State v. Williams, s. 59937
| Decision Date | 27 April 1993 |
| Docket Number | 61935,Nos. 59937,s. 59937 |
| Citation | 853 S.W.2d 371 |
| Parties | STATE of Missouri, Respondent, v. Michael WILLIAMS, Appellant. Michael WILLIAMS, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Ellen H. Flottman, Office of the State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Michael J. Runzi, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant, Michael Williams, appeals his conviction in the Circuit Court of the City of St. Louis, for first degree murder and armed criminal action. For these crimes, appellant was sentenced as a prior and persistent offender to consecutive terms of life and fifteen years' imprisonment, respectively. Appellant also appeals the denial of his Rule 29.15 motion, following an evidentiary hearing. We affirm.
Appellant does not contest the sufficiency of the evidence. Therefore, only a brief review of the facts favorable to the verdict is necessary.
On the evening of November 30, 1989, Kevin Clark and Lisa Hughes were visiting the home of Linda Mitchell at 3942 Cottage Street. These three adults were in the kitchen using cocaine while Mitchell's children and some of their friends were playing in the living room. A young friend of Mitchell's children, Kevin Doll, knocked at the front door and came in. Doll went straight back to the kitchen and asked Clark if he had appellant's money. 1 Doll informed Clark that appellant was looking for him with a gun and intended to kill him. When none of the adults took the warning seriously, Doll went out into the living room with the other children.
About five minutes later, Doll answered a knock at the door. Appellant, armed with a shotgun slung over his shoulder, entered the house and proceeded down the hall to the kitchen. Mitchell met appellant in the hallway and asked appellant what he thought he was doing with a gun in her house. Appellant knocked her down and entered the kitchen, where Clark was standing. Appellant aimed at Clark and fired once, striking Clark in the lower abdominal and pelvic areas. Appellant then turned, walked out the front door, and got into Cheryl Caldwell's blue Skylark, which she was driving. As soon as Kevin Doll joined them, Caldwell drove away. Kevin Clark died of injuries inflicted by the shotgun blast.
Appellant fled outside the State, but was arrested in April of 1990 in Milwaukee, Wisconsin. He was indicted for the above crimes on August 23, 1990, and a substitute information in lieu of indictment was filed by the State on February 19, 1991, charging appellant as a prior and persistent offender pursuant to RSMo §§ 558.016, 557.036.4, and 558.019 (1989).
The case went to trial immediately thereafter, with testimony lasting until February 22, 1991. During the course of the trial, appellant's counsel requested leave to endorse Arnetta Bonds (appellant's girlfriend) and Georgia Williams (appellant's sister). The trial court denied the motion.
The jury returned verdicts of guilty on both counts on February 22, 1991. On March 14, 1991, the court sentenced appellant to consecutive terms of life without possibility of probation or parole on the murder count, and fifteen years' on the armed criminal action count.
Appellant filed a pro se motion for postconviction relief on December 23, 1991, and an amended motion was filed by counsel on March 3, 1992. An evidentiary hearing was held on the motion on March 27, 1992, at which both excluded witnesses testified. The motion court concluded, inter alia, that the testimony of both witnesses, if called, would not have affected the verdict. The motion was therefore denied, and appellant brings this appeal.
For his first point, appellant contends the trial court erred by refusing to allow the late endorsement of defense witnesses Arnetta Bonds and Georgia Williams. We cannot agree.
Trial courts possess broad discretion in permitting the late endorsement of witnesses. State v. Vaughn, 782 S.W.2d 83, 84-85 (Mo.App., E.D.1989); State v. Sweet, 796 S.W.2d 607, 613 (Mo. banc 1990). A reviewing court will only reverse for an abuse of discretion resulting in fundamental unfairness. State v. Harris, 751 S.W.2d 131, 132 (Mo.App., E.D.1988). As a matter of law, no abuse of discretion exists when the court refuses to allow the late endorsement of a defense witness whose testimony would have been cumulative, collateral, or if the late endorsement would have unfairly surprised the State. Vaughn, 782 S.W.2d at 84-85.
In the case before us, the record reveals that the defense sought to endorse the two witnesses during the presentation of the State's case in chief. Arnetta Bonds' testimony, that Linda Mitchell threatened appellant she would "get him", is purely collateral. It has nothing to do with appellant's guilt or innocence, the central issue in the case. Moreover, Bonds would have been called only if Mitchell had denied threatening appellant. Refusing to allow her testimony was no abuse of the court's discretion.
