State v. Hawkins

• Citation: 703 S.W.2d 67
• Decision Date: 16 December 1985
• Docket Number: No. 14183,14183
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donnie HAWKINS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 67

703 S.W.2d 67

STATE of Missouri, Plaintiff-Respondent, v. Donnie HAWKINS, Defendant-Appellant.

No. 14183.

Missouri Court of Appeals,

Southern District,

Division Three.

Dec. 16, 1985.

Motion for Rehearing or to Transfer to

Supreme Court Denied Jan. 7, 1986.

Application to Transfer Denied

Jan. 15, 1986.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

W. Swain Perkins, Larry Dean Kissee, L. Gary Dellinger, Thayer, for defendant-appellant.

GREENE, Judge.

Defendant, Donnie Hawkins, was charged with first degree assault, but convicted of second degree assault, and sentenced to four years' imprisonment as punishment for the crime.

Viewed in the light most favorable to the state, the evidence was that Donnie, believing that his first cousin, James "Rocky" Hawkins, was the "cause of all his problems," shot Rocky in the right lower jaw with a .44 magnum caliber Smith and Wesson revolver, causing extensive damage to his face, teeth, tongue and jaw.

In his first point relied on, Donnie contends that the trial court committed reversible error by allowing, over objection, questions directed to Donnie on cross-examination which implied his participation in unrelated criminal activity.

As a part of the state's case, Rocky testified that prior to the shooting he and Donnie were on good terms, and that they had worked together at a construction company, and later, at the South Fork Ranch in Howell County, Missouri. He also testified that Donnie quit his ranch job. During the presentation of his defense, Donnie testified that he quit the South Fork job because he was not making enough money to pay his bills.

On cross-examination, in an apparent effort to discredit his testimony, the prosecuting attorney asked Donnie if, when he left his job at the ranch, "[y]ou were in a little bit of trouble for maybe taking some items that didn't belong to you ....? " Donnie's attorney immediately objected, requested that the trial court declare a mistrial, or in the alternative to instruct the jury to disregard the question. All requests for relief were denied by the trial judge, who opined that the prosecutor could cross-examine Donnie "on those points which you opened up." The question was then repeated. Donnie denied taking any items or equipment from his ranch employer, and denied being fired.

A defendant in a criminal case who testifies in his own behalf may be impeached as any other witness through cross-examination or by rebuttal evidence. Even though the scope and extent of cross-examination rests largely in the discretion of the trial court, cross-examining a defendant regarding alleged prior acts of misconduct, particularly where details are stated, such as the date, location, victim or nature of the unrelated crime, "lends itself to the creation of substantial prejudice even though the answers are in the negative." State v. Dunn, 577 S.W.2d 649, 651-653 (Mo.1979). See also State v. Pierce, 595 S.W.2d 748, 750-751 (Mo.App.1980).

Here, the question asked by the prosecutor regarding why Donnie left his ranch job was improper. A motive for the shooting is clearly evident in the record, which was Rocky's involvement with Donnie's wife, which Donnie admitted made him angry, and which, coupled with his loss of job at the ranch, caused him "all his problems." As explained in State v. Collins, 669 S.W.2d 933, 936 (Mo. banc 1984), although there are situations in which evidence of other crimes may be admitted in support of such issues as motive, intent, absence of mistake or accident, common scheme or plan, or the identity of the person charged, evidence of unrelated criminal conduct should be received "only where there is strict necessity." There was no strict necessity to admit such evidence in this case, and it was error to do so.

While the erroneous admission of unrelated crimes evidence is presumed to be prejudicial, State v. Brooks, 675 S.W.2d 53, 59 (Mo.App.1984), the presumption is not conclusive, and it may be overcome by the facts and circumstances of a particular case. Burton v. State, 641 S.W.2d 95, 99 (Mo. banc 1983). Such is the case here. It is hard for us to believe that the jury attached any significance to the improper question. We note that the jury found defendant guilty of second degree assault, rather than the charged first degree assault, and that the greater charge was supported by uncontradicted evidence. This indicates that the question did not inflame the jury and cause them to substitute passion and prejudice for reason in determining Donnie's fate. The stark dissimilarity between the charged crime of assault and the implied crime of stealing from an employer is a significant factor indicating harmlessness of the error in question. See State v. Cleveland, 583 S.W.2d 263, 266 (Mo.App.1979). Finally, error, which in a close case might call for reversal, may be disregarded as harmless when the proof of guilt is strong. State v. Ford, 639 S.W.2d 573, 576 (Mo.1982).

Here, the victim identified Donnie, both immediately after the shooting and again at trial, as the person who shot him. He identified a .44 magnum Smith and Wesson revolver seized from Donnie at the time of the arrest as the gun used to shoot him. The pistol had been recently cleaned. Bullet fragments taken from Rocky's neck during surgery were identified as coming from a .44 magnum bullet with Smith and Wesson characteristics. The motive for the attack was evident in the record--Donnie believed that his wife and Rocky were having an affair. Although the prosecutor's inappropriate question cannot be condoned, we hold the error in asking the question was harmless.

Donnie also contends that the...