Gafford v. State
| Decision Date | 24 April 1968 |
| Docket Number | No. 798,798 |
| Citation | 440 P.2d 405 |
| Parties | Denny GAFFORD, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Sidney R. Bixler and John E. Havelock, Anchorage, for appellant.
Robert N. Opland, Dist. Atty., and Leroy J. Barker, Asst. Dist. Atty., Anchorage, for appellee.
Appellant Denny Gafford was indicted for the first degree slaying of Cecil Joseph Carter. 1 A superior court jury found appellant guilty of murder in the second degree. 2 Pursuant to judgment and commitment which was entered below, appellant was sentenced to serve a term of thirty-five years' imprisonment. Appeal has been taken both from the judgment and commitment and the lower court's denial of appellant's motion for new trial.
In this court appellant urges eighteen separate specifications of error. Before reaching the two substantial issues which appellant has raised, we will discuss the numerous evidentiary rulings of the trial court which have been put in question by this appeal.
Appellant claims that the trial court made improper evidentiary rulings pertaining to testimony of Claudette Carter, the purported wife of the victim, Cecil Carter. 3 This witness related that she and her husband first met the Gaffords in 1963. They thereafter separated, met again in Seattle, and there decided to travel together to Alaska. 4 While en route to Alaska, both Sandra Gafford and Claudette Carter were arrested for vagrancy in Prince Rupert, Canada. 5 The witness further related that the charges against Mrs. Gafford were dismissed but that she, Claudette Carter, received a $300 fine. According to this witness, appellant paid the full amount of her fine and an additional $200 for the bail which he had secured in her behalf. This resulted in a $500 indebtedness owing from Cecil Carter to appellant.
Appellant's position is that it was error for the trial court to have admitted this latter portion of Claudette Carter's testimony over his objections because it placed before the jury the innuendo that he was engaged in the white slave trade with his wife, as well as with the witness. 6 Countering this argument, the state contends this evidence was admissible and relevant because of the light it shed upon appellant's possible motive for killing Cecil Carter. Specifically, the state contends that in the months which followed the Canadian incident the non-payment of this debt became a scabrous issue between Cecil Carter and appellant. 7 We hold that the evidence of Claudette Carter's arrest and appellant's subsequent payment of both the fine and bail bond premium was admissible for the purpose of establishing a possible motive for appellant's slaying of Cecil Carter. 8 We find it unnecessary to decide whether allowance of evidence as to the arrest and discharge of appellant's wife was error, for in our view the reception of this evidence, when measured against the totality of the record in this case, cannot be characterized as other than harmless error. 9
The next point urged by appellant concerns Claudette Carter's testimony regarding a conversation she overheard between Cecil Carter and appellant three months prior to the former's death. On direct examination the witness related that appellant told Cecil Carter 'that he had some pills-narcotics that he wanted Cecil to get rid of' and that in response to this request, Cecil informed appellant 'to go * * * himself.' Claudette Carter testified that appellant's reaction to Cecil Carter's refusal was one of disgust. In Watso n v. State 10 we said:
Evidence that reveals the commission of an offense other than that for which the defendant is being tried is inadmissible if it is relevant merely to show criminal disposition. But such evidence is admissible, even when it shows the defendant's prior trouble with the law, when it is relevant to prove some other material fact. 11
In Kugzruk v. State 12 it was contended that the court erred in admitting certain testimony 'on the grounds that it indicated that appellant attempted to commit a crime other than the crimes for which he was standing trial.' In sustaining the trial court's ruling we said 'the relevance and probative value of (the witness') * * * evidence outweighed its prejudicial impact.' 13 We reach a similar conclusion in the case at bar. In our view evidence of Cecil Carter's refusal to assist appellant in disposing of narcotics was relevant to the issue of motive, viz., that appellant was angry or disgusted with Carter because of his unequivocal refusal to help in the disposal of narcotics. The relevancy and probative value of this evidence was not outweighed by its potential prejudicial impact upon appellant's case. 14
Appellant also assigns as error the fact that the superior court permitted the prosecuting attorney to elicit responses from appellant on cross-examination to the effect that he did not attend Cecil Carter's funeral. 15 Prior to this line of questioning, appellant had stated that he considered Cecil Carter to be one of his best friends. We therefore hold that the state's questioning of appellant as to his non-attendance at the funeral was proper cross-examination for impeachment purposes. 16 Appellant also asserts as error the admission into evidence of a portion of the rebuttal testimony of an Anchorage Police Department officer. This witness testified that one of his undercover agents had been assigned to watch appellant's wife, Sandra Gafford, in connection with a vice investigation. Scrutiny of the record fails to reveal that counsel for appellant objected to this testimony. Appellant's failure to object waived this point for purposes of review. 17 Additionally, we are of the opinion that receipt of this evidence did not constitute plain error. 18
During this same officer's rebuttal testimony, the trial court allowed, over defense counsel's objections, the witness to testify that Billy Savage was a 'police informant.' The case which the prosecution presented against appellant consisted of circumstantial evidence. 19 The state's principal witness was Billy Savage, whose testimony if believed by the jury, presented persuasive evidence of appellant's guilt. 20 Appellant contends that the trial court's ruling pertaining to this testimony permitted improper rebuttal testimony because on the facts of the case, "Who killed Cecil Carter?' depended almost entirely on the choice in credibility between (appellant) . . . and Billy Savage.' In regard to the conduct of trial proceedings, Criminal Rule 27(a)(3) provides in part that:
The state will then be confined to rebutting evidence unless the court for good reason, in furtherance of justice, shall permit it to offer evidence in chief.
