State v. Scott, WD

• Decision Date: 15 February 1983
• Docket Number: No. WD,WD
• Citation: 647 S.W.2d 601
• Parties: STATE of Missouri, Respondent, v. Arlester E. SCOTT, Appellant. 33594.
• Court: Missouri Court of Appeals

Page 601

647 S.W.2d 601

STATE of Missouri, Respondent, v. Arlester E. SCOTT, Appellant.

No. WD 33594.

Missouri Court of Appeals Western District.

Feb. 15, 1983.

Allen R. Purvis, Elwood L. Thomas, Anne E. Goos, Kansas City, for appellant.

Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, C.J., and CLARK and KENNEDY, JJ.

CLARK, Judge.

Arlester E. Scott, charged with robbery first degree, was convicted by a jury and was sentenced by the court to a term of twenty-five years. On this appeal, Scott presents eleven points of trial error. We conclude that the conviction must be reversed by reason of prejudice to the defendant when the state was permitted to call two witnesses not disclosed to the defense in pre-trial discovery. Other points of error will be discussed by reason of their impact upon future disposition of the case.

A detailed survey of the evidence presented to the jury is required to compose the setting in which the testimony by the unendorsed witnesses was proposed. In the main, the facts of the crime were uncontroverted, the sole issue being whether the accused, Scott, was one of two men who committed the robbery.

The state's evidence initially established that in the early afternoon of March 27, 1981, a robbery was committed at a Milgram's food market in a Kansas City shopping center. The robbers were two black men, one short and the other tall with a full dark beard. Both men wore gloves but were otherwise undisguised. The shorter man confronted the store manager at his office and he was soon joined there by the taller man who brought two other employees from a nearby lounge area. Both men were armed with handguns which were used to enforce their demands. The three employees were then directed into the office and, upon threatened use of the weapons, the manager opened a safe from which the shorter man took cash and money orders. While the robbery was in progress, a fourth store employee came to the office and he was compelled to join the others held at gunpoint by the taller robber.

After the money and checks had been obtained, the hands of all the store employees were bound with duct tape, a material used to seal heating pipes and equipment. The robbers then left locking the office door. The store manager was the first to free himself and he returned to the public area of the store in time to see the robbers as they left through the front door. He followed, observed the car in which the robbers fled and gave chase in his own car but lost pursuit in traffic.

The hypothesis of the prosecution was that Scott was the taller of the two robbers. None of the four store employees, however, made any positive identification of Scott. The store manager testified he thought Scott was the man but he was uncertain because the tall robber was bearded while, at trial, Scott was clean shaven. The three other employees expressed no opinion on identification of the robbers at all. Scott's implication in the crime rested entirely on a fingerprint comparison. That print was allegedly recovered by an evidence technician, William Fortner, from a scrap of cardboard retrieved from the floor of the Milgram store manager's office. It is the source and integrity of the piece of cardboard and the expert opinion that Scott's fingerprint was on that cardboard about which the testimony in question centers.

The state called as a witness Daniel Burns, a district police officer who was first to respond to the robbery call. The defense objected to use of Burns as a witness because he had not been endorsed as a prosecution witness and his name had not been supplied in response to discovery requests by the defense. The court denied a motion to disqualify Burns as a witness but did declare a recess to permit defense counsel to interview Burns before he testified. Following the interview Burns took the stand and testified that when he arrived at the store, he confirmed the occurrence of the crime, called the police dispatcher for a laboratory crew, protected the crime scene and took information from witnesses. Burns described the arrival of police laboratory technician, Fortner, who Burns saw, "out of the corner of his eye," going about his work gathering evidence. According to Burns, a box or wrapper which had contained duct tape was on the office floor and this was among the materials Fortner placed in an evidence bag. After Burns had given his evidence, it was disclosed that Fortner, the evidence technician, could not be located. The foundation for admission of the scrap of cardboard from which the fingerprint had allegedly been recovered therefore depended on the testimony of Burns and of the store manager in his description of how duct tape had been used to bind the store employees' hands. The defense objected to admission of the exhibit on the grounds that insufficient proof had been offered to identify the exhibit or to show its condition from the time of retrieval to the time of examination. Ruling on admission of the exhibit was deferred.

