*1 56 v. Ol-
weapon until him of State and beat her with it the stock the included offense. son, Spencer points 318, to a report (Mo. fell off. of also 636 321 S.W.2d banc Spencer having jailor to the effect of The here was the beat evidence shoulder, pellets for some in his gun. The fact her victim with required. medical attention was As injuries not as as to have severe Bainter, 429, (Mo. v. State 608 S.W.2d 432 Spencer does caused bones not aid broken defendant, App.1980), the his own point. in this Neither does his statement aggressor. He testimony, the forced the trying living of kick the “to shit out dragged from victim work into argument. help bitch” him on this house and her on the bed. There threw Spencer In his asks for a rever- point last Spencer’s under ac was no evidence even allowing sal for evidence any danger to him after he took count police responded to his scuffle with who weapon from the victim account for report beating, Alexander’s and ar- beating of her. Under elements beating Spencer’s rived at home while the self-defense, (a) paraphrased here as This out progress. is denied provoked have the as defendant must not judgment hand. affirmed. (b) aggressor; reasonably sault or been the necessity believed was faced with All concur. defending great bodily dan himself from c) necessary than ger; used no more force (d) attempted avoided dan to have v. State
ger, point fails. the defendant’s
Chambers, 781, 783 671 S.W.2d Christie, 806,
1984); State v. See § (Mo.App.1980). 563.031.2. on refusal instruct court’s Missouri, STATE gives degree rise to assault third Plaintiff-Respondent, charge Spencer’s point. next degree first and the was instructed degree. first and Section 565.-
both second FOULK, Robert W. 050, de Supp.1933, RSMo describes first Defendant-Appellant. causing attempting assault gree as the 49624. No. injury; 565.- physical to cause “serious” § 060, Supp.1983, RSMo defines second de Appeals, Court Missouri assault, gree applicable and as to this case District, Eastern being .050 the conduct under defines Division Three. done, pas “under the influence of sudden 13, 1987. Jan. Third arising adequate cause.” sion out of only physical inju degree assault covers Rehearing Transfer and/or Motion for 565.070, degree Third assault RSMo ry. March 1987. Denied attempt physi covers an cause Application to Transfer Denied assault is a injury. degree Third lesser cal 19,1987. May degree first and second offense of included Dunlap, 639 S.W.2d assault. supported by If (Mo.App.1982).
205-06 on a lesser included instruction Bigham, given, must
offense (Mo.App.1982). Sec 556.046.2, 1978 states there RSMo acquitting verdict be a basis for a
must charged, as here the offense to kill or cause serious attempting
sault convicting injury,
physical and evidence *4 Webster, Gen., Atty. L.
William Paul LaRose, Gen., Atty. City, Asst. Jefferson plaintiff-respondent. Columbia, Pingelton, Daniel J. for de- fendant-appellant.
SIMON, Judge. Foulk, Defendant, Robert W. was found rape, guilty of 566.030 RSMo 1978 and § 1978, at the sodomy, 566.060 RSMo con- of a the Circuit clusion trial in Court (All County. Cape Girardeau further references will be to RSMo unless noted.) jury’s to the otherwise Pursuant verdict, defendant to a term was sentenced years of ten for each offense be served consecutively. complaining
Defendant contends the trial court erred
witness’
evidence
(1) denying
inadmissible;
prior
in:
his offer
conduct is
evi-
sexual
prior sexual contacts
himself and
specific
between
dence
instances of the com-
(2)
complainant;
denying
his motion for
plaining
prior
witness’
sexual conduct or
dire; (3) sustaining
group
individual or
voir
or
the absence of such instances
conduct
objection
the state’s
to his cross-examina-
inadmissible, except
specif-
such
where
concerning
tion of a state witness
the com-
ic instances are:
plainant’s reputation
veracity;
for truth and
(1)
conduct of
Evidence of the sexual
(4) denying his motion to endorse two de-
complaining
the defend-
witness with
impeach
complaining
fense witnesses to
prove
consent
the evidence is
ant
witness; (5) sustaining
objection
state’s
contemporaneous
reasonably
with the
questions asked of a defense
con-
witness
crime;
alleged
date of the
or
cerning
prior injuries
observations
(2)
specific
instances of
Evidence
complainant similar to those attributed to
showing
activity
sexual
alternative
defendant; (6) overruling
objection
semen,
origin
pregnancy
source or
questions
motion for
to a
a mistrial over
disease;
regarding
state witness
whether the wit-
(3)
surrounding
of immediate
Evidence
“burglary”
ness had mentioned a
crime;
alleged
circumstances of the
(7)
during police interrogation;
fendant
al-
(4)
relating
previous
Evidence
lowing into evidence a letter he wrote from
complaining
chastity of the
witness
(8)
jail
plan
escape;
which indicated
cases, where,
statute,
previously
allowing
the state to use letters written
*5
required
proved
to be
chaste character
complainant
purposes
him to
of
prosecution.
defendant; (9)
impeaching
restricting voir
of
2. Evidence of the sexual conduct
allowing
question
not
him to
dire
under
complaining
witness offered
doubt,
panel regarding
of
areas
reasonable
extent
this section is admissible to the
proof
presumption
of
of inno-
burden
or
finds the evidence relevant
court
cence. We affirm.
to a material fact or issue.
sufficiency
As the
of the evidence is
case,
upon
relies
In the
instant
defendant,
challenged by
pertinent
proffered
arguing
that his
491.015.2
§
required
facts will be discussed insofar as
into
testimony should have been admitted
points.
to resolve defendant’s
reading
subsection
A careful
of
evidence.
one,
deny
In
defendant does not
indicate that
2 of
491.015 would seem to
§
complain-
engaging in sexual acts with the
prior sexual con-
in order for evidence of
ant,
alleges
his mother. He
the acts were
thereunder, the trial
duct to be admissible
and contends
the trial
consensual
rele-
must first find such “evidence
sustaining
court erred in
the state’s motion
fact or issue” under
vant to material
precluded
in limine
defendant from
in 491.015.-
exceptions listed
enumerated
§
introducing
prior
of a
act of con-
evidence
Comment,
1(1)-(4).
