State v. Goodman

738 S.W.2d 470, 1987 Mo. App. LEXIS 4154

• Court: Missouri Court of Appeals
• Decided: June 2, 1987
• Docket: No. WD 37570
• Status: Published

Opinions

GAITAN, Judge.

This is a direct appeal from a jury conviction for kidnapping, in violation of § 565.-110, RSMo 1978 and sodomy, in violation of § 566.060.1(1), RSMo Supp. 1984. The judgment is reversed and remanded.

Defendant presents a sole point which, in summary, charges that the trial court erred in permitting the prosecution, over objection, to cross-examine defendant by using testimony from other trials involving other crimes. Defendant requested a mistrial because the testimony used did not fall into any recognized impeachment category and because no proper foundation was laid for the use of said testimony.

Defendant does not challenge the sufficiency of the evidence. Consequently, it is unnecessary to go into a detailed restatement of the facts. A summary shall suffice.

About 3:00 p.m. on February 17, 1985, the victim, D.M., a twenty year-old single female student at the University of Missouri, left her apartment to walk to a nearby 7-11 to purchase cigarettes. As she approached the 7-11 store, she observed a dark blue automobile approaching her from the rear. She thought it was a friend of hers. She proceeded to the 7-11 store, purchased the cigarettes, and started to walk home. The same automobile approached her again from the rear, crossed in front of her, and pulled into a local school parking lot. The victim, thinking the person in the automobile was a friend, approached the automobile. Due to the glare of the sun on the windows, she could not see the occupant clearly. She opened the passenger door and then realized that the occupant was not the friend she thought was in the automobile. At this point, defendant grabbed her arm and pulled her inside the automobile. He held onto her arm, drove to a nearby isolated area, and forced the victim to commit an act of oral sex upon him. He then drove the victim back to the 7-11 store.

Defendant testified that the victim flagged him down and suggested they get “high”. Defendant not only denied forcing the victim to perform the sodomy act, but stated that she was the aggressor and committed the act on him voluntarily. It had been determined previously that defendant was a persistent offender. He had one prior conviction for rape. During cross-examination, over objection, defendant was asked certain questions about the details of the events to which he testified during his direct testimony. That cross-examination begins as follows:

Q. Let me see if I have down right what you are saying. You were driving down the street and Donna is the one that flagged you down?

A. Yep.

Q. She immediately suggested smoking a joint? Those were the first words out of her mouth; is that right?

A. No. She said did I want to get high.

Q. Well, same. What did you take that to mean?

A. Smoke a joint.

******

Q. Started fondling you, and then she proceeded to perform oral sex without your asking; is that right?

A. Yeah.

Q. Does this happen to you quite a bit? A. No.

Q. Doesn’t happen to you, girls force themselves on you and force you into sexual acts?

A. Nope.

The prosecutor went further in his cross-examination to ask:

Q. Have you ever told stories about other girls doing that?

A. Nope.

Defense counsel then objected stating he believed the prosecutor was going to attempt to use a transcript from a prior case and that this testimony would be “totally inadmissable as far as any type of questioning.” Defense counsel further stated in his objection:

I think if he is going to go into that questioning any farther as far as telling that story, if he can supply us with the source it came from. I would object to its admissibility to begin with and request the Court admonish Mr. Moseley, instruct Mr. Moseley not to bring out the circumstances of any prior statements made.

The prosecutor then delved into this area further by asking:

Q. Okay. Again directing your attention to a statement you made on June 21 about a May 1981 incident. ‘She got in and asked her — I asked her did she mind having music on because I turned on my radio. And she said, “No, I don’t mind.” She said, “Fire it up.” I said, “Fire up what?” And she said, “A joint.’” Do you remember making that statement?

A. I missed the question. You said ’81?

Q. Uh-huh. It was a May 1981 incident that you are talking about, and this statement that you made on June 21 of ’82. Do you remember making that statement?

A. I can’t remember offhand.

Q. Okay. It doesn’t sound familiar?

A. Not offhand.

Q. How about later the same date, June 21, ’82, about a May incident?

A. This is ’82 or — I thought you siad [sic] ’81.

Q. Making the statement in ’82 about something that happened in ’81. Does that sound familiar?

A. No, it don’t.

Q. Okay. Later on that same date there was a question asked of you. ‘Okay. You got to the stop sign. What happened after that?’ And you answered, ‘Well, I kept going straight because I asked right or left.’ ...

