STATE OF MISSOURI,                        )
                                          )
       Plaintiff–Respondent,              )
                                          )
vs.                                       )      No. SD33566
                                          )
JAMES ROBERT CROCKER,                     )      Filed: December 9, 2015
                                          )
       Defendant–Appellant.               )

       APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY

                            Honorable Kelly W. Parker

AFFIRMED

       James Robert Crocker ("Defendant") appeals from his conviction for

second-degree murder. See § 565.021, RSMo (2000). Defendant raises two

points on appeal: (1) that the trial court erred in denying his request for a

continuance filed on the morning of trial and (2) that the trial court plainly erred

in admitting certain deposition testimony during the sentencing phase of the

trial. These claims are without merit, and we affirm the trial court's judgment.
                    Factual and Procedural Background

       Defendant owned a house and some property next to the Meramec River

and maintained two keep-out signs on the property near the river. On July 20,

2013, Defendant encountered a group of canoers who had stopped on a sand bar

near Defendant's property. Although no one in the group went past the posted

keep-out signs, Defendant told them that they were trespassing and demanded

that they leave. Ultimately, Defendant shot one of the canoers in the face, killing

the man instantly. Subsequently, the county surveyor took measurements at the

scene and determined the incident occurred at a location approximately 50 feet

from the river and 381 feet beyond Defendant's property line.

       Defendant was charged with one count of second-degree murder. The

prosecution filed motions to endorse additional witnesses on February 6, 2014,

on March 18, 2014, and on April 8, 2014. One of the witnesses included in those

motions was Gerald Carrell ("Mr. Carrell"). Although defense counsel received

notice, defense counsel did not appear at either of the hearings regarding the

prosecution's motions, and the trial court sustained the motion to endorse Mr.

Carrell.

       On Monday morning before trial, defense counsel filed a motion for

continuance. In that motion he argued he needed more time to prepare to meet

Mr. Carrell's testimony because the prosecution had not disclosed the content of

Mr. Carrell's proposed testimony until the Friday prior to trial. The trial court

denied the motion for continuance, and Defendant was tried by a jury on May 12

through May 14, 2014. Mr. Carrell testified during the prosecution's rebuttal case

stating that Defendant told Mr. Carrell that Defendant was ex-military and "that

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if he pulls his gun he's going to use it." The jury found Defendant guilty as

charged. During the penalty phase, the prosecution again used Mr. Carrell's

testimony, this time by reading portions of Mr. Carrell's deposition into the

record.

       The jury recommended a sentence of 25 years in the Department of

Corrections. The trial court sentenced Defendant in accordance with the jury's

recommendation, and Defendant appeals.

                              Point I: Continuance

       In his first point, Defendant argues the trial court erred when it denied his

motion for continuance because defense counsel did not have sufficient time to

investigate Mr. Carrell or his testimony in light of the late disclosure of the

content of Mr. Carrell's proposed testimony. This claim is without merit.

       The following additional facts are relevant to this claim. The parties

discussed Defendant's motion for continuance at length at the pretrial conference

on the morning of trial. Defense counsel stated that he had received an email

from the prosecutor regarding Mr. Carrell's proposed testimony only the Friday

before trial was to begin and that he could not view the content of the proposed

testimony because a link in the email did not work. The prosecutor explained

that he had not been able to talk with Mr. Carrell earlier because Mr. Carrell had

pending criminal charges and was represented by counsel. The prosecutor also

explained he had forwarded the information regarding the proposed content of

Mr. Carrell's testimony to defense counsel by both fax and email as soon as the

State had received it. The prosecutor further stated he did not plan to use Mr.

Carrell's testimony in his case in chief but would only use Mr. Carrell as a rebuttal

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witness if Defendant testified. Defense counsel continued to object, stating that

he wanted to set up a deposition and that he wanted to know whether the

prosecution had arranged a plea agreement with Mr. Carrell. The prosecutor

denied any plea agreement with Mr. Carrell.