Interpreting Mis-
See
sensual sexual intercourse
himself
between
Statute, 53 U.M.
Rape
souri’s
Victim Shield
and his mother in 1979 and sexual advances
273,
(1985).
Am-
also
L.Rev.
289
See
K.C.
him in
by his mother towards
1981
Richtin,
Rape
Reform
burg
Evidence
&
1982.
Im-
Remedy
A
for the Adverse
Missouri:
recognizes
Victims,
that such evidence
Rape
pact Evidentiary Rules on
of
491.015,
presumed irrelevant under
367,
(1978).
How-
§
22
Louis U.L.J.
376
St.
“Rape
Law” unless it falls within
Shield
ever,
read
Supreme
our
Court had
subsec-
Brown,
exceptions.
636
one of the
provi-
2
as a “catch-all”
of
491.015
§
929,
(Mo.
S.W.2d
banc
Section
introduction
sion. Subsection
“allow[ed]
part:
provides
pertinent
491.015
trial court finds
which the
of
evidence”
issue, inde-
a material fact or
prosecutions
In
the crimes of
relevant to
1.
specific
relationship to the
conspir- pendent of its
rape, attempt
rape,
to commit
491.015.1(l)-(4).
reputa-
exceptions
listed
acy
rape, opinion
to commit
§
Brown,
(emphasis
at 933.
1979. The defendant offered
of
evidence
ours).
complaining
prior
witness’
sexual con-
approxi-
duct with
occurred
This
has
In
repudiated.
view
since been
mately
years prior.
three
The trial court
Jones,
tions contained in § Reasonably means within the bounds then to the extent that the trial court Contemporaneous of common sense. finds it fact relevant a material or issue originating, happening, means at under 491.015.2. Id. 800. § period the same of time. It is not com- say hap- mon sense events that 491.015.3, In accordance with de years pened apart almost three rea- required proof fendant made offer sonably contemporaneous. Crisp, 629 as to his what would have been. 479. S.W.2d at Defendant testified that in March of he had consensual sexual intercourse with approved This rationale was in Jones. mother; May that in his moth Jones, Additionally, at 801. S.W.2d attempted refused; er seduce him but whether, must examine under circum- and that in June of 1982 mother at stances, deprived the accused a fair tempted again to seduce him but he re by the exclusion the evidence. Id. fused. fact that a victim has Jones, the defendant offered evidence engaged in consensual sexual relations having consensual sexual intercourse some past with the defendant in the under sim three and one-half to four and one-half logical ilar conditions have some rele months before the date of the offense Brown, vance to the of consent. charged. Supreme Our Court affirmed at 934 (quoting United States reasonably exclusion of the evidence as not Kasto, (8th 584 F.2d Cir. 271-72 contemporaneous with the date of the al- 1978). Clearly, specific these instances *6 the leged crime. The court noted that had complainant’s alleged prior the sexual con swearing merely case involved a match be- duct are involving relevant this situation defendant, complainant the and the tween a mother and son. it been inclined to reverse would have and prior as Relevant the conduct However, remand for new trial. because be, however, it is not admissible unless complainant’s testimony the was corrobo- exception falls within an contained in testimony, rated with medical the court prior 491.015.1. Here the conduct does § deprived concluded that defendant was not only The exception arguably not. is that of fair Id. 801-02. a trial. 491.015.1(1), applicable permits which § prior evidence of sexual conduct between Although this factual situation complaining the witness and shocking, by and we are the unusual bound consent, prove be admitted to provided the holding. The instant case is not Jones reasonably contemporaneous evidence is swearing complaining mere match. The alleged with the date The the crime. of witness’ was corroborated specifically trial court that al found the 2, testimony. 1984, medical On June at leged prior conduct too remote under morning approximately A.M. on 4:30 491.015.1(1)to agree. be admissible. We alleged rape sodomy, after the and com plainant and St. alleged was admitted examined at sodomy forcible and Kasukonis, 1, evening Hospital. of Francis Dr. John E. occurred the June 1984. The Jr., examining alleged prior physician, testified that conduct occurred between years and the course of the five two before. v. examination State Crisp, (Mo.App.1981), widespread bruising complain 629 475 S.W.2d found about 5, face, back, arms, alleged of date crime October and her external was ant’s 62
genitalia, discretion, and that there internal shows an State were abuse Lumsden, 589 S.W.2d at vagina. 229, abrasions of her Dr. Kasukonis and a real bruising testified that the and abrasions probability injury complaining genitalia sexu- indicative violent Olinghouse, State v. party. 605 S.W.2d activity al and were consistent 58, (Mo. 68 banc penis dry forcible insertion of the into a requested voir dire vagina. Dr. Kasukonis testified further procedure necessary because complainant’s that face the bruises about particular facts of this case. Defendant being by a symptomatic struck reasons that because this concerned .case object blunt such a fist and mother, sexual acts and his between son on her and arms were bruises shoulder jurors some would be too inhibited to re- grasp” “pinch- of a “forceful indicative questions spond regarding whether conclude, ing type movement.” We separate biases, prejudices could their Jones, these circumstances the trial legal from duty moral convictions their court did not abuse its discretion nor was facts, apply the law to the and render a fair deprived Point of a fair trial. judgment. Consequently, defendant ar- denied. group gues private or small voir dire In defendant's second he contends provided alone would have defendant with denying appellant’s trial court erred proper setting possible out ferret alternative, or, motion for individual panel prejudice bias members toward group per small voir dire. the defendant. panelists mitted defendant to examine the Defendant contends that on four occa- up on row row and follow individual panel the venire sions “back row” of responses. Our has standard review asked one of them whether Supreme been established our Court impartially. No re- unable to act one be Smith, 417, (Mo. exchanges sponded. After several involv- 1983), cert. denied banc U.S. issues, only ing per- non-sexual after 246. S.Ct. 78 L.Ed.2d prodding panelist respond- McDaniel sonal purpose of voir dire is to enable exchange: ed. The participate in of a party each selection McDaniel, end, Ms. impartial DEFENSE COUNSEL: fair and impartial fair could based wide latitude allowed examination Lumsden, everything that have been talk- panel. 