James J. Destefano (“Appellant”) was convicted of two counts of the Class B felony of distributing a controlled substance, violations of section 195.211. 1 Following a jury trial, Appellant was sentenced by the trial court to fifteen years in the Missouri Department of Corrections on each count with the sentences to run concurrently. 2 Appellant alleges two points of trial court error. He first takes umbrage -with the trial court’s admission of the entirety of an audio recording of a drug transaction which he contends included evidence of his bad character and irrelevant statements regarding prior incarceration and drug use. Second, he contends the trial court abused its discretion in excluding a witness from testifying at trial as a sanction for the witness’s late endorsement by defense counsel.
Appellant does not challenge the sufficiency of the evidence to support his convictions. “Viewing the evidence in the light most favorable to the jury’s verdict,”
State v. Smith,
The following week, on March 9, 2005, Officer Krogen again purchased half a gram of methamphetamine from Appellant at his home.
3
The second drugs purchased
Appellant did not testify at trial nor present any evidence. At the close of all the evidence, the jury found Appellant guilty of two counts of distributing methamphetamine and he was later sentenced to two concurrent terms of fifteen years in the Missouri Department of Corrections. This appeal followed.
Appellant’s first point relied on maintains the trial court abused its discretion in admitting over his objection the entirety of audio tapes of his drug transactions with an undercover police officer. He asserts that the “recordings were more prejudicial than probative because they contained minimal cumulative evidence of a drug transaction ...” as well as “evidence of Appellant’s bad character, his prior drug use, and his prior prison commitment.”
“The decision whether to admit evidence of other crimes largely rests on a determination of whether the probative effect of the evidence outweighs its prejudicial impact upon the appellant.”
State v. Perkins,
As previously stated, Officer Krogen made audio tape recordings of the two drug transactions at issue. Prior to trial, Appellant filed a motion in limine in which he sought to exclude certain portions of the audio recordings which he contended were unrelated to the drug sales because they were highly prejudicial and outweighed any probative value. 4 At the hearing on Appellant’s motion, the trial court ruled that the entirety of the audio recordings would be admissible at trial as long as the State was able to lay a proper foundation for the admission of the recordings. In making this ruling, the trial court implicitly denied Appellant’s request to redact the audio recordings so as to excise the purported, prejudicial language. 5
During the State’s direct examination of Officer Krogen, the State moved to play the audio recordings for the jury. At that time, defense counsel renewed his objection to the introduction of the entirety of the audio recordings into evidence. The trial court overruled the objection and the audio recordings were played for the jury.
In the first audio recording, made on March 3, 2005, the confidential informant asked Appellant if Officer Krogen could purchase methamphetamine and Appellant noted he had to put the drugs in a cupcake wrapper because he did not have any baggies. Appellant then provided Officer Krogen with the requested methamphetamine.
During the course of the presentation of the second audio recording, made on March 9, 2005, Appellant warned Officer Krogen that the methamphetamine he was selling her was “more intense” than the previous methamphetamine she had purchased from him and that she should use less than she normally used because of its potency. The recording then recited how Appellant informed Officer Krogen that
As a general rule the “trial court has broad discretion in considering the admission of tape recordings; its determinations will not be disturbed on appeal absent a clear abuse of discretion.”
State v. Isa,
“The admissibility of a tape recording will, however, depend on the particular circumstances of each case.”
Isa,
We note that it is generally recognized that a criminal defendant has a right to be tried only for the offense for which he is charged.
State v. Pennington,
“To be admissible, evidence of prior bad acts must be ‘both logically and legally relevant.’ ”
State v. Taylor,
Courts of this State have recognized six exceptions to the general rule prohibiting admission of evidence of uncharged misconduct. It has been held that
‘[s]uch evidence is admissible if it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial; or (6) a signature modus operand!’
Taylor,
In the present matter, the statements pointed out by Appellant, while no doubt offensive to many listeners, constituted part of the “sales pitch” to the prospective purchaser of his methamphetamine, Officer Krogen. Appellant’s remarks are probative of his knowledge of the illicit nature of the methamphetamine in his possession and his intent to sell it.
See Charlton,
Based on the foregoing, it is our view that Appellant’s remarks to Officer Krogen were logically relevant, in that they had some legitimate tendency to establish directly Appellant’s guilt of the charges for which he was on trial.
See Taylor,
Officer Krogen explained both drug buys in detail and identified Appellant as the person who sold them to her. Defective] Pike corroborated some of her testimony, stating that he saw Appellant leading Officer Krogen inside his house before the March 9 transaction, and he also identified Appellant in court ... There was nothing on the [audio recordings] that was not covered in the testimony of the State’s witnesses.
(Emphasis added.) There is nothing in the record to suggest that the audio recordings “ ‘so influenced the jury that, when considered with and balanced against
In his second point on appeal Appellant asserts the trial court abused its discretion in excluding Bill Lewis (“Mr.Lewis”) from testifying at trial as a sanction for defense counsel’s late endorsement of Mr. Lewis as a witness. Specifically, Appellant maintains that he
disclosed [Mr.] Lewis as soon as he determined that [Mr.] Lewis could be used as a rebuttal witness, even if the disclosure was late, the State suffered little harm and even stated no objection to [Mr.] Lewis’s testimony revealed in Appellant’s offer of proof, yet Appellant suffered prejudice in being deprived of his opportunity to present a defense that might have altered the outcome of the case.
On the first day of trial, after voir dire and immediately following the lunch break, defense counsel presented the State with “the third amended answer to the [S]tate’s request for disclosure.” 6 This document apparently contained the name of a potential witness, Bill Lewis (“Mr.Lewis”), who had not been previously disclosed as a witness for the defense. The State argued that because the jury had already been seated there was no opportunity to voir dire them about any possible relationships with Mr. Lewis, and it was not “fair to the [S]tate to have witnesses endorsed at this late date, and [the State] believes the only proper sanction is to exclude [Mr. Lewis’s] testimony.”
