*5 [4] The State does not contest the trial court's finding that
counsel's failure to impeach was not trial strategy. Nor does it argue
the motion court's holding that the impeachment evidence was cumulative
was correct. But, it does argue that the failure to impeach these
witnesses was not prejudicial. This Court disagrees.
[5][6] As this and other courts have long recognized:
The trial court has broad
discretion in determining the admissibility of substantive evidence and
in determining the extent and scope of cross-examination, including
impeachment of a witness by use of a prior inconsistent statement.
Long v. St. John's Regional Health Center, 98 S.W.3d 601, 605-06
(Mo.App. S.D.2003); Reno v. Wakeman, 869 S.W.2d 219, 223 (Mo.App.
S.D.1993). The trial court's discretion is not unlimited, however. It
must be balanced against the fact that, "[t]he right to
cross-examination is essential and indispensable," State v. Jaynes, 949
S.W.2d 633 (Mo.App. E.D.1997), and "[t]he right to cross-examine a
witness who has testified for the adverse party is absolute and not a
mere privilege." Pettus v. Casey, 358 S.W.2d 41, 44 (Mo.1962); Doe v.
Alpha Therapeutic Corporation, 3 S.W.3d 404, 423 (Mo.App. E.D.1999).
For this reason, a trial judge "has no discretion to prevent any
cross-examination at all on a proper subject," Merk v. St. Louis Public
Service Co., 299 S.W.2d 446, 450 (Mo.1957), nor may that judge "exclude
relevant and material facts simply because counsel seeks to elicit such
facts on cross-examination." Long, 98 S.W.3d at 606, quoting Reno, 869
S.W.2d at 223.
[7][8][9][10] Missouri courts have harmonized these principles by
holding that a judge cannot preclude a defendant from impeaching a
prosecution witness with prior inconsistent statements if the
impeachment does not concern an immaterial or collateral matter. State
v. Dunson, 979 S.W.2d 237, 242 (Mo.App. W.D.1998). "A matter is
considered to be collateral if the fact in dispute is of no material
significance in the case or is not pertinent to the issues developed."
Id. "In contrast, a matter is not collateral if the alleged discrepancy
involves a crucial issue directly in controversy or relates to any part
of the witness' account of the background and circumstances of a
material transaction, which as a matter of human experience he would
have been mistaken about if his story was true." Id. (internal
quotations omitted). "If a fact may be shown in evidence for any
purpose independent of contradiction, it is not collateral." State v.
Goodman, 738 S.W.2d 470, 474 (Mo.App. W.D.1987). Furthermore:
As a general rule, a witness may
be asked any questions on cross-examination that tend to test accuracy,
veracity, or credibility, or shake the witness' credit by injuring his
or her character. [citation omitted] Where a witness' prior
inconsistent statement relates specifically to a paramount issue in the
case, the trial court does not have discretion to prevent the
impeachment of the witness through the use of that statement.
Long, 98 S.W.3d at 606.
[11] As applied here, this means the trial court would have had no
authority to prevent impeachment of the State's witnesses on matters
related to a paramount issue or that affected their accuracy, veracity,
or credibility had counsel sought to do so. By their nature, such
issues are not collateral.
[12][13][14] Nor, if not collateral, can the failure to offer this
evidence be justified on the grounds that the evidence was cumulative,
as the motion court found. It appears it so ruled because other
witnesses had testified to Mr. Black's version of the incident. But,
this does not make this evidence cumulative. "Evidence is said to be
cumulative when it relates to a matter so fully and properly proved by
other testimony as to take it out of the area of serious dispute."
State v. Kidd, 990 S.W.2d 175, 180 (Mo.App. W.D.1999) (internal
quotations omitted). While an appellate court will normally defer to a
trial court's determination as to what evidence fits within this rule,
a trial court does not have discretion to reject evidence "as
cumulative when it goes to the very root of the matter in controversy
or relates to the main issue, the decision of which turns on the weight
of the evidence." Id. Accord, State v. Perry, 879 S.W.2d 609 (Mo.App.
E.D.1994).
Perry is instructive as to how to apply the cumulative evidence rule.
The State there argued that no prejudice resulted from the trial
court's exclusion of internal police department records impeaching the
credibility of some of the State's key witnesses to defendant's alleged
confession, because defendant's sister testified to the events that
would have been shown by the records. The court rejected this argument,
stating:
It borders on the frivolous to
contend that the testimony of defendant's sister, refuted on the stand
by Briscoe, is equivalent to the transcript of Briscoe's statement to
the police which stated the very things she denied stating on the
stand. Evidence is not to be rejected as cumulative when it goes to the
very root of the matter in controversy or relates to the main issue,
the decision of which turns on the weight of the evidence.
Perry, 879 S.W.2d at 613.
The evidence defense counsel failed to offer here did not relate to "a
matter so fully and properly proved by other testimony as to take it
out of the areas of serious dispute." Kidd, 990 S.W.2d at 180. To the
contrary, the impeaching evidence focused on the "very root of the
matter in controversy." Perry, 879 S.W.2d at 613. The evidence of the
prior inconsistent statements of Mr. Wolfe, Mr. Brandon, and Ms.
Copeland related directly to the central issue of whether Mr. Black
acted with deliberation or in a fit of rage or out of self-defense. As
the fact that Mr. Black killed Mr. Johnson was conceded, this was the
key issue in contention between the parties. Here, as in Perry, it
borders on the frivolous to say that presenting defense witnesses as to
how the killing occurred was the equivalent of showing that the State's
key witnesses had previously agreed with all or part of defendant's
recounting of that central, controverted fact. The weight of the
evidence on this issue was central to the case.
