State v. Shisler, WD

• Decision Date: 07 June 1988
• Docket Number: No. WD,WD
• Citation: 752 S.W.2d 447
• Parties: STATE of Missouri, Respondent, v. Eldon L. SHISLER, Appellant. 39803.
• Court: Missouri Court of Appeals

Page 447

752 S.W.2d 447

STATE of Missouri, Respondent, v. Eldon L. SHISLER, Appellant.

No. WD 39803.

Missouri Court of Appeals Western District.

June 7, 1988.

James R. Brown, Brown and Brown, Kearney, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before MANFORD, J.P., and TURNAGE and COVINGTON, JJ.

COVINGTON, Judge.

Defendant, Eldon Lee Shisler, appeals his conviction by a jury of unlawful use of a concealed weapon, § 571.030.1(1), RSMo 1986, a class C felony for which he was sentenced to two years' imprisonment and fined one dollar. Affirmed.

On March 6, 1987, Elizabeth Nigro was working at Kentucky Fried Chicken, 3014 Independence Avenue, in Kansas City, Missouri. At approximately 1:00 a.m. she saw a car sitting near the drive-up window of the restaurant with its engine running and lights on. The driver was slumped over the wheel and appeared to be asleep. Ms. Nigro called the police.

Kansas City Police Officers Galand McGinness and John Fouchia arrived at the scene about 1:10 a.m. and attempted to wake the driver. The driver did not respond, so the officers removed him from the car and eventually roused him. They placed him under arrest for being in physical control of a vehicle while intoxicated. In court Officer Fouchia identified defendant as the driver of the car. Defendant was placed in the patrol wagon, and the officers conducted a standard inventory search of the vehicle. Officer Fouchia conducted most of the search. He found a .38 caliber pistol, concealed in a black vinyl carrying case, placed between the driver's seat and the console, where it would have been up against defendant's right leg as he sat in the driver's seat. The pistol was loaded with six live rounds. Also inside the pouch was a bottle containing several .38 caliber rounds. Officer Fouchia testified that the weapon was capable of being fired. Elsewhere in the vehicle, Officer Fouchia found a box of approximately 50 live rounds. Other items retrieved from the vehicle and admitted into evidence were: a brown wooden baseball bat, a hat containing a multicolored headband and a plastic mask with white hair on it, a memo book, and an envelope containing $68.40 in cash. A knife, approximately 9 inches in length when opened, was found on defendant's person, as was $311.00 in cash. There were empty beer cans in the car, and the odor of alcohol was noted by both officers.

Sandra Clark was called as a witness for defendant. She testified that she moved in with defendant the first day she met him at the Brother-in-Law's bar in February, 1987, and that she lived with him for about a month. Defendant was at that time manager of the bar, but lost his job there just a few days before his arrest. Ms. Clark admitted to being an alcoholic, and stated that she drank every day. She testified that she spent the evening of March 5, 1987, drinking at Brother-in-Law's with defendant. Both drank heavily and stayed until closing time. They left the bar some time after 1:00 a.m. on March 6th after arguing about who would drive. Ms. Clark testified that defendant was drunk enough that she refused to ride with him unless she were allowed to drive. Defendant finally relented and walked out of the bar first while Ms. Clark was still talking to the bartender. Ms. Clark testified that, as she left, the bartender called after her and asked her to take defendant's gun. She testified that she took the gun, which was in the pouch, and got into the car on the driver's side after defendant had leaned over and unlocked the door. She stated that she could not remember exactly where she put the gun as she got in. She further testified that she did not tell defendant that the gun was in the car, and that she was "almost positive" that he couldn't have known the gun was in the car. As they drove off, the two got into a minor argument, and Sandra eventually pulled off the road, got out of the car and walked away. At the time she left defendant, the car was not at Kentucky Fried Chicken.

