Kwallek v. State
| Decision Date | 12 March 1979 |
| Docket Number | No. 4966,4966 |
| Citation | 596 P.2d 1372 |
| Parties | Robert James KWALLEK, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Stuart S. Healy, Sheridan, for appellant.
John J. Rooney, Acting Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Randy Meyers, Legal Intern, Office of the Attorney General, Cheyenne; and James N. Wolfe, County and Pros. Atty., Sheridan County, for appellee.
Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. *
Charles McKenzie, who testified for the State, had accompanied the defendant to a liquor lounge where the complained-of incident took place. McKenzie, too, was charged, but when he testified at Kwallek's trial he had entered into plea negotiations resulting in a plea of guilty with probation. Mr. McKenzie testified that he, together with the defendant Robert Kwallek and one Bob Patterson, had arrived at the Torchlight Lounge in Sheridan, Wyoming, at about 9:30 p. m. He said that a fight broke out at approximately 10:45 p. m., following an argument between Kwallek and the complaining witness, John Weedman, over Kwallek's and Patterson's return to the Torchlight with "go-cups" which they had been furnished for the purpose of taking their beer away from the bar premises.
McKenzie related that the fight had been started by the card-checker and bouncer, Weedman, who struck the defendant following an exchange of words concerning the use of the go-cups. Over objection, the witness was allowed to testify to his own involvement in the fight as an antagonist, concluding with the observation that he had pleaded guilty and paid Mr. Weedman's hospital bills because he felt his own blows had caused his injuries.
Ross Trujillo was a patron at the Torchlight Lounge on the evening in question, and he testified that he saw the defendant, Robert Kwallek, hit John Weedman once, but that he did not observe the defendant kick Mr. Weedman.
Weedman testified that he was employed at the Torchlight Lounge on October 20, 1977, and that he had never met the defendant before the night in question. He related that, without provocation, the defendant struck him twice and the only exchange the two had shared, prior to the altercation, was when Weedman said "goodnight" to the defendant. He further said that, in the course of the fight, he received a broken nose and cracked ribs which caused him to lose his job and miss fifteen days of work.
The State called the manager of the Torchlight Lounge, Mr. Bobby Rivers, who testified that the defendant Kwallek "threw a straight-out punch right in Weedman's face." He said that he later turned and saw both Charles McKenzie and the defendant beating on Weedman. The witness admitted that he did not see what preceded the fight and had not observed any preliminary argument.
Mr. Kwallek testified that on the evening of October 20, 1977, he and Charles McKenzie and Bob Patterson arrived at the Torchlight Lounge at about 9:00 or 9:30 p. m He related that he and his friends started to leave the lounge at approximately 11:00 or 11:30 p. m., when his confrontation with the complaining witness, Weedman, took place. Kwallek said that he was attempting to break up a verbal argument between Patterson and Weedman when Weedman struck him with an object, which Kwallek thought was a flashlight, and as a result of the blow he received a cut lip. Kwallek testified that he then hit Weedman with his fist, perhaps twice, but that he administered no other blows, nor did he, at any time, kick the complaining witness.
The defense called Bob Patterson, who had accompanied Kwallek to the Torchlight Lounge on October 20, 1977. Patterson testified that Weedman's swing at the defendant served as the provocation for the fight. Patterson related that he observed the defendant to have a swollen lip the next morning.
The jury found the defendant guilty of aggravated assault and battery and he was sentenced to serve from three to six months in the County Jail.
Prior to trial, the defendant filed a motion in limine asking the court for an order which would do two things:
1. Exclude evidence that Charles A. McKenzie, who was a participant in the altercation resulting in charges against defendant and McKenzie, had pleaded guilty or otherwise admitted his involvement. As grounds for the requested exclusion, defendant urged irrelevancy, but, if relevant, the violation of Rule 403, W.R.E. 2
2. Exclude evidence of the defendant's character unless first placed in issue by the defendant, all in compliance with the provisions of Rule 404(a)(1), W.R.E. 3 This motion was overruled. During trial, therefore, the prosecution elicited testimony from McKenzie that he had pleaded guilty to the same offense as that with which the defendant was charged. Furthermore, the issue of the defendant's propensity for trouble-making was inquired into. Timely objections were lodged to these inquiries but the objections were overruled by the court.
Appellant brings these following issues to our attention for review:
1. Did the trial court err in allowing a witness to testify that he had pleaded guilty to a charge similar to that for which the appellant was on trial and which arose out of the same criminal transaction?
2. Did the trial court err in allowing the prosecuting attorney to question the appellant about past misconduct unrelated in time to the crime for which he was charged?
3. Did the trial court err in denying the appellant's motion for judgment of acquittal at the close of the State's case and at the close of all evidence?
4. Did the trial court err in denying appellant's motion for a new trial based on newly discovered evidence?
Did the trial court err in allowing a witness to testify that he had pleaded guilty to a charge similar to that for which the appellant was on trial and which arose out of the same criminal transaction ?
The question must be divided into two parts:
(1) Was error committed in admitting evidence of a third party's guilty plea to a charge arising out of the same incident? and if the answer is in the affirmative,
(2) Was the error prejudicial?
We will hold that the admission of the evidence was prejudicial error and we will reverse.
On direct examination of the witness McKenzie, the prosecuting attorney precipitated the following exchange:
is that when two persons are indicted for separate offenses growing out of the same circumstance, the fact that one has pleaded guilty is inadmissible against the other. See, Wharton, Criminal Evidence, 12th Ed., § 439. This is so because competent evidence against one person charged with an offense is not necessarily admissible against another charged with the same offense. Furthermore, each person charged with an offense must be tried upon evidence tending to show his guilt or innocence. 48 A.L.R.2d p. 1017. For a prosecutor to argue or elicit testimony disclosing that another has pleaded guilty is to argue from facts either not in evidence or facts which are inadmissible in evidence. In State v. McCarthy, Mo.App., 567 S.W.2d 722 (1978), the rationale of the rule holding the admission of such evidence to be prejudicial error is said to be that it is irrelevant and incompetent because it suggests that since the confederate is guilty, the defendant must also be guilty and this inference violates the defendant's right to have his trial on its own merits. 4
As a general proposition, courts have found that prejudice results where the accused made timely objection 5 and has requested curative action by the trial court which refused or failed to eliminate the disclosure.
In this case, the defense twice called the court's attention to the impropriety of admitting testimony concerning witness McKenzie's plea of guilty. The objections were timely made and the court was fully apprised of the defendant's position on the issue and should have been alerted to the legal implications involved. Since the court twice refused to prevent the disclosure, it is improbable that the Judge would have either directed the jury to disregard the testimony or have given a curative instruction had they been requested. The probability is, therefore, that the jury was left with the impression that, since the total evidence connected the defendant with McKenzie in the...
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Duke v. State
...guilty plea was inadmissible under Mazurek v. State, 10 P.3d 531 (Wyo. 2000), Ross v. State, 930 P.2d 965 (Wyo.1996), and Kwallek v. State, 596 P.2d 1372 (Wyo. 1979). He insists that counsel's failure to object to that testimony deprived him of his right to have a trial on its own merits an......
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...growing out of the same circumstance, the fact that one has pleaded guilty is inadmissible against the other. See Kwallek v. State, 596 P.2d 1372, 1375-1376 (Wyo.1979). Also, the State admits that prejudice occurs when the accused timely objects and requests curative action by the trial cou......
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