635 S.W.2d 28 | Mo. Ct. App. | 1982
Defendant Tommie C. Dentman was convicted of the class D felony of tampering with a witness in a felony prosecution, § 575.270, RSMo 1978, and sentenced to imprisonment for a term of five years. He appeals; we affirm.
The sufficiency of the evidence is not challenged, and we therefore make only a brief statement of the facts supporting the conviction. Other facts will be alluded to as necessary in the discussion of the points on appeal.
By its verdict, the jury found that defendant offered money to Richard Ford to induce him to absent himself from a capital murder trial. Ford had witnessed the killing of Jerome Brown by Dennis Haymon, while Brown was a passenger in an automobile driven by Ford.
Several other telephone calls were initiated by defendant, or by Ford at defendant’s direction, the last being on May 19, 1979 from defendant to advise Ford that defendant had the money and would pick him up in a red Cadillac to take him to Chicago. Within an hour, defendant arrived at the hotel. When defendant was approached by a police officer who had been guarding Ford, defendant ran from the lobby and
Defendant's first contention is that the trial court erred in denying his motion to dismiss the indictment because trial did not begin within 180 days of the arraignment in violation of § 545.780, RSMo 1978.
Defendant argues that § 545.780, paragraph 2, mandates the commencement of trial within 180 days of arraignment. Defendant further argues that delays in the commencement of trial which are caused by continuances are excludable from the 180 day period only if the court states for the record “its reasons for finding that the ends of justice [will be] served by the granting of such continuance.”
Defendant was arraigned on June 19, 1979, and went to trial on January 7, 1980, an interval of 202 days. During that period defendant requested a continuance of a July 23, 1979 setting which the court granted by the following order dated July 19, 1979:
“Cause continued at the request of the Defendant to 9-10-79 for the reason(s) that: the State has yesterday provided the defense with all the police reports in the case.”
“WHEREFORE, the Court finds, for the above stated reason(s), that the ends of justice are served by granting the continuance and outweigh the best interests of the public and the defendant in a speedy trial.”
The period of forty-nine days attributable to this continuance must be excluded from defendant’s computation of 202 days. The order granting the continuance, which was signed by defendant’s present counsel but not included in the record by him,
Defendant next contends the trial court erred in admitting the testimony of state’s witness Richard Ford because the state failed to disclose “material information” requested in defendant’s discovery motions. The point relied on does not indicate the nature of this material information or even if the information pertained to witness Ford, and thus violates Rule 84.04(d). The argument portion of defendant’s brief enumerates five items which he claims were not disclosed to him until after trial had begun. Although the defective point is not cured by inclusion of the missing elements in the argument, we will address defendant’s point. See Thummel v. King, 570 S.W.2d 679, 686 (Mo.banc 1978). Defendant alleges that the state failed to disclose: (1) that Ford was arrested in California in October, 1979; (2) that Ford subsequently pled guilty in California to one traffic violation and to one charge of stealing under $50 which had been pending since 1975; (3) that Ford had a felony charge (possession of marijuana) pending against him in the City of St. Louis; (4) that an assistant circuit attorney knew of the California and St. Louis charges; and (5) that the marijuana charge was nolle prossed in June, 1980.
Assuming that each of the items was properly described in one or more of defendant’s pre-trial discovery motions, a
Several of the items which defendant now enumerates would have been of questionable admissibility regardless of when revealed to defendant, e.g., arrests, traffic violations, the mere pendency of charges against him.
Prosecutors are not to be encouraged by this opinion to respond to disclosure requests contemplated by Rule 25 with anything less than diligence, good faith, and complete candor. The salutary purposes of the Rule demand nothing less. Upon review, the issue before us is whether the trial court abused its discretion in failing to exclude Ford’s testimony in view of the state’s failure to respond promptly and fully to the defendant’s disclosure requests. “The ultimate question being: whether or not the failure to produce has resulted in fundamental unfairness or prejudice to the defendant.” State v. Gormon, 584 S.W.2d 420, 423 (Mo.App.1979). See also State v. Bizzle, 608 S.W.2d 111, 113 (Mo.App.1980). For the reasons discussed, we find no abuse of discretion here and rule the point against defendant.
Defendant’s final contention is that the trial court erred in refusing to submit defendant’s tendered converse Instruction No. B.