The state then called Steven Worlan, an officer assigned to the Regional Crime Laboratory as a fingerprint expert. The defense objected to the state's use of Officer Worlan because, in like manner as had been the case with Daniel Burns, the prosecution had made no disclosure in pre-trial discovery of its intention to call Worlan as a witness. Again refusing to bar the state from use of a surprise witness, the court provided the defense an opportunity to interview Worlan before he testified. The defense protested that the interview was an insufficient remedy to allow preparation for cross-examination of an expert witness, but the court refused the defense motion to disqualify the witness. The court also overruled a defense motion challenging Worlan's testimony on the ground that the exhibit from which Worlan had allegedly recovered the fingerprint had not been admitted in evidence.

Called to the stand, Worlan then testified that on April 16, 1981, he checked out from the laboratory property room an evidence bag which was sealed and which bore initials he knew to be those of William Fortner. In the evidence bag he found surgical gloves, pieces of duct tape and cardboard from a box indicated to have contained duct tape. Examination of the articles for fingerprints disclosed recoverable prints only from the cardboard. Worlan developed two prints from the cardboard, photographed them and returned the articles and the evidence bag to the property room.

Also offered and received in evidence was an inventory report from the police files which recorded various transfers of the evidence bag containing the gloves, the duct tape and the cardboard from the box. According to the report, the bag was delivered to the Regional Crime Laboratory March 30, it was returned to the Kansas City, Missouri police property room April 1 and was redelivered to the laboratory April 15. The transfers back and forth from the crime laboratory were otherwise unexplained as related to the examination performed by Worlan April 16.

The state next called Richard Schweiterman, a latent print examiner with the police department. The purpose of Schweiterman's evidence was to connect Scott to the crime scene through fingerprints. The defense objected to Schweiterman's testimony on the ground that neither the cardboard nor the photographs of prints had been admitted in evidence. The objection was overruled and Schweiterman testified that a known print of Scott corresponded with one of the photographed prints taken from the cardboard.

By the third day of trial, Officer Fortner still had not been located. At this point, the court ruled to admit in evidence the state's exhibits including the cardboard box and the fingerprint photographs. The court stated the exhibits were being received because the court was "relatively convinced that the box in question is the box that was on the floor there that day."

I.

On this appeal, Scott presents three points associated with admission in evidence of the duct tape box and the evidence dependent on the box for foundation. He first asserts that the tape box was erroneously admitted without proof of a proper chain of custody necessary to establish that the exhibit was in fact the same tape box collected at the scene of the crime and, if so, whether the box was in the same condition when examined for prints as when taken from the Milgram store. In the second and third points, Scott contends the court erred in failing to exclude the testimony of witnesses Burns and Worlan because their names were not supplied in response to several pre-trial discovery requests propounded to the state by the defense.

In the absence of testimony from Fortner, the officer who collected the evidence at the Milgram store and presumably delivered it either to the police properly room or to the laboratory, the foundation for admission of the exhibit on which the print comparison depended consisted of the testimony by the store manager as to what the robbers had used to bind the victims, the testimony of patrolman Burns as to what he observed Fortner doing and the testimony of Worlan who opened the evidence bag some two weeks later and examined the contents. The questions presented are whether the state was entitled to use Burns and Worlan as witnesses after failing to disclose them in pre-trial discovery and, whether the proof from these witnesses was sufficient to establish the integrity of the physical evidence.

With respect to Scott's complaint about both surprise witnesses, the record of defense discovery efforts is relevant. When the information was filed in the case, Worlan's name was endorsed as a witness, but Burns' was not. On June 11, 1981, the state sent a letter to defense counsel listing the witnesses who would be called by the prosecution. That letter listed neither Burns nor Worlan. On June 29, 1981, the defense filed its request for discovery...