Gentry v. State

Decision Date19 February 1991
Docket NumberNo. 89-289,89-289
Citation806 P.2d 1269
PartiesMichael GENTRY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Public Defender Program: Leonard D. Munker, State Public Defender, Cheyenne, and Barbara L. Lauer, Asst. Public Defender, Laramie, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., Kaylin D. Kluge, Asst. Atty. Gen., Cheyenne, for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

GOLDEN, Justice.

Appellant Michael Gentry, convicted by a jury of stealing a motor vehicle under W.S. 6-3-402(a) and (c)(i) (June 1988 Repl.), claims that the trial court committed reversible error when it ruled that his counsel could not elicit the fact of Gentry's prior convictions upon direct examination. Gentry states the issue to be:

The trial court, having issued a ruling in limine allowing the prosecutor to inquire into defendant's prior convictions on cross-examination under Rule 609(a), W.R.E., erred and abused his discretion in refusing to allow defendant to testify The state restates the issue:

to those prior convictions on direct examination, prejudiced the defendant, and infringed his constitutional right to a jury trial.

Whether the trial court committed reversible error under W.R.E. 609 in not permitting appellant to testify to his prior convictions on direct examination?

We affirm.

FACTS

The state's theory of the case was that Gentry and his business associate, Jim Lariviere, co-owners of a motor vehicle repair shop, stole a 1977 blue and black Chevrolet Blazer from the Buggy Bath Car Wash which was located a few blocks from the accused's repair shop. After stealing the Blazer, they allegedly stripped it of its more valuable parts and abandoned the damaged Blazer carcass in a remote area near the edge of town. The Blazer was reported stolen on January 12, 1989, and was found by the police two days later. Law enforcement authorities questioned Gentry and Lariviere on January 18 about the Blazer. Gentry consented to a search of his repair shop and seizure there of numerous parts from the Blazer. Gentry's theory of defense was that he and his business associate had obtained the Blazer through a customer's work order that had been telephoned to his business associate. He claimed he was innocent of any wrongdoing and that the stripping of the Blazer at their shop was done at the telephone request of the unidentified customer.

One of the state's witnesses, officer Lipka, testified about an oral confession made by Gentry when questioned on January 18. Gentry denied he made any confession to Officer Lipka. Other facts as they are relevant to our disposition of the appeal will be set forth as necessary.

Before trial, the trial court denied Gentry's motion in limine to exclude from trial any testimony about Gentry's six-year old felony conviction for manslaughter. After the state rested following its case-in-chief, the prosecutor told the court that if Gentry testified on his own behalf, the state would not only impeach him with the manslaughter conviction but also with a misdemeanor check fraud conviction.

Gentry testified on his own behalf. On direct examination his counsel asked him whether he had ever been convicted of a felony. The prosecutor objected, stating "this is not the time to do that." At the sidebar conference the court told Gentry's counsel that Gentry's prior convictions had no relevance except by way of impeachment. In reply, Gentry's counsel explained, "I think that we should be able to bring it out to make it clear to the jury we're not trying to hide it." The court sustained the objection saying, "That's an improper question at this time."

On cross-examination the prosecutor asked Gentry about his prior felony conviction, to which Gentry's counsel objected on relevancy grounds. Later, the prosecutor asked Gentry about his check fraud conviction, to which Gentry's counsel objected on grounds of relevancy. The court overruled both objections.

In closing argument, the prosecutor emphasized that the jury had to decide whether the witnesses had told the truth. Directing the jury's attention to Gentry, the prosecutor said,

[a]ll you saw was the defendant. This defendant, with the check fraud convictions. This defendant, with felony convictions--conviction on his record. This defendant * * * who doesn't want to be convicted. This defendant, who will do anything to try to fool you.

Those things fit the considerations of credibility * * *.

* * * * * *

And, finally, whether the facts related are inherently believable * * *.

Defense counsel in his closing argument matched the prosecutor's theme by telling the jury, "We end up with two men telling completely different stories."

