State v. White, s. 59720

• Decision Date: 09 February 1993
• Docket Number: 61999,Nos. 59720,s. 59720
• Citation: 847 S.W.2d 929
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, Respondent, v. Harry WHITE, Appellant. Harry WHITE, Appellant, v. STATE of Missouri, Respondent.

Page 929

847 S.W.2d 929

STATE of Missouri, Respondent, v. Harry WHITE, Appellant.

Harry WHITE, Appellant, v. STATE of Missouri, Respondent.

Nos. 59720, 61999.

Missouri Court of Appeals,

Eastern District,

Division Four.

Feb. 9, 1993.

Henry B. Robertson, St. Louis, for appellant.

William L. Webster, Atty. Gen., Joan F. Gummels, Asst. Atty. Gen., Jefferson City, for respondent.

SIMON, Judge.

Harry White, appellant, appeals his jury convictions of Assault First Degree, § 565.050 RSMo.1986 (all further references shall be to RSMo.1986 unless otherwise noted); Armed Criminal Action, § 571.015; Criminal Possession of a Weapon, § 571.020; and Knowingly Burning, § 569.055, for which he was sentenced to concurrent terms of life, forty years, seven years, and three years respectively. Appellant also appeals the dismissal of his post-conviction relief motion (Rule 29.15) which was filed out of time.

On appeal, appellant contends the trial court (1) abused its discretion in excluding defense witnesses as a sanction for non-compliance with a discovery request; and (2) erred in refusing to instruct the jury on the lesser included offense of assault second degree. He claims also that the motion court erred in denying his motion for leave to file a Rule 29.15 motion out of time, and in dismissing the Rule 29.15 motion. We affirm.

Appellant does not contest the sufficiency of the evidence so we briefly review the evidence in a light most favorable to the verdicts. On August 6, 1989, the St. Louis Police received an assignment to go to 2919 North Taylor, the address of appellant's aunt, where his wife, Sandra White, was staying. After speaking with Sandra White at the front door, the police officers went to the back of the house and observed appellant on the back porch. After advising appellant that his wife did not wish him to be there, the police asked him to leave. Appellant agreed to leave, and did so without incident. Approximately forty-five minutes later, appellant made several phone calls to his wife from a neighbor's house and from a phone booth. Mrs. White also observed appellant walking up and down the street with no apparent purpose for a period of approximately five minutes.

At approximately 4:00 a.m., appellant was seen on the front porch arguing with someone inside the house. Appellant left the porch, threw some flammable substance on top of his wife's car, and lit it. Shortly thereafter, Officers James Scott and Charles Horn of the St. Louis Police Department responded to a call for police at the same address on North Taylor. Scott preceded Horn towards the house but waited at the bottom of the steps near the sidewalk. Scott observed someone sitting with his hands between the storm door and the front door of the address in question and requested that person, later determined to be appellant, to come down to talk. Appellant told Scott not to come any closer, and not to come up on the porch. Scott drew his service revolver and again asked appellant to come down. When Horn approached, Scott proceeded up the steps toward appellant. Scott stood near the bottom step of the porch and asked appellant what he was doing. Appellant did not verbally respond, but stood up, lit a fire bomb composed of a glass bottle and a flammable liquid, and threw it at Scott, hitting him in the chest causing him to stumble, on fire, away from the porch and into the street. Horn fired four shots with his service revolver, one of which struck appellant in the leg, and then assisted Scott in extinguishing himself on the front lawn of the house next door. Officer Scott was severely burned and taken to Barnes hospital.

The jury's verdicts were returned on December 13, 1990, and appellant requested, and was granted, additional time to January 14, 1991 to file a motion for new trial. Under Rule 29.11(b), a motion for new trial must be filed within fifteen days after return of the verdict, and the trial court is authorized to grant one extension of time not to exceed ten days, for a total of 25 days. Since the verdicts were returned on December 13, 1990, the extension granted by the trial court was seven days more than the allowable ten day period. Appellant acknowledges that the trial court did not have jurisdiction to grant such an extension, and that the motion for new trial was untimely filed. As a result, nothing is preserved for appeal and this court reviews the direct appeal only for plain error. State v. Bailey, 645 S.W.2d 211, 212[1, 2] (Mo.App.1983).

