State v. Sanders

• Decision Date: 02 June 1981
• Docket Number: No. 42374,42374
• Citation: 619 S.W.2d 344
• Parties: STATE of Missouri, Respondent, v. Jimmie SANDERS, Appellant.
• Court: Missouri Court of Appeals

Page 344

619 S.W.2d 344

STATE of Missouri, Respondent, v. Jimmie SANDERS, Appellant.

No. 42374.

Missouri Court of Appeals, Eastern District, Division One.

June 2, 1981.

Motions for Rehearing and/or Transfer to Supreme Court

Denied July 10, 1981.

Robert C. Babione, Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

DOWD, Judge.

Defendant, Jimmie Sanders, was found guilty by a jury of second degree burglary in violation of Section 560.045 RSMo 1969. Defendant was sentenced under the Second Offender Act to a term of ten years imprisonment. He appeals.

On November 8, 1977, at approximately 7:30 a. m., Ross and Goldie Cornish left their home located in the City of St. Louis. They noticed nothing unusual about their home before leaving. Mrs. Cornish returned to the home between 2:30 and 3:30 p. m. She discovered that the front door had been broken in, and drawers in bedroom cabinets had been dumped out on the floor. A gun rack located in the basement had been torn off the wall. Numerous items including jewelry, guns, radios and coins were missing.

The police were notified and looked for fingerprints throughout the house. One fingerprint was found in the lower front portion of the gun rack that had been torn from the basement wall. The recovered fingerprint was compared to defendant's fingerprints. There was expert testimony that the fingerprint found on the gun rack was that of defendant Jimmie Sanders. Defendant presented alibi testimony consisting of the depositions of defendant's father, Douglas Sanders, and of Ella Riley. Mr. Sanders and Ms. Riley both lived in Memphis, Tennessee at the time of trial. These individuals stated that defendant was in Memphis during October, November and December of 1977.

On this appeal defendant contends the trial court erred in the following respects: (1) allowing the prosecutor to argue an adverse inference against defendant for failing to call his sister as a witness, (2) refusing to admit testimony of a defense witness that defendant failed to appear in traffic court in St. Louis County on October 3, 1977, (3) admitting fingerprint cards that had portions covered with tape to prevent the jury from reading information on the cards, (4) admitting an enlarged photograph of a fingerprint which was not the defendant's fingerprint, (5) failing to sustain defendant's motion for judgment of acquittal at the close of all the evidence because the evidence adduced was insufficient to support the conviction, and (6) ruling that the number of peremptory challenges for the parties would be governed by Section 546.180, as amended by the Laws of 1979, even though this provision was not in effect at the time of the commission of the offense.

Defendant first contends the trial court erred in allowing the assistant prosecuting attorney to argue an adverse inference against defendant for failing to call his sister, Helen Sanders, as a witness. There was alibi testimony from other defense witnesses that Ms. Sanders had driven defendant to Memphis, Tennessee in October, 1977 and was seen with him in Memphis in November, 1977. During closing argument the prosecutor stated that "(t)he defendant knows where his sister is and she's in St. Louis and if he wanted to bring her in he could have." ¹ When a witness is more available to one party than to another and would appear from the facts and circumstances to be reasonably expected to give testimony in that party's favor, an unfavorable inference may be argued from the failure to produce the witness. The adverse inference may not be argued, however, where the testimony of the uncalled witness would be cumulative or inadmissible. State v. Brooks, 567 S.W.2d 348, 351 (Mo.App.1978); State v. Ganaway, 556 S.W.2d 67, 69 (Mo.App.1977). The uncalled witness in the present case was defendant's sister. There was evidence that she had driven defendant to Memphis in 1977. Clearly Helen Sanders would be expected to give favorable testimony on defendant's behalf and was more available to defendant than to the state. State v. Ivory, 609 S.W.2d 217, 221 (Mo.App.1980); State v. Collins, 587 S.W.2d 303, 307 (Mo.App.1979).

