*1 Missouri, Respondent, STATE DAVIS, Appellant.
Lee Burl
No. 59779.
Supreme Missouri, Court
En Banc.
April
439 *2 559.010,
§ RSMo 1969. He appeals. For stated, reasons hereinafter we reverse the judgment of conviction and remand the cause for further proceedings. The principal issues raised appeal on this (1) are whether inconsistent state- *3 ments by made a by witness called court as the court’s witness were used as by substantive evidence closing argument, so, and if whether the use of such evidence as substantive evi- error”; dence constitutes “plain (2) whether the trial may court call a witness as the court’s witness in a criminal case—an issue state; and, heretofore unresolved in this having so, (3) done whether the trial court erred in permitting the prosecutor “impeach” by the court’s witness the use of prior contradictory statements by made witness and statements prose- cutor at an earlier guilty plea proceeding, which statements implicated the defendant- appellant in this proceeding.
This case presents a bizarre set of facts presents complex legal issues: Drazic, Defender, Blair K. Asst. Public Louis, appellant. St. for II Elliott, Gen.,
W. Mitchell Atty. Asst. Jef- City, respondent. ferson for The Facts The abbreviated facts for the disposition PER CURIAM: principal points appeal can be After the Court of Appeals, Louis St. briefly stated —more detailed facts will fol- District, handed opinion down an written by low. Mr. Joseph “Hector” Lane was found Simeone, J., we ordered transfer of the automobile, dead in an having been shot. cause to this court because of the one novel appellant, Davis, Lee Burl charged was involved, e., issue i. whether or not a trial with the offense. Mr. Jahmel Imrod Moore may court call a witness as the court’s pleaded guilty to the pri- offense sometime witness in a criminal case. After consider- or to the trial appellant, Davis. Dur- ing that issue as well presented, as others ing trial, Moore was called as the agree we with the result reached witness, and, court’s denying after that he Appeals Court of adopt opinion or the implicated in the quotation thereof without benefit of marks. crime, impeached the state Moore by read- ing the statements of the Moore at Moore’s and intro- O’Neal, duced the of Rhonda
Introduction witness, state’s all of which contradicted Davis,1 Defendant-appellant, Lee Burl Moore’s “direct” at trial. charged, guilty by tried and found jury and sentenced imprisonment to life It is this introduction of contradictory the offense of murder in the first degree. testimony and the comments thereon
1. Also known Burl Lee Preston and Lee Burl Preston. closing argument According O’Neal, which essen- prosecutor in to Leonard the three men young stayed around the accident form tially appeal. the basis of this scene for a short while and then went back Much of the evidence detrimental the Davis home. When went into back wit- related the state’s house, telephone into the call was made ness, tragic events Leonard O’Neal. by a friend of Leonard’s—Jahmel Imrod 18, 1978. begin rainy night of June by the Moore—a witness called court at this evening, Leonard and Ha- On O’Neal While appellant. trial of the call was young rold Davis were at the home of their Leonard, participate not for he did friend, evening, Later in the Mark Bowers. house, the Davis Leon- conversation. From walked the three the Bowers home and left ard, Mark Harold went to Leonard Davis, where Ha- to the home Harold house, which was block O’Neal’s “[o]ne Davis, brother, Burl also lived. rold’s Lee There over.” Leonard saw Jahmel Imrod Holly The Davises lived in the 4200 block sister, O’Neal, Moore. Leonard’s Rhonda *4 the in At City Avenue the St. Louis. present. was also at trial Leonard testified arrival, was time of Lee Burl Davis the their that at O’Neal home he saw blood on Mark, portions” of Moore’s At this shirt. young not there. The three “[a]ll men— time, Davis, appellant, the Lee Burl was not TV. Harold and Leonard—watched Some- present at the O’Neal home. From the seven-year- p.m., time after eleven Harold’s home, Leonard, Mark, and O’Neal Harold that an sister in and them old came told Moore, visiting Jahmel after the house of had outside automobile accident occurred “Tony” Bailey, went to the home mother’s heard, were but the house. No shots they Kent. When ar- friend—Debra was other impact of accident heard rived, the and De- appellant-Davis, Debra Phillips and neighbors, including Nathaniel present. mother were bra’s young three Anthony Bailey. Lee house, said, Debra’s Leonard “. At men, Bailey, to- Phillips Anthony Mr. and We told that Hector killed.” was [Davis] others, went to the street. gether with out staying Davis no reaction. After But had arrived, they they saw that an Olds- When minutes, Kent five at the house about in an which mobile “98” had hit automobile then decided to return the Davis group and then a tree. turn hit another hit They walking. group house. were In the running, a man—Jo- “98” motor was and Bowers, O’Neal, Mark were Leonard Harold Hector) (also Lane known seph —“was Davis, defendant, and the Jahmel Moore wheel with his foot on bent over the Burl Mark and were Lee Davis. Harold took Anthony Bailey Mr. and gas.” Phillips Leonard, walking group, Jahmel one placed car him Mr. Lane out of the Lee Burl were walking Davis anoth- Phillips took Mr. Lane’s the street. Mr. walk, During according er. that to Leon- but was none.2 pulse, there