State v. Whitfield

• Decision Date: 21 July 1992
• Docket Number: No. 72360,72360
• Citation: 837 S.W.2d 503
• Parties: STATE of Missouri, Respondent, v. Joseph WHITFIELD, Appellant. Joseph WHITFIELD, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 503

837 S.W.2d 503

STATE of Missouri, Respondent, v. Joseph WHITFIELD, Appellant.

Joseph WHITFIELD, Appellant, v. STATE of Missouri, Respondent.

No. 72360.

Supreme Court of Missouri,

En Banc.

July 21, 1992.

Melinda K. Pendergraph, Columbia, for appellant.

William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

BENTON, Judge.

Joe Whitfield was convicted by jury of first degree murder, first degree assault, and two counts of armed criminal action. He was sentenced to death for the murder, and to consecutive life sentences for the remaining convictions. Defendant appeals the convictions, the death penalty, and the denial of post-conviction relief. Jurisdiction is exclusive in this Court. Mo. Const. art. V, § 3. The judgment of the trial court is reversed.

On the evening of January 20, 1988, Ronald Chester, a paraplegic, and Maria Evans, while running errands, met defendant. Chester agreed to take the defendant and his five-year-old daughter home. However, once in the car, defendant asked to go to several different places.

At one location, defendant left for 30 minutes, while his daughter slept in the car. Chester and Evans eventually went to look for the child's mother but failed to find her.

Upon returning, defendant approached the car and asked for more time, eventually reappearing in five minutes. When defendant got back in Chester's car, he pulled a gun from his waistband, striking Chester and Evans in the head. A man outside the car, Varney Bolden, told defendant to shoot them both. Defendant shot Chester twice in the head and tried to shoot Evans--who used defendant's daughter as a shield.

Bolden pulled defendant from the car. Defendant shot Evans in the hand, while struggling with her. Defendant pulled his daughter from the car; Evans stayed on the floorboard pretending to be dead until she heard another car leave.

Defendant raises 26 points of error. Eight deal with jury issues (Points 11, 12, 13, 19, 20, 21, 23, and 25); two concern disclosure under Rule 25.03 (Points 3 and 4); three and one-half focus on the guilt phase (Points 5, 6, 14A, and 22); five and one-half involve the penalty phase (Points 7, 14B, 15, 16, 17, and 18); five relate to defendant's appeal of the post-conviction motion (Points 1, 2, 8, 9, and 10), and two raise "miscellaneous issues" (Points 24 and 26).

The reversal of defendant's conviction makes the post-conviction motion moot. In his eleventh, twelfth, thirteenth, and twentieth point, defendant contests the trial court's rulings on specific questions during voir dire and the strikes of specific jurors. Since each voir dire is unique, extended discussion of these issues would serve no purpose. As the remaining points may likely recur in a second trial, this Court now examines them.

I. Discovery Issues

A. Rule 25.03

Violations (Point 4)

Defendant claims that the trial court erred in failing to grant a continuance, or alternatively to exclude the evidence, when the prosecutor notified the defense on the morning of trial of: three additional witnesses, two of whom testified; and one new exhibit, Evans's coat.

Rule 25.03(A) requires the State, upon timely request, to disclose the names of all witnesses the State intends to call and all objects, within the State's control, that it intends to introduce. As the defense's request was timely filed almost nine months before trial, two questions arise. First, did the late notifications violate the rule; specifically, was the coat "within" the State's control? Second, what--if any--sanctions was the trial court required to impose under these circumstances?

In State v. Robinson, 835 S.W.2d 303, 307 (1992), this Court disapproved evasion of the duty to disclose created by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), through failure to gain possession of the discoverable evidence. This case raises similar problems with other discoverable evidence covered by Rule 25.03(A). On its face, the Rule is designed to prevent "surprise" evidence being introduced at trial. State v. Kilgore, 771 S.W.2d 57, 66 (Mo. banc), cert. denied, 493 U.S. 874, 110 S.Ct. 211, 107 L.Ed.2d 164 (1989). Failure to gain actual possession of evidence, by itself, does not justify the failure to inform the defendant of the intent to use material evidence at trial.

There is no dispute that the State must disclose the names of witnesses under Rule 25.03. Thus, the failure to endorse Officers Gooch and George before the morning of trial violates this requirement. If Officer Stidham had testified, the failure to endorse him before the morning of trial also would have violated the rule.

