State v. Siems
| Decision Date | 03 February 1976 |
| Docket Number | No. 35504,35504 |
| Citation | 535 S.W.2d 261 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Albert SIEMS, Defendant-Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Donald V. Fraser, Jr., St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., J. Paul Allred, Jr., Asst. Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
Defendant appeals his conviction by jury of the offense of sodomy in violation of § 563.230 RSMo 1969. On appeal, defendant raises four points of alleged error, all of which are stated in the abstract, do not state why they are erroneous and thereby fail to comport with the requirements of Rule 84.04. But, nevertheless, we are compelled to reverse and remand the case for a new trial.
The facts, as presented through the prosecuting witnesses, are sufficiently facinorous. The victim, a 12 year old girl, testified that at the defendant's urging, she had placed her mouth on defendant's penis. The defendant categorically denied any libidinous conduct with the victim.
The first point of error raised by defendant, although not properly presented, and that upon which our decision turns, relates to the cross-examination by the prosecutor of the defendant's character witnesses. Two character witnesses, both housewives from defendant's neighborhood, testified that the defendant had a reputaion for truthfulness and good moral character. On cross-examination the prosecutor explored the extent of the witnesses' knowledge of defendant's reputation. In doing so, the prosecutor asked questions relating to previous purported acts of misconduct by defendant--specifically, although there was absolutely no evidence that the defendant had engaged in wife-swapping, the prosecutor persistently burrowed into the matter of wife-swapping and other areas thusly:
(First character witness)
(defendant's) conduct in other places and that they don't approve of what they had heard--not that he did it--just that they don't approve of what they had heard?
A. Well, those that they had heard, they don't believe.
Q. I see. Did they tell you they knew anything about he and his wife's activities in a wife-swapping club.
(Prosecutor): That happened in St. Louis, Rolla, Missouri, Cape Girardeau, St. (sic) Genevieve.
Q. (Prosecutor) Have they ever told you--have you ever heard any rumors from them about that activity?
A. No I haven't.
Q. Never have?
A. No sir.
Q. How would you feel about his personal reputation if that was the situation? Would that cause you to feel differently about him?
A. If what?
Q. If you were aware or heard that Mr. Siems was engaging in wife swapping activities in a club, would you feel differently about his reputation for morality?
A. Well, I would just tell them they was lying, in my--
Q. Right.
A. It couldn't be true.
Q. I see. But you don't know. Now, my question is simply this: If you heard that, okay, if you heard that--
A. If I heard it, yes.
Q. Became aware of that, would you then have a different idea about what his reputation was--not that it's true--just what reputation was?
A. Well, I never heard it.
Q. Well, I want you to assume that you had heard it. Would that cause you--not whether it's true or not, would that cause you to have a different statement to this jury about what his reputation is for morality, wouldn't it?
A. No, it wouldn't.
Q. It wouldn't.
A. Because I can't assume that anyone would mention that. I just can't assume it.
Q. (Prosecutor) I'm asking if you ever heard any gossip of that nature amongst these people?
A. If I had ever heard of any gossip that--
Q. That Mr. Siems--
A. I've never heard any gossip like that, no.
Q. And you never heard that from any of those five to ten people?
A. No, I haven't.
Q. Now, I want you, not to assume it's ture or not, but if you heard that would you might have a different--you'd have to tell the jury he had a different reputation for immorality through a wife-swapping club operating through Missouri.
A. Well, if I had heard that--
Q. You'd have to tell them that.
A. But I haven't heard that.
Q. I know it but I want you to assume that you had heard that, then you would have to tell this jury a different thing, wouldn't you?
A. Well, if I heard it I would have to say--
Q. That's right.
A. (Continuing)--so, but I didn't.
Q. (Prosecutor) Were those people that you talked to, were they aware that he was arrested and charged with child molestation of _ _ (victim's sister) by inserting his hand in her panties and then inserting his finger into her vagina on three or four occasions?