testimony, Davis told Leonard O’Neal ard’s minutes, Meissert Officer Walter Within “. . the car that was in [Davis] of a because summoned to area was [Joseph shot him.” Ac- with [I] Lane] arrived, were the firemen “fire.” When he Leonard, cording to related car that present. He saw that “the already shooting. Leon- to him the incidents smoking from ear was struck first him Jahmel said that Davis told ard radiator,” fire. actually was no but there car, and in the front seat of Lane’s was out already had been taken “Hector” Lane “[T]hey rear seat. Davis was ground. street,” car Offi- placed driving down the and “Burl Davis in or riding no either in the car and weapons they cer Meissert found stated Penrose,” they to shoot him on decided outside the automobile. penetrating gunshot of his was a Lane had cause death 2. Dr. Thomas testified that John J. brain traumatic “penetrating gunshot wound of the skull and with in the center wound hemorrhage occipital region.” A lead bullet intracranial battered right lobe. “The frontal was removed from but that . a car distracted him. On that day trial, second the circuit attorney Holly. doing He had to turn off so informed the trial court he that he had endorsed Moore as a witness but that shot him in the head. Jahmel [Burl Davis] pled Moore “earlier guilty to the same case grabbed the wheel and acci- an that we have today,” before the Court They jumped dent—ran into tree. out.” Moore had “indicated that he Leonard, According to Jahmel Moore was inwas the car when the fatal shot was present during this During conversation. fired,” and serving a fifteen-year sen- conversation, “they” said that tence on a charge of degree murder second first saw Hector that afternoon at Debra for his “participation” in the “Hector” Lane house, there, Kent’s and while shooting. The attorney circuit then re- talking Hector was plan about some kind of quested the court to call Mr. Moore as the he had. He going get [Hector] witness, court’s since pled “this man has everybody guess who lied on him.” “[S]o guilty to the crime and I was the Prosecu- got he him first.” tor in the case awkward, would be [and] impossible, if not put him on to vouch for cross-examination, Both on direct and on credibility, yet he was an eyewitness to Leonard admitted that he had been arrest- the crime.” The defense attorney did not previous ed for two attempted robberies or specifically object, argued but robberies, received a five-year sentence on prosecutor had endorsed Moore and that the both charges concurrently, to run and was “proper position of the Court should be the placed probation. He then enlisted in case of first impression, that it should be Navy. charges, On one of these *5 that since prosecutor] has endorsed [the Moore plead- was co-defendant. Leonard him, he already has said that this is a guilty ed to these charges September witness.” Eventually, the court sustained October, and was sentenced in late the motion of the prosecutor and called Mr. October, But was not until sometime in Moore as the court’s witness. probably October that Leonard informed Jahmel Moore then testified that he had police of the transpired events that pleaded guilty to a charge of murder —the involving June 18 the defendant. Leonard victim being Joseph Lane—and received a stated that at time anyone promise no did sentence of years. fifteen He admitted he anything promise him grant pro- to him pleaded guilty to “acting with another” in bation in return for his at trial of the murder. He testified that Lane had appellant, Davis. been a friend of his and that he [Moore] 23, 1973, On October an indictment was a “business defendant, was associate” Davis. In his charging appellant filed he Davis with the denied seeing “No, Davis on June degree first I didn’t murder of see Joseph “Hector” 1973— him that day.”3 Jahmel Moore testified Lane. Several witnesses were endorsed. that he saw “Hector” Lane earlier in the arraigned. 3, 1974, Davis was July On afternoon on the day, fateful and Hector witnesses, state endorsed additional one of asked him where he would be later. He which was Jahmel Imrod Moore. indicated he would be “shooting basket- day theOn second of the trial and after ball.” evening, Later that Lane showed up testified, Leonard had the assistant circuit court, at the basketball got Moore into attorney court, stated to the around, the car with They him. drove “Judge, I don’t know why bring- we are attending lounge, after “Billy Thomp- one ing him in for sure— [Jahmel son,” Lane’s, Moore] a friend got into the car [why?] while we are bringing him in at examination, with them. On direct Moore I going this time. was to call him as the testified that he had never seen Billy next witness.” Thompson prior evening. to that When witness, Anthony Bailey, girlfriend’s 3. A state’s testified vis’ house in the afternoon of June together that he saw Moore and Davis at Da- car, Moore, according to counsel, were all in tion defense asked him about his “arguing made Billy Thompson plea guilty Hector and on his to degree second and read certain dope.” Moore seated murder ex- over some was plea, his cerpts including from certain “[T]hey state- Billy seat and in the rear. front ments made prosecutor. dope, so am arguing was about some ‘Man, the corner you let me off at saying, During examination,” “redirect .” stated that on up here.’ Moore Moore recalled that on March he Avenue, “Billy” “Hector” Lane. shot Holly plea degree second guilty entered pops.” “two “. . When He heard Lane Joseph murder for the murder of out of the panicked” jumped it I heard represented by he was two attorneys. home. He also car and went O’Neal judge He recalled that informed him he Billy contrary run he saw said with charged was the offense of murder. no idea where I ran. .’’He asking He remembered the court him going to He admitted happen. plea this was whether he wanted to withdraw his he went to home he that when the O’Neal and the making a charge told Rhonda was had blood on clothes and statement reduced to shot, then “Hector” but denied murder second. The read got O’Neal that Hector,” portions of guilty plea from record. He just that “Burl but telling her shot that the recalled stated that he “Billy her that Thomas” rather told [sic] riding in an automobile driven “Burl” telling her that [Moore] him. He denied shot Lane, by Joseph and that there some car and after in the back seat of the understanding driving around in out of jumped Hector that Burl Burl shot He did prosecu- the car.4 not remember the hearing any state- He also denied door. stating that tor Burl Davis was in the back Burl to while walk- Leonard ments excerpts seat. Further from the having anything He ing together. denied implicated were read which Davis in the murder of planning “with the do prosecu- He that the crime.5 remembered in the shoot- any participation Hector” the plea tor stated on that “Moore then fled this of- pleaded guilty he ing, although along and at a the scene with Davis later fense. Moore told Leonard O’Neal and time Rhon- Moore direct examination of After the he actually participated O’Neal that da *6 “cross-ex- prosecutor, defense counsel planned way this I homicide have cross-examination, him. amined” it. . . recalled outlined .’’He that charged that with admitted he was Moore “ stated, court ‘. . . I after the Do guilty to pleaded murder but degree first ”, Davis the shot?’ understand fired a fif- degree murder” and received “second “ stated ‘Davis is the that one he denied again sentence. He teen-year fired actually that the fatal shot. Moore is ” day saw Davis that and reiterated with with another.’ And charged acting “ automobile. Thompson” in the “Billy him, ‘Is asking he recalled the court cir- interrogation, assistant ”, this After true but his substantially or correct?’ re- ” “was, ex- attorney inquired then on “redirect The tri- my cuit ‘About behalf.’ sponse ” “ said, impeach reply and the attempt In an al court ‘Pardon?’ amination.” “ ” was, plea, me.’ objec- ‘About On Moore Moore, attorney, without the circuit wrong. “Q “Q I am me also And then correct me if also remember You [Prosecutor:] following: following ‘I believe this followed saying ‘Prior.to stated the almost identical to the Court: only problem plan. driving some in the car there was around gun understanding agreement Davis the man Moore was when the was fired between seat, body they in the Lane’s stiff- drive the who was back would have Lane and Davis gas pedal hit the and caused car ened and and when both of his hands automobile on the lunge steering down and into another who was the street wheel then the man out, you stating pull gun fire the Do me would automobile.’ remember seat the back you Judge? me gun kill Lane’? Do remember to the day saying that that Court? A Yes.” A Yes.” no about When pleading guilty. had doubts She testified that Moore told her that “him “ plea, at the asked ‘Is that correct what and Burl was in the car and —. ”, Attorney Him and the Circuit stated?’ he answer- Burl was in the car and Hector ” “ed, ‘Yes,’ driving . but in his examination on this .” “When he first trial, came in he told me remembering they he denied this affirma- had shot said, said, Hector. ‘Who?’ He response. tive [Moore] ,”6 ‘Burl shot Hector.’ She proceedings guilty plea con- also testified that Jahmel told her that respects flicted therefore in certain with his to, “. planning you had been testimony on “direct at trial. examination” know, kill him for a while.” never She direct, any Moore denied in the part On person heard of a Billy the name of homicide, any participation denied in the Thompson. testimony She corroborated the killing yet pleaded guilty Lane of Leonard that Jahmel a telephone charge of murder as reflected in the call, and on cross-examination she admitted direct, plea proceedings; on he denied see- police that she did not tell the story her ing day,” Davis on June 18 “all but accord- until after her brother Leonard gotten “had ing recalled the state- in trouble.” planned ments that he and Davis to kill evidence, The defendant introduced no Lane and that Moore fled the scene with except investigator of an objections Davis. No were made to this the Public Defender’s Office who stated “impeaching” evidence. attempted that he to locate “Tony Bailey The testimony of Jahmel Moore concern- and Debra Kent” but never contacted ing night the incidents on the June them.7 was also inconsistent with the testimony of evidence, At the close of the the defend- sister, Rhonda, Leonard O’Neal’s a witness ant judgment acquittal moved for a for the state and the former girlfriend of ground “plaintiff that the has failed to During Jahmel Moore. the course of the prove alleged a cause of action as attempt state’s case and an to contradict Indictment.” The motion was overruled. Moore, testimony of Rhonda stated she given Instructions were and the cause ar- Davis, knew Burl Hector