State v. Williams, 17330
| Decision Date | 09 November 1982 |
| Docket Number | No. 17330,17330 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Joey M. WILLIAMS, Defendant and Appellant. |
| Court | Utah Supreme Court |
Walter F. Budgen, Jr., Salt Lake City, for defendant and appellant.
David L. Wilkinson, Robert Parrish, Salt Lake City, for plaintiff and respondent.
Defendant Williams appeals from a conviction of robbery on grounds of numerous alleged errors during trial.
On November 24, 1979, one Mike Weaver was arrested for shoplifting. Apprehensive about being returned to prison, Weaver volunteered to cooperate with authorities concerning a robbery planned for that evening. Weaver informed sheriff's deputies that the defendant had called him earlier in the day indicating an intention to commit an armed robbery that evening. Weaver then called defendant from the police station and discussed the plans for the robbery. The conversation was recorded, and the recording was subsequently admitted in evidence at trial. Defendant and Weaver proceeded to rob a service station that evening.
Defendant raises numerous procedural points on appeal. He first attacks the prosecutor's statement in the opening argument that Weaver, who had been returned to prison in July of 1980 for violating his parole, had been coerced by inmates at the prison into signing a statement that defendant was not involved in the robbery. The prosecuting attorney also stated that the written statement was in the possession of defense counsel. The apparent purpose of the prosecutor's remarks was to blunt the effect of the defense's anticipated impeachment of Weaver. The defendant contends that the prosecutor should not have mentioned the document since he had no knowledge that it would be introduced into evidence, and, even if he had had such knowledge, it is not proper to present argument in the opening statement to rebut the expected impeachment of his own witness. Moreover, defendant contends that the State may not refer in an opening statement to evidence that is in the possession of the defense. The State rejoins that the evidence was actually produced by Weaver on direct examination by the prosecutor.
The purpose of an opening statement is to apprise the jury of what counsel intends to prove in his own case in chief by way of providing the jury an overview of, and general familiarity with, the facts the party intends to prove. State v. Erwin, 101 Utah 365, 120 P.2d 285 (1941). It is generally accepted that an opening statement should not be argumentative. It is not proper to engage in anticipatory rebuttal or to argue credibility by referring to impeachment evidence the other side may adduce. Woodmansee v. Stonebaum, 133 Vt. 367, 344 A.2d 26 (1975).
Whether an improper statement on opening argument constitutes reversible error depends on whether the prosecutor was guilty of bad faith and the prejudicial effect of the statement on defendant's case. Id. As stated in Gladden v. Frazier, 388 F.2d 777, 779 (9th Cir.1968):
The controlling question should be the good faith or lack of good faith of counsel in saying what he said in his opening statement and the likelihood that the opening statement was unfairly prejudicial to the defendant.
Weaver testified that while in prison heavy pressure--even physical coercion--was applied to him by other inmates to sign a statement that defendant was not involved in the crime. Weaver had been presented on separate occasions with a handwritten statement by defendant and also a typewritten statement by an investigator employed by defense counsel for Weaver to sign. Both statements were to the effect that Weaver alone had committed the robbery and that defendant had only been a hitchhiker picked up just prior to the commission of the crime. The investigator's handwritten statement was signed by Weaver, but the record does not conclusively indicate whether the typewritten statement was ever signed by him. Weaver testified that the typed statement was repossessed by the investigator for the public defender's office and that the handwritten statement was still in his cell. Without indicating whether his reference was to the typewritten or handwritten statement, the prosecutor, in his opening statement, apprised the jury that Weaver had been coerced into signing a statement exculpating Williams and that the statement was in the custody of defense counsel. Defendant neither introduced the statements into evidence nor relied on them to impeach Weaver's testimony.
The question then is whether prejudice resulted from the errors. In State v. Hodges, 30 Utah 2d 367, 369, 517 P.2d 1322, 1324 (1974), the Court, on somewhat different facts, stated:
The asking of the question ... is certainly not to be commended; and we are made to wonder why the prosecuting attorney would ask it. Nevertheless, the processes of justice should not be distorted simply for the purpose of censuring a mistake. The critical inquiry should be whether there is a reasonable likelihood that the incident so prejudiced the jury that in its absence there might have been a different result.
Because of defendant's own testimony admitting that he committed the robbery, he clearly did not suffer prejudice as a result of the prosecutor's error, and the trial court properly denied a motion for mistrial.
Defendant's next contention is that the trial court improperly denied defense counsel's motion to withdraw as counsel prior to trial so that he could testify as a witness in behalf of defendant. However, since defense counsel admitted at trial that he was not going to testify, there is no basis to the argument that the trial court erred in denying counsel's motion to withdraw.
Nor was there error in the trial court's refusal to require the prosecuting attorney to take the stand. A trial court has the authority to refuse to allow lawyers, including prosecuting attorneys, to be called as witnesses by the adverse party unless the result would be to prejudice the defendant's case. Gajewski v. United States, 321 F.2d 261 (8th Cir.1963); Fisher v. United States, 231 F.2d 99 (9th Cir.1956). "When a trial court refuses to allow a prosecutor to be called as a witness for the defense, the appellate issue is whether the trial court abused its discretion." State v. Hogervorst, 90 N.M. 580, 587, 566 P.2d 828, 835 (1977). The evidence sought from the prosecutor in the instant case could have been obtained from...
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