State v. Williams
| Decision Date | 26 November 2003 |
| Docket Number | No. 24717.,24717. |
| Citation | 119 S.W.3d 674 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Bruce L. WILLIAMS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Amy M. Bartholow, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane Dixon Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
Bruce L. Williams ("Appellant") was charged by information with felony criminal nonsupport, pursuant to § 568.040.1 He was convicted at the conclusion of a jury trial, and the trial court subsequently sentenced him to forty-five days incarceration in the Laclede County Jail, as well as a $5000 fine. Appellant now brings this appeal, challenging his conviction on the grounds that the trial court erred in excluding evidence, in allowing improper argument, and plainly erred "in sentencing him for felony criminal nonsupport." The State candidly and correctly concedes the essence of Appellant's third point, i.e., that the State did not prove him guilty of felony criminal nonsupport because the three-year statute of limitations should have been applied and when the barred portion is excluded, the minimum $5000 per child arrearage amount required for a felony nonsupport charge was unproven.2 However the State disagrees with Appellant as to the remedy that should be granted. The State argues that a conviction for misdemeanor should be entered its stead.3 We need not, however, decide if a belated sentencing of Appellant for a misdemeanor offense is a viable remedy. This follows because we find Appellant is entitled to a new trial on the basis of Appellant's first two points on appeal.
Appellant and Dianna Williams ("Williams") were divorced on November 16, 1987. During their marriage, Appellant and Williams had two children together and, upon the dissolution of the marriage, Appellant was ordered by the divorce decree to pay support for the children. Specifically, the decree instructed Appellant to pay monthly child support to the circuit clerk of Laclede County, beginning December 1, 1987, in the amount of $100 per child.
As early as December of 1987, Williams began to receive State aid in the amount of $431 per month because Appellant was not making regular payments to the Laclede County clerk's office. Subsequently, on January 2, 2002, the State charged Appellant with felony nonsupport for the period between December 1, 1987 and November 28, 2000, alleging that "the total amount of the support which [Appellant] knowingly failed to provide was in excess of five thousand dollars." According to the Division of Child Support Enforcement ("Child Support Enforcement"), which was responsible for maintaining Appellant's payment history, Appellant paid a total of only $3333.23 between December 1, 1987 and November 28, 2000, which put him $27,066.77 in total arrears.4
At trial, Appellant's defense was that he had been paying cash directly to Williams in lieu of remitting child support to the clerk's office and, thus, he was not guilty of nonsupport, felony or otherwise. He further asserted that, by accepting both child support from him and aid from the State, Williams had been committing welfare fraud. To bolster his defense, in August of 2001, Appellant tape-recorded a conversation between Williams and himself in which Williams acknowledged that Appellant had not only paid support directly to her, but that he had paid more than he actually owed. While Appellant told defense counsel about the existence of the tape a few days before trial, he was unable to locate the tape before trial began, and was able to produce it only after the defense had rested its case.5 At that time, defense counsel asked to reopen its case or, in the alternative, to present surrebuttal evidence in order to impeach Williams' trial testimony. The prosecutor objected on the ground that the tape-recording had not been timely disclosed, and the trial court sustained the State's objection and excluded the evidence.
Subsequently, during closing arguments, the State attempted to discredit Appellant's proffered defense by arguing that Appellant was unable "to produce one shred of evidence" to prove Williams committed welfare fraud. At the conclusion of his trial, Appellant was convicted of felony nonsupport and sentenced accordingly. Appellant now brings three points on appeal.
In his first point on appeal, Appellant contends that the trial court abused its discretion by excluding the tape-recording as a sanction for Appellant's failure to disclose the tape to the State prior to trial.6 He now argues that, because the tape-recorded conversation tended to incriminate Williams while exculpating himself, its exclusion at trial effectively denied him of due process and resulted in fundamental unfairness. Because we agree that the exclusion of the tape-recording substantively altered the outcome of Appellant's case, we reverse and remand for a new trial.