1979). During ing so far? about permit voir dire defendant should be I DANIEL: think PANELIST MC might develop ted facts could. of a manifest bias and form basis *7 Is there COUNSEL: some- DEFENSE cause, challenge for but also such facts thing you wrong way or that rubs detecting him might be useful to you it difficult for to be would make intelligently possibility and of bias impartial fair if selected? challenges. utilizing peremptory No, I I think MC DANIEL: PANELIST Brown, (Mo. 797, State v. 547 799 S.W.2d weigh to the evidence and would have 1977); Thompson, State v. 541 banc just rape all. that cases a little It’s (Mo.App.1976). Neverthe S.W.2d you rape is hard. I am itself know— less, their jurors examination of as to it, know, I you about but little nervous qualifications is the su conducted under weigh evidence and try to would the na pervision of the trial court and fair, yes. try to be questions extent counsel ture and responses Ms. do find of McDan- We not discretionary that may ask are with unwillingness of veni- Lumsden, as evidence of the iel court. up. makes repersons speak Defendant Rulings questioned the four dis much of the times dire be trial court voir will ability to im- regarding act appeal only record row their when the back turbed express partially, being your feelings each met with silence. true in a time court- setting such this? points example He room to McDaniel as an speak up. hand.) who too (Panelist someone inhibited Grossheider raised her The reason McDaniel not when answer Okay, DEFENSE COUNSEL: Mrs. her in her row was addressed is revealed Grossheider? upon questioning during answer direct PANELIST GROSSHEIDER: Yes. be which she answered that she could fair just Is DEFENSE COUNSEL: that be- Therefore, no impartial. she had rea- cause this is such a delicate matter or up speak son to her row was exam- when what? Furthermore, group. ined as McDaniel a I PANELIST GROSSHEIDER: am open testified court that facts of the very deeply religious and I sensitive am her, upon case would have some effect but person, and I am afraid that I could not capacity fairly.
would not control to act mean, partial I weigh —I McDaniel’s does not reveal a re- everything, the evidence and Ibut would speak openly regarding luctance in court feelings I say that have for some- the sensitive issues involved in this case. that, thing like I could not. inhibition, It does demonstrate DEFENSE COUNSEL: You could not so pervasive contends was impartial? be fair and panel. among the Well, I PANELIST GROSSHEIDER: examining record, problem could but carefully After it would be me. we exchange during find one other voir just DEFENSE COUNSEL: Is that be- support tends dire that defendant’s claim cause the nature of the crime itself panel members were too inhibited to being sodomy? speak open particu- court because PANELIST Yes. GROSSHEIDER: lar facts the case. anyone DEFENSE COUNSEL: Does (the DEFENSE COUNSEL: Mr. Hahn feelings? else share Mrs. Grossheider’s mentioned, prosecutor) guess has and I I see no hands. in my sidestepping there is use this responses begin with, one to has mentioned that panelists Boren and Grossheider are indica- this case involves act sexual inter- venirepanel’s tive of the entire reluctance woman, Webb, course between a Nancy candidly to answer and thus the trial court son, and her Robert Foulk. there Is allowing its in not indi- abused discretion anyone, smattering just group dire. We dis- vidual small voir facts, large that feels inhibited this agree.
courtroom, in front people we don’t all, procedure employed First of know, sitting people even next to will voir dire examination this case probably again, anyone never see does Richards, approval finds direct feel so inhibited that can’t raise Furthermore, (Mo.1971). speak their hands inup open court? happened in nothing that the trial court Is anyone way? there who feels that gave any generally to hold that the reason Boren, note, Ma’am, happen Ms. permissible procedure in this case was used when questioning, Mr. Hahn was spe counsel erroneous unfair. Defense looking if any- around see cifically on three occasions whether asked *8 body going to raise their hand. Do any venireperson difficulty have or feel, Ma’am, you by somewhat inhibited expressing feel true inhibited about their discussing very these delicate in matters open panel, in court. None of the beliefs open in mixed company? court Grossheider, panelists and besides Boren PANELIST BOREN: Yes. way indicated in that could not be anyone setting. DEFENSE COUNSEL: Does in frank candid the courtroom any- else Boren panelists feel Ms. does? Does Both Boren and Grossheider were Nothing one else feel as Ms. does this in the record Boren that stricken for cause. matter; probability injury” is a difficult real it would be difficult demonstrates “a by the use of to defendant’s cause dire there you voir is no foundation for it. When procedure used. The trial did not talking reputation, are about it is what ruling. its in abuse discretion its your knowledge person’s reputa- of the just is. Those items read into in point Defendant contends his third correct, record but there is no sustaining the trial that court erred an good showing that this associat- witness objection to a asked question defense people ed with the that ran around with counsel on of a cross-examination state’s her; why the im- question so that’s reputation as to witness the com- proper. plainant veracity. for truth and Defendant argues that this to a amounted denial of his The Deputy that right of for impeach- cross-examination investigation adequately James’ demon- ment, that, complainant already had tes- authority strated to testify his as to com- place credibility so as tified her in issue. plainant’s reputation for truthfulness witness, veracity him Deputy investigation Sheriff D. took
State’s Eddie because James, people into the testify community state to circles of called investigation complainant in which about incident be- moved. complainant, tween and the Deputy qualifications Since James’ sodomy charges stemming there- complainant’s testify reputa as to the from. On cross-examination James testi- established, tion was not the trial court that of this fied the course investi- correctly testimony. excluded the In State gation he a number of people interviewed Cross, (Mo.1961), 343 S.W.2d our concerning the incident. Supreme Court stated: Q. people Who were of the other some Our general reputation rule as wit- you talked to? Kain, nesses is stated well Paul Deputy A. talked Suver of the Mo., person ‘A 846[8]: Department, Scott County Sheriff’s possessing necessary testimonial City Officer of the Scott Police Hodo is, qualifications, acquaintance with Department, Kergious J. Crites who general reputation of the witness operator is the at the electric substa- neighborhood among people south, tion on 61 a Mike who Cowell with whom the witness for the associates City works at Truck Rhodes Plaza question, may testify character trait attendant, gas a Kenny a station (citations concerning reputation.’ such Kile, security guard who is a at Hav- omitted) co on Nash Wood Products Road— question posed several of the defense defendant’s attor- witnesses— Schoen, Mary ney mother of necessary the vic- did not contain the basis tim, ex-husband, Foulk, Deputy give opinion her Richard an James to daughter complainant’s reputation. her Melissa Foulk. There There is people. showing rep- other I can’t several he was her familiar with everybody's among remember name. neighborhood utation in her community where she Q. people? associates There were numerous lived. is without merit. Yes. A. Following this testimony, point, defense counsel In his fourth defendant contends attempted refusing to elicit from the witness that as the trial court erred in investigation, a result of his com- permit found witnesses the endorsement two plainant’s reputation for truthfulness to be day for the after the first of trial. defense Turner, to the objection bad. state’s sought to endorse Gina ground was sustained on the im- public an investigator defender’s proper foundation had been laid. At a office, Junger, liquor and Kevin clerk at bench conference the trial court stated: patronized by com- store defendant and De- question. plainant day of the incident. objection
