Sims v. State, 4362

• Decision Date: 17 January 1975
• Docket Number: No. 4362,4362
• Citation: 530 P.2d 1176
• Parties: Lyle Lavern SIMS, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1176

530 P.2d 1176

Lyle Lavern SIMS, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4362.

Supreme Court of Wyoming.

Jan. 17, 1975.

Robert J. Stephens, Jr., Billings, Mont., William Norman, Gillette, and Alan B. Johnson, Cheyenne, for appellant.

David B. Kennedy, Atty. Gen., Jerome F. Statkus, Asst. Atty. Gen., Cheyenne, and Daniel J. Morgan, County and Pros. Atty., Gillette, for appellee.

Before McEWAN, GUTHRIE, McCLINTOCK and RAPER, JJ., and J. REUEL ARMSTRONG, District Judge.

RAPER, Justice.

The appellant-defendant was found guilty by a jury and sentenced to the Wyoming State Penitentiary for the crime of unlawful possession with intent to deliver a controlled substance, lysergic acid diethylamide, commonly known as LSD, in violation of § 35-347.31, W.S.1957, 1973 Cum.Supp. He asks three questions in this appeal:

1. Did the trial court improperly limit defense counsel's cross-examination of the State's principal witness relating to prior inconsistent statements made by the witness under oath?

2. Did the trial court err in failing to grant a continuance on the basis of surprise when the State's principal witness testified at variance with prior sworn affidavits, upon which defense counsel has relied and thereby denied the defendant of effective assistance of counsel?

3. May 'intent to deliver' as an essential part of the alleged crime be inferred from the evidence adduced at trial, without benefit by the jury of any specific instructions on the intent?

To support a search a warrant of a trailerhouse occupied by defendant and another by the name of Strait, witness Schwartz on May 14, 1973, made an affidavit in which he narrated the circumstances of his buy of LSD, upon which this prosecution is based. Later, on May 19, 1973, Schwartz made another affidavit for the purpose of supporting a criminal complaint for arrest warrant, to show probable cause. On May 18, 1973, Strait made an affidavit implicating himself and the defendant as financial partners in the drug sale and stated that the money was to be divided between them. The May 19 affidavit of Schwartz and the May 18 affidavit of Strait were attached to the complaint and together constituted probable cause for the issuance of a warrant for the arrest of defendant.

At the trial of the case, Schwartz testified that when he went to the trailerhouse occupied by the defendant and Strait, Strait went to a refrigerator and brought out a baggie full of LSD tablets, sold $20 worth to Schwartz, after which Strait sat down at a table and handed to the defendant $10, Strait keeping $10. In neither of Schwartz's May 14 or May 19 affidavits, had he made any mention whatsoever of any transfer of funds from Strait to the defendant, of the money paid him by the witness.

Defense counsel attempted a cross-examination of Schwartz with respect to the sworn statements. It must be kept in mind that neither of the statements were in evidence nor were marked for identification, but they did appear in the court file, being a part of the transcript filed by the justice of the peace with the district court. Without laying any foundation, defense counsel jumped into inquiring about the contents of the May 14 affidavit and an objection that no proper foundation had been laid was made and sustained, so defense counsel proceeded to ask some foundation questions, without inquiring into the circumstances under which the affidavit was made and, again, the court sustained an objection that there was no proper foundation, but nevertheless the witness, after the objection was sustained, answered a question that indicated that he had not in the May 14 affidavit stated that the defendant had participated in the money which he had paid to Schwartz. The answer was not stricken so it was before the jury.

The defendant's counsel then started to inquire about another affidavit (probably the May 19 affidavit). The court at this point stated, in effect, to defense counsel that he did not know what these affidavits were, and foundation must be laid and that he could proceed with cross-examination. Defense counsel still failed to lay any foundation and started to examine about the contents of the prior affidavits, to which an objection was sustained. Defense counsel thereupon abandoned any further inquiry about the affidavits.

The court has gone into some detail in regard to these circumstances, in order to make meaningful the governing rules and the importance of proper foundation in the impeachment of a witness. There is a regular, established and accepted procedure for impeachment with a previously made statement either in direct contradiction or in those situations where there is no patent contradiction, but an important fact is not mentioned and we shall approach these considerations in that order.

