A jury found defendant-appellant guilty of attempt to commit robbery in the first degree on a charge of robbery first degree. § 569.020, RSMo (1978). The jury assessed and the court sentenced defendant to serve ten years’ imprisonment.
Defendant appeals on three grounds. First, he complains that he was entitled to a dismissal because the trial did not begin within 180 days after arraignment. § 545.-780, RSMo Supp.1983 (repealed 1984). He *924 also argues for a new trial on two grounds: (1) that two cartridges seized from defendant’s rear pocket at the time of arrest should not have been admitted in evidence as they were more prejudicial than probative; and (2) that redirect examination of a police officer about statements made to her by the victim were inadmissible and prejudicial hearsay.
The trial began 214 days after arraignment. Defendant concedes that he requested one thirty-three day continuance. Continuances requested by a defendant are not included in the computation to determine if the trial was held 180 days after arraignment. § 545.780.3(5)(a), RSMo Supp.1983 (repealed 1984). Disregarding defendant’s continuance the trial was held 180 days after arraignment. The 180th day was a Saturday. Rule 20.01(a) provides that when the final day of a time period falls on a Saturday or Sunday those days are not counted. Here the trial started on the Monday after the 180th day. We conclude that it was not untimely. § 545.-780, RSMo Supp.1983 (repealed 1984).
Even if the rule is not controlling we find no abuse of discretion in denying dismissal on the timeliness of the trial. Defendant has not contended that the delay was in any way prejudicial. Although he need not prove prejudice under the now repealed statute the court is authorized to consider absence of prejudice in refusing a dismissal.
State v. Lawson,
The case was tried on an amended information alleging defendant forcibly stole currency while armed with a deadly weapon. The original information alleged defendant had stolen a woman’s purse.
The sufficiency of the evidence is not questioned. The evidence indicated that the robber wore a ski mask and was armed with a handgun. He confronted a female employee in the parking lot behind the store. They both returned to the office of the store where a male employee was told to open the safe. The entire time the robber and the two employees were in the office the woman was facing a wall and did not see what happened. The opening of the safe was interrupted by the arrival of police officers. Defendant surrendered to the police. A handgun was found hidden above a loose ceiling tile in the office within a handbag belonging to an employee. Both employees identified it as the gun the robber had used. A cartridge was found on the floor of the office and two cartridges were taken from defendant’s pocket.
Defendant argues that the court erred in admitting the two cartridges taken from his pocket. The trial court is given broad discretion in determining the probative value of evidence.
State v. Gibson,
Defendant’s final point contends prejudicial error in permitting the state’s police officer, over hearsay objection, to answer questions of what the female victim told her. The police officer was asked several times to relate out-of-court statements of the victim. This was clear hearsay.
State v. Nimrod,
At trial the victim was the first witness and the police officer the last. If the police officer’s answers were the same as those of the victim no prejudice could have resulted and the error would be technical only and not a ground for reversal.
State v. Maxwell,
However, in matters of admission of evidence we review for prejudice not mere
*925
error.
State v. Favell,
The state relies on the doctrine of curative admissibility
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to justify the hearsay. We have applied that doctrine to permit a party to offer hearsay evidence contained in a document where the complaining party had previously asked questions about the same document.
State v. Scaturro,
Where one party brings into court and reads into evidence certain portions of a hospital record without any reservation of the right to object to other portions thereof and thus affirms the admissibility of the hospital record, he cannot thereafter object to his opponent’s offer of remaining portions of the hospital record which are relevant and explanatory of the portions already read into evidence by the party first sponsoring the hospital record. (Emphasis added.)
The state has argued in the alternative that there was no resulting prejudice from the police officer reporting the victim’s statements because the victim was an in-court witness and subject to cross-examination. In some cases that will be true.
State v. Robinson,
The two victims’ testimony relate the uncomplicated and complete story of an *926 armed robbery which was aborted by the fortunate arrival of the police and the apprehension of the robber at the scene. It cannot be found as a matter of law that the sentence as assessed by the jury would have been as punitive had the jury not heard evidence of threats of death and that the clicking noise was in fact from the handgun. The connection of the clicking noises to the gun implies a misfire of the weapon.
The court erred in permitting the hearsay evidence. It was not invited or curative of any questions asked on cross-examination. It may have been prejudicial in the determination and assessment of punishment. The possibility of prejudice is not excluded simply because the speaker was an in-court witness who gave conflicting and opposite testimony. Error is presumed prejudicial in the result and the prejudice attaches unless it may be found not prejudicial to the result as a matter of law.
State v. Favell,
We reverse and remand for a new trial.