State v. Harris

Decision Date04 August 1981
Docket NumberNo. 41234,41234
Citation622 S.W.2d 330
PartiesSTATE of Missouri, Respondent, v. Norman HARRIS, Appellant.
CourtMissouri Court of Appeals

James B. Herd, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Nancy D. Kelley Baker, Asst. Attys. Gen., Jefferson City, Charles Bridges, Asst. Pros. Atty., St. Charles, for respondent.

DOWD, Judge.

Defendant was charged under a multiple count indictment with rape, kidnapping and armed criminal action against a seventeen year old female. He was also charged with attempted kidnapping and armed criminal action against the victim's boyfriend. A jury found defendant guilty of all five offenses. Defendant was sentenced to concurrent terms of two years, twenty-five years and three years respectively for the kidnapping, rape and armed criminal action offenses. He was sentenced to concurrent terms of two years and five years respectively for the attempted kidnapping and armed criminal action against the boyfriend, with these sentences to be served consecutively with the previous three sentences. On this appeal the sufficiency of the evidence is not contested and we briefly set forth the relevant facts.

At approximately 12:15 a. m. on December 30, 1977, the victim and her boyfriend were sitting in an automobile parked on a gravel road located in St. Charles County, Missouri. A red 1967 or 1968 Chevrolet pickup drove by. Shortly thereafter someone knocked on the window of the parked automobile and the boyfriend got out to investigate. Defendant was standing beside the automobile holding a flashlight and a shotgun. He subsequently pointed the shotgun at the boyfriend and ordered him into the trunk of the automobile. When the boyfriend said he could not fit in the trunk, defendant told him to start walking down the road.

Defendant then took the victim by the arm and led her to a red pickup where she was made to kneel down on the passenger side of the vehicle facing the passenger door. They drove for ten or fifteen minutes, during which time the victim was blindfolded. They stopped at a house and defendant brought the victim inside the home and raped her. He then returned the victim to the truck, and after driving for ten or fifteen minutes, released her. After walking for approximately fifteen minutes the victim arrived at a truck stop from where she called her parents.

Meanwhile, the victim's boyfriend had already notified police of the abduction. At approximately 1:40 a. m. police stopped a red pickup truck which matched the description of the vehicle being sought in the abduction. Defendant was the driver of this vehicle. The initial description of the abductor apparently specified a man in his twenties and because defendant was much older he was detained briefly and then released. After police authorities had talked with the victim, police officers went to defendant's home and placed him under arrest. At trial, defendant denied any involvement in the crimes charged. He testified that he went out for dinner at approximately midnight and was stopped by police on his way home, and later was arrested. Defendant also elicited reputation evidence from several witnesses.

Defendant first contends the trial court erred in giving Instruction No. 17, which was MAI-CR 2.50. This instruction informs the jury, in part, to consider reputation evidence along with all other evidence in determining the guilt or innocence of the defendant. At trial defendant elicited evidence of his good reputation for truth, honesty and good moral character from three witnesses. Thereafter, the prosecuting attorney asked these witnesses whether they had heard of several prior convictions and prior arrests of the defendant. Defendant contends that the trial court erred in giving MAI-CR 2.50 because it "A) wrongfully permitted the jury to infer guilt upon its consideration of appellant's prior unrelated arrests and B) failed to limit the evidence of prior unrelated arrests to the jury's consideration of the evidence of appellant's reputation for good character." Defendant argues that MAI-CR 2.50, in its approved form, does not adequately restrict the jury upon hearing questions pertaining to prior acts of misconduct to the legitimate purpose of testing the trustworthiness, knowledge and good faith of the character witnesses. The instruction informs the jury that character evidence has been introduced and should be considered "along with all of the other evidence in the case in determining the guilt or innocence of the defendant." 1 Defendant argues that the instruction encouraged the jury to consider the prior arrests as "other evidence" and there was nothing contained in the instruction to limit these matters to their proper purpose.

