Pearson v. State

• Decision Date: 15 May 1991
• Docket Number: No. 90-96,90-96
• Citation: 811 P.2d 704
• Parties: James PEARSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 704

811 P.2d 704

James PEARSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 90-96.

Supreme Court of Wyoming.

May 15, 1991.

Rehearing Denied June 14, 1991.

Leonard D. Munker, State Public Defender, Gerald M. Gallivan, Defender Aid Program, and Deborah A. Gabriel, Student Director, Defender Aid Program, argued, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., argued, and Karen A. Byrne, Sr. Asst. Atty. Gen., for appellee.

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

CARDINE, Justice.

James Pearson challenges his forgery conviction. The issues he brings concern the admission of evidence over objection which he contends violated W.R.E. 404, the State's closing argument, and his refused instructions concerning eyewitness identification.

We affirm.

Pearson frames the issues as:

"I. Whether the court below erred when it admitted evidence of Mr. Pearson's prior bad acts in violation of W.R.E. 404(b) when an alibi witness was improperly cross examined.

"II. Whether the court below erred by allowing the prosecutor to discuss mathematical probabilities in his closing argument.

"III. Whether the court below erred when it refused to give requested cautionary jury instructions regarding the limitations of eyewitness testimony and the factors to consider in assessing the reliability of eyewitness testimony."

About 3:00 p.m. on August 16, 1989, Ray Spearman discovered that his briefcase was missing from his truck parked at a Casper savings and loan. Inside the briefcase were various business papers and two checkbooks. One of the checkbooks was for his personal checking account at Hilltop National Bank. A man found the briefcase that evening and returned it to Spearman two days later. Although the Hilltop checkbook remained in the briefcase, Spearman discovered one check had been removed.

Sometime between 4:20 p.m. and 4:30 p.m. on August 16, a 1986 blue Z 28 Camaro entered one of the drive-up lanes at Hilltop Bank. A man identified as Pearson was driving the car. The missing check, made payable to Spearman for $500, was sent from the car through a pneumatic tube to the teller booth located about 25 feet from the drive-up lane. The teller asked the driver if he had a driver's license. After the driver said he did not have one, the teller asked him if he was Spearman. The driver indicated that a passenger in the front seat of the car was Spearman. The passenger was slumped in the seat, and the teller could not see the passenger as well as she could see the driver. The teller retrieved and examined Spearman's signature card. Because the teller was not certain that the signatures on the check and the card matched, she went to get her supervisor. When she returned to the teller booth, the car had left.

The teller gave a description of the driver and the car, including the model and year, to the police. On August 23, 1989, a Casper police detective spotted a car matching the description the teller had given. The detective observed Pearson driving the vehicle and followed it to a convenience store and to Pearson's home. Through a license plate check, the detective determined that the vehicle was registered to Pearson. The detective prepared a photo lineup with eight pictures of the faces of similar looking men. One of the men was Pearson. He then took a photograph of the vehicle. The detective went to the bank and showed the photo lineup to the teller. The teller identified Pearson from the lineup without any help or suggestion from the detective. The teller identified the car in the photograph as the one in which a man had attempted to pass the forged check. Pearson was subsequently charged with forgery under W.S. 6-3-602.

Pearson pled not guilty and utilized an alibi defense. At the trial, the State's witnesses included the teller who identified the defendant. She testified that her attention was drawn to the car because she was interested in Z 28 Camaros and had once owned one similar to Pearson's. She noticed the silver striping on it and the nearly new condition of the car. She was able to identify the model and year of the car as 1986 because she was familiar with the design changes in the car due to her interest in Camaros. Pearson is a tall black man whose head rose above the headrest as he sat in the car. These physical features contributed to her certainty that the defendant was the driver of the vehicle. She also testified that she had received training in fraud detection including making close observations of persons.

Two people testified as alibi witnesses for Pearson. During the cross-examination of one witness, the State asked him:

"Q: [By the State]: Isn't it true * * * that you have been an alibi witness for the defendant before?

