State v. Diamond

Citation532 S.W.2d 873
Decision Date06 January 1976
Docket NumberNo. 36384,36384
PartiesSTATE of Missouri, Plaintiff-Respondent, v. David F. DIAMOND, Defendant-Appellant. . Louis District, Division One
CourtCourt of Appeal of Missouri (US)

Theodore S. Schechter, Clayton, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Tim Verhagen, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

DOWD, Judge.

Defendant appeals from his conviction for tampering with a motor vehicle (a 1970 Chevrolet) without the owner's permission. § 560.175(1) RSMo 1969. He was sentenced to two years imprisonment under the Second Offender Act, § 556.280 RSMo 1969. We reverse.

On June 21, 1973, a 1970 Chevrolet was stolen in the City of St. Louis. According to Kenneth Sanders, a witness for the state, he, the defendant, and Ernest Jumper stripped the auto that evening in his residential garage. The three men were participating in a plan, whereby defendant and Jumper stole autos, then paid Sanders $200 for the use of his garage and for his help in dismantling the autos.

Defendant did not testify. Ernest Jumper was the principal defense witness. On cross examination Jumper acknowledged he had been charged with the theft of a 1968 Plymouth GTX but he denied stealing the auto. He also denied that he was at Sanders' house on June 21 and that he had ever taken any autos apart there.

To rebut Jumper's cross examination assertion that he had not stolen a 1968 Plymouth, the state produced evidence that a 1968 Plymouth GTX was stolen on June 2, 1973. Sanders told how he and Jumper had stolen a 1968 Plymouth GTX auto on June 2 and then drove it to Sanders' house and the next day Sanders and Jumper removed the auto's windshield and changed the ID number on the dashboard.

The state also rebutted Jumper's cross examination testimony that he was not at Sanders' home on June 21 and that he had never taken any cars apart there. A 1969 Buick Skylark was also stolen on June 21, 1973. This stolen car contained a child's car seat. A detective testified that he saw the stolen Buick at Sanders' home about 2 p.m. that same day. About 4:30 p.m. that same day he observed Sanders drive the Buick to the front of his garage. Mrs. Sanders said both Jumper and defendant were at the house on the afternoon of June 21, and defendant had given her a child's car seat. Sanders said he first saw the Buick when he arrived home from work that day. He, Jumper and defendant took some parts from the Buick's front end, and then defendant drove the Buick away.

Defendant's first contention is that the trial court erred in admitting over objection the rebuttal testimony concerning the theft of the 1968 Plymouth GTX. Defendant argues that since Jumper denied stealing the car on cross examination, the state was bound by his answer and could not offer evidence to the contrary. We agree.

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 witness' answer and cannot offer contrary evidence (except for a criminal conviction, § 491.050 RSMo 1969). State v. Williams, 492 S.W.2d 1 (Mo.App.1973); State v. Johnson, 486 S.W.2d 491 (Mo.1972); Wiesemann v. Pavlat, 413 S.W.2d 23 (Mo.App.1967).

The critical question is whether Jumper's alleged theft of the Plymouth was collateral to the disputed issues in this case. A collateral fact or issue has been defined as one that is 'subsidiary or secondary.' Crabtree v. Kurn, 351 Mo. 628, 1973 S.W.2d 851, 858 (1943).

The only issue in this case was whether the defendant illegally tampered with a 1970 Chevrolet on June 21, 1973. The state's theory, however, is that the defendant participated in a scheme wherein he and Jumper stole cars and then paid Sanders both for his help in dismantling the cars and for the use of his garage. The state stressed this alleged scheme in its opening statement, during the testimony, and in its closing argument. The state contends that evidence of extraneous criminal acts by Jumper committed in the furtherance of this alleged scheme is not only relevant, but also pertains to the major issue in the case and is not a collateral matter.

Despite the state's theory, the fact remains defendant was only charged with tampering with a 1970 Chevrolet on June 21, 1973. He was not charged with stealing or tampering with the 1968 Plymouth GTX on June 2--3, 1973. Nor was he charged with stealing or tampering with the 1969 Buick. Nor was he charged with conspiracy to steal or tamper with motor vehicles.