I sustained the' on the *9 improper question that these would think it was an and fendant witnesses impeached complaining Third, the have upon witness. the matters which defendant allegedly sought Turner would have complaining testified to to impeach the witness in several inconsistencies an earlier state- were collateral. Junger complainant ment and would We have examined the record con- and allegedly he have testified that observed that trial did clude the court its abuse complainant’s contrary actions to her to denying request the for en- discretion testimony. direct dorsement. 8, August On the state filed a sought, through Gma and, produce among things, motion other Turner, complainant’s to contradict testi requested persons the names of whom areas; mony in argued four that she with fendant intended call as witnesses. De- husband, that she never discussed bor fendant’s answer not include the names rowing defendant, money with that she or Junger. Gina Turner With Kevin borrowing to liquor went a store after mon relevant, exceptions not here Rule 25.- ey, ballgame a that she went to after 05(A)(2)provides that the defendant shall visiting We two cemeteries. conclude that state, disclose to for counsel the the names these matters collateral the issues persons, and last known addresses of other the case. The defendant entitled to show defendant, than defendant whom intends prosecuting inconsistent statements any hearing call as witnesses at the or at witness, impeachment but such must not trial. concern an immaterial or collateral matter. trial, attempted At justify Alexander, 499 S.W.2d comply the failure to the state’s dis- (Mo.1973). dispute the When fact request covery grounds on the that there significance material no the case way knowing the that additional pertinent developed, issues necessary, that, witnesses would be Ball, the matter is collateral. State surprised complainant’s defense was at al- (Mo.App.1975). A matter testimony. legedly inconsistent alleged discrepancy is not if the collateral objected The state Jun- Turner’s and directly involves a crucial issue in contro ger’s proposed testimony on the ground versy part “any relates to of the wit that had not been endorsed. One of background ness’ account and cir the initial during pre- matters resolved transaction, cumstances of material trial conference was that witnesses experience a matter human both sides would be excluded from the if would not have been mistaken about trial, during courtroom except while Alexander, story were true.” testifying. present Gina Turner had been 443 (quoting at McCormick on Evidence por- in the courtroom a substantial (1954)). 47§ complaining testimony. witness’ case, In the instant we are unable to argued The state that the violation alleged conclude that inconsistencies witness exclusion rule and that Turner type complainant, as a testify as to justi- collateral matters experience, matter of human would not fied Junger’s her exclusion. As to Kevin been incidents have mistaken about. These testimony, argued per- state plaintiff occurred before was traumatized tained to a clearly collateral matter out- by rape sodomy. sodomy weighed by prejudice surprise hampered could have clear recollection the state. Complain the incidents that went before. ob- sustained state’s ant testified that she was dazed and
jection for three stated reasons and denied rape. after these shock Under circum request defendant’s to endorse the witness- stances, complainant could been have First, es. Turner had violated witness these mistaken about details. Second, exclusion rule. complainant making had Junger, not denied Kevin statements As to impeachment. defendant wanted to use sought to show his com- *10 package preserve plainant proffered had at a certain To the exclusion of tes- been Missouri, prior liquor City, timony store Scott for review it is essential that the Complainant helping a stranded motorist. objection offer be made at the time of the testified that she had not been at the store thereto. The offer must show what evi- counsel, in prior to this event. Defense given permit- dence if the will be witness Junger proof, offer of stated that would answer, purpose object ted to and the testify that he remembered introduced, testimony sought to be of the evening. came into the store twice that necessary and all of the facts to establish approxi- The time would have been at first admissibility in suffi- evidence according mately p.m., to com- 6:30 relevancy cient detail to demonstrate its testimony prior plainant’s would have been Harlston, materiality. rendered to to the time that assistance was (Mo.App.1978). pur- the stranded motorist. Defense counsel pose of these formalities is to make certain Junger testify unsure whether opposing that the trial court and counsel complainant came into the store whether being offered, understand what evidence Junger if first time or even could testi- and it is for this reason complainant identify fy that he knew enough detail to demon- should be stated her. conclude that this incident was We Id. relevancy. materiality and its strate its collateral to the issues in the case also offer to Defendant here made no show concerning guilt. This is the defendant’s expected say. what he the witness episode one could mistaken sort point preserved not for review. has been raped so- being forcibly after about point In six defendant claims that not its domized. The trial court did abuse overruling defendant’s trial court erred discretion. denying request for mis- objection and five, defendant contends that the Deputy the state asked Sheriff trial after sustaining objection trial court erred an Eddie in its case-in-chief whether James question put to defense witness Rich- burgla- regarding a questioned defendant (defendant’s father). Defendant ard Foulk ry- right argues that he was denied the present in that he was relevant evidence following interrogation of James is permitted question Richard Foulk as It allegation of error. subject complainant received injuries to similar case-in-chief. occurred the state’s alleged prior rape. to the Deputy, you what PROSECUTOR: made no of regard
