State v. Varner, s. 56905 and 59744
| Decision Date | 22 September 1992 |
| Docket Number | Nos. 56905 and 59744,s. 56905 and 59744 |
| Citation | 837 S.W.2d 44 |
| Parties | STATE of Missouri, Respondent, v. Thomas VARNER, Appellant. Thomas VARNER, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Deborah B. Wafer, Asst. Public Defender, St. Louis, for appellant.
William L. Webster, Atty. Gen., Robin H. Grissom, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant appeals a conviction of the class C felony of stealing, a violation of § 570.030.3 RSMo 1986. This case was previously tried twice. The first resulted in a mistrial when the jury was unable to reach a verdict, the second was a dismissal by motion of both parties. We now consider the appeal after a remand for an evidentiary hearing relating to a Batson claim. We reverse and remand for a new trial.
On July 2, 1986, defendant, Thomas Varner, was shopping at a Famous Barr in the City of St. Louis. James Mueller, a security guard recognized defendant and noticed suspicious behavior. Mueller watched as defendant walked into a storeroom marked "authorized personnel only." Defendant exited carrying two Famous Barr bags. Defendant saw Mueller approaching and repeatedly pressed a button for an elevator. He did not escape.
After identifying himself as a security guard, defendant agreed to accompany Mueller to the security office. During the interview, defendant gave Mueller a "crow name." When Mueller confronted defendant about the name, defendant confessed his real name.
Five issues were raised on appeal, one requires a new trial. Defendant alleges breach of discovery procedures by the prosecutor, error in not entering an appropriate sanction, and prejudice. The basis of this claim involves testimony by the security guard about defendant's use of a "crow name." This fact was not disclosed before or during the previous trials. Defendant's attorney was not informed until the morning the trial was scheduled to begin that the prosecution intended to introduce evidence of defendant's use of a "crow name." Defense counsel claimed surprise and asked for a continuance or exclusion of the evidence.
Rule 25.03(A) requires the prosecutor to disclose all information within its possession or control. (Our emphasis). The duty to disclose includes what is known to the prosecuting attorney or may be learned by reasonable inquiry. (Our emphasis). State v. Waelder, 800 S.W.2d 802, 803 (Mo.App.1990). The statement is within this definition. The trial court excused disclosure because it found the state However, if believed, the security guard prepared a report for his employer, Famous Barr, at the time he apprehended and questioned defendant. The state endorsed the guard and his testimony was critical. Reasonable inquiry by the prosecuting attorney would have certainly uncovered the report which would then be discoverable by defendant. The prosecutor had a duty of reasonable inquiry and a duty to produce the defendant's "statement." The contested ruling ignores the duty of reasonable inquiry which goes beyond what may be in an attorney's file.
If the discovery violation did not result in fundamental unfairness, the trial court did not abuse its discretion in refusing to sanction the prosecutor. See State v. Parry, 684 S.W.2d 441, 445 (Mo.App.1984) . In the current case, we are unable to state with any degree of certainty that no fundamental unfairness resulted. The contested new evidence was not introduced in the previous trials.
The record indicates both parties were in possession of a portion of the report...
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State v. Scott
...one late endorsed witness brought out admissions of appellant which were not previously in the state's file...." In State v. Varner, 837 S.W.2d 44, 45 (Mo.App.1992), the defendant was charged for stealing from a department store. After being chased, the defendant gave a fictitious name to s......
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State v. Zetina-Torres
...“The duty to disclose includes what is known to the prosecuting attorney or may be learned by reasonable inquiry.” State v. Varner, 837 S.W.2d 44, 45 (Mo.App. E.D.1992) (emphasis in original). See also State v. Willis, 2 S.W.3d 801, 804–805 (Mo.App. W.D.1999) (reversible error where defenda......
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State v. Castillo, s. 60801
...counsel received a copy of the statement three days before trial. Appellant argues that the case is analogous to State v. Varner, 837 S.W.2d 44 (Mo.App.1992), where the court reversed and remanded the case for a new trial based on a discovery violation. However, appellant's analysis is inco......
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State v. Zetina-Torres
..."The duty to disclose includes what is known to the prosecuting attorney or may be learned by reasonable inquiry." State v. Varner, 837 S.W.2d 44, 45 (Mo. App. E.D. 1992) (emphasis in original). See also State v. Willis, 2 S.W.3d 801, 804-805 (Mo. App. W.D. 1999) (reversible error where def......