In the instant case, we find that Officer Booker's testimony would have been cumulative to that of Officer Wessel's. Booker could only have reiterated the same facts reported by Wessel, i. e., the search, discovery of the drugs, the arrest for possession, receiving the pills from Wessel and later packaging them at the police station. For a similar instance wherein a police officer was held to be equally available to both parties see State v. Benson, 574 S.W.2d 440, 443 (Mo.App. 1978). The trial court has broad discretion in controlling the argument of counsel, State v. Williams, 546 S.W.2d 54, 55 (Mo.App. 1976), and in determining whether the facts and preparation efforts of the litigants warrant an invocation of the inference that the witness not called would have testified unfavorably to the State, State v. Benson, 574 S.W.2d at 442; State v. Ganaway, 556 S.W.2d at 70.
ARNOLD, Circuit Judge. Robert Benson was convicted in May 1976 in the Circuit Court of Jackson County, Missouri, of assault with intent to kill with malice aforethought. He was sentenced to life in prison, and his conviction was affirmed on direct appeal. State v. Benson, 574 S.W.2d 440 (Mo.App. 1978). Benson filed a motion under Missouri Supreme Court Rule 27.26 in the Jackson County Circuit Court, seeking post-conviction relief, arguing that he was deprived of a jury drawn from a fair cross-section of the community because women were systematically excluded from jury panels at the time of his trial.
It is interesting, as well, to look at cases in which the defendant was prevented from arguing the state's failure to call a witness. In both State v. Ganaway, 556 S.W.2d 67 (Mo.App. 1977) and State v. Benson, 574 S.W.2d 440 (Mo.App. 1978), the court of appeals upheld the trial court's issuance of a protective order preventing defense counsel from remarking on the state's failure to call a police officer as a witness. The Ganaway court, cited with approval in Benson, declared:
Such evidence provides no basis for a withdrawal instruction. State v. Baker, 607 S.W.2d 153 (Mo. banc 1980); State v. Benson, 574 S.W.2d 440 (Mo.App. 1978). Judgment reversed as to Count I (robbery); affirmed as to Count II (murder).
The prejudice to defendant outweighed any harm that would have resulted had defendant's request for continuance been granted. The state, in contending the trial court did not abuse its discretion in permitting Ms. Bollinger to be endorsed as a witness and denying defendant's request for continuance, cites cases in which late endorsements of witnesses were not held to be abuses of discretion: State v. Hibler, 21 S.W.3d 87, 93 (Mo.App. 2000); State v. Downen, 3 S.W.3d 434, 437 (Mo.App. 1999); State v. Stamps, 865 S.W.2d 393, 398 (Mo.App. 1993); State v. Benson, 574 S.W.2d 440, 443 (Mo.App. 1978); State v. Dodson, 572 S.W.2d 188, 189 (Mo.App. 1978). None of these cases involved the prejudicial effect that DNA evidence threatens due to its technical and persuasive nature when a defendant does not have an opportunity to seek evidence from other experts that might rebut it.
However, he recognizes there are exceptions to that general proposition, including the admissibility of such evidence to establish a motive. See State v. Benson, 574 S.W.2d 440 (Mo.App. 1978). That was the theory upon which the state offered and the court admitted the evidence in question.
In addition, it should be pointed out that at the time of his arrest, appellant had been driving the stolen Monte Carlo and just prior to his being physically subdued, he threw a .38 caliber handgun into some bushes in the immediate area of his arrest. There is authority for the admission of such evidence under a general precept that "a weapon found in the possession of an accused, or of his criminal associates, even if not identified as the weapon actually used in the commission of the crime, is admissible if similar in form and character to the one used," quoted in State v. Benson, 574 S.W.2d 440, 442 (Mo.App. 1978), citing also State v. Cuckovich, 485 S.W.2d 16 (Mo. banc 1972). State v. Benson, supra, also stands for the rule that identification of a weapon need not be wholly unqualified to make it admissible.