State v. Shepard

654 S.W.2d 97, 1983 Mo. App. LEXIS 4035
CourtMissouri Court of Appeals
DecidedApril 19, 1983
DocketNo. WD 33631
StatusPublished
Cited by8 cases

This text of 654 S.W.2d 97 (State v. Shepard) 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. Shepard, 654 S.W.2d 97, 1983 Mo. App. LEXIS 4035 (Mo. Ct. App. 1983).

Opinion

SOMERVILLE, Chief Judge.

Defendant was charged by a two count information with burglary in the second degree (§ 569.170, RSMo 1978) and stealing (§ 570.030, RSMo 1978). A jury found him guilty under both counts and assessed his punishment at two years imprisonment for each offense. Following an unavailing motion for new trial, judgment was entered, sentence was pronounced, and said sentences were ordered to run concurrently.

Ten points of error are presented on appeal. Two are controlling and require reversal. The other eight are not likely to recur on retrial and thus any decision as to them will be pretermitted.

The facts will not be dwelt on at length, as their sufficiency to support the respective convictions stands unchallenged. Briefly, the State introduced evidence that defendant, acting in concert with two others, broke into an uninhabited farm home in rural Vernon County and removed therefrom certain antiques having a value in excess of One Hundred Fifty and no/100 Dollars.

The two points favoring defendant on appeal lend themselves to being combined into a single point for decisional purposes: Error on the part of the trial court in overruling defendant’s motion for a mistrial based on impermissible and prejudicial references by the State by way of a prosecuto-rial statement and an exhibit offered and introduced into evidence of an offense for which defendant had previously been charged but not convicted.

The dispositive point emerges from a convoluted series of events. During the trial defendant took the stand as a witness in his own behalf. His testimony is accorded the same brevity as the State’s evidence. According to defendant, one of his compatriots inherited the antiques from a deceased grandmother, agreed to sell them to defendant, and accompanied defendant to the uninhabited farm house to pick them up. In an obvious attempt to minimize the sting, defendant, on direct examination, tes[99]*99tified that two years earlier he pled guilty to a misdemeanor charge of receiving stolen property [an offense wholly unrelated to those for which he was presently standing trial], that imposition of sentence was suspended and he was placed on probation for two years. The prosecutor, understandably, sat back and, up to a point, gave defense counsel free rein with this line of questioning. However, when defense counsel asked defendant why he pled guilty to the earlier charge when he didn’t know the property had been stolen, the prosecutor immediately objected on the ground that such testimony was “self serving”. Unfortunately, the prosecutor was not willing to let the matter rest at that point as evidenced by the fact he accompanied his objection with the following positive statement: “He has already pled guilty to the reduced charge of receiving stolen property, to a misdemeanor charge”. This was tantamount to the introduction of evidence of like effect by the State. Counsel for defendant immediately objected and moved for a mistrial on the ground that the prosecutor’s statement to the jury that defendant had pled guilty to a charge “reduced down from a felony” was prejudicial. The trial court, although refusing to grant a mistrial, attempted to alleviate the prejudicial effect of the prosecutor’s voluntary statement by advising defendant that he would be permitted “to go into ‘why’ since the statement was made to the jury that it was reduced down from a felony.” However well intentioned the trial judge may have been, his solution exacerbated the problem. The trial got out of hand and soon had the trappings of a trial within a trial over a purely collateral matter invariably fraught with prejudice even under the most restrictive conditions. On cross-examination, the prosecutor asked defendant if his “probation was supervised” and defendant answered “No”. Thereupon, the prosecutor offered and the trial court admitted into evidence, over defendant’s objection, State’s Exhibit 10 which consisted of a certified copy of the docket entries in the unrelated case in which defendant previously pled guilty. At this juncture, defendant again asked the court to declare a mistrial. State’s Exhibit 10, at the request of the prosecutor, was “passed” to the jury. This exhibit, in addition to reciting that defendant was placed on “supervised” probation, also recited with unmistakable clarity that defendant was originally charged with a felony which was reduced to a misdemeanor.

The gist of defendant’s combined point on appeal is that the prosecutor’s voluntary statement to the jury and State’s Exhibit 10 were so highly prejudicial, constituting as they did evidence of a crime for which defendant was never convicted or to which he never pled guilty, that the trial court erred in not granting his repeated requests for declaration of a mistrial. This is enhanced by defendant’s argument that such evidence was neither admissible to impeach his credibility as a witness under the purview of § 491.050, RSMo Supp.1981, nor as an exception to the general rule precluding evidence of other crimes.

Defendant put his credibility in issue, like any other witness, when he took the stand. Section 491.050, RSMo Supp.1981, clearly provides that “any prior criminal convictions” or any “prior pleas of guilty, pleas of nolo contendere, and findings of guilty” may be “proved” to “affect” the “credibility” of a defendant who takes the stand in his own behalf in a “criminal” case.1 Utili[100]*100zation of § 491.050, supra, prior to its amendment, with respect to a defendant in a criminal case who took the stand in his own behalf, was tightly circumscribed by case law due to the volatile nature of the subject matter dealt with. These cases, in view of the context in which § 491.050, supra, is presently raised, remain pertinent and applicable. To vitiate any misconception that proof authorized by § 491.050 was in and of itself evidence that a defendant was guilty of the crime for which he was standing trial, it was repeatedly held that such proof, since its sole purpose was to affect defendant’s credibility, was restricted to eliciting the general nature of the offense which defendant was convicted of, the place and date of the occurrence, and the resulting sentence. State v. Hood, 313 S.W.2d 661, 663-64 (Mo.1958); State v. Sanders, 634 S.W.2d 525, 527 (Mo.App.1982); State v. Sullivan, 553 S.W.2d 510, 515 (Mo.App.1977). It has also been said that the State exceeds the legitimate bounds of proof authorized by § 491.050, supra, when it goes beyond the fact of “conviction” or “plea of guilty” and unduly emphasizes collateral facts, or when it goes into details which aggravate the “conviction” or “plea of guilty” relied upon to affect credibility. State v. Sanders, supra, 634 S.W.2d at 527; and State v. Williamson, 584 S.W.2d 628, 630 (Mo.App.1979).

Concomitantly, it was also well established that a witness’ credibility could not be attacked by showing a mere arrest, investigation, or a criminal charge which does not result in a conviction. State v. Stearns, 617 S.W.2d 505, 508 (Mo.App.1981).

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Bluebook (online)
654 S.W.2d 97, 1983 Mo. App. LEXIS 4035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shepard-moctapp-1983.