Lewis v. State

• Decision Date: 22 May 1970
• Docket Number: No. 1112,1112
• Citation: 469 P.2d 689
• Parties: Patricia Ann LEWIS, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 689

469 P.2d 689

Patricia Ann LEWIS, Appellant, v. STATE of Alaska, Appellee.

No. 1112.

Supreme Court of Alaska.

May 22, 1970.

John W. Hendrickson, of Hendrickson & Rowland, Anchorage, for appellant.

Douglas B. Baily, Dist. Atty., J. Justin Ripley, Asst. Dist. Atty., Anchorage, for appellee.

OPINION

Before BONEY, C. J., DIMOND, RABINOWITZ, and CONNOR, JJ.

CONNOR, Justice.

Appellant was tried and found guilty of the charge of uttering a forged check contrary to AS 11.25.020. ¹

The pertinent facts of this case are these:

On October 21, 1968, the grand jury returned an indictment against appellant for uttering a forged check. The import of the charge was that appellant had, on or about July 13, 1968, passed a check she knew to be forged to Rudolph's Corsetry and Lingerie Shop in payment for a hostess gown. Trial proceeded on January 14, 1969, the state presenting a witness who testified that Miss Lewis had been positively identified from mug photos by the saleslady on duty at the dress shop at the time of the alleged uttering. The same salesclerk testified that she had positively observed appellant signing the check in question. The state also produced a witness who testified that the check in question was one of a number of blank checks that had been either lost or stolen from her purse in the summer of 1968. She further testified that she had neither signed nor authorized anyone else to sign these checks. The jury returned a guilty verdict on January 17, 1969.

Before trial and pursuant to a stipulation between the district attorney and defense counsel, appellant submitted to a lie detector test, which was a administered on January 11, 1969. The terms of the stipulation, in substance, were that if it was shown by the test that appellant had told the truth in her denial of forging and uttering the check, charges against her would be dismissed. If, however, the test indicated that she had lied, the results of the test would be admissible into evidence. If the test was inconclusive, the parties were to assume their respective positions as if no test had been administered.

The attempt to administer the test was unsuccessful, owing to the physical condition of appellant. Corporal Bivens, who conducted it, was nevertheless allowed to testify as a defense witness about his attempt to test appellant, her cooperativeness, and the inability to perform the test. Neither the court nor the district attorney objected to the proffered testimony. The district attorney then conducted a cross-examination of Corporal Bivens. The trial court later ruled sua sponte that neither counsel could comment on this testimony in their final arguments to the jury, and even forbade them to mention that the witness had been present inthe courtroom. Defense counsel made a timely objection to this ruling.

During the course of the trial, counsel for appellant made a motion to have the court appoint an expert witness on the subject of handwriting comparison, which motion was granted. After the witness, Marshall T. Jones, was called and had been cross-examined on his qualifications, the court ruled that he was not qualified for the purposes of this trial.

Appellant raises ten specifications of error in her brief. Of these, only five have been sufficiently dealt with to merit the attention of the court. ² Of the remaining five questions it is necessary to deal with only two for a proper disposition of this case. These are as follows: (1) Did the trial court err when it refused to allow defense counsel the right to comment upon the testimony of Corporal Bivens? (2) Did the trial court err when it refused to qualify and allow Marshall T. Jones, the handwriting expert, to testify?

Restrictions on Appellant's Closing Argument

Appellant argues that the trial judge's preclusion of comment on the testimony of Corporal Bivens was in contravention of her right to the effective assistance of counsel under Article I, Section 11, of the Alaska Constitution. ³

The basic rule is that an accused, by virtue of his constitutional right to be heard by counsel, is entitled to have counsel comment upon evidence submitted at trial. ⁴ It is only when evidence is irrelevant or not at issue in the case that comment may be forbidden. ⁵

The court below allowed Corporal Bivens to testify as to the inconclusive nature of the polygraph test, and counsel for the state was allowed to cross-examine the witness. At no point in the course of the trial did the state object to the testimony of Bivens. The court ruled, on its own motion, that neither counsel would be allowed to comment upon the testimony nor even to allude to the fact that Bivens had been present in the courtroom.

