Opinion
No. WD53553
OPINION FILED: November 24, 1998
APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY, THE HONORABLE WARD B. STUCKEY, JUDGE.
Sean O'Brien, Mo. Capital Punishment R.C., 5319 Rockhill Road, KCMO 64110, for appellant.
Philip Koppe, Attorney General Office, 3100 Broadway, Suite 609, KCMO 64111, for respondent.
Before Paul M. Spinden, Presiding Judge, Robert G. Ulrich, Judge, and Edwin H. Smith, Judge.
Harlos R. Cook appeals the circuit court's judgment convicting him of murder in the second degree, of armed criminal action, and of assaulting a law enforcement officer. Cook contends that the state violated its duty to disclose a witness before trial which resulted in a violation of his right to due process. We agree, so we reverse the circuit court's judgment and remand the case for a new trial.
Cook shot Jennifer Henry on April 22, 1995, at about 8:00 p.m. without apparent provocation as Henry walked through a courtyard of an apartment complex in Riverside where she and Cook lived. Cook's defense included mental disease or defect. The circuit court ordered a psychiatric evaluation. A jury rejected Cook's defense and convicted him of second-degree murder, armed criminal action, and second-degree assault of a law enforcement officer.
In his appeal, Cook contends that the circuit court erred in overruling his request that it sanction the state for "deliberately failing to endorse, and then harboring and concealing, material witness[,] Lacy Mims," a state rebuttal witness. Cook contends that the state's concealing its plans to use Mims violated his right, guaranteed by Rule 25.03, that the state inform him before trial of its evidence against him. This violated, he argues, his due process rights guaranteed by Missouri's and the United States' constitutions.
See MO. CONST. art. I § 10 (1945), and U.S. CONST. amend. XIV.
Cook argues that Mims was a material witness because Mims' testimony produced the only link between Cook and Henry. This linkage, he asserts, prejudiced his contention that he had no motive for shooting Henry — that the shooting resulted from his mental disease or defect and not from deliberative thought. He said that, because Mims was a surprise witness, he did not have a sufficient opportunity to prepare adequately for rebutting or for cross-examining Mims. He complains that, at a minimum, the circuit court should have afforded him an opportunity to depose Mims.
Rule 25.03(A)(1) requires the state, if requested by a defendant, to disclose information in its possession or control, including the names and last known addresses of witnesses whom it intends to call at any hearing or trial. The state also must share with a defendant the witness' statements. Compliance with this and other criminal discovery rules is not discretionary. State v. Whitfield, 837 S.W.2d 503, 507 (Mo. banc 1992).
When the state violates discovery rules, the circuit court has much latitude in determining what the remedy should be, State v. Kilgore, 771 S.W.2d 57, 66 (Mo. banc), cert. denied, 493 U.S. 874 (1989), but it is obligated to tailor a fundamentally fair remedy. The Supreme Court pointed out in Whitfield, 837 S.W.2d at 508, that it intended for its rules to prevent surprise at trial: "Rules 25.03 and 25.05 clearly intend to allow both sides to know the witnesses and evidence to be introduced at trial. Rule 25.07 allows for the examination and testing of exhibits of both sides. Rule 25.12 allows the defense to depose any potential witnesses."
Mims was a state rebuttal witness who testified that he saw Cook looking into a window of Henry's apartment between 3:00 p.m. and 4:00 p.m. on the day of the shooting. This was the only evidence suggesting that Henry was more than a chance victim of Cook's shooting. During closing argument, the state emphasized Mims' testimony as establishing a link between Cook and Henry and that Cook had the culpable mental state for first degree murder.
The state did not endorse Mims as a witness or list him in response to Cook's request for discovery. Cook's attorneys did not learn until September 25, 1996, during the deposition of the state's rebuttal psychiatrist, John Rabun, that the state had found Mims. Rabun testified during his deposition that Mims telephoned him and said that on the day of the shooting he had brushed up against Cook and had felt a gun in Cook's waistband. Rabun also said that Mims had told him that, just before the shooting, Mims saw Cook looking into Henry's apartment window. Rabun said that this information was important because he used it in reaching his conclusion that Cook was not suffering a mental disease or defect which excluded responsibility when he shot Henry.
