State of Missouri, Respondent, v. Jeffrey W. Gardner, Appellant

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: State of Missouri, Respondent, v. Jeffrey W. Gardner, Appellant Case Number: 54881 Handdown Date: 03/02/1999 Appeal From: Circuit Court of Cass County, Hon. Joseph Paul Dandurand Counsel for Appellant: Kent E. Gipson Counsel for Respondent: Philip M. Koppe Opinion Summary: Jeffrey Gardner appeals his conviction following a jury trial for second degree murder, section 565.021.1 RSMo 1994, and his sentence of 20 years imprisonment. REVERSED AND REMANDED. Division Three holds: 1) The trial court did not err in denying the defendant's motion to dismiss the murder charge on the grounds of prosecutorial vindictiveness. The prosecutor upgraded the original charge of voluntary manslaughter to murder after the defendant successfully asserted the statute of limitations defense to the charge of voluntary manslaughter, and no evidence showed the prosecutor's conduct in filing the enhanced charge was to penalize the defendant for asserting the statute of limitations defense. 2)Where defense counsel's direct examination of a witness did not address any issue in the case and did not elicit any evidence that tended to prove or disprove a fact in issue or that corroborated relevant evidence, the trial court abused its discretion in allowing the prosecutor to cross-examine the witness on the whole case to the prejudice of the defendant. Citation: Opinion Author: Robert G. Ulrich, P.J. Opinion Vote: REVERSED AND REMANDED FOR NEW TRIAL. Smart and Smith, JJ., concur

Opinion: The defendant, Jeffrey Gardner, appeals his conviction following a jury trial for second degree murder, section 565.021.1 RSMo 1994, and his sentence of 20 years imprison-ment. He contends that the trial court erred in (1) overruling his motion to dismiss based on prosecutorial vindictiveness in upgrading the charge from voluntary manslaughter to second degree murder; (2) submitting a defective verdict directing instruction for the lesser included offense of voluntary manslaughter; (3) overruling his objections to the prosecutor's cross-examination of defense witness Carol Drummond, which was beyond the scope of direct examination; (4) admitting the rebuttal testimony of several witnesses that was irrelevant, prejudicial, and beyond the proper scope of rebuttal; (5) sustaining the prosecutor's objection to the testimony of defense witness Carol Drummond regarding the fact that the victim had fired appellant's gun in the bedroom where he was later killed; (6) submitting a defective verdict directing instruction for the offense of second degree murder that omitted the paragraph relating to sudden passion; and (7) failing to sustain his motion for new trial because of the cumulative effect of each of the aforementioned errors.(FN1) The judgment of conviction is reversed, and the case is remanded for new trial. FACTS From August of 1991 to March of 1992 the defendant, Jeffrey Gardner, rented a room at the residence of Phillip Hancock, the victim, and his wife, Carol Drummond. During this period, the defendant witnessed several acts of violence by Mr. Hancock against Ms. Drummond. In December of 1991, approximately two months prior to Mr. Hancock's death, the defendant witnessed Mr. Hancock break Ms. Drummond's collarbone during an argument between the two. Mr. Hancock was charged with assault and, subsequently, pleaded guilty and received probation. At that time, Ms. Drummond obtained an order of protection against Mr. Hancock, but she allowed Mr. Hancock to move back into their residence late in January of 1992. The defendant was at work on March 7, 1992, when Ms. Drummond paged him with a prearranged signal indicating that she was in trouble and could not talk on the phone. The defendant left work and drove to the Hancock residence. When he arrived, the defendant found Ms. Drummond outside of her residence with a neighbor, Isabell Goodpasture. The three went to Ms. Goodpasture's house to discuss the situation. Ms. Drummond told the defendant that Mr. Hancock was angry because of a comment someone had made to him regarding the relationship between her and the defendant and that Mr. Hancock wanted to confront the defendant. Ms. Drummond and Mr. Gardner determined that Ms. Drummond would return to her residence and attempt to calm Mr. Hancock before the defendant spoke to him.

