State v. Reilly

• Decision Date: 17 July 1984
• Docket Number: No. 65620,65620
• Citation: 674 S.W.2d 530
• Parties: STATE of Missouri, Plaintiff-Respondent, v. David REILLY, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 530

674 S.W.2d 530

STATE of Missouri, Plaintiff-Respondent, v. David REILLY, Defendant-Appellant.

No. 65620.

Supreme Court of Missouri En Banc.

July 17, 1984.

Rehearing Denied Sept. 11, 1984.

C. John Pleban, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Janet Papageorge, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HIGGINS, Judge.

David Reilly was convicted by a jury of stealing property worth in excess of $150, in violation of section 570.030, RSMo 1978. The Court of Appeals, Eastern District, affirmed, holding, among other things, that the trial court did not abuse its discretion when it admitted testimony in rebuttal of defendant's reputation evidence. This Court granted transfer to examine whether the rebuttal testimony of a witness whose inquiry into the defendant's character consisted solely of questions directed to police officers in the area of defendant's residence satisfied the standards for admissibility enunciated in State v. Cross, 343 S.W.2d 20, (Mo.1961). Affirmed.

The jury found that the defendant and two others stole a safe from Smith's Truck Stop in Marion County, Missouri. The three divided the money contained therein and then disposed of the safe and its contents. One of the thieves, Doug Perrine, was an employee at the truck stop and ultimately confessed to his part in the theft, at first declaring to police that he had been the sole perpetrator, but later implicating the defendant and the other participant. At trial, the owner of the safe gave his opinion that the value of the safe exceeded $150. The jury also heard evidence pertaining to the safe's contents prior to the theft.

Appellant charges the trial court erred in permitting Sheriff Harold White to testify in rebuttal that, on the basis of conversations with police officers in Quincy, Illinois, the defendant's reputation for honesty and law abidance was not good. He also charges that Doug Perrine's pretrial statements to police should not have been admitted into evidence because they were consistent with his testimony at trial and were improperly employed to bolster his credibility prior to impeachment; that it was error to permit the safe's owner to testify as to the safe's value; that there was insufficient evidence of value; and that evidence of the safe's contents should not have been received because such was evidence of other crimes.

Defendant placed his character in issue by calling two witnesses who testified that his reputation for honesty and law abidance was good. The state adduced rebuttal to this testimony by calling Sheriff White, who testified that he had conducted an investigation of defendant's character and discovered it to be neither law-abiding nor honest. Sheriff White's investigation consisted of conversations with law enforcement officers in defendant's city of residence, Quincy, Illinois. Cf. U.S. v. Straughan, 453 F.2d 422, 425 (8th Cir.1972). Defendant objected to Sheriff White's testimony and moved unsuccessfully for a mistrial. He continues to assert that Sheriff White did not possess the necessary testimonial qualifications, and that the trial court's decision to receive his testimony conflicts with this Court's holding in State v. Cross, 343 S.W.2d 20 (Mo.1961).

In Cross, a defendant on trial for robbery sought to introduce the testimony of a paid investigator hired by his attorney. The investigator had spent more than a day in defendant's town and had interviewed approximately twenty persons; he stated he had thus acquired knowledge of the defendant's good reputation for "peace and non-violence." This Court held that the trial court properly excluded the evidence. Noting that an investigation made for the specific purpose of discovering one's general reputation could be probatively valuable if sufficiently extensive in time and scope, the Court determined that upon the record before it the investigation was not "so conducted as to qualify the witness on the fact issue of the defendant's reputation." Id. at 24-25.

Sheriff White's investigation of defendant's character was less extensive than that of the paid investigator in Cross. But, in Cross, the defendant's character had not yet been placed in issue; here the defendant introduced evidence of his character as part of his defense. When he placed his character in issue, he exposed himself to evidence designed to rebut his evidence of good character. A defendant has the choice of offering evidence of his reputation, but he does so at some risk, State v. Burr, 542 S.W.2d 527, 532 (Mo.App.1976), because the state may introduce evidence suggesting that defendant's witnesses are unfamiliar with defendant's reputation or are untruthful. Facts of prior arrests or rumors of defendant's misconduct may be introduced in good faith to test the credibility of defendant's witnesses. Id. at 532.

