State v. Davis

556 S.W.2d 45, 1977 Mo. LEXIS 251

• Court: Supreme Court of Missouri
• Decided: September 27, 1977
• Docket: 59850
• Status: Published

Opinions

RENDLEN, Judge.

This cause was transferred here after opinion by the Court of Appeals, Kansas City district, under Rule 83.02. The Court of Appeals identified issues of constitutional construction falling within the exclusive appellate jurisdiction of the Supreme Court by virtue of Mo.Const. Art. V, § 3, as amended 1976, and properly ordered the transfer. Defendant, tried and convicted under the Second Offender Act for stealing more than $50, was sentenced by the circuit court of Jackson County to four years imprisonment.

Two assignments of error are raised in this appeal. Defendant first contends the trial court erred in failing to strike the jury panel because Missouri’s jury selection process, Mo.Const. Art. I, § 22(b) and § 494.031(2), RSMo Supp. 1975,¹ systematically excludes women from jury service and is therefore unconstitutional, citing Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). State v. Duren, No. 59914, 556 S.W.2d 11 (Mo.banc 1977), decided concurrently with the case at bar,' upheld the challenged constitutional section and its implementing statute which permit women the privilege of declining jury service and that decision is dispositive of this defendant’s sex-based challenge to the facial validity of the cited sections.

The remaining aspect of defendant’s contention concerns the results of the Jackson County jury selection process. In this regard defendant has failed to demonstrate that criminal venires in the county were not “representative of the community” and were “almost totally male” as those constitutional standards were described in Taylor. During the week of defendant’s trial, 350 persons were summoned as jurors in Jackson County and of that number 99 (28%) were women. Of the 154 who appeared, 23 (15%) were women. Defendant’s panel of 28 included 6 (21%) women and one sat as a juror. No statistical data pertaining to the percentage of women in the community population or any information showing gender distribution of venires for periods prior to or following the week of trial were offered. The proof does not support the contention of systematic sex-based exclusion and the first assignment of error is denied.

Defendant next contends the trial court erred admitting certain state’s exhibits which though requested prior to trial under Rule 25.32 had not been made available to defense counsel for inspection. The incident precipitating criminal charges against him occurred when defendant and his wife entered Macy’s department store in Kansas City on the evening of November 8, 1974. The store security manager observed them in the linen section putting double bed sheets and satin pillowcases into shopping bags and concealing the bags between display beds on the floor. Defendant and his wife left the linen department to visit the budget section of the store and at this point the manager, Mr. Wilk, called Mr. Taylor, a security officer, informed him of the incident and showed him the hidden bags of merchandise. Subsequently the couple returned, retrieved the bags and without paying, exited onto the parking lot where they were apprehended by Wilk and Taylor. The stolen property was delivered to the Kansas City Police Department where it was held until trial.

Soon after the information was filed defense counsel served a request for discovery under Rule 25.32, stating “The Defendant, . requests the following within 10 days and/or throughout the duration of this cause: . . . (6) Any . . . objects which the State intends to introduce into evidence at the hearing or trial or which were obtained from or belong to the Defendant”. The stolen articles were admitted in evidence over defendant’s objection and testimony as to value was adduced from Macy’s buyer who had purchased the items for the store. The wholesale value of each package of pillowcases was $4.75 or $47.50 for the lot, plus 20 packages of sheets at $7.50 wholesale, totaling $150.00 or a grand total of $197.50 for all items stolen. Defendant offered no evidence but contends the trial court erred admitting the exhibits because the state had failed to produce them for examination prior to trial, effectively denying him the opportunity to show the value of the stolen goods was less than $50.00, which could have defeated the felony charge and have avoided conviction under the Second Offender Act.

Rule 25.32(A)(6) provides that on written request the state shall disclose to defendant’s counsel “objects, which the state intends to introduce into evidence at hearing or trial or which were obtained from or belong to the defendant”. The state argues that because defendant knew the state held the stolen materials and because defendant had photocopied the state’s file, this sufficed to meet the disclosure requirements of the Rule. This narrow construction is in-consonant with Rule 25.32(C) which in particular situations requires the items be “made available to defense counsel” and Rule 25.36 which provides that “Unless otherwise ordered by the court, disclosure under Rules 25.32 through 25.35 shall be: . (B) By the party making disclosure notifying opposing counsel that the material and information to be disclosed may be inspected, obtained, tested, copied or photographed at a specified time and place and whether suitable facilities are available.” The court under Rule 25.40 may issue protective orders to control the manner, place and time for such procedure.

