State v. Scott

• Decision Date: 25 February 1997
• Docket Number: Nos. WD,s. WD
• Citation: 943 S.W.2d 730
• Parties: STATE of Missouri, Respondent, v. James R. SCOTT, Appellant. 50480, WD 52035.
• Court: Missouri Court of Appeals

Page 730

943 S.W.2d 730

STATE of Missouri, Respondent, v.James R. SCOTT, Appellant.

Nos. WD 50480, WD 52035.

Missouri Court of Appeals Western District.

Feb. 25, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 1, 1997.

Application to Transfer Denied

May 27, 1997.

Gary E. Brotherton, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas, City, for Respondent.

Before LOWENSTEIN, P.J., and BRECKENRIDGE and EDWIN H. SMITH, JJ.

LOWENSTEIN, Presiding Judge.

"Causing Catastrophe" is denominated as a class A felony in § 569.070, RSMo 1994.Effective in our law in 1979, and located in our statutes just after those crimes involving arson, this section denounces, as here relevant, knowingly causing a catastrophe by flood which results in substantial damage to five or more buildings or inhabitable structures, or seriously impairs the usefulness or operation of a vital public facility.

The July 1993 flood along the Mississippi River provides the backdrop for the charges against the defendant, James Scott.The area in question is in Marion County, near the area where Durgin Creek and the North Fabius River enter the Mississippi.Scott was charged in Marion County, under § 569.070, with breaking or causing the West Quincy Levee on the Mississippi, which was above flood level, to fail, resulting in the flooding of some 15,000 acres of land, the destruction of over 100 buildings (including a gas station which exploded during the flood), and the closing of Highway 24 and a bridge across the river.After a change of venue, the case was tried to a jury in Adair County.Scott was found guilty of causing a catastrophe, and sentenced as a prior and persistent offender to life, the sentence to be served consecutive to an Illinois incarceration of ten years.

Levees are earthen dams built up along river banks.In this particular area, there had been intense rains in late June and early July, and residents were advised of expected high levels of the Mississippi.Sand and additional earth were added to shore up the levees in the seventeen mile stretch surrounding the levee that failed.Prior to the failure of the West Quincy Levee, to protect against erosion and a higher crest, the Levee District placed heavy plastic sheets over the tops of the levees and weighted the sheets down with uninterrupted rows of sandbags.Patrols of Levee District employees, the National Guard, Corps of Engineers, workers from the Missouri and Illinois Departments of Transportation, and numerous volunteers watched the situation very closely, both day and night.They would report and make repairs when any levee showed signs of eroding or failing.On July 16, the West Quincy levee, the area of the Mississippi with the fewest levee problems, had been patrolled at 5:30 p.m. and then again at 6:00 p.m.No problems were noted.

Earlier on the 16th, the river crested a foot or two below the top of the levee.At approximately 8:20 p.m., the West Quincy Levee allowed a small stream of water into the adjacent farmland.In a matter of minutes, the rupture had grown so wide a large barge from the Mississippi entered into the expanding area of the flood, and moved over what had been dry land.Sabotage was immediately suspected as the cause of the levee failure.Facts supporting a sabotage theory are: 1) the strength of this levee; 2) the rapid failure of the levee; and 3) the river level was receding and had not come over the top of this levee.Experts for the state testified sabotage led to the West Quincy levee failure, and explained that the break could have occurred if someone had removed sand from the top or cap of the levee.Scott's expert witnesses opined the levee failure could not have been caused by a person removing sandbags or plastic covering from the top of the levee.As described above, the subsequent torrents of water caused massive devastation of crops and farmland, with the destruction of over 100 buildings, as well as highway and bridge closures.