Appellant's first point is that the trial court abused its discretion in excluding defense witnesses and evidence as a sanction for failure to comply with the prosecution's Rule 25.05 discovery request. The prosecution, in its motion for sanctions served on defense counsel May 23, 1990, stated that the defense had been served with a request for discovery pursuant to Rule 25.05 on or about October 6, 1989, and that as of May 23, 1990 neither appellant nor his attorney had provided any discovery pursuant to that request. The motion for sanctions was scheduled for hearing on June 7, 1990, but neither appellant nor his counsel appeared. At this hearing the trial court granted the motion for sanctions and excluded the testimony of experts, character witnesses, alibi, physical exhibits, or documents, and excluded any argument or evidence thereof. Appellant later made a motion to set aside the sanctions. Pursuant to this motion, the trial court modified its previous order, and permitted appellant to endorse his wife, Sandra White, and Dr. Theotis Wheatt, a psychiatrist, as witnesses. The court precluded any other endorsements without specific written leave of court and notice to the state. On October, 18, 1990, appellant filed an endorsement naming his brother, aunt, neighbors, nurses at the city jail, two paramedics and others as witnesses. The record does not show that leave of court to endorse the witnesses was sought or received, that the prosecution objected to this endorsement, or what action, if any, was taken by the trial court regarding the endorsement.

After Sandra White and Dr. Wheatt testified for the defense, the trial court asked defense counsel if there were any further witnesses. Defense counsel said there were none, and did not attempt to call any further witnesses, but stated that the defense wished to make an offer of proof regarding certain eye witnesses which the defense claimed were excluded from testifying. Responding, the trial court instructed appellant to submit a written offer of proof.

Rule 25.05 requires the defendant, upon written request by the state, to disclose the names of any witnesses he intends to call. State v. Watson, 755 S.W.2d 644, 645 (Mo.App.1988). Rule 25.16 provides for sanctions for failure to comply with the disclosure requirements, including the exclusion of evidence. Id. The imposition of the sanctions provided for in Rule 25.16 is within the discretion of the trial court and will be disturbed on appeal only when the sanction results in fundamental unfairness to the defendant. Id. In determining whether the sanction resulted in fundamental unfairness, the presumption in criminal proceedings is that all errors are prejudicial, but this presumption is not conclusive and may be overcome by the facts and circumstances of the particular case. State v. Bowman, 783 S.W.2d 506, 507 (Mo.App.1990). To determine whether the exclusion of the evidence resulted in prejudice, the facts and circumstances of the particular case must be examined including the nature of the charge, the evidence presented, and the role the excluded evidence would have played in the defense's theory. Id.

In his offer of proof, which is contained in the motion for new trial, appellant outlined the testimony of his brother, aunt, neighbor, nurses at the city jail, and paramedics at the crime scene. Collectively, this testimony was designed to show (1) that appellant had not taken his anti-psychotic medicine and was consuming alcohol in the two days preceding the incident; (2) how he had behaved prior to being evicted from his aunt's house and how he behaved when not on anti-psychotic medication; (3) that he was acting crazy the night of the incident by banging his head on the wall and walking up and down the street with no purpose; (4) that due to the medications he was taking in the jail after the incident, his mental illness had gone into remission by the time he was examined by Dr. Wheatt and the state's psychologist, Dr. Kukor; and (5) appellant's demeanor, behavior and status at the crime scene and while in the care of the paramedics. However, the record shows that this information was presented to the jury in the testimony of appellant's wife and Dr. Wheatt. Therefore the testimony set out in the offer of proof is cumulative to testimony already presented.

The exhibits described in appellant's offer of proof are (1) his hospital records from the Veterans Administration, designed to show appellant's mental history; (2) the records of medical attention he received at Barnes Hospital following the crime, to provide evidence of a medical/psychiatric evaluation, if any, made as to his mental state, blood alcohol content, behavior, and such other information bearing upon active mental disease; and (3) the medications records of the city jail, to show, again, that his mental illness had gone into remission by the time he was examined by Dr. Wheatt and Dr. Kukor.

First, the contents of the Veterans Administration records, and the medical records of the city jail were testified to and extensively detailed by Dr. Wheatt. Thus, further evidence of the contents of those records is cumulative. Second, the offer of proof regarding the Barnes hospital records shows no prejudice because it does not definitively state that any "medical/psychiatric assessments" were made, nor does it state that had any such assessments been made they would have favorably supported appellant's...