State v. RogersState v. Rogers
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- Before:
- Gaertner
Dеfendant appeals from a jury conviction in St. Louis City Circuit Court of burglary in the first degree,
The еvidence shows that at approximately 12:20 a.m. on March 4, 1987, at 5220 Page Blvd., in the City of St. Louis, defendant broke a lock on a door and entered the premises. He forced open a bedroom door, also locked, and took two television sеts out of the residence. Darryl Johnson, who lives in the basement at 5220 Page Blvd., witnessed the burglary and identified defendant at trial as the perpetrator of the crime.
The indictment, filed on April 2, 1987, charged defendant as a prior and persistent offender, but made no reference to defendant’s eligibility for a minimum prison term under
In a motion for new trial, defense counsel alleged that new evidence, not availаble at trial, had been discovered. Defense counsel suggested that Janice Walker had admitted to four witnesses that she had committed the burglary for which defendant was found guilty. Janice Walker was a patient at St. Louis University Hospital from March 2, 1987, to Marсh 6, 1987. Judge Gallagher denied the motion for a new trial.
On appeal, defendant alleges that the trial court abused its discretion in overruling appellant’s motion for a new trial. Initially, we note that the Missouri Supreme Court stated the criteria to be used by trial courts when exercising their discre
The new evidence that defendant seeks to introduce at a new trial is contained in a set of affidavits. The affiants claim that they heard Janice Walker state that the defendant was going to the penitentiary for something that she had done. As a general rule in Missouri, declarations against penal interest by a third party are not admissible as an exception to the hearsay rule in criminal proceedings. State v. Nunn, 697 S.W.2d 244, 246 (Mo.App., E.D. 1985). See also State v. Acklin, 737 S.W. 2d 743, 745 (Mo.App., W.D.1987).
This general rule is subject to the requirement that such statements be admissible as a due process right of the accused if the statements were made under conditions which provided assurance that the statements were reliable. State v. Acklin, 737 S.W.2d at 745. In the instant case, three of the affiants are the defendant’s girlfriend, the defendant’s brother-in-law, and a friend of the defendant. Due to thеir relationships with the defendant, the affiants’ neutral interest in defendant’s future is questionable. Ms. Walker further testified that she .was in St. Louis University Hospital at the time of the crime having surgery on her neck. Without other corroborated assurances of the trustworthiness of thе newly discovered evidence the trial court properly held that declarations against the penal interest of а third party to be inadmissible hearsay.
The defendant has failed in his burden of proving that this “newly discovered evidence” is so material that it would probably produce a different result at a new trial, as the declaration against the penal interest of a third party is inadmissible hearsay and the reliability of the affiants is at most questionable. Point denied.
In his second point on appeal, the defendant argues that the trial court erred in sentencing defendant to a minimum prison term pursuant to
Upon this court’s own research, we have determined that Rule 23.08 applies to defendant’s second point on appeal. Rule 23.08 states in pertinent part:
Any information may be amended or substitutеd for an indictment at any time before verdict or finding if no additional or different offense is charged and if a defendant’s substantial rights аre not thereby prejudiced ...
We held in State v. Collier, that Rule 24.02 (now incorporated in Rule 23.08) permitted an amendment or substitution which invoked the Second Offender Act, as such an amendment does not charge a different offense. State v. Collier, 624 S.W.2d 30, 32 (Mo.App., E.D.1981). And, the Missouri Supreme Court held in State v. Collins, that where the substituted information only alleged facts making the habitual criminal statute applicable in determining the punishment, said information did not charge an offense different from the original indictment. State v. Collins, 383 S.W. 2d 747, 750 (Mo.1964).
In the instant case, the information in lieu of indictment was filed with the court before a verdict had been rendered. Therefore, this substitute information is valid pursuant to Rule 23.08 as long as it does not charge a different offense and it does not substantially prejudice the defendant’s rights. Pursuant to the holdings in State
v. Collins
and
State v. Collier,
it is clear that invoking a prior and persistent offender statute for minimum sentencing purposes does not constitute a charge of a
For the above stated reasons, the trial court did nоt commit reversible error in sentencing defendant to a minimum prison term pursuant to
The judgment of the trial court is affirmed.
KAROHL and GRIMM, JJ., concur.