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06/20/83 STATE MISSOURI v. FLOYD BROWN

June 20, 1983

STATE OF MISSOURI, PLAINTIFF-RESPONDENT,
v.
FLOYD BROWN, JR., DEFENDANT-APPELLANT.



From the Circuit Court of Laclede County; Criminal Appeal; Judge John E. Parrish.

Before Flanigan, P.j., Greene, C.j., Titus, Crow, JJ.

The opinion of the court was delivered by: Flanigan

A jury found defendant Brown guilty of rape, § 566.030 *fn1 and burglary iM the first degree, § 569.160, and he was sentenced to consecutive terms of 15 years for the rape and 5 years for the burglary. Defendant appeals.

Defendant's first point is that the trial court erred in permitting state's witness Renee Bennett to testify, over defendant's objection, concerning the contents of a statement which the defendant gave to the witness three days following the rape. The essence of the statement was that the defendant had intercourse with the victim on August 10, 1981, the date of the alleged offense, but did so with her consent. Defendant claims that the statement was obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

It is unnecessary to consider the respective and conflicting contentions of the parties as to whether defendant was in fact deprived of his Miranda rights. Fatal to defendant's first point is the fact that defendant, testifying in his own behalf, told the jury the same version of the incident which the challenged statement contained. Accordingly, if there was error in receiving witness Bennett's testimony, the error was harmless beyond a reasonable doubt. State v. Crow, 486 S.W.2d 248, 252[2] (Mo. 1972); State v. McGee, 447 S.W.2d 270, 275[7] (Mo. banc 1969); State v. Ryder, 598 S.W.2d 526, 527[4] (Mo. App. 1980); State v. Darris, 587 S.W.2d 89, 91[6] (Mo. App. 1979). Defendant's first point has no merit.

Defendant's second point, according to defendant's brief, is "completely dependent" upon the validity of his first point. Defendant's second point falls with his first.

Defendant's third point is that the trial court erred in permitting the state to endorse on the information the name of an additional witness, Oather King, and in permitting him to testify for the state.

The burden is on defendant to provide this court with a record on appeal which contains all of the proceedings and evidence necessary to the determination of his appellate contentions. Rule 30.04(a) and (r). State v. McClain, 602 S.W.2d 458 (Mo. App. 1980).

Neither the record on appeal nor defendant's brief states the date on which the endorsement was made, although defendant's brief does say that leave was granted "at the pre-trial conference" to make the endorsement. The record does not disclose the date of the pre-trial conference. The record does not contain any objection by defendant to the endorsement.

At the time the witness testified the defense made no objection to his testimony. During lengthy cross-examination by defense counsel, the witness answered "Yes" to this question: "Now, Mr. King, I was in the bedroom with you the other day, wasn't I?" The bedroom was that of the witness who lived across the street from the house of the victim. King testified that he could see the victim's porch from his bed and that, contrary to defendant's testimony, no one was on the porch at the time defendant claimed to have been there with the victim. The cross-examination was aided by counsel's familiarity with King's vantage point.

The record does not show the date when defense counsel became aware of the witness' inclusion in the state's list of witnesses. *fn2 The record shows that defense counsel, who effectively cross-examined, had interviewed him at least one day in advance of the trial. Defendant's third point has no merit.

Defendant's fourth point is, in essence, a re-statement of his third point and is also invalid.

Defendant's fifth point alleges the trial court improperly restricted defense counsel's cross-examination of the victim. During that ...


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