Also during the State's case in chief, appellant sought to endorse Georgia Williams, who would have testified appellant phoned her the night of the murder to say, Defense counsel wanted this witness' testimony in the record in case appellant decided to testify. However, appellant never took the stand and this matter never arose at trial. Given the extremely dubious relevancy and the self-serving nature of the alleged utterance, we find no prejudice could possibly have resulted from the exclusion of this witness. Point denied.
For his second point, appellant alleges the trial court erred by overruling his hearsay objection to the testimony of State's witness Linda Mitchell. Specifically, appellant objected to Mitchell's statement that she heard Kevin Doll say appellant was looking for the victim, and that appellant had his shotgun with him. The admission of the above testimony was surely error, but improper admission of evidence requires reversal only when prejudice is demonstrated. State v. Leisure, 796 S.W.2d 875, 879 (Mo. banc 1990). To merit reversal, the evidence complained of must be so prejudicial that appellant was denied a fair trial. State v. Girardier, 801 S.W.2d 793, 796 (Mo.App., E.D.1991). Therefore, the erroneous admission of hearsay evidence is not prejudicial to the defense unless the evidence had a decisive effect on the jury or resulted in a miscarriage of justice. Id.
In the case before us, similar testimony was offered by Doll himself, when he took the stand. Kevin Doll's testimony reads as follows:
Q. [by the State] Alright. After you saw him [appellant] load up that shotgun what did you do?
A. Left.
Q. Did Lorenzo leave too?
A. Yes.
Q. Where did you go?
A. Riding my bike.
Q. Okay, where did you go?
A. That night?
Q. Sometime between five and six where did you go?
A. Just riding around.
Q. Did you ever go over to Linda's house?
A. Yes.
Q. And why did you go to Linda's house?
A. Looking for Lorenzo.
Q. And was he there?
A. No.
Q. So what did you do?
A. I went to--to the store up the street.
Q. Was he there?
A. No.
Q. Why did you go to the store?
A. 'Cause he probably went up to use the telephone.
Q. And he wasn't there so what did you do?
A. Went back to the house.
Q. Now either of those times when you went to the house did you see--did you see Kevin Clark?
A. Yes.
Q. Where was he?
A. In the kitchen.
Q. And what did you do or say?
A. I said, "Mike's looking for you for his money."
Q. Did you say anything else to him?
A. No.
Q. (By Ms. Medler) Did you hear him--Did you hear--Excuse me. Did you say anything to Kevin Clark about Michael having a shotgun?
A. No.
* * * * * *
Q. (By Ms. Medler) [after strenuous objections] Could you have mentioned anything about that shotgun?
A. I probably had.
The above testimony is substantially consistent with, albeit less forceful than, Mitchell's testimony. A defendant cannot be prejudiced by hearsay reports of statements made by a witness who later appears in court and testifies consistently with the previously offered hearsay. State v. Tyler, 676 S.W.2d 922, 925 (Mo.App., E.D.1984).
Furthermore, we find the evidence at issue could not have had the required decisive effect on the jury when testimony was properly admitted graphically describing appellant shooting Clark in front of witnesses. Absent a degree of prejudice, strong evidence of guilt renders trial error harmless. Leisure, 796 S.W.2d at 880. Though it was error for the trial court to admit Mitchell's hearsay statements, we find the error harmless as the testimony did not prejudice appellant. Point denied.
Appellant next contends the trial court erred by admitting four photographs into evidence, three of the crime scene and one of the victim himself, as the photographs were cumulative and unduly gruesome. State's Exhibits 6 and 7 are photos of the crime scene with a paper silhouette placed in the position occupied by the victim's body; State's Exhibit 9 is the same scene without the paper silhouette; and State's Exhibit 13 is a picture of the victim's face along with a placard identifying the body, used by the City Medical Examiner's office.
The admission of photographic evidence is another area in which the trial court enjoys broad discretion. State v. Guinan, 665 S.W.2d 325, 331 (Mo. banc 1984). A reviewing court will reverse only for an abuse of that discretion. State v. Kincade, 677 S.W.2d 361, 366 (Mo.App., E.D.1984). As long as a photograph has the potential to assist the jury's understanding of the testimony, or to corroborate that testimony, a reviewing court may not reverse on these...
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