State v. Snyder

• Decision Date: 23 February 1988
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Robert M. SNYDER, Appellant. 39544.
• Court: Missouri Court of Appeals

Page 781

748 S.W.2d 781

STATE of Missouri, Respondent, v. Robert M. SNYDER, Appellant.

No. WD 39544.

Missouri Court of Appeals,

Western District.

Feb. 23, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 29, 1988.

Application to Transfer Denied May 17, 1988.

J.D. Williamson, Jr., John B. Neher, Independence, for appellant.

William L. Webster, Atty. Gen., Deborah L. Ground, Asst. Atty. Gen., Jefferson City, for respondent.

Before LOWENSTEIN, P.J., and MANFORD and NUGENT, JJ.

LOWENSTEIN, Presiding Judge.

Snyder appeals judgments of conviction for forcible rape, armed criminal action, forcible sodomy and kidnapping. The consecutive sentences on the convictions total sixty-five years. The sufficiency of the evidence to support the jury verdicts is not in question, so the facts will be briefly recounted.

The victim, a Ms. Scates, was driving an automobile toward her home in Lexington at about 3:30 in the morning after having been drinking beer. In the community of Buckner she pulled onto the shoulder of Highway 24 and fell asleep in the car. She was awakened sometime later by Snyder, a Buckner policeman, "slapping me on the rear and saying 'get up, get up' ". He ordered her into the police car and later took her to his house trailer for coffee. Just after she was allowed to use the bathroom he struck her on the back of her head with what she assumed was the flashlight from the squad car. The blow knocked her to the floor. When she rolled over the defendant had a pistol pointed in her face. On his command she rolled onto her stomach and with her hands behind her back was handcuffed. He took her to the bedroom where after a "pat-down" search, she was sodomized and raped. Afterwards he said he had lost control, took the cuffs off Scates and took her back to her car between 5:30 and 6:00 a.m. where they were seen by a witness. These facts brought out at trial were consistent with prior statements given by both the victim and the defendant. The points on appeal concern introduction in evidence of a police "slapper" and flashlight, the introduction and showing to the jury of a transcript of the defendant Snyder's statement, and failure to define "serious physical injury" in the instructions on the forcible rape and kidnapping counts.

Snyder's first point on appeal is that the trial court erred in admitting the police slapper and police flashlight into evidence as state's exhibits. This assertion is based on the supposedly inadequate foundation laid for the items which did not establish their identity or chain of custody, and, in fact, left their involvement in the alleged crime unexplained.

"The admission of demonstrative evidence and whether it was in a properly established chain of custody is primarily within the discretion of the trial judge." State v. Sherrill, 657 S.W.2d 731, 736 (Mo.App.1983); Fravel v. Burlington Northern R.R., 671 S.W.2d 339, 342-43 (Mo.App.1984). Where, as here, the challenge is directed at the foundation necessary for identifying the item of evidence, foundation commonly entails "testimonially tracing the chain of custody of the item with sufficient completeness to render it improbable that the original item has either been exchanged with another or has been contaminated or tampered with." Storm v. Ford Motor Co., 526 S.W.2d 875, 878 (Mo.App.1975), quoting McCormick on Evidence, p. 527-28 (2d ed. 1972). Testimony at trial established that the slapper and flashlight were found in a bag in the trunk of the patrol car assigned to Snyder. The bag was inventoried, marked for identification, and placed in the evidence locker. The items making up the contents were not individually marked. A sheriff's deputy testified when shown the slapper and flashlight at trial that they appeared to be the same items that were found in the bag in the car. Snyder objected at trial that the deputy failed to identify the items and that they should have been excluded. The case law is contrary. As noted in Storm, "a chain of evidence is sufficiently traced where the circumstances show a 'reasonable assurance that the [object] was the same and in the same condition.' " 526 S.W.2d at 878. See also State v. Scott, 699 S.W.2d 760, 764 (Mo.App.1985). Here, the deputy's testimony traced the bag and its contents from the patrol car to the evidence locker. While his testimony at trial was that the items appeared to be the same, "where an unbroken chain of custody is shown, the object will not be excluded merely because ... the identification [was] less than positive." Storm, 526 S.W.2d at 879. See also, State v. Threat, 530 S.W.2d 41, 42 (Mo.App.1975) (identification of demonstrative evidence not required to be positive, absolute, certain, or wholly unqualified, objections to sufficiency go to weight rather than admissibility).

As to the asserted lack of connection with the crime, the link is provided by the statements of the victim and of Snyder. The victim assumed she had been struck with a flashlight, Snyder's statement indicated he struck the victim with the slapper. Under similar circumstances, a sufficient connection with the accused has been recognized and admission of the items into evidence allowed. State v. Johnson, 539 S.W.2d 493, 516 (Mo.App.1976) (bandolier, shells, etc. found within hours of the crime in a room in which appellant was arrested admissible). The Johnson court reasoned that even though the weapon or instrument could not be identified as one actually used, its similar form or character or circumstances justifying an inference of its possible use made it admissible for showing availability to the accused as the means of committing the crime in the manner in which it is shown to have occurred. Id. Here, the bag containing the slapper and flashlight were found in patrol car assigned to Snyder within hours after the crime. In the context of the statements given, the possible connection to the alleged crime was clear.

Based on the deputy's testimony concerning the discovery and inventory of the bag, and his identification of the items at trial, the trial judge could have concluded, within his discretion, that the chain of custody was established. Combined with the items potential connection to the crime, Snyder cannot persuasively argue that this evidence was improperly admitted. This point is denied.

Snyder's next two points concern his statement. He first states introduction of the transcript of his statement violated the best evidence rule since the tape recording had been destroyed. A captain in Jackson County Sheriff's office conducted and recorded Snyder's confession. The contents were transcribed, Captain Barney reviewed the transcript for accuracy and then, as "standard procedure," the tape was erased. The pertinent provision of the motion for new trial reads:

4. That the Court erred in permitting Captain Barney to read the written statement which he allegedly took from the defendant because said statement would speak for it self [sic] and permitting the witness to read it to the jury emphasised [sic] that particular of evidence over all of the others and caused it to be given undue influence to the prejudice of the defendant.

This point on appeal as to the introduction of the transcript not being allowed as secondary evidence when the law enforcement authorities have destroyed the original tape, was not properly preserved and is reviewed as plain error.

Snyder points the court to State v. King, 557 S.W.2d 51, 53 (Mo.App. 1977), which holds the best evidence rule applies to sound recordings as well as documents and generally requires a taped confession rather than a transcription he admitted. The opinion further states:

A well-recognized exception to the best evidence rule, however, is that secondary evidence may be admitted in lieu of the original if the original is unavailable provided that the original has not been destroyed, lost or become unavailable through the fault of the proponent and the secondary evidence does not appear to be untrustworthy. United States v. Knohl, 379 F.2d 427, 441 (2d Cir.1967) 4 Wigmore, Evidence, § 1192, p. 436. Therefore, in allowing secondary evidence to be admitted the proponent must prove three things (1) the original is unavailable; (2) for some reason...