The second part of this issue--remedies--is thus crucial. The trial court granted minimal remedies to the defense for these violations of the rules. In general, the trial court has discretion in the sanctions imposed for failure to comply with Rule 25.03(A). See Kilgore, 771 S.W.2d at 66. Rule 25.16 makes sanctions permissive rather than mandatory. The trial court, however, is required to tailor the remedy to alleviate harm to the defense from the failure to disclose. "The Rules of criminal discovery are not 'mere etiquette' nor is compliance discretionary." State v. Luton, 795 S.W.2d 468, 477 (Mo.App.1990).

With regard to the last-minute endorsement of Gooch, the trial court provided a sufficient remedy--allowing the defense to talk with him before his testimony. Given the trial court's discretion, this Court finds no abuse of discretion because Gooch was not a key witness.

The same remedy was provided for George. The State contends that even this remedy was not required because George's report had previously been disclosed. The trial court equally attempted to remedy the failure to disclose that the coat would be offered into evidence--allowing the defense to examine the coat.

The fact that George's report had previously been disclosed does not prevent prejudice to the defense from his surprise testimony. As George was not listed as a witness, the defense attorney testified that she was not prepared to cross-examine him and was surprised by his testimony.

George, as the State's firearms expert, was a key witness who linked the gun found at defendant's home to the murder. The State argues that this Court should uphold the trial court's decision to allow the defense only to talk to George. The State points to "thorough"--albeit standard--cross-examination of George and to statements by defendant's trial counsel during the post-conviction hearing that at some point prior to trial the defense had considered (but rejected) hiring a ballistic expert to counter George's testimony. The State ignores the fact that the defense was not alerted to depose George before trial, as was done with many of the properly-disclosed witnesses. See Rule 25.12. The State also ignores that, while the defense did make preliminary plans for the possibility of George testifying, it apparently did not follow through on those plans when the State failed to endorse him. Defense counsel testified that she was unprepared for George's testimony. Defense's claim of prejudice is real. This is not a case where a firearms expert had previously been endorsed, and the witness was a substitute. See State v. Renner, 675 S.W.2d 463, 465 (Mo.App.1984).

Likewise, the coat corroborated Evans's credibility and accuracy--the center of the defense's attack on the State's case. When the State made the last-minute decision to use the coat, the defense made two alternative requests: exclude the coat or grant a continuance. The trial court allowed the defense only a cursory inspection of the coat. This is not a case where the defense failed to request a continuance to examine the coat. See State v. Gaskin, 618 S.W.2d 620, 624 (Mo.1981), vacated on other grounds, 459 U.S. 1192, 103 S.Ct. 1171, 75 L.Ed.2d 423 (1983).

The surprise introduction of this evidence probably prejudiced defendant. The jury probably inferred that the holes in the coat were from the bullets fired during the murder of Chester, and, therefore, that Evans was at least telling the truth about bullets passing through the coat.

A thorough examination of the coat could reveal one of two possibilities. First, it could confirm that the holes, or some of them, were caused by bullets. Such a finding would give only a small benefit to the State as, without any examination, that was the logical inference, corroborating Evans's testimony. Second, an examination could prove that something else caused the holes. This finding would merely put the defense in the same position as before the sudden decision to introduce the coat into evidence. The failure of the trial court to grant a continuance means that nobody knows what created those holes.

The rules on pretrial discovery aid the truth-finding aspect of the legal system. Cf. State v. Perkins, 710 S.W.2d 889, 893 (Mo.App.1986). The main concern for the trial court is the fundamentally fair response to last-minute evidence. Cf. Kilgore, 771 S.W.2d at 66. Rules 25.03 and 25.05 clearly intend to allow both sides to know the witnesses and evidence to be introduced at trial. Rule 25.07 allows for the examination and testing of exhibits of both sides. Rule 25.12 allows the defense to depose any potential witness. Taken together, these rules are designed to prevent surprises. State v. Sykes, 628 S.W.2d 653, 656 (Mo.1982). True, important evidence may be discovered at the last minute. In these cases, the trial court must tailor the appropriate remedy to be fundamentally fair to each party.

In this case, the evidence was not newly discovered. Instead, the State made a last-minute decision to use the evidence before the start of the presentation of evidence. Thus, the maximum harm from a continuance would have been the need to select a new jury. Even this harm might be avoided if the defense needed only a short delay. Allowing the coat into evidence...