Roby v. State

• Decision Date: 14 December 1978
• Docket Number: No. 4926,4926
• Citation: 587 P.2d 641
• Parties: Howard ROBY, Jr., Appellant (Defendant below), v.TI The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 641

587 P.2d 641

Howard ROBY, Jr., Appellant (Defendant below) v.TI The STATE of Wyoming, Appellee (Plaintiff below).

No. 4926.

Supreme Court of Wyoming.

Dec. 14, 1978.

Ronald P. Jurovich, Thermopolis, and James H. Sperry, Worland, for appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Allen C. Johnson, Asst. Atty. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

Following a jury trial, the defendant, Roby, was convicted of delivering a controlled substance, marihuana, in violation of § 35-7-1031(a)(ii), W.S.1977. On appeal, he argues that he was denied a fair trial by reason of certain prosecutorial improprieties, and that the evidence was insufficient to sustain the conviction. Having determined that the prosecution engaged in improper cross-examination of the defendant and his father, we will reverse the defendant's conviction.

The charge against the defendant was based on an alleged purchase of two lids of marihuana by a Park County Sheriff's Office informer at defendant's home during the lunch hour on January 5, 1977. The defense was an alibi to the effect that the defendant was not home at the time of the alleged offense, but was having lunch at a drive-in with his father and a friend, Tim Worthington. In the process of preparing for this transaction, the informer, the sheriff, the sheriff's deputy and the prosecuting attorney met at a location near the trailer court where defendant lived. The informer and his vehicle were searched for marihuana, his own money was taken, and he was given $30.00 with which to make the buy. According to the informer, he then went to the defendant's mobile home and purchased two lids of marihuana from the defendant for $30.00. The witness further testified that the defendant's wife and Tim Worthington were present during the transaction.

On July 26, 1977, a pretrial conference was held in accordance with Rule 19, W.R.Cr.P., at which pretrial memorandums were submitted by opposing parties. The defendant did not attend this conference. The defendant's memorandum listed a "Meal ticket from Geyser Drive-In" as an exhibit. The court's report on the conference does not specifically mention this or any other exhibit as being either received in evidence or agreed upon for any purpose, but simply states:

"Any additional witnesses or exhibits together with the gist of the testimony of the witnesses shall be furnished opposing counsel not later than ten days prior to time of trial."

On appeal, the defendant urges the following as denying him a fair trial:

1. The prosecutor's cross-examination of the defendant concerning the existence of a lunch receipt for January 5, 1977.

2. The presence at the prosecutor's table, after the invocation of the rule of witness exclusion, of the sheriff who was also a witness in the case.

3. Personal participation of the prosecutor in the case investigation.

4. Attempted impeachment of a defense witness by reference to a telephone conversation between the prosecutor and the witness.

We are mainly concerned with the first alleged impropriety, but will discuss the remaining assignments of error since they are likely to arise in the course of a new trial. See, Goodman v. State, Wyo., 573 P.2d 400, 413 (1977).

At trial, the defendant took the stand on his own behalf and testified that he was having lunch at the Geyser Drive-In at the time of the alleged drug transaction. On cross-examination, the prosecutor asked him if he had any receipts to show that he was at the Geyser Drive-In, in response to which the defendant said he did not have a lunch receipt for January 5, 1977. When the prosecutor undertook to pursue the matter further concerning the existence of such a receipt, the defense attorney objected on the ground and for the reason that such further inquiry was beyond the scope of direct examination. The objection was overruled and the prosecutor continued to delve into the matter. The testimony elicited showed that the defendant's father had taken a receipt to the Drive-In and had it dated January 5, 1977, but that the defense had decided not to use it because the date probably wasn't correct. The defendant denied having had anything to do with causing the receipt to be so dated. The document in question was never introduced into evidence and the prosecution offered no evidence linking the dating of the receipt with the defendant. The defendant's father later testified that he had the receipt dated for income tax purposes. Without success, defendant raised the issue of the prejudicial effect of questions inquiring into the dating of the receipt in his motion for acquittal or a new trial. In argument to the court on this motion, the prosecutor pointed to the "failure to be able to explain actions basically maybe on the part of Mr. Roby, Sr., and, I think, on the part of Howard Roby, Jr." as justifying the jury's rejection of the alibi defense. The trial court determined that the "evidence concerning a meal receipt was probably within the province of the jury and up to them to determine."

