State v. Baker

Decision Date06 July 1993
Docket NumberNos. 59613,61437,s. 59613
Citation859 S.W.2d 805
PartiesSTATE of Missouri, Respondent, v. Dennis BAKER, Appellant. Dennis BAKER, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

William J. Swift, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondent.


Defendant was found guilty by a jury of first degree murder and two counts of first degree assault with serious physical injury. He was sentenced by the court as a prior and persistent offender to life imprisonment without possibility of parole on the first degree murder charge, to run consecutively with two concurrent ten-year terms on the first degree assault charges. Defendant appeals from these convictions and from the denial of his Rule 29.15 motion. We affirm in part and reverse in part.

We view the evidence in the light most favorable to the verdict.

On January 17, 1990, a group of youths gathered in an alley behind the 4700 block of Emily in St. Louis. Defendant drove his car into the alley, and he and a passenger exited the car and spoke with the youths. After a few minutes, Byron Scott approached the group and asked defendant if his name was Pete and whether he had robbed his nephew. Defendant pulled out a gun and started shooting. Byron Scott was shot in the face and died at the scene. D.C. was shot in the shoulder and T.G. was shot in the leg as he tried to run away.


In his first point, defendant argues the court erred by refusing to allow him to cross-examine the two juvenile victims about their criminal records. The two juvenile victims, T.G. and D.C., were arrested in the months between the shooting and defendant's trial. T.G. was arrested for first degree tampering on September 14, 1990. The charge was dismissed for insufficient evidence on September 17, 1990. T.G. had no other charges pending before trial. D.C. was arrested for disturbing the peace on October 2, 1990. This charge was dismissed as well, although the date of disposition is in question. A computer printout of his case history shows it was formally disposed of on December 4, 1990, the date defendant's trial began. However, a report of a social worker in a later matter states that the disturbance occurred on October 9 and no action was taken on October 15, 1990. D.C. had no other charges pending before trial.

Defendant argues that the State's interest in protecting the records of juveniles must give way to his need to expose possible bias in the witnesses. The Sixth Amendment right of an accused to confront witnesses against him also includes the right to cross-examine those witnesses. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). A cross-examiner may impeach the credibility of a witness to reveal bias, prejudice, or ulterior motives as they relate to the issues or personalities in the case at hand. Id. at 316, 94 S.Ct. at 1110. The right to cross-examine is not without its limits. Cross-examination is subject to the broad discretion of the trial judge to preclude repetitive and unduly harassing interrogations. Id. at 316, 94 S.Ct. at 1110. Generally, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent the defense might wish. Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985).

The facts of Davis relate closely to the case at bar. Davis was accused of the burglary of a bar in which the bar's safe was removed. Richard Green saw Davis, holding a crowbar, and another person parked by the road near Green's home where the safe was eventually found. Green, a witness at trial, was on probation from the juvenile court after being adjudicated delinquent in the burglaries of two cabins. The prosecution moved to prevent any reference to Green's juvenile record on cross-examination. Defendant argued that he wanted to show that Green's identification and testimony were motivated by his fear and concern that police would suspect him as the burglar and thereby endanger his probation. The trial court denied defendant the right to question Green on his juvenile record pursuant to a court rule and state statute making evidence of juvenile proceedings inadmissible.

The United States Supreme Court held that the defendant's right to cross-examine the witness for bias and influence outweighed Alaska's interest in protecting the anonymity of juvenile offenders. Davis, 415 U.S. at 320, 94 S.Ct. at 1112. The excluded cross-examination was admissible to allow the defendant to develop an inference of Green's bias because of Green's vulnerable status as a probationer or his concern that he might be a suspect in the investigation. Id. at 317-18, 94 S.Ct. at 1111. The court refused to speculate as to whether the jury would have believed that Green's identification and testimony were motivated by a fear that his probation might be endangered. Id. at 317, 94 S.Ct. at 1111. Nevertheless, the court held that the jury was entitled to have that information to decide what weight to place on Green's testimony. Id.

The Missouri Supreme Court noted the limitations of Davis in State v. Russell, 625 S.W.2d 138 (Mo. banc 1981). The Russell court interpreted Davis to allow a defendant to prove bias which could result from a juvenile witness's motive to lie because he is a suspect and subject to control of the juvenile authorities. 625 S.W.2d at 141. The Russell court found that Davis did not hold that a court must permit the general credibility of a juvenile to be attacked by a record of a juvenile adjudication or by unrestrained cross-examination concerning such adjudication or acts of misconduct. Id. The court noted,

The rehabilitative and protective purpose of the juvenile court system and public policy of this State providing confidentiality concerning juvenile offenses are factors which must be weighed in the necessity for permitting and the extent of cross-examinations of juveniles. Such considerations will involve not only the factors relative to cross-examination of an adult, but will also involve elements particularly appropriate to a juvenile witness such as the circumstances of his misconduct, his subsequent misconduct, and the age, understanding and the background of the juvenile as they bear upon the probative value of the act of misconduct to impeach the juvenile.

Russell, 625 S.W.2d at 142.

In State v. Joiner, 823 S.W.2d 50, 53 (Mo.App.1991), this court held that while the extent of cross-examination is within the discretion of the trial court, the court may not wholly exclude evidence of the witness's status regarding pending charges against him brought in the name of the same prosecutor. The right to cross-examine did not depend on the existence of a deal since the witness might perceive a possible benefit in testifying favorably for the State. However, the court distinguished between a witness influenced by pending or threatened charges and a witness whose case is no longer pending at the time of trial since "there can be no hope of favorable treatment in a case previously disposed of." 823 S.W.2d at 53.

Defendant's counsel requested the juvenile records of T.G. and D.C. prior to trial. The State filed a motion in limine to exclude the records of the juveniles. The court and counsel viewed the record in camera. Defendant's counsel deposed the two juveniles and was allowed by the court to voir dire the juveniles on their records. Defense counsel conducted a voir dire examination of T.G. but did not inquire about the status of his juvenile record.

Based upon the record before us, we find no error in the exclusion of evidence regarding the juveniles' records. We consider a number of factors in this decision. First and foremost, both juveniles were victims of the crime defendant was charged with and therefore unlikely to testify in expectation of leniency or to divert suspicion from themselves. Second, by all accounts, neither juvenile had any proceedings pending against him in juvenile court at the time of trial. Defendant's claim that one of the juvenile's matter was disposed of on the day of trial is disputed by another record which says it was disposed of two months prior. Third, defendant offers no proof that any deals were made or that juveniles had any expectations of leniency in testifying against defendant despite opportunities to voir dire and depose the juveniles. The trial court gave defendant every opportunity, short of testimony before the jury, to demonstrate the purported bias to the court. The court may deny defendant the ability to use the juvenile proceedings to make a general attack on the credibility of the two juveniles. Russell, 625 S.W.2d at 141. The court did not abuse its discretion in refusing to allow defendant to cross-examine the juveniles on their records. Point denied.


Defendant next claims the State's failure to give proper notice of a deposition was prosecutorial misconduct. He further claims that the use of the deposition at trial was error which resulted in the improper denial of his Rule 29.15 motion. Defendant's counsel deposed three witnesses in West Memphis, Arkansas as part of defendant's post-conviction motion claim that trial counsel was ineffective for failing to call three alibi witnesses. At the deposition, the prosecutor notified defendant's counsel that he would depose an investigator, Mr. Morgan, who interviewed the three deposed witnesses. The deposition transcript denotes that the deposition of the three witnesses took place at 9:00 a.m. and the deposition of Mr....

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  • State v. Sprik
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