Likewise, the rebuttal evidence concerning the Plymouth failed to implicate defendant in this alleged illegal scheme. The rebuttal testimony of Sanders and the detective concerning the stealing of the Plymouth GTX never included any evidence of any participation by the defendant. According to Sanders, only he and Jumper participated in the June 2--3 theft and dismantling of the Plymouth GTX.

We believe the trial court erred in admitting the rebuttal evidence concerning the theft of the Plymouth, and we believe the probable effect of this evidence was so prejudicial as to mandate a reversal of the conviction and remand of the cause. Defendant was charged only with tampering with a 1970 Chevrolet, not with the theft of the Plymouth GTX; and the rebuttal evidence totally failed to connect defendant in any way with the theft of the Plymouth GTX.

With defendant exercising his right not to testify, the principal defense witness was Jumper. Since Jumper testified (1) he and the defendant were good friends (2) he, defendant and Sanders knew each other and (3) he and defendant had met at Sanders' home at least a few times, the rebuttal testimony concerning the theft of the Plymouth GTX by Jumper and Sanders could easily have led the jury to believe the defendant was guilty of the charge merely because of his association with the two other men, and thus establish defendant's 'guilt by association.' The jury could easily have confused the primary issue of defendant's guilt with the collateral issue of whether Jumper stole the Plymouth GTX.

Respondent further urges the rebuttal evidence was admissible to show Jumper's bias. Not so. Jumper's bias had already been clearly established on cross examination, when Jumper said he and defendant were 'pretty good friends,' but that he believed Sanders to be 'a pretty lowdown person,' who was trying to 'frame' him.

Respondent argues that the case of State v. Taylor, 486 S.W.2d 239 (Mo.1972), presents virtually an identical fact situation and is dispositive of the instant case. We disagree. In Taylor defendant was charged with second degree burglary. A defense witness testified he and another had burglarized the building, but that defendant had no part in the burglary. The defense witness also said he had seen copper tubing 'all over the place.' The state's rebuttal evidence was that there was no copper tubing stored in the east side of the building,...

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  • State v. Hamell, 37816
    • United States
    • Court of Appeal of Missouri (US)
    • 18 de outubro de 1977
    ...the others, or (5) identity of the person charged. State v. Reese (364 Mo. 1221), 274 S.W.2d 304, 307 (Mo.1954); State v. Diamond, 532 S.W.2d 873, 876 (Mo.App.1976); State v. Fox, 510 S.W.2d 832, 838 (Mo.App.1974). Such evidence must be subjected to rigid scrutiny because of its tendency 't......
  • State v. Hindman, 9816
    • United States
    • Court of Appeal of Missouri (US)
    • 21 de setembro de 1976
    ...(Mo.1973); State v. Boyer, 476 S.W.2d 613, 616--617(2) (Mo.1972); State v. Bevineau, 460 S.W.2d 683, 686(3) (Mo.1970); State v. Diamond, 532 S.W.2d 873, 876--877(6--11) (Mo.App.1976); State v. Morris, 523 S.W.2d 329, 331(4--6) (Mo.App.1975). In addition to other reasons why Whiteaker's test......
  • State v. Sanders, WD 31446.
    • United States
    • Court of Appeal of Missouri (US)
    • 13 de janeiro de 1981
    ...Holbert, 416 S.W.2d 129 (Mo.1967); State v. Mathis, 375 S.W.2d 196 (Mo.1964); State v. Griffin, 336 S.W.2d 364 (Mo.1960); State v. Diamond, 532 S.W.2d 873 (Mo.App.1976); State v. Burr, 542 S.W.2d 527 (Mo.App.1976); State v. Cole, 527 S.W.2d 646 (Mo.App.1975); State v. Strickland, 530 S.W.2d......
  • State v. Simmons, 38030
    • United States
    • Court of Appeal of Missouri (US)
    • 29 de novembro de 1977
    ...The examining party is bound by the witness' answers on collateral matters, except for criminal convictions. E. g., State v. Diamond, 532 S.W.2d 873 (Mo.App.1976); State v. Johnson, 486 S.W.2d 491 Appellant contends that Mrs. Simmons was impeached on a collateral matter; that is, on her bel......
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