State v. Taylor

• Decision Date: 05 June 1973
• Docket Number: No. 34952,34952
• Citation: 498 S.W.2d 614
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Charles D. TAYLOR, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 614

498 S.W.2d 614

STATE of Missouri, Plaintiff-Respondent, v. Charles D. TAYLOR, Defendant-Appellant.

No. 34952.

Missouri Court of Appeals, St. Louis District, Division One.

June 5, 1973.

Motion for Rehearing or Transfer Denied Aug. 16, 1973.

Robert C. Babione, Terry B. Crouppen, Public Defender Bureau, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Jefferson City, Steve Hayne, J. Brendan Ryan, Circuit Atty., Wm. M. Frain, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

WEIER, Acting Presiding Judge.

Defendant was found guilty by a jury of striking and kicking a police officer in violation of Section 557.215, RSMo 1969, V.A.M.S. Defendant had been charged under the second offender act and upon a determination that he had been previously convicted of a felony, he was sentenced to four years in the Department of Corrections. He now appeals, contending among other things that reversible error was committed in the trial of the case because the court permitted, over objection, cross-examination of one of defendant's witnesses as to how many times he had been arrested by the police. Because of this improper cross-examination, we reverse and remand for a new trial.

Defendant, Charles D. Taylor, was arrested at about 12:30 a.m. on June 21, 1972. This arrest followed a complaint with regard to a peace disturbance by defendant's mother. Two officers investigated the disturbance report and made the arrest. One testified that after advising the defendant he was under arrest, he immediately began to advise defendant of his constitutional rights. The officer placed the scene of this confrontation with defendant on the sidewalk in front of the building where he had found the defendant. The officer testified that defendant shouted an obscenity at him and kicked him in the groin. The other patrolman under this version then struck the defendant with his night stick and the officer who had been kicked also struck defendant with his night stick and the defendant then fell to the ground. The officer succeeded in placing one handcuff on him and he broke away and started to get up. This officer then struck him again with his closed fist. Defendant stood up and struck the other patrolman at which time the other officer struck him again with his night stick. The defendant by this time was subdued and was handcuffed.

The defense called as a witness one George Lindsay who lived at the same address where the incident occurred. He testified to a different state of facts. Under his version he said that he saw the appellant in the back of the police car with his feet out on the curb. Defendant then made a move to get out of the police car saying: 'You are not going to arrest me because I haven't done nothing.' But the officers thereupon grabbed the defendant, started to handcuff him, hit him with a club, and threw him into the car. Then, according to Lindsay, the appellant struggled back, fell forward and knocked an officer down. After that, numerous officers arrived, grabbed the appellant trying to get him back in the car, repeatedly hitting and kicking him. On cross-examination, this witness was asked if he had 'ever been in trouble with the police'. To this an objection was made and overruled. At this stage of the trial, the witness was asked whether he had ever been arrested by a policeman, and how many times. An objection to this cross-examination was overruled and the witness was compelled to testify that in his best estimate he had been arrested about a dozen times. The prosecutor made reference to the arrests in his closing remarks and suggested to the jury that the witness was prejudiced against the police department. To this statement, objection was made. The court sustained the objection and instructed the jury to disregard the statement of the prosecutor.

As pointed out by the defendant, Missouri law clearly holds that the credibility of a witness may not be attacked by showing an arrest, investigation, or criminal charge which has not resulted in a conviction. Upon a review of the authorities on this subject contained in the recent opinion of this court in State of Missouri v. Jerome Oliver Williams, 492 S.W.2d 1, decided February 20, 1973, we stated: '(I)n * * * State v. Sanders, Mo., 360 S.W.2d 722, 725 * * * the Court said that '* * * a witness' credibility may not be attacked by showing a mere arrest, investigation, or criminal charge which has not resulted in a conviction * * * '.' The prosecution in that case had asked a defense witness about a police investigation involving her, and when she answered in the negative, produced a police officer who testified in rebuttal. The error was therefore double, in permitting the question, and in violation of the rule that the cross-examiner is bound by the witness' answer.

