State v. Francis
| Decision Date | 22 June 1999 |
| Docket Number | WD55218 |
| Citation | 997 S.W.2d 74 |
| Parties | State of Missouri, Respondent v. Jeffrey L. Francis, Appellant. WD55218 Missouri Court of Appeals Western District 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jackson County, Hon. Thomas C. Clark
Opinion Summary: The defendant was convicted of three counts of assault, section 565.050, RSMo 1994, and three counts of armed criminal action, section 571.015, RSMo 1994, in the Jackson County Circuit Court. He complains the trial court erred in permitting the prosecutor to cross-examine him about his presence in the courtroom during the testimony of other witnesses, and in refusing to permit defense counsel to cross-examine the victim about his alleged arrest in a collateral matter.
Division holds: The trial court did not err in allowing the prosecutor's questions on cross-examination about defendant's opportunity to hear his brother testify because the defendant opened the door for the prosecutor to examine him with regard to his presence in the courtroom.
The trial court did not err in refusing to permit defense counsel to cross-examine the victim about his alleged arrest in a collateral matter because, it is a general rule that an arrest not resulting in a conviction may not be used to attack the credibility of a witness.
The defendant was convicted of three counts of assault, section 565.050, RSMo 1994, and three counts of armed criminal action, section 571.015, RSMo 1994, in the Jackson County Circuit Court. With regard to the assault charges, the defendant was sentenced to consecutive terms of imprisonment of 20 years, 10 years, and 7 years respectively. With regard to the armed criminal action charges, the defendant was sentenced to five years imprisonment on each charge to run concurrent with the defendant's other sentences. On appeal, the defendant complains that his constitutional right to due process was violated as a result of the state's conduct at trial. Specifically, the defendant contends that the trial court erred in permitting the prosecutor to cross-examine him about his presence in the courtroom during the testimony of other witnesses, and in refusing to permit defense counsel to cross-examine the victim about his alleged arrest in a collateral matter.
The defendant does not challenge the sufficiency of the evidence to support the verdicts. Therefore, we recount only the evidence necessary to address the claims of error, viewing it in the light most favorable to the verdict. State v. Kitchen, 950 S.W.2d 284, 285 (Mo. App. 1997). On April 15, 1996, Gregory Watson was driving towards his home when he received several electronic pages displaying Reginald Gant's telephone number. Stanley Johnson and Jonathon Barnes were riding with Watson. Watson returned the page and spoke with a man who identified himself as John Francis. Soon thereafter, a white car drove up behind Watson. Watson pulled his car over to the side of the road, got out, and started walking towards the white car. Three people got out of the white car and started shooting at him. Watson was shot, and then he blacked out. Johnson and Barnes stayed in the car, but Barnes was able to grab Watson's gun and return the shots. Both Johnson and Barnes were injured during the shooting incident.
After being taken to the hospital, Watson spoke with the police. He identified one of the shooters as Reginald Gant, but he could not positively identify the other two men. About a month after the shooting, Watson picked Reginald Gant and John Francis out of photo spreads as the men who had shot him. Watson was treated for three gunshot wounds, one of which destroyed certain nerve pathways in his brain. The defendant was also treated for a gunshot wound.
At trial, the defendant testified in his own defense. The defendant said that he was a passenger in the white car. He explained that he intended to buy drugs from Watson that night. The defendant also testified that he carried a shotgun to the deal, and that he fired it only in self-defense. At the close of evidence, the jury found the defendant guilty as charged.
In his first point on appeal, the defendant contends that the prosecutor's cross-examination questions regarding his presence in the courtroom during the testimony of other witnesses, created an inference that he adjusted his testimony in accordance with the testimony already presented. The cross-examination to which the defendant objects is as follows:
Q. Mr. Francis, now you've had the opportunity to hear your brother's version of this shooting and now we've had an opportunity to hear yours, right?
A. Yes.
Q. You could have testified before him, isn't that true?1
* * *
Q. You heard your brother testify here today, is that correct?
A. Yes.
Q. Okay. So, you know what his story is now, right?
A. Yes, sir.
Q. And, you really did know what his story was going to be before you came to court today, didn't you?
A. No, sir.
Q. You never talked to your brother about this?
A. No, not in detail, just talked about when I had . . . just kept him updated on my court dates and stuff.
Q. Sir, you are facing a sentence of life imprisonment if you're convicted and you're telling me you never even talked to your brother about what happened that night in detail.