Thus, while it has been held that cross-examination cannot seek to prove by rumor or insinuation that a defendant is guilty of other crimes, State v. Selle, 367 S.W.2d 522, 529-530 (Mo.1963), the state is permitted to cast doubt upon a defendant's reputation evidence by introducing evidence of misconduct that impeaches a defense witness' credibility. In this case, in contrast to rumors of misconduct or insinuations of other crimes, the state simply presented through Sheriff White contrary evidence of the defendant's character as perceived by police officers in defendant's community. "It is well known that most police officers have a wide acquaintance among the citizenry in general and the fact that a person is known to a police officer does not necessarily convey the impression that he has a criminal record." State v. Pitchford, 324 S.W.2d 684, 688 (Mo.1959). See also State v. Knicker, 424 S.W.2d 605, 608 (Mo.1968). The trial court was therefore within its discretion when it permitted the state to rebut evidence of character, already in issue, with evidence tending to discredit the testimony elicited from the defendant's witnesses. Although Sheriff White's testimony would not have been admissible under State v. Cross, supra, as evidence of reputation on direct examination, it was permissible rebuttal of evidence already in issue, and not suggestive of a criminal record or history of misconduct that might be attributed to the defendant.

Appellant contends the trial court erred in admitting the testimony of Doug Perrine. Perrine testified on direct examination that he had previously confessed to both the police and the safe's owner his part in the theft. He stated that when he made those confessions it was his intention to "take the heat" himself; he never intended to turn in his confederates. He stated that when he initially confessed to the deputy sheriff he did not advise him that anyone else had been involved in the crime. Upon further questioning, however, Perrine revealed that he had eventually implicated the defendant in the theft. The defendant objected to this testimony, charging that the state was attempting to bolster testimony with the witness's consistent statements, prior to any attempt to impeach.

Although the record suggests that Perrine's statements prior to trial were somewhat equivocal, there were inconsistencies between his pre-trial statements and statements made on direct examination. The state's attempt to elicit these ambiguities was a permissible technique employed to prevent defense counsel from exploiting them during cross-examination. The prosecution may anticipate possible bases for impeachment and expose inconsistencies on direct examination. State v. Spinks, 629 S.W.2d 499, 503 (Mo.App.1981).

Appellant alleges the trial court erred in permitting the safe's owner to testify as to the value of the safe. On direct examination the owner stated his opinion that the value of the safe was approximately $250. He then testified on cross-examination that he had noted the catalog price of a comparable safe. The court properly excluded any attempt to testify as to the information in the catalog. The owner's opinion was thus the only evidence of value adduced.

The owner of stolen property need not be experienced in valuating such property in order to express an opinion. State v. Brewer, 286 S.W.2d 782, 783 (Mo.1956). And an owner's opinion can be substantial evidence of an item's worth. State v. Eiland, 633 S.W.2d 302, 303 (Mo.App.1982). Because the trial court is in a superior position to assess the probative value and competency of opinion evidence, it enjoys considerable discretion in admitting such evidence. State v. McGraw, 571 S.W.2d 802, 804 (Mo.App.1978). There is no indication that the court abused its discretion in admitting the owner's testimony; once admitted, such evidence could have formed the basis for the jury's finding that the value of the item stolen exceeded $150. § 570.030, RSMo 1978. And, this being the only evidence of value, the court was not required to instruct on a lesser included offense.

Appellant asserts the trial court erred in receiving evidence concerning the safe's contents; the court overruled a motion in limine to exclude such evidence, and overruled objections to testimony concerning the safe's contents. Appellant charges the trial court's rulings permitted introduction of evidence of crimes outside the scope of the information.

Generally, evidence of other crimes is admissible to prove the specific crime charged when such evidence tends to establish, among other things, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (1954). And evidence of offenses proximate to the offense for which a defendant stands trial is admissible if the offenses are so connected in time and circumstances with the charged crime that one cannot be fully proved without proving the other. State v. King, 588 S.W.2d 147, 150 (Mo.App.1979). When ...