State v. Sloan

786 S.W.2d 919, 1990 Mo. App. LEXIS 537, 1990 WL 36617
CourtMissouri Court of Appeals
DecidedApril 3, 1990
DocketNo. WD 40609
StatusPublished
Cited by8 cases

This text of 786 S.W.2d 919 (State v. Sloan) 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. Sloan, 786 S.W.2d 919, 1990 Mo. App. LEXIS 537, 1990 WL 36617 (Mo. Ct. App. 1990).

Opinion

LOWENSTEIN, Judge.

This is an appeal from Larry Sloan’s conviction for assault in the first degree, § 565.050, RSMo 1986, and unlawful use of a weapon, § 571.030.1(3), RSMo 1986. He was adjudged a prior and persistent offender and sentenced to concurrent terms of twenty and ten years imprisonment respectively. Sloan contends 1) trial court error in admitting the prior recorded statement of James Everhart, a witness for the prosecution, 2) trial court error in not granting a mistrial after the state elicited evidence of his prior criminal record, 3) trial court error in denying his Rule 29.15 motion without an evidentiary hearing, and 4) that the trial court was without jurisdiction to permit him to be tried for both assault and unlawful use of a weapon as this violated his right to be free from double jeopardy.

The sufficiency of the evidence is not in dispute, the evidence viewed in the light most favorable to the verdict is as follows: On March 27, 1987 Janice Sloan was in the process of getting a divorce from the appellant Larry Sloan. Janice lived with her daughter Sandra and grandson Kirk in a mobile home in Cameron, Missouri. That evening, Janice met her mother and Sandra in Kansas City to go shopping and returned to Cameron at approximately 8:00 p.m. While passing through town, both Janice and Sandra saw Sloan’s car. Sloan turned his car around to follow Janice and parked his car in a driveway across the street from Janice’s trailer.

Janice, her mother and Sandra went into the trailer and were joined by Janice’s sister and other grandson. At 10:30, the mother and sister left and Janice went into her bathroom to get ready for bed. She then heard a loud pop. She ran into the living room and told Sandra she thought [921]*921someone had just shot at her. Janice and Sandra took the children and crawled into the hallway.

After sitting for a while, Sandra went into the bathroom. She found a hole in the window, and the mirror was broken. She then turned out all the lights and the television and went to a nearby trailer to call the police. When Sandra returned, she noticed the time was 11:01 p.m. She looked out the window and saw Sloan’s car drive by-

The police arrived and questioned a neighbor, Mrs. Koechner, who said she had heard gun shots at around 10:45 p.m. She looked out her window and saw a dirty, medium sized car headed toward her house with no headlights on. At 1:00 a.m. the following morning, a police officer took Koechner to the Plaza Kestaurant and Lounge in Cameron where she was shown Sloan’s car. She agreed it looked like the same vehicle she saw outside her window earlier that evening. Sloan was then arrested. More facts will be provided infra.

Sloan’s first point contends trial court error in “overruling appellant’s objections to the introduction of James Ever-hart’s prior written statement ... in that the statement did not fall within the purview of § 491.074; which requires that the statement be ‘inconsistent’ with the witness’ testimony at trial, and the statement ... was duplicative of Everhart’s trial testimony and contained consistent statements which bolstered Everhart’s trial testimony and prejudiced appellant....”

Everhart and Sloan were incarcerated together in the Dekalb County Jail. Ever-hart testified that Sloan told him, “he shot at his wife and missed. That’s about all he said about that.” The prosecutor then handed Everhart a copy of a signed statement he had made to Lt. Dan Jones to refresh his memory. Everhart then further testified that Sloan said “he shot at her [Janice], trying to kill her — that he tried to harm her,” then threw the gun into the reservoir.

On cross-examination, Everhart testified that Lt. Jones did not write down everything he told him, to wit on some occasions Sloan said he did shoot at his wife and on other occasions he said he did not, and that Everhart couldn’t remember whether Sloan said he was trying to harm his wife or kill her, although Lt. Jones wrote down Sloan was trying to kill her. On redirect, Ever-hart testified that Lt. Jones left some statements out, however, he “signed it [the statement] anyway.” The state then moved to admit the prior written statement into evidence as a prior inconsistent statement, pursuant to § 491.074. Defense counsel objected, arguing Everhart did not make inconsistent statements, only additional statements which the officer did not record. The court overruled the objection and allowed the prior statement.

Some real inconsistency must appear before evidence of alleged inconsistent statements becomes competent. State v. Laux, 755 S.W.2d 315, 317 (Mo.App.1988). Whether an inconsistency exists is to be determined by the whole impression and effect of what has been said and done. State v. Dunn, 731 S.W.2d 297, 300 (Mo.App.1987). Mere isolated words or phrases, or an omission of detail, will not suffice as a basis for the necessary contradiction. Id.

The court agrees with Sloan that the trial court erred in allowing the statement to be admitted as substantive evidence. The pri- or statement of Everhart was wholly consistent with his testimony at trial; he merely added facts which, while not favorable to the prosecution, were in no way inconsistent or contradictory. Dunn, supra. The prior written statement simply bolstered and enhanced what Everhart testified to on the stand. However, the error was not prejudicial and was harmless because the prior written statement was cumulative to properly admitted testimony which fully proved the issue. State v. Ford, 753 S.W.2d 5, 7 (Mo.App.1988); State v. Ayers, 724 S.W.2d 556, 560 (Mo.App.1986); See also State v. Wright, 751 S.W.2d 48, 53 [922]*922(Mo. banc 1988). Although Sloan cites State v. Seever, 733 S.W.2d 438 (Mo. banc 1987), as dispositive, that case was concerned with a “total duplication” of testimony. Wright, supra; Ford, supra. No such duplication occurred in the instant case. Point one is denied.

Sloan’s second point claims the trial court abused its discretion in not granting, sua sponte, a mistrial after the state elicited evidence of a prior crime. He contends this was error in that, since he exercised his right not to testify, the prosecution had no right to inject his criminal record into the case.

Officer Edward Baker, who spoke with Sloan at the police station after the arrest, was called to testify for the state. When he was asked what Sloan said, defense counsel objected, attempting to prevent any mention of Sloan’s prior criminal record. The court instructed the state not to go over the complete statement. The prosecutor then again asked Officer Baker what Sloan said; the officer answered:

When I got to the station, he [Mr. Sloan] was asking who supposedly seen him shoot at the trailer. I told him that I believed his car was seen in the area, and after several times of questioning about this, he said this was it, I’m going down again, and when I get out this time, there will be — there better be none of you in Cameron because I’ll come out shooting, there will be some shooting.

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Bluebook (online)
786 S.W.2d 919, 1990 Mo. App. LEXIS 537, 1990 WL 36617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sloan-moctapp-1990.