State v. Gibson

760 S.W.2d 524, 1988 Mo. App. LEXIS 1380, 1988 WL 101955
CourtMissouri Court of Appeals
DecidedOctober 4, 1988
DocketNo. 53812
StatusPublished
Cited by6 cases

This text of 760 S.W.2d 524 (State v. Gibson) 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. Gibson, 760 S.W.2d 524, 1988 Mo. App. LEXIS 1380, 1988 WL 101955 (Mo. Ct. App. 1988).

Opinion

KAROHL, Presiding Judge.

Defendant, Darrell Gibson, appeals after he was convicted by a jury of two counts of sexual assault in the first degree, Section 566.040 RSMo 1986, eight counts of deviate sexual assault in the first degree, Section 566.070 RSMo 1986, one count of sexual assault in the second degree, Section 566.-050 RSMo 1986, and one count of deviate sexual assault in the second degree, Section 566.080 RSMo 1986. The court followed the recommendation of the jury and sentenced defendant to three two-year sentences, nine one-year sentences, and fines totaling $1,500. Several of the sentences run concurrently for a total term of imprisonment of eight years.

The jury found that defendant sexually assaulted his stepdaughter, the daughter of his wife by a former marriage. The stepdaughter, the complaining witness, was born on March 12,1970. Two counts of the amended information alleged crimes which occurred on November 14, 1985; eight counts alleged crimes which occurred between April 1, 1985 and March 11, 1986; and, two counts alleged crimes which occurred between June 1, 1986 and September 1, 1986. The complaining witness was the only occurrence witness to the sexual assaults. Accordingly, her credibility was the central issue in the trial. We consider one decisive claim of error involving exclusion of a witness whose only evidence would have been testimony that the complaining witness told her that her complaints were false.

Defendant argues the trial court erred when it excluded the testimony of M.G., defendant’s daughter and half sister of the complaining witness. M.G. was two years younger than the complaining witness. The court excluded this testimony because the witness in question violated a sequestration order when she sat in the courtroom and heard some of defendant’s testimony. The trial court had ordered the sequestration of witnesses during pre-trial motions in response to the state’s request to “invoke the rule.” The state endorsed M.G. as a witness. Defendant, by adoption, also had endorsed M.G. as a witness.

The trial began on July 21, 1987. The state concluded its evidence on July 22, 1987. The defendant called two witnesses who completed their testimony on July 22, 1987. The next day the defendant called five witnesses who completed their testimony during the morning of July 23, 1987. Defendant began his testimony before the noon recess. Immediately after the recess the state made an oral motion to prohibit defendant from calling M.G. as a witness. In a technical sense the motion was premature because defendant was still in the [526]*526process of testifying and defendant had not called M.G. as a witness. Before the trial began counsel for defendant told the court, with respect to the testimony of M.G., “I was under the impression that he [the prosecutor] was going to call [M.G.]. If he doesn’t call her, I certainly intend to call her.” The prosecutor, in support of his motion, stated that a few moments before he had been informed that M.G. had been in the courtroom before the noon recess and during defendant’s testimony. The prosecutor told the court that allowing M.G. to testify after violation of the rule of sequestration would be prejudicial and improper. Defense counsel questioned how the state might be prejudiced and informed the court that he had not decided whether or not to call M.G. as a witness. The state did not respond and never explained how the violation of the exclusion order could or would be prejudicial. The court then announced, “[y]ou are not going to call her. The motion is sustained.” Defense counsel then made a formal offer of proof as follows:

[Defense Counsel]: I might make another record. During the course of the state’s case, particularly when we have been upstairs here, the State’s witnesses have been seated right outside the door. I believe that it’s very easy to hear all of the testimony that is occurring from right outside the door. Not withstanding that, if called to testify M.G. would testify that [the complaining witness] told her that she is not telling the truth with respect to the accusations that pertain to this defendant.”

The court did not conduct a hearing to consider the allegation that witnesses were able to hear the proceedings in the courtroom from outside of the courtroom and therefore the asserted violation did not change anything or create a problem. This would bear on the issue of prejudice if M.G. did, in fact, enter the courtroom during the testimony of defendant but could have heard the testimony from just outside the courtroom. The offer of proof on this point was not refuted in the record. Further, there was no hearing to determine whether any testimony given by the defendant could have a bearing on the nature of the testimony of M.G. Finally, there was no hearing to consider evidence from which the court could find that the defendant or defendant’s counsel were aware that M.G. was in the courtroom, if she was, or that defendant or defendant’s counsel in any manner were responsible for her appearance. During the argument on defendant’s motion for new trial the court indicated it’s belief that M.G. was “brought in” by defendant or his counsel. However, the court stated this “belief” was irrelevant because it excluded the testimony solely because M.G. heard some of defendant’s testimony and was of impressionable age.

Defendant’s offer of proof demonstrated that M.G. was a crucial defense witness. It also indicated that her testimony involved a single incident which did not include defendant and was not and could not have been the subject of defendant’s testimony, a private conversation with the complaining witness. It asserted that M.G. would have testified that her half sister confessed to her that the charges made against defendant were false. This contradicted and challenged the credibility of the only occurrence witness.

As a general rule, a court should encourage, not discourage, the introduction of relevant factual data. A criminal trial is a search for truth, and this search can be distorted when relevant information is withheld. No limitation should be put on the admissibility of relevant evidence “unless it is clearly demanded by some specific important extrinsic policy.” 8 Wigmore, Evidence, Section 2175 (McNaughton rev. 1961).

It is well established that a court may order witnesses excluded from a hearing so that they cannot hear the testimony of other witnesses. The enforcement of the rule for exclusion of witnesses, as well as the decision whether to exclude the testimony of a witness who has violated the rule, has been held to rest within the sound discretion of the court. [Citations omitted.] It has also been held that if a witness violates the rule without the consent, connivance or procurement of the [527]*527party or counsel calling him it is an abuse of the court’s discretion to exclude the testimony of the witness. The rationale being that to rule otherwise would allow a hostile witness to deprive a party of their testimony. State v. Shay, 339 S.W.2d 799 (Mo.1960).

Cozad v. Crane School Dist. R-3, 716 S.W.2d 408, 412-413 (Mo.App.1986) See, State v. Lord, 286 S.W.2d 737, 741 (Mo.1956).

The scope of the court’s discretion to exclude the testimony of a witness has been considered in numerous cases.

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Bluebook (online)
760 S.W.2d 524, 1988 Mo. App. LEXIS 1380, 1988 WL 101955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gibson-moctapp-1988.