State v. Williams

• Decision Date: 20 February 1973
• Docket Number: No. 34843,34843
• Citation: 492 S.W.2d 1
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jerome Oliver WILLIAMS, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 1

492 S.W.2d 1

STATE of Missouri, Plaintiff-Respondent, v. Jerome Oliver WILLIAMS, Defendant-Appellant.

No. 34843.

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

Feb. 20, 1973.

Karl F. Lang, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., James E. Darst, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

McMILLIAN, Judge.

This is an appeal by Jerome Oliver Williams, defendant, from a judgment of conviction of armed robbery in the first degree, and a subsequent sentence by the court of twenty years in the custody of the Department of Corrections pursuant to the Second Offender Act. Defendant appealed.

Defendant claims that the trial court erred by allowing the State to cross-examine his alibi witness with regard to alleged prior misconduct which had never been the basis of either a formal charge or conviction. After due consideration of the claim of error, we resolve the point against the defendant and affirm the conviction.

To add color to defendant's claim, a brief evidentiary background is in order. On Thursday, May 27, 1971, Sid's Medi-Center Drugstore on Thirteenth Street in St. Louis was robbed of $114.00 by an armed black man described as six feet tall, medium build, weighing one hundred sixty to seventy pounds. When the robber entered the store, he confronted a clerk, Charles Payne, showed a pistol, and demanded that the cash register be opened. Payne replied that he would have to obtain permission from his employer and the owner of the store, Sidney Arkush, before the register could be opened. Both men then walked to the prescription counter, where the robber pushed Payne aside and leveled his pistol on Arkush. Arkush was ordered to open the cash register, and the robber took money from the register drawer. Subsequently the robber took his hostages to two other areas of the drugstore and removed money from two additional cash registers. Payne estimated at trial that the entire affair lasted five or six minutes, but Arkush testified that in his opinion the robber was in the store for fifteen minutes.

Defendant was arrested the following Monday, June 1, 1971, by St. Louis police detective David Fletcher and was taken to the station house where he was placed in a lineup with four other black men. Although Payne had no trouble identifying the defendant in the lineup, Arkush was somewhat uncertain. Yet he did pick out the defendant, and he said the defendant bore a similarity to the robber. At the trial Arkush said while he was uncertain defendant was the man who robbed him, defendant did bear a 'fantastic' similarity and likeness to the robber.

Defendant and Mrs. Juanita Jones, an alibi witness, testified for the defense. Defendant admitted two prior felony convictions, but he denied the robbery with which he was charged. He said that on the evening of the drugstore holdup he was helping Mrs. Jones paint her five-room apartment; that this task started on Monday and was not finished until Friday; and that on the day of the robbery, Thursday, he arrived at the Jones' apartment in the early morning and did not leave until 8:00 or 9:00 P.M. On cross-examination, defendant said that he used ten gallons of paint, some of which he obtained from the Housing Authority and some of which he purchased from a hardware store.

Mrs. Jones corroborated defendant's alibi; however, there were some differences from defendant's accounting of his activities during the week of painting. She said that all of the paint used in the apartment came from the Housing Authority, that defendant did not buy any paint, and that the work began on Tuesday, Monday. While she admitted being asked by Officer Fletcher on June 1 whether or not she had seen defendant the previous week, she denied telling him that she could not be sure of defendant's whereabouts on the day of the robbery.

During Mrs. Jones' cross-examination the following colloquy took place which sets the stage for defendant's claim of error.

'Q. Let me ask you another question: You were recently shot in the foot, were you not?

'A. Now what's that got to do with this?'

'Q. (By Mr. Darst) Now, Mrs. Jones, before we,--Well, that's all right. Let me ask you this question: It's true, is it not, that you made a false report to the police?

'A. No, it's not true.

'Q. Let me ask my question if I may, please. It is true, is it not, that you told the police a lie concerning the shooting incident at the time it was reported to the police?

'BY MR. DELWORTH: Just a minute. I want to interpose an objection to that question. It's irrelevant, immaterial, incompetent and that is an improper attempt at impeachment of this witness.

'THE COURT: Overruled.

'THE WITNESS: No, it's not true.'

