car from Richard and that she drove it only on three specific instances, to three specific locations. It did not provide direct evidence of the defendant's guilt and was not offered to rebut her alibi defense. Additionally, the trial court offered defense counsel the opportunity to interview King prior to his testimony. We fail to find that the trial court abused its discretion in allowing King to testify as a rebuttal witness; the testimony did not prejudice defendant's substantial rights or alter the outcome of the trial. State v. Johnson, 702 S.W.2d 65, 73 (Mo. banc 1985). Defendant's first and second points are denied.

II.

Defendant next contends that the trial court erred in refusing to give MAI-CR3d 310.08 as modified by the defendant in that the defendant was entitled to have her theory of defense presented to the jury. We find this claim without merit.

During the instruction conference, the trial court refused the defendant's proffered modified instruction which stated:

The fact that defendant was driving the Mazda automobile on March 23, 1988 is alone not sufficient to make her criminally responsible for the offense of tampering, although her...