State v. Sanders

Decision Date13 April 1982
Docket NumberNo. 43779,43779
Citation634 S.W.2d 525
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Theodore Raymond SANDERS, Jr., Defendant-Appellant.
CourtMissouri Court of Appeals

Kenneth Leeds, Clayton, for defendant-appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George R. Westfall, Pros. Atty., Clayton, for plaintiff-respondent.

DOWD, Presiding Judge.

Theodore Sanders, Jr. appeals his conviction for rape. Although the jury set appellant's sentence at fifteen years, the court sentenced him as a persistent offender to thirty years imprisonment.

The state produced evidence at trial that the victim, hitchhiking home around midnight, saw a woman and two men outside a bar and asked them for a ride. After she got into a van with them, the driver proceeded to appellant's residence. The victim exited the van with appellant when he told her that his brother had a car and could take her home. The state's evidence showed that the victim and appellant then entered his residence where he had sexual intercourse with her by the use of forcible compulsion. Appellant admitted having intercourse with the victim but claimed it was with her consent and without the use of any force. Appellant contends that several errors at trial resulted in the denial of his right to a fair and impartial jury.

Appellant first claims that the trial court erred in overruling his objection when the prosecutor went into the details of appellant's prior convictions by reading verbatim from the informations in the prior cases. The prosecutor's action followed appellant's direct testimony admitting his conviction in 1976 for two rapes and a kidnapping, with resulting concurrent sentences of five years on each of the three charges. During his cross-examination of appellant, and after the court overruled appellant's objection, the prosecutor asked:

Q. (By Mr. Barry) Now, Mr. Sanders, when you said you pled guilty to rape, did you mean you pled guilty to this charge: that on or about the 19th day of June 1974, acting with another, you made an assault upon Maureen R, a female person under the age of 16 years, and did then and there willfully, unlawfully and feloniously rape, ravish and carnally know the said Maureen R against her will, contrary to Missouri Revised Statutes in such case made and provided, against the peace and dignity of the state? Is that one of the rapes you pled guilty to, sir?

A. Yes.

Q. Now, when you said that you pled guilty to the crime of kidnapping, did you mean, sir, that you pled guilty to this charge: that in the County of St. Louis, State of Missouri, on or about the 19th day of June, 1974, you did willfully, unlawfully and feloniously, acting with another, forcibly seize, kidnap and confine Maureen R within a Ford Thunderbird automobile, with intent to cause the said Maureen R to be secretly confined in said automobile against her will? Is that, sir, another one of the charges that you pled guilty to?

A. Yes.

Q. I can't hear you.

A. Yes.

Q. Thank you. Now, when you said that you had a second offense for rape, sir, did you mean that you pled guilty to this charge: that on or about the 22nd day of September, 1975, acting with another, you made an assault upon one Shelly R______ R______, hereinafter referred to as victim, a female person over the age of 16 years, and did then and there willfully, unlawfully, forcibly and feloniously rape, ravish and carnally know the said victim against her will? Is that, sir, the charge you pled guilty to?

Section 491.050 RSMo 1978 permits the prosecutor, when the defendant testifies, to prove any prior convictions to affect the defendant's credibility. The prosecutor may elicit the general nature of each crime, State v. Hood, 313 S.W.2d 661, 663-64 (Mo.1958), as well as the places and dates of the occurrences and the resulting sentences. State v. Sullivan, 553 S.W.2d 510, 515 (Mo.App.1977). The prosecutor acts improperly if he goes beyond the fact of conviction to unduly emphasize it, State v. Williamson, 584 S.W.2d 628, 630 (Mo.App.1979), shows details so as to aggravate the conviction itself, id., or uses the conviction to suggest guilt of the offense presently charged. State v. Scott, 459 S.W.2d 321, 324 (Mo.1970).

The statute also provides that the defendant "must answer any question relevant to (the) inquiry (into his convictions), and the party cross-examining shall not be concluded by his answer." Section 491.050 RSMo 1978. The last clause does not authorize cross-examination as to details of the prior convictions; it merely allows the prosecutor, if the defendant denies a conviction, to show that the defendant was in fact previously convicted. State v. Scott, 459 S.W.2d at 323.