After the first of this series of questions, the trial court told opposing counsel, who had approached the bench, that he would not permit Mrs. Jones to be cross-examined on collateral issues. Mr. Darst indicated he intended to interrogate the witness on an alleged false report she made to police officers concerning the shooting. Citing State v. Foster, Mo., 349 S.W.2d 922 and the Corpus Juris Secundum as authority permitting his line of questioning, Mr. Darst requested to go into chambers with the trial judge and opposing counsel.

Since the following hearing was in camera, we have no record of what transpired, a fact which makes our task here doubly difficult. Hopefully, trial judges will hereinafter transcribe all those in chamber conferences that specifically deal with substantive matters of the proceedings.

When the trial was resumed, Mr. Darst was permitted to ask his question whether Mrs. Jones had lied to police in reporting a shooting incident. Her answers were negative. Defense counsel entered his objections and was overruled.

Defendant asserts error by the trial court in permitting an impeachment of his one and only witness by showing her general reputation for morality was bad, contrary to Missouri law limiting such attacks to a witness' reputation for truth and veracity, and in allowing the State to cross-examine the witness regarding an alleged criminal offense for which she had not been convicted, also contrary to State law. He further claims that the prosecutor's questioning was not conducted in good faith.

Since State v. Williams, 337 Mo. 884, 87 S.W.2d 175, 100 A.L.R. 1503, the law has been well settled in Missouri that a defendant who takes the stand in his own behalf or a witness cannot be impeached by proof of a bad reputation for morality or proof of any specific act indicating moral degeneration. In a unanimous en banc decision the Court said: '. . . to avoid ambiguity and injustice to the defendant as far as possible, it seems better that the impeaching testimony should be confined to the real and ultimate object of the inquiry, which is the reputation of the witness for truth and veracity.' 87 S.W.2d 175, 182. In so holding, the Court reversed a second degree murder conviction because the trial court permitted the State in rebuttal to appellant's testimony to prove through six witnesses that appellant had a bad general reputation for morality in the community.

The Williams rule was extended to the situation now in issue--cross-examination of a witness for the purpose of impeachment--in State v. Whipkey, 358 Mo. 563, 215 S.W.2d 492. Appellant in that case had sought unsuccessfully to cross-examine a state witness about specific acts reflecting on her chastity. Calling attention to the Williams rule that impeachment be confined to reputation for truth and veracity, the Court said, '. . . It would seem only logical then that the same should be true as applied to cross-examination on specific acts of conduct, . . .' and upheld the trial court's decision to exclude such questions, 215 S.W.2d 492, 496.

The Whipkey decision also reiterated two established principles relating to cross-examination and impeachment. First, the scope of cross-examination and the determination of which matters may bear on a witness' credibility are largely within the discretion of the trial court. Appellate courts will not interfere with these decisions unless a clear abuse of discretion is shown. And second, when a cross-examiner questions a witness about specific acts collateral to the issues in dispute, he is bound by the witness' answer. He cannot offer evidence to the contrary, unless, of course, the character of the witness has been put in issue on direct examination. See also State v. Parton, 487 S.W.2d 523 (Mo.1972); State v. Brotherton, Mo., 266 S.W.2d 712; Arnold v. Alton R. Co., 348 Mo. 516, 154 S.W.2d 58; State v. Hayes, 356 Mo. 1033, 204 S.W.2d 723; and Hoffman v. Graber, Mo.App., 153 S.W.2d 817. Further support for the Court's rulings in Williams and Whipkey may also be found in many other jurisdictions and with the text writers. See 2 McCormick on Evidence, §§ 41, 42 (2d Ed.); 3A Wigmore, Evidence, §§ 981--983 (Chadbourn rev. 1970); 98 C.J.S. Witnesses § 515; 58 Am.Jur., Witnesses, § 759; and the Federal Rules of Evidence, Rules 608.

In the case before us, however, defendant raises a situation where there is no easily definable distinction between questions which bear on a witness' credibility and those which merely tend to degrade him and prejudice the defendant. But a review of previous cases dealing with these issues provides us with rough boundaries within which interrogation into specific and collateral acts may be proper.

It is clear that a cross-examiner cannot delve into a witness' reputation for chastity or sexual morality to show a poor reputation for truth and veracity. Thus, when a trial court permitted the State to ask the defense witness about her allegedly illegitimate children, the Court found an abuse of discretion. State v. Spencer, Mo., 472 S.W.2d 404. Similarly, a prosecution witness could not be impeached by questions tending to show...