Counsel for defendant say to him [defendant] proof as to Richard Foulk’s fer what burglary? at time the testimony would have been Nothing. DEPUTY: objection thereto was sustained. state’s Honor, Your DEFENSE COUNSEL: appears All in the record is defense approach the bench? counsel’s conclusion that Yes, sir. THE COURT: inju prior
would be relevant because (Counsel approached the bench and injuries similar to the attributable ries were following had out of proceedings were probative to the and because was hearing jury:) injuries might have inflicted the to who rape. Accordingly, this associated with the Judge, I think DEFENSE COUNSEL: preserved appeal because point was not prejudicial and I am highly that was proof was made. proper offer going to ask for a mistrial. We burglary case we are not here on a but objection is sustained When rape, of consent or here on an issue evidence, offering party proffered irrelevant, preju- bringing in this relevancy materiality by must show its matter,— dicial pre proof in order to way of an offer of Let’s think back THE COURT: review. appellate issue for serve the say Did Brown, 10,16 (Mo.App.1980). opening statement. something *11 your opening that in about fendant’s arrest. Counsel narrated defend- story statement? ant’s follows: Opening County DEFENSE COUNSEL: state- Sheriff Scott law enforce- ment officer came pick ments are not evidence. that [defend- up he didn’t tell what ant] [defendant] objection THE COURT: overruled. being was taken down to the station for. Thank you, PROSECUTOR: Your Hon- thought go he was to down [Defendant] or. working there a possibly to see about out THE request COURT: Your is denied. there, matter he that had a fine. (Proceedings jury.) resumed before the transported was to Scott [Defendant] you PROSECUTOR: What did talk to County and then the Sheriff this coun- the defendant about? ty Deputy picked him up James sodomy. the DEPUTY: About Benton, here, bringing again up him any PROSECUTOR: other of- Was there him, accusing saying: ask him “You fense? suspect burglary Cape a in a that DEPUTY: No. happened night.” last you Are PROSECUTOR: certain of that? you Robert will tell he said: “That can’t DEPUTY: Positive. got true I was and I a be because out night.” little last Those will his be We initially note that defendant They “Well, that’s we words. said: all object did not to the state’s about (emphasis added). need to know.” At burglary. the bench de conference only requested During fendant that a be mistrial the course defendant’s case-in- chief, grant declared. The brought decision to a mistrial counsel out an- defense ticipated rests proof opening within trial court’s alluded to in his sound discre Gilbert, tion. 943 statement. It must be remembered Robert, DEFENSE COUNSEL:
that mistrial is a remedy, drastic be deputies have an occasion talk to the granted greatest only with the caution and about this incident? extraordinary most circumstances. Uh, sir, uh, yes, APPELLANT: Sheriff Id. this situation we must determine James, uh, uh, Gribler and Officer whether, law, as matter here, they bringing up when me in refusing abused its discretion to declare Cape between first exit and a mistrial. Camper, exit, Cape he second Sheriff Gribler (Mo.1965). 927-28 me, “Robert, got your asked said: hap- description burglary over a argues that no issue of fact pened Cape City night.” last as to the “burglary” was before the him, “Hey, I I said: That’s when told when James testified because at that time it me out how could because was put any defendant had not on evidence. getting night me I can some last Thus, defendant maintains testimo- prove I was at.” where irrelevant, ny was prejudicial and inflam- was re- DEFENSE COUNSEL: What and, matory therefore, a mistrial should sponse you? granted. argues have been The state APPELLANT: That’s when said that defendant invited this error and should not know, wanting was all complain. now be heard to The state main- added). (emphasis tains that because counsel for defendant burglary opening referred to the in his attempt testimony, In an this refute statement and because later tes- defendant Sheriff Herman Gibler state called same, tified to the not now at no witness. Gibler testified that time advantage any take of an error of his own burglary. mention made making. testimony. object to this Defendant did counsel,
Defense in his in opening state- We think it clear that error ment, Deputy surrounding related the tervened in James’ events the admission testimony concerning appeal, to de- In his what he said seventh regard burglary. fendant to a This claims that the trial court erred admit- ting entirely into evidence a letter written him. irrelevant defendant, i.e., charges against rape Defendant the rules of dis- laid sodomy. covery were violated in that the letter was Contrary to the state’s asser- tion, timely defense counsel’s mention of the bur- disclosed and that the letter was glary opening in- admitted in violation of the statement did not best burglary rule. terject the issue into the case. *12 opening An statement does not constitute any particular Defendant does not cite Hoelzer, evidence. State v. 493 S.W.2d discovery rule of the state violated. 703, (Mo.App.1973). Apparently, 706 the Rather, conclusively he avers that “dis- got seeking im- state ahead of itself in covery rules” were violated because a let- But, peach story. defendant’s as there was by ter written defendant was not disclosed nothing impeach, error evidence was by morning the until of trial. state On testimony
to allow James’ into evidence. 8, 1984, August defendant filed a motion to produce requested, among other Likewise, defendant did not ac books, documents, pho- things, any papers, quiesce by introducing counter the error tographs possessed state and that that the vailing testimony of defendant. Where 25.03(A)(6). pertained to the case. Rule party ruling an of the is forced adverse 21,1984, responded On November the state to meet he or she trial court an issue which possessed that it “letters of revealed meet, compelled should not be the fact 4, began defendant.” The trial December thereupon he or she adduces counter During 1984. the trial defendant testified vailing upon such issue does not evidence he the let- on cross-examination that wrote preclude party insisting appeal from 4, on November 1984. The ter original ruling that the of the trial court copies provide state did not defendant with wrong. High See State ex rel. State possessed and it does not of the letters it Co., way 233 Commission v. Blobeck Inv. appear from the record that defendant ever 858, 860, (1937). Mo.App. 110 S.W.2d 863 sought copies of the letters or to obtain Davis, Mo.App. also Robert v. 235 See their contents. (1940). 