State v. Williams

Decision Date22 December 1987
Docket NumberNo. WD,WD
PartiesSTATE of Missouri, Respondent, v. Mark Anthony WILLIAMS, Appellant. 38910.
CourtMissouri Court of Appeals

Patrick J. Eng, Columbia, for appellant.

William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, C.J., and SHANGLER and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

The defendant Williams appeals a Boone County jury verdict against him for murder in the second degree of a two year old boy. Sentence was set at twelve years. He does not question the sufficiency of the evidence.

Williams had been living with Amber Tripp, her eleven year old, and the victim. Several days prior to his death the child suffered bruises after being left with the defendant. On the day in question the mother, a nurse, worked a full day shift at a Columbia hospital while Williams acted as babysitter. When the mother got home that evening the defendant said not to wake the victim. When Amber went to change the child she discovered bruises on the child's lower abdomen. Williams told her not to worry. The mother became worried, and called a doctor. The child was taken to a hospital but died within a few hours. Williams said he was sorry and not to "tell anyone I did this." An autopsy disclosed over 70 bruises on the chest and abdomen, all having been incurred within 24 hours of death. There were tears in the abdominal organs and around the rib cage, all caused by a blunt object. Williams testified the child had suffered a fall.

While awaiting trial Williams shared a jail cell with Bert Singletary. Williams concedes the state called Singletary as a rebuttal witness. Over Williams' objection the witness said the defendant had told him he had accidentally "kicked the kid down the stairs" and then hit and shook him to get him breathing again. Error is alleged for the prosecution's failure to disclose Singletary as a witness until only a few days prior to trial. Judge Hamilton did allow defense counsel to interview the witness. A statement of Singletary was also introduced. The state says the sheriff gave the statement to him the same day it was sent to the defendant. "The rule requiring endorsement of the State's witnesses does not apply to rebuttal witnesses." State v. Tyler, 622 S.W.2d 379, 385 (Mo.App.1981).

Where a rebuttal witness is not called to rebut a defense of alibi, there is no obligation to make disclosure and such witnesses may be freely called to contradict or impeach the defendant's own evidence. State v. Lutjen, 661 S.W.2d 845, 849 (Mo.app.1983). It is, of course, within the discretion of the trial judge to receive such testimony having in mind principles of fundamental fairness. In this case, there was neither unfairness nor surprise because the same testimony had been given during the presentation of the state's case....

State v. Burton, 721 S.W.2d 58, 63 (Mo.App.1986).

The next point implies Singletary was a "planted" police informant and an agent of the state, and that had he been disclosed earlier, Williams could have "perhaps moved to have Bert Singletary's testimony suppressed." His reliance on State v. McMullan, 713 S.W.2d 881 (Mo.App.1986) is misplaced. In McMullan, the prisoner after asking to talk with his lawyer was put in a cell with a prisoner who was to get the defendant to talk. A suppression of the conversation resulted for the situation being a "functional equivalent" of direct police interrogation. There was no evidence here of Singletary being a plant. In any event Williams, as will be noted later, had voluntarily given a statement to the sheriff, so there is no valid complaint the state was questioning him after his request to have counsel present.

The next point concerns the failure of the trial court to grant a continuance because Williams' sister, Gloria Brown, was unable to testify having just been injured in an auto accident. Williams presents this point without case authority, and with nothing more than the assertion that Brown, who lived in Phoenix, Arizona, would impeach the testimony of the victim's mother. No showing of an abuse of discretion having been put forward, State v. Sloan, 666 S.W.2d 787, 789-90 (Mo.App.1984), and no showing how the trial judge's action prejudiced or was oppressive to Williams, State v. Adkins, 678 S.W.2d 855, 858 (Mo.App.1984), this matter is denied.

The next two points relate to a video taped statement of Williams made to a sheriff's deputy the day the death occurred. The contents of the statement were consistent with Williams' trial testimony and that of the deputy Perry who took the statement. The trial court refused to allow Williams to introduce the video. The state had made an objection the interview was hearsay. Counsel for Williams argued it was an exception because the statement showed his client's state of mind near the time of the child's death. Assuming without deciding whether the video statement should have been admitted, no matter what the objection, this ruling will not be disturbed on appeal. In State v. Whiteaker, 499 S.W.2d 412, 418 (Mo.1973); cert. den. 415 U.S. 949, 94 S.Ct. 1472, 39 L.Ed.2d 565 (1974), the supreme court, under the same circumstances said:

Practically all of the above was testified to by defendant, Sheriff Appley and other witnesses during the trial. The point does not warrant an exploration of the law relating to the admissibility of defendant's statement in defendant's behalf. It simply was not prejudicial and has no merit in this case.

After the rebuttal testimony of Singletary was introduced, the video was again offered by Williams as proof of a prior consistent statement of the defendant after the "impeachment." Again, assuming without deciding the Williams video was properly admissible at this time, he cannot show an abuse of discretion on the part of the trial court for surrebuttal, State v. Sanders, 714 S.W.2d 578, 586 (Mo.App.1986), nor prejudice requiring reversal since the content of and time the statement was given was already before the jury. Whiteaker, supra, at 418.

