State v. Tyler, 47796

• Decision Date: 11 September 1984
• Docket Number: No. 47796,47796
• Citation: 676 S.W.2d 922
• Parties: STATE of Missouri, Respondent, v. Ricky TYLER, Appellant.
• Court: Missouri Court of Appeals

Page 922

676 S.W.2d 922

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

No. 47796.

Missouri Court of Appeals,

Eastern District,

Division Three.

Sept. 11, 1984.

Linda Vespereny, Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Judge.

A jury found defendant-appellant guilty of attempt to commit robbery in the first degree on a charge of robbery first degree. § 569.020, RSMo (1978). The jury assessed and the court sentenced defendant to serve ten years' imprisonment.

Defendant appeals on three grounds. First, he complains that he was entitled to a dismissal because the trial did not begin within 180 days after arraignment. § 545.780, RSMo Supp.1983 (repealed 1984). He also argues for a new trial on two grounds: (1) that two cartridges seized from defendant's rear pocket at the time of arrest should not have been admitted in evidence as they were more prejudicial than probative; and (2) that redirect examination of a police officer about statements made to her by the victim were inadmissible and prejudicial hearsay.

The trial began 214 days after arraignment. Defendant concedes that he requested one thirty-three day continuance. Continuances requested by a defendant are not included in the computation to determine if the trial was held 180 days after arraignment. § 545.780.3(5)(a), RSMo Supp.1983 (repealed 1984). Disregarding defendant's continuance the trial was held 180 days after arraignment. The 180th day was a Saturday. Rule 20.01(a) provides that when the final day of a time period falls on a Saturday or Sunday those days are not counted. Here the trial started on the Monday after the 180th day. We conclude that it was not untimely. § 545.780, RSMo Supp.1983 (repealed 1984).

Even if the rule is not controlling we find no abuse of discretion in denying dismissal on the timeliness of the trial. Defendant has not contended that the delay was in any way prejudicial. Although he need not prove prejudice under the now repealed statute the court is authorized to consider absence of prejudice in refusing a dismissal. State v. Lawson, 630 S.W.2d 185, 188 (Mo.App.1982) citing State v. Richmond, 611 S.W.2d 351, 355 (Mo.App.1980). Appellant's first point is denied.

The case was tried on an amended information alleging defendant forcibly stole currency while armed with a deadly weapon. The original information alleged defendant had stolen a woman's purse.

The sufficiency of the evidence is not questioned. The evidence indicated that the robber wore a ski mask and was armed with a handgun. He confronted a female employee in the parking lot behind the store. They both returned to the office of the store where a male employee was told to open the safe. The entire time the robber and the two employees were in the office the woman was facing a wall and did not see what happened. The opening of the safe was interrupted by the arrival of police officers. Defendant surrendered to the police. A handgun was found hidden above a loose ceiling tile in the office within a handbag belonging to an employee. Both employees identified it as the gun the robber had used. A cartridge was found on the floor of the office and two cartridges were taken from defendant's pocket.

Defendant argues that the court erred in admitting the two cartridges taken from his pocket. The trial court is given broad discretion in determining the probative value of evidence. State v. Gibson, 636 S.W.2d 956, 958 (Mo. banc 1982). The possession of the cartridges tended to prove use of the abandoned gun and was properly admitted. See State v. Dodson, 642 S.W.2d 641, 643 (Mo.1982). Further, testimony about the two cartridges was received without objection although defendant did object to their admission. Their admission in evidence added nothing to the testimony and no prejudice resulted. See State v. Lehman, 634 S.W.2d 542, 544 (Mo.App.1982).

Defendant's final point contends prejudicial error in permitting the state's police officer, over hearsay objection, to answer questions of what the female victim told her. The police officer was asked several times to relate out-of-court statements of the victim. This was clear hearsay. State v. Nimrod, 484 S.W.2d 475, 479 (Mo.1972).

At trial the victim was the first witness and the police officer the last. If the police officer's answers were the same as those of the victim no prejudice could have resulted and the error would be technical only and not a ground for reversal. State v. Maxwell, 502 S.W.2d 382, 393-394 (Mo.App.1973). In that event the defendant's contention would require no further review.

However, in matters of admission of evidence we review for prejudice not mere error. State v. Favell, 536 S.W.2d 47, 51 (Mo.App.1976). On cross-examination defendant asked the police officer if she took a detailed statement from the victim and if she had written and reviewed her complete police report incorporating that statement. The answer was yes. The officer was then asked, "And in recalling your review of the report is there anything in there indicating that [the victim's] purse was stolen?" The answer was, "no." On redirect examination the state asked, "Now, you've been asked what [the victim] didn't tell you. ¹ What did [the victim] tell you?" Defendant objected on hearsay grounds to this and similar questions. The officer was permitted to testify that the victim had told her that the defendant threatened to kill her if the safe was not opened and if the male employee did not return from talking to the police right away. The officer also testified that the victim said she heard the gun click several times. In contrast, the victim testified that the robber said, "Somebody's going to get hurt if you don't get it open" and that there was no other conversation. The victim stated she heard a clicking noise behind her but could not relate the noise to the gun. The hearsay testimony conflicted with and contradicted the victim's testimony.

The state relies on the doctrine of curative admissibility ² to justify the hearsay. We have applied that doctrine to permit a party to offer hearsay evidence contained in a document where the complaining party had previously asked questions about the same document. State v. Scaturro, 509 S.W.2d 491, 494 (Mo.App.1974). If on redirect the questions...