Lane and Jahmel gued. During part the first of the closing Moore girlfriend Jahmel’s argument, attorney the circuit reviewed the about nine months. She testified that on evidence, especially the testimony of Leon- night of June she was at her home ard O’Neal and the of Rhonda.8 and Jahmel came there. When he arrived home, at the O’Neal he had lot of blood on argument, In his argued defense counsel “[w]et, his T-shirt—the blood was liquid.” credibility of Leonard and Rhonda point, objected anyone Billy 6. At Thompson defense counsel to this the first time hears of statement, stating: Honor, is on this stand . Your here—first time. *7 “Now, already Moore, part we know that the of the statement made Jahmel now, doing Davis himself told responsive.” O’Neal that he did it and what he is that is not objection described it detail. The detail was identical No was made that the statement was you except to what Imrod Moore hearsay. told for one object grounds Counsel did of thing, changing the name of the man in the hearsay question to an earlier he [Jah- —“Did back seat. you bloody?” how tell that shirt became mel] you “Rhonda takes the stand. Rhonda told course, Anthony Bailey, 7. Lee of testified at they high that school sweethearts — trial. Debra Kent did not. and sweethearts —Rhonda O’Neal Imrod Moore they They when were in school. dated and you, 8. Thank Your Honor. “[Prosecutor]: Imrod had conferred and related all these Now, Moore, very interesting, it with Imrod things shooting to Rhonda at the time of the see, you stand, you he takes the he will tell —he night that when he went over there with a says they this. He is honest about are close that, bloody shirt and he told her ‘We shot right up friends. erly Imrod Moore now is in Mob- said, got you Hector. We him.’ She ‘Who do penitentiary. in the her, I, mean?’ Imrod Moore told ‘Burl and we shot him. Burl in the was back seat. Burl had stand, gets you “He the gun. he can tell what got Burl him the shot in the head. We friend, you. tell he wants to This man is his so him.’ argument, After the after Leonard didn’t and delibera- O’Neal’s —how tion, October, found the guilty . un- the of police the until tell degree and murder in the first assessed his on his two had been arrested after he til imprisonment. punishment prop- at life then Defense counsel robberies.” armed time, er a motion for new trial was filed. Moore,9 testimony of and ar- discussed in the motion new point No was raised a reasonable doubt as there was gued that permitting trial that the court erred in guilt of Davis. argue probative to value of portion argu- of his Then in the second Moore because such evi- of the fact ment, emphasized impeachment only dence evidence guilty in pleaded had Leonard O’Neal that used as substantive evidence. could not be he had told the before September, After The court overruled the motion. events of June so as to about police granted, the defendant was allocution was testi- believability of Leonard’s bolster imprisonment. sentenced to life credibility of argued the mony, and he also Jahmel Moore. He testimony of the direct Ill had read during the trial he that argued Appellant’s Appeal Contentions on plea Moore’s transcript from Lane, impli- appeal, appellant-Davis which On killing guilty (1) that points. makes several He contends Davis.10 cated questioning Rhonda, you I was the man wasn’t heard of “When ‘Have ever “I asked said, trying confusing It Billy Thompson?’ that to lead him. It was to him. ‘No.’ Was She No, behalf,’ phrase, my night? wasn’t that is an awkward ‘About mentioned name Billy Thompson, you point getting if man are at because the other words mentioned person, trying try- It is that didn’t do it. is such a to limit himself to—he was there easy, he was ing Scott, simple avoid, Judge impli- and that clear.” in front of his, friend of that was his first state- cate this ment, testimony, right. Moore’s he “All Jahmel my judge behalf.’ The didn’t un- ‘About just a man who has beautiful. We have said, Moore re- derstand. He ‘Pardon?’ And , armed robberies . convicted of two been my peated, ‘About behalf.’ part this mur- has a man who admitted “Now, They they go him all these on. asked but, course, der, of mur- he wasn’t convicted they questions rights wanted all about his degree. You have an instruction in the first der you things. with me here. these And then bear acting together acting with another. One — that, Okay. Then we come down after pled He other. ... as as the is guilty. says, says, ‘About ‘Pardon?’ Mr. Moore Court ‘Yes, says, any about of it that me?’ The Court “Now, brought prosecutor] tran- [the prosecutor, that is me. I he stated.’ ‘He’is the plea. script the facts recited [He] of Jahmel’s facts, just got stating includ- done all these you every plea If recall the State does. at ‘Yes, ing man was involved. He said that this plea, ‘Are these him in that the Court asked any you any he stated.’ ‘Do have of it that ‘Yes, says, And he [Jahmel] facts correct?’ wanting plead guilty here?’ about doubts say under oath wanted him to And me.’ ‘No, any ‘Is have doubts.’ The Court: trigger I don’t pulled day Davis that Lee Burl attorney said?’ what the circuit say that correct Davis it because Lee Burl he wouldn’t common, “Now, plain meaning of the say it in here.” He wouldn’t didn’t do it. English language be to turn back and see would “Now, transcript when from the I had read stated, what I stated was that Davis what I recall, you pled guilty I am will answer, thing and his involved in this it, sure, lengthy a rather statement that I read day; I will in the court the other read it to him Court, Scott, Judge given as to I had says, again. that correct ‘Is read it Court surrounding have case. You facts the heard stated, attorney Mr. Moore?’ what the circuit In that in the case. it. It is the facts say So, quite true to I don’t think it is ‘Yes.’ lengthy that it was I told the Court statement *8 not, point at one in did at least that Mr. Moore time, understanding my Imrod Moore Jahmel [that] pulled the one that that Davis was admit he, along with seat and that was in that front trigger. the Davis, planned that Burl the murder and Burl We did it. He told Rhonda. “We know he pulled Burl Davis seat and that in the back was the present. And was know that Leonard O’Neal followed, trigger. asked the Court What said, yes, again Judge he in front of Scott there basically, And his answer— that true?’ him ‘Is attorney true. said was was, what the circuit my be- first ‘About Moore’s answer Mr. half.’ calling trial court erred in Jahmel the the da O’Neal and statements Moore’s doing guilty plea witness in Moore as a court’s because which inconsistent with his in “direct permitted prosecutor this the to intro statements his examination” were so “inadmissible, used as substantive evidence and constitut- incompetent evidence to duce We “plain ed error.” conclude that the jury guise of impeachment, the under the defendant”; concerning comments the facts on the (2) the prejudice the of the the the guilty plea and comments on state- improperly permitted prose court the trial ments made Rhonda were not used impeach Jahmel exam cutor Moore merely as evidence but were impeaching ining regard guilty plea him with to the used as substantive evidence show the (a) was not an proceedings because Moore truth of the matters asserted and constitut- meaning “adverse” witness within the of plain ed error. such permitting impeachment, the rules
(b) jury because the was to consider allowed The whole of impeaching issue whether incompetent “pros statements made the discrediting testimony or of witness who 11; plea (3) at the time of the guilty ecutor” competent is not a party is as substantive improperly permitted the trial court evidence to show truth of the matters impeach “by Moore prosecutor to fully has been asserted therein discussed use inconsistent he prior of statements recently v. Granberry, in State 491 S.W.2d to Rhonda because allegedly made O’Neal” (Mo. 1973). banc prosecutor not “surprised” was case, witness for the state testimony denying participation defendant’s co-indictee of the defendant denied impeach in the offense and “because the direct examination that the defendant ing testimony incompetent hearsay”; was was with him. The state surprise claimed (4) was when “plain error” committed given and was leave to ask witness prosecutor closing argued argument in prior implicated about statements which (a) jury accept that “the should Rhonda participant defendant as a in the crime. In as impeaching testimony substan O’Neal’s closing argument to the jury, prosecu (b) evidence” and that “the should tive tor stated: accept prosecutor’s as fact the “I suggest you is there some- guilty plea at the time of Moore’s thing gained to be from Hackett’s [the proceedings.” testimony. . . . Hackett witness] said five . times that James
IV inside, Granberry went and he said that “Argument” Substantive he along, was and he in car Impeachment Evidence night, and he robbery. committed the We shall examine these contentions in Supreme Our Court reversed the conviction primary
inverse order. The first and con- and concluded resolved, opinion, to be tention our is “ closing argument prose- whether .on the record in this case that referring cutor Rhon- statements attributed to witness appellant impeaching 11. We infer from this that the con- 12. We take to refer to both the “ ‘really relating tends that in effect the evidence of Moore proceeding ” testifying’ impeachment in the case and hence error was Rhonda’s brief, reply committed. In the con- Moore in she which related that Moore told her principal argument tends that the “main that Burl had shot Lane after Moore testified error Billy [Thompson] brief” is “that a trial court commits when he told Rhonda that Thomas person as calls a its own witness then argument, shot Lane. oral On counsel con- prosecutor, guise permits the under tended that the Rhonda impeachment, to introduce in evidence state- effect that Moore told her shot that Burl Lane implicating the ments of the himself hearsay and hence inadmissible. statements wherein the ‘really testifying’ . .” himself *9 446 to the facts to which such statements re- by were not used State Hackett ” Granberry, supra, but, 530, quoting late.’ at credibility on
impeach Hackett’s
(1941).13
from
447
argues
that manifest
The state
in its
when the court “deems
brief
rights
miscarriage
justice
of
has re
or
injustice
argument
retaliatory.
Supreme Court has
therefrom.” Our
sulted
portions
argument may
While
of the
have
not cover
plain
error rule does
held that
retaliatory,
been
overall comments and
and has declined to delineate
all trial errors
the thrust
thereof were not. Based on the
v.
it. State
applying
bounds for
precise
argument,
whole
we hold that it was
91,
Mabery, 437 S.W.2d
State
(Mo.1969);
93
basically retaliatory.
not
401,
Embry, 530 S.W.2d
(Mo.App.
404
v.
