State v. Lynch

• Decision Date: 15 July 1975
• Docket Number: No. 36106,36106
• Citation: 528 S.W.2d 454
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Thomas LYNCH, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 454

528 S.W.2d 454

STATE of Missouri, Plaintiff-Respondent, v. Thomas LYNCH, Defendant-Appellant.

No. 36106.

Missouri Court of Appeals, St. Louis District, Division Three.

July 15, 1975.

Motion for Rehearing or Transfer Denied Sept. 8, 1975.

Application to Transfer Denied Nov. 10, 1975.

Legal Aid Society, Charles W. Bobinette, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Philip M. Koppe, Preston Dean, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

McMILLIAN, Judge.

A circuit court jury found defendant guilty of robbery in the first degree by means of a dangerous and deadly weapon, §§ 560.120 and 560.135, RSMo 1969. Pursuant to the Second Offender Act, § 556.280(1), the court sentenced defendant to serve (20) twenty years in the custody of the Missouri Department of Corrections. Defendant appeals.

On this appeal defendant raises five points for reversal: (1) denial of a continuance; (2) undue limitation of his right of cross-examination; (3) two instances of a refusal to suppress identification testimony of witnesses; and (4) refusal of certain cautionary instructions. For reasons hereafter set out, we affirm.

Since defendant does not question the sufficiency of the evidence, we will set forth only those facts necessary for a disposition of defendant's points on this appeal.

On 17 October 1975, at or near noon, four men of various sizes and descriptions, committed an armed robbery of the Vogue Sales Shop located on Manchester Avenue in the City of St. Louis. At the time the four men entered the store, Mrs. Garon Daugherty, a co-owner, was there alone with her three-year old son. During the robbery which lasted from twenty to twenty-five minutes, Linda Cope, a neighbor, and Al Breckley, a private watchman, entered the store.

Mrs. Daugherty testified that the store was well-lighted; that she got a good look at the subjects; and that she knew one of the subjects, later identified as William Walker, from prior business dealings. At the time she gave her description of the four subjects to the police, she did not give Walker's name, but one of the police volunteered Walker's name when he heard her description.

About four months later, Mr. Daugherty picked defendant from a lineup and positively The thrust of the motion was to gain additional both a pre-trial and in-court identification.

Prior to the beginning of the trial, defendant's attorney filed a verified motion for a continuance, Rule 25.08, V.A.M.R. The thrust of the motion was gto gain additional time to discover and subpoena the federal agents involved in an investigation, arrest, and prosecution of Mrs. Daugherty, who, the motion alleged, had been arraigned in the Federal Court on a stolen gun charge. Defendant alleged that these agents, if present, would testify to Mrs. Daugherty's bad reputation in the community for honesty.

Defendant concedes that the granting of a continuance is within the sound discretion of the trial court. State v. Reece, 505 S.W.2d 50, 52 (Mo.1974); Rule 25.08. But he asserts that here the trial court had abused its discretion because the denial of a continuance precluded him from introducing independent evidence showing that the general reputation of Mrs. Daugherty for veracity was bad. In State v. Cuckovich, 485 S.W.2d 16, 21--22 (Mo. banc 1972), our Supreme Court noted that it requires a very strong showing to induce an appellate court to interfere with the exercise of a trial court's discretion in acting on motions for a continuance. It further observed that the action of the trial court would not be disturbed unless a clear abuse of discretion is shown. State v. Tettamble, 517 S.W.2d 732, 734 (Mo.App.1974).

In State v. Collie, 503 S.W.2d 445, 446--47 (Mo.App.1973), we said that when a continuance is sought on the ground of the absence of a witness, the request must give the name of the witness, where he resides, the probability of procuring his testimony and within what time, what facts the witness will prove, and the exercise of due diligence. The application filed herein fails to list the names of the witnesses sought or their addresses and fails to state the probability of securing their testimony, much less within what time.

Under the circumstances herein, we find no abuse of discretion because (1) no showing has been made that a different result would have been obtained had the absent witnesses testified, and (2) the purported testimony had no direct bearing upon the issue of guilt or innocence. State v. Reece,supra; State v. Steele, 280 Mo. 63, 217 S.W. 80 (1919).

On cross-examination, defendant's counsel inquired of Mrs. Daugherty whether she had ever knowingly purchased stolen guns or sold stolen guns to a known felon. Defendant claimed that the purpose of the questions was to show bias, to impeach her. The State's objections to the questions and the offer of proof were sustained.

