State v. Tolliver
| Decision Date | 30 January 1978 |
| Docket Number | No. KCD,KCD |
| Citation | 562 S.W.2d 714 |
| Parties | STATE of Missouri, Respondent, v. Terry TOLLIVER, Appellant. 28983. |
| Court | Missouri Court of Appeals |
Joe Hamilton Scott, Public Defender, St. Joseph, for appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.
The defendant was convicted on two counts of felonious assault with malice aforethought upon the Erganians, husband and wife, and was sentenced to consecutive terms of twelve and twenty-five years imprisonment.
The victims testified they were shot in a robbery attempted against them as they closed their grocery store on the night of January 1, 1976. The assailant was masked and so neither was able to make identification. They did testify, however, that the man who shot them was of the same stature and gait as the defendant. The principal witness for the prosecution was a youth, Thornton, fifteen years of age. He was the lookout for the crime and worked in concert with defendant Tolliver and one Lankford. The defendant Tolliver approached the Erganians with a pistol as they entered their automobile and shot them before they could comply with the demand for money.
The defense attempted to impeach Thornton by prior statements assertedly inconsistent with his trial testimony. Objections to this and other cross-examination were sustained and the defendant contends error.
The evidence for the defense was alibi given by a former paramour of the defendant and another acquaintance, each of whom testified the defendant was with them at the date and time of the crime. On cross-examination each witness admitted prevarication to the prosecutor as to their activity at the time of the event.
The defendant contends that the trial court improperly restricted cross-examination of salient prosecution witness Thornton and should be given a new trial because of those errors. This complaint subsumes four incidents.
The first has to do with an attempt by the defense to impeach witness Thornton, who testified at trial that on the morning of the crime Tolliver and Lankford had driven to the north end of town, by his earlier statement that they had driven to the south end of town. The court excluded this examination as a collateral inquiry.
A witness, of course, may be impeached by extrinsic proof of a prior inconsistent statement but not as to matters which are collateral. Examination is not collateral, but as to a relevant matter by one explanation if the contradiction is to "any part of the witness's account of the background and circumstances of a material transaction, which as a matter of human experience he would not have been mistaken about if his story were true." State v. Alexander, 499 S.W.2d 439, 443(3) (Mo.1973); McCormick on Evidence § 47 (1954). Examination is not collateral by a more formal explanation when the contradiction is to a matter on which proof would be allowed independently. United States v. Blackwood, 456 F.2d 526, 531(9, 10) (2d Cir. 1972). The general direction of their travel taken earlier on the day of the crime was of no significance, either as to the prosecution or the defense. It was not material to the transaction and a mistake by the witness to that event does not impair the truthfulness of his other testimony. The exclusion of evidence whose relevance is not apparent will not be adjudged error unless the party who seeks admission proffers the intended proof and the purpose it purports to serve. State v. Davis, 515 S.W.2d 773, 775(2) (Mo.App.1974). This the defendant failed to do.
The defendant then attempted to impeach witness Thornton by a supposed inconsistency between his trial testimony that he did not look into the Erganian store as prelude to robbery and a prior statement to police that the defendant Tolliver went to the door of the store and there were two persons a man and a woman inside. The defendant contends this question was ruled a collateral inquiry and improperly excluded by the court on that ground. The record shows only that the inquiry was discontinued on the initiative of defense counsel "to lay some more foundation," but never resumed. The point is overruled.
The defendant next complains that he was unjustly kept from impeachment of witness Thornton as to a diagram of the scene identified by him earlier at the police station. The gist of the contradiction which the defendant sees is that, whereas at trial he testified that the automobile did not appear on the diagram, earlier Thornton had told the police that the vehicle appeared on the diagram in the proper place. This contention misrepresents the actual testimony and the conduct of the court. The trial testimony merely was that the diagram was not complete when shown to him by the police, not that the automobile did not appear in place on the drawing. The clear purpose of the objection to the question of defense counsel: "Now, just a few minutes ago you said the car wasn't on there . . .", was to avoid confusion from misstatement of evidence. The exclusion by the trial court averted that distraction.
The defendant then contends that the court unduly limited cross-examination by refusal to allow him to question Thornton about contradictory statements made by the witness to the police as to whether he heard Mrs. Erganian say anything in the car at the time of the robbery attempt. Counsel had earlier elicited an admission from Thornton that he told the police he heard her say "Get out" to defendant Tolliver when he invaded the Erganian car in contradiction of a later statement that "(he) really couldn't hear what the people said in the car." Thus, the question which counsel attempted to put to the witness, and excluded by the court, was merely repetitive of earlier testimony. The action of the trial court was clearly within a permissible discretion.
It is fundamental, of course, that the right of cross-examination is essential to a fair trial. Chambers v. Mississippi, 410 U.S. 284, 295(4, 5), 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The right of the cross-examiner subject always to the control of the court to preclude repetition and harassment extends not only to test the perceptions and memory of the witness but also to discredit and impeach him. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). The trial incidents the defendant describes disclose no infringement of these principles. They show only an untutored attempt at impeachment without clear understanding of what contradiction means or of the manner to exploit the benefits. The trial court was called on repeatedly to keep out confusion from repetition, contention and misstatement. In this perspective, we conclude that these complaints are groundless.
At the outset of trial the State brought a formal motion in limine to prohibit the defense from impeachment of prosecution witness Thornton by his juvenile record. The pleading recited the prior adjudications against the witness as a juvenile, that unless prohibited the defense would use those adjudications to impeach the credibility of witness Thornton, and moved the exclusion of those records as evidence against him under the provisions of § 211.271.3. 1 The motion was taken and ruled without evidence or argument and sustained by the court. The defendant contends the prohibition of the statute notwithstanding that this exclusion impaired his Sixth Amendment right to confront and impeach the witness in direct violation of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 374 (1974).
Davis does not control our decision. In that case, the prosecutor moved to protect his witness against any reference to his juvenile record by the defendant on cross-examination. The witness was then on probation by order of the juvenile court. In opposition to the request for protective order the defendant made it clear that he did not intend to use the juvenile adjudication as a general impeachment of credibility, but rather to show that the testimony of the witness was induced by concern for his probation should he refuse to testify for the State. That is, the defendant intended to probe the juvenile record to show the bias and prejudice of the witness and not merely to call his general good character into question. The trial court granted the protective order on the basis of a court rule and statute (comparable in terms to § 211.271.3) which prohibited an adjudication, order or disposition in a juvenile case admission in other proceedings.
The United States Supreme Court reversed on the rationale (l. c. 315 et seq., 94 S.Ct. 1105) that the Sixth Amendment right of an accused in a criminal proceeding to confront the witnesses against him means more than merely to require the physical...
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