At this point defense counsel objected on the grounds that the prosecutor wasn’t laying a proper foundation. The court overruled the objection.

Q. Start again with this second part of the statement. The question. “Okay. You got to the stop sign. What happened after that?” Answer: “Well, I kept going straight because I asked, ‘Right or left?’ And she said ‘Straight ahead.’ So I went straight on. She said straight ahead, so I went straight on up.” The question: “What happened next?” Answer: “Well, while I was going down a little bit and stopped over a hill or something and all of the sudden she said, ‘Turn.’ I said, ‘Turn where?’ She said, ‘Turn.’ And I turned. There was a little road as I was coming along. And I had to whip it in there and turned onto it.” Do you remember making that statement?

A. Not right offhand.

Q. Later in answer to a question, you said, “She leaned over the seat because I’ve got like bucket seats in my car, and she started grabbing ahold of my leg, started feeling on my leg?” Question: “What part of your leg?” Answer: “Had to be my thigh.” Question: “Did she say anything?” Answer: “No. She just started grabbing. And she said, ‘Are you sure?’ and stuff like that.’ Question: “What else did she say?” Answer: “I can’t remember anything else that she said, just like come on to her.” “And what was your impression of what she wanted?” Answer: “She wanted me to put her in the back seat or something and try to make love to her.” Do you remember that happening? Do you remember that incident?

A. No, I don’t have no bucket seats in my car.

Q. No. This was in 1982 you said that about May of ’81. Did you have bucket seats then?

A. ’82?

Q. June of ’82 about an incident in May of 1981. Did you have bucket seats in 1981?

A. That’s when I had my old car, I guess. Yeah, I had bucket seats in it.

Q. Do you remember making that statement?

A. Not right offhand.

Q. Okay. Now, how about a different date, on December 7 of ’82. And this is about something that happened on January 21, 1982. You answered: “I was just driving slowly. I never did stop the car. And as I get right towards the corner of Church Street, a girl just, you know, walked right out in front, didn’t walk in front of the car but kind of came towards the car, so I pulled over. She came and said, ‘What do you want?’ You know. And I wanted to say ‘head.’ And she said, ‘Would you like a blow job?’ ” Do you remember that?

A. Yes. Yes. That was in Toronto. I was talking to a prosecutor.

Q. Okay. Later on the same date: “She told me make a right turn here, so I made a right, that is when she scooted over towards my side of the driver’s side; and she started kind of feeling along my legs and stuff.” Do you remember testifying or talking about that?

A. No.

Q. Did that happen, or do you remember that happening?

A. No, it didn’t happen.

Q. How about a little later here. Same statement that you are making. “I said, “Where should I pull over?' And she said, ‘Just go on down a little ways.’ That’s when she started feeling on my leg.” And then you said, “Well, I went up to a street. We turned a left on another side street. And that is when she pulled my zipper down and started playing with me.” Do you remember that?

A. No. Are you talking now or back then?

Q. No. I am talking about a statement that you made on December 7, 1982, about an incident that occurred on January 21, 1982.

A. I can’t recall offhand, no.

Q. How about a question: “And you still had your pants on?” Answer: “Yes, I did.” Question: “And how long did this go on for?” Answer: “Well, I had just turned a comer, and she had my zipper down and playing with me. I guess I kind of veered off and pulled over on the side of the street.” Question: “What happened after that?” “By the time I pulled over, I had a pretty good hard-on. And I don’t know, just, she started trying to give me some head right then as I pulled over.” December 7, 1982, about something happening January 21 of ’82. Do you remember that?

A. I can’t remember offhand.

Defense counsel again objected, stating:

Your Honor, again, I am going to renew my objection to the improper foundation for this type of cross-examination. As far as specific things, I think the question was insufficient as to direct Mr. Goodman’s attention to the time frame he was talking about. It was a general question. If he ever told stories about girls. Never told anything like that again. I think it was too broad, insufficient to direct Mr. Goodman’s attention to the time. I request that all that testimony be stricken from the record. I would also request a mistrial at this time.

The court overruled the objection and denied defense counsel’s request that the testimony be stricken or a mistrial declared.

