State v. Haggard ( 1981 )

WELBORN, Commissioner.

Robert Haggard was convicted of robbery, first degree, §§ 560.120, RSMo 1969, and 560.135, RSMo 1975 Supp., and armed criminal action, § 559.225, RSMo 1976 Supp. The jury assessed punishment at 15 years on the robbery count and 18 years on the armed criminal action count. Judgment and sentence were entered accordingly, the sentences to run concurrently.

Appellant raises seven points of error: (1) refusal of requested continuance; (2) permitting the State to amend the information on the day of trial; (3) permitting the State to endorse a witness on the day of trial; (4) conviction for both robbery first degree and armed criminal action violated protection against double jeopardy; (5) prosecutor commented on defendant’s failure to testify; (6) the giving of Instruction No. 7, MAI-CR 2.70; and (7) allowing a witness’s previous consistent statement to be read for rehabilitation. Affirmed as to the robbery count and reversed as to the armed criminal action count.

The sufficiency of the evidence is not questioned. The jury could reasonably have found that, in March, 1978, Haggard, in the company of Kenneth Smith, Wilbur Barnett and Mark Goodman, drove a truck to a point about a quarter of a mile from Casey’s General Store in Sedalia. Haggard left the truck with a rifle and a stocking cap and walked toward the store. A short time later Haggard ran back to the truck with the gun and a paper sack containing money.

Goodman and Barnett testified that they were with Haggard during the evening. They testified that appellant obtained the rifle and they were with him when a part of the barrel and a part of the butt were sawed off. They stated that, after appellant returned to the truck with the sack of money, he divided the money with Smith and Barnett, but Goodman refused a share.

The cashier at Casey’s testified that, a little after 10:00 P.M., a man entered the store. He pulled a stocking cap over his face so she was unable to observe his full facial features. The man had a gun which she identified as similar to the one taken from Haggard’s truck after his arrest. At the man’s order she placed the money from the cash register in a paper sack which the man took and left. She testified that Haggard matched the stature of the man who had committed the robbery and the part of the face which she could see before he pulled his stocking cap down matched that part of Haggard’s face. A short time later, officers stopped Haggard’s vehicle and discovered the sawed-off rifle in it. Some $132 was recovered from Haggard and two of his companions.

Appellant contends the court erred in denying his application for a continuance. The case was removed from Pettis County to Cooper County on a change of venue. One continuance was granted to the defendant and the case was set for trial on June 12, 1978. Friday before the trial was set on Monday, Haggard’s counsel requested a continuance, stating that he had taken the depositions of three witnesses, including Barnett and Goodman, on May 31, and had received the typed copy on that day. He stated he would not have time to read the depositions to prepare for cross-examination and possible impeachment by Monday. Two of the depositions were 25 pages in length and one about seven pages. Counsel who argued for the continuance and who was to try the case had taken the depositions.

Appellant agrees an application for a continuance is addressed to the sound discretion of the trial court and that he has the burden to demonstrate that the denial of a continuance was prejudicial to his case. State v. Lane, 551 S.W.2d 900, 906[13-16] (Mo.App.1977). Here, appellant does not demonstrate any such prejudice. He merely speculates that, if counsel had had additional time to read the depositions, he might have been able to discover information which could be used as impeachment against one of the witnesses. Since the same counsel had taken the depositions about ten days prior to his appearance to request a continuance, he knew what the witnesses had said and could have conducted any investigation he desired during that time. Rather, counsel simply said he would not have time to read three very short depositions between Friday and Monday. No prejudice has been shown and no abuse of discretion has been demonstrated.

Appellant also complains of the court’s denial of his oral request for continuance, made on the day of trial. At that time, defense counsel stated that a reading of Goodman’s deposition over the weekend before the trial date had recalled to counsel the deponent’s testimony regarding his having spent one year at the Warren E. Hearnes Correctional Center. According to counsel, the deponent’s testimony gave some hint of treatment for a mental disorder, although the witness denied that he had been treated for mental disease. Counsel stated that he wanted to check the records of the witness’s stay at the institution in order to determine whether or not it might provide a basis for impeachment of the witness. He had been unable to obtain the records over the weekend.

The trial court’s refusal of a continuance on this basis was not an abuse of its discretion to which, appellant acknowledges, the request was directed. Trial counsel had heard the deposition testimony and, knowing the approaching trial date, could have pursued the inquiry before receipt of the transcript of the deposition. No showing was made that the ruling deprived defendant of evidence which might have been of value. Counsel had adequate opportunity to prepare on this issue and his assertion that the court’s ruling denied defendant assistance of counsel is without merit.

Appellant contends the court erred in permitting the State to amend the information on the day of trial to delete the words “did knowingly act together and with a common purpose of committing the acts hereinafter set out with two other individuals, and * * *.” The effect of the amendment was to charge defendant with the commission of the crimes while acting alone instead of charging that he committed them while acting with others. In State v. West, 484 S.W.2d 191, 195[4, 5] (Mo.1972), the court held there was no abuse of discretion in allowing an amendment to the information during the trial to charge that the defendant acted with others. The court held the distinction between principals and accessories has been virtually eliminated and all persons who participate in a crime may be charged, tried, convicted and punished alike. The amendment here was to delete the allegation that Haggard acted with others, but the reasoning of West applies. No additional or different offense was charged and all the elements of robbery first degree were stated in both the original and the amended information. The court did not err in allowing the amendment.