The technique of laying the foundation in such case is very nicely outlined in McCormick et al. on Evidence, 2d Ed. H.B., p. 72:

'To satisfy the requirement the cross-examiner will ask the witness whether he made the alleged statement, giving its substance, and naming the time, the place, and the person to whom made. The purpose of this particularity is, of course, to refresh the memory of the witness as to the supposed statement by reminding him of the accompanying circumstances.'

McCormick also says on the same page:

'The purposes of the requirement are (1) to avoid unfair surprise to the adversary, (2) to save time, as an admission by the witness may make the extrinsic proof unnecessary, and (3) to give the witness, in fairness to him, a chance to explain the discrepancy.'

This is not a new rule in Wyoming, being first mentioned in Dayton v. The Wyoming National Bank, 1875, 1 Wyo. 263, 266, the court saying:

'It is simple justice of the witness. If his mind is directed to the particular circumstances and occasion, he may not only recollect but satisfactorily explain his previous and apparently contradictory statements. In this case the foundation was not laid to impeach the testimony of the said Irvinson, and the court properly ruled out the affidavit: (authority cited).'

See also Hawkins v. B. F. Walker, Wyo. 1967, 426 P.2d 427, 430, and Mares v. State, Wyo.1972, 500 P.2d 530, 536. This fundamental is even statutory in this state, § 1-143, W.S.1957, where it is declared that a witness may be impeached by statements inconsistent with his present testimony,

'* * * but * * * the circumstances of the supposed statement sufficient to designate the particular occasion, as near as may be, must be memtioned to the witness, and he must be asked whether or not he has made such statements, and, if so, allowed to explain them.'

Actually, the witness' testimony was not in direct conflict with his previous affidavits because in the affidavits there had been no mention of any payment by strait to the defendant in the presence of the witness Schwartz, so what exists is an omission to state matters in an earlier affidavit, rather than a direct contradiction between testimony at the trial and the previous statement. However, this is considered as a contradiction under some circumstances, which ought to be explained in order to make clear the applicability of the foundation requirements.

The general rule is that a witness who has testified to certain matter cannot be impeached by showing his omission to disclose it on an occasion not calling for such disclosure; but the omission of a witness to state a particular fact, under circumstances rendering it incumbent upon him to state it, or natural for him to do so, may be shown to discredit his testimony as to such fact. 98 C.J.S. Witnesses § 586, p. 563.

In Ball v. State, 43 Ariz. 556, 559, 33 P.2d 601, 602, the court appropriately said:

'* * * It is always competent to show that a witness has upon a former occasion omitted to state material and relevant facts which he now states, providing it was under the circumstances his duty to speak the whole truth. * * * It would seem that, if that effort was to show that the witness had omitted something at the preliminary, it must have been something concerning which he was questioned or to which his attention was called. If such a showing had been made, we have no doubt the trial court would have required the witness to answer. A witness is ordinarily not supposed to know just what facts he should relate and, if not asked, may frequently omit material and relevant facts.'

Wigmore says:

'A failure to assert a fact, when it would have been natural to assert it, amounts in effect to assertion of the non-existence of the fact. * * * The underlying test is, would it have been natural for the person to make the assertion in question?' 3A Wigmore, Evidence, p. 1056, § 1042 (Chadbourn rev. 1970).

The rule is stated another way in Carroll v. Krause, 295 Ill.App. 552, 562, 15 N.E.2d 323, 328:

'* * * the omission of a witness to state a particular fact under circumstances rendering it incumbent upon him to, or likely that he would, state such a fact, if true, may be shown to discredit his testimony as to such fact.'

The court, in Asato v. Furtado, 52 Haw. 284, 474 P.2d 288, 292, explains the rule in the following well-stated language,

'Whether an omission to state previously a fact now asserted constitutes an inconsistency, sufficient to allow the previous statement to be shown, depends upon the circumstances under which the prior statement was made. Not every omission will constitute such an inconsistency. But where the prior circumstances were such that the speaker could have been expected to state the omitted fact, either because he was asked specifically about it, or because he was purporting to render a full and complete account...