State v. Davis

825 S.W.2d 948, 1992 Mo. App. LEXIS 285, 1992 WL 31792
Missouri Court of Appeals·Decided February 25, 1992·No. 55801, 60209·Published·Cited by 22 cases

Opinion

STEPHAN, Judge.

Wiley Davis appeals from the judgment entered by the trial court after a jury found him guilty of two counts of second degree robbery in violation of Section 569.-030, RSMo 1986, and one count of stealing in violation of Section 570.030, RSMo 1986. The trial court found defendant to be a prior and persistent offender on all three counts, a class X offender on the two robbery counts, and sentenced defendant to two consecutive terms of twenty years’ imprisonment for the robberies and a concurrent five year term on the stealing charge for a total of forty years’ imprisonment. Wiley Davis also appeals the denial without an evidentiary hearing of his Rule 29.15 motion. We affirm the judgment and sentence of the trial court and the judgment of the court on defendant’s Rule 29.15 motion.

A detailed accounting of the evidence is not necessary since its sufficiency to support the verdict is not challenged. Defendant stole a purse from Flavella Simms outside a National supermarket in the City of St. Louis on July 1, 1987; stole a purse from Lucille Harmon outside a Big B supermarket on July 3, 1987; and stole a wallet from Lovie Haynes outside the same supermarket on July 5, 1987. Defendant also tried to cash a check drawn on Simms’ account at Normandy Bank the day after he robbed her. All three victims positively identified defendant as the culprit at trial and before trial either in a lineup or in a photo array. Based on this evidence, the jury found defendant guilty of robbery and stealing.

Defendant has raised three issues in his direct appeal. In his first point he contends the trial court erred in admitting a certain exhibit. The exhibit in question was a copy of a check drawn on the account of victim Flavella Simms. A bank teller testified that Wiley Davis had tried cashing the check at Normandy Bank on July 2, 1987, the day after Flavella Simms’ purse containing her checkbook had been stolen. At the trial, over defense counsel’s objections, a copy of this check was used in lieu of the original.

Officer Brady testified that he and his partner had seized the check from Normandy Bank, had taken it to the police station and had photocopied it. At the time of trial, the original of that check was in the possession of the Northwoods Police Department in the evidence locker of the other officer. That officer had the only key for access to his evidence locker; however, he had been temporarily reassigned to an undercover narcotics position and no longer reported in regularly to the police station.

Best evidence concerns do not bar the admission of the photocopied check. “The best evidence rule does not preclude the introduction of secondary evidence; it *951 merely embodies the law’s preference for the best available evidence.” State v. Powell, 648 S.W.2d 573, 575 (Mo.App.1983). A proponent of secondary evidence must prove three things: (1) the original is unavailable, (2) [the unavailability] is not the proponent’s fault, and (3) the secondary evidence is trustworthy. State v. King, 557 S.W.2d 51, 54 (Mo.App.1977).

In State v. Strothers, 798 S.W.2d 723 (Mo.App.1990), upon which appellant relies, the prosecutor introduced the transcript of a defendant’s taped confession. 798 S.W.2d at 724. The original tape was locked up in the police department’s evidence room and the persons with keys to that room were in another city to testify at a different trial. Id. at 725. The officer who had questioned defendant during the recording had not been asked or subpoenaed to bring the tape to court; the officer had not compared the tape with the transcript, did not attest to the transcript’s accuracy, and no evidence established the identity of who had prepared the transcript. Id. at 724-25. Based on the foregoing, the Southern District determined this evidence should not have been admitted. Id.

Unlike Strothers, in the case at bar Officer Brady testified the original check had been photocopied in his presence. No one argues that the copy is not trustworthy. However, appellant claims the first two prongs of King are not satisfied under circumstances akin to those in Strothers. Strothers suggests that the prosecutor should issue a subpoena duces tecum to retrieve evidence stored in other officers’ personal evidence locker, 798 S.W.2d at 725; otherwise, such evidence may be deemed unavailable due to the fault of the prosecutor. In Strothers, if the prosecutor had subpoenaed the tape the day before the trial, those officers who had the evidence room keys (but were out-of-town the day of trial) could have easily retrieved the tape to produce it at Strothers’ trial. Nothing in the record here shows such lack of diligence by the circuit attorney. The officer who held the keys was undercover and had been on undercover assignment for several months. Missouri courts have interpreted the second requirement — that the unavailability is not the fault of the proponent — to mean the proponent has not acted in bad faith to prevent the introduction of the original. King, 557 S.W.2d at 54.

Although the circuit attorney had disclosed the existence of the original check to defendant, nevertheless, it clearly was not available to the circuit attorney. There is no showing that he or the police acted in bad faith to prevent the introduction of the original. Appellant did not allege bad faith on the part of the police, nor did he establish the requisite fault necessary to exclude the copy. King, 557 S.W.2d at 54. Appellant’s first point is denied.

Wiley Davis complains in his second point about certain statements made by the circuit attorney during his closing argument. During rebuttal the circuit attorney remarked: “Ladies and gentlemen, the defense tells you you’re dealing with the freedom of this man. The defense wants you to let him go out the door so he can prey on other women here in the City.” Defense counsel immediately interposed an objection on the grounds that reference to possible future acts constituted improper argument. After the trial court overruled the objection, the circuit attorney concluded his argument saying: “I ask you to return a verdict of guilty on each and every count so that people like [the victims] will not be confronted by him on the streets in the city of St. Louis.”

Wiley Davis argues that these comments sought to appeal to the jury’s fears that he might later commit the same type of crimes. He states such comments were particularly prejudicial because they motivated the jury to convict him because of his potential future dangerousness.

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State v. Davis, 825 S.W.2d 948, 1992 Mo. App. LEXIS 285, 1992 WL 31792 (Mo. Ct. App. 1992).

825 S.W.2d 948 (State v. Davis) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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