State v. Cook

5 S.W.3d 572, 1999 Mo. App. LEXIS 1839, 1999 WL 730874
CourtMissouri Court of Appeals
DecidedSeptember 21, 1999
DocketNo. WD 53553
StatusPublished
Cited by13 cases

This text of 5 S.W.3d 572 (State v. Cook) 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. Cook, 5 S.W.3d 572, 1999 Mo. App. LEXIS 1839, 1999 WL 730874 (Mo. Ct. App. 1999).

Opinion

SPINDEN, Presiding Judge.

Harlos R. Cook appeals the circuit court’s judgment convicting him of murder in the second degree, of armed criminal action, and of assaulting a law enforcement officer. Cook contends that (1) the state violated its duty to disclose a witness before trial and that this resulted in a violation of his right to due process; (2) the circuit court erred in allowing the state to present evidence concerning Cook’s silence after his arrest; (3) the circuit court erred in not preventing prosecutorial misconduct; and (4) the circuit court erred in denying his requests to adjourn the trial at a reasonable time.

We issued an opinion on November 24, 1998, reversing Cook’s convictions and remanding to the circuit court for a new trial. We granted the state’s motion for rehearing filed on December 8, 1998, to reconsider the issue of discovery rules and sanctions for violations thereof. After reconsideration, we affirm the circuit court’s judgment.

A jury convicted Cook of killing Jennifer Henry on August 22, 1995, at about 8:00 p.m. Cook shot Henry without apparent provocation as she walked through a courtyard of a Riverside apartment complex where she and Cook lived. Cook’s defense included mental disease or defect. A jury rejected Cook’s defense and convicted him of second-degree murder, armed criminal action, and second-degree assault of a law enforcement officer.

In his appeal, Cook contends that the circuit court erred in overruling his re[575]*575quest that it sanction the state for deliberately not endorsing, and then harboring and concealing, a material witness, Lacy Mims, a state rebuttal witness. Cook contends that the state’s concealing its plans to use Mims violated his right, guaranteed by Rule 25.03, that the state inform him before trial of its evidence against him. This violated, he argues, his due process rights guaranteed by Missouri’s and the United States’ constitutions.1

The state did not endorse Mims as a witness or list him in response to Cook’s request for discovery. Cook’s attorneys learned five days before trial, on September- 25, 1996, during a deposition of the state’s rebuttal psychiatrist, John Rabun, that Rabun had discussed the case in a telephone conversation with Mims. Rabun testified during the deposition that Mims had told him that he saw Cook looking into Henry’s apartment window on the day of the shooting.

At the beginning of trial, the circuit court granted Cook’s request to preclude any references to Mims or Mims’ statements to Rabun. At that time, the state still had not endorsed Mims as a witness or provided Cook with his address or telephone number. Nonetheless, that same day, the state sent officers to Mims’ residence in Tennessee with a subpoena and an airline ticket to Kansas City. On October 1, 1996, Mims arrived in Kansas City, and the state paid for his motel stay in Platte City. The state did not tell Cook that Mims was in the area.

On October 3, 1996, the trial’s last day, the prosecutor called Mims as a rebuttal witness. Cook’s attorneys immediately objected, complaining of surprise. The circuit court refused Cook’s request that it exclude Mims as a witness or that it grant a continuance so Cook could depose Mims. The circuit court granted Cook’s request for time to interview Mims. The interview lasted about 30 minutes. When the trial resumed, Cook renewed his objection to Mims’ testimony, but the circuit court overruled it.

Rule 25.03(A)(1) requires the state to disclose the names and last known addresses of witnesses whom it intends to call at any hearing or trial if the defendant requests it and if it has the information or can obtain it. The state also must give the witness’ statements to a defendant. Compliance with this and other criminal discovery rules is not discretionary. State v. Whitfield, 837 S.W.2d 503, 507 (Mo. banc 1992). The Supreme Court said in Whitfield that the purpose for its discovery rules in criminal cases was to prevent surprise at trial: “Rules 25.03 and 25.05 clearly intend to allow both sides to know the witnesses and evidence to be introduced at trial. Rule 25.07 allows for the examination and testing of exhibits of both sides. Rule 25.12 allows the defense to depose any potential witnesses.” Id. at 508.

While compliance with these discovery rules is mandatory, violations are not reversible error unless they result in fundamental unfairness or prejudice to a defendant’s substantial rights. State v. Smothers, 605 S.W.2d 128, 131 (Mo. banc 1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1708, 68 L.Ed.2d 203 (1981). The circuit court has much latitude in determining what the remedy for a violation should be, State v. Kilgore, 771 S.W.2d 57, 66 (Mo. banc), cert. denied, 493 U.S. 874, 110 S.Ct. 211, 107 L.Ed.2d 164 (1989), but it is obligated to tailor a fundamentally fair remedy. Rule 25.16 permits the circuit court to admit the evidence if the defendant has an adequate opportunity to prepare to meet the evidence. State v. Matheson, 919 S.W.2d 553, 559-60 (Mo.App.1996). Moreover, to require the granting of a new trial, the undisclosed evidence must be “material.” State v. Kezer, 918 S.W.2d 874, 882 (Mo.App.1996). “Evidence is material, ‘only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result ... might have [576]*576been different.’” Id. (emphasis omitted) (quoting United States v. Bagley, 473 U.S. 667, 678, 106 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

Cook argues that Mims was a material witness because his testimony produced the only link between Cook and Henry. This link, he asserts, prejudiced his contention that he had no motive for shooting Henry-—that the shooting resulted from his mental disease or defect and not from deliberative thought. He said that, because Mims was a surprise witness, he did not have a sufficient opportunity to prepare adequately for rebutting or for cross-examining Mims. He complains that, at a minimum, the circuit court should have afforded him an opportunity to depose Mims.

Assuming that the prosecutor violated discovery rules, we fail to discern why the remedy fashioned by the circuit court, giving Cook time to interview Mims, was not sufficient to cure the violation. The key point of Mims’ testimony was that, before the shooting, Cook had peered into a window of Henry’s apartment. Cook’s cross examination, however, gave the jury much reason to doubt Mims’ testimony. Cook established that Mims was at work during the time in which he claimed to have seen Cook peering in the window. He also established that the state had paid Mims’ expenses in returning to Missouri to testify, that Mims was the only person who saw Cook looking into Henry’s window, that Mims did not tell the police about Cook peering in the window, and that Mims was not able to identify the window through which Cook was peering.

Cook’s cross-examination apparently negated Mims’ testimony.

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Bluebook (online)
5 S.W.3d 572, 1999 Mo. App. LEXIS 1839, 1999 WL 730874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cook-moctapp-1999.