State v. Russell

• Decision Date: 08 December 1981
• Docket Number: No. 62196,62196
• Citation: 625 S.W.2d 138
• Parties: STATE of Missouri, Respondent, v. John Curtis RUSSELL, Appellant.
• Court: Missouri Supreme Court

Page 138

625 S.W.2d 138

STATE of Missouri, Respondent, v. John Curtis RUSSELL, Appellant.

No. 62196.

Supreme Court of Missouri, En Banc.

Dec. 8, 1981.

David Robards, Public Defender, Joplin, for appellant.

John Ashcroft, Atty. Gen., Peter Sadowski, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Judge.

John C. Russell was convicted by a jury of robbery, first degree; his punishment was fixed at imprisonment for five years. Judgment was rendered accordingly; the Court of Appeals, Southern District, affirmed. The case was transferred by this Court to consider again whether the trial court erred by limiting defendant's cross-examination of the juvenile who appeared as the principal witness against him. The sufficiency of evidence to sustain the conviction is not in question. Affirmed.

The juvenile witness, Jackie Lee Hicks, Jr., had been the subject of a petition in juvenile court filed May 31, 1978, which alleged that he, at age 16, committed armed robbery of a Pronto Store on March 24, 1978 (the incident in question); armed robbery on March 30, 1978; armed robbery on April 3, 1978; and burglary on April 27, 1978. He had admitted these allegations ¹; and as a result was adjudicated in need of care and treatment as a juvenile. He was committed to the juvenile home; and, after receipt of several passes, was accorded probationary after-care status.

Prior to the presentation of evidence at trial there was a bench conference to consider the extent to which the defendant would be permitted to impeach Jackie Lee Hicks, Jr., as a witness against him. Defendant contended he was "entitled under the law to cross-examine him concerning his convictions and the reasons why he is on probation now, ... and under State vs. Summers ... to inquire into any criminal offense ... that he acknowledged he committed."

The Court responded that under Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the defendant would be permitted to show the juvenile's "(a)fter care status out of Youth Services that does subject him to being revoked and placed back in there. This could be a possible source of bias ... because the state had used this pressure to get him to testify." The court ruled "against the request to show any other convictions in Juvenile Court on which he is not on any type of probation or after-care basis, or to question the witness about any crimes for which he has not been convicted."

Verna Knight, a clerk at the Pronto Store in Joplin, Missouri, was on duty between 1:00 and 2:00 a. m., March 24, 1978, when a young man entered the store and demanded money. He had his hand in his jacket pocket. The clerk heard a clicking noise and was afraid he had a gun. Following a second demand from him, she put money in a paper bag which the young man grabbed and ran from the store.

Jackie Lee Hicks, Jr., admitted that he committed the robbery and implicated defendant, with whom he had been acquainted since 9th grade in school. Two days before the robbery, while riding in defendant's car, defendant suggested to him that he rob the Pronto Store. The evening of the robbery, defendant had him in his car, and they rode around drinking and discussing the robbery. The defendant supplied the juvenile with a pellet gun and drove to a parking lot near the store. The defendant waited in the car while the juvenile walked to the store and robbed it. When he returned, they waited an hour, left and divided the money. The juvenile also stated that after defendant's preliminary hearing at which the juvenile testified, he was riding his bike and encountered the defendant. Defendant "told me he wasn't threatening me, he was just telling me for my benefit when I got out, if I testify against him, when I get out there is going to be a lot of people after me", and to plead the Fifth Amendment. At that time, the juvenile was out on a pass from the juvenile home.

Defendant's cross-examination of the juvenile established, among other things, that he was arrested in early May, 1978, for the Pronto robbery; that he was sent to Delmina Woods (the juvenile facility) for the armed robbery and was released on probation the day before the trial, and that failure to adhere to the probation conditions "revokes my parole." It was further developed by the cross-examination that the juvenile's confinement was for armed robbery and burglary. Upon objection, the court then advised it would permit no further questions as to the juvenile's offenses. Upon direct examination, the juvenile stated no promises or agreements were made concerning his testimony, and on redirect examination, that his probation was not conditioned upon his testimony.

