State v. Hackford

• Decision Date: 22 April 1987
• Docket Number: No. 20604,20604
• Citation: 737 P.2d 200
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Patrick J. HACKFORD, Defendant and Appellant.
• Court: Utah Supreme Court

Page 200

737 P.2d 200

The STATE of Utah, Plaintiff and Respondent, v. Patrick J. HACKFORD, Defendant and Appellant.

No. 20604.

Supreme Court of Utah.

April 22, 1987.

Anthony J. Famulary, Roosevelt, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

ZIMMERMAN, Justice:

Defendant Patrick J. Hackford was convicted by a jury of two counts of theft and of being a habitual criminal. Before this Court, he contends that the trial court improperly restricted cross-examination of the prosecution's key witness, Hackford's alleged accomplice. Hackford also asserts that the trial judge improperly instructed the jury on the habitual criminal charge. We agree that the trial court did err in restricting counsel's cross-examination concerning bias, but find that under the circumstances, the error does not warrant reversal of the conviction. We find no merit in Hackford's challenge to the habitual criminal instruction. The convictions are affirmed.

On April 27, 1984, Hackford climbed a fence and entered a Gulf Oil storage yard located in Duchesne County. While Hackford was inside, his accomplice, one Joe Lane, drove up a desolate road, returning shortly to help Hackford load the stolen items, which included drill bits, batteries, and tires. The two repeated the process in similar fashion two days later. Both Hackford and Lane were arrested for the crimes. Hackford was charged with two counts of theft, two counts of burglary, and being a habitual criminal. Lane was charged with five separate offenses arising from the two incidents. Later, in exchange for a guilty plea to a theft charge, the prosecution dropped the other four charges against Lane.

The prosecution then called Lane as its principal witness at Hackford's trial. Lane repeatedly testified on direct examination that he had not entered into any agreement with the State in exchange for his testimony. On cross-examination, Hackford's counsel attempted to establish that such an agreement did, in fact, exist. When Lane denied any agreement, counsel asked, "What happened on all the bad check charges you had ...?" The prosecutor objected to the question on the grounds that the charges were irrelevant and had not resulted in a conviction and, therefore, could not properly be used to impeach Lane. The trial court sustained the objection and ordered Hackford's counsel to limit his impeachment to the charges stemming from the storage yard incidents or to any prior felony convictions. Defense counsel did inquire extensively into the dropping of the four charges in exchange for the plea to the theft count. The jury returned a guilty verdict on two counts of theft, but acquitted Hackford on the two burglary counts.

After the jury returned its guilty verdict on the theft charges, the case proceeded with respect to the habitual criminal charge. The prosecution introduced evidence of Hackford's two prior convictions. That evidence consisted of the following. The first of Hackford's prior felony convictions had resulted in a sentence to the Utah State Prison of from 0 to 5 years. However, execution of the sentence had been suspended and Hackford was placed on probation for three years, on condition that he serve six months in the Duchesne County Jail. He served the six months and was released on parole. However, before the three-year probation period had run, Hackford had committed another offense that resulted in a second felony conviction and a sentence to the Utah State Prison for 1 to 5 years. Because Hackford's second conviction constituted a violation of the conditions of the parole on the first conviction, it resulted in a revocation of his parole and he was ordered to serve out the 0-to-5-year sentence on the first conviction. He then served both sentences concurrently. After hearing this evidence and being instructed on the habitual criminal charge, the jury returned a verdict of guilty.

On appeal, Hackford's first claim is that the trial court committed reversible error by not allowing cross-examination of Lane regarding any deals made with the prosecution to dispose of the prior unrelated bad check charges. In restricting the cross-examination of Lane, the trial court apparently relied on Rule 608(b) of the Utah Rules of Evidence. Rule 608(b) provides in pertinent part:

Specific instances of conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

As can be seen, Rule 608(b) permits cross-examination regarding specific instances of conduct if the examination relates to the witness' "character for truthfulness or untruthfulness" and if the trial court determines that the conduct in question is probative of truthfulness or untruthfulness. Here, the trial court determined that Lane's arrest for the bad check charges was not relevant to the issue of his character for truthfulness or untruthfulness. In deciding the question, however, the trial court misapplied Rule 608(b).

Rule 608(b) as a whole is pertinent only to evidence of specific instances of conduct offered as an attack on the general credibility of a witness. But that was not the issue to which Hackford's counsel's cross-examination was directed. Instead, he was seeking to show that the check charges had been dismissed in return for testimony in the Hackford case that would be favorable to the prosecution, i.e., that Lane was biased and had a motive to testify falsely.

We have never directly addressed the place of examination for bias in the context of Rule 608(b). However, Utah's Rule 608(b) is an exact copy of the federal rule of the same number, and cases under the federal rule and its counterparts in other states support the view that 608(b) does not deal with the proper scope of examination for bias. Inquiry into the possibility of such bias is a matter that "is never a collateral issue [of the kind] contemplated by Rule 608(b)." Weber v. State, 457 A.2d 674, 680 (Del.1983) (citations omitted) (decided under Delaware's identical Rule 608(b)); see also United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). Evidence of bias or motive is not introduced for the purpose of attacking or supporting a witness' general credibility, though it may have that effect. Rather, evidence of bias or motive is " 'always relevant as discrediting the witness and affecting the weight of his testimony.' " Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (quoting 3A J. Wigmore, Evidence § 940, at 775 (Chadbourn rev. 1970)). Therefore, if a prior instance of conduct is relevant to a witness' bias or motive to testify differently than would otherwise be the case, evidence pertaining to that conduct is not subject to exclusion under Rule 608(b). Weber v. State, 457 A.2d at 680-81.

The inapplicability of Rule 608(b) is relatively clear from its text and is confirmed by the cases discussed above. But if there is any question on the matter, we need only look to Rule 608(c), which, to our knowledge, is unique to Utah. That rule makes explicit what is otherwise implicit in 608(b). It states: "Bias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced." Plainly, Rule 608(c) is the rule under which the propriety of the cross-examination of Lane should have been considered.

Was the cross-examination sought appropriate under Rule 608(c)? Although we have repeatedly emphasized the importance of permitting a cross-examiner wide latitude in exposing a witness' potential bias, see, e.g., State v. Chesnut, 621 P.2d 1228, 1233 (Utah 1980); State v. Maestas, 564 P.2d 1386, 1388 (Utah 1977), the right of cross-examination is not without limitation. In State v. Clayton, 658 P.2d 621, 623 (Utah 1983), we observed that a cross-examiner cannot embark upon "fishing expeditions" when exploring potential areas of bias. To permit an exploration of potential bias without adequate foundation for the questions asked certainly can create a danger of unfair prejudice. And as we noted in State v. Chesnut, the right to cross-examine

does not entail the right to harass, annoy, or humiliate [the] witness on cross-examination, nor to engage in repetitive questioning, nor to inquire into matters which would expose the witness to danger of physical harm. Misconduct which is so old that it has little probative bearing on a witness' present impartiality is properly excludable.

621 P.2d at 1233 (quoting Evans v. Alaska, 550 P.2d 830, 837 (Alaska 1976) (citations omitted)).

The limitations on the right to cross-examine regarding bias can be best summarized by saying that the right is limited by Utah Rule of Evidence 403. That rule permits the exclusion of otherwise relevant evidence only "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Utah R.Evid. 403.

Because the trial court operated under the assumption that it had complete discretion to decide whether to permit the examination it naturally did not make findings regarding the factors mentioned in Rule 403, nor did it weigh those factors before precluding Hackford's counsel's cross-examination. It is always preferable to have express findings in the record so that we can understand the trial court's...