State v. Smith, 45478
| Decision Date | 08 February 1983 |
| Docket Number | No. 45478,45478 |
| Citation | 650 S.W.2d 5 |
| Parties | STATE of Missouri, Respondent, v. Joseph SMITH, Appellant. |
| Court | Missouri Court of Appeals |
Nancy Hentig Narrow, Asst. Public Defender, Jackson, for appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, Stephen N. Limbaugh, Jr., Asst. Pros. Atty., Cape Girardeau, for respondent.
Defendant was convicted by a jury of first degree robbery, a violation of § 569.020, RSMo. 1978. He was adjudged a persistent offender because of three prior felony convictions, and was sentenced to a term of thirty years with the Department of Corrections. We find no merit to any of his contentions of error and affirm his conviction.
Mark Oberle testified that he was working as a clerk at a combination gas station/convenience store on the evening of November 15, 1981, in Cape Girardeau, Missouri. At approximately 11:00 p.m., a man wearing sunglasses and a ski mask, which left his eyes, nose, and upper lip exposed, entered the store and pointed a gun at him. Oberle testified that despite the attempt at the disguise, The robber demanded the store's money. The clerk gave him a "stack of twenties, a bunch of tens, fives and ones" and then the man left. After the robbery, it was determined that $729.00 was missing.
Later that evening, the victim picked out defendant's photograph as the robber. The next morning, a little after 9:00 a.m., Oberle saw the defendant walking across the street from the convenience store. The police were notified and at approximately 9:30 a.m. defendant was arrested after he came out of the Farmers and Merchants Bank. He had $81.89 in his possession consisting of 37 one dollar bills, two ten dollar bills, one twenty dollar bill and $1.80 in change. He also had a key to a safety deposit box.
It was stipulated that at 9:30 a.m. on November 16, 1981, the defendant obtained entry to his safety deposit box at the Farmers and Merchants Bank. The box contained, among other things, $500.00 in cash consisting of 10 twenty dollar bills, 10 ten dollar bills, and 40 five dollar bills.
Defendant did not testify. The defense attempted to establish that the $500.00 in cash in the safety deposit box was defendant's gambling winnings and that defendant had been mistaken for his brother, Aaron.
In defendant's first point on appeal, he contends the trial court erred in failing to dismiss the charges against him as a sanction for the state's failure to comply with discovery.
On December 7, 1981, the defendant filed a motion, pursuant to Supreme Court Rule 25.03 for "any recorded ... statements made by the defendant ...." The state filed an answer but did not indicate there were any recordings of defendant. On January 11, 1982, defendant filed a motion to compel discovery. At a hearing on the motion, officer Karen Sullinger of the Cape Girardeau Police Department testified that she recorded three conversations with the defendant after he was arrested. She further stated that on Friday, January 8, 1982, six days before trial, she told the prosecuting attorney that a recording of the defendant had been made. At that point, the prosecuting attorney phoned defendant's attorney and advised her that a tape existed. On the following Monday, January 11, however, officer Sullinger stated the police discovered that sometime prior to January 8, in accordance with normal police procedure, the tape containing the conversations had been erased.
The following exchange between counsel and the court occurred:
....
Rule 25.03(C) provides that the prosecutor must "use diligence and make good faith efforts to cause such materials to be made available to the defense counsel" if the item is in possession or control of other governmental personnel. State v. Doney, 622 S.W.2d 227, 231 (Mo.App.1981). The state concedes it had a duty to disclose the recording to the defendant.
Rule 25.16 provides that if a party has failed to comply with an applicable discovery rule, the court may order the party to make such disclosure, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances. In the present case, the trial court ordered the evidence excluded. It is well-settled...
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