The defendant later told the police that after Ms. Drummond returned to the house, he waited for short time outside the house where he heard Ms. Drummond arguing with Mr. Hancock, so he entered the house. As he walked past Ms. Drummond's bedroom, he heard Mr. Hancock threatening to "field dress" Ms. Drummond "like a deer." Suspecting trouble, the defendant retrieved his gun, an automatic pistol, from his bedroom and placed a clip loaded with ammunition into the weapon. He then returned to Ms. Drummond's bedroom where he found Mr. Hancock yelling at Ms. Drummond with a large knife in his hand. The defendant told the police that when Mr. Hancock noticed him in the doorway, he said "motherfucker stay out of this or I'll kill you." Mr. Hancock then began advancing toward the defendant, and, believing his life was in danger, the defendant raised the gun, chambered a round, and pointed the firearm at Mr. Hancock. The defendant stated that he paused for a second, but when he saw Mr. Hancock still advancing toward him, he fired the weapon. He fired until the gun jammed and Mr. Hancock was down. The defendant then left the room shaken, went to the kitchen to unload the gun, and then to the bathroom to throw-up. Ms. Drummond called the police at 2:15 p.m. When the police arrived, the defendant was standing outside in front of the house and Ms. Drummond was in the kitchen talking to the police dispatcher on the phone. When the police entered the bedroom, they found Mr. Hancock lying in a pool of blood on the floor with the knife at his feet. The police then went back outside and asked Ms. Drummond and the defendant who shot Mr. Hancock. Ms. Drummond responded "he did," referring to Mr. Gardner, and the defendant said, "I shot him." After waiving his Miranda rights, the defendant gave a full statement to the police stating essentially that he shot Mr. Hancock in self-defense and in the defense of Ms. Drummond after Mr. Hancock charged at him with a knife. Further police investigation at the scene revealed five spent shell casings in the bedroom, two on the bed, two by the victim, and one behind the door of the bedroom. The police also found one live, unspent shell on the bed. Bullet fragments were found in the wall of the bedroom, under the victim's body, and under the carpet where the victim's body was lying. The knife was examined for fingerprints, but the prints were too smudged to be identified. An autopsy revealed that Mr. Hancock died of multiple gunshot wounds. Mr. Hancock was struck with a total of three bullets - one that entered the right side of his chest, penetrated the aorta and caused massive internal bleeding; a second that entered the left side of his chest; and a third that entered his left shoulder. On July 1, 1997, following a jury trial in the Circuit Court of Cass County, the defendant was found guilty of murder in the second degree, section 565.021.1 RSMo 1994. On August 27, 1997, in accord with the jury's recommendation, the defendant was sentenced to a term of 20 years imprisonment. This appeal followed.

