State v. Lockhart

• Decision Date: 08 April 1974
• Docket Number: No. 1,No. 57489,57489,1
• Citation: State v. Lockhart, 507 S.W.2d 395 (Mo. 1974)
• Parties: STATE of Missouri, Respondent, v. William LOCKHART, Appellant
• Court: Missouri Supreme Court

Page 395

507 S.W.2d 395

STATE of Missouri, Respondent, v. William LOCKHART, Appellant.

No. 57489.

Supreme Court of Missouri, Division No. 1.

April 8, 1974.

John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondent.

Arthur Kreisman, St. Louis, James C. Jones, III, St. Louis, for appellant.

HIGGINS, Commissioner.

William Lockhart, with prior conviction, was charged with illegal sale of heroin. He was convicted by a jury and the court assessed his punishment at fifteen years' imprisonment. Sentence and judgment were rendered accordingly. §§ 556.280, 195.017, 195.020, 195.200, RSMo 1969, V.A.M.S. (Appeal taken prior to January 1, 1972.)

Appellant does not question the sufficiency of evidence to sustain his conviction, and the evidence would permit the jury to find: that on November 10, 1970, Officer John Thomas and other officers of the St. Louis Metropolitan Police Department met with an unidentified informant; that Officer Thomas was given $50 in cash with which to purchase heroin from William Lockhart; that the informant made a telephone call to Lockhart and he and Officer Thomas drove to the Lockhart residence at 4112 St. Ferdinand, St. Louis, Missouri; that the two were admitted to the house by defendant; that Officer Thomas paid defendant $50 for an aluminum foil package of heroin which the three proceeded to place in capsules; that Officer Thomas took the capsules to the police laboratory; that the contents of the capsules were analyzed and found to be heroin.

During the cross-examination of Officer Thomas the court sustained the State's objections to questions by which defendant sought to show a charge of second degree murder pending against Officer Thomas. Defendant offered 'to prove by this witness in cross-examination that he is presently under indictment in St. Louis County for second degree murder, that he has been confined to the County Jail for six months or more, and that I am offering that for the purpose of showing this man's reputation and character so the jury may determine whether he is to be believed at all.'

By paragraphs 3, 4 and 5 of his motion for new trial, defendant presented his allegations of error with respect to denial of his offer of proof, asserting that the offer was 'important evidence as to the credibility which the Jury should give to his testimony * * * for the purpose of showing his testimony is not to be believed, * * * that said witness was not a credible witness because of his own misconduct and lack of veracity.'

Appellant now asserts that the court erred in refusing his offer of proof and to permit him to cross-examine Officer Thomas regarding a second degree murder charge pending against him.

It is well established that the credibility of a witness may not be attacked by showing his arrest and a pending charge which has not resulted in a conviction. State v. Sanders, 360 S.W.2d 722, 725(4) (Mo.1962). It would be error to ask a witness if he has been arrested for or charged with a crime or in jail awaiting trial on a pending charge. State v. Foster, 349 S.W.2d 922, 925(7) (Mo.1961).

An exception to the rule has been noted where the inquiry shows a specific interest of the witness, State v. Sanders, supra; or where it shows a possible motivation of the witness to testify favorably for the government, United States v. Bonanno, 430 F.2d 1060 (2nd Cir. 1970); or where it shows the testimony of the government witness was given in expectation of leniency, United States v. Migliorino, 238...