State v. Smothers, 61299.

• Decision Date: 15 October 1980
• Docket Number: No. 61299.,61299.
• Citation: 605 S.W.2d 128
• Parties: STATE of Missouri, Respondent, v. Ricky SMOTHERS, Appellant.
• Court: Missouri Supreme Court

605 S.W.2d 128

STATE of Missouri, Respondent, v. Ricky SMOTHERS, Appellant.

No. 61299.

Supreme Court of Missouri, En Banc.

September 9, 1980.

Rehearing Denied October 15, 1980.

COPYRIGHT MATERIAL OMITTED

Arthur T. Stephenson, Caruthersville, for appellant.

John Ashcroft, Atty. Gen., Jan Bond, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Judge.

Ricky Wayne Smothers, with prior convictions for burglary and stealing, was convicted by a jury of murder, first degree. § 556.280, RSMo 1969; § 565.003, RSMo 1978. The court fixed his punishment at life imprisonment; sentence and judgment were rendered accordingly. Appellant contends that a failure of disclosure and prejudicial pretrial publicity entitle him to a new trial. Affirmed.

Appellant does not question sufficiency of the evidence to support conviction; and the following statement is sufficient to present this appeal.

A jury reasonably could find from the evidence that in the early morning hours of September 3, 1978, Ricky Smothers and Gary Ward went to the house of Lela Tuggle in Kennett, Missouri. Ward entered the house through a bedroom window. Mrs. Tuggle awoke and turned on a light. At Ward's request, Mrs. Tuggle allowed him to use the phone and to let defendant in the front door. Defendant grabbed Mrs. Tuggle, demanded money, and dragged her into the kitchen. She called to her 89-year-old mother, Mrs. Rosa Runsick, who was in a bedroom. Defendant ordered Ward to kill Mrs. Runsick, and Ward went to the bedroom, hit her, and began to choke her. When he returned to the kitchen he told defendant he had killed her, though he had not. Defendant then strangled Mrs. Tuggle with a towel which he left knotted around her neck. The assailants fled taking a purse and a mirror which they threw into a nearby ditch. Later that morning Mrs. Runsick went to a neighbor who called the police.

Chief of Police Cox arrived at the scene shortly after 8:00 a. m. He found Lela Tuggle's body on the floor of the kitchen and Mrs. Runsick in an "incoherent state. . . unable to furnish . . . anything at all about what took place the night before." Mrs. Runsick was taken to a hospital for treatment. Upon her release she went to Wichita, Kansas, where she remained with a daughter.

On September 19, 1978, Gary Ward was arrested for an unrelated offense. While in jail he told a trusty where the purse and mirror could be found. He later gave a statement in which he admitted his part in the homicide and implicated defendant.

Prior to trial, defendant requested pursuant to Rule 25.32 (present Rule 25.03) that the state disclose,

the names and last known addresses of persons whom the state intends to call as witnesses at any hearing or at the trial, together with their written or recorded statements, and existing memoranda reporting or summarizing part or all of their oral statements.

At some time prior to trial, defendant's counsel was informed that Mrs. Runsick was in Wichita, Kansas, and that the prosecuting attorney had obtained no statement from her.

On January 22, 1979, approximately two weeks before trial, an investigator for the state went to Wichita and took a taped statement from Mrs. Runsick in which she stated that there were two males involved in her daughter's death. On February 1, 1979, the prosecutor supplied defense counsel with copies of taped statements of three state's witnesses; the Runsick tape was not disclosed.

Defendant moved for and was granted a change of venue from Dunklin to Stoddard County. On January 29, 1979, he disqualified the regular judge, and Judge Seier was designated special judge. Two days later, the disqualified judge, in an interview with a reporter for the daily paper in Stoddard County, stated that the defendant was to be tried as a second offender, that upon conviction the judge would assess punishment, and that when he was disqualified, he had appointed a tougher judge to try the case.

On February 5, 1979, defendant requested an additional change of venue from Stoddard County on account of the newspaper article. Voir dire of the jury panel was conducted after which a mistrial was declared. Defendant's motion for a change of venue was granted, and the trial commenced the following day in Cape Girardeau County.

