State v. Long, 48694
| Decision Date | 03 September 1985 |
| Docket Number | No. 48694,48694 |
| Citation | 698 S.W.2d 898 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Frederick D. LONG, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
James Jay Knappenberger, Clayton, for defendant-appellant.
George A. Peach, Pros. Atty., St. Louis, for plaintiff-respondent.
Defendant was found guilty of driving while intoxicated, second offense, and was sentenced to nine months in the St. Louis Medium Security Institution. Defendant appeals. We affirm.
On February 25, 1983, defendant Frederick D. Long, his girlfriend Shirley Cunningham, his aunt and uncle, Lydia and Fred Gerding, and approximately six or seven other people had dinner at a restaurant on Compton Avenue in the City of St. Louis. Defendant first arrived at the restaurant about 5:30 p.m., left shortly afterward, and returned about an hour later with another man who joined the group. The group broke up around 10:00 p.m., with everyone departing in separate cars. Defendant was driving a utility truck owned by his aunt's company, F.A. Enterprises. Mrs. Cunningham and Mr. & Mrs. Gerding all testified that defendant had had three or four drinks, each consisting of wine and seltzer, during the course of the evening, and that defendant did not appear drunk when he left the restaurant.
At approximately 10:00 p.m. that same evening, William Eck and Theresa Michaels (Theresa Eck at the time of trial) were standing on the sidewalk along the 3200 block of North Dakota, unloading Eck's car. They heard a crash, looked up the street and saw a truck up against a parked car which it had apparently hit, then saw the truck back up and hit the car again. The truck proceeded to travel down the street in the direction of Eck and Michaels, weaving back and forth as it did so. As the truck went by, Eck was able to observe the driver of the truck, wrote down the license number, and called the police.
Shortly thereafter, Officer Kevin Burgdorf observed a truck swerving back and forth across the lanes of Grand Avenue near the area where the truck had first been seen by Eck and Michaels. The truck matched the description of the truck and the license number given to the police by Eck, which was broadcast over the air on the police radio.
Burgdorf pursued the truck, which then accelerated. After a short chase, the driver lost control of the truck and the truck came to rest on a sidewalk. The driver, identified by Burgdorf at trial as the defendant, opened the door and fell to the ground. The defendant could not stand without assistance, had a strong alcoholic breath, could not speak clearly, and refused a field sobriety test or a breath test. Eck and Michaels were brought to the scene by the police. Eck identified defendant as the driver of the truck which had hit the parked car, and both Eck and Michaels identified the truck.
In his first and third points on this appeal, defendant claims that the trial court erred in allowing the State to impeach defense witness Shirley Cunningham who had testified that, as of a few minutes before his arrest, defendant was not intoxicated. On cross-examination, Mrs. Cunningham denied owing defendant "a large sum of money" at the time of trial. Thereafter, the State was allowed to call Assistant Circuit Attorney Nels Moss who testified that, when he was in private practice, he represented her former husband in connection with a motion to modify their divorce decree. 1 At that time, defendant had visited Moss claiming that Mrs. Cunningham owed him several thousand dollars. Defendant gave Moss a number of cancelled checks payable to Mrs. Cunningham which were placed in evidence upon the strength of Moss' identification. The defense objection to Moss' testimony was that it did not impeach Mrs. Cunningham and that the cancelled checks were not probative of a debt. No objection was raised as to Moss' competency as a witness by reason of his status as an Assistant Circuit Attorney.
As best we can glean from defendant's marginal compliance with Rule 84.04(d), his points which attack the rebuttal testimony are essentially that it was error to allow impeachment on a collateral issue and that the testimony improperly put defendant's character in issue. With respect to the latter issue, it is correct that Moss testified that defendant said the debt arose while Mrs. Cunningham was living with defendant. We fail to see how such evidence could have damaged defendant's character in the eyes of the jury, however. Defendant's attorney, in his direct examination of Mrs. Cunningham, had elicited the fact that she and defendant were living together at the time of this offense.
We likewise reject the contention that Moss' testimony constituted improper impeachment of Mrs. Cunningham on a collateral issue. "Pecuniary interest of a witness, or his bias or prejudice, can always be shown." Weatherly v. Miskle, 655 S.W.2d 842, 844 (Mo.App.1983). Even if such evidence does not bear directly on the issues of the case, the interest or bias of a witness is always relevant. State v. Mitchell, 622 S.W.2d 791, 797 (Mo.App.1981). This is true whether the action be civil or criminal. State v. Pigques, 310 S.W.2d 942, 947 (Mo.1958). The scope of such evidence is subject to the broad discretion of the trial court, State v. Cameron, 604 S.W.2d 653, 658 (Mo.App.1980); and we cannot conclude on these facts that such discretion was abused in this case. The testimony of Moss tended to show that defense witness Cunningham could have had good reason to lie for the defendant, in that she was indebted to him, and that she had often received sums of money from him, a practice that would not be likely to continue if defendant were incarcerated.
In another point, defendant claims that the trial court erred in not submitting the range of punishment to the jury for assessment. Defendant, who had a prior conviction for driving while intoxicated, bases this argument on the version of § 577.023 which was in effect on the date of this offense, February 25, 1983. That version, found in the 1982 Cumulative Supplement, RSMo, provides that a person with such a prior conviction may be charged with a class A misdemeanor and that evidence of such prior convictions is to be heard and determined by the court out of the hearing of the jury. The statute, however, is silent as to whether the court or the jury sets the punishment. The statute was amended in 1983, RSMo Cum.Supp.1983, and the version in effect at the time of trial, provides specifically, "The court shall not instruct the jury as to the range of punishment or allow the jury, upon a finding of guilty to assess and declare the punishment as part of its verdict in cases of prior offenders ..."
Defendant argues that it is the 1982 version of § 577.023 which applies in this case, as that was the version of the statute which was in effect...
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State v. Anderson, SC 83680.
...845 S.W.2d 55, 65-67 (Mo.App.1992). Indeed, the pecuniary interest, bias or prejudice of a witness may always be shown. State v. Long, 698 S.W.2d 898, 901 (Mo.App.1985). Moreover, in the present case the trial court specifically found that it would have ordered disclosure of the impeaching ......
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State v. Stevens
...refusal to submit to breathalyzer testing, the error was harmless because the other evidence of guilt was strong. State v. Long, 698 S.W.2d 898, 902 (Mo.App.1985). The relevant evidence in the case with regard to intoxication was remarkably similar to the evidence in this ...
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State v. Cox
...Missouri courts already have considered this question. See, e.g., State v. Spain, 759 S.W.2d 871, 875 (Mo.App.1988), and State v. Long, 698 S.W.2d 898, 902 (Mo.App.1985). Here, however, discussion of Neville is premature. The question we face is whether § 577.041.1 permits evidence of the d......
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State v. Spain, 53969
...The probative value of the refusal, the court said, was outweighed by its prejudicial effect. Id. at 787. 2 However, in State v. Long, 698 S.W.2d 898, 902 (Mo.App.1985), this Court distinguished the Johnson case and held the admission of the defendant's refusal to take the test was harmless......