State v. Marsh

792 S.W.2d 687, 1990 Mo. App. LEXIS 1091, 1990 WL 98567
Missouri Court of Appeals·Decided July 17, 1990·No. No. 16398·Published·Cited by 2 cases

Opinion

PARRISH, Judge.

Appellant Larry Ray Marsh was convicted of the offense of forcible rape, § 566.030,1 and burglary in the first degree, § 569.160. He appeals alleging that the trial court committed error in the following respects: (1) the trial court erred in granting a motion by the state for production of fingerprints and overruling appellant’s motion in limine to exclude testimony based upon fingerprints of appellant, and in denying appellant's motion for continuance; and (2) the trial court erred in giving Instruction Nos. 14 and 15 during the course of the jury’s deliberations following determinations that the jury had not reached agreement as to the guilt or innocence of appellant (Instruction No. 14), and, after the jury later reached agreement that appellant was guilty, that the jury had not reached agreement as to punishment (Instruction No. 15). Appellant asserts he was thereby denied due process of law and that he did not receive a fair trial. This court affirms.

A detailed recital of the evidence presented at trial is unnecessary. The following facts and circumstances, together with those stated later in this opinion with respect to the individual points raised on appeal, are sufficient to determine the issues presented.

On April 11, 1989, the state filed a motion to require appellant to produce fingerprints for analysis. The motion alleged that a set of latent fingerprints was taken from the crime scene and that those fingerprints had been matched with fingerprints of appellant that were taken in 1976. The state’s motion requested the taking of a new set of fingerprints in order to eliminate the need to call several witnesses at trial for purposes of identifying and verifying the 1976 fingerprints. The motion asserted that this procedure would simplify the issues at trial.

On the morning of April 13, 1989, the trial court sustained the motion to require appellant to produce fingerprints. The trial court ordered that the fingerprints be produced that day. The state was directed to give defense counsel an oral report regarding the comparison of the “new” fingerprints with the latent fingerprints taken from the crime scene. That oral report was to be given not later than 3:00 p.m. the same day. The state was also directed to provide defense counsel with a written report of the fingerprint comparison by noon, April 14. The trial of the case was scheduled to commence April 17.

On the morning of April 17, appellant’s counsel filed a motion entitled, “Motion in Limine — Fingerprint Comparison,” by which appellant sought to exclude any evidence of comparison of those fingerprints taken from appellant on April 13 with the latent fingerprints taken from the crime scene. After hearing oral argument, the trial court overruled that motion in limine. Defense counsel then filed an application for continuance seeking to continue the trial of the case “to secure an independent fingerprint analysis.” The trial court denied the application for continuance and advised defense counsel, “but if you wish to have a recess in the trial so that your fingerprint expert can examine them and be prepared to testify I’d be able to give you at least a one day continuance this week, probably, or a one day recess this week after we select the jury. So you can be thinking about that.”

[689] The trial court then proceeded with the trial of the case. Voir dire began. At its conclusion and after jurors were selected, defense counsel requested what she characterized as “the one day recess offered by the Court to have the fingerprints analyzed by the defendant’s own fingerprint examiner.” That request was granted and the trial was recessed until 1:30 p.m. the following day, at which time trial resumed.

Appellant’s first point on appeal is directed to the granting of the state’s motion for the production of fingerprints, the denial of his “Motion in Limine—Fingerprint Comparison” and the denial of his request for a continuance.

Rule 25.06(B)(3) permits a court to order that a defendant in a criminal case be fingerprinted. This may be done upon motion by the state. A showing of good cause is required. Upon such a showing, subject to constitutional limitations and any other safeguards the court deems appropriate, such a request may be granted.

A request to fingerprint a defendant has been granted and upheld in similar circumstances to those in this case. In State v. Smith, 726 S.W.2d 418, 420 (Mo.App.1987), latent fingerprints taken from a crime scene were matched with fingerprints previously taken from a defendant. The technician who had taken the fingerprints that were compared with the latent fingerprints from the crime scene, however, did not recognize the defendant as the person from whom he had taken the fingerprints on the prior occasion. A request by the state to take a current set of fingerprints from the defendant was granted. A current set of fingerprints was taken, and at trial both sample sets of fingerprints were admitted in evidence. There was expert testimony that the set of latent fingerprints taken from the crime scene matched both of the sample sets, the current one and the prior one. The court held that there was sufficient good cause shown for the trial court to have granted the state’s request to take the fingerprints of the defendant. Id. at 421.

Although the reasons for taking a second set of fingerprints in this case are not the exact same reasons for taking the second set in Smith, there are similarities between the cases. In both cases, latent sets of fingerprints were taken from a crime scene. In both cases, the taking of a second set of fingerprints substantiated the identification of the defendant so as to remove doubt that he was the person whose latent fingerprints were removed from the crime scene. The trial court did not err in granting the state’s motion for production of appellant’s fingerprints. The state’s showing of good cause was sufficient. Adequate safeguards were provided. Appellant’s due process rights were not violated nor did the granting of that motion deny him a fair trial.

Appellant’s next complaint, his assertion that the trial court erred in denying the “Motion in Limine—Fingerprint Comparison,” is not cognizable on appeal. The pretrial ruling on a motion in limine is interlocutory. State v. Dee, 752 S.W.2d 942, 946-47 (Mo.App.1988). “The denial of a motion in limine preserves nothing for appeal.” State v. Vincent, 785 S.W.2d 805, 808 (Mo.App.1990).

Free access — add to your briefcase to read the full text and ask questions with AI

State v. Marsh, 792 S.W.2d 687, 1990 Mo. App. LEXIS 1091, 1990 WL 98567 (Mo. Ct. App. 1990).

792 S.W.2d 687 (State v. Marsh) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Starks
820 S.W.2d 527 (Missouri Court of Appeals, 1991)
State v. Mitchell
811 S.W.2d 809 (Missouri Court of Appeals, 1991)