Defense counsel argued that he “just learned that we would be using Mr. Lewis as a witness this morning. He is essentially a rebuttal witness.... ” Defense counsel stated that Mr. Lewis would testify that he had known Appellant for a number of years and he did not believe the voice on the audio recordings belonged to Appellant. Defense counsel admitted that the recording of the March 9, 2005, drug transaction was played for Mr. Lewis at “around ten o’clock” the morning of trial, but he stated that he had been previously unable to locate Mr. Lewis and did not hear from him until the Friday before trial. 7 However, Defense counsel admitted that although he had prepared the third answer to the State’s request for disclosures the previous evening, he did not give a copy of it to the State until after the jury was seated. The trial court then expressed its concern that the jury had not been questioned regarding Mr. Lewis as a witness, but it, nonetheless, reserved its ruling on the admissibility of Mr. Lewis’s testimony until the close of the State’s case.
At the close of the State’s case, defense counsel made an offer of proof of Mr. Lewis’s testimony. Mr. Lewis related that on the morning of trial an investigator from defense counsel’s office visited him at his place of business and played the March 9, 2005, audio recording for him. He stated that he has known Appellant for “[e]ight or nine years ...” and that they had been neighbors on two separate occasions. Mr. Lewis stated that after listen
Following the offer of proof, the trial court sustained the State’s earlier objection to the late endorsement of Mr. Lewis and excluded his testimony as a sanction for his late endorsement.
The exclusion of the testimony of witnesses whose identity has not been properly disclosed is among the sanctions authorized by Rule 25.18.
8
State v. Bowman,
If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule ... the court may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances. Willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court.
“Nevertheless, the imposition of the sanctions provided for in Rule 25.1[8], including exclusion of witnesses, remains within the discretion of the trial court and will be disturbed on appeal only when the sanction results in fundamental unfairness to the defendant.”
State v. Lopez,
Additionally, Rule 25.05 provides:
on written request by the [S]tate, the defendant shall disclose to counsel for the state ... [t]he names and last known addresses of persons, other than defendant, whom defendant intends to call as witnesses at any hearing or at the trial....
A trial court has broad discretion in permitting or denying the late endorsement of witnesses.
See State v. Sweet,
A trial court abuses its discretion when a ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.
State v. Downen,
Here, the trial court did not abuse its discretion in denying defense counsel’s request for a late endorsement of Mr. Lewis
At the time defense counsel endorsed Mr. Lewis as a witness, the jury had already been seated and there would be no opportunity to determine if any members of the petit jury knew Mr. Lewis or would be influenced by his testimony. Denying defense counsel’s request for the late endorsement of Mr. Lewis did not “result[ ] in fundamental unfairness or prejudice to [the] substantial rights of the defendant.”
State v. Thomas,
Furthermore, the trial court did not abuse its discretion in sanctioning defense counsel by excluding Mr. Lewis’s testimony due to its late endorsement. As stated above, the exclusion did not “result[] in fundamental unfairness to [Appellant].”
Lopez,
Lastly, we note Appellant was charged in the Amended Information as a prior drug offender pursuant to sections 195.275 and 195.291.1. Prior to trial, the trial court found “that [Appellant] is a prior drug offender ... in that the [S]tate has met its burden proving the conviction under Chapter 195 of a Class C felony.” At Appellant’s sentencing hearing, the trial court sentenced Appellant without mentioning its prior finding that Appellant was a prior offender. Additionally, the written judgment and sentence fails to reflect that finding.
The trial court’s authority to determine a criminal defendant’s sentence is conferred by sections 195.275 and 195.291 upon a finding that,
inter alia,
Appellant is a prior offender. “Once a trial court finds facts beyond a reasonable doubt showing that a defendant has been found guilty of [a prior drug offense per section 195.291], it has no discretion but to find [Appellant] to be a [prior] offender.”
State v. Jordan,
In the instant matter, the trial court made the necessary findings prior to trial and then failed to mention Appellant’s prior offender status at the sentencing hearing or to note its finding on the judgment and sentence. We note that such failures “during the formal pronouncement
It is apparent that the “failure to memorialize accurately the decision of the trial court as it was announced in open court was clearly a clerical error.”
State v. Taylor,
Notes
. All statutory references are to RSMo 2000.
. Appellant was also found to be a prior drug offender per sections 195.275 and 195.291.1. Although the trial court found "that [Appellant] is a prior drug offender ..it failed to denote such a finding on its written judgment and sentence.
.Although Officer Krogen believed she was purchasing half a gram of methamphetamine on each occasion, when the powder was later
. Appellant’s motion in limine also sought to exclude audio recordings from February 24 and 25, 2005; however, the State indicated it did not intend to play those recordings for the jury. As such, they are not discussed here.
. Neither the jury nor this Court was provided a professional transcription of these tapes, and any quotations which appear in this opinion were gleaned from listening to the actual recordings themselves and referring to the briefs as filed by the parties.
. This document was not included by Appellant in his record on appeal.
. The record reveals the trial was held on Monday, September 14, 2005, and Mr. Lewis contacted defense counsel on Friday, September 9, 2005.
. We note current Rule 25.18 was formerly Rule 25.16.
See State v. Puckett,
. We also observe that the unmarked box on the judgment and sentence form states: “The court informed the defendant of verdict/finding, asks the defendant whether (s)he has anything to say why judgment should not be pronounced, and finds that no sufficient cause to the contrary has been shown or appears to the court.”