State v. Taylor

• Decision Date: 14 November 1979
• Docket Number: No. 61269,61269
• Citation: 589 S.W.2d 302
• Parties: STATE of Missouri, Respondent, v. Johnnie TAYLOR, Appellant.
• Court: Missouri Supreme Court

Page 302

589 S.W.2d 302

STATE of Missouri, Respondent, v. Johnnie TAYLOR, Appellant.

No. 61269.

Supreme Court of Missouri, En Banc.

Nov. 14, 1979.

Rehearing Denied Dec. 6, 1979.

Richard Burke, Asst. Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM:

This case was transferred by order of this Court after opinion by the Missouri Court of Appeals, Eastern District. It was argued and submitted here on September 12, 1979. The opinion of Judge George F. Gunn, Jr., in the Court of Appeals is adopted, substantially as originally written, without quotation marks.

Johnnie Taylor was convicted in a trial by jury of robbery in the first degree and was sentenced to fifteen years imprisonment pursuant to the Second Offender Act. He now appeals the conviction, citing as error: (1) the prosecutor's display of police records during the cross-examination of a defense witness; (2) the prosecutor's improper attempts to impeach the defense witness; (3) the trial court's refusal to admit surrebuttal testimony; (4) the refusal to grant a new trial based upon newly discovered evidence. We affirm.

On October 8, 1976, at approximately 6:00 P.M., a Kroger store in St. Louis was robbed. The manager of the store testified that three to four armed men entered the premises, forced the guard to give up his weapon, and proceeded to empty the cash registers. One of the robbers leaped on the bottle collection bin and vaulted over a plexi-glass screen into the manager's office. He ordered the manager and an assistant to leave the office, then emptied the cash drawer. At trial, the manager identified Taylor as one of the four men involved in the robbery and stated that he had selected a photograph of Taylor from a group of six photos shown to him by police officers on the day after the robbery. Another witness, a customer, also made an in-court identification of Taylor and further testified that he had identified him in a lineup. Both witnesses agreed that only one of the robbers vaulted into the manager's office area and both testified that Taylor was the nimble offender. An investigating police officer who dusted for fingerprints at the top of the plexi-glass screen recovered a palm and fingerprint from the glass. Neither matched those of Taylor.

Taylor offered Ray Washington, field operation's coordinator for the Human Development Corporation of St. Louis, as an alibi witness. Mr. Washington testified that Taylor kept an appointment with him at 6:00 P.M. on the night of the robbery at a location some distance away from the Kroger store. In support of this statement Washington presented a photocopy of a page from a 1976 logbook which listed the Taylor appointment. It was developed that Washington kept a log of all appointments in the normal course of business; that the particular entry was recorded in his handwriting; that the photocopy was made on June 6, 1977, when Washington received a request for the information from Taylor's attorney; and that between June 6 and the trial on July 11, 1977, the original logbook was misplaced. With the exception of one listing on the photocopy page, Washington claimed that he personally recorded the remaining entries. One of Washington's business cards, allegedly given to Taylor with a time, 6:00 P.M., and date, October 8, 1976, written in Washington's handwriting on the back, was received in evidence. During cross-examination, Mr. Washington admitted that he had been convicted of a felony for which he had been incarcerated but denied knowledge of two other felony convictions alluded to by the prosecutor. He also admitted that he had visited Taylor in jail prior to trial but was very vague about the purpose of the visit and stated that he had not discussed the existence of the log entry which could substantiate Taylor's alibi.

The State presented rebuttal evidence by a handwriting expert who testified that identical script recorded the appointment information on the back of Washington's business card and in the logbook. However, in contradiction to Washington's testimony, the expert concluded that the remaining notations on the photocopied log sheet were by a different author.

During the cross-examination of Washington on his conviction record, the prosecutor produced a Missouri State Highway Patrol record sheet and "Hoover" report. Defense counsel objected, complaining that the prosecutor should not be "flashing things around"; that the documents were insufficient proof of prior convictions and that the prosecutor's actions would have an improper prejudicial effect on the defendant before the jury. The prosecutor's response was that the documents were being utilized in good faith. Washington, after first admitting only one prior felony, did on cross-examination admit to a second offense for issuing an insufficient funds check, which he claimed he did not know was a felony. Washington steadfastly denied pleading guilty to a third charge of uttering a forged instrument.