POINTS ON APPEAL A. Prosecutorial Vindictiveness In his first point on appeal, the defendant argues that the trial court erred in overruling his motion to dismiss based on prosecutorial vindictiveness because the state's upgrade of the charge from voluntary manslaughter to murder in the second degree was the direct and vindictively motivated consequence of the defendant's successful assertion of a statute of limitations defense to the original charge of voluntary manslaughter. At the time the shooting occurred, the former Cass County prosecutor, Dennis Laster, presented the case to a grand jury, but the grand jury returned a no true bill. Mr. Laster, therefore, did not file any formal charges against the defendant during his tenure as Cass County prosecutor. Four years after the shooting, although no new evidence had been developed, the newly elected Cass County prosecutor, Chris Koster, filed a complaint in the Associate Circuit Court of Cass County charging appellant with the Class B felony of voluntary manslaughter. During the initial appearance before the associate circuit judge, defense counsel asserted to the court that under section 556.036,(FN2) the statute of limitations had expired for the crime of voluntary manslaughter. In informal conversations between defense counsel and the prosecution, the prosecution conceded that the three-year statute of limitations had expired and requested that the defendant waive the defense. The defendant refused. Therefore, on March 7, 1996, the prosecution filed an amended complaint upgrading the charge to murder in the second degree, a crime that does not have a statute of limitation. See section 556.036. Prior to trial, Mr. Gardner filed a motion to dismiss the murder charge on the grounds of prosecutorial vindictiveness, but the court denied the motion. The essence of Mr. Gardner's claim was that because he exercised his legal right to assert that the statute of limitations had run for the crime he was then charged with, voluntary manslaughter, the prosecutor charged him with the more serious offense, second degree murder, and that such conduct by the prosecutor was a punitive act. He claims that the prosecutor's conduct violated due process in violation of the Fourteenth Amendment of the United States Constitution. United States v. Goodwin, 457 U.S. 368, 372 (1982). On appeal, the defendant contends that the enhanced charged filed in response to his successful assertion of the statute of limitations defense raised a presumption of vindictiveness and that because the prosecution failed to offer evidence to rebut this presumption, the conviction must be reversed. To prove prosecutorial vindictiveness in the pretrial context, the defendant must show that the charge against him was brought solely to penalize him for exercising a legal right and that the charges cannot be justified as a proper exercise of prosecutorial discretion. State v. Molinett, 876 S.W.2d 806, 809 (Mo. App. 1994); See also State v. Massey,

763 S.W.2d 181, 183 (Mo. App. 1988). A prosecutor has broad discretion on the decision to prosecute, and this decision is seldom subject to judicial review. Massey, 763 S.W.2d at 183; see also Molinett, 876 S.W.2d at 809 ("If the state has probable cause to believe that the accused committed a crime as defined by statute, the decision whether or not to prosecute and what charges to file generally rests entirely within the prosecutor's discretion."). Considering that the prosecutor's "assessment of the proper extent of prosecution may not have crystallized" as well as the possible "strategic use" of charges in plea negotiations, not all charges that can be filed against a defendant need be filed in the initial indictment. Massey, 762 S.W.2d at 183. Therefore, the mere filing of additional charges after the exercise of some legal right does not automatically constitute prosecutorial vindictiveness. In State v. Massey, this court stated that the test for prosecutorial vindictiveness is whether there is a realistic likelihood of vindictiveness in the prosecutor's augmentation of charges given the factual situation presented. Massey, 762 S.W.2d at 183. To determine this, two factors are weighed: (1) the prosecutor's stake in deterring the exercise of some right; and (2) the prosecutor's conduct. Id. Only if a realistic likelihood of vindictiveness is found is the burden shifted to the prosecutor to disprove vindictiveness by objective on-the-record explanations. Id. Application of the law to the facts in this case shows that the defendant's charge of prosecutorial vindictiveness is unfounded. The defendant has presented no evidence to show that the prosecutor's conduct in filing the enhanced charge was to penalize him for asserting the statute of limitations defense to the charge of voluntary manslaughter. Rather, the prosecutor's conduct supports the conclusion that the prosecutor, acting properly within his discretion, elected to file the murder charge because murder was the only crime with which the defendant could be charged and the evidence of the occurrence provided sufficient basis to reasonably support the charge. Because the evidence presented by the defendant merely describes a permissible action within the discretion of the prosecutor, the defendant failed to show any realistic likelihood of vindictiveness by the prosecutor. The point is denied. B. Scope of Cross-Examination In the defendant's next point on appeal, he contends the trial court erred in overruling his objection to the prosecutor's cross-examination of defense witness Carol Drummond because the prosecution's cross-examination was beyond the scope of direct examination. The prosecution rested its case without calling Ms. Drummond to the witness stand. Ms. Drummond was present because she had been served a prosecution subpoena. After the prosecution rested, as his first witness, the defense called Ms. Drummond. The record preserves the following elicited by defense counsel on direct: Question: Tell the jury your name, please.

