State v. Beck
| Decision Date | 06 February 1990 |
| Docket Number | No. 55888,55888 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Richard BECK, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Curtis C. Crawford, Alan G. Kimbrell, Rosecan & Kimbrell, St. Louis, for defendant-appellant.
William L. Webster, Atty. Gen., Stewart M. Freilich, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant, Richard Beck, appeals from his conviction of possession of more than 35 grams of marijuana, in violation of Section 195.020, RSMo (1986). He was sentenced as a prior and persistent offender to imprisonment for ten years. We reverse and remand for a new trial.
Defendant was first convicted in a previous trial for the same offense, but that conviction was reversed and the case was remanded for a new trial. State v. Beck, 745 S.W.2d 205 (Mo.App.1987) (BeckI ). Defendant's second trial resulted in a hung jury. Defendant's third trial resulted in the conviction which is the subject of this appeal.
Defendant does not challenge the sufficiency of the evidence. Viewed in the light most favorable to the verdict, the evidence was that, on January 13, 1985, two police officers observed defendant commit a traffic violation when he pulled onto a sidewalk. There he picked up a woman, Mrs. Frances Klocke. The officers pursued defendant for approximately seven blocks until he stopped his car in a convenience store lot. He claims that he did not commit a traffic violation and that he did not know the police car was following him.
One of the police officers approached the driver's side of defendant's car. He called to his partner that the passenger, Mrs. Klocke, was attempting to swallow something. As the officer was extracting defendant from the vehicle, he observed two bags of marijuana partially hidden under the front seat of defendant's car and an open briefcase containing bags of marijuana in plain view on the back seat. A search of defendant's person revealed a box containing a pipe and a small amount of marijuana. Meanwhile, the other police officer ran to the passenger side of the automobile and saw Mrs. Klocke throwing things which looked like pills into her mouth.
Defendant testified at trial. His defense was that the police officers had planted the marijuana in his car. In support of this contention, defendant and Mrs. Klocke both testified that, after they were taken from the car and handcuffed, one of the officers removed the briefcase from the trunk of the police car and took it to defendant's automobile. Two independent witnesses at the scene of the arrest corroborated this testimony.
We address defendant's points of error not in the order raised on appeal. We first consider defendant's claim that the trial court erred in permitting the State to impeach his testimony proffered in the present trial with testimony given in a prior trial. He argues that introduction of the prior testimony into evidence constituted improper impeachment on a collateral issue.
On cross-examination, the prosecutor questioned defendant as follows:
Q. ... [Y]ou stated that you got a copy of the police report, is that right?
A. No, sir.
Q. Did you get a copy of the police report?
A. An attorney told me what the police report said over the telephone. He said that it ... hadn't been released yet. It was only a day or two after the incident when I went down to the police station then.
* * * * * *
Q. Mr. Beck, you testified that you knew what was in the police report either the next day or the following day. I asked you did you not, on a prior occasion, state that you had the police report the next day?
A. I think at the last trial I might have said that I read the police report. I mean, we could clear it up by reading it, you know, but I know I was told over the phone....
Q. The question is did you have a copy of the police report the next day?
A. No, sir. No, sir.
Q. But you did testify on a prior occasion that you did, did you?
A. No, I don't believe I did....
The prosecutor then proceeded to question defendant extensively about the discrepancy between his testimony in the instant trial and his testimony in the former trial regarding the manner in which he had learned of the contents of the police report. In rebuttal, over objection, the State was permitted to introduce into evidence testimony by defendant from the second trial, which had ended in a hung jury. In that testimony defendant stated, inter alia, that "somebody got a copy of the police report for me." This prior testimony impeached defendant's testimony in the present case that he had not received a copy of the police report.
The well-established rule in Missouri is that, when a cross-examiner questions a witness about specific acts collateral to the issues in dispute, he is bound by the answer of the witness and cannot offer contrary evidence (except for a criminal conviction, Section 491.050, RSMo (1986)). State v. Diamond, 532 S.W.2d 873, 875 (Mo.App.1976). The test of whether the matter is collateral for purposes of testimonial impeachment is whether or not the party seeking to introduce it would be entitled to prove it as part of his case. If a fact may be shown in evidence for any purpose independent of contradiction, it is not collateral. Overfield v. Sharp, 668 S.W.2d 220, 223 (Mo.App.1984).
State admits that the issue of the police report "may have been" collateral, but asserts that any error permitting the State to read defendant's testimony from a former trial was harmless. Error in the admission of evidence may not be declared harmless unless it is so without question and beyond a reasonable doubt. Beck I, 745 S.W.2d at 209.
Here, the sole purpose of the prosecutor's rebuttal evidence was to contradict and to discredit defendant on a fact which was not material to the case at hand. See State v. Dennison, 428 S.W.2d 573, 579 (Mo.1968). The collateral evidence interjected by the prosecutor attacked defendant's credibility. When collateral evidence impugns defendant's veracity, its admission will always be prejudicial to defendant. The trial court committed reversible error in permitting the prosecutor to impeach defendant's credibility on a collateral issue. Defendant's point is granted.
We next consider defendant's contention that the trial court erred in admitting evidence regarding Mrs. Klocke's swallowing a "potent drug." The challenged testimony was elicited during the prosecutor's direct examination of one of the arresting officers:
Q. What happened when he pulled on to the 7-Eleven lot?
A. He pulled into the lot. We pulled in directly behind him and my partner, Dan, said to me, "She's eating something, she is throwing something in her mouth." At that point I was the passenger in the police vehicle, so I got out and ran to the passenger side of Mr. Beck's car, my partner went to the driver's side.
* * * * * *
Q. What did you do upon being advised of that?
A. I exited the vehicle, ran up to the passenger side of the car where I seen Frances [Mrs. Klocke] throwing items into her mouth, like little pills.
Q. Okay.
But again I think, Mr. [Prosecutor], it's not an area which you should get into any further, okay?
(The proceedings returned to open court.)
Q. [Prosecutor]: What action did you take after observing that?
A. After observing that, I,...
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