State v. Taylor, 51675

• Decision Date: 15 December 1987
• Docket Number: No. 51675,51675
• Citation: 745 S.W.2d 173
• Parties: STATE of Missouri, Respondent, v. Willie TAYLOR, Jr., Appellant.
• Court: Missouri Court of Appeals

Page 173

745 S.W.2d 173

STATE of Missouri, Respondent, v. Willie TAYLOR, Jr., Appellant.

No. 51675.

Missouri Court of Appeals,

Eastern District,

Division Four.

Dec. 15, 1987.

Motion for Rehearing and/or Transfer Denied Jan. 20, 1988.

Application to Transfer Denied March 15, 1988.

Henry B. Robertson, Asst. Public Defender, St. Louis, for appellant.

William L. Webster, Atty. Gen., Deborah L. Ground, Asst. Atty. Gen., Jefferson City, for respondent.

GRIMM, Judge.

In this jury tried case, Willie Taylor, Jr., appeals his conviction of murder in the second degree, in violation of § 565.021 (RSMo.1986), and his sentence, as a prior offender, to a term of life imprisonment.

There are four allegations of error. First, that the trial court erred in overruling defendant's objection to the State's cross-examination of clinical psychologist Dean Lawrence Rosen on the grounds of relevancy and because it was beyond the scope of direct examination. We disagree, since trial courts are vested with considerable discretion in controlling cross-examination, and we cannot here find a clear showing of an abuse of discretion; and cross-examination of a witness is not limited by the scope of direct examination. State v. Smith, 534 S.W.2d 604, 610 (Mo.App.W.D.1976). Second, that the trial court erroneously overruled defendant's objection to the Prosecutor's remarks in closing about the jurors whose relatives had been victims of violence and death because the argument was highly inflammatory. We disagree, because broad discretion rests with the trial court to control closing argument and its ruling is reversible only for an abuse of discretion. State v. McDonald, 661 S.W.2d 497, 506 (Mo. banc 1983). Third, that the trial court erred in overruling defendant's motion to modify MAI-CR2d 2.20's definition of proof beyond a reasonable doubt in that it violates due process of law by impermissibly reducing the State's burden of proof. We disagree, because the Supreme Court of Missouri has held that MAI-CR2d 2.20, when read as a whole, is constitutional. State v. Guinan, 732 S.W.2d 174, (Mo. banc 1987). Fourth, that the trial court erred in finding defendant a prior offender in that the evidence of identity of names was insufficient to find beyond a reasonable doubt that he was the same Willie Taylor, Jr., named in the file of the prior conviction. We disagree, because evidence of identity of names is prima facie evidence to establish the accused's identification for the purpose of proving a prior conviction. State v. Morris, 591 S.W.2d 165, 169 (Mo.App.E.D.1979). We affirm.

On June 5, 1985, Officer Corbin was on tri-car duty to enforce parking regulations. Defendant was visiting his sister, who lives on Howard Street in the City of St. Louis. They noticed that a policeman was giving tickets to cars parked on the wrong side of the street. Both went to move their cars, but defendant found that he already had a $4 parking ticket on his white Plymouth Volare. They both went back inside. Defendant told his sister that he did not understand why he got a ticket.

A short time later, Officer Corbin was near the intersection of Elliott and Madison on his tri-car writing a ticket. Witnesses near the intersection stated that they saw a white Plymouth Volare turn from Howard onto Elliott, run the stop sign at Madison, travel down Madison at a fast rate of speed, and ram into the motorcycle. Officer Corbin flew into the air, landed on the hood of a car and spun off onto the street. The driver of the car, identified as defendant, stopped his car and ran to Officer Corbin. Defendant fumbled through Corbin's clothes and kicked him in the head a few times. He, next, returned to his car, obtained his sunglasses, and returned to the officer whereupon he kicked him in the head again. A witness, Henry Perkins, picked up the officer's broken gun from the street and pointed it at the defendant, ordering him to stop. Defendant walked away from the officer's body and was arrested by an arriving policeman. Officer Corbin died as a result of the injuries he received.

On appeal to this court, defendant first claims that the trial court erred in overruling his objection to the State's cross-examination of clinical psychologist Rosen. Defendant specifically alleges that the questions posed to Rosen regarding the results of the Rorschach test and the Minnesota Multiphasic Personality Inventory were irrelevant and outside the scope of the doctor's opinion on direct examination.

Rosen, with considerable experience in evaluating alcoholics, tested defendant on two different days. On direct examination, he testified that he gave a test called Wechsler Adult Intelligence Scale, revised edition (WAIS), to the defendant. It is commonly used to assess intelligence, and defendant had a verbal I.Q. score of 95 and a performance I.Q. of 84. The difference of eleven points indicated to Rosen that there might be diffused brain damage.

On the Digit Symbol Test, Rosen said an average score would be 9, 10, or 11; defendant scored five, which is typical for alcoholics. Defendant was also given the Bender Gestalt Test, which tests visual motor skills; Rosen's findings were consistent with brain damage. Rosen also discussed other tests given defendant, being the Shipley Test, Booklet Category Test, and the Wisconsin Card Sorting Test. Based on these tests, Rosen concluded that defendant had brain damage with mild to moderate impairment.

On cross-examination, Rosen was asked "Did you bring your Rorschach cards with you?" Defendant objected "on the grounds of relevancy" and because it "goes beyond the scope of direct examination." Although defendant asserts error regarding the admission of testimony concerning the Minnesota Multiphasic Personality Inventory, no objection was made at trial to its admission.

A trial court is vested with broad discretion in determining the extent of cross-examination. State v. Dunn, 577 S.W.2d 649, 653 (Mo. banc 1979). Cross-examination of a witness may extend to all matters within the fair purview of the direct examination, and may include some collateral matters. State v. Cutts, 600 S.W.2d 75, 76 (Mo.App.E.D.1980). And even as to collateral matters, the trial court has a considerable amount of discretion. State v. Booker, 631 S.W.2d 854, 857 (Mo.1982).

Here, the defendant presented evidence concerning the results of at least four tests given by Rosen to aid him in evaluating the defendant's condition. This put the condition of the defendant in issue. On cross-examination, further questions were posed to Dr. Rosen, regarding other tests performed on the defendant. These questions related to the diagnosis of the defendant which was in issue. Thus, we cannot say that the questions were irrelevant or that the trial court abused its discretion in overruling defendant's objection.

Cross-examination is not limited to matters brought out on direct examination when a witness is testifying. State v. West, 349 Mo. 221, 161 S.W.2d 966, 967 (19...