Answer: Carol Drummond. The Court: I know the man in the last row did not even hear her say her name, so you need to speak up. The Witness: Carol Drummond. Question (by Defense Counsel): Okay. How long have you been here today? Answer: Hmmm, since 9:00 a.m. Question: And why did you come here today? Answer: I was subpoenaed by the prosecuting attorney. Defense Counsel: I have no further questions. Defense counsel asked no further questions of Ms. Drummond on direct examination. On cross-examination, over the objections of defense counsel, the court allowed the prosecuting attorney to question Ms. Drummond at length about her statements to the police and the prosecuting attorney's office, her relationship with both the victim and the defendant, and her knowledge of the events that occurred on March 7, 1992. The prosecutor also cross-examined Ms. Drummond regarding statements she allegedly made to several people indicating her desire and intent to kill her husband. Ms. Drummond denied making any such statements. None of the prosecutor's questions to Ms. Drummond regarding statements she purportedly made to persons other than the defendant expressing her desire to kill her husband and to obtain assistance in the act pertained to the defendant. The defendant contends the court's allowance of the prosecutor's cross-examination of Ms. Drummond constitutes error requiring a reversal of the conviction and a new trial. The state argues that the defendant failed to object at trial to the questions he now complains of and, therefore, he has waived any objection to such questions. At the beginning of the prosecution's cross-examination of Ms. Drummond, defense counsel objected twice to the prosecution's line of questioning arguing it was beyond the scope of direct, but the court overruled both objections. When a timely and sufficient objection has been made, repeated objections to the same category of evidence are not necessary to preserve the issue for review. Cruce v. Auto-Owners Mut. Ins. Co., 851 S.W.2d 10 (Mo. App. 1993); see also Bell v. United Parcel Service, 724 S.W.2d 682, 685 (Mo. App. 1987). Defense counsel stated his objections to the line of questioning at the beginning of the prosecution's cross- examination thereby preserving the issue for review. Defense counsel objected at trial and asserts on appeal that the prosecutor's cross-examination of Ms. Drummond exceeded the scope of defense counsel's direct examination. The extent of cross-examination rests largely within the discretion of the trial court, and an appellate court will not interfere unless that discretion is abused. State v. Silvey, 894 S.W.2d 662, 670 (Mo. banc 1995); State v. Weekley, 621 S.W.2d 256, 260 (Mo. 1981); State v. Watts, 919

S.W.2d 287, 291 (Mo. App. 1996). The scope of cross-examination is not limited to a categorical review of matters covered on direct-examination and may cover all matters within a fair purview of the direct-examination. Watts, 919 S.W.2d at 291. However, the scope and extent of cross-examination is not unlimited. State v. Smith, 585 S.W.2d 540, 541 (Mo. App. 1979). The proper scope of cross-examination, therefore, is very much dependent on the facts of each case. Weekley, 621 S.W.2d at 260. The state argues that under section 491.070, the prosecutor was entitled to cross-examine Ms. Drummond on the entire case. Section 491.070 states in pertinent part A party to a cause, civil or criminal, against whom a witness has been called and given some evidence, shall be entitled to cross-examine said witness (except where a defendant in a criminal case is testifying in his own behalf) on the entire case . . . . section 491.070. Section 491.070 is in substance the English rule, which was adopted by the Missouri Legislature in 1905. See Arnold v. Manzella, 186 S.W.2d 882, 895 (Mo. App. 1945); Harris v. Quincy, 91 S.W. 1010 (K.C. Ct. App. 1906). The English rule allowing cross-examination on the whole case was originally adopted to avoid the "difficulty, delay, and contention" that would result if courts were required to determine the scope of the examination in chief. Harris, 91 S.W. at