Defendant denied any complicity in the robbery; denied that he had suggested Hicks commit the crime, and asserted his presence at a friend's house at the time of the robbery. Defendant stated that Hicks said that the reason he testified against him at the preliminary hearing was because the prosecutor said "he would get more time out of it" if he did not. Defendant produced another witness to support this statement, and also produced witnesses in support of the alibi.

It is in this context that appellant charges the court erred in not permitting the defendant to inquire into and to show to the jury the offenses the state's witness, Jackie Lee Hicks, a juvenile, had committed; and that the defendant was therefore denied his constitutional right to confront the witnesses against him. He asserts:

(a) Under the doctrine of Davis v. Alaska, the trial court should have permitted such inquires such as to expose the jury the facts from which the jury could appropriately draw inferences relating to the witness' reliability.

(b) Under the doctrine of State v. Foster and State v. Summers, the trial court erred in refusing to permit the defendant to ask Jackie Hicks whether he had committed or admitted committing certain other offenses.

The sixth amendment right to confront adverse witnesses in criminal proceedings is applicable to all criminal proceedings in state courts under the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 403, 406-07, 85 S.Ct. 1065, 1067, 1069, 13 L.Ed.2d 923 (1965). See State v. Holt, 592 S.W.2d 759, 765 (Mo. banc 1980). A fundamental interest secured by the right of confrontation is a defendant's right of cross-examination. Davis v. Alaska, supra, 415 U.S. at 315, 94 S.Ct. at 1109; Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 1622, 20 L.Ed.2d 476 (1968); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965); State v. Brooks, 551 S.W.2d 634 (Mo.App.1977). The right of cross-examination is essential to a fair trial. Chambers v. Mississippi, 410 U.S 284, 294-95, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973); Pointer v. Texas, supra, 380 U.S. at 405, 85 S.Ct. at 1068; Phillips v. Wyrick, 558 F.2d 489, 493 (8th Cir. 1977).

A primary function of cross-examination is to impeach adverse witnesses. Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255 (1968). The purpose of impeachment is to impair or destroy a witness's credibility or render questionable the truth of his particular testimony. Because the jury is to assess credibility, it is entitled to any information which might bear significantly on the veracity of a witness. State v. Brooks, 513 S.W.2d 168, 173 (Mo.App.1973). "The purpose of cross-examination, however, is not limited to bringing out a falsehood, since it is also a leading and searching inquiry of the witness for further disclosure touching the particular matters detailed by him in his direct examination ...." 98 C.J.S. Witnesses § 372, at 125 (1957). Consequently, confrontation also encompasses the right to cross-examine a witness to determine the accuracy of his testimony. With respect to all functions of cross-examination, the right of confrontation requires meaningful and effective cross-examination. Davis v. Alaska, supra, 415 U.S. at 318, 94 S.Ct. at 1111. To limit unduly effective cross-examination constitutes constitutional error requiring no showing of prejudice. Id.; Brookhart v. Janis, 384 U.S. 1, 3-4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966); and, "(t)he Supreme Court of this state has repeatedly held that undue circumscription of an accused's right of cross-examination as to relevant and material matters constitutes error." State v. Summers, 506 S.W.2d 67, 73 (Mo.App.1974).

Although cross-examination is a fundamental component of confrontation, it is not unlimited; limitation of cross-examination does not per se violate a defendant's right to confront the witnesses against him. Justice Stewart concurring in Davis v. Alaska, supra, observed, "In joining the Court's opinion, I would emphasize that the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions." 415 U.S. at 321, 94 S.Ct. at 1112-1113. A trial court has broad discretion "to preclude repetitive and unduly harassing interrogation," Id. at 316, 94 S.Ct. at 1110, and to limit attacks on general credibility and attempts to elicit irrelevant, collateral, or stale matters. Thus, each case must be examined to determine what information was sought and for what purpose in order to decide whether cross-examination was erroneously limited.

The effect of Davis v. Alaska, supra, upon the public policy of the states concerning juvenile adjudications and offenses has been considered many times. ² Suffice to say Davis v. Alaska holds that the right of confrontation overrides public policy such as that of Missouri under § 211.271, RSMo 1978. This right permits proof of the bias which could result from the juvenile witness's motive to lie because he is a suspect and subject to control of the juvenile authorities. It does not...