State v. Williams
| Decision Date | 18 July 1966 |
| Docket Number | No. 8091,8091 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Charles T. WILLIAMS, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
LaFEL E. OMAN, Judge, Court of Appeals.
A jury in Curry County, New Mexico, found appellant guilty of murder in the first degree as charged in the information, with recommendation of life imprisonment. The trial court thereupon entered judgment and sentenced appellant to a term of life imprisonment in the state penitentiary. He has appealed from this judgment and sentence.
Three points are relied upon for reversal. The first point is that the court erred in refusing to grant a mistrial 'when the State erroneously and without proof accused the defendant of having formerly been convicted of statutory rape.'
Appellant took the stand as a witness in his own behalf, and on cross-examination was asked the following questions and made the following answers:
Appellant objected to the last question and stated as his reason:
'* * * that the State has no proof of the allegation he (Assistant District Attorney) is trying to bring before this Jury, and it is highly prejudicial and we ask for a mis-trial.'
The court promptly excused the jury and made inquiry of counsel concerning the information available to them relative to the conviction in San Juan County. The District Attorney produced what is commonly referred to as an 'F.B.I. rap sheet,' which shows appellant was charged with statutory rape on January 31, 1961 and the disposition thereof as
Appellant's counsel produced a copy of the judgment and sentence entered on March 21, 1961 in the District Court of San Juan County, and such shows the appellant pleaded guilty to the crime of 'contributing to the delinquency of a minor under the age of eighteen (18) years.'
After some discussion between the court and counsel, the court ordered the jury brought back into the courtroom and then gave the following admonition and instruction to the jury:
Appellant made no objection to the court's admonition and instruction, the trial continued, and nothing further was said concerning the matter, until the same was raised here on appeal.
Section 20--2--3, N.M.S.A. 1953 provides:
'A witness may be questioned as to whether he has been convicted of any felony or misdemeanor, and upon being so questioned, if he either denies the fact or refuses to answer, the opposite party may prove such conviction; and a certificate, the substance and effect only, omitting the formal part, of the indictment and conviction for such offense, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court at which the offender was convicted, or by the deputy of such clerk or officer under the seal of said court, shall, upon proof of the identity of the witness, as such convict, be sufficient evidence of his conviction.'
Pursuant to the provisions of this statute, we have repeatedly held that on cross-examination the state may establish by the accused the fact of a prior conviction and the name of the particular felony or misdemeanor of which he had been convicted. State v. Griego, 61 N.M. 42, 294 P.2d 282; State v. Ocanas, 61 N.M. 484, 303 P.2d 390. In the State v. Ocanas case, the District Attorney was apparently questioning the defendant from information contained in a record furnished by the Federal Bureau of Investigation, just as was being done by the Assistant District Attorney in this case. The majority rule is in accord with the holdings of this court, that an accused may be cross-examined as to prior convictions. Wigmore on Evidence, 3d Ed., Vol. IV, § 1270 at 538--545; McCormick on Evidence, § 43 at 93--94; Underhill's Criminal Evidence, 5th Ed., Vol. I, § 164 at 304--314.
The trial court is allowed a broad discretion in controlling the extent of cross-examination of an accused directed at testing his credibility. The primary responsibility is on the trial court to determine when the cross-examination should be limited, because the legitimate probative value on the credibility of the accused is outweighed by its illegitimate tendency, effect or purpose to prejudice him as a defendant. The discretion of the trial court in making this determination will not be disturbed on appeal, unless the appellate court can say the trial judge's action was obviously erroneous, arbitrary and unwarranted. State v. Holden, 45 N.M. 147, 113 P.2d 171.
We do not mean to suggest that cross-examination as to a prior conviction may go beyond eliciting from the accused the fact of his prior conviction, and the name of the particular offense. All reasonable care, and the utmost good faith, must be exercised by the prosecutor, when questioning an accused about prior convictions, to the end that an accused is not prejudiced by suggestions that he has been convicted of a misdemeanor or felony, when in fact he has not been so convicted. We do not believe that cross-examination of an accused based solely on information contained in an 'F.B.I. rap sheet' can ordinarily be said to be consistent with the exercise of all reasonable care and the utmost good faith. Generally, the prosecutor has the burden of going further to verify the prior conviction, before he can properly proceed to question the accused concerning the same.
In the present case it was made clear to the jury by the two answers of appellant, and by the instruction of the court, that appellant was not convicted of statutory rape, as suggested by the question to which objection was made. If any error was committed by asking such question, we are of the opinion that such error was not prejudicial to appellant under the facts. Error, to warrant reversal, must be prejudicial. State v. Ancheta, 20 N.M. 19, 145 P. 1086; Rice v. United States, 149 F.2d 601 (10th Cir. 1945).
See also State v. Dendy, 34 N.M. 533, 285 P. 486; State v. Garcia, 57 N.M. 665, 262 P.2d 233; State v. White, 61 N.M. 109, 295 P.2d 1019.
We have not overlooked the case of State v. Stago, 82 Ariz. 285, 312 P.2d 160, upon which appellant so heavily relies. It appears that case was reversed for reasons other than the fact that the prosecutor asked the defendant if he had ever been convicted of a felony, and then, after some discussion between the court and counsel, withdrew the question. It is true the Arizona court stated that the prosecutor 'cannot engage in questioning which casts insinuations without being prepared and able to prove the insinuations,' and suggested that the prejudice to defendant may not have been expunged by the trial court's instruction to disregard 'any thought whatsoever of the meaning of the question propounded.' We do not believe that the Arizona court, by its language, meant that the prosecutor must always be able to prove a prior conviction by documentary evidence, before an accused can properly be asked about such conviction, regardless of the circumstances and regardless of the care and good faith exercised by the prosecutor, or that an instruction by the trial court can never cure the damage, if any, done by questions concerning a prior conviction which is not subsequently proved. Whether or not the prosecutor has acted improperly, and whether or not the defendant has been prejudiced thereby, must depend on the facts and circumstances of each case. See the annotation in 3 A.L.R.3d at 965--969, concerning the effect of the prosecutor asking defense witnesses, other than the accused, as to prior convictions, when he is not prepared to offer documentary proof in the event of a denial.
Appellant's second point is that his:
'* * * challenge of the jury panel should have been sustained on grounds that it was not apportioned 'as nearly as may be * * * among various precincts according to voting population' and that this amounted to systematic discrimination against appellant and other members of the Negro race.'
Appellant filed a written 'Challenge of Jury Panel,' and, insofar as the same is pertinent to his point relied on for reversal, asserts:
'* * * that the jury list chosen by the jury commission appointed by the court after the 1964 general election did not select as many persons to serve as jurors from Precinct 9, in which the alleged offense occurred and in which defendant and most of the Negro population of Curry County resides, as is...
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