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June 28, 1983


From the Circuit Court of Washington County; Criminal Appeal; Judge Stanley J. Murphy.

Motion for Rehearing Overruled, Transfer Denied August 1, 1983. Application to Supreme Court for Transfer Denied September 20, 1983.

Before Steward, P.j., Stephan, Crandall, JJ.

The opinion of the court was delivered by: Stephan

Defendant Robert Sumpter appeals from his convictions of attempted robbery in the first degree and first degree burglary. Defendant was sentenced in accordance with the verdict to consecutive sentences of fifteen and ten years. The judgment is affirmed.

On Sunday, April 13, 1980, at approximately 12:10 p.m., Michael McCarver, his mother, Barbara McCarver, and his grandmother Rose Ragan, were inside their second floor apartment in Flat River, Missouri. The apartment is across the hall from the office of Dr. James L. Kehoe, D.O. When they heard someone's voice on the stairs, Mrs. Ragan opened the apartment door. A man, whom the jury could conclude from the evidence was the defendant, entered the McCarver apartment; in his hand was a medium size, black automatic pistol. He asked for keys to Dr. Kehoe's office. Defendant then ordered Michael McCarver and Mrs. Ragan to lie face down on the kitchen floor. Defendant held the gun to Michael's head and told him not to get any ideas or he would kill Michael, and then he kicked Michael. Defendant ordered a second man to kick in Dr. Kehoe's door. He then ordered Michael and Mrs. Ragan into Dr. Kehoe's office, and directed them to lie down on the office waiting room floor. Defendant again threatened Michael, and kicked Michael in the ribs. Meanwhile, the second man removed drugs and medicines from a refrigerator in Dr. Kehoe's office, and placed them in pillow cases.

Barbara McCarver, who had remained in the apartment, phoned the police and the hotel where her husband, James McCarver, and his brother, Reginald McCarver, were working. Responding to the telephone calls, Officer Rawson of the Flat River Police Department as well as Reginald and James McCarver came to the scene. Rawson entered Dr. Kehoe's office while defendant was still there, causing him and his accomplice to flee through a window and escape across an adjacent metal awning. An unsuccessful chase ensued. Examination of the office a few minutes later revealed three pillow cases full of boxes and bottles of drugs abandoned near the refrigerator. Defendant was arrested some weeks later. As indicated above, the testimony concerning identification warranted a jury finding that defendant was the man who held the gun on Michael McCarver during the break-in and attempted robbery.

Defendant's first point is that the trial court erred in denying defendant's motion to dismiss because under § 545.780, RSMo 1978, the speedy trial statute, delay was excessive. The section in question generally requires that trial in a criminal case must commence within 180 days of a not guilty plea on arraignment, subject to exclusion of delays occasioned by the defendant. Defendant contends on appeal that for purposes of § 545.780, time is counted from the date of his first arraignment (July 18, 1980) until trial (March 10, 1981). According to defendant's computations, 235 days elapsed from that arraignment to trial. Defendant further argues the state entered a nolle prosequi thereby causing a second arraignment to occur, in an attempt to bypass the speedy trial statute. This argument is based on the fact that the first and second indictments focus on the same series of events and involve an identical first degree burglary charge. We disagree with defendant and hold that the 180 day statutory mandate has not been violated.

At the outset we note that Count I of the original information filed on June 20, 1980, charged robbery in the first degree of a gold plated stethoscope. After that information was nolle prossed on October 23, 1980, and the cause dismissed pursuant to the trial court's order, a second information was filed on December 1, 1980. Count I of that information charged attempted robbery of drugs from the office of Dr. Kehoe. No mention was made of the stethoscope. These two crimes are indeed different offenses; and, in its order denying defendant's motion to dismiss, the trial court found that there was no bad faith on the part of the state in the filing of the nolle prosequi and the filing of the second information. However, because Count II of each information charged the same offense and all charges arose out of the same events on April 13, 1980, we indulge defendant in his argument that the statutory 180 days began to run on the date of his first arraignment, July 18, 1980. *fn1

By its own terms, § 545.780 excludes from the 180 day period delays occasioned by hearings on pretrial motions, change of venue, and periods of up to thirty days when any proceeding concerning the defendant is under advisement. From the legal file, we note that defendant filed a motion for a change of venue on July 7, 1980. At the time of his first arraignment, July 18, 1980, the motion was granted and the cause was received in Madison County on July 24, 1980 (6 days). On July 24, 1980, defendant filed a motion to suppress statements against interest which he withdrew on September 4, 1980, upon certain assurances being made to him by the prosecutor (42 days). Upon waiving his second arraignment, defendant filed another motion for a change of venue on December 5, 1980. The motion was granted, and the case was received in Washington County on December 15, 1980 (10 days). Without discussing other delays which are arguably chargeable to the defendant, the exclusion of the foregoing periods, totaling 58 days, compels the Conclusion that the first day of the trial, March 10, 1981, was within 180 days of the first arraignment. This point is ruled against defendant.