Defendant's testimony was generally consistent with Sandra Clark's. Defendant stated that he had been the manager of Brother-in-Law's Bar since early in 1987, but, because of a dispute that arose over the owners' rehiring of personnel he had fired, defendant quit the job. He testified that the termination was a "mutual dissolution," that there was no real animosity, and that he continued to be a regular customer and a participant in pool tournaments at the bar. On the evening of March 5, 1987, he went to the bar with Sandra Clark. Both drank heavily. He still had a $50 tab at the bar which had been part of his compensation as manager. His description of events leading up to the point of Sandra Clark's departure from the car (after the argument) was consistent with hers. He stated that he did not notice her carrying anything when she got into the car, and that he remembered nothing from the time she left the car until he awakened in a holding cell early the next morning. Defendant stated that the gun found in the car was his, that he had purchased it from a friend for use as a "counter gun" when he worked at the bar, and that he kept it on a shelf behind the kitchen. He testified that he didn't even think about the gun after he lost his job at the bar. Other portions of defendant's testimony will be set forth in connection with the discussion of the points on appeal.

In his first point, defendant alleges that the trial court erred in permitting the prosecutor to cross-examine defendant regarding two exhibits which the state failed to disclose in response to defendant's request for discovery under Rule 25.03 and in admitting the exhibits into evidence. The exhibits were two affidavits executed by defendant in the course of applying for liquor permits in which defendant falsely stated that he had never been arrested. Defendant contends that the trial court should have imposed sanctions under Rule 25.16 by excluding the exhibits and barring further cross-examination on them and that the trial court's failure to do so resulted in fundamental unfairness.

The state concedes that neither the documents nor the statements of defendant contained in them were disclosed to defendant in response to his request for discovery. The state argues, however, that because defense counsel made no objection at trial until after defendant had been shown one of the documents, had identified it, and had admitted lying about his previous arrests, no error was preserved for appeal and no fundamental unfairness could have resulted. Where evidence is received by surprise, however, untimeliness of defendant's objection will not preclude appellate review. State v. Stapleton, 539 S.W.2d 655, 659 (Mo.App.1976).

The imposition of sanctions for failure to comply with an appropriate discovery request is a matter which lies within the sound discretion of the trial court. State v. Johnson, 702 S.W.2d 65, 73 (Mo. banc 1985). Where no sanctions are imposed, the appellate court's task is to determine whether the state's discovery violation resulted in fundamental unfairness to the defendant or substantively affected the result of the trial. Id.

The primary factor to be considered in deciding whether the challenged evidence could have substantively altered the result of the trial is whether the evidence relates to a vital or critical element of the case. See, e.g., State v. Perkins, 710 S.W.2d 889, 893 (Mo.App.1986) (statement of defendant directly contradicting his alibi defense); State v. Scott, 647 S.W.2d 601, 607 (Mo.App.1983) (state called undisclosed witnesses to prove "vital elements of the prosecution's case").

The critical evidence in the case was the testimony of the two police officers who conducted the search of defendant's vehicle. The officers testified that the weapon was found concealed in a black vinyl pouch between the driver's seat and the console of defendant's car, where it would have been directly adjacent to defendant's right leg as he sat in the driver's seat. The officers testified that two separate containers of live ammunition were also found in the vehicle. In addition, Detective Christopher Atwood testified that defendant, when asked about the gun approximately three and a half hours after his arrest, admitted that he kept it in a pouch in his car.

Defendant's evidence consisted of Sandra Clark's testimony that she put the gun in the car without defendant's knowledge and defendant's testimony that he did not know the gun was in the car. Defendant's credibility was at issue. Proof that defendant had lied about his previous arrests was not the only evidence produced by the state which cast doubt on defendant's credibility. Defendant was impeached by proof of a prior conviction for possession and sale of a non-narcotic drug. He was further impeached by the state's elicitation of his admission that until the day before trial he had concealed this prior conviction even from his defense counsel, admitting the conviction only when confronted with his record and asked directly by his attorney about the conviction. The state's evidence also established a prior inconsistent statement by defendant regarding the Halloween mask found in his car. Detective Atwood testified that defendant told him, just hours after his arrest, that the mask had been in the car since Halloween. At trial, defendant testified that the mask was put in the car the day before his arrest when he took it to play with Sandra Clark's children. Def...