*1 Missouri, STATE of
Plaintiff-Respondent, REILLY, Defendant-Appellant.
David
No. 65620.
Supreme Banc.
En
July
Rehearing Sept. 11, 1984. Denied *2 Pleban, Louis,
C. John St. for defendant- appellant. Ashcroft,
John Gen., Atty. Janet Papa- george, Gen., Atty. Asst. City, Jefferson for plaintiff-respondent.
HIGGINS, Judge. Reilly by jury
David was convicted stealing $150, property worth in excess of 570.030, in violation of section RSMo 1978. District, Appeals, Court of Eastern affirmed, holding, among things, the trial court did not abuse its discretion when it admitted rebuttal of defendant’s evidence. This granted transfer to examine whether the rebuttal of a witness whose inquiry con- into the defendant’s character solely questions sisted directed to defendant’s resi- the area of dence satisfied the standards for admissi- bility enunciated 20, (Mo.1961). Affirmed. jury found that the defendant and from Truck two others stole a safe Smith’s . The Stop in Marion Missouri. money therein three divided the contained disposed of the safe and its con- and then thieves, Perrine, tents. One of the stop employee at the truck was an ultimately confessed to his theft, declaring at first that he perpetrator, later had been the sole but implicating the defendant and the other trial, “peace defendant’s participant. At the owner of the safe This Court held gave opinion that the of the safe non-violence.” the evidence. trial court excluded exceeded also heard evi- $150. investigation made for the pri- Noting that an pertaining to the safe’s contents discovering gener- one’s specific purpose of or to the theft. *3 valuable probatively could be reputation al in Appellant charges the trial court erred scope, in time and sufficiently if extensive testify permitting Sheriff Harold White upon that the record determined that, in of conversa- rebuttal basis investigation was not “so con- it the before Illinois, in tions with on the fact qualify as to the witness ducted honesty for defendant’s reputation.” Id. of the defendant's issue good. He also law abidance was not at 24-25. charges pretrial Perrine’s state- ments to should not have been admit- investigation of Sheriff White’s they were con- ted into evidence because less extensive character was defendant’s trial and were sistent with his at in paid investigator Cross. that of the credibil- improperly employed to bolster his But, Cross, character in the defendant’s ity prior impeachment; that it error issue; was in here the yet placed had not been permit testify as to the safe’s owner his char introduced evidence value; insuffi- the safe’s there was he his defense. When acter as value; cient and that evidence evidence issue, exposed he in placed his character the safe’s contents should not have been his designed to rebut to evidence himself such was evidence of oth- received because A defendant good character. evidence of er crimes. offering evidence of his has the choice risk, at some he does so reputation, but placed his character in Defendant Burr, v. State calling testified by issue two witnesses who may introduce the state App.1976),because honesty and law that his wit defendant’s suggesting that evidence re good. abidance The state adduced rep defendant’s unfamiliar with nesses are testimony by calling Sheriff buttal to this prior Facts are untruthful. utation or White, who testified that he had conducted miscon of defendant’s or rumors arrests investigation of defendant’s character an in faith to may be introduced duct law-abiding and discovered it to be neither defendant’s witness credibility of test the investigation nor honest. Sheriff White’s at 532. es. Id. en consisted of with law conversations city of forcement officers in defendant’s held that Thus, it has been while residence, v. Quincy, Illinois. U.S. prove by Cf. seek to cannot cross-examination (8th Cir. 453 F.2d Straughan, that a defendant insinuation rumor or 1972). objected Defendant to Sheriff Selle, crimes, v. State guilty of testimony and unsuccessful White’s moved (Mo.1963),the state is 529-530 S.W.2d ly for He continues to assert a mistrial. upon a defendant’s to cast doubt permitted possess the nec White did not that Sheriff introducing by evi reputation evidence qualifications, and that essary testimonial impeaches a de misconduct dence of his testi to receive the trial court’s decision case, in credibility. In this fense witness’ holding in mony conflicts with Court’s or insinu of misconduct to rumors contrast (Mo.1961). Cross, crimes, simply ations of other contrary White through Sheriff presented trial for rob- In a defendant on as character the defendant’s evidence of testimony of a bery sought to introduce the in defendant’s by police officers attorney. perceived investigator hired paid that most community. “It is well known spent day more than a investigator had acquaintance have a wide police officers and had interviewed town in defendant’s and the fact citizenry general among the he stated twenty persons; approximately police officer known to a person that a knowledge of the acquired thus he had necessarily convey impression alleges Appellant does not the trial court that he has a criminal permitting record.” State v. owner to erred safe’s (Mo.1959). Pitchford, 324 S.W.2d testify the value of the safe. On as to Knicker, v. See also State direct stated his examination owner (Mo.1968). The trial court was there- opinion that the value of the safe was permitted fore within its discretion when it approximately He then testified on $250. character, the state to rebut evidence of cross-examination that he had noted the issue, already tending with catalog price comparable safe. The discredit the elicited from the any attempt court excluded to tes Although defendant’s witnesses. Sheriff tify catalog. as to information White’s would not have been ad- only was thus the evi Cross, supra, missible under as dence of value adduced. reputation on direct examina- evidence of *4 The of property owner stolen tion, permissible it was rebuttal of evidence experienced need not in valuating be such already issue, in suggestive and not property express in order to opinion. an history criminal record or of misconduct Brewer, 782, v. 286 State S.W.2d 783 that attributed to. the defendant. 