*7 Even more basically, the un-offered prior inconsistent statements as
to how the death occurred simply are not cumulative of any other
evidence, even had they related to a collateral matter. For, while a
number of witnesses testified to the events leading to the killing,
what Mr. Black says should have been impeached with these prior
statements was the accuracy of Mr. Wolfe's, Mr. Brandon's and Ms.
Copeland's own perceptions of those events. No other witness had
addressed the accuracy of these three witnesses' perceptions or showed
that they had previously given inconsistent statements; indeed, no
other evidence could more effectively have impeached their trial
testimony than their own prior words. See Lagud v. Kansas City Board of
Police Commissioners, 136 S.W.3d 786 (Mo. banc 2004) (prior admission
of suspect impeaching his own trial testimony as to his intoxication
could not by its nature be cumulative).
[15][16] Defense counsel also failed to impeach Mr. Martin with his
prior statements showing that he, Mr. Wolfe, and the victim had been
drinking far more heavily than Mr. Martin admitted on the stand. The
State argues that this evidence, at least, was cumulative because other
evidence was presented that showed that the victim, Mr. Johnson, had a
.29 BAC at the time of his death. But, the State also continued to
contest Mr. Johnson's intoxication, suggesting that the .29 BAC reading
was an anomaly and that Mr. Martin's testimony that they only had a few
beers was accurate. In this circumstance, it was ineffective to fail to
introduce the prior statements tending to show more extensive drinking,
for, "[i]t has long been the rule in Missouri that on cross-examination
a witness may be asked any questions which tend to test his accuracy,
veracity or credibility or to shake his credit by injuring his
character." Lagud, 136 S.W.3d. at 793. Lagud further held that
"intoxication of a witness as of the time the events took place which
are the subject of the witness' testimony is not a collateral issue but
bears directly upon the ability of the witness to accurately describe
those events." Id. at 794. It was, therefore, a proper subject of
impeachment and not excludable as cumulative or collateral.
IV. PREJUDICIAL EFFECT OF COUNSEL'S INEFFECTIVENESS
[17][18] In considering the prejudicial effect of movant's lawyer's
ineffectiveness, "counsel's actions should be judged by her overall
performance, the right to effective assistance of counsel may in a
particular case be violated by even an isolated error of counsel if
that error is sufficiently egregious and prejudicial." Deck, 68 S.W.3d
at 429 (internal quotations omitted).
[19] The State argues that in order to prove prejudice, Mr. Black was
required to have called each of the witnesses in question at his
post-conviction motion hearing so that he could show what they would
have stated had his counsel attempted to impeach them with their prior
inconsistent statements. The court noted in rejecting a similar
argument in Clay v. State, however, "[t]he 29.15 hearing is not a trial
of the charges. Its purpose is to receive evidence touching on the
adequacy of counsel's performance. The [witnesses'] testimony shows
that important evidence was available if only counsel had looked for
it." 954 S.W.2d 344, 348 (Mo.App. E.D.1997) (Blackmar, J.). In other
words, a movant is not required to reenact how a hypothetical trial
would have proceeded had particular evidence been utilized, but to show
that counsel knew of the evidence and was ineffective in failing to use
it, to movant's prejudice.
*8 Here, counsel's failures went to the key issue of deliberation. The
record in this case shows that the jury was focused on that issue. The
jurors circled the words "cool reflection" in the first-degree murder
verdict director and sent the verdict director to the judge with a note
stating, "Judge, please define this phrase ." The judge refused to do
so, and directed the jury to be guided by the instructions. It returned
a verdict of guilty.
A similar situation occurred in Deck, in which this Court had to
determine whether error by counsel in failing to object to instructions
to the jury regarding whether or not to impose the death penalty was so
prejudicial as to require a new trial. In determining that a new trial
was required, this Court considered how this missing instruction might
have impacted the jury and concluded:
Most tellingly, the jurors ... sent the judge a note stating they were
confused about what mitigation meant in Instruction 8 and asking for a
legal definition of the term ... While the court's denial of their
requests was proper, the requests show that the jury was focusing on
the issue of mitigation and may have been confused by what it meant as
used in the instructions.
68 S.W.3d at 431. Deck concluded that the failure was prejudicial.
As in Deck, when the jury here sent a note to the judge indicating
confusion by circling the words "cool reflection" in the first-degree
murder verdict director, the court did not err in refusing to define
the term. Here also, the request shows that the jury was focusing on
this issue and was confused by the evidence concerning deliberation.
That evidence was not overwhelming, consisting principally of testimony
of State's witnesses who said Mr. Black reached into the truck and
stabbed the victim. On direct appeal, the Court found that this
evidence was sufficient to support the verdict. Had that testimony been
impeached, little would have remained to support the finding of
deliberation. [FN2] As noted in Clay:
The relative strength or weakness
of the prosecution's case is significant in determining whether any
deficiencies in trial counsel's performance were prejudicial, because
the question which must be answered is whether, but for the
deficiencies, the result of the trial might have been different.
954 S.W.2d at 346-47.
The unoffered evidence, admissible both for impeachment and as
substantive evidence, went to a central, controverted issue on which
the jury focused during deliberations. If believed by the jury, there
is a reasonable probability that the outcome of the trial would have
been different. Accordingly, this Court determines that counsel's
ineffectiveness was so prejudicial as to undermine this Court's
confidence in the outcome of the trial. The motion court therefore
erred in overruling the motion for post-conviction relief under Rule
29.15. The judgment is reversed. Pursuant to Rule 84.14, a new trial is
ordered on all issues. The case is remanded.