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State v. Brown5/25/1999
al court declare a mistrial. Instead, he effectively impeached Corporal Simmons regarding the change in testimony. He now asks that we find that the trial court erred in not sua sponte offering remedies that Brown himself did not request.
The prosecution was in error in instructing the witness to sign the transcript without noting the changes. This error was apparently in good faith. We fault the prosecution, however, for not informing the defense of Corporal Simmons' change in testimony. " party intending to use an expert witness at trial must disclose the fact that the witness has changed his opinion. . . ." City of Joplin v. Flinn, 914 S.W.2d 398, 401 (Mo. App. 1996). Let us be clear about the fact that there is a duty on the part of a litigant not to intentionally mislead the other side. However, while we admonish the prosecution for this lapse, we do not believe the state's breach of this duty of disclosure entitles Brown to a new trial. State v. Davis, 556 S.W.2d 45, 48 (Mo. banc 1977). Reversal is required only where "the . . . testimony could . . . in any reasonable likelihood have affected the judgment of the jury." Napue v. Illinois, 360 U.S. 264, 271 (1959). Whether the defendant was prejudiced by the state's failure to disclose depends on the nature of the charge, the evidence presented by the state and the role that the non-disclosed evidence would likely have played, had it been disclosed. State v. Dayton, 535 S.W.2d 469, 478 (Mo. App. 1976).
Here, the defense would have already been aware of an inconsistency in Corporal Simmons' testimony because the accident report that Corporal Simmons prepared after the accident stated that the skid mark in question was caused by the left rear tire of Mr. Perry's car. Brown had been furnished a copy of this report. Brown, presumably, was already prepared to cross-examine Simmons concerning this contradiction with his deposition testimony. The testimony of the witness at trial concerning the location of the Perry vehicle at the time of collision allowed an effective impeachment and cross-examination. Nothing in the record indicates that the impeachment would have been any more effective for the defense if the defense had had advance notice of the change. Indeed, the failure of the prosecution to mention it before trial may have enabled the defense to gain more momentum from the trooper's change in testimony.
It is not the trial court's function to help counsel try their cases; consequently, a trial Judge should act sua sponte only in exceptional circumstances. State v. Drewel, 835 S.W.2d 494, 498 (Mo. App. 1992). We do not believe that this case is such an "exceptional circumstance." Because Brown's own counsel did not respond to the change in Corporal Simmons' testimony with a request for exclusion, a continuance or a mistrial, we cannot say that it was error for the trial court not to sua sponte order the same. Point VI is denied.
Conclusion
For all the foregoing reasons, Brown's convictions for second degree murder,
section 565.021.1(2), and second degree assault, section 565.060.1(4), are affirmed.
Separate Opinion:
None
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