While defendant by virtue of his request was entitled to inspect the proposed evidence, during opening statement the prosecuting attorney explained the stolen merchandise had been in the control of the police department and he had no authority “to take them out” prior to trial. This appears counter to the requirement of Rule 25.32(C) that if the requested material is “in the possession or control of other governmental personnel, the state shall use diligence and make good faith efforts to cause such materials to be made available to the defense counsel . . . .” The state was under a continuing duty to make the materials available for defense counsel’s inspection. It strains credulity to believe the prosecutor could not have obtained the items from the police department prior to trial and yet with apparent ease produce them for presentation in evidence. However, it was defendant’s responsibility to call this failure to the court’s attention and request appropriate orders under Rule 25.45 for disclosure of the material, exclusion of the same from evidence, for continuance or other relief. Defendant served his request for discovery within a week following filing of the information. During the ensuing four months he pursued discovery photocopying pertinent portions of the state’s file and was aware the stolen merchandise had not been made available for inspection, yet he sought no orders requiring disclosure or other relief under Rule 25.45 nor for subpoenas duces tecum as provided by Rule 25.19. Neglecting these procedures, defendant now contends preparation of his defense was thwarted by the state’s noncompliance with the request for discovery.

While it seems the state’s action (or inaction) is violative of Rule 25.32, exclusion of the evidence not produced for inspection was a matter for the trial court’s discretion and defendant has shown no error in the exercise of that discretion, State v. Moten, 542 S.W.2d 317 (Mo.App.1976); State v. Johnson, 524 S.W.2d 97, 101 (Mo.banc 1975), or that the failure to produce resulted in fundamental unfairness or prejudice to the substantial rights of the defendant requiring reversal under Rule 84.-13(b). See United States v. Cole, 453 F.2d 902 (8th Cir.), cert. denied 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972); State v. Gibson, 502 S.W.2d 310 (Mo.1973); State v. Smith, 534 S.W.2d 604 (Mo.App.1967). The unrebutted testimony of two witnesses to the wrongful taking was coupled with the fact of defendant’s apprehension outside the store with the stolen property in his possession. Testimony of the items’ value came from Macy’s purchasing agent who bought the merchandise and personally knew its wholesale price. Defendant argues that if he had inspected the articles he might possibly have developed credible testimony that the 30 items (10 satin pillowcases at $4.75 per package and the 20 double bed sheets at $7.50 per package) were of a value less than $50.00 or approximately ¼ of the wholesale price. We are asked to regard the loss of this possibility as a basis for reversible error though defendant sat by during the four months prior to trial ignoring available procedures to force the desired inspection. Defendant appeared content to proceed with trial, object to the evidence when offered and if overruled, claim error in the event of an unfavorable verdict. Such oversight or trial strategy should not serve as a basis for reversal. We are also mindful as stated in State v. Degraffenreid, Mo., 477 S.W.2d 57, 65, “that error which in a close case might call for reversal may be disregarded as harmless when the evidence of guilt is strong.” Because the evidence of guilt was strong and the alleged violation in the discovery proceedings could have readily been corrected by timely action of defendant, we find nothing requiring reversal.

The judgment of the trial court is affirmed.

MORGAN, C. J., and HENLEY, FINCH and DONNELLY, JJ., concur. SEILER, J., dissents in separate dissenting opinion filed. BARDGETT, J., dissents and concurs in separate dissenting opinion of SEILER, J., except as to the female juror issue.

1 . The questioned constitutional section and statute are in pertinent part: Mo.Const. Art. I, § 22(b) — “No citizen shall be disqualified from jury service because of sex, but the court shall excuse any woman who requests exemption therefrom before being sworn as a juror.” § 494.031, RSMo Supp.1975 — “The following persons shall, upon their timely application to the court, be excused from service as a juror, either grand or petit: ... (2) Any woman who requests exemption before being sworn as a juror; . . . .”