Based on our conclusion that
the com-
1973).
plain
error rule should be exer
ments of the prosecutor
impeaching
Socket, 490
“sparingly,” State v.
cised
statements of Moore and Rhonda O’Neal
336,
(Mo.App.1973),
339
and cannot
S.W.2d
were used as substantive evidence to show
every
as a vehicle for review of
be used
the truth of the matters asserted in such
alleged trial error which is not asserted or
merely
not
impeaching
statements and
v.
State
preserved for review.
properly
evidence,
error,
so
plain
as to constitute
we
22,
Murphy,
(Mo.App.1975).
521
25
S.W.2d
compelled
judgment
are
to reverse the
limited,
to justify
The rule is
order
conviction
the cause for
and remand
a new
appear
it
there is
application,
its
must
trial.
sound,
substantial manifestation and a
the cause must be
Since
reversed and
showing
injustice
clear
or miscar
remanded,
briefly
we shall
examine the oth-
justice
riage of
results if the rule is not
er errors
the appellant,
they
raised
since
Halk,
v.
44,
invoked. State
48
524 S.W.2d
may reoccur.
v.
Murphy, supra,
State
(Mo.App.1975);
521
Meiers,
25;
v.
State
at
412
S.W.2d
S.W.2d
V
478,
And,
(Mo.1967).
ordinarily,
480-481
Authority
of Court to
Call Witness
alleged
closing
errors on
argument or in
cross-examination
defense witnesses do
Appellant contends that
the trial court
justify
plain
relief as
unless
error
erred
abused its
in calling
discretion
are determined to have had a decisive ef
witness,
Jahmel Moore as its
since this ac-
Collins,
v.
jury.
fect on the
520
permitted
tion
to introduce
155,
(Mo.App.1975).
157
S.W.2d
“inadmissible” evidence
guise
under the
wheth-
not clear
it is
Granberry,
supra,
impeachment.
agree.
We do not
timely
proper objections were made
er
Normally, it is the function of the
argument
prosecutor.
parties to call
part
witnesses as a
of our
were none. The
is that
there
implication
adversary process. The practice in criminal
however,
court,
did reverse and remand
calling
cases of
a person as a court’s witness
discussing whether
the issue was
without
is seldom
particularly
used and “not
desira
plain
whether the
error rule
preserved
States,
v.
Smith United
265,
ble.”
331 F.2d
applicable.
(8th
1964).
273
Cir.
While our research fails
In view of this state’s adherence
any previous
to disclose
Missouri decision in
view, above,
the orthodox
compelled
we are
which the court called a witness in a crimi
to conclude that
argument,
opin
in our
nal proceeding,15
general
rule is that a
ion,
impeaching
used
evidence
judge,
case,
as substan
trial
in a
may
criminal
tive evidence of facts to which
judicial
the state
exercise of sound
discretion call a
ments relate and had a decisive effect on witness as the court’s witness.
Smith
hence,
States,
jury;
273;
error. United
plain
constituted
supra,
331 F.2d at
An-
477;
dealing
Gosnell,
15. There are several Missouri decisions
123 S.W. at
Gosnell v.
329
230,
procedure
(Mo.App. 1959);
with civil cases in which this
is rec
S.W.2d
235
Chilcutt v.
ognized.
Baker,
City
Joplin,
1964);
Townsend
(Mo.App.
139 Mo.
384 S.W.2d
860
App.
(1909)
judge,
Maryland Casualty
123
Spitcaufsky,
S.W. 474
v.Co.
352 Mo.
—“A
duties,
discharge
may
(1944).
of his
call and exam
178 S.W.2d
372
justice
ine witnesses
in furtherance of
. .”
not.,
(1959); 58 Am.
cannot vouch
fy
veracity
67 A.L.R.2d
for his
and a
Witnesses,
Jur.,
(1948).
showing
the testimony
§
relates to the
*11
issues in the cause.17
the
which have dealt
All of
authorities
calling a
issue
that
wit
recognize
with the
We cannot
here that
conclude
the
in
as the
witness rests
the
ness
court’s
trial court erred
its discretion
abused
in
People
court.
v.
sound discretion of the
calling
Moore as the court’s witness.
50,
Ricks,
70,
Ill.App.2d
86
230 N.E.2d
52 The situation here
akin to
v. Unit
is
Smith
56,
Shelton,
People v.
388 Ill.
57
(1967);
States, supra,
no abuse of discre
ed
where
473,
People,
(1944);
477
v.
200
N.E.2d
Carle
Smith,
tion was found.18 In
the court’s
494,
32,
(1902);
N.E.
Smith v.
Ill.
66
36
coindictee,
pleaded
witness was a
he had
States, supra; Litsinger v. United
United
guilty,
possessed
the witness
information
States,
1930);
45,
(7th
44 F.2d
9
47
Cir.
pertinent
against
to the
the defend
issues
1940).16
Evidence,
(3d ed.
Wigmore,
2484
§
ant,
govern
and it was
the
“natural”
circumstances,
fact,
it
under
is
certain
should have
ment
been “hesitant” about
imperative
the court to
necessary and
the
It was not unrea
sponsoring
witness.
