Rogers v. State

• Court: Wisconsin Supreme Court
• Writing for the Court: DAY
• Citation: Rogers v. State, 287 N.W.2d 774, 93 Wis.2d 682 (Wis. 1980)
• Decision Date: 07 February 1980
• Docket Number: No. 77-289-CR,77-289-CR
• Parties: Samuel ROGERS, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

Page 774

287 N.W.2d 774

93 Wis.2d 682

Samuel ROGERS, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 77-289-CR.

Supreme Court of Wisconsin.

Submitted on Briefs Dec. 5, 1979.

Decided Feb. 7, 1980.

Howard B. Eisenberg, State Public Defender, Mel S. Johnson and Marcus T. Johnson, Asst. State Public defenders, for plaintiff-in-error.

Bronson C. La Follette, Atty. Gen., and Pamela Magee-Heilprin, Asst. Atty. Gen., for defendant-in-error.

DAY, Justice.

The principal question presented for review is whether it was an abuse of discretion for the trial court to grant the prosecution's motion In limine prohibiting the defendant from cross-examining the complaining witness on the witness's failure to appear at two prior trial dates. We conclude that it was not and affirm.

The plaintiff-in-error (hereinafter the defendant), Samuel Rogers, was found guilty of armed robbery pursuant to sec. 943.32(1)(b) and (2), Stats. (1973) after a trial by jury and was sentenced to an indeterminate term of not more than twenty-five years in prison on December 4, 1975. A motion for a new trial was submitted to the trial court and by order dated February 18, 1977, the motion was denied. Writs of error were issued by this Court to review the judgment and order.

Shortly after 1:05 a. m. on August 23, 1975, Samuel Robinson, a cab driver, was robbed at gunpoint of forty-six dollars from a passenger he had picked up on the 2700 block of North Third Street in Milwaukee.

Mr. Robinson identified the defendant at the trial as the man who robbed him. He testified that he had the opportunity to observe the defendant as he approached the cab and entered the back seat. Mr. Robinson also glanced back at the defendant a number of times during the six block trip. The defendant pulled a revolver, pointed it at Mr. Robinson's head and said, "Give me your money". Mr. Robinson handed over his wallet and the defendant got out of the cab and ran away.

After giving the police a description of the man who robbed him, Mr. Robinson went to the police station and identified the defendant from a series of pictures shown to him. He testified that the defendant was wearing a short sleeved blue flowered shirt and a pair of blue jeans at the time of the robbery.

The trial was originally scheduled for November 10, 1975 but Mr. Robinson failed to appear. The case was adjourned until November 11, 1975 but once again Mr. Robinson did not show up. The trial court ordered that Mr. Robinson be taken into custody and that bail be set at $5,000 with sureties. The trial was rescheduled for December 2, 1975. It was on that date that Mr. Robinson finally appeared to testify.

Prior to the commencement of the trial, the prosecution made a motion In limine requesting the court to order defense counsel not to question Mr. Robinson about his failure to appear on the previous two trial dates. The assistant district attorney asserted that to allow cross-examination on the subject would be unfair and unnecessarily prejudicial. The trial judge concluded that any reference to Mr. Robinson's earlier failures to appear was completely irrelevant to the question of credibility. Defense counsel was instructed not to refer to the subject on cross-examination.

Nevertheless, the subject did arise during trial and outside the presence of the jury the trial judge questioned Mr. Robinson as to whether he ever told the district attorney that he did not wish to testify in the case. Mr. Robinson said that he did not make any such statement to the prosecutor. ¹

At trial, the defendant attempted to establish an alibi during the armed robbery. The defendant testified that he was home playing cards on the evening of the robbery. He produced four other witnesses who testified that they were with him that evening playing cards. Those witnesses included his father, his nephew, and two friends. According to these witnesses, they played cards with the defendant from 10:30 p. m. until approximately 2:00 a. m. on August 23, 1975. The defendant did not leave the house after the card game had begun.

Detective Hugh Thompson of the Milwaukee Police Department arrested the defendant at his home in the early morning hours of August 23, 1975. The defendant's father answered the door and told Detective Thompson that his son had been home sleeping all evening. As the defendant was being advised of his right to remain silent, he told the arresting officer that he had been home sleeping all night. The defendant was told to get dressed, and he put on a long sleeved green shirt with white flowers and green slacks. The defendant did not mention to the police officers that he had been playing cards.