1116-17 both letter, admittedly written defend- The Robert, parties appealing Blobeck and ant, plan escaping could be read as a objected had to the admission of evidence Cape County Jail from the Girardeau erroneously that the trial court admitted. being pending held which defendant was thereafter, parties, similar introduced conference, pretrial During the trial. This, however, deemed evidence. was not prohibit in limine to fendant made a motion precluded appeal of the trial to have using any state from ruling. court’s erroneous attempt grounds of relevan- escape on the denied cy. preliminarily The trial court Although conclude there was motion, receipt pending the error, required. tes defendant’s reversal is not James at trial. Dur- “nothing” about a further testimonial evidence tified that he mentioned relating to defendant’s ing the discussion burglary to defendant. There was no testi motion, mentioned engaged in other counsel for defendant mony that defendant had him with provided state had not to the con that the crimes. However, request he mis the letter. trary. request After defendant’s on a trial, exclude the letter based that no other the court to the state made clear discovery. At the Further, of the rules of violation offense was involved. evidence, admitted into coun time the letter was at least made aware defense lodge objection based subject of defendant did not opening statement that the sel’s Defendant’s discovery violation. might these circum on a burglary arise. Under on the best evidence objection harm was based find that the error was stances we rule. less. recognized he the copy
We conclude that defendant has of the letter and discovery preserve failed to rule viola that all its contents were accurate. He recognized testified Objections copy tion claim for review. evi specific, point letter and that all its dence must out the contents were accu- be must thereof, grounds rate. He testified that he and are to be determined remembered writing every line upon copy contained grounds stated therein. the letter. appeal upon raised on must be based theory objection made at stated, Simply the best evi Lang, trial. State v. requires proving dence “in rule Merchant, (Mo.1974). In writing, where terms are terms of a (Mo.1938), object S.W.2d 303 the defendant material, original writing pro must be ground ed to records hospital on the it was duced it is unless shown to unavailable “not the evidence.” The best records con for some reason other than the serious cerned the condition of a victim the proponent.” fault of the McCormick on day appeal, after the offense. On the de Evidence, (3rd p. 230 at ed. *13 argued fendant he had been denied the added). (emphasis “The best evidence rule right by constitutional confrontation the play simply does not come into because a preclusion Supreme of the records. Our testifying witness is to facts which are also Court ruled that constitutional claim writing. a contained in It is activated preserved objection was not because the at writing are the terms in dis when Here, trial was not sufficient. Id. at 304. Mock, pute.” Moschale 591 S.W.2d we are confronted with a similar situation. (Mo.App.1979) (emphasis original). in We that believe defendant’s “best evi Here, dispute there is what was objection dence” was pre insufficient copy contained in the of the letter. We serve his claim of discovery violation for conclude that trial court did not err in review. copy receiving into evidence the of the let ter. event, any reviewing
In point argues In plain eight, defendant that the error find injustice. no manifest permitting trial in court erred ten concedes, As letters' discovery defendant when (State’s 11J) through 11A violated, Exhibits written rules question of remedy by by him mother used to his to be lies within the sound of the discretion trial impeach during state to him cross-examina- Royal, court. argues tion. Defendant that letters Discretion abused proper impeachment tool not a be- when the impose trial fails to a sanc cause the of a claim innocence lack tion only where admittance of the evi letters, defendant did not constitute dence results a fundamental unfairness guilt an contradict admission to the defendant. Fundamental unfairness claim of innocence. is measured whether the earlier dis covery of the evidence likely would have trial, objected At that the let- Here, Id. affected the result of the trial. irrelevant, prejudicial, ters were and invad- we cannot conclude there was fundamental jury’s ed the province. Defendant failed to ample unfairness. There was evidence to explain prejudicial how the letters were guilt. establish defendant’s letter only specified generally the letters question impeach was used to defend on were irrelevant the issue of consent. credibility. ant’s trial, his motion for new defendant claimed prejudice in admission of the letters
We turn to now defendant’s contention because: copy that the of a admission letter allowing violated the best evidence rule. erred trial court state, plaintiff recog- objection,
At testified that he over defendant’s to im- through nized He 11A copy properly letter. testified use state’s exhibits handwriting that it was in his of the de- that he 11J cross-examination had written such a letter. testified This was error for the reason He fendant. the issue of the letters not direct
raised on defendant’s examination Q. You have written of let- number proper nor impeach- were the letters a mother, your you? ters to haven’t ment tool as none of them were related Yes, A. sir. credibility. to defendant’s Q. letters, purpose And the of those testified, you’ve is to your tell her of that defendant apparent It please drop innocence and theory of a himself trying now avail charge; prose- there’s no reason to This, trial. defend objection not raised at innocent cute an man—is that cor- appeal must be not do. A on ant rect? objec theory upon the voiced based Yes, A. sir. trial, expand cannot at and a defendant objection made. change appeal the on asked as defendant was to whether Applewhite, 682 appeared word “innocent” theory defendant’s (Mo.App.1984). Since Only letters. in letter 11-A the term did premise for the not the appeal appear. wrote, innocent “I’m trial, preserved at objection going my talk defender next week point had However, if the even review. get file him to a motion for a fast and unavailing. preserved, it would been speedy going everything I’m trial and to do say but I’m innocent.” Defendant testified appeal, defendant On appear that the word “innocent” admitted because improperly letters were any of the other letters. his claim of inno- they did not contradict cence, admission nor did amount A in a criminal case who *14 the in prosecutor used letters guilt. The testify elects to in his own behalf be di- defendant. On attempt impeach to any in as cross-examined detail to matter examination, ques- defendant was rect generally to in his examina referred direct to letters written one of the tioned about impeached tion and may be contradicted or 11-J). (State’s mother Exhibit his as other witness. 