The third witness at trial was Mrs. Runsick who testified that on the morning of September 3, there were "two boys" who entered the house and "choked her Lela Tuggle and killed her." Following defense objection a conference was held out of the hearing of the jury. Defense counsel stated to the court that the last he had heard, Mrs. Runsick was incoherent and could give no statement. Following lengthy colloquy, the prosecutor stated that he "had an oral statement of Mrs. Runsick." Defense counsel requested a mistrial on grounds of surprise and that the testimony was damaging. The trial court refused to grant a mistrial but offered defense counsel the opportunity "to interrogate Mrs. Runsick privately before he was required to cross-examine her." When he attempted to do so, however, she refused to cooperate, apparently on the advice of her daughter.¹

In colloquy following defense counsel's conference with Mrs. Runsick, the prosecutor stated:

Your Honor, it has just come to my attention, and I did know at one time, that my Investigator, of course he went to Wichita, and I think I told Art defense counsel that; I know I told everybody else in Kennett, it's been widely known and there was certainly no conspiracy to keep that a secret. My Investigator did take a taped statement from her when he was in Wichita. I can't specifically recall listening to it. He told me what occurred there. A taped statement was made.

Defense counsel renewed his motion for mistrial and alternatively for exclusion of the testimony of the witness. The court, in denial of both requests, stated:

I have in mind granting a continuance until such time as the Prosecutor provides that tape to you and provides you ample opportunity to listen to the tape before you continue your cross, before you cross examine the witness.

The tape was produced and the trial court announced it would continue the recess until counsel had the opportunity to listen to the tape. After he listened to the tape, defense counsel announced that he had had sufficient time to review the tape,² and waived the right to cross-examine the witness.

Appellant charges the trial court erred in refusing to declare a mistrial after it became known that the prosecutor had failed to disclose the taped statement of Mrs. Runsick. He argues that the failure to disclose resulted in a violation of defendant's right to a fair trial.

Failure by the prosecution to disclose the tape of Mrs. Runsick after defendant's written request was a violation of the discovery rules. The duty to disclose is a continuing one, State v. Curtis, 544 S.W.2d 580 (Mo. banc 1976); it is not discretionary, State v. Stapleton, 539 S.W.2d 655 (Mo.App. 1976). The question remains, however, whether the failure to disclose resulted in fundamental unfairness or prejudice to defendant. State v. Moten, 542 S.W.2d 317, 320 (Mo.App.1976). When non-compliance with an applicable discovery rule is brought to the attention of the court, the trial court is given the discretion to "order . . . disclosure . . ., grant a continuance, exclude such evidence or enter such other orders as it deems just under the circumstances." Rule 25.45 (present Rule 25.16). The trial court is not required to apply the drastic remedy of a mistrial simply because the statement has not been produced. State v. Johnson, 524 S.W.2d 97, 101 (Mo. banc 1975). Declaration of a mistrial is a remedy reserved for extraordinary circumstances, and not required in a situation of failure to disclose until the remedies specified in the Rule are shown to be inadequate. State v. Friend, 570 S.W.2d 817, 819 (Mo. App.1978).

Appellant's argument suggests willful violation of discovery rules by the state and that the Court should reverse this conviction as a deterrent to prosecuting attorneys' failures to provide complete discovery. At issue in this case, however, is not whether the prosecuting attorney should be disciplined for improper conduct. Where such exists, the remedy does not lie exclusively with declaration of mistrial but may lie appropriately with that portion of Rule 25.45 directed to that purpose:

Wilful violation by counsel of an applicable discovery rule . . . may subject counsel to appropriate sanctions by the court.

A conviction resulting from a fair trial should not be reversed for the purpose of disciplining and deterring prosecutors, particularly where the mechanism for discipline and deterrence is provided elsewhere.

The problem thus presented is whether in this case, the trial court's refusal to grant a mistrial resulted in an unfair trial. Defendant had been alerted to the probability of testimony from Mrs. Runsick. She was endorsed as a witness and was present at trial. When the non-disclosure of the pre-trial statement of Mrs. Runsick became known, defendant requested a mistrial. The trial court denied the request but ordered a recess to afford the defense the opportunity to interrogate Mrs. Runsick. Thereafter, the existence of the tape came to light and defendant renewed his motion for mistrial. The trial court again denied the request for mistrial and an alternative motion to exclude the testimony, but ordered production of the tape and recessed the case until there was ample opportunity for the defendant to listen to the tape prior to cross-examination. The tape was produced and defendant listened to it. After that review the defendant waived cross-examination and requested no further relief. He does not now complain of the court's denial of the motion to exclude Mrs. Runsick's testimony. In these circumstances, defendant's waiver of cross-examination without further request for relief following in-trial production of the tape and time for...