State v. Richardson

CRIST, Judge.

Defendant was convicted, following a jury trial, of unlawful use of a weapon and sentenced as a prior offender to four years’ imprisonment. He appeals. We reverse and remand for a new trial.

Defendant, a black man, lived in a boarding house in Louisiana, Missouri. Gary Walker, one of the State’s witnesses, lived in the same boarding house and had previously argued and fought with defendant. Mr. Walker testified that after drinking approximately a six pack of beer, he started to leave the boarding house to meet his mother who was outside. Defendant entered the building. Mr. Walker testified that although he said nothing to defendant, defendant continuously said to him, “Let’s fight” and followed him outside.

Outside, defendant was in the presence of Mr. Walker, his mother and two sisters. Words were exchanged. Defendant then pulled a gun out of his pocket. While the State’s evidence showed he did so in an angry and threatening manner, defendant claims he did so to protect himself from injury from the four white persons. The crowd dispersed. Defendant put the gun back in his room and then sat on the front porch.

*886The police arrested defendant and, upon his request, took him to the mayor’s house. The mayor, who had employed defendant, told him to give the gun to the police. He did. Defendant was charged with unlawful use of a weapon, § 571.030.1(4), RSMo 1986.

Defendant claims the trial court erred in failing to suppress the gun as evidence because it was obtained as a result of coercive interrogation by the mayor. However, the fact the gun was in evidence had little to do with the outcome of the case because defendant admitted he pulled it out of his pocket. More importantly, defendant failed to object when the gun was offered into evidence. The failure to object at trial waived defendant’s claim which initially had been raised in his pre-trial motion to suppress. State v. Vinzant, 716 S.W.2d 367, 370 (Mo.App.1986). This point is denied.

Defendant’s second point concerns the prosecution’s cross-examination of defendant about a prior weapons charge and conviction. There is no question that prior convictions are the proper subject of cross-examination for the purpose of impeaching a witness. State v. Silcox, 694 S.W.2d 755, 756-57 (Mo.App.1985). There is also no question that evidence of the nature and kind of prior conviction may be elicited from a witness without going into the details of the offense. The question here is whether the prosecutor went too far beyond the function of impeaching defendant and entered the realm of improperly attempting to prove defendant’s guilt based on a prior conviction. We think he did.

The prosecutor first broached the subject of the prior conviction during his examination of Officer Burton. On redirect examination the prosecutor asked if the officer knew about defendant’s prior conviction for the very same type of offense. The officer stated he did not. Counsel for defendant failed to object.

The matter of the conviction was next brought out by the defense attorney. She asked defendant if he had been convicted of a prior felony. He said he had. He then stated his prior conviction had initially started out as an unlawful use of a weapon, but it may have been reduced from a class D felony to some type of misdemean- or. Defendant was not sure; however he did serve a year in the county jail. On cross-examination the prosecutor asked defendant why he did a year in the county jail. Defendant answered and further claimed someone probably manipulated a witness to convict him. The prosecutor retorted: “Mr. Richardson, you have spent time, spent time in the jail because you blew a hole that big around in the door in a home, real estate, with another human being on the other side of the door.” Defense counsel objected on the ground the State was not allowed to show facts of a prior conviction. The objection was sustained. The jury was instructed to disregard the question.

Thereafter the following occurred on cross-examination:

Q Now, I believe you testified that this charge that you were convicted of was reduced to a misdemeanor?
A What I mean was I did a year on it. I got sentenced to a year for a felony conviction.
Q The felony conviction was for use of a dangerous weapon?
A Well, whatever it was that I was charged with I know was that I lost use of the weapon.
Q You know what you were charged with, you know what you did?
A Mr. Calhoun, just one thing now, you exposed me, you exposed me to this. I don’t know nothing about this criminal stuff you are talking about here. This was the first and only time I’ve been convicted of anything in my life. I don’t exactly know what you mean. All that I know is that in here is unlawful use of a weapon and I did a year for that in the county jail.
Q Unlawful use of a weapon, it’s a felony, don’t you know?
A Well, being that there was no evidence to convict me in the first place, it shouldn’t have been that. It shouldn’t *887have been a year but I got a year. I done it and paid for it.
Q Now, I’m going to ask you about blowing a hole in the door—

Defense counsel again objected about going into the substantive details of the prior conviction. The court sustained the objection and denied the defendant’s request for a mistrial.

During cross-examination, the prosecutor accused defendant of drinking and taking drugs. He also asked if defendant talked constantly about “stickups,” shootings, “bad women,” and previously serving time in jail. The prosecutor then asked, “You knew as well then that these people, the Walkers, were aware of what you’ve been in trouble for?” Defendant’s objection was overruled.

The prosecution questioned defendant about whether and why he had pictures of guns on the wall of his jail cell. Defendant answered that he couldn’t put up pictures of women and he liked to hunt and fish, so he put up outdoor sports pictures, including guns.

Finally, defendant was questioned about the gun used in the instant case:

Q Who did you buy it from?
A Mike Anderson.
Q Yes, and you told the police that you bought it from Mike Anderson?
A You asked me. I’m telling you that I bought it from Mike Anderson.
Q I’m asking you, did you tell the police that you bought it from Mike Anderson? A Yes, and I’m telling you as well.
MS. SULLIVAN: Objection, irrelevant.
THE COURT: Sustained.
A I have nothing to hide about that. He’s not here — nothing that I have done is — that’s not why I’m here.
Q (By Mr. Calhoun) As a matter of fact, the gun had been stolen ten hours—
MS. SULLIVAN: Objection, your Hon- or. This is irrelevant.
THE COURT: Sustained.
MR CALHOUN: No further questions.
MS. SULLIVAN: I request that you ask the jury to disregard the Prosecutor’s last statement.
THE COURT: Jury will disregard last question of the Prosecuting Attorney.

Defendant again requested a mistrial. The request was denied.

The prosecution improperly emphasized the details of defendant’s prior conviction when he twice referred to defendant “blowing a hole in the door.” State v. Green, 707 S.W.2d 481, 483[2] (Mo.App.1986). While it is true the defendant initially denied his guilt the first time the prosecutor referred to the prior conviction, the trial court, in its discretion, elected to stop any further references to the details. State v. Powell, 632 S.W.2d 55, 58[3] (Mo.App.1982). The prosecutor continued to question defendant about the amount of time served and whether he was charged with a felony or misdemeanor. He ignored the court’s earlier ruling and again referred to the details of the earlier conviction. These repeated references emphasizing the use of a gun were devastating to defendant. Green, 707 S.W.2d at 483. They were an improper attempt to show defendant’s propensity to commit the crime for which he was on trial. State v. Reese, 274 S.W.2d 304, 307 (Mo. banc 1954).

The prosecutor further prejudiced defendant by introducing evidence that the gun used in the crime for which he was on trial had been stolen and by inferring that defendant had stolen it. Defendant was not on trial for stealing the gun. Such evidence had no legitimate tendency to directly establish defendant’s guilt for unlawfully using a weapon. Nor was it relevant to prove motive, intent, absence of mistake or accident, a common plan, or identity. State v. Jones, 578 S.W.2d 286, 288[3] (Mo.App.1979). Defendant is entitled to a new trial.

Defendant’s third point relates to prejudice in the prosecutor’s closing argument. This question need not be determined at this time because this point of error may not arise on retrial.

Judgment reversed and remanded for a new trial.

*888GARY M. GAERTNER, P.J., concurs. REINHARD, J., dissents in separate opinion.