        Ultimately, the trial court stated it did not believe there had been a

discovery violation because the prosecutor had forwarded the information as

soon as it had become available and because the defense had knowledge that Mr.

Carrell would be a witness since at least as early as April 8, 2014. The trial court

denied the motion for continuance. The trial court further ordered that the

prosecution could not mention Mr. Carrell in opening statement or in its case in

chief. The trial court also ordered the prosecuting attorney to work with defense

counsel to arrange for a deposition of Mr. Carrell sometime before Mr. Carrell

would be called as a witness. A deposition was taken one evening during the

course of the three-day trial. Both attorneys received a transcript of the

deposition testimony the next morning before Mr. Carrell testified.

        We begin our analysis by noting that Defendant's claim as regards this

point is not preserved for appellate review because his motion for new trial was

not timely filed.1 See Rule 29.11(b);2 State v. Shinn, 420 S.W.3d 619, 628 (Mo.

App. S.D. 2013). "Plain error review is used sparingly and is limited to those


1 In an attempt to avoid this conclusion, Defendant cites State v. Henderson, 468 S.W.3d 422
(Mo. App. S.D. 2015), in support of his argument that the State waived compliance with the time
limits of Rule 29.11(b) when the prosecutor stated he had no objection to the trial court’s
consideration of Defendant’s untimely motion. However, Henderson is factually
distinguishable from the present case. In Henderson, the trial court indicated a reluctance to
consider the untimely motion, and the prosecution “twice pressed the trial court to consider the
untimely Brady [v. Maryland, 373 U.S. 83 (1963)] claim.” Id. at 425. That is, Henderson
was decided on principles of invited error, rather than waiver. Id. Here, in contrast, the
prosecutor did not urge the trial court to commit error, but merely stated no objection.
2 All rule references are to Missouri Court Rules (2015).

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cases where there is a clear demonstration of manifest injustice or miscarriage of

justice." State v. Parker, 208 S.W.3d 331, 334-35 (Mo. App. S.D. 2006). Plain

error review involves two steps. Id. at 335. First, the court determines "whether

there is, indeed plain error, which is error that is 'evident, obvious, and clear.'"

Id. (quoting State v. Roper, 136 S.W.3d 891, 900 (Mo. App. W.D. 2004)). If

such error appears, the court moves on to the second step in which the court

"considers whether a manifest injustice or miscarriage of justice has, indeed,

occurred as a result of the error." Id. (quoting Roper, 136 S.W.3d at 900).

       The trial court in this case did not plainly err in denying Defendant's

motion for continuance because the trial court provided sufficient remedies for

the prosecution's disclosure of the proposed content of Mr. Carrell's testimony.

The rules for discovery in criminal cases require the prosecution to disclose many

things, including any statements of the defendant which the State intends to use

at trial. Rule 25.03(A)(2). Where a party fails to comply with the discovery rules,

"the court may order such party to make disclosure of material and information

not previously disclosed, grant a continuance, exclude such evidence, or enter

such other order as it deems just under the circumstances." Rule 25.18.

       Here, the trial court correctly found there was no discovery violation

because the prosecution provided the information to the defense as soon as it

became available to the prosecution. See State v. Deason, 240 S.W.3d 767, 774

(Mo. App. S.D. 2007) ("Rule 25.03 imposes no obligation on the State to disclose

evidence that it does not possess."). Nevertheless, the trial court, in an

abundance of caution, ordered an appropriate remedy for Defendant. The State

was prohibited from using the information in its case in chief, and the defense

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was given the opportunity to depose Mr. Carrell before the State would be

permitted to use any of Mr. Carrell's testimony. Similar measures have been

found sufficient to remedy any problems caused by untimely disclosures by the

State. See, e.g., State v. Carlisle, 995 S.W.2d 518, 521-22 (Mo. App. E.D.

1999); State v. Cartwright, 17 S.W.3d 149, 154 (Mo. App. E.D. 2000); State

v. Merrick, 677 S.W.2d 339, 343 (Mo. App. E.D. 1984).

       The trial court did not plainly err in denying Defendant's motion for

continuance. Defendant's first point is denied.

