State v. Pollock

735 S.W.2d 179, 1987 Mo. App. LEXIS 4491
CourtMissouri Court of Appeals
DecidedJuly 31, 1987
DocketNo. 14713
StatusPublished
Cited by5 cases

This text of 735 S.W.2d 179 (State v. Pollock) 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. Pollock, 735 S.W.2d 179, 1987 Mo. App. LEXIS 4491 (Mo. Ct. App. 1987).

Opinion

GREENE, Presiding Judge.

Mickey V. Pollock was jury-tried and convicted of first degree robbery, § 569.020,1 and armed criminal action, § 571.015. The trial court, after finding Pollock to be a prior offender, due to a previous felony conviction, sentenced him to cumulative sentences of 12 and 3 years’ imprisonment for the two crimes.

Pollock appeals, contending the trial court erred in 1) denying his application for continuance, 2) denying his motion to compel discovery, 3) excluding evidence of polygraph examinations given Pollock and state’s witness Laura Jones, 4) permitting Laura Jones to testify when the prosecutor knew she had failed a polygraph test concerning the robbery, thus knowing her testimony would be perjured, and 5) allowing state’s witnesses Laura and Mitchell Jones to testify after they had remained in the courtroom, in violation of a court rule, during the presentation of the defense case in chief. We affirm.

The sufficiency of the evidence to sustain the convictions is not questioned on appeal. It suffices to say that the state introduced evidence at trial from which the jury could have found, beyond a reasonable doubt, that on May 21, 1985, Pollock and an accomplice, Kenny Caine, entered the home of Mitchell and Laura Jones, at which time Pollock produced a pistol and, through fear of force, took approximately $1,250 in cash from Mrs. Jones. Pollock’s defense was that while he and Caine were in the Jones home on the day in question, there was no robbery but, in fact, Caine had stolen marijuana from the Jones’ home and the robbery story was fabricated as revenge for the stealing of the marijuana. This defense was rejected by the jury.

In his first point relied on, Pollock claims trial court error in denying his application for a continuance. He contends such action “denied counsel the opportunity to depose two witnesses residing out of the state of Missouri whose testimony would have rebutted the credibility of the state’s main witness, Laura Jones....”

The two witnesses referred to were evidently William D. Nichols, Jr. and James Dobkowski, who were residents of the state of New Jersey. Nichols, who was Laura Jones’ cousin, and Dobkowski were visiting at the Jones home on the day of the robbery, and were allegedly asleep in an upstairs bedroom when the robbery occurred.

The criminal charges were filed against Pollock on May 24, 1985, which was three days after the occurrence in question. Pollock’s attorney was given a complete copy of the state’s investigative file on September 3, 1985. The file reflected who the state’s prospective witnesses were, and what, if anything, they knew concerning the incident. The names and addresses of Nichols and Dobkowski were listed. The record does not indicate any effort on the part of Pollock’s attorney to depose Nichols and Dobkowski before January 17, 1986, which was four days before trial.

On January 17, Pollock’s attorney gave the state notice that he intended to take the depositions of 15 possible witnesses, including Nichols and Dobkowski. On January 20, Pollock’s attorney filed an application [181]*181for the continuance in question, the pertinent portions of which read as follows:

1. That the State has endorsed as possible witnesses for the State the following individuals: William D. Nichols, Jr., 60 McCosh Road, Upper Montclair, New Jersey, James Dobkowski, 48 Sipp Avenue, Clifton, New Jersey, and Catherine Witte, Venture, West Park Mall, Cape Girardeau, Missouri.
2. That Defendant had requested the Prosecuting Attorney to produce these witnesses for depositions or for interview by the Defendant.
3. That the individuals, William D. Nichols, Jr. and James Dobkowski, were present in the alleged victim’s home approximately two days before the alleged robbery wherein the victim met the Defendant for the first time.
4. That the individual, Catherine Witte, has moved and the Prosecuting Attorney’s Office is not able to locate her nor the Defense Attorney’s Office is able to locate her.
5. That the alleged victim has since failed a polygraph in reference to the incidents surrounding the alleged robbery.
6. That the above witnesses are necessary for the defense to prepare to refute the testimony of the alleged victim.
7. That the defense has not had the time due to the short trial setting to contact the witnesses that were not produced by the Prosecuting Attorney’s Office and his rights to a fair trial would clearly be violated in that he would not be able to contact these witnesses nor subpoena them in time for the trial on the 21st day of January, 1986.

The trial court denied the motion during a pretrial conference. We gather from the comment preceding the denial that the trial judge felt defense counsel had ample time to depose the witnesses prior to trial, had he chosen to do so.

The decision of whether an application for continuance should be granted is within the broad discretion of the trial court, State v. Nave, 694 S.W.2d 729, 735 (Mo. banc 1985), and the court’s ruling on such application will not be disturbed unless it appears that the trial court acted capriciously or oppressively. State v. Stout, 675 S.W.2d 931, 935 (Mo.App.1984).

In our review of this point, we note that the application for continuance was not accompanied by an affidavit “setting forth the facts upon which the application is based.” Rule 24.09. This fact alone was sufficient reason to deny the application. State v. Counts, 693 S.W.2d 143, 144 (Mo.App.1985). In addition, we note that the trial date of January 21, 1986, was set by the court on December 5, 1985. If Pollock’s attorney thought the two prospective witnesses might have had any information helpful to his client’s defense, he had ample time to find out what it was. Further, there is nothing in the record to indicate what the prospective witnesses would have testified about. Further, Pollock did not show in his application “the materiality of the evidence sought to be obtained and the particular facts the witness will prove,” Smith v. State, 674 S.W.2d 638, 640 (Mo.App.1984), and did not allege “facts showing reasonable grounds for belief that ... testimony of such witness will be procured within a reasonable time,” State v. McLaurin, 684 S.W.2d 570, 571 (Mo.App.1984).

After considering all of these facts and the applicable law, we hold that the trial court did not abuse its discretion in denying the application for continuance.

Pollock’s second point is that the trial court erred in denying his motion to compel discovery because “the state failed to provide the defendant with certain requested information discoverable under the Missouri Rules of Discovery which may have indicated the innocence of the defendant including information concerning the identification of the defendant, knowledge of the case by law enforcement officers reduced to writing, and the names of other suspects in this case....”

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Cite This Page — Counsel Stack

Bluebook (online)
735 S.W.2d 179, 1987 Mo. App. LEXIS 4491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pollock-moctapp-1987.