State v. Taylor

$3,000 check, relatives making adjust-

ments $1,000 gifts for two and one $500 STATE of Plaintiff- Missouri, previously Mr. Dietrich had made. Sever- Respondent, al relatives thanked Mr. Dietrich for the gifts accepted and all them. distri- Similar Charles D. TAYLOR, Defendant- butions January were made in and Appellant. January 1970. On these two Mr. occasions No. 34952. Dietrich told boarding Mr. at Wood home “just he had made another distribu- Appeals, Missouri Court of District, tion.” St. Louis

Division One. plaintiffs’ objection Over based on June 1973. the Dead Man’s (§ Statute 491.010 RSMo. Rehearing Motion for or Transf er Denied 1969, V.A.M.S.), Donnell Dietrich al Aug. 16, 1973. lowed testify that Frank Dietrich in structed him in and checks, recipi specifically

write the as to amounts,

ents and as and that he did di

rected. have concluded it We is unneces

sary to plaintiffs’ challenge rule on

admission Donnell Dietrich’s testimo

ny. attorney Schubel

shows Mr. Dietrich was aware of the tax

advantages $3,000 making gifts.

That Die several relatives thanked Mr.

trich gifts being showed he were knew the

made, as did his announcements to Mr.

Wood that he had made “another distribu

tion.” All occurred Die while Mr.

trich keeping mind and in sound plan gift

with a rational and to avoid taxes

minimize estate taxes. We find Donnell payments

Dietrich made the with his fa knowledge approval.

ther’s The trial finding

court’s supra, No. to Donnell authority clearly

Dietrich’s erro adopt

neous and as our own. plaintiffs

In their brief level numerous judgment;

attacks we have con- They premised

sidered each of them. are plaintiffs’ that Frank Dietrich claim capacity

lacked their mental claim authority

Donnell Dietrich lacked from his questioned payments.

father to make the light contrary

Considered in our

findings points these other must fail.

Judgment affirmed.

DOWD, J., McMILLIAN, J., C.

concur. 557.215,

lation of Section RSMo V. charged A.M.S. Defendant had been un- der the second offender act and a de- previously termination that he had been felony, convicted of a sentenced to was years Department four Correc- appeals, contending among tions. He now things other that reversible error com- was mitted in the trial of the case because the permitted, objection, court over cross-ex- amination one of defendant’s witnesses many to how he had times been arrested police. improper Because of this cross-examination, we and remand reverse for a new trial.