"A: Yes."

Pearson objected:

"[Pearson's counsel]: Objection, I don't see the relevance, Your Honor, has nothing to do with this case before the court.

"[The State]: Shows bias, goes to credibility.

"The Court: I will overrule the objection."

Pearson also presented a witness, a friend who worked at the bank. She testified that she observed a different vehicle at the drive-up lane than the one owned by Pearson at the time the incident occurred. The only other witness for Pearson was also employed at the bank. He testified that, sometime after the check passing incident, Pearson's friend reported to him that the vehicle she had seen was not a Camaro.

In its closing, the State discussed the credibility of the teller's eyewitness identification. In summarizing her credibility, the State argued:

"That is what tells you that [the teller] is to be believed, because her testimony is supported by all of the other evidence. * * * She picks out the person in that line up that happens to be incredibly tall, that happens to own a car. I guess the million dollar question is, folks, * * * how many black men in town that are that tall, that you think own that kind of car like that. That tells you that her identification is correct."

Pearson objected at this point contending the State was making a mathematical type argument. The objection was overruled, and the State continued its closing argument by reiterating:

"What are the odds in Casper, Wyoming, that there is another very tall, black man with a Chevrolet Camaro Z 28, that is a 1986, she recognized the car as a 1986, what are the odds? And then she looked at it and says, that is the car. That is the one I saw."

Pearson's closing argument attacked the credibility of the teller's identification.

The jury found Pearson guilty of forgery. He received a sentence of three to five years in the state penitentiary.

Pearson claims that the State's questioning of one of his witnesses concerning that witness having previously provided an alibi for Pearson violated W.R.E. 404(b). The State argues that we should analyze this issue under our plain error standard of review because of the way Pearson objected to the question. When an objection is inadequate to alert the trial court to a problem, the admission of evidence must rise to plain error before it will be considered by this court. Schmunk v. State, 714 P.2d 724, 739 (Wyo.1986). Pearson objected to the question on the basis of relevancy. Admission of this evidence and evidence under W.R.E. 404(b) is a question of relevance. See State v. Ellis, 208 Neb. 379, 303 N.W.2d 741, 749 (1981). Pearson's objection was sufficient to raise the issue before this court. Plain error analysis is unwarranted for this issue.

W.R.E. 404(b) states:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

The question concerning providing a prior alibi and the witness's affirmative response were not admitted "to prove the character of [Pearson] in order to show that he acted in conformity therewith." W.R.E. 404(b). In response to the objection, the prosecutor stated the question went toward the bias of the witness, and thus credibility of the witness was involved. Pearson argues that "[t]he clear implication of this question was that the defendant had been in trouble * * * before." However, he does not elaborate on this statement. The line of questioning when Pearson made the objection concerned reasons for the witness to have a bias in favor of Pearson. The testimony had nothing to do with Pearson's character.

Attempts to demonstrate bias through cross-examination are subject to the wide discretion of the trial court in determining the admissibility of evidence. Loomer v. State, 768 P.2d 1042, 1048 (Wyo.1989). The court's discretionary ruling on evidence will not be upset absent a clear abuse of discretion. Nimmo v. State, 603 P.2d 386, 392 (Wyo.1979). The appellant has the burden to demonstrate that an abuse of discretion exists. Id. A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. Mayer v. State, 618 P.2d 127, 131 (Wyo.1980).

We cannot conclude that the question and answer resulted in a violation of W.R.E. 404(b). The fact that a witness's bias might be tied to the defendant in a manner that he would prefer not be divulged before the court does not necessarily implicate the restrictions of 404(b). Bias can be shown from having been with a defendant in jail without invoking 404(b) concerns. Stephens v. State, 252 Ala. 183, 40 So.2d 90, 92 (1949); 2 C. Torcia, Wharton's Criminal Evidence § 406 at 674 (14th ed. 1986). Similarly,...