The defendant points out, and rightfully so, that his questions made no reference to either an arrest or a present indictment. He argues that while he could not ask a witness whether or not he has ever been arrested for or charged with a crime, yet he may ask a witness questions concerning whether or not be committed or admitted committing a specific crime. State v. Foster, 349 S.W.2d 922 (Mo.1961); State v. Williams, 492 S.W.2d 1 (Mo.App.1973); and State v. Summers, 506 S.W.2d 67, 73 (Mo.App.1974).

In the Williams case, we covered this issue somewhat exhaustively in a review of the cases. We concluded that subject to a witness's claim of right against self-incrimination a witness may be asked questions concerning whether he committed or admitted committing a specific criminal act. The purpose of such questions is to test a witness's credibility, however irrelevant the acts may be to the facts in issue and however disgraceful the answers may be to the witness. State v. Long, 201 Mo. 664, 100 S.W. 587, 590 (1907).

To counter defendant's contention, while recognizing the validity of his arguments for the general rule, the state urges that the allowance or disallowance of this type of questioning is discretionary with the trial court. State v. Long, supra, and Wendling v. Bowden, 252 Mo. 647, 161 S.W. 774 (Mo.1913). The court in the Wendling case, supra, citing Muller v. St. Louis Hospital Ass'n, 5 Mo.App. 390, 401, affirmed in 73 Mo. 242 (1880), with approval recognized that a witness may be compelled to answer any such question however irrelevant it may be to the facts in issue and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge. The same court recognized, citing Goins v. City of Moberly, 127 Mo. 116, l.c. 118, 29 S.W. 985 (1895), that, if a witness is asked a question of some shameful act for the purpose of discrediting him, the person asking the question is concluded by his answer. Thus we see that there are two protections afforded the witness: (1) the right against self-incrimination, if properly claimed; and (2) the examiner is concluded by the witness's answer so as to avoid a confusion of issues on collateral matters. In Wendling, the court quoted from the Long case: 'The better doctrine would seem to be that while such questions may be asked a witness on cross-examination, it is a matter largely within the discretion of the court before whom the case is to be tried.' This statement was reaffirmed by our Supreme Court in State v. Brooks, 360 S.W.2d 622, 626 (Mo.1962); State v. Brotherton, 266 S.W.2d 712, 715 (Mo.1954) and State v. Potts, 239 Mo. 403, 144 S.W. 495, 498 (1912).

In fact, Long, Wendling and their progeny are nothing more than a particularized application of the general rule that the extent of cross-examination on collateral matters for the purpose of impeachment is a matter largely within the discretion of the trial court. In State v. Allen, 435 S.W.2d 375, 377 (Mo.1968) (court refused to permit witness to be asked whether she earned her living by prostitution); State v. Cox, 352 S.W.2d 665, 673 (Mo.1962) (whether witness stabbed her brother); State v. Brooks, supra, (whether he had violently attacked and manhandled a woman) and State v. Messley, 366 S.W.2d 390, 393 (Mo.1963) (whether witness had committed an illegal act), our Supreme Court upheld the trial court's refusal to allow questioning a witness concerning specific acts of alleged misconduct relating to collateral matters. We hold that the latitude and extent of cross-examination on collateral issues to show specific misconduct for purposes of impeachment is initially a determination to be made by the trial court within the exercise of its discretion and will be set aside on appellate review only where it is affirmatively shown that the exercise of discretion was abused. Here there has been no such demonstration; therefore, we uphold the ruling of the trial court.

Defendant's next claim of error raises the question as to the validity of the admission into evidence of pre-trial identification testimony which was the claimed product of an unlawful detention; that is, where there is no probable cause to support the initial arrest. The state's evidence to support the arrest, made four months after the robbery, is meager at best. We shall, however, assume without deciding that the police arrested the defendant without probable cause.

In this posture defendant argues that the trial court should have suppressed the pre-trial identification testimony of Mrs. Daugherty on the grounds that such testimony was the 'poison fruit' of an illegal arrest of the defendant. He relied upon Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), where officers lacked probable cause to arrest defendant on information providing the name and address of a person selling heroin because the information was not known to be reliable and the officers did not have sufficient reason to believe the person named and defendant were one and the same...