Defendant, Taylor, Charles ar- D. was rested at about 12:30 a. m. on June complaint 1972. This arrest followed a peace regard with to a disturbance de- investigat- fendant’s mother. Two officers report ed the disturbance and made the ar- advising rest. testified One that after arrest, defendant he was he immedi- under ately began to his advise defendant con- rights. placed stitutional The officer scene of with defendant confrontation building the sidewalk front of the where he had found the defendant. The officer an testified that defendant shouted obscenity at him and him in the kicked groin. patrolman The other under this version his then struck the defendant with night stick and the who had been officer night kicked struck defendant with his also stick and the defendant then fell ground. placing officer succeeded away one handcuff on him and he broke then get up. and started to This officer Babione, Terry Robert De- Crouppen, again C. B. struck with his closed fist. him pa- Bureau, Louis, up Public Defender fendant and struck the other for de- stood St. fendant-appellant. at time the other officer trolman which again night him with his stick. struck Danforth, Gen., Atty. C. Mi- G. John by this time subdued defendant O’Neal, Hayne, chael City, Steve Jefferson was handcuffed. Ryan, Atty., Brendan Circuit M. Wm. J. Frain, Jr., Atty., Louis, Asst. Circuit St. as a one defense called plaintiff-respondent. ad- George Lindsay at the same who lived He tes- the incident occurred. dress where WEIER, Acting Presiding Judge. facts. Under tified to a different state of appel- guilty by Defendant found his he said that he saw version striking kicking police back of the car with officer in vio- lant feet- out the curb. Defendant then testified in The error rebuttal. was there- made get a move to out double, car fore in permitting question, saying: “You are not going to arrest me in violation of the rule that the cross-ex- because I nothing.” haven’t done But the aminer is bound the witness’ answer. thereupon defendant, officers grabbed the “While an party adverse privileged him, started to handcuff hit him with a under statute to ask a witness about the club, and him Then, threw into the car. prior nature of convictions, criminal according Lindsay, appellant strug- felony whether misdemeanor, or (§ 491.- gled back, fell forward and an knocked of- 1969, 050 RSMo questions V.A.M.S.), ficer that, down. After numerous officers about acts of misconduct not resulting in arrived, grabbed appellant trying get conviction improper. have been held See car, him back repeatedly hitting and Sanders, supra, and Holden v. kicking cross-examination, him. On this Berberich, 995, 791, 351 Mo. 174 S.W.2d witness was asked if he had “ever been in 929, 149 A.L.R. about (question indictment trouble with police”. objec- To this an charge and driving while intoxicated tion was made and overruled. At this ruled improper); Graber, and Hoffman v. stage trial, of the the witness was asked Mo.App., 817, (question S.W.2d whether he had ever by po- been arrested a charge of disturbing peace held im liceman, and many how objec- times. An A similar proper). restriction been has tion to this cross-examination was over- applied juvenile offenses. State v. To ruled and the witness compelled was to tes- lias, Mo., 326 S.W.2d 329. Courts have tify that in his best estimate he had been only exceptions found to this rule cases arrested about a prose- dozen times. The where interrogation necessary cutor made reference to the arrests in his prosecution show the bias motive a closing remarks and suggested jury to the witness; example, that an indictment that the prejudiced witness was against the charge dropped has been in return for police department. statement, To this testimony. 1421, desired See 20 ALR 2d objection was made. The court sustained 1425.” have held it We reversible error objection and jury instructed the impeached for a by witness to be a show disregard the prosecutor. statement of the ing of arrest where he had been also con victed of an “Our rule is that offense. pointed defendant, As out even where the conviction or CDnvictions clearly Missouri law holds that the credi admitted, are it is er or in reversible bility of a witness not be attacked quire party’s into or a arrest or witness' showing arrest, an investigation, or crimi 3( Williams, Harris arrests”. charge nal which has not resulted in a con 51, Harris, (Mo.App. In 1962). Upon viction. a review of the authorities objection question arrest on was sus on subject this contained in the recent tained but the trial failed to instruct court opinion of court in this State of Missouri jury questioning and disregard Williams, 1, Oliver Jerome request De overruled the for mistrial. 20, February decided we stated: spite * * objection, * the sustension of the Sanders, Mo., State v. “[I]n plaintiff held that the ent tied to a * * was * S.W.2d the Court said ‘ improper ques * * new trial * basis credibility tioning. not be arrest, attacked showing a mere investigation, charge or criminal which has * * * ’.” patrolmen in a conviction not resulted Here the two were the prosecution They that case had for the testified as asked a witnesses state. defense witness about a investigation to one version of had occurred. what her, involving when she defendant’s father and mother testified answered negative, produced police another of the which favored officer who version facts included Lindsay only wit- instruct the on the lesser of- the defendant. was the assault since the evidence engaged not fense of common at the trial who had arrest, disturbance, presented supported such a and was re- would have support- V. charge. His 557.215 RSMo lated to defendant. Section A.M.S., to all willful assaults ed that witnesses. is directed of defendant’s other two included There is no lesser bring out officers. cross-examination to no striking previously fact that he had arrested offense where shown appears highly improper controversy er- whether the vic- prejudicially over engaged tim officer or roneous. performance of his duties. Under alleged errors Because two other required of facts court is not state the retrial, may also be at time we asserted of give an instruction on common assault. member of the St. Louis held specifically describe tends that the information was defendant asserts that “Patrolman” have been the victim’s that the police word “member” of case relied on will attend to them now. Defendant find derau, lice crime of as ferred to “Patrolman James fective 1969,V.A.M.S., is necessarily “police only Department.” this officer “feloniously”. information that an indictment striking contention without merit. The this case because S.W.2d 271 officer”. under by mean a appellant, defective police department Section 557.215RSMo charging Defendant maintains police officer The information In his first police (Mo. policeman Metropolitan Po name if it omits the State v. Von argument, it officer. We him with the banc merely re Connor, a fatally de striking and that should struck 1969), does con may trial, great trolled argument these come too In the room concerned advocates will sometimes can be eliminated have torney case seems to be won and a error with their comment. Even when statements is entitled to a State (Mo.1970). Additional the trial of plank. already and if temptation to alleged improprieties in his final charged atmosphere Jacks, the trial court. closely is made We believe firmly charges determined that the defendant not, his by new then the assistant drive another established, argument. case are based of error trial, counsel at the next that they edge these of the court- will reoccur. 744, by of reversible can be con- point in the doubt that there is circuit defendant Since problems spike 748 ^[7] we at- this did not this More case omit word. given, the For reasons heretofore over, described the indictment Vonderau judgment is remand- reversed and case policeman exactly language the same ed for a trial. new pres as that used in the information in the proceeding. ent The court there found no McMILLIAN, (separate J., concurs description fault of the officer. with opinion). testing sufficiency In an informa tion, general principles: it we follow these opin- CLEMENS, (separate J., dissents constituting must state essential facts ion). charged, adequately offense and it must notify charge against defendant of the

