State v. Gordon, 44044
| Decision Date | 08 February 1983 |
| Docket Number | No. 44044,44044 |
| Citation | 649 S.W.2d 903 |
| Parties | STATE of Missouri, Respondent, v. David GORDON, Appellant. |
| Court | Missouri Court of Appeals |
Claude Hanks, Creve Coeur, for appellant.
John Ashcroft, Atty. Gen., Kristie Green, Theodore A. Bruce, Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
This is an appeal from a second degree murder conviction. The defendant, David Gordon, was found guilty by a jury of murdering Larry Jones, and was sentenced in accordance with the verdict to a period of fifty years. We affirm.
On January 6, 1980, at approximately 1:00 p.m., Larry Jones, Darvel King, and two other men stood talking on the street in front of the Cabanne Courts Apartments. A man dressed in a green Eskimo coat walked up to them, pushed King and the others aside and began hitting Jones. The man pushed Jones against a parked truck, pulled out a gun and hit Jones a couple of times with it and then shot him in the head. The assailant looked at Jones' body very briefly, then walked away. Larry Jones died on January 9, 1980, from this gunshot wound to the head.
The defendant was arrested and shown in a lineup to three eyewitnesses to the shooting. After viewing the lineup twice, all three identified the defendant.
As his first assignment of error, defendant maintains that the trial court abused its discretion in overruling defendant's motion for mistrial based on a question asked by the prosecutor in his cross-examination of defendant. After defendant testified during direct examination as to his prior convictions, the following occurred during cross-examination by the prosecutor:
Q. I notice that you said that you've been convicted of Stealing from a Person.
A. Yes.
Q. And I notice that you said you plead [sic] guilty to that.
A. Yes.
Q. But actually that's not what you were charged with originally.
MR. HANKS: Just a minute. I object. May we approach the bench?
The defense counsel subsequently requested that a mistrial be granted and that the jury be instructed to disregard the question on the grounds that only prior convictions, not charges, were admissible. On appeal, defendant develops the argument that an inquiry about a charge for which no conviction was obtained amounted to a cross-examination into prior arrests. Consequently, defendant claims that the mere asking of the question suggested to the jury that defendant was charged with a more serious crime than that of which he had been convicted. We do not agree.
The vague inquiry by the prosecutor as to what defendant originally was charged with did "stop short of detailing the particular acts alleged to have been committed by the defendant ..." State v. Williams, 588 S.W.2d 70, 74 (Mo.App.1979). No reversible error occurred under these particular circumstances, given that there was no indication in the question itself as to what the answer, i.e. the charge, was. Furthermore, defendant was not required to and did not answer, and the prosecutor abandoned this line of questioning. Having so ruled, however, we again caution prosecutors to limit their cross-examination relating to a defendant's prior conviction to the fact of the conviction itself without reference to details leading up to it.
As an addendum to his first point, defendant urges that the trial court should have made a curative effort to instruct the jury to disregard the question. In view of the relative vagueness of the inquiry by the prosecutor, the trial judge in its superior position could well have determined that there was no need to emphasize the matter to the jury by "curative" comments. Defense counsel did not press the request for such an admonition at the time the trial court announced the denial of the motion for a mistrial, and we see no reason to pursue the matter here.
The defendant next contends that the trial court erred in overruling defendant's objection to the State's examination of its own witness, Darvel King, because it amounted to cross-examination where the witness displayed no hostility or reluctance to testify; therefore, the trial court's action constituted an abuse of discretion prejudicial to defendant. We disagree.
At trial, King initially testified on direct examination that he had not seen the man who shot Larry Jones before the shooting nor did he see the assailant anywhere in the courtroom. The prosecutor then posed the following question to King: Before the witness answered, defense counsel objected to the form of the question as constituting cross-examination. Several questions of a similar nature followed and were objected to without definite rulings by the trial court. King later, on direct examination, identified defendant as the man who shot the victim.
The trial court is vested with discretion to permit leading questions and, unless that discretion is abused, there is no reversible error. State v. Myers, 538 S.W.2d 892, 896-897 (Mo.App.1976).
We concur with the trial court's assessment that the questions, although leading in nature, did not constitute an attack on King's testimony, nor amount to an impermissible attempt to bolster it. The prosecutor was making a legitimate attempt to refresh King's memory about previous identifications he had made. The witness later explained on cross-examination concerning the events about which he was testifying, See State v. Martin, 530 S.W.2d 447, 450 (Mo.App.1975). Moreover, the leading questions were clearly occasioned by the prosecutor's genuine surprise at receiving answers he had not expected. The witness had previously identified the defendant to the prosecutor with certainty; at trial, the witness was less than unequivocal until his memory was refreshed by the questions. We have examined the transcript carefully and are convinced that no abuse of the trial court's discretion occurred. State v. Woolford, 545 S.W.2d 367, 373 (Mo.App.1976); State v. Sutton, 454 S.W.2d 481, 488 (Mo. banc 1969).
In his third point, defendant claims that the trial court erred in overruling defendant's motion for directed verdict because the evidence adduced at trial was insufficient for the jury to find defendant guilty of second degree murder beyond a reasonable doubt.
In reviewing defendant's argument relating to the sufficiency of the evidence, we recognize the general principle that all evidence supporting the conviction is considered true and all...
To continue reading
Request your trial
-
State v. Reasonover
...supportive of the conviction is considered true, and favorable inferences from this evidence are to be indulged. State v. Gordon, 649 S.W.2d 903, 905-906 (Mo.App.1983). Defendant in her brief asserts that the majority of the evidence in this case is circumstantial and capable of an innocent......
-
Hackman v. Dandamudi
...except in exceptional circumstances, will not be faulted for failing to grant relief which was never requested. See, State v. Gordon, 649 S.W.2d 903, 907 (Mo.App.1983). However, because a public policy issue is involved, appellant's failure to properly preserve and present this issue is not......
-
State v. Scrutchfield, 38032
...he requested at trial, he is not entitled to a reversal of his conviction based on comments in closing argument. See State v. Gordon, 649 S.W.2d 903, 906 (Mo.App.,E.D.1983). See also, State v. Sanders, 577 S.W.2d 186, 187 Defendant claims that the prosecutor ignored the court's admonishment......
-
State v. Simpson, 47130
...counsel's satisfaction with the corrective measures taken is assumed, and nothing is preserved for subsequent review." State v. Gordon, 649 S.W.2d 903, 907 (Mo.App.1983). Defendant's request for a mistrial comes too late. State v. Mabry, 602 S.W.2d 1, 2 (Mo.App.1980). Although we do not enc......