A. No, sir.
According to the defendant, these comments were intended solely to draw the attention of the jury to the defendant's opportunity to tailor his testimony to his brother's testimony. The defendant maintains that this type of questioning violates his right to due process because it has the effect of forcing a criminal defendant to choose between his right to be present at trial and his right to testify on his own behalf. The defendant refers us to State v. Irvin, for the proposition that "[o]ne of the most basic rights of the confrontation clause is the accused's right to be present in the courtroom at every stage of his trial." 628 S.W.2d 957, 958 (Mo. App. 1982)(citing Lewis v. United States, 146 U.S. 370, 13 S. Ct. 136, 36 L. Ed. 1011 (1892)).
Defendant admits that trial counsel did not object to the prosecutor's cross-examination of the defendant on the grounds that this questioning created an inference that the defendant adjusted his testimony in accordance with his brother's testimony. Despite the fact that defendant failed to preserve this complaint for appellate review, we may exercise our discretion to review this point for plain error pursuant to Rule 30.20. State v. Parkus, 753 S.W.2d 881, 887 (Mo. banc 1988), cert. denied, 488 U.S. 900, 109 S. Ct. 248, 102 L. Ed. 2d 237 (1988). Plain error encompasses only prejudicial error that so substantially affects the rights of the accused that a manifest injustice or miscarriage of justice inexorably results if left uncorrected. Id. at 888. For instructional error to rise to the level of plain error, the trial court must have so misdirected or failed to instruct the jury as to cause manifest injustice or a miscarriage of justice. Id. See also State v. Cooksey, 805 S.W.2d 709, 710 (Mo. App. 1991). The defendant bears the burden of establishing manifest injustice. Id.
The defendant relies upon the Second Circuit case of Agard v. Portuondo, for the proposition that it is constitutional error for a prosecutor to insinuate, during closing argument, that a defendant's presence in the courtroom provided him with a unique opportunity to tailor his testimony to match the evidence. 117 F.3d 696, 709 (2nd Cir. 1997). In Agard, the court found that a jury may infer from such comments that a defendant is guilty and, therefore, penalize him for exercising his constitutional right to attend his own trial. Id. at 710.
Agard is not controlling, nor under these facts, persuasive. The court, in Agard, expressly stated that its holding was limited to a prosecutor's comments during closing argument, and was not applicable to a situation involving cross-examination. Id. at 708-09. The court reasoned that the nature of closing argument raises constitutional issues that may not be present in cross-examination. Id.
Alternatively, we find the Southern District case of Walker v. State, to be both persuasive and factually on point. 972 S.W.2d 623 (Mo. App. 1998). In Walker, the court held that questioning a defendant regarding his opportunity to hear the testimony of other witnesses, and to conform his testimony to that of the other witnesses was not plain error. Id. at 627. Apparently, Walker's attorney asked him on direct examination whether he had heard the testimony up to that point in the trial. Id. Walker responded in the affirmative. Id. In light of these circumstances, the court determined that Walker had opened himself up to cross-examination regarding his opportunity to hear the testimony of prior witnesses. Id. The court emphasized that, where a defendant refers to a subject on direct examination, he opens himself up to cross-examination about that subject. Id. (citing State v. Foulk, 725 S.W.2d 56, 70 (Mo. App. 1987)).
In the present case, the defendant testified as follows on direct examination:
Q. The last witness that testified, Mr. John Francis . . .
A. Yes.
Q. He testified that he is your brother . . .
A. Yes.
Q. And, you agree with that?
A. Yes, sir.
Defense counsel continued to ask the defendant about testimony he had heard prior to his own testimony:
Q. Now you heard the police testify when they arrived at the scene, there was no gun with Gregory Watson. Do you remember hearing that testimony?
A. Yes.
* * *
Q. All right. Well, you saw Detective Volker testify, and she's a policeman on the Missouri side.
A. Yes.
Q. And you saw her testify?
A. Yes.
* * *
Q. Did you hear that testimony from an expert who said that there were five shells there?
A. Yes.
Q. They believe from the same shotgun. You were here . . . do you remember hearing that testimony?
It is well established that a defendant who chooses to...
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...all the witnesses’ evidence in the case before the defendant’s testimony. See Portuondo v. Agard, 529 U.S. 61 (2000); State v. Francis, 997 S.W.2d 74 (Mo. App. W.D. 1999). The victim’s right to be present (by statute) is surely no greater than the defendant’s constitutional rights to be pre......