him, prose bar to further constitute a (concurring). Hodges v. cution for the offense. same I concur. State, (Mo. 1971). 789 [1] clearly The information in case meets rule of more raises appeal once this test. prohibiting cross-examination arrests, charges, prior about

a witness to convic- not lead which do indictments that it Defendant further contends re- urges the court now tion. State for the trial court to refuse was error State, Keveney lax the rule where cross-examiner defendants. Ohio (1923). that the is biased St. N.E. 845 trying show has an the trial. interest outcome of against The reason for the rule admis- in this case contradicted is fundamental sion arrest records defend- version of a scuffle between presumed system A man is justice. our ant as- officers. The State two Testimony proven guilty. innocent until may impeach serts that it the witness hearsay. about an arrest mere Without placing record his arrest before the more, person’s says nothing guilt about prejudiced po- against show that he was veracity. or character for truth and It lying “get licemen and have happens innocent well as the past back” for arrests. States, guilty. United Michelson v. 469, 482, argument U.S. 93 L.Ed. 168

The State’s shows that confu- S.Ct. (1948). sion rule evidentiary still surrounds im- admission records to however, contends, that a wit- peach a character for truthfulness. ar- be cross-examined I (1) find that the rule strict and allows purpose of ques- rest if the record sole exceptions; prior rare (2) do arrests prejudice against tioning is show bias or to not, event, any in establish bias or interest policemen. Implicit in this contention is in prosecution; of a criminal the outcome against argument rule admis- that the police and that the use of arrest (3) may of be evaded sion arrest evidence name impugn good records to a witness’ admissibility. notion has multiple against invidiously