1956). opinion And an owner’s can be sub Appellant contends the trial court erred stantial evidence of an item’s worth. State admitting in the of Per- Eiland, 302, (Mo.App. v. 633 S.W.2d 303 rine. Perrine testified on direct examina- 1982). supe Because the trial court is in a previously tion that he had confessed to position probative rior to assess the both the and the safe’s owner his evidence, competency and of it en part in the theft. He stated that when he joys admitting in considerable discretion made those it confessions was his intention McGraw, such evidence. State v. 571 himself; to “take the heat” he never in- (Mo.App.1978). S.W.2d There is tended to turn in his He confederates. no that the indication court abused its dis initially stated that when he confessed to admitting testimony; in the cretion deputy
the sheriff he did him not advise admitted, once such evidence could have anyone else had in been involved the jury’s finding formed the basis for the Upon crime. questioning, further the value of the item stolen exceeded $150. Perrine eventually revealed that he had § 570.030, And, being RSMo 1978. the implicated the defendant in the theft. The value, only evidence of the court was not objected testimony, to this required to instruct on a lesser included charging that the attempting state was to offense. bolster with the witness’s con- Appellant the trial erred in asserts court statements, prior any attempt sistent receiving concerning evidence the safe’s impeach. contents; in the court overruled a motion Although suggests the record evidence, limine to exclude such and over- prior Perrine’s statements to trial objections testimony concerning ruled equivocal, were in somewhat there were Appellant charges the safe’s contents. pre-trial consistencies between his state rulings permitted trial court’s introduction ments and statements made ex on direct scope of evidence of crimes outside the of attempt amination. The state’s to elicit the information. ambiguities permissible these was a tech nique employed prevent Generally, defense counsel of other exploiting during prove specific from them cross-examina crimes is admissible prosecution may anticipate possi charged tion. The crime such evidence tends to when establish, impeachment expose among things, bases for in a common ble plan embracing direct consistencies on examination. State scheme or commission (Mo.App. Spinks, v. of two or more crimes so related to each 1981). proof other that of one tends to establish Reese, course, 364 Mo. was entitled to re- other. State v. (1954). but defendant’s character evidence And evidence S.W.2d adducing testimony persons familiar proximate to the offenses offense reputation in the commu- with defendant's stands trial admissible which a defendant nity produced It which he was known. if are so connected in time and the offenses Instead, propounded no such it witnesses. circumstances with the crime that of the Sheriff Marion fully proved proving one cannot be without personally who neither King, other. State v. defendant, knew the nor had heard of him When (Mo.App.1979). this defendant he of the crime which is until was accused safe, stole the he also stole contents. subject appeal. present judgment of the trial is af- court simply got sheriff in touch with unnamed firmed. Illinois and re- peated they told him. We are not what GUNN, DONNELLY, BILLINGS person, by told whether this contact was JJ., concur. ¡ telephone, byor letter.2 (Mo.1961) WELLIYER, J., concurs result. support lends to defendant’s assertion BLACKMAR, J., separate dissents in inadequacy investiga sheriff’s opinion filed. investigator from tion. There a hired out *5 a day side the had made community who RENDLEN, C.J., dissents and concurs long of the defend investigation on behalf separate dissenting opinion of BLACK- ant, witnesses, interviewing more than MAR, J. to the testify was not to as defend allowed reputation, upheld ant’s and this Court the BLACKMAR, Judge, dissenting. testimony. Here in exclusion of that the below, forth I For the reasons set cannot extensive, vestigation as the was much less principal opinion, in the and there- concur opinion readily principal concedes. judgment the and re- fore would reverse opinion suggests, principal a new trial. mand the case for receiving character evi- that standards for to refute the by dence offered the state I. good character are defendant’s evidence of deny the to The defendant took stand to applied the stringent not as as those crime, asserting in the that he participation I can proffer. find no defendant’s initial evening holding. had at a dance on the of authority Simply been basis for Defendant’s alibi was corroborated may crime. introduce evidence because state by Defendant also exer- two witnesses. to show that the defendant’s witnesses do they right calling of witnesses know much him as claim cised his valuable not as about know, knowledge his are verifiable in- good charac- to or that there who claimed disreputable conduct on the de- placed squarely on stances ter.1 He thus part the character witness- charges beyond a fendant’s which proving burden about, they appar- do not or which es know doubt. reasonable reputation When