State v. Murphy

• Decision Date: 12 May 1937
• Docket Number: 5791
• Citation: 92 Utah 382,68 P.2d 188
• Court: Utah Supreme Court
• Parties: STATE v. MURPHY

68 P.2d 188

92 Utah 382

STATE v. MURPHY

No. 5791

Supreme Court of Utah

May 12, 1937

Appeal from District Court, Third District, Salt Lake County; James W. McKinney, Judge.

James Murphy was convicted of murder in the first degree, and he appeals.

AFFIRMED.

Karl v King, of Salt Lake City, for appellant.

Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.

HANSON Justice. FOLLAND, C. J., and MOFFAT and LARSON, JJ., WOLFE Justice, concurring.

OPINION

HANSON, Justice.

Defendant was convicted of murder in the first degree and sentenced to life imprisonment at hard labor. In his appeal to this court the defendant does not attack the sufficiency of the evidence to sustain the jury's verdict. His assignments of error deal only with certain alleged misconduct of the district attorney during the trial and with alleged errors in the rulings of the court on questions of evidence. We deem it unnecessary, therefore, to recount the details of the unfortunate occurrence and shall refer to the evidence only as it is necessary to dispose of the assigned errors.

Defendant charges that substantial prejudice resulted to the defendant in the trial court's failure to restrain counsel for the state and defendant alike in making prejudicial statements and arguments in the jury's presence, their persistent arguing preventing a fair trial. It is further urged that the court erred in permitting the district attorney to repeatedly interrupt defense counsel and comment on and interpret the meaning of the evidence. Certain statements of the prosecuting attorney, hereafter quoted, are made the subject of separate assignments of error. Defendant also claims generally, without pointing out any specific instances, that the statements and comments of the state's attorney, taken as a whole, were of a nature and were of such frequency as to destroy the jury's ability to keep the main issues in mind.

The specific charges of misconduct on the part of the prosecuting attorney relate to statements made by him during the cross-examination of Mrs. Norman, the wife of the slain man. Mrs. Norman was called as a witness for the state and related what she knew of the circumstances leading to the fatal shooting. On cross-examination defense counsel examined her relative to discrepancies between her testimony on direct examination and the testimony she had previously given at the preliminary hearing. She and her husband occupied an apartment in one of the local hotels. They were friends of a Mr. Morgan, a plain clothes officer of the Salt Lake City police force. On the day of the fatal shooting, Mr. Morgan and defendant came to the apartment occupied by the Normans. A bellboy was summoned to obtain liquor for them. Some argument arose as to who should pay for the liquor, and defendant used obscene language in the hearing and presence of Mrs. Norman. Mr. Norman told defendant he could not use such language and would have to leave. Defendant refused to leave, and Mr. Norman went over to him and took hold of him to get him out. It was then that defendant shot him. During all of this time Mrs. Norman was lying on a bed in the room, as she had been ill for several days. Defense counsel, on cross-examination, sought to have her tell the position of Mr. Norman in the room immediately prior to his going over to defendant. The witness apparently became somewhat confused in the course of this cross-examination. Defense counsel then addressed the following statement and question to the witness: "Now, you practically have me dizzy, Mrs. Norman, in this matter, because if Mr. Norman went down at this writing desk, and you were lying here did Mr. Norman walk backwards up to this chair?" The district attorney objected to the use of the word "dizzy" and the inference that her testimony was incorrect. The court struck the word "dizzy" and admonished the witness to listen carefully to the questions. The following statements of counsel were then made:

"District Attorney: We are not having trouble with the witness in this regard. If he will ask questions in a way she can understand them, she will have no hesitancy in answering.

"Defense Counsel: I simply want to apologize for my hapless and hopeless predicament.

"District Attorney: I have no feelings towards you, but this girl has gone through considerable trouble, I imagine this is her first experience. She is worried and discouraged.

"Defense Counsel: Well, I have no doubt of that, and I will be just as gentle and fair with her as possible. That is exactly what I am trying to do."

