State v. Wallace, 80-105-C

• Decision Date: 28 April 1981
• Docket Number: No. 80-105-C,80-105-C
• Citation: 428 A.2d 1070
• Parties: STATE v. John L. WALLACE. A.
• Court: Rhode Island Supreme Court

Page 1070

428 A.2d 1070

STATE v. John L. WALLACE.

No. 80-105-C.A.

Supreme Court of Rhode Island.

April 28, 1981.

Dennis J. Roberts, II, Atty. Gen., Melanie W. Spencer, Sp. Asst. Atty. Gen., for plaintiff.

Raymond R. Pezza, Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on the defendant's appeal from judgments of conviction in the Superior Court pursuant to a multicount indictment that included two counts of raping his stepdaughter, one count of indecently assaulting her, and two counts of committing upon her abominable and detestable crimes against nature, all at various dates between December 1976 and March 1978. At the time of the incidents underlying these convictions, the victim was between ten and eleven years of age; at the time of the trial she was twelve years old. In light of the points raised by the defendant on appeal, no useful purpose would be served by setting forth the shocking and sordid facts that were disclosed in the trial of the case. The defendant raises three issues on appeal, and we shall deal with these issues individually, furnishing such facts as may be needed in their resolution.

After defendant had testified on his own behalf, he was cross-examined by counsel for the state. Upon the conclusion of his direct and cross-examination, defendant rested his case and the court adjourned for the day. The following morning counsel for the state requested permission to reopen cross-examination of defendant for the limited purpose of impeaching his credibility through examining him about prior criminal convictions. ¹ The court permitted the state to recall defendant for this purpose and allowed him to be questioned concerning his prior record.

The defendant argues that this reopening of cross-examination was tantamount to the state's calling defendant as its own witness in violation of his privilege against self-incrimination as guaranteed by the Fifth Amendment to the Constitution of the United States and by article I, section 13 of the Constitution of Rhode Island. We believe that defendant misconceives the basic nature of the court's granting permission to reopen cross-examination in this case.

It has long been settled that when an accused voluntarily chooses to testify in his own behalf, the prosecution has the right to cross-examine him in respect to such testimony with the same latitude as would be exercised in the case of an ordinary witness regarding the circumstances connecting him with the alleged crime. Fitzpatrick v. United States, 178 U.S. 304, 315, 20 S.Ct. 944, 948, 44 L.Ed. 1078, 1083 (1900). In Rhode Island such cross-examination may include the impeachment of credibility of the defendant by a showing of "conviction or sentence for any crime or misdemeanor." General Laws 1956 (1969 Reenactment) § 9-17-15. See State v. Pope, R.I., 414 A.2d 781 (1980); State v. Bennett, R.I., 405 A.2d 1181 (1979); State v. Lombardi, 113 R.I. 206, 319 A.2d 346 (1974). The defendant does not contend that he was not subject to cross-examination, including appropriate impeachment, but contends that when the cross-examination had ceased, a reopening of such cross-examination was tantamount to calling defendant as the state's witness. With this contention we disagree.

We have repeatedly held that a motion to recall a witness for the purpose of cross-examination or further cross-examination is directed to the sound discretion of the trial justice and that his or her action in granting or denying such motion will not be disturbed except for abuse of such discretion. State v. LaPlume, 118 R.I. 670, 681, 375 A.2d 938, 943 (1977); State v. Spivey, 113 R.I. 1, 4-5, 316 A.2d 498, 501 (1974); Vingi v. Trillo, 77 R.I. 55, 60, 73 A.2d 43, 45 (1950). Allowing a defendant or the state to recall a witness for either direct or cross-examination prior to the conclusion of the case would seem under appropriate circumstances, to be an aid in the ascertainment of truth and not violative of the rights of either the state or the defendant so long as the subject matter would have been admissible in the first instance. In this case the trial justice did not abuse her discretion in allowing the state to reopen for the limited purpose of impeachment.

The defendant also contends that the three criminal convictions used to impeach his credibility should have been excluded by reason of their remoteness in time from the date of the trial. When this case was tried in 1979, three convictions were used to impeach the credibility of defendant. One conviction was for breaking and entering wherein judgment had been rendered in 1967. The second conviction was for assault wherein judgment had been rendered in 1971. The third conviction was for larceny wherein judgment had been rendered in 1973.

We recently stated in State v. Pope, R.I., 414 A.2d 781 (1980):

"In this jurisdiction, remoteness is the sole crucial factor to be considered by a trial court when an effort is made to impeach a witness's credibility by evidence of his prior involvement with the law. State v. O'Brien, 412 A.2d 231 (R.I.1980); State v. Bennett, R.I., 405 A.2d 1181 (1979); State v. Lombardi, 113 R.I. 206, 319 A.2d 346 (1974). Remoteness is not, however, measured solely by the passage of time, since a trial court, in the exercise of its discretion, can take into account convictions intervening between the past conviction and the crime for which the defendant is being tried. The factfinder has a right to consider whether one who repeatedly refuses to comply with the law is more likely to ignore the obligation of truthfulness than a law-abiding citizen." R.I., 414 A.2d at 784.

In Pope one of the prior convictions had occurred nineteen years before the trial and yet under the circumstances of that case it was held not to be error to have allowed that conviction to be used to impeach the defendant's credibility. Id., 414 A.2d at 784-85.

Our holding in Pope was consistent...