Two police officers who had been patrolling in the area of the robbery testified that they saw the defendant on the street at 1:30 a. m. on the evening of the robbery. Both officers testified that the defendant was wearing a multiprint flowered shirt with long sleeves, with a green vest and green trousers.

The defendant argues that it was reversible error for the trial judge to prohibit defense counsel from cross-examining Mr. Robinson regarding his absence from the earlier scheduled trial because the evidence sought to be elicited was relevant to Mr. Robinson's credibility as a witness. If the evidence was relevant, as defined by the statutory rules of evidence, it was admissible, unless its introduction was otherwise prohibited by another rule or the constitutions of the United States or Wisconsin. Sec. 904.02, Stats. (1973). ²

Relevant evidence is defined as ". . . evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Sec. 904.01, Stats. (1973); State v. Sarinske, 91 Wis.2d 14, 44, 280 N.W.2d 725 (1979). The criterion of relevancy is whether the evidence sought to be introduced would shed any light on the subject of inquiry. Zdiarstek v. State, 53 Wis.2d 420, 428, 192 N.W.2d 833 (1972). Evidence is relevant when it indicates that a fact in controversy did or did not exist because the conclusion in question may be logically inferred from the evidence. Any fact which tends to prove a material issue is relevant. Oseman v. State, 32 Wis.2d 523, 526, 145 N.W.2d 766 (1966), Citing Anderson, 1 Wharton's Criminal Evidence, § 148 (12th Ed.).

Impeaching the testimony of a witness tends to make the factual assertions of the witness less probable than they would be without the impeaching testimony. 3A Wigmore, Evidence, § 874, (Chadbourn rev. 1970). In addition, each item of evidence offered to discredit a witness "must first pass the gauntlet of the relevancy principles; but it may also be obnoxious to some principle of auxiliary policy which may after all exclude it." Wigmore, Supra, § 877.

The proper standard for the test of relevancy on cross-examination is not whether the answer sought will elucidate any of the main issues in the case but whether it will be useful to the trier of fact in appraising the credibility of the witness and evaluating the probative value of the direct testimony. McCormick, Evidence, § 30 (2d Ed. 1972). The scope of cross-examination allowed for impeachment purposes is discretionary with the trial court. Chapin v. State, 78 Wis.2d 346, 352, 254 N.W.2d 286 (1977); State v. Becker, 51 Wis.2d 659, 667, 188 N.W.2d 449 (1971). This Court adheres to the rule that any material or relevant matters may be inquired into on cross-examination and that cross-examination is not limited to the scope of direct examination. McClelland v. State, 84 Wis.2d 145, 155, 267 N.W.2d 843 (1978); See, Boller v. Cofrances, 42 Wis.2d 170, 166 N.W.2d 129 (1969). An abuse of discretion warranting reversal will not be found unless the ruling of the trial judge restricting cross-examination impinges upon a substantial right of a party. Sec. 901.03(1), Stats. (1973) provides in relevant part, that "(e)rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected . . . ."

Professor McCormick has summarized the five main lines of attack on the credibility of a witness. He states:

"The first, and probably the most effective and most frequently employed, is an attack by proof that the witness on a previous occasion has made statements inconsistent with his present testimony. The second is an attack by a showing that the witness is biased. . . . The third is an attack upon the character of the witness. The fourth is an attack by showing a defect of capacity in the witness to observe, remember or recount the matters testified about. The fifth is proof by other witnesses that material facts are otherwise than as testified to by the witness under attack." McCormick, Law of Evidence, § 33 (2d Ed. 1972). See also, Anderson, 2 Wharton's, Criminal Evidence, § 430 (13th Ed. 1972).

Unless the testimony sought to be elicited on cross-examination was relevant to the issue of Mr. Robinson's credibility on one of the above mentioned grounds, the trial court properly excluded the evidence.

The defendant contends that Mr. Robinson's failure to appear on the first two scheduled trial dates were specific acts of misconduct reflecting on the witness's character for truthfulness and is thus admissible under sec. 906.08(2), Stats. (1973). ³ This type of conduct standing alone does not reflect on the truthful character of the witness. The failure to appear does not show a tendency to lie or fabricate on the part of the absent witness. It is true that the conduct of the witness, may indicate, among other things, irresponsibility, fear of courts, or of the defendant. There may also have been a number of legitimate reasons for the non-appearance. The witness did not make any assertion at trial that in any way conflicted or which would be deemed inconsistent with his prior conduct with regard to his non-appearance. Standing...