tends to discriminate rejected. been people pro- black a class and should be as public policy. hibited as a matter of arguendo that But even if we assume admitted, I might be fail such evidence majority opinion The sets out some a record can estab person’s see how arrest prohibiting detail the rule cross-examina- prejudice. lish bias The law is well-set or arrests, tion charges, or indictments. question a may tled that a cross-examiner I would add that rule not admit this does interest a case or witness about bias multiple policy admissibility, of personal must be bias suit. But whereby evidence which is inadmissible suit, parties to against one of the one reason becomes admissible for another. in the out particular be interest must Curry, 372 come of that suit. See State Furthermore, excep- the rule allows few Pigques, 310 1 (Mo.1963); State S.W.2d tions. As this court noted State v. Wil- and Thornton v. (Mo. 1958) 942 S.W.2d liams, 492 1 a (Mo.App.1973), S.W.2d (Mo.App. Vonallmon, 795 prosecution may be witness cross-examined only alleges gen a 1970). Here the State about an indictment court if same policemen prejudice against all eral questioning such tend would to show that parties are class. a class Policemen as may in- witness’ have been proceeding. to this leniency fluenced an offer of or immu- nity. Bradley, See past little arrests also offers fact of Hector, 556 (Mo.1951) part State v. of wit- prejudice on show alleged Ohio (1969). prej- St.2d 249 N.E.2d 912 policemen. The ness towards An exception also been has found where found in both might just as be udice well persons two showing have been indicted for the of the wit- directions. An actual support same and one require offense testifies more evidence bias ness’ would this, of the other. Cross-examination about the to time-consum- lead than and would fact of the indictment has allowed to the defend- been ing trials issues collateral mutuality purpose of interest the two of the trial guilt. show between The basic ant’s would be in a of conflicting lost maze irrelevant and The issue: there is Where prejudicial (to defendant) facts. about whether mistreated arresting defendant him and when a de- that, finally I am convinced because policemen fense witness two testified did discrimination, possibility distinct defendant, mistreat did the court on cross person’s arrest record should not be used properly examination allow State to court, against any purpose, him in as a demonstrate bias witness’ public policy. matter of both law and by showing the had been arrested population Crime and statistics estab- have many ? occasions lished are arrested more that blacks much frequently According than whites. Two rules must be of evidence recon- Investigation, per- Federal Bureau of although ciled. One that wit- declares cent of arrests in have showing all impeached be has he Negroes.1 up involved Yet blacks make criminal of a offense convicted only percent popula- 11.1 of the national may not be he been arrested shown has report tion. Other authorities that adult for or accused of a criminal offense. We five of- blacks are arrested about times as will refer to rule.” as the “arrest whites,2 percent ten as and that other be ex- cross declares residing black major our cities males amined about facts which tend show have been arrested at one time or another.3 against party biased for and will be referred to as the “bias rule.” reason permit If we the use were to behind rule” convicted “arrest witnesses, impeach arrest records belief; person unworthy reason bias, show either untruthfulness behind the rule” is that the “bias allowing would an un- be the burden of given his weight interest affects the to be sound to fall on rule of evidence harder testimony. blacks Black would than whites. citizens by early be At discouraged appearing common law and Missouri from in court persons rights statutes convicted of certain crimes exercise their free constitutional speech in depraved were so character percent and a fair considered trial. Some 56 they unworthy that of belief and society of the in ef- were might black males be fectively could not a giving any (§ “be as witness.” foreclosed from testi- sworn Grant, mony c. 113 at v. 79 Mo. trial. result is unconsciona- G.S.1865: State (1883)). disability long excep- That has since potential ble. The harm of such an far now states: outweighs probative tion the minimal removed 491.050 § “Any person by allowing who has been convicted of value be such testi- gained is, mony notwithstanding, criminal or offense cross-examination. witness; may competent conviction but the given For these and the reasons reasons proven credibility . .” be affect his . opinion, in the I concur with the majority majority judgment the reversing in of persons applies noted We this statute remanding trial court and case for of a criminal of- who have been convicted new trial. A line holds cred- long fense. of cases witness, i.e., ibility general his charac- of

CLEMENS, Judge (dissenting). ter, showing a by cannot mere be attacked that would de- arrest or since accusation I affirm dissent and would defendant’s stroy presumption conviction. 3.Supplemental Investigation, the National Studies 1. Federal Bureau Uniform Disorders, Advisory 1971). Reports (1970, on Civil Commission Crime (1968). 247 Challenge

2. in a So- Tlie of Crime Free by ciety. Report President’s Com- A mission Law Enforcement Adminis- Justice, (1967). 44 tration of Applying cy innocence.1 “arrest rule” to testimony of witness to color his in a the case disregarding particular at hand and the “bias case. The distinction is ex- rule,” infra, plained Evidence, A, discussed have to by Wigmore would III § “Rice, State, declare the trial permitting court erred in C.J., McHugh 943: v. cross examination to (1858): considering show witness’ Ala. In multiple arrests. various modes which the credit of a assailed, may witness be ob- Courts must statutory approval “bias rule” has serve the distinction between an attack person disquali- “No 491.010: shall be § upon credit, general his and an attack fied as a in any pro- suit or witness civil particular credit in the case. Particu- his ceeding at law equity, or in reason of given lar facts cannot be his interest the event of the same aas impeach general [i.e., his moral character] party otherwise, or may but such interest only, may partic- credit but to affect his be purpose be shown affecting credit, is, ular that his credit to bias [due ” credibility . . . (Our emphasis). particular or cause. Thus interest] firmly This is implanted also in our case general credit of a for the witness law. prosecution unassailable; may be he “It existing The “bias Johnson, always proper between the rule” is S.W.2d 780 tersely parties, show ^[8] stated or (Mo.1942) feeling State : be hostile case, oner to amination who can doubt the prove may deny prisoner, hostility that right ?” and on cross ex- so; pris- such 31, witness in the fact-finding relevant, and other the text statement: “The fact that a wit- court said: “It is Pigques, dice and interest interest of a witness is an essential factor fecting 98 C.J.S. the witness’ Curry, 310 S.W.2d 942 Missouri Witnesses, always may or for the aof S.W.2d [7] said cases at notes 30 and process. credibility.” the bias or ^[6] § be shown 539, supporting parties.” (Mo.1958), In is never ir- (Mo.1963) See also State preju- af- motive to where been arrested or missible, that ness— be might reasonably “It at 20 ALR The two rules are shown Impeachment—Arrest generally be influenced such evidence is testify tend to show that his 2d, inquired p. held, falsely.” charged fact that a 1440-1441, brought even into where would interest, with crime ordinarily into Anno: Wit- jurisdictions bias, harmony Charge: or a has ad- is in in Holden ness interested the result of the action The distinction noted v. was testifies, Berberich, 995, or proceeding in he is which 351 Mo. 174 791 S.W.2d biased or prejudiced favor of or against ^[4] (1943), again State v. Sanders, any parties thereto, is proper to be ^[4] (Mo.1962): “An ex- ception infrequent- shown and bearing considered as on the rule has [arrest] credit ly inquiry which be accorded to his tes- noted showed should been where the ” timony specific . . . of the interest witness.”