Nor can we conclude that Helen Sanders' testimony would have been merely cumulative to the testimony contained in the two depositions introduced at trial. The depositions of Ella Riley and Douglas Sanders indicated that defendant was in Memphis in October, November and December of 1977. Both Riley and Douglas Sanders stated they saw defendant "every day," but neither had any specific memory of November 7, 1977, and they were not questioned concerning any memory of November 8, 1977, the date of the crime in issue. Douglas Sanders stated that Helen Sanders drove defendant to Memphis in October, 1977, and that she attended a party there on November 27, 1977. There is nothing in the record regarding any statements by Helen Sanders concerning the time period in question. "Evidence is cumulative when the fact is 'fully and properly proved by other testimony' so as to take it out of the area of serious dispute." State v. Ralls, 583 S.W.2d 289, 292 (Mo.App.1979). Defendant's whereabouts on or about November 8, 1977, were not fully and properly proven by the deposition testimony, and we cannot presume that Helen Sanders' testimony would have been cumulative to the facts established at trial. Defendant's first contention is without merit.

Defendant next contends the trial court abused its discretion in refusing to allow defense witness Ester Emas to testify that defendant failed to attend traffic court in St. Louis County on October 3, 1977, and in refusing to admit court records pertaining to a traffic ticket received by defendant. Defendant's offer of proof established that Ms. Emas was a clerk for the St. Louis County Magistrate Court. She testified that defendant failed to appear in court on October 3, 1977 to pay a traffic ticket and court costs. The trial court sustained the state's objection that this testimony was not relevant to the case. Defendant argues that the evidence supported his alibi defense.

Evidence is relevant if it logically tends to prove or disprove a fact in issue or to corroborate evidence which itself is relevant and bears on the principal issue. In a criminal proceeding, questions of relevancy are left to the discretion of the trial court and its rulings will be disturbed only if an abuse of discretion is shown. State v. Wood, 596 S.W.2d 394, 402 (Mo. banc 1980); State v. Proctor, 546 S.W.2d 544, 545 (Mo.App.1977). The crime charged in this case occurred on November 8, 1977. The fact that defendant did not appear in court to pay a traffic fine in St. Louis County on October 3, 1977 obviously does not establish his whereabouts on the date of the crime. The trial court acted within its discretion in excluding the testimony and court records.

Defendant next contends that the trial court erred in admitting state's exhibits 3 and 4, which were cards containing defendant's fingerprints. Exhibit 3 was a fingerprint card which had been kept in police department records. Exhibit 4 was a fingerprint card made in the presence of the trial judge and the trial attorneys in this cause. Both exhibits were used by the state's fingerprint expert to identify the recovered fingerprint found in the victims' home. Certain information on exhibit 3 was covered over with tape to prevent the jury from reading potentially prejudicial information contained on the card. Defendant contends the exhibits linked him to prior crimes and offenses. He argues the taped portions of exhibit 3 would cause the jury to infer defendant had been arrested previously, especially in light of the prosecutor's remarks during trial that exhibit 3 came from police files.

Masking possible prejudicial information on the fingerprint card is similar to the procedure used when police department "mug shots" are introduced into evidence. The admission of "mug shots" with blotted out portions has been permitted. State v. Crossman, 464 S.W.2d 36, 41 (Mo.1971); State v. Lorenze, 592 S.W.2d 523, 529 (Mo.App.1979); State v. Johnson, 539 S.W.2d 493, 517 (Mo.App.1976) cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977). In the present case, the fingerprint card was relevant to the identification of defendant and its admission did not constitute prejudicial error.

Defendant also complains that the assistant prosecuting attorney's comments that exhibit 3 came from police files caused the jury to learn that defendant had previously been arrested. There were no objections to the prosecutor's comments. Thus, defendant has not preserved anything for review. Plain error review of this contention is not warranted. There were no references at trial that defendant had a criminal record or that he had previously been arrested. The prosecutor's statement that the fingerprint card was kept in police files would not necessarily connote to the jury that defendant had a prior arrest record. We find no prejudicial error in the prosecutor's comments. See State v. McMillan, 593 S.W.2d 629, 632-633 (Mo.App.1980); State v. Leady, 543 S.W.2d 788, 790 (Mo.App.1976). Finally, defendant also contended in this point that the trial court erred in admitting exhibit 4, the fingerprint card made in the presence of the trial judge and both trial attorneys. Defendant did not carry this point forward in the argument portion of his brief. Points of error not carried forward in the argument portion of defendant's brief are deemed abandoned. State v. Heitman, 473 S.W.2d 722, 727-728 (Mo.1971); State v. Johnson, supra.

Defendant next contends the admission of state's exhibit 2, an enlarged photograph of a sample fingerprint which was not the defendant's fingerprint, constituted prejudicial error. Defendant argues that the exhibit was not relevant or material to any matter in issue, and created a prejudicial...