State v. Simmons

825 S.W.2d 361, 1992 Mo. App. LEXIS 295, 1992 WL 31774
Missouri Court of Appeals·Decided February 25, 1992·No. 57128, 60110·Published·Cited by 13 cases

Opinion

CRANE, Judge.

A jury found James Simmons guilty of first degree assault in violation of § 565.-050 RSMo 1986 and armed criminal action in violation of § 571.015 RSMo 1986. The trial court found Simmons to be a prior offender and sentenced him to fifteen years on each count, the sentences to run concurrently. Simmons filed a Rule 29.15 motion for post-conviction relief which was denied after an evidentiary hearing. Simmons appeals both the judgment of the trial court and the order of the motion court. On direct appeal Simmons contends that the trial court erred in allowing the state to cross-examine him concerning the details of a plea agreement reached on a past felony and in permitting the state to file a substitute information changing the alleged time of the offense. On appeal from the order of the motion court, Simmons argues that he was denied effective assistance of counsel in that his attorney argued in opening statement a matter which he was unable to prove. We affirm both the judgment of the trial court and the order of the motion court.

DIRECT APPEAL

The sufficiency of the evidence to sustain Simmon’s conviction is not in dispute. The charges arise from an incident in which Simmons stabbed Robert Griffin, Jr. three times after Griffin told him that he wanted Simmons’ cousin to leave a party because he was intoxicated.

For his first point Simmons contends that the trial court erred in allowing the state to cross-examine him regarding the details of a plea agreement reached on past felony convictions. Simmons maintains that the state was precluded from inquiring into the details of the plea agreement because his testimony had not placed these details in issue. We disagree. As found by the trial court, Simmons’ testimony had placed these details into issue and the trial court did not abuse its discretion in permitting cross-examination thereon.

During direct examination Simmons testified that he had pleaded guilty to two counts of second degree burglary. On cross-examination, however, Simmons admitted that in the same proceeding he had also pleaded guilty to two additional counts of stealing. During redirect defense counsel attempted to clarify for the jury that Simmons had misunderstood the implications of his prior record and elicited the following testimony:

Q You pled guilty to burglary in the second degree and stealing over $150.00 in both these files?
A Yes, sir.
Q If you add counts, that was four felonies?
A Yes, sir.
Q But you were just taking into account that the burglary second and stealing are one, that’s what your inclined to—
A Yes.
Q You were just mixed up; is that right?
A Yes, sir. Cause it was my — what I got in court and pleaded to, I truly know I was wrong. I pleaded guilty. I accepted that as it is. And then as *364 the public defender that represented me and the judge told me they ran the felonies together as one three year sentence.
Q So, what you’re thinking of is that that running together as all those four felonies you only received three years on?
A Yes, sir.
DEFENSE COUNSEL: O.K. I have nothing further.

The prosecuting attorney then cross-examined Simmons about his reason for pleading guilty in the previous case.

Q You pled guilty. You are saying you pled guilty and you wanted to plead guilty for—
A I pled guilty because I knew the — I knew the thought was the cause of it all. I knew that my bad thinking about doing these kinds of things led to that. I was wrong, sir. That’s why I pled guilty, sir.
Q You also got a plea bargain that—
DEFENSE COUNSEL: I object, Your Honor.
PROSECUTOR: He’s saying he pled guilty because he had bad thinking. I have a right to go into what the real reason was.
THE COURT: I will overrule the objection.
Q (By prosecutor): You pled guilty because you had a plea bargain that you accepted, you liked, you cut a deal and you pled up three years on these two files to get both files together. That’s why you pled guilty?
DEFENSE COUNSEL: Your Honor, I’m going to object. May we approach the bench?

At the bench conference the trial court overruled the objection on the basis that Simmons had volunteered the information that he had pleaded guilty because he was wrong and defense counsel had brought out the three year sentence in his own questioning.

When a defendant testifies, he is subject to cross-examination and impeachment as is any other witness. § 546.260 RSMo 1986. The prior convictions of any witness including the accused are admissible for impeachment purposes. § 491.050 RSMo 1986. The trial court has no discretion to prevent the use of prior criminal convictions to impeach the credibility of a witness or the accused. In a criminal trial, the state has an absolute right to demonstrate a defendant’s prior convictions and the nature and time thereof for the purposes of impeachment. State v. Frison, 775 S.W.2d 314, 318 (Mo.App.1989). The trial court does, however, have discretion to control the scope of that cross-examination and appellate courts will not interfere unless that discretion is abused. Id. at 318; State v. Powell, 632 S.W.2d 55, 58 (Mo.App.1982).

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State v. Simmons, 825 S.W.2d 361, 1992 Mo. App. LEXIS 295, 1992 WL 31774 (Mo. Ct. App. 1992).

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