State v. Duncan

397 S.W.3d 541, 2013 WL 1739720, 2013 Mo. App. LEXIS 480
CourtMissouri Court of Appeals
DecidedApril 23, 2013
DocketNo. ED 98457
StatusPublished
Cited by9 cases

This text of 397 S.W.3d 541 (State v. Duncan) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Duncan, 397 S.W.3d 541, 2013 WL 1739720, 2013 Mo. App. LEXIS 480 (Mo. Ct. App. 2013).

Opinion

INTRODUCTION

LISA S. VAN AMBURG, Judge.

Leonard Duncan (“Defendant”), appeals from the judgment entered after a jury convicted him of trafficking drugs in the second degree, Section 195.223 RSMo Cum.Supp.2001. Defendant contends, among other things, the trial court erred in permitting the State to impeach a defense witness with Defendant’s prior testimony regarding gang affiliation. Specifically, Defendant claims this was improper impeachment and he was prejudiced. We reverse.

FACTUAL AND PROCEDURAL HISTORY

Viewed in the light most favorable to the verdict, the following evidence was adduced at trial. While on routine patrol, two St. Louis City police officers observed the car Defendant was driving fail to stop at a stop sign. The officers pursued the car and Defendant pulled to the curb. Upon approaching the car, one of the officers witnessed, through the rear window, Defendant attempting to place a bag in the center console. The officer observed what he thought were drugs in the bag. The officer ordered Defendant and passenger, Ryan Richardson (“Richardson”), to exit the car. The officer retrieved a bag of what he believed to be crack cocaine from the center console and placed Defendant under arrest. The substance in the bag was determined to be 19.64 grams of cocaine base and Defendant was charged with trafficking drugs in the second degree.

Before trial Defendant filed a motion to suppress evidence obtained from searching and seizing his vehicle, contending his con[543]*543stitutional rights were violated. The court held a hearing on the motion. At this hearing Defendant denied any current gang affiliation on cross-examination but admitted to having been in a gang with Richardson when they were growing up.

Defendant did not testify at trial, however, Defendant called Richardson as a witness. The State questioned Richardson about his gang affiliation and Defendant’s admission of prior gang affiliation.

The jury convicted Defendant of trafficking drugs in the second degree. Defendant timely filed a motion for judgment of acquittal, or in the alternative, motion for a new trial alleging, among other things, the trial court erred in permitting the State to impeach Richardson using Defendant’s prior testimony at the motion to suppress hearing because it was improper impeachment. The Court denied the motion and sentenced Defendant as a prior offender to twelve years of imprisonment. Defendant appeals.

DISCUSSION

Defendant contends, among other things, the trial court erred in permitting the State to impeach a defense witness with Defendant’s prior testimony regarding his gang affiliation. Defendant claims this was improper impeachment and resulted in prejudice. We agree.

Trial courts are afforded broad discretion in determining the permissible scope of cross-examination. State v. Oates, 12 S.W.3d 307, 312 (Mo. bane 2000). We review the trial court’s admission of testimony of a lay witness for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. Elliott v. State, 215 S.W.3d 88, 93 (Mo. banc 2007); State v. Reed, 282 S.W.3d 835 (Mo. banc 2009).

Generally, a witness may be impeached by evidence that on some other occasion he made statements that were materially inconsistent with his trial testimony. Section 491.074 RSMo 2000; State v. Allison, 326 S.W.3d 81, 92 (Mo.App. W.D.2010). A party may prove a witness has made previous statements inconsistent with his testimony at trial in an effort to cast doubt on the witness’s credibility by introducing that same witness’s prior inconsistent statements. State v. Jakoubek, 619 S.W.2d 880, 882 (Mo.App. E.D.1981). To properly impeach a witness counsel must lay a foundation by asking the witness whether he made the prior statement, quoting it, and establishing the precise circumstances under which it was made. State v. Franks, 685 S.W.2d 845, 850 (Mo. App. E.D.1984).

On cross-examination the State asked Richardson whether he was in the “51 Skan block gangsters criminal street gang with the defendant.” (Emphasis added). Defendant objected, claiming the State’s question was improper impeachment, irrelevant, and prejudicial. The Court overruled his objection. Thereafter the following exchange occurred:

Q [prosecutor]: My question was are you in the 51 Skan, S-C-A-N or S-KA-N, Skan block gangsters criminal street gang with the defendant?
A: No, you’re — no sir. I stay over that neighborhood, but I’m not in that gang.
Q: Okay. Are you aware that the defendant testified under oath in an earlier hearing related to—
[Defense counsel]: Objection, your Hon- or. Improper impeachment.
THE COURT: Overruled.
Q: Mr. Richardson, are you aware that the defendant testified under oath in a prior proceeding related to this matter that you and he were both in the gang?
[544]*544A: No, I’m not aware.
Q: Does that change the answer you want to tell the jurors that you just gave?
A: I mean, I know — I mean, that’s the neighborhood I grew up in. We all friends, but, you know, I don’t look at it like I’m in a gang with them, but we all are close friends.
Q: You’re close friends with defendant, Leonard Duncan.
A: Yes, sir.
Q: You guys known each other fifteen years.
A: Yes, sir.
Q: You grew up with him in the Academy neighborhood.
A: Yes, sir.
Q: You hang out with him multiple times a week when you weren’t locked up.
A: Yes,- sir.
Q: You were hanging out with him on October'2nd, 2010, right?
A: Yes, sir.

Here, the State sought to impeach Richardson with a prior statement that was made by someone else and which did not appear materially inconsistent with Richardson’s in-trial testimony. At trial as well as in at the motion to suppress hearing Richardson consistently denied gang membership. In response to his denial at trial the State confronted Richardson with Defendant’s testimony given at the motion to suppress hearing, and in the process mischaracterized such testimony by suggesting the Defendant admitted to current gang affiliation with Richardson. Thus the court erred in overruling Defendant’s timely objections and permitting the State to improperly impeach Richardson with Defendant’s prior statement in the presence of the jury.

Although the court erred in permitting Richardson to be impeached with Defendant’s prior testimony, Defendant is not entitled to relief unless he was prejudiced.

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Cite This Page — Counsel Stack

Bluebook (online)
397 S.W.3d 541, 2013 WL 1739720, 2013 Mo. App. LEXIS 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-duncan-moctapp-2013.