Section 575.270, RSMo 1978, states that a “person commits the crime of tampering with a witness if, with purpose to induce a witness ... to absent himself or avoid subpoena or other legal process, or to withhold evidence” he offers a benefit to the witness. (Emphasis added.) The verdict director
The court submitted MAI-CR 2d 3.02, a pure negative converse which was unrelated to the special negative defense of entrapment but which was directed to the element of intent.
“If you do not find and believe from the evidence beyond a reasonable doubt that defendant offered or agreed to confer benefit upon a witness in a felony prosecution with the purpose to induce said witness to absent himself or avoid testifying in said trial, you must find the defendant not guilty of tampering with a witness.”
Defendant’s refused Instruction No. B was patterned on MAI-CR 2d 2.38.
“One of the issues in this case is whether the defendant acted under a reasonable belief that his conduct did not constitute an offense. On that issue you are instructed as follows:
1. The state has the burden of proving beyond a reasonable doubt that the defendant is not entitled to an acquittal on the grounds of reasonable belief that the conduct was not illegal. If the evidence in this case leaves in your mind a reasonable doubt as to whether the defendant is entitled to an acquittal on the grounds of reasonable belief that the conduct was not illegal, then you must find the defendant not guilty of the charge of tampering with a witness.
2. If the defendant reasonably believed the conduct submitted in Instruction No. _ was not criminal, that he was acting within the full authority of his duties as a public official by conducting independent investigations to discover other crimes and perpetrators beyond those charged and pending, and that the purpose of his conduct was to determine the character and credibility of said witness, and that his conscious object was not to carry out the agreement but rather to use it as a means of achieving the purpose that Defendant reasonably believed was legitimately within the scope of his official duties, then the defendant acted in reasonable belief that the conduct was not illegal and must be acquitted.”
The Notes on Use following MAI-CR 2d 2.38 caution that this instruction covers a very limited range of situations and does not submit the negative of any mental state. The instruction is based on § 562.-031.2, RSMo 1978,
Defendant testified that he did not act with the purpose of inducing Ford to absent
Under this analysis, it is clear that defendant’s Instruction No. B patterned on MAI-CR 2d 2.38 was properly refused. Defendant was entitled to a converse instruction that negated the element of intent required in § 575.270, RSMo 1978, i.e. “purpose to induce” absence of the witness. Instruction No. 6 submitted by the court was the proper converse instruction. We rule this point against defendant.
Judgment is affirmed.
. State v. Haymon, 616 S.W.2d 805 (Mo.banc 1981).
. The state sought and was granted an order by this court supplementing the record with a copy of the trial court’s order set out here.
. Defendant’s claim that the marijuana charge was nolle prossed in June 1980 is patently incorrect. References to it in the trial transcript indicate that it had been dismissed prior to the trial, i.e., June of 1979 or before.
. A witness may not be impeached by asking him about past arrests. State v. Massa, 512 S.W.2d 912, 914 (Mo.App.1974). Similarly, if a conviction of a traffic offense is merely for a municipal ordinance violation, rather than for a state misdemeanor, it may not be shown for impeachment purposes. State v. Brewer, 549 S.W.2d 642, 644 (Mo.App.1977). And the pendency of a charge, with nothing more, cannot be used to attack the credibility of a witness. State v. Lockhart, 507 S.W.2d 395, 396 (Mo.1974).
. Defendant’s point relied on with regard to this issue also violates Rule 84.04(d). It fails to specify in what way the refusal of this instruction was erroneous. Thummel v. King, 570 S.W.2d 679, 685[5] (Mo.banc 1978). In addition, the argument portion of the brief fails to set forth in full the refused instruction in violation of Rule 84.04(e).
. “Section 562.031. Ignorance and mistake.— 1. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact or law unless such mistake negatives the existence of the mental state required by the offense.
2. A person is not relieved of criminal liability for conduct because he believes his conduct does not constitute an offense unless his belief is reasonable and
(1) The offense is defined by an administrative regulation or order which is not known to him and has not been published or otherwise made reasonably available to him, and he could not have acquired such knowledge by the exercise of due diligence pursuant to facts known to him; or
(2) He acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in
(a) A statute;
(b) An opinion or order of an appellate court;
(c) An official interpretation of the statute, regulation or order defining the offense made by a public official or agency legally authorized to interpret such statute, regulation or order.
3. The burden of injecting the issue of reasonable belief that conduct does not constitute an offense under subdivisions (1) and (2) of subsection 2 is on the defendant.”