According to Gentry, the jury's reaction to his credibility was the single most important factor in the trial. Since his credibility played such a crucial role, he claims that

the court's erroneous evidentiary ruling made it appear he was trying to hide his prior convictions and that false appearance unfairly tipped the scale against his credibility in the eyes of the jurors. Had he been allowed to testify first about his checkered past, Gentry asserts, it is reasonably possible the verdict might have been more favorable for him.

DISCUSSION
Standard of Review

Generally speaking, an evidentiary ruling is within the sound discretion of the trial court, and we will not find error unless the court abused its discretion. Velos v. State, 752 P.2d 411, 414 (Wyo.1988). We continue to say that, "[j]udicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Martin v. State, 720 P.2d 894, 897 (Wyo.1986).

W.R.E. 609(a)

The state contends that the trial court's ruling was correct since our rule establishes on its face that a witness's prior convictions may be raised only on cross-examination. That rule provides:

(a) General rule.--For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one (1) year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.

W.R.E. 609(a).

We do not read the rule as narrowly as does the state. As we read the rule, it does not say that the proponent of a witness may not elicit on direct examination the fact of the witness's prior convictions. In the context of a charge of ineffective assistance of counsel, this court has commented: "It was also a legitimate tactic to have his client voluntarily discuss his prior convictions before they were raised by the prosecution in cross-examination." Robinson v. State, 716 P.2d 364, 368 (Wyo.1986). Authors Louisell and Mueller tell us, "When the proponent of a witness anticipates that his adversary will raise the fact of prior convictions upon cross-examination, it should be proper for the proponent to blunt the impact of such impeachment by bringing out the pertinent facts upon direct examination." 3 D. Louisell & C. Mueller, Federal Evidence § 319, p. 347 (1979).

A look at federal authority is helpful since W.R.E. 609(a) is identical to F.R.E. 609(a). See Jones v. State, 735 P.2d 699, 701 (Wyo.1987). In United States v. Hasenstab, 575 F.2d 1035, 1040 (2d Cir.1978), cert. denied, 439 U.S. 827, 99 S.Ct. 100, 58 L.Ed.2d 120 (1978), the court approved the government's practice of eliciting from its chief witness on direct examination testimony about that witness's prior convictions. The court noted that had the government not done so, the jury might think that the government had something to hide. See also, United States v. Bynum, 566 F.2d 914, 923 (5th Cir.), cert. denied, 439 U.S. 840, 99 S.Ct. 129, 58 L.Ed.2d 138 (1978); United States v. Apuzzo, 555 F.2d 306, 307 (2d Cir.1977), cert. denied, 435 U.S. 916, 98 S.Ct. 1470, 55 L.Ed.2d 507 (1978); United States v. Hawley, 554 F.2d 50, 52 (2d Cir.1977) (after trial court denied motion in limine, defense counsel brought up the subject of prior convictions on direct examination); and United States v. Nelson, 529 F.2d 40, 42 (8th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2631, 49 L.Ed.2d 377 (1976), (after trial court denied defense motion in limine to suppress prior convictions, defense counsel elicited testimony about them on defendant's direct examination). In United States v. Dixon, 547 F.2d 1079, 1082 n. 2 (9th Cir.1976), the court said, "It seems clear from the legislative history that on direct examination, a party may elicit the evidence of a prior conviction from his own witness * * *."

Use of testimony about the existence of prior convictions, in order to blunt the opponent's impeachment cross-examination on that subject, is to be distinguished from the improper practice of a proponent's eliciting evidence of the absence of prior convictions from his or her own witness. See, e.g., United States v. Hicks, 748 F.2d 854, 859 (4th Cir.1984). This latter "tactic amounts to supporting a witness before he has been attacked, and it is forbidden by Rule 608(a)." 3 Louisell & Mueller, supra, at 206 (1989 Supp.).

We hold that a proponent may elicit on direct examination evidence of the existence, but not the absence, of his or her own witness's prior convictions. Applying that view to the trial court's ruling on Gentry's direct examination about his prior convictions, we hold that the trial court erred in sustaining the prosecutor's objection.

The state claims,...

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