the defendant’s had a 2. asked what testified defendant Two witnesses Quincy being honesty "good” community respect reputation for with in the com- abiding person. munity law One witness an honest and Sheriff White re- and Adams people opinion was formed from reputa- stated that his sponded have did "not that defendant "always good talked to who that he had person.” being The sheriff tion of an honest ability and for to do his [defendant] words good did "not have also stated opin- The other witness based his work.” [his] abiding around the com- reputation” in and law "seeing coach- [defendant’s] defendant on ion of munity prior subsequent to the and offense. people both asso- defendant] es and the [he regard they high h[e]ld with and ciate[d] in_” [defendant] indifference, testify about does not officers are less able to ently upon look with offering private the kind of evi- citi- give license for character or state, indeed, challenged White, however, here. The zens would be. Sheriff questioning char- must act in faith knowledge the defendant’s claimed no particular instances acter witnesses about than what the character or misconduct,3 may of the defendant’s Quincy response told him in officers had conjecture in not make use of rumor or bad specific inquiry the defendant. about faith. The state must refute the defend- reasonably argued that the It cannot be by character evidence evidence which ant’s , reception of the was harmless. normal standards of admissi- conforms to only eyewitnesses against the defend- bility. accomplices, testi- ant were admitted whose effectively not Sheriff White could suspect.4 mony naturally They received To ask him about the de- cross-examined. treatment when with the lenient opinions might very he received tails of the Fingerprint same theft. describ- probably reception result in the of further prosecutor’s opening ed in the statement hearsay information from a unverifiable not materialize. The had to decide did person knowing nothing about the details. miscreants tes- whether to believe the who opportunity probe There would be no accept tified for the or whether to possible bias on of the defendant and the who furnished the sheriff information or to supported witnesses who his alibi. inquire depth knowledge. their about jury’s assessment of the defendant’s char- present opinion prosecutors If the stands acter well be decisive. tempted rely telephonic inquir- will be officers, bringing in ies local rather than
persons
who have
of the facts
II.
about the defendant’s character. The less
was entitled
I believe that the defendant
knows,
the harder it
to chal-
witness
permit-
have
to an instruction which would
*6
lenge him.
to convict him of the misde-
jury
ted the
gains
observing
nothing by
The state
$150,
stealing
offense of
less
meanor
that all character and
felony
stealing in excess
rather than the
essentially hearsay.
is
The
must
of $150.
position
come from one who is in a
to hear.
any prob-
might
The state
have avoided
opportunity
When the witness lacks this
along
line if it had
de-
lems
should be excluded because
stealing
fendant with
the contents
policy
of the same
considerations which
only
safe, containing
in cash. The
$500
general hearsay
underlie the
rule.
stealing the safe
charge,
was of
possibility
I would not foreclose the
itself.
community
officer of a
such as
had
The
that the safe
familiarity
might claim actual
Hannibal
properly re-
or
was
$260
a value
person
$250
with the
who lived
evidence,
jury
but the
did not
Illinois,
ceived
approximately 18 miles dis-
accept
have to
this valuation
might acquire
required famil-
tant. He
puffing
was
that the witness
iarity in
his official duties.
the course of
property. The
accept any suggestion
I
the value of his
Nor would
1214,
Dunmore, 446 F.2d
1220
purpose
4. United States v.
of cross-examination of character
3. The
1041,
denied,
Cir.1971),
(8th
the witness
U.S.
92
witnesses is to test
faith of
cert.
404
repu
726,
(1972);
es and their
of the individual’s
State v. Mer
S.Ct.
dence, jury stated that entitled to Missouri, STATE of weight appro- give it such as it considered Defendant-Respondent, not be enti- priate.5 defendant would acquittal jury simply tled to an because MIMS, Anthony Movant-Appellant. ap- or discounted the owner’s disbelieved No. 65532. necessarily because safe praisal, least, theft, very value and its at the some Supreme Court of jury constitute a misdemeanor. would En Banc. told about which was
was not a verdict July 17, 1984. properly available to it in this case. Rehearing Sept. Denied leniently, treated the defendant recommending only by its as is shown him a
six-month sentence.6 It still branded
felon, if it had might not done so have it could the same sen-
realized that assess finding guilt of a misdemeanor.
tence holding recognize
I cases in- not be included offense need
lesser genuine when no issue there is
structed property.7 This
as to the value required a case.
not such The state beyond excess of $150
establish scanty
reasonable doubt. The owner’s remove this fact
opinion evidence does not the case.
issue from for a new
I would reverse and remand
trial. *7 (citations brief, testimony, argues mine the value omitted).
5.In age gift, The fact that safe was safe, had no owner] the fact [the reconvic- risk of 6. The defendant undertakes the all value were of its true actual brought sentence, felony longer if he and a tion of their to the attention of a new trial. obtains appellant no con- offered consideration. alleged trary [the owner's] refute ample evi- (Mo. See, Walters, valuation. There erroneous e.g., presented question the stolen on the Thornton, App.1982); property’s so issue was value jury that the App.1977). to deter- function it was before the whose