Defendant's next point is that the trial court erred in not granting a mistrial when it was brought to his attention that the jury had with them during their deliberations an exhibit which had been marked but not admitted into evidence. The item in question, Exhibit No. 11, was a Xerox copy of a driver's license showing the picture of one Paul Hedrick. Reginald McCarver had testified that Hedrick was one of the men he had unsuccessfully pursued from the crime scene. When the exhibit was offered in evidence, defense counsel objected to it, saying, "I don't know what purpose this has." The objection was sustained. Nevertheless, it appears that the exhibit was carelessly left among the admitted exhibits and taken inadvertently by the jury into the jury room during their deliberations. Defendant claims this was improper, and we agree. Defendant does not explain how this impropriety prejudiced him, other than to argue and cite cases holding that it is prejudicial to permit a jury "to use improper evidence in their deliberations." With this broad statement we also agree, but we note that the operative word is "use." We do not perceive how the jury in this case could have used a copy of a driver's license photograph of a person other than defendant to convict the defendant. Furthermore, the photograph had been described to the jury by Police Chief Thurmond as a copy of a photograph of Hedrick which had been shown to Reginald McCarver; and, as indicated, McCarver testified that the photograph was that of one of the persons he saw leaving the scene. Although the photograph served to place Hedrick at the scene, it could have had no effect on the jury's determination that defendant was there. We conclude that the mere presence of the item in the jury room could not have prejudiced the defendant. Cf. United States v. Bishop, 492 F2d 1361, 1365 (8th Cir. 1974), cert. den. 419 U.S. 833 (1974).

Defendant's next assignment of error is that the trial court erred in allowing the state to endorse Robert Ward as a witness on the day of trial and in failing to grant a continuance because of the late endorsement. Aside from the fact that defendant did not request a continuance when the subject of the late endorsement was raised and did not object when Ward testified, it is obvious that Ward's testimony had miniscule impact on the trial of the case and that it clearly came as no surprise to defendant. Ward testified that he was the State Department of Revenue fee agent for St. Francois County and that his duties included titling automobiles and selling license plates. He testified that he issued 1979 truck license plates numbered PJ8-803 to one Tyler Norton and that he also issued passenger auto license YFK-630 to defendant's wife for a 1972 Toyota, With a certain vehicle identification number, and that the same vehicle was later titled in the names of both defendant and Mrs. Sumpter. All of this title and license information had previously been placed before the jury by means of self admitting, certified copies of records of the Department of Revenue. See § 302.312, RSMo 1978. Furthermore, the prosecuting attorney represented to the trial court in a pretrial conference that the identity of the witness and the substance of his expected testimony had been revealed to defense counsel at least fifteen days before trial; defense counsel did not deny the assertion.

Defendant, nevertheless, now argues for the first time on appeal that the state's failure to make formal disclosure violated Rule 25.03 and warrants reversal. Defendant objected to the endorsement of Ward in the pretrial conference and in his motion for new trial on the grounds that it was "untimely," in apparent reference to Rule 23.01, which mandates endorsement of material witnesses for the prosecution on the indictment or information. That rule specifically excepts from the endorsement requirement "witnesses wh0 will appear upon the trial for the production or identification of public records . . ." Rule 23.01(f). Ward's testimony was limited to the contents of the public records of the Department of Revenue discussed above; and, as such, Ward was within the excepted class of witnesses. See State v. Janes, 601 S.W.2d 680 (Mo. App. 1980). Defendant did not assert to the trial court a claim of a violation of Rule 25.03 at the time of the endorsement or in the motion for new trial. Such failure would justify our refusal to review the issue as not having been properly preserved. Rule 29.11.

We again indulge defendant, however, and consider his claim that the late disclosure that the state intended to call Ward was not in compliance with Rule 25.03. Although the salutary intent of that rule should be scrupulously protected by the courts, noncompliance by the state does not compel reversal of a conviction as a disciplinary measure against the state where the conviction is the result of a fair trial. State v. Smothers, 605 S.W.2d 128, 132 (Mo. banc 1980). At most, the state in this cause was mildly remiss, if at all, in formal compliance with the rule. The defendant was not surprised by the appearance of Ward or his testimony. The testimony itself constituted nothing more than a recitation of the contents of the previously admitted documents relating to the identificati0n of defendant's automobile and Norton's truck. In addition, we note that, even before the license records were admitted and Ward testified, Officer Rawson had testified that when he was responding to the report of the crime in progress he saw Tyler Norton in "his" (Norton's) pickup truck, license number PJ8-803, in the vicinity of the crime. When Rawson first saw Norton, the pickup was parked with the engine running. After Norton waved to Rawson, Norton left the area at a high rate of speed. Rawson further testified that approximately thirty minutes later he observed the same truck and a Toyota automobile regularly used by defendant parked near Norton's home. Rawson's testimony that the Toyota was defendant's was a matter of Rawson's own knowledge. Ward's testimony as the local Department of Revenue fee agent added nothing to the state's case of which the jury was not aware.

In light of all of these factors, it is clear that defendant's claim of error arising out of the late endorsement of Robert ...

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