1. Since the adoption of the English rule, Missouri courts have held that where a witness is sworn and gives some

evidence, no matter how formal or unimportant, the witness may be cross-examined in relation to all matters involved in the issue. See generally Page v. Kankey, 6 Mo. 433; Conway v. Metropolitan St. Ry. Co., 142 S.W. 1101 (K.C. Ct. App. 1912). No Missouri case addresses the application of section 491.070 to the circumstances presented in this case. The Kansas City Court of Appeals, however, addressed the application of the English rule to a case with facts similar to the instant case one year after the Missouri legislature adopted the rule. See Harris v. Quincy, 91 S.W. 1010 (K.C. Ct. App. 1906). In Harris v. Quincy, the court held that the right to cross-examination on the whole case does not arise from the mere swearing in of a witness. 91 S.W. at 1011. The court stated that the purpose of cross-examination is to ascertain the witness' credibility as well as the origin of the witness' knowledge regarding the matters she has testified to. "Where no question is asked of the witness by the party having him sworn, there is no reason for cross-examination, since [the witness'] . . . prejudices, feelings, etc. are not involved, and his integrity is of no consequence." Id. The circumstances presented by the instant case are similar to those in Harris. The language of the statute indicates that the opposing party's right to cross-examine the witness on the entire case is triggered where the witness gives "some evidence" on direct. Logic suggests that the provision that the witness has "given some evidence" against a

party to the litigation is requisite to cross-examination on the entire case. The "evidence," therefore, must be relevant to an issue or issues in the case before the opposing party is entitled to cross-examine the witness on the entire case. Examination of Harris and other cases addressing the application of section 491.070 reveals that the purpose of section 491.070 is to allow the opposing party the opportunity to broadly cross-examination a witness as to the issues presented in the case where the witness has injected some relevant evidence on direct examination pertaining to an issue or issues in the case regardless of the weight of the evidence. Section 491.070 does not permit the opposing party the unfettered right to cross-examine the witness to all issues where no relevant evidence of the issues has been presented on direct. Defense counsel's direct examination of Ms. Drummond did not address any issue in the case and did not elicit any evidence that tended to prove or disprove a fact in issue or that corroborated relevant evidence. See Johnson v. Creative Restaurant Management, 904 S.W.2d 455, 459 (Mo. App. 1995) (defining relevant evidence). Ms. Drummond simply stated her name, the time that she arrived at the courthouse, and that she had been subpoenaed by the prosecution. Therefore, no relevant evidence was presented on direct that triggered the state's right under section 491.070 to cross-examine Ms. Drummond on the entire case. Missouri law provides that the trial court's determination regarding the permissible scope of cross-examination is subject to review for abuse of discretion. Silvey, 894 S.W.2d at 670; Weekley, 621 S.W.2d at 260; Watts, 919 S.W.2d at

1. Although the trial court has broad discretion in permitting extensive cross-examination, the scope of cross-

examination is not unfettered and the trial court's discretion is not unlimited. See Smith, 585 S.W.2d at 541. Failure to hold in this case that the trial court abused its discretion in permitting the prosecutor's prejudicial cross- examination would subvert abuse of discretion review. The trial court allowed the prosecutor to cross-examine Ms. Drummond about any subject he desired, thereby resulting in approximately 30 pages of testimony by Ms. Drummond. despite the witness' having presented no relevant evidence on direct. The trial court's allowance of the prosecutor's extensive cross-examination of the witness' statements to persons other than the defendant, in the defendant's absence and apparently unrelated to the defendant, that she wanted her husband dead and was seeking assistance to induce his death greatly exceeded the scope of direct and prejudiced the defendant's right to a fair trial. From the evidence presented in the cross-examination of Ms. Drummond, the jury could have inferred that the defendant conspired with Ms. Drummond to kill Mr. Hancock although insufficient evidence of such a conspiracy was presented by the state and such inference based on the testimony of the witness alone during cross-examination would have been conjectural. Mr. Gardner was, therefore, prejudiced by the error.

Because the trial court abused its discretion in allowing the prosecutor to cross-examine Ms. Drummond on the whole case to the prejudice of the defendant, the judgment of conviction is reversed, and the case is remanded for new trial. Footnotes: FN1.Point III being dispositive, points II and IV through VII are not addressed. FN2.All statutory references are to RSMo (1994) unless otherwise indicated. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.