“
But,
exercising
.in
do so.
sonable, therefore,
government
for the
to
utilized,
a wise discretion should be
power,
trial
wit
request
designate
the
court to
the
to
witnesses should be
only
not
as whether
the
ness as
court’s witness.19
itself,
as to
by the court
but also
the
called
circumstances, here, therefore,
Under the
per
and manner of the examination
extent
”
the
not
we hold
trial court did
abuse
v.
Di-
mitted.
Commonwealth
in calling
its discretion
Jahmel as the
449,
424 Pa.
230 A.2d
451
Pasquale,
witness.
prosecutor
court’s
informed
(1967).
guilty
pleaded
the court
Moore had
to
well-recognized au
upon
Based
crime, that he
in
the
was the
the
“
thorities,
(1)
we
the trial court
believe that
it
. awk-
case and
would be
in
case to call a
has discretion
a criminal
ward,
impossible,
put
if not
him on
to
to
own, (2)
practice
as its
the
should
witness
his
he was an
credibility, yet
vouch for
used,
it is not a desirable
sparingly
since
be
eyewitness
crime.”20
one, (3)
restricted to
practice
the
should be
may be a
where otherwise there
mis
cases
VI
(4)
carriage
justice
before witness
Witness
“Adverse”
Impeachment of
proper
the
foundation
is called
court a
1(a)
Points
contends in his
Appellant
the
be laid which would consist of
reasons
(b)
permitting
the court erred in
why
party desiring
testi-
witness
Bennett,
People
right
that it was
v.
man. The court held
16. Cf.
413 Ill.
110
state,
(1953),
appellant.
guise
upon
competent for the
under the
N.E.2d 175
relied
witness,
impeachment
the court
error for
to intro-
There
held that it was
the court’s
only upon
showing
hearsay
pres-
court to call a witness
that he was
made out of the
statements
duce
present
speak
he refused to
the witness
defendant that
had
ence
prosecutor.
distinguished
in
This case was
the defendant. That case is distin-
identified
States, supra,
Krejewski
v. United
F.2d at 273.
Smith
331
guishable. The witness in
was not a
participant
in the offense but a customer
procedure
People v.
See the
Gor-
followed
Secondly,
which was
it
store
robbed.
seems
don,
(Ill.App.1969).
N.E.2d
252
565
law
that a witness cannot
Illinois
holds
be
that
impeached
by showing
hearsay
inconsistent
Gordon,
People
supra.
also
Court
18. See
v.
presence
made out of the
eyewitness,
call witness who was
hostile
could
That
is not the law Missouri.
defendant.
prosecution
whom
was unable to
and for
vouch.
20.However,
may
be unwise
call
retrial
Krejewski,
People
Appellant
332
a witness
as the
witness or
relies on
Moore
court’s
There,
(1928).
the Illinois
163 N.E.
of the state for the reason that on retrial
Ill.
behalf
stand,
Supreme
only purpose
putting
reversed a conviction
him on the
Court
alia,
be,
ground,
trial court allowed
knowing
inter
that the
will
now
what his
impeach
intro-
a court’s witness
bring
impeaching
the state to
be to
would
ducing
another
his statements made to
jury for
value.
before the
its substantive
police
that the
that the witness said
effect
examining
impeach
by party,
Moore
called
there is
a distinction to
because
be made between the mere failure of
regard
him with
prove
witness to
a fact for which he was
an “adverse” witness within the
he was not
where the
actually
called and
witness
be-
permitting such
meaning of the authorities
comes “adverse” or “hostile.” State v.
per-
impeachment
because
Bowen, supra,
pose of guilt or in of Moore permit impeachment defendant’s directly upon bears McKee, su guilty plea v. and to People .” statements on Rhon- nocence. apparent 628. The Moore denied certain facts N.E.2d at da O’Neal after 235 pra, in our sister by showing is that examination” in- of these decisions in his “direct thrust for the state competent guilty made on the it is not consistent statements state statements hearsay Rhonda, inconsistent such extensive and plea introduce and to but defendant, presence reading the to- impeachment by out of the pervasive made impeachment, purpose plea may tality even for of the record of the vouched has not credibility the defendant necessary where not be to affect the statement. the witness. however, that there was error Missouri, Appellant it is settled contends wit hear and of a was allowed to statements because inconsistent prose- or discredit impeach consider admissible ness are v. credibility. proceeding State so that affect cutor on the witness to (Mo.1973); “really testify- 320 Atkins, 494 in effect S.W.2d at supra, supra, 491 S.W.2d at Granberry, ing.” Hogan, v. S.W.2d State State in this improper 466; Rogers, is not Impeachment S.W.2d *13 impeaching por- if ground infirmity there is no (Mo.1971). state on But impli hearsay or are are read and it factu- guilty plea statements tions of a of a the commission in the defendant cate recounts what occurred ally presence of crime, out of the or are made Rogers, supra, upon by relied plea. v. State Yowell,513 S.W.2d v. State distinguishable. the defendant. factually is appellant Coving 1974); v. (Mo. banc State 405 that, Hence, Mis we believe under (Mo.1968); ton, 269-270 432 S.W.2d law, may impeached by witness be souri a (Mo. State, 123 v. 512 S.W.2d Thomas impeaching or other means of a 1974). do not believe We banc though such statements testimony, even incon showing from be barred state should pres are not made may hearsay, be statements, though such even