623 S.W.2d 574 | Mo. Ct. App. | 1981
Defendant was convicted of two counts of first degree assault. His appeal charges trial court error in failing to declare a mistrial after comments by witnesses to a separate crime and in allowing a witness to testify that defendant had made threatening telephone calls to her. We affirm.
During defendant’s testimony the following colloquy ensued between the prosecutor and defendant:
Q Now, on direct examination you stated you knew the difference between an automatic and revolver. How do you know that difference?
A Well, I have seen a lot of guns.
Q Ever had one yourself?
A No.
Q Ever used one? Ever shoot anyone?
A No.
Q Ever tell anyone you shot someone?
A No.
Later, the prosecutor advised the court that he intended to impeach defendant’s credibility by asking Ms. Boyd on rebuttal whether defendant had admitted to her that he had shot someone. The following question and answer were forthcoming:
Q (By Mr. Warren) [Prosecutor] What [sic] George Ford tell you about another shooting?
A He was telling me how he had a robbery. How he shot the man in the robbery.
The record leaves no doubt that “the robbery” portion of the answer was totally unsolicited and unexpected. The trial court carefully instructed the jury to disregard the remark about the robbery, but denied requests for a mistrial.
Another rebuttal witness was permitted to testify that the defendant had confided to her that he had shot another person. Thus, defendant’s first point of appeal is framed: a mistrial should have been declared at the mention of another crime. The drastic action of mistrial does not appear to be required in this situation. As noted defendant disclaimed ownership, use, or involvement with guns in any manner. Testimony elicited from rebuttal witnesses regarding admitted use of guns therefore seems to be within fair purview of impeachment. After taking the stand, defendant may be contradicted and impeached as any other witness. State v. Black, 587 S.W.2d 865, 878 (Mo.App.1979). And specific acts of misconduct which may or may not have had basis for conviction may be shown to discredit his veracity. State v. Weaver, 591 S.W.2d 727, 730 (Mo.App.1979); State v. Williams, 492 S.W.2d 1, 7 (Mo.App.1973).
The interrogation in issue does not run afoul of the strictures of State v. Dunn, 577 S.W.2d 649 (Mo.banc 1979), which prohibits detailed statements of defendant’s alleged prior acts of misconduct during cross-examination. In this case, there was no objection raised to the question during defendant’s cross-examination regarding his
Nor did the mention of the robbery in connection with the one witness’ rebuttal concerning the shooting incident prejudice defendant. The remark was merely volunteered, an unintentional revelation, and the jury was instructed to disregard it. We defer to the trial court’s coign of vantage to judge the prejudicial effect of such a volunteered statement and find no abuse of discretion in failing to declare a mistrial. State v. Crawford, 619 S.W.2d 735 (Mo.1981); State v. Warden, 591 S.W.2d 170,172 (Mo.App.1979).
The other point urged by defendant is that it was error to admit evidence that he had made threatening telephone calls to a state’s witness. The witness testified that she had known defendant “about a year” and had been in his company “a whole lot” and had had conversations with him; that he had called her on the telephone four times since the crime charged; that he had identified himself to her and that she recognized his face. There was substantial basis, therefore, to relate the threats made to her over the telephone by defendant. State v. Smith, 498 S.W.2d 595, 598-99 (Mo.App.1973). And certainly, such threats were relevant evidence. U. S. v. Neville, 516 F.2d 1302, 1308 (8th Cir.), cert. denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 251 (1975).
Judgment affirmed.