State v. Thomas

965 S.W.2d 396, 1998 Mo. App. LEXIS 547, 1998 WL 117762
CourtMissouri Court of Appeals
DecidedMarch 18, 1998
Docket21813
StatusPublished
Cited by13 cases

This text of 965 S.W.2d 396 (State v. Thomas) 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. Thomas, 965 S.W.2d 396, 1998 Mo. App. LEXIS 547, 1998 WL 117762 (Mo. Ct. App. 1998).

Opinion

SHRUM, Judge.

Daniel Thomas (Defendant) was convicted by a jury of two counts of burglary in the second degree (both Class C felonies) in violation of § 569.170 1 and one count of burgla *398 ry in the first degree (a Class B felony) in violation of § 569.160. The court found Defendant was a prior and persistent offender under § 558.016 and § 557.036. As punishment, Defendant was ordered to serve concurrently two twenty-year terms and one thirty-year term in the department of corrections.

On appeal, Defendant presents three points: (1) the trial court erred in allowing late endorsement of a prosecution witness and overruling a motion for continuance in response to the late endorsement; (2) the trial court erred in sua sponte failing to instruct the jury to disregard or sua sponte declare a mistrial in response to certain cross-examination testimony; and (3) the trial court erred in barring defense impeachment of a prosecution witness. We affirm.

FACTS

Defendant does not challenge the sufficiency of the evidence.

On September 30, 1996, a burglary occurred at Harmon Glass in Joplin, Missouri. Entry to the building was apparently gained by removal of an air conditioner. Two fax machines, a tool box, glass cutting tools, and large suction cups used in the handling of glass were stolen from Harmon Glass.

On October 1,1996, a burglary occurred at a home on Wisconsin Street in Joplin. Burglars entered the house after cutting a kitchen window in the area of the window’s lock. The burglars took $1,422 in cash from a wallet inside the house. The owner of the home was present but slept through the burglary and theft.

On October 12, 1996, a burglary occurred at Parkview Animal Hospital in Joplin. All of the cabinets in the building were ransacked. Several drugs, surgical instruments, a stethoscope, and $50 were taken from the animal hospital. While the burglars could have entered the building by breaking glass on the front door, there was evidence that a former employee still possessed a key to the building.

Defendant was arrested and eventually charged with burglaries at Harmon Glass, the Wisconsin Street house, and Parkview Animal Hospital. At Defendant’s trial, Mindi MeCaslin and John North testified for the prosecution. MeCaslin, a former consort of Defendant, was not involved in these crimes. However, she had pending against her a stealing charge in Newton County. As to North, he testified after reaching a plea agreement in which he entered a guilty plea to three felony charges. The testimony of MeCaslin and North constituted the only evidence that directly linked Defendant to the three burglaries.

For five weeks MeCaslin lived with Defendant, John North, Donny Adams, Cecil Hopkins, and others at a house on Kentucky Street in Joplin. During this five-week period, MeCaslin was romantically involved with Defendant. MeCaslin ended her relationship with Defendant and moved out of the Kentucky Street house on October 24,1996.

MeCaslin testified that she saw Defendant dressed all in black and wearing gloves on the night of the burglary at the Wisconsin Street house. MeCaslin and Defendant took a drive that same evening. As they passed the Wisconsin Street house, Defendant told MeCaslin that he and John North had come from that home. He also told MeCaslin that the occupant of the house slept through the burglary, that he had made a triangular shaped cut in a window, and that he had stolen cash from a wallet inside the house. During this drive, Defendant also admitted burglarizing Harmon Glass. After the drive with Defendant, MeCaslin saw glass cutting tools and suction cups in the Kentucky Street house.

MeCaslin testified that the night of the Parkview Animal Hospital burglary Defendant, John North, and Cecil Hopkins dressed themselves all in black and put on gloves. MeCaslin said Defendant told her that he and the others had keys to the animal hospital given to them by a former employee. MeCaslin said that sometime later Defendant told her about items taken from the animal hospital. She also stated she saw some of the items taken from Parkview Animal Hospital.

MeCaslin testified that John North, Donny Adams, and Defendant gave her money to *399 rent a storage unit. She further testified that Defendant and Cecil Hopkins retained keys to the storage unit McCaslin eventually took police to the unit and gave them permission to search. Police discovered items stolen from Harmon Glass in the storage unit.

Prosecution witness John North was endorsed by the State the day before trial. North testified that he helped Defendant and others in the Harmon Glass and Parkview Animal Hospital burglaries. He denied any involvement in the Wisconsin Street home burglary.

Defendant was convicted of two counts of second degree burglary and one count of first degree burglary. He was sentenced to two 20-year terms of imprisonment and one 30-year term of imprisonment all to run concurrently. This appeal followed.

DISCUSSION AND DECISION

Point I: Late Endorsement and Motion for Continuance

Defendant’s first point on appeal contends the trial court abused its discretion by allowing the late endorsement of John North and denying Defendant’s motion for a continuance.

Rule 23.01(f) 2 allows the State to endorse additional witnesses after “notice to the defendant upon order of the court.” A trial court enjoys broad discretion in allowing the late endorsement of witnesses. State v. Sweet, 796 S.W.2d 607, 613[9] (Mo.banc 1990). In determining whether a trial court abused this discretion, an appellate court will consider the following factors: (1) whether the defendant waived the objection; (2) whether the State intended to surprise the defendant or acted deceptively or in bad faith intending to disadvantage the defendant; (3) whether the defendant was, in fact, surprised and suffered disadvantage; and (4) whether the type of testimony given might have been readily contemplated by the defendant. Sweet, 796 S.W.2d at 613; State v. Stokes, 638 S.W.2d 715, 719[2] (Mo.banc 1982). The main consideration is whether the late disclosure of witnesses resulted in fundamental unfairness or prejudice to substantial rights of the defendant. State v. Banks, 922 S.W.2d 32,40[9] (Mo.App.1996).

Defendant did object to the late endorsement. However, nothing in the record shows intention on the State’s part to surprise Defendant with North’s testimony. Further, there is no evidence of bad faith or deception by the State. The record does not show surprise or disadvantage. Finally, Defendant cannot show that North’s testimony was not readily contemplated.

Defendant and North once were co-defendants. Defendant was aware that North had negotiated a plea agreement with the State and entered a plea the week before Defendant’s trial.

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Bluebook (online)
965 S.W.2d 396, 1998 Mo. App. LEXIS 547, 1998 WL 117762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thomas-moctapp-1998.