sistent implicate the and ence of the defendant implicate the de inconsistent impeach who is on trial. Such To bar the state hearsay. are or fendant course, evidence, however, should, be ing deny any could that a witness would mean legitimate purpose limited to its any and bar in the offense participation not be used as and should impeachment the credi to discredit of the state possibility truth of to show the evidence substantive impeaching Without a witness. bility of A in such statements. the matters asserted of the witness evidence, instruction, 3.52, re may MAI be limiting to the defendant. beneficial highly be would jury informed of given,22 quested a fair entitled to the defendant While distinction. trial, is the state. so its But, as in the exercise YII its calling a witness as in discretion sound Conclusion sound dis own, should utilize its the court tran- thoroughly reviewed the We have and manner of to the extent cretion extensive briefs script, witness and examination may given request be the court the 3.00 Series failure to 3.52, noted that It is to be given instruction, request therefor and shall be held limiting has been without MAI requested applicable plain 27.- if in the manner Rule error under where to constitute not MAI-CR, p. Taylor, provided 402 VIII. 20(c). 472 S.W.2d in this Rule.” v. State Martin, supra, DiPasquale, (Mo.1971); Compare 411 S.W.2d Commonwealth (Mo.1967). A.2d at 450. 18, 1973, May 20.02(a), adopted But Rule in MAI-CR instructions states the state and the numerous authorities favorable recommendation to the court sen- therein, upon tencing and we are convinced populous relied witness. less cir- this case the cause cuits or counties where the prose- that under the facts of elected cuting attorney only is the prosecutor, reversed and the defendant be should be happen every will time one codefendant a new trial. given pleads guilty and then testifies for the judgment of is reversed conviction state. pro- for further and the cause remanded regard given by prose- the “reason”
ceedings. simply cutor as an “excuse” to invoke a J., TURNAGE, MORGAN, Special whereby C. he can procedure get prior incon- Judge, jury concur. sistent statement before the and hope consider it as substantive evidence BARDGETT, J., sepa- concurs in result guilt. of defendant’s filed. opinion rate I concur in result. SEILER, J., concurs result concurs BARDGETT, separate opinion of J. FINCH, Judge, dissenting. DONNELLY, J., concurs in result. agree with much of the principal opin- However, I disagree ion. with the FINCH, J., portion separate dissenting dissents in thereof which concludes that for certain opinion filed. trial errors this conviction should be re- HENLEY, J., in sep- dissents concurs Hence, versed and remanded. I must re- FINCH, dissenting opinion arate J. spectfully dissent. RENDLEN, J., sitting. principal opinion reverses and re- BARDGETT, Judge, concurring in result. mands on the basis that certain evidence was improperly admitted in evidence and *14 agree in result I concur because the prosecutor improper argu- the case must be reversed remanded concerning ment such evidence in his clos- my doing trial. But reason for so is a new ing argument jury. Defendant made was, my opinion, error for the objection no at trial to the introduction of prosecution have called witness court question the evidence in objec- and made no Imrod Moore as the court’s witness argument tion to counsel’s which the princi- in this case. pal opinion holds to be reversible error. opinion suggest seems to Instead, counsel for argued given by when he reason jury, pointing same evidence to the out the court to call Moore as the requested portions thereof deemed to be favorable to sufficient, but footnote court’s witness defendant. suggest the element of 20 seems Defendant’s motion for new trial was si- necessary is before such action is at surprise objec- lent on both of these questions. No Additionally, there is justified. sug- all tion to the admission of the evidence in the defense did not make an gestion that question argument or the thereof Thus, objection. I am not at all adequate jury is mentioned. It first raised on to what the criterion is or will be in sure as appeal. event, any for this action. Missouri (codefendant principal opinion fact that a state’s witness concludes that these here) in a pled guilty plain has offense case matters are error for which a new granted. disagree. same is a usual handled trial should be These happens frequently, type It if not at are not the of trial errors for which occurrence. par- granted weekly, larger grant least in our circuits this court has or should principal opinion makes a deal new trial. The relies ticularly when Granberry, (Mo. with a codefendant to obtain S.W.2d 528 1973). However, prosecutor’s making Granberry for the banc did not in return plain error. The reverse on basis mention of Rule therein contains no
opinion
27.20(c) that what occurred nor does it hold plain error.
in that case constituted DYNAMICS ex rel. GENERAL
STATE Relator,
CORP., Corp., LUTEN, Jr., Drew W.
The Honorable Court,
Judge, St. Louis Circuit Missouri,
County, Respondent.
No. 60100. Missouri,
Supreme Court of
En Banc.
April Court’s Motion.
Opinion Modified On Own
Rehearing Denied June