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Potts v. State7/18/2000
owing of absolute compliance with the statutory forms, the State did not present "the best evidence of the maintenance and calibration reports." It is unclear whether, by this argument, Mr. Potts is trying to raise a separate argument that the court erred in admitting this evidence because it should have been excluded under the best evidence rule. If so, he has failed to preserve it for appeal, since it is not mentioned in his Point Relied On and no authorities are cited in support of it. Rule 84.04. However, even had it been properly preserved, this argument would be without merit. As this Court has previously noted:
n proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. McCormick on Evidence, Sec. 230 (4th ed. 1992). Chevalier v. Director of Revenue, 928 S.W.2d 388, 391-92 (Mo. App. W.D. 1996).
When the issue is whether a secondary copy can be admitted, the trial court may receive such secondary evidence if the original is unavailable and there is not a concern that the copy is not an accurate reproduction of the original. Id.; State v. O'Dell, 649 S.W.2d 504, 507 (Mo. App. S.D. 1983).
In this case, evidence was adduced at trial that the original document had been inadvertently sent to the Department of Health, and, although sought after, had been either discarded or misplaced, rendering it unavailable. In addition, there is no allegation by Mr. Potts that the copy admitted into evidence was anything but an accurate photocopy of the original. Thus, admission of the photocopied document at issue in the instant case did not violate the best evidence rule.
It is well-settled that counsel may not be adjudged ineffective for failing to raise an argument that has no merit. See, e.g., State v. Dreiling, 830 S.W.2d 521, 526 (Mo. App. W.D. 1996). For the reasons stated, we find that the issue which Mr. Potts alleges his counsel should have raised was meritless. Accordingly, Mr. Potts has failed to establish that he received ineffective assistance of counsel on the direct appeal of his conviction. For this reason, we affirm.
Separate Opinion:
None
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