State v. Belcher

856 S.W.2d 113, 1993 Mo. App. LEXIS 961, 1993 WL 226814
CourtMissouri Court of Appeals
DecidedJune 29, 1993
DocketNos. 59664, 62296
StatusPublished
Cited by8 cases

This text of 856 S.W.2d 113 (State v. Belcher) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Belcher, 856 S.W.2d 113, 1993 Mo. App. LEXIS 961, 1993 WL 226814 (Mo. Ct. App. 1993).

Opinion

CRANDALL, Presiding Judge.

Defendant, Leotis Belcher, appeals from his judgment of conviction, after a jury trial, of abuse of a child. He was sentenced to imprisonment for three years. Defendant also appeals the denial of his Rule 29.15 motion after an evidentiary hearing. We affirm.

Defendant does not challenge the sufficiency of the evidence. The evidence, viewed in the light most favorable to the verdict, discloses that defendant decided to punish his eight-year-old stepson, J.I., for altering a grade on his report card. Defendant took J.I. into a bathroom, tied his ankles together and his hands behind his back. Defendant then placed J.I. into a bathtub filled with cold water. Defendant forced J.I.’s head under water several times. J.I. later collapsed and was treated at a hospital for hypothermia. The medical records indicated that J.I. had a swollen, ulcerated right earlobe, and bruises on his left palm and fingers, the back of both shoulders, and his upper abdomen.

On appeal, defendant first contends the trial court abused its discretion when it refused to permit Dr. Armand Brodeur, a medical doctor, to testify as an expert witness on behalf of defendant.

Approximately thirty days before trial, defendant endorsed a Dr. Anthony Griffen of Chicago, Illinois, ostensibly as an expert witness. Dr. Griffen apparently was unavailable at trial. Defendant then filed a motion, on the day of trial, requesting the endorsement of Dr. Armand Brodeur as a defense witness. In that motion, defendant stated that Dr. Brodeur would testify, based upon his interpretation of the medical records in the case, that the child abuse in question did not occur. The sparse record simply indicates that the objection of the State was sustained.

At the close of the State’s case, defendant orally renewed his motion and made an “offer of proof.” Defendant stated that Dr. Brodeur was a substitute for the previously endorsed witness, Dr. Anthony Grif-fen, and that he would testify that J.I.’s injuries could have been caused by a blow to the head; and further that it would be “beyond a reasonable doubt (sic) for any medical doctor to come to the conclusion that this was the direct result of either being punched in the stomach by Mr. Belcher or being tied with his hands bound and being dunked under water repeated-ly_” Dr. Brodeur was not present and did not testify during the offer of proof.

We assume, although it is not in the record, that the reason for the trial court’s ruling was a finding that defendant violated Supreme Court rules governing discovery in a criminal prosecution. Rule 25.05 requires, inter alia-, that a defendant shall disclose to the State, upon written request, the name of an expert witness and any statements or reports made by the witness in connection with the particular case.

It is clear defendant did not comply with the rules, because of his untimely endorsement of Dr. Brodeur as an expert witness. See Rules 25.02 and 25.08. Rule 25.16 gives a trial court broad discretion to impose sanctions for discovery rule violations. A trial 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 orders as it deems just under the circumstances.” Rule 25.16; see State v. Mansfield, 637 S.W.2d 699, 703 (Mo. banc 1982).

[116]*116We first consider whether the trial court abused its discretion when it imposed the severe sanction of refusing to permit defendant to call his expert as a witness.

A defendant in a criminal trial has the fundamental right to present witnesses in his own defense. State v. Bashe, 657 S.W.2d 321, 324 (Mo.App.1983). Disallowing otherwise admissible testimony of a defense witness is an extreme remedy that should be used with great caution. Bashe, 657 S.W.2d at 325. Improper exclusion of the testimony of a witness may violate due process. Burton v. State, 641 S.W.2d 95, 100 (Mo. banc 1982).

There is nothing in this record to indicate how permitting defendant to call Dr. Brodeur as a witness would have prejudiced the State. The State was aware that Dr. Griffen had been endorsed as an expert witness for the defense, yet the State had done nothing to secure his report or his deposition. Having done no further discovery regarding the possible testimony of the defense expert, it is unlikely that the State would have been surprised or prejudiced by the testimony of a substitute expert. In addition, this was a four-day trial. The State could have interviewed or deposed Dr. Brodeur either immediately before or during trial. If that level of discovery was inadequate, the State could have then asked the trial court to exclude the doctor’s testimony. Because the State made no showing of how it would be prejudiced by the testimony of Dr. Brodeur, the sanction imposed would appear to be unduly harsh.

We next consider whether the ruling of the trial court resulted in prejudice to the defendant. It is clear that prejudice resulting from the sanction of excluding testimony is to be tested by whether it results in fundamental unfairness to the defendant. Bashe, 657 S.W.2d at 325.

We first look to defendant’s offer of proof at trial. To preserve error when testimony is ruled as inadmissible, an offer of proof must be made. Murphy v. Grisham, 625 S.W.2d 215, 217 (Mo.App.1981). An offer of proof must demonstrate the relevance of the testimony, must be specific, and must be definite. See State v. Dagley, 793 S.W.2d 420, 423 (Mo.App.1990). The better procedure is to put the witness on the stand, out of the presence of the jury, and proceed by question and answer. This enables the trial court to intelligently rule on the admissibility of the testimony and provides a proper record for appellate review. State v. Hurtt, 836 S.W.2d 56, 59 (Mo.App.S.D.1992). A summary by counsel of proposed testimony may be considered adequate when it is clear that both the court and counsel knew exactly what the proposed testimony would be. Stapleton v. Griewe, 602 S.W.2d 810, 813 (Mo.App.1980).

Here, defendant did not put Dr. Brodeur on the stand. The so-called offer of proof was conclusionary in nature and did not set forth details of how and why Dr. Brodeur would reach his medical conclusion. In addition, Dr. Brodeur was never deposed; there is no evidence in the record of any medical report or narration indicating what his proposed testimony would be; there is nothing in the record to indicate that he was present and available to testify or was under subpoena by defendant; and there is no indication that defendant ever talked to Dr. Brodeur. Significantly, although defendant had a second chance to make his record regarding Dr. Brodeur’s testimony at the related 29.15 hearing, defendant still failed to produce him.

Because there is not adequate information in the record regarding Dr.

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Bluebook (online)
856 S.W.2d 113, 1993 Mo. App. LEXIS 961, 1993 WL 226814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-belcher-moctapp-1993.