On her direct examination Mrs. Norman had testified that the bellboy came to the room twice, once in response to the original call and again when he returned with the liquor. On cross-examination defense counsel referred to and read from her testimony at the preliminary hearing as follows:

"Q. At the preliminary examination Mrs. Norman, I asked you this question: 'Shortly after Mr. Murphy started using obscene language and Mr. Norman started arguing with Mr. Murphy and said "I don't want you to use that language in front of my wife,"' was the bell boy there? Did you answer 'he was still there.'? And when I asked you this question: 'Had he left before Mr. Norman started physically to eject Mr. Murphy from the room' and you answered that 'Yes.' Now was that correct? A. No sir.

"Q. Well, there wasn't very much of your testimony at the preliminary hearing that was correct, was there?"

The court sustained the objection to the last-quoted question, and defense counsel asked:

"Well, you made a number of mistakes in your testimony at the preliminary hearing, didn't you?"

This was objected to as calling for her conclusion, the district attorney commenting as follows:

"If her statements weren't correct at that time she was confused as to the number of times the bell boy was there, and if she recollected at that time he was there only once, her testimony would have been absolutely correct as read to her by Judge Rogers (defendant's counsel)."

Defense counsel replied:

"I don't want to go through the whole transcript. If counsel wants me to go through all of her testimony, I will be glad to do so."

The district attorney then stated:

"I have no objection to it because at that time she indicated--she testified at that time, ten days after this thing happened, she was in shock and nervous, and if he desires to go through the whole transcript, I won't object to it."

The court observed:

"There is no objection to going through any testimony you wish only I think perhaps the jury should draw its own conclusions as to whether or not she made mistakes in her preliminary testimony, or not."

When the cross-examination was resumed, the witness admitted that she had been mistaken in three particulars testified to in her preliminary examination. Prior to the time defense counsel read her previous testimony, above quoted, she had testified on cross-examination that at the preliminary hearing she was upset and her recollection of some of the events occurring at the time of the shooting was not as clear as it was at the trial.

On redirect examination the district attorney read from her testimony given at the preliminary hearing and asked her if she recalled giving said testimony. Defense counsel objected to the question as being improper redirect examination, incompetent, irrelevant, and immaterial. The district attorney, in support of his question, argued as follows:

"Judge Rogers, at some length questioned this witness as to what was said at this preliminary examination and examined her regarding it, but did not examine her relative to other parts. Then after her testimony he said to her: 'Now there is a discrepancy in your testimony there, is there not,' and I think I have a right to refresh her memory by calling her attention to what was asked her and what she testified to there, so that it will show to this jury, and I think they are entitled to get this evidence, that there was no discrepancy, but that her testimony was exactly as it is now, in substance."

The court overruled the objection, saying that "the redirect examination is to enable the witness to make any explanation she might desire to make."

We have made the above extended statement from the record for the reason that the statements of the district attorney therein contained are the only statements to which our attention has been called specifically as being improper and they, necessarily, must be considered in passing upon the general charge that the record as a whole, as well as these specific statements, show misconduct.

While the district attorney represents the people and is under obligation to protect society by prosecuting those who are brought to trial with vigor and earnestness, he also owes to the defendant in every case the duty to be fair in the conduct of the trial and in the use of evidence. It naturally follows that the defendant can complain of the conduct of the prosecuting officer only when it is apparent that this duty has been violated, that is, when the defendant's right to a fair trial has been prejudicially invaded by such conduct. People v. Willard, 150 Cal. 543, 89 P. 124; People v. Rosenthal, 139 Cal.App. 42, 33 P.2d 864.

Counsel for both the state and the defendant have the right, within proper bounds, to interpose objections to questions asked and to the admission of evidence. They likewise have the right to express their reasons for making such objections, but in this connection they should not include their interpretations of the testimony beyond the point necessary to give understanding to their reasons. It is largely a matter of good faith. Under the guise of stating reasons, a witness may be...