State v. Shepard, 13607
| Decision Date | 14 November 1984 |
| Docket Number | No. 13607,13607 |
| Citation | 681 S.W.2d 473 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Terry SHEPARD, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., Michael Finkelstein, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Stanley Brian Cox, Gary W. Fleming, Fleming & Fritz, Inc., Sedalia, for defendant-appellant.
Defendant, Terry Shepard, was jury-convicted of second degree burglary, § 569.170, 1 and stealing, § 570.030, and thereafter sentenced by the trial court to one year imprisonment on each charge in accordance with the jury verdicts. The information charged that Shepard unlawfully entered a building in Vernon County, Missouri, owned by the estate of Lula Kircher, for the purpose of stealing and that he stole property of the estate with a value of at least $150 which was in the building.
The first trial on the charges was held in Vernon County on September 29, 1981. Defendant was found guilty and was sentenced to two years' imprisonment on each charge. Shepard's conviction was reversed and the cause remanded by the Missouri Court of Appeals, Western District, for evidentiary error. State v. Shepard, 654 S.W.2d 97 (Mo.App.1983).
In his brief filed here, Shepard states that he admitted in his testimony at the first trial that he entered a home located at Rural Route 1, Nevada, Missouri, owned by the estate of Lula Kircher and assisted two other individuals, one of whom was Mark Jackson, in removing personal property from the home. Shepard further testified that Jackson had told him the home and furnishings were his grandmother's and "his grandmother had died a year or two ago and in the will she left it to him and his sister ...." By this testimony, Shepard was trying to show that he had no intent to commit the crimes of burglary and stealing when he entered the home. Jackson had admitted that he and Shepard had planned and carried out the burglary and theft in question.
On September 16, 1983, the case was transferred to Barton County on a change of venue and set for trial on October 13, 1983. Before that date, Shepard's request for a continuance was granted, and the trial was reset for November 9, 1983. On the date of trial, the prosecuting attorney requested that he be permitted to read the testimony of Jackson given at the first trial for the reason that Jackson was unavailable as a witness and that a good faith effort had been made to locate and subpoena him. After an evidentiary hearing, the trial court granted the request, over the objection of defendant.
In his first point relied on, Shepard contends that the state failed to make a good faith effort through the exercise of reasonable diligence to produce Jackson as a live witness at the second trial and, therefore, the use by the state of Jackson's first trial recorded testimony as evidence was reversible error.
Shepard's attorney did not object at trial to the use of the transcript of Johnson's prior testimony on the grounds of the state's failure to make a diligent attempt to find Jackson, but rather objected to certain testimony in the transcript which he considered inadmissible, which testimony, incidentally, was stricken by the trial court. Where the trial objection to the admission of evidence is based on a specific...
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