State v. Busby

• Citation: 486 S.W.2d 501
• Decision Date: 13 November 1972
• Docket Number: No. 1,No. 56977,56977,1
• Parties: STATE of Missouri, (Plaintiff) Respondent, v. Robert Eugene BUSBY, (Defendant) Appellant
• Court: United States State Supreme Court of Missouri

Page 501

486 S.W.2d 501

STATE of Missouri, (Plaintiff) Respondent, v. Robert Eugene BUSBY, (Defendant) Appellant.

No. 56977.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1972.

John C. Danforth, Atty. Gen., Richard S. Paden, Asst. Atty. Gen., Jefferson City, for respondent.

Bernard Edelman, Clayton, for appellant.

HOLMAN, Presiding Judge.

Defendant was charged with the offense of forcible rape. See § 559.260. ¹ He was also charged with a prior felony conviction. § 556.280. The jury found defendant guilty of the offense charged and the court fixed his punishment at imprisonment for a term of 30 years. Defendant has appealed. We affirm.

We have jurisdiction because the appeal involves a felony conviction and was taken prior to January 1, 1972, the effective date of new Article V, Section 3, of the Missouri Constitution, V.A.M.S.

Defendant does not question the sufficiency of the evidence and hence we need not state the testimony in detail. The prosecutrix, age 17, lived in an apartment with her aunt. There was evidence to support a finding that at about 11 a.m., on April 21, 1970, defendant entered the apartment. He was a distant relative and had been with prosecutrix and her aunt for a time the previous evening. Defendant went into the bedroom with a handkerchief 'across his face.' He tied the hands and legs of the aunt and then raped prosecutrix. After he left the apartment prosecutrix and her aunt immediately told a neighbor of the occurrence and the police were called.

The defendant did not testify. He did, however, offer a number of witnesses in an effort to discredit the State's witnesses and also sought to prove an alibi.

Prior to trial defendant filed a motion to suppress proof of a prior conviction for rape in order to impeach his credibility in the event he should testify in his own behalf. He alleged that a conviction for rape would not tend to impair his credibility and would be particularly damaging to his defense because it was the same offense as the present charge. The motion was overruled. Thereafter, defendant orally moved that the court instruct the prosecuting attorney to restrict the cross-examination of defendant on that issue to the question as to whether he had been convicted of a prior felony or misdemeanor without specifying the name of the offense or the amount of punishment. That motion was overruled.

The first contention on this appeal is that the court erred in overruling defendant's motions to suppress or restrict proof of his prior conviction for rape. He asserts that a conviction for rape does not indicate dishonesty and since it would have been very detrimental to his defense he was forced by the rulings to give up his right to testify.

A determination of defendant's contention involves a consideration of § 491.050 which reads as follows: 'Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.' It should also be noted that § 546.260 provides that if a defendant testify in his own behalf he 'may be contradicted and impeached as any other witness in the case.'

This court has uniformly held that the foregoing statutes confer an absolute right to show prior convictions and the nature thereof for the purpose of impeachment. In the early case of State v. McBride, Mo.Sup., 231 S.W. 592, 594, it is said that 'If the defendant may be impeached as any other witness, it is not only proper to show that he had been convicted but to show of what crime he had been convicted.'

We have also stated that "(s)ince the statute permits proof either by the record or by cross-examination, it cannot be the intendment of the statute to restrict the proof, if made by cross-examination, to proof that the witness has committed a 'criminal offense', without disclosing the kind or character thereof, when, if the other method of proof is adopted, such latter fact is necessarily disclosed, the purpose of the proof and the reason for allowing it being the same, whichever method of proof is adopted. Moreover, the conviction is permitted to be proved to affect the credibility of the witness. The jury must determine the credibility of the witnesses. It needs no argument to demonstrate that conviction of an offense of one kind, say a trivial misdemeanor, would not affect the credibility of a witness to the same extent as would conviction of some heinous offense involving moral turpitude." State v. Gentry, Mo.Sup., 212 S.W.2d 63, 64.

Defendant concedes that the same contention he now makes was ruled adversely to the defendant in the recent case of State v. Morris, Mo.Sup., 460 S.W.2d 624. He asks, however, that we reconsider Morris and overrule it. The Morris case contains an extensive review of the question before us and it would not serve any useful purpose to repeat that discussion here. We have considered all of the authorities cited and have concluded that Morris was correctly ruled.

Defendant has cited cases (which we consider to be the minority rule) holding that statutory provisions similar to ours should be construed as not conferring an absolute right to show the conviction but places the discretion as to admissibility in the trial judge. People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695; Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763; Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936. We do not agree with those decisions. It is our view, as stated in Morris, that the statute confers an absolute right to show convictions solely to affect credibility. It may be that the right should be restricted in some respects, but, if any change is to be made we think it must be done by the General Assembly. As indicated, we rule this point against defendant.

The defendant's next contention is that the trial court erred in failing to grant him a new trial because of the failure of Juror Langenberg to fully and truthfully answer a certain question directed to the jury panel generally. The question was: '(By Mr. Vandover) * * * Has anyone ever been on a court-martial board or somehow involved in a court-martial proceeding in the service?' A number of veniremen responded affirmatively to the question, but Mr. Langenberg made no response. When the motion for new trial was heard Mr. Langenberg testified that he 'served for two years in the U.S. Army * * * stationed with the Army Intelligence Corps. * * * My duties, roughly, ran everywhere from file clerk to directing investigations in accordance with Army regulations. * * * We were doing mostly security investigations. * * * Q. Did you testify at any time? A. Never. * * * Q. Is it my understanding you never served on a court-martial board? A. I never had anything to do with any investigative--criminal investigative activity of the Army. Q. You never served on a court-martial...