Superficially prosecutor there conflict between case the stated is In this the “arrest rule” and Lindsay the “bias rule” but wanted to show defense witness both reliability are based on the of the wit- biased State testimony. him 12 ness’ rule” arrested “arrest chal- officers had because witness; lenges general character of the never_ times for for which he was acts convicted.2 objection Defendant’s challenges only the “bias rule” the tenden- Berberich, 2. 995, pros- 1. Holden v. 351 Mo. demonstrated in the motive was 791, (1943); closing argument S.W.2d and cases [1-3] ecutor’s where he said 491.050, Lindsay listed in Note 8 to § V.A.M.S. should how know Mr. felt about officers. precise is- on the “arrest rule.” based trial court erred sue here is whether the DOEHLER, N. Ernest Plaintiff- Appellant,

permitting the cross examination. of a witness to show Cross examination right and “the VALLEY,

his interest an absolute VILLAGE OF COOL Dewing, Orville Defendants- discretion as trial court has considerable Respondents. pursued in de may be inquiry how far the Vonallmon, 456 tail.” Thornton v. S.W.2d No. 34898. v. Brew See State (Mo.App.1970). Appeals, Missouri Court di er, (Mo.1956), 286 S.W.2d 782 [3-5] hol District, St. Louis motive, to show ng: “Cross-examination Division One. may be or animus of a witness interest 5, June 1973. and, says

permitted as defendant Aug. Rehearing 16, Denied 1973. brief, ‘the latitude of cross-examination very large proceeding a criminal rests the trial within the discretion of

extent ” Sherry, 64 The case of State v. court.’ cross ex concerned (Mo.1933)

S.W.2d “being of a arrest

amination selling liquor had

ed and whether he fol of the law.” The court

in violation in the case of

lowed the “bias rule” Nasello, 325 Mo. time, ad

saying, “If not too remote tending im

missibility specific acts testimony of a wit

peach disparage largely within the discretion of

trial court.” support

Further for the admission of princi

challenged found evidence is

ple that where evidence admissible another, purpose

one but inadmissible

it should be admitted. See Jackson

Thompson, 358 Mo. 218 S.W. ^[1] at 27

(1949), and a of cases listed host Trial,.

Mo.Dig., seen heard having

The trial court atti- and observed the witnesses Fenlon, Clayton, plain- Steiner & Lindsay may tude and demeanor of witness tiff-appellant. possible Lind- well have concluded it was say’s contradiction officers’ Carter, Bull, Baer, Lee, Dor- Presberg & grow- an colored animus Lee, Louis, Banta, George E. St. J. ing many questionable arrests out defendants-respondents. policemen also concluded other and have jury for the permissible McMillian, judge. be assessing weight consider Lindsay’s testimony. given Doehler, Plaintiff-Appellant, Ernest N. appeals judgment its say I cannot the trial court abused from verdict and challenged entered permitting in favor of defendants-re- discretion spondents, Village Valley, cross of Cool examination.

Case Details

Case Name: State v. Taylor

Court Name: Missouri Court of Appeals

Date Published: Jun 5, 1973

Citation: 498 S.W.2d 614

Docket Number: 34952

Court Abbreviation: Mo. Ct. App.