                    Point II: Sentencing Phase Evidence

       In his second point, Defendant claims the trial court plainly erred in

allowing the prosecutor to read portions of Mr. Carrell's deposition into evidence

during the sentencing phase of trial because that evidence was hearsay. Although

Defendant is correct that the evidence was hearsay, reversal is not warranted

because Defendant failed to prove manifest injustice or miscarriage of justice as

Mr. Carrell testified during the guilt phase of trial regarding the same matter.

       The following additional evidence is relevant to the disposition of this

claim. During the penalty phase after presenting victim impact evidence, the

prosecutor announced his intention to read portions of Mr. Carrell's deposition

testimony into the record. Defendant objected to the reading of Mr. Carrell's

deposition because it was hearsay and because Mr. Carrell had "been available all

week." The prosecutor responded that the deposition was sworn testimony and

that "in sentencing it doesn't matter if it's hearsay." The trial court overruled the

objection.



                                          6
       The prosecutor read the following testimony from Mr. Carrell's deposition

regarding statements Defendant made to Mr. Carrell. When Mr. Carrell asked

Defendant if Defendant would have done anything differently, Defendant said,

"[h]e would make sure he shot all of them that way there wouldn't be any

witnesses." Defendant told Mr. Carrell "he's a military man and if he pulls his

gun he's going to kill somebody." Defendant also told Mr. Carrell "he would do it

again" and he would "always protect his property and his rights."

       Defendant concedes this claim is not preserved for appellate review

because Defendant did not include the claim in his motion for new trial, and

Defendant requests a plain error review. See State v. Bryant, 362 S.W.3d 46,

50 (Mo. App. S.D. 2012). As stated above, plain error review involves a two-step

analysis. State v. Thurman, 272 S.W.3d 489, 496 (Mo. App. E.D. 2008). "The

first step of this analysis is to determine whether the asserted claim of plain error

facially establishes substantial grounds for believing a manifest injustice or

miscarriage of justice has occurred." Id. Only where such grounds are found to

exist should the court continue to the second step of the analysis in which the

court considers "whether manifest injustice or a miscarriage of justice has

actually occurred." Id.

       Regardless of whether this evidence should have been admitted,

Defendant has failed to meet his burden of showing prejudice, much less the

manifest injustice or miscarriage of justice that he must demonstrate to succeed

under plain error review. "If hearsay testimony is erroneously admitted, the

admission does not require reversal unless the defendant was prejudiced as a

result." State v. Tindle, 395 S.W.3d 56, 63 (Mo. App. S.D. 2013). "A defendant

                                          7
is not prejudiced by hearsay testimony that is merely cumulative of evidence

already before the trial court[.]" Id. (quoting State v. Atkeson, 255 S.W.3d 8,

11 (Mo. App. S.D. 2008)). "Indeed, 'prejudice will not be found from the

admission of hearsay testimony where the declarant was also a witness at trial,

testified on the same matter, and was subject to cross-examination because the

primary defects in hearsay testimony are alleviated."' Id. (quoting State v.

Steele, 314 S.W.3d 845, 850 (Mo. App. W.D. 2010)).

      In the present case, Mr. Carrell was present and testified at the guilt phase

of this trial before the same jury which determined punishment. He testified

regarding precisely the same matter covered in the deposition, i.e., Defendant's

statements regarding the incident at issue. To the extent that some of the

statements included in the deposition varied from those presented during the

guilt phase, Defendant had an opportunity to impeach Mr. Carrell during the

guilt phase, and did so by showing Mr. Carrell was facing serious felony charges.

      Even though the trial court incorrectly admitted Mr. Carrell's deposition

during the penalty phase, the admission of Mr. Carrell's deposition did not result

in manifest injustice or a miscarriage of justice. Defendant's second point is

denied.

                                    Decision

      The trial court's judgment is affirmed.



MARY W. SHEFFIELD, C.J. – OPINION AUTHOR

DANIEL E. SCOTT, P.J. – CONCURS

JEFFREY W. BATES, J. – CONCURS

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