State v. Goodman

LOWENSTEIN, Presiding Judge,

concurring.

I concur in the reversal of the judgment. This case was tried in August of 1985. The prosecutor asked the defendant about sto*475ries concerning girls made in June of 1982 concerning a May 1981 incident. The defendant had admitted a prior rape conviction. The defendant objected because this questioning brought “out the testimony of that case, which is totally inadmissi-ble_” The objection was overruled. As the dissent notes, the objection did not preserve this matter, subjecting review under plain error. Rule 30.20. The prosecutor continued to ask about the defendant’s explanation of the May 1981, “incident,” and also asked about an “incident that occurred on January 21 of 1982.” In my opinion, the whole line of questioning was improper and inadmissible for any reason. It is therefore unnecessary to consider whether the statements lacked a proper foundation.

When Goodman took the stand he was subject to cross-examination and impeachment the same as any witness. Section 546.260 RSMo 1978. His prior convictions as the accused and as a witness are admissible for impeachment purposes § 491.050 RSMo Supp.1984. State v. Powell, 632 S.W.2d 55, 58 (Mo.App.1982). The state’s right of cross-examination under these circumstances is not unlimited. It is entitled to show only the nature and number of prior convictions, “and is not entitled to engage in cross-examination with respect to details of the prior crimes.” State v. Newman, 568 S.W.2d 276, 281 (Mo.App.1978); See also State v. Green, 707 S.W.2d 481, 482-83 (Mo.App.1986). In Newman and Green convictions were reversed because of questions concerning the length of time the defendant served for the prior convictions.

The Missouri Supreme Court in State v. Scott, 459 S.W.2d 321 (Mo.1970), held that cross-examination about seven year old convictions for break-ins at locations close to the one at issue constituted reversible error. The court held the questions were not relevant to show habit, design or intent because seven years had passed. Id. at 324. The court decided the inquiry into details of the prior convictions served no purpose other than to show a tendency of the defendant to commit the crime for which he was presently being tried. The court said § 491.050 permits impeachment based on prior convictions, but does not permit the state to use evidence of guilt in the prior case as evidence of guilt in the case at bar. Id. at 324. What was done in Scott is exactly what happened here — the state went beyond prior crime impeachment and used the similarity to prove guilt. The state’s questions violated the defendant’s right to be tried for the offense at issue. State v. Mobley, 369 S.W.2d 576, 581 (Mo.1963). Mobley involved improper argument, but the following language is appropriate here:

We have concluded that the argument as a whole, in which the repetition and the persistency employed were major factors, constituted reversible error. All lawyers and judges know that a jury’s knowledge of prior convictions is, in itself, a most damning thing in the trial of a criminal case. When used for legitimate purposes, the defendant must take his chances on this. But prosecutors should not seize upon such an opportunity to further prejudice the defendant by undue repetition and insinuations, or to convey the idea of guilty by reason of the prior offenses.

369 S.W.2d at 581.

In State v. Shepard, 654 S.W.2d 97 (Mo.App.1983) the defendant, over objection, was asked about how his prior guilty plea conviction of a misdemeanor had been; “reduced down from a felony.” Id. at 99. The opinion of the court in Shepard stated, as should this court in this case:

The truth is the insidious combination indulged by the State is the antithesis of what the well-established rules of evidence seek to achieve-to allay any inference or supposition that “once a criminal always a criminal.” When evidence of separate and distinct crimes offered by the State goes beyond the perimeters just mentioned, it is prejudicial. Otherwise, the pervasive logic underlying the established rules of evidence is flawed. If admission of such evidence is not prejudicial, rules of evidence prohibiting its admission are unjustified. One would be *476hard put to champion a contrary argument.
⅝ # ‡ % * ⅛
Nothing short of declaration of mistrial could purge the prejudice tainting the instant case unless one yields to the platitudinous approach of sweeping it aside as harmless error. (Emphasis added.)

654 S.W.2d at 101.

The nature of the improper evidence within the context of this case amounts to a manifest injustice or miscarriage of justice and mandates a reversal.