State v. Couch

• Decision Date: 18 April 1978
• Docket Number: No. 38684,38684
• Citation: 567 S.W.2d 360
• Parties: STATE of Missouri, Respondent, v. Milton R. COUCH, Appellant. . Louis District,Division One
• Court: Missouri Court of Appeals

Page 360

567 S.W.2d 360

STATE of Missouri, Respondent, v. Milton R. COUCH, Appellant.

No. 38684.

Missouri Court of Appeals,St. Louis District,Division One.

April 18, 1978.

Motion for Rehearing and/or Transfer Denied June 8, 1978.

Robert C. Babione, Public Defender, James W. Whitney, Jr., Joseph F. Beatty, Charles H. Mostov, Asst. Public Defenders, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Nells C. Moss, Jr., Asst. Circuit Atty., St. Louis, for respondent.

CLEMENS, Presiding Judge.

Defendant Milton Rene Couch has appealed his conviction for first degree murder for which he was sentenced to life imprisonment. The only issue is whether the state was erroneously allowed to impeach its own witness, or merely refreshed her recollection.

On the evening of May 2, 1976 defendant entered a cocktail lounge and repeatedly bumped into the victim, Charles Sylvester Adams, seated next to him at the bar. The victim asked defendant if he wanted his seat and defendant said no. Shortly thereafter defendant put his gun to the victim's head and shot him.

The issue on appeal arises from the trial court's ruling permitting the recall of prosecution witness Betty Tessy, a barmaid at the lounge. On direct examination she testified defendant had come into the lounge earlier in the day, ordered a drink, placed a pistol on the bar, and said he was looking for a man who had beaten his wife and her son. The state's attorney inquired further into her conversation with defendant.

"Q. And after he laid that gun up on the counter and said that, what you already related him saying, did he say anything further about the gun?

A. No, he didn't."

Following four similar exchanges during direct and redirect examination Miss Terry was excused and a recess declared.

Over defendant's objections the witness was then recalled and changed her testimony. The state's attorney again inquired whether defendant had said anything further about the gun. Miss Terry responded, "He said he's going to use it before the day was over." The state's attorney acknowledged he had spoken with the witness during the recess and asked her why she had not testified as she had previously told him she would.

Defendant contends the trial court erred in permitting the recall of Miss Terry because it was an attempt by the state to impeach its own witness; that the error was prejudicial in that it helped the state to prove an essential element of the offense charged.

This case presents a question of refreshment of memory rather than impeachment. As ruled in Coats v. Old, 237 Mo.App. 353, 167 S.W.2d 652(8) (1942): "It is competent to exhibit to a witness a statement made by her prior to her testimony at the trial, for the purpose of refreshing the witness' recollection, and such is not impeachment." See also Voyles v. Columbia Terminals Co., 223 S.W.2d 870(6, 7) (Mo.App.1949), tersely holding: "Refreshing the recollection of a witness is not impeaching or contradicting him."

Applying this rule, we hold that the line between refreshment of memory and impeachment was not crossed. There was no attempt made to introduce a prior inconsistent statement by the witness. The cases cited by the defendant are therefore distinguishable, as they deal primarily with impeachment of a witness...