No error may be predicated upon the court’s allowing the State to endorse a witness on the day of trial. The prosecutor had previously informed defense counsel of his intention to call the witness, a police officer, and defendant’s counsel had taken the officer’s deposition. When the State requested permission to endorse the witness, defendant’s counsel replied: “I see no objection to indorsing the witness.” Such waiver and the prior knowledge of defense counsel regarding the witness precludes any finding of error in the trial court’s exercise of discretion.

Appellant contends the prosecuting attorney in his opening statement imper-missibly commented that the defendant might not produce any evidence. During his opening statement the prosecutor said: “After all the evidence has been heard, and I assume there will be eight to ten witnesses called by the State, I do not know how many called by the defendant, if any.” Appellant argues that by this statement the prosecutor was calling the attention of the jury to the defendant’s right not to testify and by this means hoped to obtain a favorable inference that the failure to testify would indicate guilt.

The prosecutor in no manner commented upon the failure of the defendant to testify, there having been no opportunity for him to do so. The statement was simply that the State had eight to ten witnesses to call and the prosecutor did not know how many, if any, witnesses the defendant might call. This was not a comment on the defendant’s right not to testify. See State v. Terry, 472 S.W.2d 426, 430[6] (Mo. banc 1971), vacated in part 408 U.S. 940, 92 S.Ct. 2876, 33 L.Ed.2d 763 (1972).

Appellant contends the court erred in giving Instruction No. 7, MAI-CR 2.70. This instruction told the jury that the defendant was charged with a separate offense in each count submitted and that each offense and the evidence and law applicable to it should be considered separately. Appellant contends because of the inter-relationship between the charge of robbery first degree and the charge of armed criminal action this instruction was confusing.

Separate instructions were given to the jury concerning the robbery and armed criminal action charges. Instruction No. 7 was required by MAI-CR in that situation. Rule 20.02(a). Instruction No. 7 read with other instructions correctly informed the jury as to the necessary elements of each offense. Appellant complains that No. 7 was confusing because it would have been impossible for the jury to isolate the evidence applicable to each charge. That is not what the instruction required. It required only that, as to each of the substantive charges, the jury find the facts required under the instruction as to each offense. The complaint against Instruction No. 7 is without merit. State v. Tilley, 569 S.W.2d 346, 348-349[4-6][7] (Mo.App.1978); Simms v. State, 568 S.W.2d 801, 804-805[4]-[7—8] (Mo.App.1978).

Appellant contends the court erred in allowing the State to read a statement Mark Goodman had given to police officers. On cross-examination Goodman was asked if he had ever told anyone that he did not know who robbed the store. Goodman denied ever making such a statement. By use of his deposition, counsel brought out that Goodman had said that he told a police officer that he did not know who had robbed the store. The police officer who took Goodman’s statement was called as a witness and was allowed, over defendant’s objection, to read the entire statement given by Goodman. There is no question the statement was given prior to the deposition testimony and there is no question that Goodman was impeached by use of his deposition. Appellant relies upon State v. Fleming, 354 Mo. 31, 188 S.W.2d 12 (1945). In Fleming the court held that a prior consistent statement could be used only to the extent necessary to counter the subject on which the witness had been impeached. The court held that matters foreign to the subject on which the witness had been impeached were incompetent and inadmissible. See also State v. Askew, 570 S.W.2d 798 (Mo.App.1978). Here, the statement given by Goodman and read to the jury covered the activities of the entire evening and was not confined to the subject matter on which he had been impeached. Therefore, the court should have confined the reading of the statement to only that portion covering the subject matter on which Goodman had been impeached.

However, even if the reading of the entire statement for purposes of rehabilitation was error, there remains the question of its prejudicial effect, if any. In State v. Degraffenreid, 477 S.W.2d 57, 64[14] (Mo. banc 1972), the court stated: “[Ejrror in the admission. of evidence should not be declared harmless unless it is so without question.” The court also stated: “We also are mindful that error which in a close case might call for a reversal may be disregarded as harmless when the evidence of guilt is strong.”

Applying these standards, the error in reading the entire statement of Goodman was harmless. There is strong evidence of guilt in this case with the testimony of Goodman and Barnett coupled with the testimony of the cashier. Further, the statement of Goodman which was read was identical to his in-court testimony and thus was cumulative. Even observing the caution noted in Degratfenreid, with reference to cumulative evidence, the admission of the statement was both cumulative and harmless.

Under Sours v. State, 593 S.W.2d 208 (Mo. banc 1980); vacated Missouri v. Sours, 446 U.S. 962, 100 S.Ct. 2935, 64 L.Ed.2d 820 (1980); on remand Sours v. State, 603 S.W.2d 592 (Mo. banc 1980), the conviction for armed criminal action cannot stand.

The judgment of conviction on Count I for robbery in the first degree is affirmed. The judgment of conviction on Count II for armed criminal action is reversed.