State v. Richardson

¶1dissenting.

¶2I respectfully dissent. In addition to the four persons mentioned in the majority opinion, a fifth person, unrelated to the other four, testified as to defendant’s conduct. The evidence revealed that defendant worked for the mayor.1 Officer Burton testified that defendant was read his rights and was told he could make one phone call. Defendant asked to call the mayor; upon being contacted, the mayor requested that the officers drive defendant to his home. There, the mayor convinced defendant to show the officers where the gun was located; the officers drove defendant to the boarding house, and defendant came out of the house carrying a loaded gun and handed it to Officer Burton.

¶3During the cross-examination of Officer Burton, defense counsel attempted to show that Burton did not consider defendant dangerous:

Q. You did not perceive Mr. Richardson to be any danger to you?

A. No, not at that point of time.

Q. Not when he had a loaded gun in his hand?

A. Not a threat to me, no, ma’am.

¶4It was in response to the foregoing line of questioning that the prosecutor on redirect asked Officer- Burton whether he was aware of defendant’s conviction “for the very same type of offense[.]” Defense counsel did not object. Burton responded that he was not aware of the conviction.

¶5When defendant took the stand, defense counsel inquired about his prior conviction:

Q. Now, Mr. Richardson, you have a prior conviction, a prior felony conviction; is that correct?

A. Yes, ma’am.

Q. And what was that conviction for?

A. Well, it initially started out as unlawful use of a weapon, but, however, it was broken down to some other type of charge, being that it was reduced anyway from a D felony to a, I believe it was some type of misdemeanor. I don’t know but I did a year for it.

¶6In cross-examining defendant, the prosecutor asked him why he served a year in the county jail. Defendant responded, “Well, probably because someone manipulated a witness to nick me ... did you ever consider that?” The prosecutor then asked the following question: “Mr. Richardson, you have spent time, spent timo in the jail because you blew a hole that big around' in the door in a home, real estate, with another human being on the other side of the door.” Defense counsel objected and requested that the jury be instructed to disregard the prosecutor’s statement. The court sustained the objection and instructed the jury to “disregard the last statement of the prosecutor.” Later, the prosecutor asked the following:

Q. Now I believe you testified that this charge you were convicted of was reduced to a misdemeanor?

A. What I mean was I did a year on it, I got sentenced to a year for a felony conviction.

Q. The felony conviction was for the use of a dangerous weapon.

A. Well, whatever it was that I was charged with I know that I lost use of the weapon.

Q. Unlawful use of a weapon, its a felony, don’t you know?

A. Well, being that there was no evidence to convict me in the first place, it shouldn’t have been that, it shouldn’t have been a year but I got a year. I had done it and I had paid for it.

Q. Now I am going to ask you about blowing a hole in the door—

¶7Defense counsel objected, and the court initially sustained the objection, but ultimately in denying defense counsel’s request for a mistrial, the court stated: “I think that actually the defendant quite— because the defendant opened it up voluntarily on his own just by being too far afield I think there would be good grounds *889if we wanted to allow [the prosecutor] to go into it if the defendant opened it up voluntarily. I think it has a place in the trial at this time.” The prosecutor, however, did not pursue the issue further.

¶8The majority reverses based upon the following point from defendant’s brief:

The trial court erred in its refusal to declare a mistrial when the prosecuting attorney repeatedly referred to details of defendant’s prior conviction because the improper use of these details prejudiced the jury and denied defendant the right to an impartial trial and the right to be tried for the offense at issue.

¶9The issue raised in this point is resolved by our holdings in State v. Powell, 632 S.W.2d 55 (Mo.App.1982) and State v. Phelps, 677 S.W.2d 418 (Mo.App.1984).2

¶10In Powell, Judge Snyder explained the limitations on the use of a defendant’s prior convictions for impeachment. Speaking for our Court, he stated:

Generally, the use of prior convictions for impeachment is limited to admitting the nature and number of those convictions. Prosecutors may not delve into the details of the prior convictions or emphasize them unduly.

But if the defendant makes ambiguous statements, or denies his guilt in the prior cases in which he was convicted, or makes statements designed to blunt the impact of the prior convictions, it is within the trial court’s discretion to permit the prosecutor to test and challenge these statements.

¶11Powell, 632 S.W.2d at 58. (citations omitted). In Phelps, the trial court overruled an objection to the prosecutor’s impeachment using the details of the defendant’s prior convictions. We reversed, finding that the prosecutor went too far. Judge Karohl, in the principal opinion, distinguished that case from one in which a proper objection was made and sustained:

In State v. Porter, 538 S.W.2d 888, 891 (Mo.App.1976), we found no prejudicial error because the court sustained proper objection on this ground and instructed the jury to disregard the improper questions. Here the court permitted the questions and the prosecutor increased the prejudicial effect of that error by referring to the answers in closing argument.

¶12Phelps, 677 S.W.2d at 421.

¶13Although I believe that defendant, through his equivocation and contention that his case was reduced to a misdemean- or, opened up the issue, the trial court in its discretion sustained the objection and granted him all the relief he requested by admonishing the jury to disregard the question. As the court in Powellstated, “There was no error at this stage in the cross-examination_” Powell, 632 S.W.2d at 54-55. The majority in this case relies on State v. Green, 707 S.W.2d 481 (Mo.App.1986). However, there, unlike here, defense counsel’s objection was overruled.

¶14Later, when the prosecutor started to ask defendant about the reduction of his prior conviction to a misdemeanor, defendant further attempted to blunt the effect of that conviction by stating, “Well, being that there was no evidence to convict me in the first place, it shouldn’t have been that_” Surely defendant’s denial of guilt at this point was sufficient to permit further inquiry under the Powellrule. Nonetheless, when the prosecutor began to get specific, the trial court sustained defendant’s objection. Apparently realizing that defendant’s denials afforded the prosecutor some latitude with respect to the details of defendant’s prior conviction, the court denied his request for a mistrial. The prosecutor dropped the line of questioning and did not pursue the issue in his closing argument. Considering these circumstances in light of Phelps, it cannot be said that the trial court abused its discretion.

¶15In this case I can find no erroneous ruling by the trial court on the issue of improper impeachment. In any event, be*890cause the evidence of guilt was strong, and the court set the sentence, I can perceive no prejudice. Defendant’s other two points also have no merit. I would therefore affirm the judgment of the trial court.