Gist v. State, 87-263

• Decision Date: 23 December 1988
• Docket Number: No. 87-263,87-263
• Citation: 766 P.2d 1149
• Parties: Steven Louis GIST, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1149

766 P.2d 1149

Steven Louis GIST, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 87-263.

Supreme Court of Wyoming.

Dec. 23, 1988.

Steven E. Sumida, Asst. Public Defender, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Senior Asst. Atty. Gen., and Marla Vollmar (argued), Student Intern, Prosecution Assistance Clinic, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT and MACY, JJ., and BROWN, J., Retired. ^*

CARDINE, Chief Justice.

Appellant Steve Gist was convicted of delivery of a controlled substance, marijuana, in violation of § 35-7-1031(a)(ii), W.S.1977. He appeals his conviction, contending that the trial court erred in prohibiting him from presenting witnesses to impeach a narcotics officer who testified against him.

We reverse.

On May 17, 1985, David Lauck, an undercover narcotics officer for the Campbell County Sheriff's Department, met appellant's brother, Roger Gist, in the alley beside the Gist brothers' house. The two men entered a vehicle, and Roger Gist asked Agent Lauck if he wanted to make a marijuana purchase. During this discussion, Roger Gist lit and smoked a marijuana cigarette. According to Agent Lauck, Roger Gist offered the cigarette to him and he "simulated the use of that cigarette." While Roger Gist and Agent Lauck were in the car, appellant Steve Gist was outside the residence talking to someone in a truck.

Roger Gist and Agent Lauck left the vehicle and, as they walked towards the house, a person named Robin pulled up and told Roger Gist that he wanted to buy some marijuana. Roger Gist, Agent Lauck and Robin walked into the house and entered the kitchen where Roger removed some "samples" of marijuana from between the leaves of the kitchen table. After viewing the samples, Agent Lauck and Robin both agreed to make a purchase.

According to Agent Lauck, appellant then entered the residence and, after Roger informed him of the quantities to be purchased, he left the kitchen and returned with one ounce of marijuana, which was all that was left. According to Agent Lauck, appellant handed the baggie of marijuana to him and told him to put the money on the windowsill. Agent Lauck did so and left the residence.

As a result of this transaction, appellant was charged with delivery of marijuana and his brother, Roger, was charged with aiding and abetting a delivery. A jury convicted appellant of the delivery charge. On appeal, we reversed the conviction, concluding that appellant received ineffective assistance of counsel. Gist v. State, Wyo., 737 P.2d 336 (1987).

After remand, a second jury trial was held. The State relied on Agent Lauck as its sole witness. In his direct testimony, Lauck testified as follows:

"Q. Did you do anything else while you were in the vehicle with Roger Gist?

"A. Yes. Roger lit a--what appeared to be a marijuana cigarette that day, and he smoked it, and I simulated the use of that cigarette.

"Q. You say--you stated simulated use; what do you mean by that?

"A. I give the suspects the appearance that I would be using the drugs, but I don't use the drugs.

"Q. And how was it that you did that?

"A. With marijuana rolled in a cigarette form, mainly, all you have to do is take it from them without hesitation and bring it up close to your mouth, like you would be smoking it, and return it back to them.

"Q. On May 17th then of 1985, did you smoke that cigarette?

"A. No, I did not." (Emphasis added.)

During cross-examination, Lauck's testimony on this subject was attacked in the following exchange:

"Q. So you just smoked it out in the car in front of everybody?

"A. I didn't smoke it.

"Q. You simulated it. How do you simulate exhaling smoke when someone's sitting right next to you?

"A. I didn't simulate exhaling. I didn't blow any smoke out. I didn't take any smoke in. I didn't even touch it to my lips.

"Q. And you say you've never used drugs?

"A. That's right.

"MR. MASSEY: Objection, Your Honor. That's inappropriate.

"MR. SAMPSON: I believe he testified to that on direct, Your Honor.

"THE COURT: I don't think he did testify to that.

"MR. MASSEY: Your Honor, whether or not he smoked on this particular day is relevant, but any past use, if there was any, is irrelevant under the rules of evidence.

"THE COURT: Sustained."

