State v. Dickson
| Decision Date | 18 April 1961 |
| Docket Number | No. 9343,9343 |
| Citation | 12 Utah 2d 8,361 P.2d 412 |
| Parties | d 8 STATE of Utah, Plaintiff and Respondent, v. Cecil A. DICKSON, Defendant and Appellant. |
| Court | Utah Supreme Court |
K. Samuel King, Salt Lake City, for appellant.
Walter L. Budge, Atty. Gen., Ronald N. Boyce, Asst. Atty. Gen., for respondent.
Defendant appeals from a conviction of robbery.
About 9 p. m. on March 10, 1956, two men carrying pistols and holding handkerchiefs over their faces robbed the Canyon Rim Food Market in southeast Salt Lake City. One of them forced three employees to lie down while the other took the manager to the cash registers and safe and compelled him to turn over the money.
The defendant was tried on a charge of having committed that robbery and the jury failed to agree upon a verdict. Upon a second trial, the state adduced additional evidence and defendant was found guilty. The important aspect of this appeal is the charge that the admission of some of this additional evidence, specifically, phases of the cross examination of the defendant, was error.
The first relates to questions about previous felony convictions. The trial court properly indicated the view that the defendant could be questioned about such convictions; and as to the number and the type of crime involved for the purpose of impeaching his credibility as a witness. 1 But the prosecutor pressed beyond that. After bringing out the fact that the defendant is a singer, he questioned:
'Q. Now, you have made a lot of personal appearances, haven't you? Ans. Yes, sir, I have.
Defendant admitted two robbery convictions in California. The prosecutor then asked:
The prosecutor based his right to go into the detail of these felonies upon the theory that he was trying to show a 'modus operandi.' This type of evidence as to other crimes has been allowed for the purpose of showing that the accused was following some plan or scheme of which other crimes were a part; or where there was something distinctive or unusual about the appearance or conduct of the actor, or where the crime was committed in some particular way, so as to lead one to think it unlikely that this particular thing would be present in two separate crimes unless they were committed by the same person. Where such circumstances exist, an inference logically can be drawn that the person who committed the one committed the other; and for this reason complicity in the other offense may be shown as bearing on the question whether the defendant committed the crime for which he is being tried. 2
A good example of this is in the case of Whiteman v. State. 3 The Supreme Court of Ohio approved the admission of evidence of the modus operandi where several robberies had been carried out on the same night in the same neighborhood in a similar manner. Two men in a car, having flashlights and wearing bus driver's uniforms so they would appear to be peace officers, would drive alongside other cars, direct them off the road and stop them; then after having the occupants open their car doors, would rob them at gunpoint. This similarity of circumstances of the several robberies was held to justify receiving the evidence of other offenses to identify the defendants. But it is obvious that the requirement of some similarity peculiar to the two crimes is not satisfied by the mere fact that two men were involved in a similar crime, and that the elements common to all crimes of that type were made out. 4
In regard to the questioning about the felony convictions in California: perhaps the argument of the State that it resulted in no prejudicial error could be agreed with for these reasons: that it was permissible to show that the convictions were for robberies; 5 that whether food stores or liquor stores is of no special consequence; and that defendant has no particular complaint because of his own volunteering that they were liquor stores. But in view of the other assignment presently to be discussed, the possible prejudice of the foregoing need not be resolved because the prosecutor, proceeding upon the same theory, over defense objection, elicited other testimony of quite a different character and effect.
The matter of graver importance relates to cross examination of the defendant about an incident at Fort Worth, Texas, subsequent to this alleged robbery in Salt Lake City. He admitted being involved in the incident referred to by the prosecutor, and that both he and his brother had received gunshot wounds. His story of the occurrence was that while he was in a car waiting for his brother, the latter got into an altercation in the street during which a man drew a gun and shot the brother; that the defendant went to the aid of his brother and while helping him back to the car was also wounded. He said his brother had pleaded guilty to the crime of attempted robbery; that he himself had been charged with being an accessory but had not been tried for this offense. Although it has been stated that the trial court has some discretion as to the cross examination with respect to other crimes for impeachment purposes, 6 we are aware of no authority which goes so far as to allow such questioning as that here: where the fact adduced is only that the witness has been charged with such a crime. Nor do we think that reason or justice would support any such conclusion.
There was no justification for the questioning as to the incident in Texas on the theory of modus operandi. Practically the only similarity shown is that two men were involved in both incidents. From the defendant's explanation even that is not clear, since he says that he was charged only with being an accessory. In the absence of any greater similarity in the two situations than is shown, the Texas incident would have no legitimate probative value as to defendant's complicity in the robbery charged here. Its only effect would be to cast aspersions upon the defendant and to imply that because he was involved in the Texas trouble he is a person of evil character who would be likely to commit such a crime as the robbery here charged. The very purpose of excluding such evidence is to prevent the prosecution from smearing an accused by showing a bad reputation and relying on that for conviction rather than being required to produce adequate proof of the crime in question.
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...State v. Huggins, 18 Utah 2d 219, 418 P.2d 978 (1966); State v. Kazda, 14 Utah 2d 266, 382 P.2d 407 (1963), and State v. Dickson, 12 Utah 2d 8, 361 P.2d 412 (1961). ...
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