546.260 RSMo Here, (Supp.1984). contends defendant Q. Why you did write that to letter improperly that the were used on letters your mother? no contradiction cross-examination because asking drop A. I if she her would occurred claim of in between defendant’s charges keep going the from to to the to nocence at trial and letters used trial. true, impeach is him. It as defendant Q. For what reason? letters, maintains, his silence in his Well, uh, is, uh, uh, A. I how she know 11-J, 11-B as to innocence through his the alcohol her husband I and too. guilt does not an admission of constitute go through didn’t want her to a trial claim of and not inconsistent with his go through and me a trial over innocence on direct examination. I did not I something that do. asking even—I her—I was her asked however, This, does not end our drop charges, (emphasis to add- inquiry. brought up matter ed). why to his moth letter 11-J was written cross-examination, In defendant was asked Defendant, as during er his case-in-chief. all the he had written to his about letters reason, part of said that he did not his mother, including Exhibit 11-J. State’s something “go through a trial want over Q. your testimony you earlier Now opened not This the door for do.” wrote her a letter [Exhibit 11-J] why the let state’s cross-examination charge get drop because If in examina ters were written. direct innocent, you were is that correct? tion, general way refers in defendant sir, Yes, asking drop her to A. may then cross-exam subject, to a he charge. subject. in ined detail on State Q. Because innocence? your (Mo. Murphy, banc 1979). course, Yes, the trial is vested court A. sir. Of determining impartial with broad in discretion careful consideration of all Lue, cross-examination. extent of in the evidence the case. beyond Proof a reasonable doubt proof you firmly that leaves convinced of case, In the instant defendant guilt. the defendant’s The law does not general subject purpose broached the of his proof require every pos- that overcomes writing letter his mother. This If, your doubt. sible after consideration scope matter was within of cross-exam evidence, you fairly of all the are con- prosecutor right ination. The had the (a) (the) guilty vinced inquire in on In subject. detail this so charged, you the crime will find him doing, prosecutor defend elicited from you convinced, If guilty. you are not so ant that purpose writing letters give him must the benefit the doubt
was to tell mother of his innocence. find him guilty. this, Once defendant stated of his the lack judge The trial both advised counsel that through claim of innocence letters 11-B reading after the above instruction he 11-J became a contradiction and thus were panel ask the they would whether 11-A, could properly admitted. As to letter If responded all follow instruction. find that defendant’s statement affirmatively, then counsel both were to would “everything say do I’m but inno questioning refrain from cent,” those areas. is inconsistent with his claim inno Thus, cence. the letters properly ad exception Defendant took with the trial mitted. ruling proposed ques- court’s several tions he desired to ask. appeal, his final the jury ques- We like to ask claims that the trial erred in restrict- tions, for example, gentle- “Ladies and ing voir allowing dire examination jury, you sitting men of the here counsel panel areas right trial, you now in do doubt, this feel that reasonable burden proof, pre- present Mr. Foulk must in fact sumption of innocence. question: case?” this And another summoning Prior to the jury, feel, sitting right “Do now in this judge advised both counsel that case, guilty that Mr. Foulk is either voir dire examination were to refrain *15 guilty stage proceed- at this of the going from into the presumption areas of ings.?” innocence, proof, burden reason- that the court’s re- judge able ques- doubt. The trial deemed right striction denied his constitutional tions unnecessary counsel in these areas jury particularized impartial because as he specifi- intended to instruct exposed questioning specific could have bi- cally in these areas under 2d MAI-CR 1.02 ases. and MAI-CR 2d 2.20. Both instructions following contain the direction: venireper- The examination of charge any The offense not evi- is qualifications sons as their to sit as dence, and it creates no inference jurors subject supervision to the of the any (the) offense was committed or that Although trial court. a liberal latitude is (either) (any) guilty defendant is of an panel, in allowed the examination offense. possesses infinite. The trial (Each)
The presumed defendant is as to the discretion nature extent of until, during your be innocent unless and questions what counsel ask and the your verdict, upon deliberations find of the will exercise discretion be disturbed him guilty. presumption This inno- appeal only record when the shows a places upon cence the state the burden of manifest abuse of that discretion. State v. proving beyond a Lumsden, reasonable doubt (Mo. 229 589 S.W.2d banc (the) (either) (any) guilty. precise point raised here was State,
A reasonable doubt is a decided Williams v. based in 558 doubt S.W.2d upon (Mo.App.1977). judge reason and common after sense 671 The trial in Williams instructed the venirepersons began con- Before the trial defendant testi- innocence, cerning presumption satisfy in bur- fied camera 491.015.3RSMo proof, opposition den of and reasonable and in motion doubt to the state’s inquired panel charged if in limine. member would acts occurred on 1,1984. unable to his instruction. held in Decem- follow Our June trial was ber, prepared of the Western District concluded 1984. Defendant to tes- brethren March, 1979, tify that the trial court did not abuse its discre- in his mother se- refusing in home; to allow defense counsel to him duced in her 1981 she a second time. Id. ground automobile; attempted cover the same to seduce him an There, here, at 674. defense counsel and, again in June 1982 in her home she gave seeking no indication that he was attempted to seduce him. The first two particular develop whether or not venire- drinking occasions were connected with persons unyielding entertained views which By testimony on habit. each occasion prevent following them from the law urged she him to view her a different Id. pursuant to the court’s instruction. identity-that of her second husband’s first sought per- Defense counsel here their ag- wife. The elements of who was the feelings respecting the rules referred sonal gressor, her use of alcohol and location venireperson’s personal feeling as to. The charged were acts. A fur- common unless so un- to the law are immaterial prior ther fact connected these matters to yielding preclude so as to them from fol- charged By testimo- acts. defendant’s lowing the law under the court’s instruc- Webb, ny Nancy open- Bill Webb’s husband Smith, tion. State v. 422 S.W.2d 67-68 ly engaging in sexual acts accused her (Mo. 1967). Here, banc there was abuse with defendant. At trial defendant testi- refusing of discretion the trial court part fied of the seduction was a statement counsel to further allow by his mother that since were accused proof, presumption of areas of burden of they may indulge. The of such acts as well innocence, and reasonable doubt. See prior explain this statement and events Evans, (Mo. State important. made it relevant and App.1985). holdings of this case was tried the When foregoing judgment For the reasons the Brown, Court Supreme our is affirmed. 1982) (Mo. banc 1982)