We have held that a defendant who has voluntarily testified may be cross-examined the same as any other witness and the latitude of cross-examination is largely within the discretion of the court. Porter v. State, Wyo., 440 P.2d 249, 250 (1968). Cross-examination of a witness is not, however, without its limitations. When cross-examination is not confined to matters testified to in the examination in chief, it must be limited to those things which affect the credibility of the witness. See, Johnson v. State,8 Wyo. 494, 508, 58 P. 761, 764 (1899).

Generally, the prosecution may impeach a witness' credibility by presenting competent evidence of an attempt to fabricate evidence. State v. Thomas, 35 N.C.App. 198, 241 S.E.2d 128, 131 (1978); and 98 C.J.S. Witnesses § 467 (1957). It is improper, however, for the prosecution to leave the jury with an inference of such conduct on the part of the defendant under the guise of impeachment, without substantiating it by evidence tending to prove that the defendant in fact attempted such fabrication. See, State v. Stevens, 93 Idaho 48, 454 P.2d 945, 949 (1969). As stated in State v. Burris, 194 Iowa 628, 190 N.W. 38, 41 (1922)

" . . . (I)t is not within the province of a prosecutor, under the pretense of affecting the credibility of the witness, to propound interrogatories without any pretense or attempt to establish the truthfulness of the matters suggested by such inquiry and solely to cast insinuations upon the defendant. To open the doors to the cross-examination of a defendant by a proceeding of this character would leave him subject to insinuation and suggestion of gross misconduct, without any semblance of basis to support the same and with limitations fixed only by the extent of the imagination of the interrogator and his audacity in propounding the inquiries. It is no answer to say that the appellant was not prejudiced by this cross-examination because he answered the questions in the negative, and no attempt was made by the state to prove the truthfulness of the matters suggested in the inquiry. The credibility of witnesses is not to be tested by the suggestion of misconduct on cross-examination, with no pretense that such misconduct exists in fact."

See, State v. Singleton, 66 Ariz. 49, 182 P.2d 920, 930 (1947); A.B.A. Standards Relating to The Prosecution Function, § 5.7; and 6 Wigmore, Evidence, § 1808, at 371 (Chadbourn rev. 1976). This is not to say that in every case the prosecution must have supporting evidence available before asking a question and then actually introduce such evidence if the witness denies the conduct. See, United States v. Harris, 7 Cir., 542 F.2d 1283, 1306-1308 (1976). It is to say, however, that where the question posed is highly prejudicial with regard to its implications, a duty devolves upon the examiner to then offer evidence showing the factual predicate if the response of the witness is unfavorable.

Evidence of his attempt to fabricate evidence is particularly harmful to a defendant since it is an incriminating circumstance inconsistent with innocence and tending to show a consciousness of guilt. State v. Bruner, 78 Wyo. 111, 319 P.2d 863, 869 (1958). Generally, evidence of an attempt by a third person to fabricate evidence is not admissible on the issue of the defendant's guilt, unless there is evidence connecting the defendant with that attempt. Annot., "Third Person's Attempt to Influence Witness," 79 A.L.R.3d 1156, 1162, § 3 (1977). A mere family relationship between the defendant and the third person is not adequate proof of this connection. Saunders v. State, 28 Md.App. 455, 346 A.2d 448, 79 A.L.R.3d 1147 (1975).

In this case, the prosecutor's cross-examination and recross-examination of the defendant and his father had the effect of suggesting to the jury that there had been an effort to bolster the defendant's alibi through the fabrication of evidence, yet the prosecutor offered no evidence showing the defendant to have been involved in any such nefarious scheme. A factual circumstance of this nature, if proven, is evidence of guilt; thus, the prosecutor was charged with establishing the factual predicates for his questions before pursuing this course of examination, and this he failed to do. Here, the jury was left with the mere insinuation of improper conduct on the part of the defendant. The prosecutor's tactic cannot be sanctioned upon the ground that the examination was aimed at testing the defendant's credibility, because there was a failure to support the insinuations with competent evidence. We hold, therefore, that the court committed reversible error in permitting, over timely objection, the prosecutor's cross-examination upon the subject of the father's procurement of a lunch receipt, without first requiring an assurance that the...