M.A.B. v. Nicely

• Decision Date: 21 November 1995
• Docket Number: No. 77876,77876
• Citation: 909 S.W.2d 669
• Parties: M.A.B., Respondent, v. Kenneth R. NICELY, Appellant.
• Court: Missouri Supreme Court

Page 669

909 S.W.2d 669

M.A.B., Respondent, v. Kenneth R. NICELY, Appellant.

No. 77876.

Supreme Court of Missouri,

En Banc.

Nov. 21, 1995.

Donald F. Martin, Overland Park, Kansas, Martin J. Maxwell, Kansas City, for appellant.

Dan Curtis, Kansas City, John C. Risjord, Aaron N. Woods, Overland Park, Kansas, for respondent.

Timothy J. Gallagher, St. Louis, for amicus curiae Missouri Organization of Defense Lawyers.

COVINGTON, Judge.

Kenneth R. Nicely appeals from a 1991 civil judgment in the amount of $100,000.00 rendered against him after a jury found that he negligently engaged in sexual activity with the plaintiff. He alleges that the trial court erroneously: (1) allowed M.A.B. to impeach Nicely by introducing evidence of his 1990 Alford ¹ plea to one count of sodomy entered in the criminal case involving the same facts; (2) submitted a negligence jury instruction rather than an intentional tort instruction; (3) excluded testimony of Nicely's witness which he intended to use to impeach the testimony of M.A.B.'s witness; and (4) allowed M.A.B. to read from the deposition of Nicely's medical witness to impeach the witness' inconsistent trial testimony. The Missouri Court of Appeals, Western District, affirmed the judgment of the trial court. This Court granted transfer. The judgment of the trial court is reversed and the cause remanded.

I.

M.A.B. claimed Nicely molested him numerous times over a period of approximately two years, commencing when M.A.B. was ten years old. In the criminal proceeding the state charged Nicely with six counts of sodomy. Nicely entered an Alford plea to one count of sodomy. The court entered a finding of guilt and suspended the imposition of sentence. M.A.B.'s subsequent civil suit for damages was founded upon facts identical to those that formed the basis of the criminal charges.

In the civil suit Nicely denied all allegations of sexual abuse. He filed a motion in limine seeking to prohibit any evidence regarding any police investigation of the criminal sodomy charges. He also sought to have excluded any evidence regarding the Alford plea. The trial court initially sustained Nicely's motion. When M.A.B. called Nicely to testify, however, M.A.B. sought to impeach Nicely as a convict under section 491.050, RSMo 1994. M.A.B.'s counsel asked Nicely: "[I]sn't it a fact that you were found guilty and convicted of one count of sodomy, a Class B Felony offense?" Nicely answered, "As I understand the law, no, I have not been convicted of that crime." M.A.B.'s counsel was then permitted to read into evidence from a redacted pleading: "It is ordered that Defendant, having been found guilty on this date of the offense of Count I, Sodomy, a Class B Felony, is guilty of said offense." The trial court overruled Nicely's objections and motion for a mistrial.

Nicely's first assertion on appeal is that the trial court erred by allowing M.A.B. to impeach him in the civil proceeding. Nicely contends that because the court in which he entered the Alford plea suspended the imposition of sentence, he has not been convicted for purposes of impeachment under the statute. He is correct.

Section 491.050 provides in pertinent part:

Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case and, further, any prior pleas of guilty, pleas of nolo contendere, and findings of guilty may be proved to affect his credibility in a criminal case.

This Court has interpreted section 491.050 to confer an absolute right, in both civil and criminal proceedings, to impeach the credibility of any witness, including the accused, with his or her prior criminal convictions. State v. Giffin, 640 S.W.2d 128, 132 (Mo.1982). For purposes of this appeal it is essential to note, however, that where there is no conviction, section 491.050 distinguishes between criminal and civil proceedings. Because this is a civil proceeding, Nicely could be impeached only by proof of a conviction. " 'Convicted' is generally used in its broad and comprehensive sense meaning that a judgment of final condemnation has been pronounced against the accused." Neibling v. Terry, 352 Mo. 396, 177 S.W.2d 502, 504 (banc 1944). "Where imposition of sentence has been suspended, there can be no judgment.... The term 'conviction,' standing alone, does not include a plea or finding of guilty where imposition of sentence is suspended." Yale v. City of Independence, 846 S.W.2d 193, 194, 195 (Mo. banc 1993); see also State v. Lynch, 679 S.W.2d 858, 859-61 (Mo. banc 1984). Because the imposition of sentence was suspended, no conviction was rendered against Nicely in the criminal case. Although a finding of guilty was entered against him, he has not been convicted for purposes of the statute; thus, section 491.050 does not apply.