Ray,
KAROHL, Judge, dissenting. excep- *16 “Rape Four Shield Law.” in 491.015.1 and a tions were described facts of this case are that a § The essential in 491.015.2. This view has since rape fifth accused her son of and sod- mother § Jones, reconsidered. omy. He admitted sexual acts with his been 1986), Blackmar and mother, aggressor. claimed she was the but Jones, dissenting. the court an admitted active alcoholic and Welliver She was corroborating physical evi- drinking question. heavily in relied on was on the occasion relatives, mother, support complaining in wit- including her dence of Her testi- testimony opined, and this case not trusted to tell the ness’s fied she could be “[i]f swearing merely a match between supported by some involved truth. Her version was and the accused on complaining witness injuries. evidence of The function inclined guilty, the issue of consent would to decide who was [it be] held, and remand.” Id. 801. It seducing complaining of her son to reverse witness circumstances, say we cannot relationship the son these into an or incestuous “[in] its discretion the trial court abused crimes. of detestable appellant and the deprived nothing of a fair in rape find shield statute trial.” prohibits testimony which where there are coincidental facts and circumstances in present On the facts and view of involving alleged prior and events Jones, discussion in upon ap- the decision present directly facts relevant pellant’s depends upon first claim of error charges. his defense to current Fur- inquiry pure an as to whether there awas ther, this evidence was admissible under swearing match and of whether exclusion 491.015.1(1) RSMo either in the § proffered such an abuse form of or cross-examination his own testi- of to deny discretion as fair defendant a mony question considering when of trial. time, period consent a mother. No of The circumstances in un- this case are certainly years, not two would be not rea- unique. if usual if Even sexual as- sonably contemporaneous purposes of saults are all too common the applying the shield law. What was unrea- sodomy by a of son his mother is not a in sonable would not Jones be unreason- charge. common The element of consent able this is case. Jones not decisive. extraordinary was therefore and cast a like burden Defendant’s third com- whose sole defense claim error mother, plains was consent cross-examination not mere con- restriction of charges sent. The reputation and the on the issue of the com- circumstances outrageous, are in so plaining themselves whether witness. On this claim of error innocent, or not the guilty. defendant is or agree by major- with the result reached For this reason the determination of ity. what There is or an alternative additional reasonably contemporaneous must be deny reason to error on this claim. There very carefully in order scrutinized that a was considerable evidence that the com- special fair trial on these facts be may plaining person. witness was not a truthful insured. mother Her sister so testified for possibility of prejudice defendant. The trial court refused the evidence sole- denying this is too remote to ly on test provided of remoteness as find error. 491.015.1(1). The period relevant is from March, June, 1982, compared Finally, there defendant’s claim June, 1984. What too remote impartial jury. he was denied an The court case, example strang- one as for between panel instructed the venire with MAI. CR ers, is not necessarily too remote in anoth- part 2d 2.20 as 2d 1.02 and MAI-CR er. We have other cases to determine panel fol- asked whether not the could reasonably what contemporaneous those It both low instructions. directed analysis these facts. The must be more parties presumption not to voir dire on basic. innocence, proof, burden of reasonable proof beyond
Under the
circumstances
this case two doubt
reasonable doubt.
years is
exception
not unreasonably contemporane-
suggested
Defendant took
Applying
questions
“questions
ous.
shield “should
two
wanted and
prive
pre-
opportunity
like nature.” We need not decide the
Jones,
question
vent his whole defense.”
can
broad
whether
(view Judge
pre-empt
record that counsel would abuse process qualifying jury.
the selection person
The state of mind of a venire
distinctly promise different than a to follow procedure
the court’s instructions. This State, was not followed v. Williams Missouri, Respondent, STATE Williams, (Mo.App.1977). In S.W.2d 671 questions permitted and the court re- RODRIGUEZ, Appellant. Paul M. permit al- fused answers matters ready covered the court. The trial court No. WD 38431. questions present deny case did not Appeals, Missouri Court of summarily de- for that reason because it District. Western questions nied all in these areas. In so 20, 1987. Jan. doing misapplied and foreclos- Williams any person ed determination that a venire Rehearing Motion for and/or unyielding on these matters. held views Supreme Transfer to Court Denied holding basis Williams March 1987. questions that counsel did not indicate his developing were directed toward whether person
an individual “entertained venire said, unyielding views.” The court Columbia, Pendergraph, “[n]o K. for Melinda question is raised limitation on appellant. questioning” counsel’s individual Id. 674. Webster, Gen., Atty. L. Eliza William only held the court could Williams Gen., Levin, Atty. Asst. Jefferson beth deny questions re- answers which were City, respondent. for questions proposed
petitive. Neither of the repetitive. PRITCHARD, P.J., defendant were Neither Before paraphrase BERREY, question relates to a statement MANFORD and JJ. Smith, this reason of the law. For 1967) 67-68 ORDER personal inapposite. dealt Smith PER CURIAM:
feelings on the merits of the rules of law appeal Direct from a conviction contained MAI-CR 2d 2.20. It did not degree, in violation of burglary, second feel- approve prohibiting a on the 569.170, RSMo 1978.1 ings person on the effect of a of a venire does not offer defendant who 30.25(b). Judgment affirmed. Rule prejudged. On whether case had been contrary, questions may these evoke “unyielding
answers which indicate an inquiry In this case no was allowed
view.” that the any pujóse with the result
defendant was denied information to which process. entitled in the selection appears
1. Section 569.170 now in RSMo 1986.