In the instant case, appellant admitted during direct examination that in 1976 he was convicted of two charges of rape and one charge of kidnapping. He further testified as to the resulting sentences. Appellant's admission of his prior convictions accomplished the purpose of impeaching his credibility. State v. Porter, 538 S.W.2d 888, 891 (Mo.App.1976). Although case law would have permitted the prosecutor to also elicit the place and date of each prior crime, the inquiry here sought additional facts serving no apparent legitimate purpose. See State v. Scott, 459 S.W.2d at 324 (quoting People v. Moore, 20 A.D.2d 817, 817, 248 N.Y.S.2d 739, 741 (N.Y.App.Div.1964). Each information which the prosecutor read seemed to present a single question, since each required only one response from appellant. By reading the information, however, the prosecutor in fact asked multiple questions, some of which were proper and some of which were improper to impeach credibility. For example, the first information presented the following questions which may have been proper: "Did the offense occur on June 19, 1974? Did you commit the crime of rape?" It also presented these questions: "Did you act with another? Did you commit an assault upon Maureen R______? Was she under sixteen years of age? Did you willfully, unlawfully and feloniously ravish her? Did you carnally know her? Was it against her will?" The latter questions attempt to emphasize the prior conviction through repetition; to make it more graphic by injecting the victim's name and age; and to show a tendency on appellant's part to commit the crime of rape, thereby implying his guilt as to the present charge. None of these were permissible impeachment devices in this case.

The state relies on State v. Whitt, 592 S.W.2d 316 (Mo.App.1979) and State v. Gentile, 599 S.W.2d 780 (Mo.App.1980) as authority for a prosecutor to inject prior victims' names and ages. Those cases are clearly distinguishable and do not raise the issue now before us. This court found in Whitt that the impeachment process used was permissible because the defendant on direct examination had specifically disavowed any prior misconduct. In Gentile we held only that nothing was preserved for review.

We do not propose that a prosecutor may never use a prior information or indictment for impeachment. The prosecutor may not, however, purport to impeach credibility as a ruse to achieve improper results. Under the facts of this case, we fail to perceive any impeachment value in the prosecutor's verbatim reading of the charges for which appellant had just admitted his conviction. We find...

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25 cases
  • State v. Arney
    • United States
    • Missouri Court of Appeals
    • June 1, 1987
    ...uses the conviction to suggest guilt of the offense presently charged. State v. Scott, 459 S.W.2d 321, 324 (Mo.1970). State v. Sanders, 634 S.W.2d 525, 527 (Mo.App.1982) (emphasis in original). Similar expressions are found in State v. Scott, 459 S.W.2d 321 (Mo.1970); State v. Zeitvogel, 64......
  • State v. Woods
    • United States
    • Missouri Court of Appeals
    • May 18, 1982
    ...convictions and did not so aggravate the fact of the prior convictions as to cause defendant prejudicial harm. Compare State v. Sanders, 634 S.W.2d 525 (Mo.App.E.D.1982) in which the prosecutor, on cross-examination of a defendant charged with rape, impermissibly elicited details of defenda......
  • State v. Snowden
    • United States
    • Missouri Court of Appeals
    • June 1, 2009
    ...substantive evidence extraneous to the issue to be decided was deemed unfairly prejudicial or otherwise inadmissible. See State v. Sanders, 634 S.W.2d 525 (Mo.App.1982) (rape case in which three photographs with the word "rape" handwritten on them were improperly State v. Himmelmann, 399 S.......
  • Obasogie v. Norman
    • United States
    • U.S. District Court — Eastern District of Missouri
    • March 18, 2019
    ...the convictions through repetitive questioning, and used the prior convictions as support in closing argument. See State v. Sanders, 634 S.W.2d 525, 526-28 (Mo. App. 1982); State v. Phelps, 677 S.W.2d 418, 419-21 (Mo. App. 1984); Scott, 459 S.W.2d at 322-24. However, the prosecutor may "eli......
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