Later in the cross-examination, appellant's counsel asked Agent Lauck if he testified in appellant's earlier trial that he never used drugs. The court sustained the State's objection to this question, stating "[t]he only issue that's relevant in this trial is whether his perceptions were impaired by the use of drugs on that day."

In the ensuing bench conference, appellant's attorney argued that Lauck's testimony concerning his role in the grand jury investigation opened the door to evidence of prior drug use by Agent Lauck. More specifically, appellant's counsel argued that he should be allowed to present evidence of Agent Lauck's prior drug use with other suspects in order to contradict Lauck's statement that he merely simulated the use of drugs. Appellant also argued that the evidence of drug use was relevant to Agent Lauck's ability to perceive and recall the transaction for which appellant was charged. After hearing these arguments, the court informed appellant's counsel that

"if you want to inquire of Mr. Lauck about his prior drug use, I'm going to permit you to do that. But I'm not going to let you prove by extrinsic evidence or attempt to prove by any other kind of extrinsic evidence that what he said is false. You have to live with his answers. If you don't like his answers, that's just going to be tough cookies."

Defense counsel's cross-examination of Agent Lauck continued with the following exchange:

"Q. Officer Lauck, did you use drugs?

"A. No. I've never used illegal drugs.

"Q. You never used drugs on May 17th?

"A. That's correct."

After the State rested, the court allowed appellant to make an offer of proof in the form of testimony of several persons who claimed to have used drugs with Agent Lauck. The thrust of their testimony was that during the Campbell County Grand Jury investigations Lauck did not simulate drug use, but instead actually ingested several different drugs, including methamphetamine and marijuana. After hearing the offer of proof, the court reaffirmed its ruling excluding the testimony.

Roger Gist then testified on behalf of appellant. He stated that Agent Lauck "definitely inhaled" marijuana when the two men were in the car outside appellant's residence on the day of the charged transaction, and that Lauck "got high" on that marijuana. He also testified that he delivered the marijuana to Lauck and that appellant was not in the house when the transaction occurred. Appellant then testified that he did not deliver the marijuana to Agent Lauck and that he did not know that the drug transaction occurred until sometime later. Approximately eight hours after beginning deliberations, the jury returned a guilty verdict.

In challenging his conviction, appellant focuses on the trial court's ruling which prevented him from presenting witnesses to testify to Agent Lauck's prior drug use. In excluding this testimony, the trial court relied on Rule 608(b), W.R.E., which provides, in relevant part:

"Specific instances of conduct.--Specific instances of conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified."

The purpose of Rule 608(b) is to prevent a party from using extrinsic evidence of specific conduct in order to establish character or disposition to be untruthful. 3 D. Louisell and C. Mueller, Federal Evidence § 306. To the extent that the testimony of Agent Lauck's prior drug use was offered for this purpose, it was clearly inadmissible under Rule 608(b). The evidence was also offered, however, for two other purposes. The first purpose was to contradict Agent Lauck's assertion in his direct testimony that he merely simulated the use of drugs with suspects but did not use them. Second, the evidence was offered to show that because Agent Lauck used drugs on prior occasions, he likewise used marijuana with Roger Gist on May 17, 1985, and, as a result, his perception was impaired at the time of the transaction.

The trial court erred in determining that Rule 608(b) precluded the admission of the offered testimony for these purposes.

"It is unfortunate (though perhaps understandable) that the courts sometimes fail to recognize that the focus of Rule 608 is upon impeachment and rehabilitation by proof of the character or disposition of a witness with respect to veracity, and that the provision affects impeachment by contradiction only in the most incidental way. Where a party seeks to establish character or disposition to be untruthful by proof of specific conduct by the witness, Rule 608(b) instructs that such conduct may be revealed only by questions directed to the witness himself, and not by means of other (or 'extrinsic') evidence. Incidentally the effect of this restriction is to foreclose extrinsic evidence of misconduct which might have the effect of contradicting a denial by the witness elicited on cross-examination, and in this narrow sense Rule 608(b) does indeed affect the quite separate mechanism of impeachment by contradiction. But some courts have lost sight of the focus of Rule 608(b), and have indicated that the provision imposes a more general restriction upon impeachment by contradiction, and in this respect these decisions are unsound and should be...