In Pedersen v. State 21 we stated that:
The trial judge is vested with wide discretion in controlling the order of proof * * *. 22
On the facts appearing in this record, we hold that it has not been demonstrated that the trial judge abused his discretion in permitting this rebuttal testimony that Billy Savage was a police informant during the period in question. 23 The prosecution witness, Billy Savage, had been subjected to intensive and prolonged cross-examination for the dual purpose of destroying his credibility and also suggesting that he, rather than appellant, was Carter's slayer. This testimony regarding Savage's employment as a police informant tended to rehabilitate his credibility. We hold that the trial judge did not abuse his discretion by holding this evidence admissible in the rebuttal portion of the state's presentation. 24 Appellant was afforded the opportunity to present surrebuttal evidence. The record shows appellant called only one witness in rebuttal and that this witness gave testimony concerning appellant's wife's bringing a sympathy card to Claudette Carter's residence two days after Cecil Carter's death. Appellant was not limited in any manner from delving into the subject of Billy Savage's purported status as a police informant.
In regard to the cross-examination of Billy Savage, appellant additionally contends that the trial court erred in failing to grant a mistrial when the witness 'volunteered' that he had taken a lie detector test. Appellant further contends that when the trial court determined to overrule his motion for mistrial 'it should have given an instruction on its own motion, or on the indication of the prosecution, if it were to avoid the case law indicating a mistrial was necessary under the circumstances.' The trial transcript shows that the following took place during counsel for appellant's cross-examination of Billy Savage:
Q Mr. Savage, you've * * * you must have told the * * * accounts of the story of the events of February the 2nd, any, many times, haven't you.
A According to what you call many, many times-here in this courtroom, and * * * what was said to the police, that is the only thing.
Q Police and the courtroom?
A Yes.
Q Well, you must have gone over it quite a few times with the police, didn't you?
A No.
Q You didn't?
A Wouldn't say, many times.
Q They only-you only gave the account of the event once, did you?
A No, sir. I'd say two or three times.
Q Two or three times.
A I was telling a lie detector about it.
At this point defense counsel moved for a mistrial or, in the alternative, an instruction. The court denied the motion for mistrial. After a recess, counsel for appellant informed the court they had decided not to request an instruction because they did not want 'to underline' the lie detector answer. In view of the decision made at trial by his counsel, we hold that appellant is now precluded from asserting that it was error for the trial court not to have instructed the jury to disregard Billy Savage's reference to a lie detector. 25
Appellant further argues that the jury must have concluded that Savage passed the lie detector test and therefore his account of the events of the early morning hours of February 2, 1966, was correct. The...
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Foster v. State
...the time and place of the conviction and the punishment imposed may be inquired into upon cross-examination. Accord, Gafford v. State, 440 P.2d 405 (Alaska 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 125 (1969), overruled on other grounds, 487 P.2d 831 (Alaska 1971); State ......
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...accompanying a witness' conviction to be admitted if that conviction is introduced to impeach the defendant. See, e.g., Gafford v. State, 440 P.2d 405, 413 (Alaska 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 125 (1969); Foster v. State, 304 Md. 439, 499 A.2d 1236 (1985), ce......
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...In any event, the matter again inheres in the jury's deliberative process and is not impeachable by her affidavit. Gafford v. State, 440 P.2d 405 (Alaska 1968); State v. Forsyth, 13 Wash.App. 133, 533 P.2d 847 (1975). The same applies to her statementthat she was upset that the "juror could......
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...the time and place of the conviction and the punishment imposed may be inquired into upon cross-examination. Accord, Gafford v. State, 440 P.2d 405 (Alaska 1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 125 (1969), overruled on other grounds, 487 P.2d 831 (Alaska 1971); State ......