Defendant elicited testimony from three witnesses concerning his reputation for truth, honesty and good moral character. This testimony constituted substantial evidence tending to show defendant's good character, thereby requiring the character instruction. MAI-CR 2.50, Notes on Use, n. 1; State v. Wells, 586 S.W.2d 354, 359 (Mo.App.1979); State v. Woodfin, 559 S.W.2d 273, 277 (Mo.App.1977). Accordingly, there was no error in giving the instruction.

The gist of defendant's contention is that the trial court should have issued an oral or written instruction informing the jury of the permissible uses of the rumor questions and the responses brought out in the cross-examination of the character witnesses. There was no request by defendant at trial for such a limiting instruction. In general, the trial court is not required to give a limiting or cautionary instruction on a collateral matter unless requested to do so. For example, the trial court is not required to instruct on the limited consideration to be given evidence of a defendant's prior conviction absent a request. State v. Minor, 548 S.W.2d 598, 601 (Mo.App.1977). In State v. Wilson, 248 S.W.2d 857 (Mo.1952) the defendant contended that the trial court should have instructed the jury that the statements by character witnesses that the defendant had been arrested were for the purpose of attacking their credibility and not for proving the arrest and were not to be used as evidence against the defendant. The court concluded that this was a collateral matter, and since the defendant had not requested such an instruction, the trial court was not required to give one. Id. at 860. See also State v. McCoy, 458 S.W.2d 356, 359-360 (Mo.1970); State v. Bellew, 612 S.W.2d 401, 403 (Mo.App.1981). In the present case, the trial court did not err in failing to sua sponte instruct the jury concerning the cross-examination of the character witnesses.

In the argument portion of his brief, defendant also asserts that the prosecutor improperly cross-examined the defendant's character witnesses. Defendant argues that the prosecutor's cross-examination questions, concerning several prior arrests of the defendant, assumed as fact matters which were not in evidence and repeatedly subjected him to improper inferences from the unestablished assumption of prior misconduct.

"(T)he state may cross-examine a character witness with reference to defendant's prior arrests and accusations of specific misconduct for the purpose of testing the trustworthiness, knowledge and good faith of the witness." State v. Siems, 535 S.W.2d 261, 264 (Mo.App.1976). Such inquiry of a witness to defendant's good reputation is permitted because it tends to show either that the witness is unfamiliar with defendant's reputation, or he is being untruthful or that he has an unsound standard of what constitutes good reputation. State v. Burr, 542 S.W.2d 527, 532 (Mo.App.1976). Thus, the state is allowed to ask in good faith if the character witness had heard rumors regarding misconduct of the defendant on the ground that if the witness admitted knowing of the rumors, such knowledge may be treated as inconsistent with previous assertions that the defendant's reputation is good. State v. Siems, supra; State v. Carson, 239 S.W.2d 532, 536 (Mo.App.1951).

While such cross-examination of character witnesses is permitted, it "ought to be done in good faith, and the crimes inquired about ought not to be apocryphal, existing alone in the fertile fancy of a public prosecutor." State v. Hastings, 477 S.W.2d 108, 113 (Mo.1972) quoting State v. Willard, 192 S.W. 437, 440 (Mo.1917). The questions should not assume facts or be asked merely for the purpose of improperly showing other crimes to the jury. State v. Carroll, 188 S.W.2d 22, 24 (Mo.App.1945). See State v. Thomas, 535 S.W.2d 138 (Mo.App.1976). In the present case, the prosecutor asked the character witnesses whether they had heard of five prior arrests of the defendant for various charges. One witness had heard of two of the prior arrests. The prosecutor also asked the witnesses whether they had heard of defendant's prior convictions. One witness had heard of these prior convictions and defendant admitted them when he took the stand on his own behalf. No claim of bad faith is made by defendant concerning the prosecutor's questions and the record reveals none. 2 On the record before us there is nothing to indicate that the prosecutor's purpose was anything other than to test the good faith of the witnesses and their knowledge of defendant's reputation. We do not find that the trial court abused its discretion in permitting such questioning. This point is ruled against defendant.

Defendant next contends the trial court erred in giving Instruction No. 16, which was MAI-CR 3.54. This instruction informs the jury that if a defendant made prior statements consistent with his testimony at trial the jury may consider that in determining the believability of the defendant and the weight to be given his testimony, but the prior consistent statements must not...

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