Incredibly, just after the levee failure, the defendant was interviewed about the flood in a live, on-the-scene, Fox Network Television newscast.These interviews showed Scott telling a reporter he had been on the levee and had witnessed signs of failure, but his warnings to authorities had gone unheeded.A videotape of the news interview was introduced in evidence.The Adams County, Illinois sheriff and his deputy saw the telecast, and became suspicious because of Scott's arson record, and because he was admittedly on the levee alone the day of the 16th.They were also familiar with Scott because he was a suspect in several crimes they were investigating at the time.During questioning in Adams County regarding the levee break and unrelated criminal matters, Scott told law enforcement personnel he was voluntarily patrolling the West Quincy levee on the day of the break, as well as several days prior to the break.His statement included admissions of his presence on the levee on the 16th, having been on the spot where the break occurred, having tried, without success to advise workers of leaks, and his taking several sandbags off the top to draw more attention to his concerns.He left the levee to advise workers of the continuing problems.On his return, he said he saw water coming over the top and through the levee, tried unsuccessfully to stop the flow, and then fled.Several witnesses, including officials in charge of this particular levee and those who inspected it at regular intervals, testified they never heard any report of a problem, nor saw any evidence of impending failure prior to the actual rupture on the evening of the 16th.They testified they had seen no unauthorized persons on the levee during their periodic checks.The defendant was not authorized to go upon nor inspect any levee.

Scott was seen on a nearby bridge just after the break.Several witnesses saw a lone man, who looked like Scott, on the levee just prior to the break, but they could not swear Scott was that person.Several other witnesses testified that Scott told them before the 16th he was going to break the levee because he was having an affair and wanted his wife to get stuck on the other side of the Mississippi.Other witnesses recounted having been told by Scott he enjoyed seeing people's property being destroyed, and if there was a flood, the fishing would be better.

Introduced over objection were portions of a videotaped interview Scott gave, after his arrest, to a television crew doing a show on arson.This will be referred to later as the Fox video.In the video, Scott told of having been an arsonist and having been careful and very good at this activity.

DIRECT APPEAL

I.

This point presents the issue of tailoring a proper remedy where the state has not complied with discovery by failing to timely disclose defendant's inculpatory oral statements to state's witnesses.Rule 25.03(A)(2).On the second day of trial, and early in the presentation of its evidence, the state sought to question two witnesses about statements made by Scott after the levee failure, which indicated he wanted to cause a flood so his wife would be trapped on the other side of the river and he would be free to party and engage in an extramarital affair.As stated above, several witnesses testified that in the days before the levee failure, Scott made statements about tearing down the West Quincy Levee, "... to get his wife stuck over there so he could have a party and some stuff", and so, "he could have parties at his house, and so there would be real good fishing over in the fields after it broke."

The two witnesses, Anderson and Flachs, were properly disclosed as witnesses, but no indication was given to the defendant of these inculpatory statements.Flachs and Anderson, according to the prosecutor's explanation to the judge, would testify as to Scott's statements before the break in the levee.The prosecutor told the trial courthe had just recently been told of Scott's inculpatory statements after the levee broke when he interviewed the witnesses (witness Anderson told of Scott's admission approximately a week before trial, the other was interviewed by the prosecutor the second morning of trial) but felt he was not obligated to disclose this additional line of their testimony to the defendant.These recent revelations were unknown to the police or, at least, not in police reports.The prosecutor believed he had to disclose only the written statements of the defendant, but as ruled by the trial judge, Rule 25.03(A)(2) clearly requires "... the substance of any oral statements made by the defendant ...," to be disclosed.

The precipitating event for this point, contained in the direct exam of witness Anderson, is now set forth:

Q.Did the defendant ever tell you he was going to break the levee?

A.Yes.

Q.What did he say?

A.He said he wanted to get his wife stuck over there so that he could have a party and some stuff.

Q.How many times did the defendant tell you this, if you remember.

A.Maybe twice.

Q.Do you remember when they were?

A.No.It was probably a week or so before it broke.

Q.And after the levee broke, did the defendant ever tell you whether or not he had broken the levee?

A.Yeah.

Q.What did he say?

A.He said that--

MR. ESTES: [defendant's counsel] I'm going to object, Your Honor.May I approach?

THE COURT: Yes, indeed.

[Proceedings at the bench:]

* * * * * *

MR. ESTES: Your Honor, this is a purported statement of my client that has not been disclosed to me.

The chambers conference on the objection to the Anderson testimony of statements of the defendant made after the break, brought out the prosecutor's disclosure as to the later scheduled witness, Flachs, in the following colloquy:

MR. JACKSON: [prosecutor]

If I may, Your Honor, on a related topic, I am now disclosing to the...