The cross-examination by the State regarding prior statements of the defendant was improper for several reasons. First, there was no proper foundation laid. Secondly, if the statements were prior inconsistent statements they reference matters of a collateral nature and were improper methods of impeachment.

The determination of whether or not a prior statement is inconsistent must first be presented to the judge. State v. Frank, 685 S.W.2d 845, 849 (Mo.App.1984). The court in the case at bar never ruled upon whether the statements were inconsistent. For the purpose of this review, we presume that the defendant’s negative response when asked whether he has told similar stories, is inconsistent with the alleged statements presented to defendant by the State. Further, the prosecutor did not lay any foundation as to the person to whom the statements were made, and the time, place, and circumstances of the prior statements. See e.g., State v. Graves, 588 S.W.2d 495, 498 (Mo. banc 1979).

The dissent argues that the record reveals that there was substantial compliance with the requirement of a proper foundation because “it is clear appellant knew and understood to whom the statements were made ...” The dissent bases this assertion on the fact that defendant responded on one occasion that the statement was made during a conversation with a prosecutor in Toronto. Defendant only offered this in response to one of the statements. We cannot assume that it applies to all the statements, especially since the statements allegedly were made on two different dates regarding two different “incidents”. There was no indication by the prosecutor as to whom the other statements were made or where. The only information supplied in laying a foundation was the date. An examination of the transcript reveals that in spite of this, defendant was often confused about when the statements allegedly were made. In short, there is nothing upon which the trial court could determine whether defendant could properly be impeached with the alleged statements.

Even assuming the statements were inconsistent and a sufficient foundation were laid, they were improperly used by the State to impeach because they concerned collateral matters. Although a witness may be impeached by extrinsic proof of a prior inconsistent statement as to material matters, counsel is bound by the answer of the witness on collateral matters. Lineberry v. Shull, 695 S.W.2d. 132, 136 (Mo.App. 1985). “If a fact may be shown in evidence for any purpose independent of contradiction it is not collateral.” Overfield v. Sharp, 668 S.W.2d 220, 223 (Mo.App.1984), quoting, Frechin v. Thorton, 326 S.W.2d 122, 126 (Mo.1959). Any “incidents” which may have occurred in defendant’s past were not relevant to the issues in the present case. Obviously, the statements were used solely to impeach defendant and had no proper purpose independent of impeachment. Once defendant responded negatively to the State’s question about whether defendant has told similar stories about other girls, the State was bound by that answer. Therefore, the State should not have been permitted to continue the cross-examination regarding the alleged prior statements.

The dissent argues that the interrogation of the defendant was admissible to show a common scheme or plan. Evidence of specific instances of past crimes, or other wrongful acts may be admitted to prove a common plan or scheme embracing the commission of two or more crimes so related that proof of one tends to establish the other. See e.g., State v. Young, 643 S.W.2d 28, 30 (Mo.App.1982). The admissibility of evidence of other crimes is determined by whether its probative value outweighs its prejudicial effect. State v. Alexander, 693 S.W.2d 216, 220 (Mo.App.1985). However, the State did not lay the proper foundation to submit under this theory of admissibility.

The prosecution did not attempt to prove the similarity of other crimes defendant committed in the past to the present crime. The cross-examination may have done this indirectly, but the direct result was to show the similarity of “stories” defendant has told in the past to his testimony in the present case. The prosecutor, however, did not present sufficient evidence of the circumstances of defendant’s past statements for the trial court to properly determine whether the probative value outweighed the prejudicial effect of the evidence.

It appears that the State took an unnecessary gamble by cross-examining the defendant on these alleged prior statements. The cross-examination was highly prejudicial to defendant. Before the prosecutor questioned defendant about any of the alleged prior statements, defense counsel objected to the prosecutor using any testimony from past similar cases. Defense counsel also objected more than once that no proper foundation was laid. These objections were raised in defendant’s motion for a new trial. We do not agree with the dissent that we can review only for plain error. Even if that were the case, we believe that the cross-examination was so prejudicial as to constitute manifest injustice.

It is apparent that this cross-examination was risky and unnecessary. It was highly prejudicial to defendant and, because the trial court took no corrective measures, reversible error was injected into the case. It is for the aforesaid reasons that the judgment of the trial court must be reversed and the case remanded for retrial.

LOWENSTEIN, P.J., concurs in separate opinion.

MANFORD, J., dissents in dissenting opinion.