A. They knew that he was accused--let's see, I don't know how to say this. The first I heard Mrs. Siems told me of the charges.
Q. (Prosecutor) Did you ever think that a person like, you know, could kill the President when the people say--
Q. (Prosecutor) Have you heard people say, 'Jesus,' you know, 'I know that guy.' 'He wasn't,' you know, 'he'd been a good guy all his life but suddenly he got involved with someone else'--you've heard that, haven't you?
Q. I understand. You seem like a fine person to me. Let me ask you a very simple question. You know, if you had heard rumors about his actions with other children like the--(The victims) and heard rumors about his wife and his activities in a wife-swapping club, wouldn't that cause you to feel that his reputation for morality, that is, what you had heard about him from others certainly wasn't good.
(Second character witness)
Q. (Prosecutor) Right. Have you ever heard amongst those four people that you talked to that they had ever heard about Mr. Siems and his wife belonging to a wife-swapping club, some twenty couples, that operated throughout the State of Missouri?
A. No.'
The general rule in Missouri, from which we do not deviate or retreat, is that the State may cross-examine a character witness with reference to defendant's prior arrests and accusations of specific misconduct for the purpose of testing the trustworthiness, knowledge and good faith of the witness. State v. Johnigan, 494 S.W.2d 23 (Mo.1973); State v. Hastings, 477 S.W.2d 108 (Mo.1972); State v. Rojano, 519 S.W.2d 42 (Mo.App.1975). In such cross-examination the State may inquire into mere rumors concerning the character of the defendant. State v. Curry, 372 S.W.2d 1 (Mo.1963); State v. Richardson, 364 S.W.2d 552 (Mo.1963). But there are limits to the scope of examination of character witnesses, and the prosecutor here transcended those limits. The State's questions cannot be asked 'merely for the purpose of improperly showing other crimes or for the purpose of going into collateral details.' State v. Carroll, 188 S.W.2d 22, 24 (Mo.1945). And the State's questions must not be argumentative or call for a conclusion or assume facts. State v. Selle, 367 S.W.2d 522 (Mo.1963); State v. Carroll, supra. Thus, the form of the questions about other acts of misconduct is important. The State had a right to ask in good faith if the witness had heard rumors regarding misconduct of the defendant, for if the witnesses admitted knowing of the rumors, such knowledge may be treated as being inconsistent with previous assertions that the defendant's reputation is good. State v. Seay, 282 Mo. 672, 222 S.W. 427 (1920); State v. Carson, 239 S.W.2d 532 (Mo.App.1951). But since the witnesses denied having heard the rumors, persistent questioning about the possible effect the hypothesized rumors would have on their testimony was totally argumentative and pursued a highly inflammable prejudicial collateral issue. By propounding hypothetical questions, asking the character witnesses to assume rumors they had never heard, the State brought repeated references of highly immoral misconduct before the jury in an emotion-charged sex crime case. Such insinuations, unsubstantiated by evidence, could not have been introduced directly and should not have been allowed by an indirect method under the pretext of testing the credibility of the character witnesses.
The following statement from State v. Selle, supra, at 529--530 is particularly felicitous to the matter of the prosecutor's cross-examination of the character witnesses:
Pittman v. United States, supra, 8 Cir., 42 F.2d 793 loc. cit. 797. In other words, prosecuting officials should not be permitted in this fashion to convey to the jury by innuendo and insinuation purported information which they are forbidden to impart directly.' (cites omitted).
Clearly, the prosecutor's cross-examination of the character witnesses went beyond the permissible limits indited in State v. Selle, supra. Further, the excessively repetitious manner of the inquiries casts doubt as to the good faith purpose of the line of questioning. As stated in State v. Hastings, supra:
'(C)ross examination of character witnesses by the State touching their knowledge of prior convictions 'ought to be done in good faith, and the crimes inquired about ought not to be apocryphal, existing alone in the...
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