M.A.B. defends the trial court's ruling through a variety of theories. He cites State v. LaPlant, 673 S.W.2d 782, 784 (Mo. banc 1984), and Lynch, 679 S.W.2d at 861, in support of an assertion that findings of guilty coupled with a suspended imposition of sentence (SIS) may be used to impeach civil defendants. Those cases are inapplicable because they involve the use of findings of guilty where sentence has been suspended in subsequent criminal cases. ²

M.A.B. nevertheless contends that it is "counterlogical" to read the statutory language that allows impeachment through the use of evidence of a finding of guilty in a criminal case to exclude impeachment by these means in a civil case. He is mistaken. When statutory language is clear, courts must give effect to the language as written. Kearney Special Road District v. County of Clay, 863 S.W.2d 841, 842 (Mo. banc 1993). Courts are without authority to read into a statute a legislative intent contrary to the intent made evident by the plain language. Id. Section 491.050 clearly states that a finding of guilty that does not result in a conviction may be used to impeach a witness only in a criminal case. Had the legislature intended to allow the use of findings of guilty that do not result in convictions to impeach a witness in a civil case, the legislature would not have limited the admission of such findings of guilty to criminal cases. See Yale, 846 S.W.2d at 195.

M.A.B. further contends that the finding of guilty is admissible, regardless of section 491.050, as an admission or a declaration against interest. Because M.A.B. did not attempt to introduce evidence of Nicely's Alford plea as an admission or declaration against interest, this Court need not address whether an Alford plea is admissible for those purposes.

M.A.B. additionally asserts that Nicely waived any error in the admission of the criminal finding of guilty by presenting the same or similar evidence to M.A.B.'s introduction of the finding of guilty. M.A.B. cites several cases in support of the proposition that an objection to the admission of evidence is waived where the objecting party elicits or introduces the same or similar evidence. State v. Schutte Investment Co., 334 S.W.2d 241, 246-47 (Mo.1960); Alvey v. Sears, Roebuck, & Co., 360 S.W.2d 231, 234 (Mo.1962); In re Marriage of Clark, 801 S.W.2d 496, 499 (Mo.App.1990); Hyman v. Robinson, 713 S.W.2d 300, 301-02 (Mo.App.1986); Dorn v. St. Louis Public Service Co., 250 S.W.2d 859, 865 (Mo.App.1952).

Before M.A.B. introduced evidence of the finding of guilty, Nicely testified upon direct examination by M.A.B.'s attorney that he had discussed "charges" relating to sex abuse with a therapist. Following introduction of the plea and SIS, Nicely testified concerning his motivation and understanding of the Alford plea and attempted to explain why he had entered it. Nicely testified further that charges were brought against him in 1989 but later dropped. Nicely subsequently called a police detective who investigated the 1989 charges to testify regarding the dates M.A.B. told him the abuse allegedly occurred. The testimony was designed to support Nicely's defense that he could not have committed the alleged abuse on at least one of the dates alleged by M.A.B. because he was at work.

Schutte, Alvey, Hyman, and Dorn are distinguishable. In each the objecting party was the first to introduce the challenged evidence or issue. Schutte, 334 S.W.2d at 246-47; Alvey, 360 S.W.2d at 234-35; Hyman, 713 S.W.2d at 301-02; Dorn, 250 S.W.2d at 865. Prior to the admission of evidence of the 1990 Alford plea and SIS, Nicely made only one brief reference to discussion of "charges" with a sex therapist. The comment was sufficiently vague that it did not serve to "open the door" for the introduction of evidence of the Alford plea and finding of guilty. Furthermore, Nicely strenuously objected to the admission of the plea and SIS as a conviction. After having been ruled against, a party should be permitted to make the best contest he can by offering countervailing evidence, without being put to the hazard of losing the point of his objection. Bice v. Birk, 435 S.W.2d 734, 737 (Mo.App.1968); see also Chester v. Shockley, 304 S.W.2d 831, 834-35 (Mo.1957); Jackson v. Jackson, 875 S.W.2d 590, 591-92 (Mo.App.1994).

M.A.B.'s reliance on Clark is also misplaced. In that case, a dissolution proceeding, the wife's attorney asked the husband's psychiatrist on direct examination whether he knew that the husband had four prior attorneys in the case. The court of appeals found that the husband introduced the same or similar evidence when his attorney asked him the identical question later in the trial. The court further found that the evidence on the collateral issue did not materially affect the outcome of the case. Clark, 801 S.W.2d at 499. The same cannot be said here. The evidence presented by Nicely after the admission of the finding of guilty as a conviction was neither the same nor similar to evidence of a conviction. Nicely's testimony was limited to an...