Pursuant to Rule 25.16,7 trial courts are given considerable discretion in determining whether a party should be sanctioned for a discovery violation and, if so, what type of sanction should be imposed. See State v. Simonton, 49 S.W.3d 766, 780 (Mo.App. W.D.2001). Additionally, trial courts are vested with discretion to determine whether a defendant should be permitted to reopen his case to present additional evidence, State v. Hunt, 461 S.W.2d 879, 881 (Mo. banc 1971), and to determine the scope of evidence that may be presented on rebuttal. State v. Young, 781 S.W.2d 212, 216 (Mo.App. E.D.1989) (citing State v. Leisure, 749 S.W.2d 366, 380 (Mo. banc 1988)). Thus, we review the trial court's exclusion of the tape-recording under an abuse of discretion of standard. State v. Allen, 81 S.W.3d 227, 229 (Mo.App. W.D.2002); see also Hunt, 461 S.W.2d at 881. An abuse of discretion occurs when the ruling or decision of the trial court results in fundamental unfairness to the defendant. State v. Willis, 2 S.W.3d 801, 806 (Mo.App. W.D.1999) (citing State v. Perkins, 710 S.W.2d 889, 894 (Mo.App. E.D.1986)).8
Initially, we note that there is generally no obligation to disclose rebuttal testimony under Missouri law. See State v. Young, 781 S.W.2d 212, 216 (Mo.App. E.D.1989); see also State v. Curtis, 544 S.W.2d 580, 582 (Mo. banc 1976) ( that there is no obligation to disclose 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. S.D.1998).
In the present case, the evidence that Appellant attempted to introduce was a tape-recording that preserved the following exchange between Appellant and Williams:
[Appellant]: I—I don't want to be put on probation or go to jail for—for something I—I'm not guilty of.
[Williams]: I understand that. I understand that. Do you want me to go in there and—see, if I go in there and I tell them— [Appellant]: That I paid you what I paid you.
[Williams]: —"Hey, [Appellant] has handed me $27,000"—if I do that, [Appellant], they're going to get me for fraud. Do you know what that means?
[Appellant]: I—I—
[Williams]: No, do you know what that means? Do you not give a shit about me at all? Twenty-seven thousand dollars, [Appellant]. I'm willing to go out here and help pay the son of a bitch off, but instead, you want me to just go up there and say, I can't do that, [Appellant]. I will go to the pen ...
. . . .
[Appellant]: I'm the one that—I've paid—that—that bill—that $200 a month on [the children]—I really don't owe a penny on that, do I? Do you think I owe a penny on that $200 a month on [the children]? Do I owe a penny on that?
[Williams]: Mmm.
[Appellant]: What?
[Williams]: I can't say yes and I can't say no.
[Appellant]: Why not? You don't think I've averaged $200 a month?
[Williams]: Averaging out, yeah. Averaging it out—okay. Actually, you know what? In the last five years—
[Appellant]: The five year? How about ten—
[Williams]: No, please—wait a minute.
[Appellant]: How about—what do you mean, five years? The last twelve or thirteen years.
[Williams]: Actually, in the last five years you've probably done more than $27,000—in just the last five years. See what I'm saying?
[Appellant]: No, I haven't given you that much.
[Williams]: No. No, no. But what I'm saying, just the—the $10 here, the hundred here, the school—fifty, hundred, 500, 800 here—the school—
. . . .
[Williams]: What I'm saying—yeah. What I'm saying—yes, but the problem—see, the problem is—is that woman said if I go in there and I admit to one penny—she said she don't give a damn if it's a penny—one penny, I'm fraud. I'm fraud. And you know I'm not. And I know you don't owe that either, so I don't really know what to do.
Considering that Williams testified that Appellant owed in excess of $5000 in back child-support payments, and twice denied ever telling Appellant that he had paid in excess of $35,000, the tape-recording would certainly have rebutted, or at least impeached, her trial testimony. Thus, because the tape-recording was offered only for the purpose of rebutting Williams' testimony, Appellant did not violate the disclosure requirements of Rule 25.03 by failing to disclose the evidence to the State prior to trial.
As indicated above, the trial court retains considerable discretion in both determining the proper scope of rebuttal evidence, Young, 781 S.W.2d at 216, and levying sanctions for discovery violations. Simonton, 49 S.W.3d at 780. Under either theory, however, the trial court's decision to exclude the tape-recording constituted an abuse of discretion because the exclusion resulted in fundamental unfairness to the defendant. Willis, 2 S.W.3d at 806 (citing Perkins, 710 S.W.2d at 894).
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