The state does not argue that appellant waived her right to have counsel argue on her behalf in summation. The state does contend that Bivens' testimony was irrelevant and, therefore, that the trial judge acted properly in disallowing comment on it. Smith v. State, 290 P.2d 170 (Okl.Cr.1955); Holmes v. United States, 84 U.S.App.D.C. 168, 171 F.2d 1022 (1948). In Smith counsel was not allowed to comment on information from a companion case which was mistakenly read to the jury, the court reasoning that since this evidence had no bearing on the charges brought against the defendant, it was not within the issues to be decided. In Holmes, the court refused to allow counsel to argue the sociological aspects of a rape case.

Failure by an opponent to object to evidence which might be inadmissible can result in a waiver of the objction. Hammonds v. State, 442 P.2d 39 (Alaska 1968); Jefferson v. City of Anchorage, 374 P.2d 241 (Alaska 1962); I Wigmore, Evidence § 18 (1940). Nevertheless, the trial judge may in certain situations withdraw such evidence from the jury's consideration even after it has once been admitted. McCormick, Evidence § 55 (1954), at 130. He is permitted to do this with certain types of evidence which is irrelevant. Whether the evidence here was relevant depends on whether it would have tended to establish a material proposition. Mitchell v. Knight, 394 P.2d 892 (Alaska 1964). The only purpose of which we can conceive for the admission of the testimony of Corporal Bivens would be that appellant's willingness to submit to the polygraph test would be evidence of her innocent state of mind or of her truthfulness when she testified in her own defense.

Evidence of the conduct of the accused is often admissible because it may indicate a consciousness of guilt, thus permitting an inference that the accused committed the crime of which he is charged. II Wigmore, Evidence § 273 et seq. (1940). It has been urged by some authorities that conduct of the accused which exhibits an innocent state of mind should, by a parity of reasoning, be admissible. Many courts have been resistant to the reception of such evidence of an innocent mind out of fear that it can be too easily feigned or the product of fabrication. II Wigmore, Evidence § 293 (1940). We need not decide that question in this instance. Even if a right to put in such evidence is assumed, it was not error to exclude from the jury's consideration the testimony of Corporal Bivens. The result of his attempted test was inconclusive, for reasons which had nothing to do with the question of truthtelling by appellant. It tended neither to prove nor disprove appellant's claim. Her mere willingness to submit to a polygraph examination does not evidence innocence, because there are many other possible explanations which would account for it. We do not see how this evidence could have established a proposition material to the factual issues to be tried. Because the evidence was irrelevant, it was not error in the circumstances of this case to withdraw it from consideration of the jury and to bar reference to it by counsel. ⁶

Qualifications of the Witness as Handwriting Expert

There is no consensus as to what qualifies a witness to testify as an expert in the field of handwriting analysis. ⁷ Every imaginable quantity and quality of 'expertise' has, in one court or another, been determined sufficient. General guidelines, however, have been established to aid us in determining the qualifications of expert witnesses.

It is not necessary that the witness devote full time to the subject matter of his expertise; it is sufficient that he has the requisite intelligence and reasonable contact with the subject matter to allow him to demonstrate his expertise with reasonable skill. First Galesburg National Bank & Trust Co. v. Federal Reserve Bank, 295 Ill.App. 524, 15 N.E.2d 337 (1938).

This court has previously had the opportunity to consider what constitutes a properly qualified witness. In Crawford v. Rogers, 406 P.2d 189 (Alaska 1965), the question was asked whether a game guide and pilot of some 22 years' experience as owner of a charter flying service, who had twice experienced accidents similar to the one in the case in which he was testifying, could testify as an expert, notwithstanding the fact that he had not seen the plane accident. The following statement is enlightening:

'The record bears out the judge's decision that Gay's opinion as to the cause of the crash was within the scope of Gay's special knowledge, skill and experience. It does not detract from the soundness of the judge's decision that Gay had never been employed commercially or officially to investigate airplane crashes or that it was not shown that he was recognized by others as an expert on such matters.' 406 P.2d at 192.

The court went on to set down the following rule for determining the eligibility of a witness to testify as an expert:

'The true criterion in determining whether one qualifies as an expert witness and whether his opinion is admissible is not whether he employs his knowledge and skill professionally or commercially. The true criterion is whether the jury can receive appreciable help from this particular person on this particular subject.' (...