Assigning the trial court's failure to sustain his objection as error, appellant maintains that the display of the documents, which could not be admitted as evidence of a conviction, nevertheless bolstered in the jury's mind the possibility that Washington had an extensive police record. We believe that the prosecutor's inquiries and the trial court's actions were proper. The Missouri rules of evidence provide that any person who has been convicted of a crime is, notwithstanding, a competent witness. However, his credibility may be challenged by proof of conviction, either by the record or by his own testimony on cross-examination. § 491.050, RSMo 1978. The prosecutor was able to uncover a previously undisclosed conviction, and his examination with regard to the other charge could hardly be described as prejudicial:

"Q. How about in 1969, were you convicted of a plea of guilty in Clayton, Missouri, on a charge of uttering a forged instrument in 1969? Do you recall that?

"A. (Washington) Uttering a forged instrument? You said uttering a forged instrument?

"Q. Yes, a check charge.

"A. I do not recall it.

"Q. You don't recall that? All right. . . ."

(Compare: State v. Amos, 490 S.W.2d 328 (Mo.App.1972).) The State had an absolute right to demonstrate the prior convictions of the witness for the purpose of impeachment, State v. Sullivan, 553 S.W.2d 510 (Mo.App.1977), and the statutory limitations placed upon the prosecutor's inquiry were not violated. There is no indication that the jury was aware of the contents of the records held by the prosecutor, and it is too speculative to be of merit to suggest that the jury was so aware. Hannibal Sales Co. v. Solter, 551 S.W.2d 936 (Mo.App.1977). But even if the panel was cognizant, the fact that Washington admitted a second conviction mitigates any conceivably detrimental effect. For similar reasons we reject appellant's second argument regarding the continued cross-examination of witness Washington after he had denied any other prior convictions. As the State's inquiry revealed only the nature, date, place and sentence associated with each conviction, the admission of such testimony constituted no error. State v. Sullivan, supra. A prosecutor is permitted to further examine a witness who initially fails to disclose all prior convictions. State v. Payton, 559 S.W.2d 551 (Mo.App.1977); State v. Williams, 532 S.W.2d 826 (Mo.App.1975).

Appellant next contends that the court erred in refusing to admit surrebuttal testimony offered to counter the impeachment testimony of the handwriting expert. During the course of direct examination, the expert discussed the possible authorship of certain notations on Washington's business card. While it was his opinion that the writing on the back of the card was the product of Washington, he could not identify the penman who had crossed out an old address printed on the front of the card and had written in the new address of the Human Development Corporation. Appellant offered to prove the identify of the writer by surrebuttal, but the court sustained the prosecutor's objection as to relevancy. Clearly, the rejection of irrelevant testimony is a matter which rests within the discretion of the trial court, as does the admission or exclusion of rebuttal evidence. State v. Kerr, 548 S.W.2d 295 (Mo.App.1977); State v. Huff, 454 S.W.2d 920 (Mo.1970). Only where there is abuse of discretion and there is no abuse here may we interfere. Mr. Washington testified that he did not know who wrote on the front of the card and the expert verified that Washington had not. The identity of the true author was simply not at issue.

Finally, appellant charges the trial court with error in failing to grant his motion for new trial based on newly discovered evidence. According to appellant, about a month before his trial, it was revealed to him by his city jail cellmate that an individual known as Charles Scruggs ¹ had participated in the Kroger robbery and had recently been committed to the state penitentiary. It was subsequently determined that a Charles Scruggs was serving a ten year sentence in the state penitentiary for robbery. Through further investigation, Scruggs' fingerprints were compared with those taken from the plexi-glass screen and found to be identical. As the store manager and the identifying customer testified that only one of the four robbers had entered the manager's office, appellant contends that new evidence as to the identity of the person who jumped into the manager's office is " . . . so material that a different result in a new trial is probable. . . ." State v. Harris, 413 S.W.2d 244, 247 (Mo.1967). However, the discovery of Scruggs is of no value to appellant in this appeal. In order to obtain a new trial on the basis of newly discovered evidence, the facts must have come to the knowledge of the accused after the end of the trial. State v....