State v. Minor

755 S.W.2d 318, 1988 Mo. App. LEXIS 807, 1988 WL 57066
CourtMissouri Court of Appeals
DecidedJune 7, 1988
DocketNo. 50906
StatusPublished
Cited by4 cases

This text of 755 S.W.2d 318 (State v. Minor) 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. Minor, 755 S.W.2d 318, 1988 Mo. App. LEXIS 807, 1988 WL 57066 (Mo. Ct. App. 1988).

Opinion

CARL R. GAERTNER, Judge.

Defendant, Asa Minor, was convicted by a jury of two counts of receiving stolen property over $150.00, a violation of § 570.080 RSMo 1986, and was sentenced as a persistent offender to two consecutive twelve year terms of imprisonment in 1985.

On appeal, defendant initially argued that the trial court erred in: (1) excluding defendant’s testimony of statements made to him by a police informant; (2) overruling a motion to quash the venire panel because the State used all of its peremptory challenges to remove blacks from the venire in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (8) denying defendant’s request for a continuance.

On January 13, 1987, Division Four of this court issued an opinion denying all three of defendant’s points on appeal. On the same day, however, the United States Supreme Court decided Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), which gave retroactive effect to Batson thus making Batson applicable to defendant's 1985 conviction. Consequently, Division Four withdrew its opinion and remanded the case with instructions for the trial court to hold a hearing and to make findings of fact and conclusions of law on the Batson issue. On remand, the trial court found that the State’s peremptory challenges were not invalid under Bat-son. On appeal defendant alleges that the trial court erred in this finding. We will initially address the two non-Batson points.

In 1983, the FBI, the Missouri Highway Patrol and the St. Louis City and County police cooperated to form Operation Re-crush, an undercover operation designed to infiltrate the stolen car and car parts market. As part of the operation, Detective Rozelle, a St. Louis County police officer, posed as a retagger of stolen cars and car parts.1 Detective Rozelle met appellant in June 1984 through Robert Marshall, a police informant. Thereafter, defendant and Rozelle spoke several more times about buying and selling stolen cars. These conversations were tape recorded by means of both wiretap and an on-body electronic recording device. Detective Rozelle would tell defendant he was “in the market” for a certain make of car. Defendant would then locate such a car, make arrangements to set up a purchase, have the car stolen, then sell it to Detective Rozelle a few hours after the theft. On July 18, 1984, Rozelle paid defendant $700.00 for a 1984 Cadillac. On August 16,1984, Rozelle paid defendant $500.00 for a 1983 Buick. Rozelle tape recorded these transactions. Both cars had their ignitions punched out and were reported stolen by their owners.

Defendant’s description of his association with Detective Rozelle was substantially different. Defendant testified that when Robert Marshall initially spoke with him, he did not mention stolen automobiles. Instead, defendant believed he was involved in a repossession operation for a finance company. He stated that Detective Rozelle would give him a list of cars to be repossessed and he would then give this list to Tommy Webb. When Mr. Webb had repossessed an automobile on the list, he would inform the defendant who would arrange for pickup and payment with Detective Rozelle. He asserted that he received commissions for the 1984 Cadillac and the 1983 Buick and that he did not know that the cars were stolen. His testimony also alleged that he was approached about stolen cars “later on.”

[320]*320In his first point on appeal, defendant claims that the trial court erred in excluding as hearsay his testimony of statements made to him by the police informant. The alleged hearsay basically concerned statements made by Robert Marshall to defendant as to the nature and mechanics of the repossession operation. Defendant contends that the excluded statements were not hearsay because they were offered to show his state of mind at the time of his initial involvement with the informant and to explain his subsequent conduct, not to show the truth of the statement.

The excluded statements were not hearsay because they were not offered to show that Marshall was involved in a repossession operation but to show that defendant thought it was a repossession operation; the testimony was not an out-of-court statement offered to prove the truth of the matter asserted. State v. Mallett, 732 S.W.2d 527, 536 (Mo. banc 1987). Thus, the court did err in excluding the testimony, but the error does not require reversal. Any error in excluding testimony is harmless where testimony of similar import is subsequently introduced without objection. State v. Overkamp, 646 S.W.2d 733, 735-36 (Mo.1983); State v. Foley, 629 S.W.2d 401, 403 (Mo.App.1981). The record reveals that defendant testified he was told by the informant that he was repossessing cars; he passed along information to others that a finance company wanted cars repossessed; he only passed along messages about repossessing cars; he worked from a list of cars that he believed only included cars to be repossessed. Consequently, the jury was clearly informed of defendant’s alleged belief that he was involved in a repossession operation. Because there is no prejudice, defendant’s first point is denied.

Defendant also alleges error in the court’s refusal to grant a continuance under Rule 25.16 pursuant to the State’s noncompliance with a discovery request. Prior to trial, Defendant filed a discovery request under Rule 25.03 which, in part, requests any record of statements made by defendant. The police had recorded conversations with defendant over a period of two months, some of which applied to the present action and some to related actions in St. Louis County and federal court. The State gave defense counsel only those transcripts concerning the two St. Louis City counts. During her cross-examination of Detective Rozelle at trial, defense counsel inquired whether Rozelle had worn an electronic recording device at his initial meeting with defendant. When Detective Rozelle replied affirmatively, defense counsel stated that these tapes were never disclosed, she felt they might contain information supporting a defense of entrapment, and she requested a continuance. The State replied that, although they had only given defendant the tapes relating to the present charges, counsel was free to examine any tape in their possession. The judge overruled the request for a continuance.

The trial court has broad discretion in the granting or denying of sanctions for noncompliance with discovery rules, including continuances, and its decision will not be overturned unless there was an abuse of that discretion resulting in fundamental unfairness or substantially altering the outcome of the case. State v. Johnson, 702 S.W.2d 65, 73 (Mo. banc 1985); State v. Stout, 675 S.W.2d 931, 936 (Mo.App.1984). We cannot say that the trial judge’s ruling prejudiced the defendant in any way. Defendant failed to show how the tape could have aided his case except to broadly assert that it might bolster his entrapment defense.

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Bluebook (online)
755 S.W.2d 318, 1988 Mo. App. LEXIS 807, 1988 WL 57066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-minor-moctapp-1988.