The next point in the brief concerns the defendant's being limited on redirect examination of one of his witnesses called for his reputation for truth and veracity. Witness Robert Gray was asked on cross-examination if he had heard Williams, as an employee of a hospital, had earlier assaulted and broken the nose of a retarded young man. The witness answered in the affirmative. On redirect the state's objections to defense counsel's attempts to question the witness as to the surroundings of this conduct were sustained. This action by the court was not an abuse of discretion and does not constitute error. State v. Thomson, 705 S.W.2d 38, 40 (Mo.App.1985).

Williams' next point charges trial court error in refusing to give the jury an instruction on his good character. The first paragraph of MAI-Cr2d 2.50 provides:

2.50 Character of Defendant Bearing on Guilt or Innocence

Evidence has been introduced concerning the reputation of defendant as to those traits of character which ordinarily would be involved in the commission of an offense such as that charged in this case. This evidence was received because a jury may reason that a person of good character as to such traits would not be likely to commit the offense charged against the defendant. Therefore, you should consider such evidence along with all of the other evidence in the case in determining the guilt or innocence of the defendant.

Notes on Use

1. This instruction must be given in all criminal cases, whether requested or not, "whenever necessary," Rule 26.02(6), which means whenever there is evidence of defendant's general reputation of good character.

2. An attack upon the credibility of the defendant as a witness by proof of his reputation for truth or veracity or by cross-examination or by proof of prior convictions does not constitute evidence putting the defendant's character as a party in issue. State v. Williams, 337 Mo. 884, 87 S.W.2d 175 (1935). See also State v. Robinson, 344 Mo. 1094, 130 S.W.2d 530 (1939), holding that proof of defendant's reputation for being quarrelsome and turbulent is admissible under limited circumstances in self-defense situations. In addition, proof of other crimes or criminal conduct of defendant may be admissible for numerous purposes, and their introduction into evidence may be allowed although defendant has not put his character in issue. McCormick on Evidence, section 157. In all such cases MAI-Cr 2.50 should not be given unless and until defendant opens up his character as a party. State v. Baldwin, 349 S.W.2d 212 (Mo.1961).

3. Because of the vital distinctions noted in 2 above, the giving or refusal of MAI-CR 2.50 will not affect the question of whether or not an instruction may or should be given limiting the purposes for which evidence other than that of defendant's character as a party was received. See MAI-Cr 3.58 and 3.60. (Emphasis added.)

This court in State v. Claypole, 721 S.W.2d 66, 68 (Mo.App.1987), stated the failure to instruct the jury on character where there is evidence of general reputation of good character is error, its prejudicial effect to be judicially noted.

Williams called five witnesses who testified of his reputation of being truthful, forthright, dependable, good-hearted, honest, easy to be around, a good neighbor and of having a good reputation. Most of this evidence concerned Williams' reputation for truth and veracity, which would bear on his credibility as a witness and not amount to evidence of his character traits involved with the offense of murder. Notes on Use, 2, supra. Although the distinctions causing 2.50 to be given are sometimes vague, and some judges have expressed reservations about the use of character evidence...

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7 cases
  • State v. Gomez
    • United States
    • Court of Appeals of Washington
    • March 27, 2014
    ...Commonwealth, 240 Va. 78, 86-87, 393 S.E.2d 609 (1990); Davidson v. State, 591 So.2d 901, 902-03 (Ala.Crim.App.1991); State v. Williams, 742 S.W.2d 616, 621 (Mo.Ct.App. 1987). Considering the constitutional importance of a public trial, tardiness is a minor annoyance. In sum, because the tr......
  • State v. Gomez
    • United States
    • Court of Appeals of Washington
    • March 27, 2014
    ...240 Va. 78, 86-87, 393 S.E.2d 609 (1990); Davidson v. State, 591 So. 2d 901, 902-03 (Ala. Crim. App. 1991); State v. Williams, 742 S.W.2d 616, 621 (Mo. Ct. App. 1987). Considering the constitutional importance of a public trial, tardiness is a minor annoyance. In sum, because the trial cour......
  • State v. Williams
    • United States
    • Court of Appeal of Missouri (US)
    • November 26, 2003
    ...rebuttal witnesses unless the evidence is introduced to rebut a defense of alibi or mental disease or defect); State v. Williams, 742 S.W.2d 616, 618 (Mo.App. W.D.1987). This rule has also been extended to physical evidence offered in rebuttal. State v. Clark, 975 S.W.2d 256, 263 (Mo.App. I......
  • State v. Grant
    • United States
    • Court of Appeal of Missouri (US)
    • February 13, 1990
    ...95, 99 (Mo. banc 1982). The presumption may be rebutted by the facts in a particular case. Id. The state relies on State v. Williams, 742 S.W.2d 616 (Mo.App.1987), to support its argument that the error here was Williams is distinguishable. In Williams, the contents of the defendant's state......
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