At the beginning of trial, the circuit court granted Cook's request to preclude any references to Mims or Mims' statements to Rabun. At that time, the state still had not endorsed Mims as a witness or provided Cook with his address or telephone number. Nonetheless, that same day, the state sent officers to Mims' residence in Tennessee with a subpoena and an airplane ticket to Kansas City. On October 1, 1996, Mims arrived in Kansas City, and the state paid for his motel stay in Platte City. The state did not tell Cook that Mims was in the area.
On October 3, 1996, the last day of trial, the prosecutor called Mims as a rebuttal witness. Cook's attorneys immediately objected, complaining of surprise. The circuit court refused Cook's request that it exclude Mims as a witness or grant a continuance so Cook could depose Mims. The circuit court granted Cook's request for time to interview Mims. The interview lasted about 30 minutes. When the trial resumed, Cook renewed his objection to Mims' testimony, but the circuit court overruled it.
The state argues that, because Mims was a rebuttal witness, it was not required to identify him as a witness before calling him at trial. While this is generally correct, the Supreme Court has ruled that due process requires an exception in cases in which a defendant relies either on the defense of alibi or mental disease or defect. State v. Curtis, 544 S.W.2d 580, 582 (Mo. banc 1976) (relying on Wardius v. Oregon, 412 U.S. 470 (1973)). The Supreme Court concurred with the reasoning of the United States Supreme Court in Wardius: "It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State." Id. (citing Wardius, 412 U.S. at 476). The state was obligated to disclose its potential use of Mims as a rebuttal witness.
The state justifies its failure to disclose on the ground that it had difficulty finding Mims. Even so, the state does not justify its remaining mute when it discovered Mims' whereabouts five days before trial. Clearly, the state concealed Mims' whereabouts after it brought him to Kansas City two days before he testified. The only reasonable explanation for its actions is that it intended to surprise Cook.
The state also attempts to excuse its discovery rule violation by asserting that Mims was not called to rebut the defense of mental disease or defect but to rebut notions that he had not "targeted her as a victim prior to the shooting, i.e., that the killing might [not] have been deliberate." This is a distinction without a difference. The defense of mental disease or defect excuses responsibility for otherwise criminal conduct because the actor "was incapable of knowing and appreciating the nature, quality or wrongfulness of his conduct." Sections 562.086.1 and 552.030.1, RSMo 1994.
The state also argues that, even if it was obligated to disclose its intent to use Mims, its not doing so did not prejudice Cook because the jury found Cook guilty of second-degree murder, not first-degree murder. The state asserts that the jury obviously rejected its theory that Cook deliberated before shooting Henry. The state also argues that the circuit court's giving Cook time to interview Mims sufficiently cured its failure to disclose because Cook obviously was effective in discrediting Mims' testimony on cross-examination. It notes that Cook established that the state had paid Mims' expenses in returning to Missouri to testify, that Mims was the only person who saw Cook looking in Henry's window, that Mims did not tell the police of Cook's peering in the window, that Mims was not able to identify which window he saw Cook peering into, and that Cook's employment time card showed that Cook was at work when Mims claimed to have seen Cook looking in the window.
The lack of deliberation is what distinguishes second-degree murder from first-degree murder. State v. Santillan, 948 S.W.2d 574, 576 (Mo. banc 1997).
Cook counters that the state's surprise presentation of Mims hampered his ability to impeach or rebut Mims' testimony in several material ways. He complains that he did not have time to depose Mims to assist him in impeaching his testimony, to determine whether the bush in front of Henry's window was there on the day of the shooting, to investigate whether Mims had spoken with a reporter about the murder, or to have court-appointed experts consider the effect of Mims' testimony on their findings. Had the state properly disclosed Mims as a witness, Cook argues that he would have been able to impeach Mims' prior inconsistent statements relating to timing of events, to seeing Cook's gun, and as to whether Cook was saying a "Muslim chant" while looking in Henry's apartment.
Rabun was the only medical expert among seven who opined that Cook did not experience a psychotic episode which rose to the level of mental disease or defect excluding responsibility when he shot Henry. Rabun based his opinion partly on the reports of others, including Mims, concerning Cook's conduct on the day of the shooting. Mims was a material witness and his testimony affected the trial's outcome.
The state violated its obligation to disclose Mims as a witness, and the circuit court erred in not providing Cook an appropriate remedy. We, therefore, reverse the circuit court's judgment and remand the case for a new trial.
Robert G. Ulrich, Judge, and Edwin H. Smith, Judge, concur.