'While an adverse party is privileged under statute to ask a witness about the nature of prior criminal convictions, whether felony or misdemeanor, (§ 491.050 RSMo 1969, V.A.M.S.), questions about acts of misconduct not resulting in conviction have been held improper. See State v. Sanders, supra, and Holden v. Berberich, 351 Mo. 995, 174 S.W.2d 791, 149 A.L.R. 929, (question about indictment and charge for driving while intoxicated ruled improper); and Hoffman v. Graber, Mo.App., 153 S.W.2d 817, (question about charge of disturbing the peace held improper). A similar restriction has been applied to juvenile offenses. State v. Tolias, Mo., 326 S.W.2d 329. Courts have only found exceptions to this rule in cases where the interrogation is necessary to show the bias or motive of a prosecution witness; for example, that an indictment or charge has been dropped in return for desired testimony. See 20 ALR2d 1421, 1425.' We have held it reversible error for a witness to be impeached by a showing of arrest where he had also been convicted of an offense. 'Our rule is that even where the conviction or convictions are admitted, it is reversible error to inquire into a party's or a witness' arrest or arrests'. Harris v. Williams, 363 S.W.2d 51, 54 (Mo.App.1962). In Harris, the objection to the question on arrest was sustained but the trial court failed to instruct the jury to disregard the questioning and overruled the request for a mistrial. Despite the sustention of the objection, we held that the plaintiff was entitled to a new trial on the basis of improper questioning.

Here the two patrolmen were the witnesses for the state. They testified as to one version of what had occurred. The defendant's father and mother testified to another version of the facts which favored the defendant. Lindsay was the only witness at the trial who had not engaged in the disturbance, the arrest, and was not related to defendant. His testimony supported that of defendant's other two witnesses. The cross-examination to bring out the fact that he had been previously arrested was highly improper and prejudicially erroneous.

Because two other alleged errors may also be asserted at time of retrial, we will attend to them now. Defendant contends that the information was fatally defective in this case because it merely referred to 'Patrolman James Connor, a member of the St. Louis Metropolitan Police Department.' Defendant maintains that the information charging him with the crime of striking a police officer should specifically describe the policeman struck as a 'police officer'. In his argument, the defendant asserts that 'Patrolman' may have been the victim's first name and that 'member' of the police department does not necessarily mean a police officer. We find this contention without merit. The case relied on by appellant, State v. Vonderau, 438 S.W.2d 271 (Mo. banc 1969), held only that an indictment for striking a police officer under Section 557.215 RSMo 1969, V.A.M.S., is defective if it omits the word 'feloniously'. The information in this case did not omit this word. Moreover, the indictment in Vonderau described the policeman in exactly the same language as that used in the information in the present proceeding. The court there found no fault with the description of the officer. In testing the sufficiency of an information, we follow these general principles: it must state essential facts constituting the offense charged, and it must adequately notify defendant of the charge against him, and constitute a bar to further prosecution for the same offense. Hodges v. State, 462 S.W.2d 786, 789(1) (Mo.1971). The information in this case clearly meets this test.

Defendant further contends that it was error for the trial court to refuse to instruct the jury on the lesser included offense of common assault since the evidence as presented would have supported such a charge. Section 557.215 RSMo 1969, V.A.M.S., is directed to all willful assaults on police officers. There is no lesser included offense where a striking is shown and no controversy appears over whether the victim was a police officer or engaged in the performance of his duties. Under this state of facts the court is not required to give an instruction on common assault. State v. Jacks, 462 S.W.2d 744, 748(7) (Mo.1970).

Additional charges of error by defendant in the trial of his case are based upon statements made by the assistant circuit attorney in his final argument. Since we have already determined that the defendant is entitled to a new trial, we doubt that these alleged improprieties will reoccur. In the charged atmosphere of the courtroom concerned advocates will sometimes come too closely to the edge of reversible error with their comment. Even when a case seems to be won and a point in the argument is firmly established, there is a greate temptation to drive another spike in the plank. We believe that these problems can be eliminated by counsel at the next trial, and if not, then they can be controlled by the trial court.

For the reasons heretofore given, the judgment is reversed and the case...