State v. York
| Decision Date | 23 December 1980 |
| Docket Number | No. 3553-III-1,3553-III-1 |
| Citation | 621 P.2d 784,28 Wn.App. 33 |
| Parties | STATE of Washington, Respondent, v. Kineth YORK, Appellant. |
| Court | Washington Court of Appeals |
John G. Burchard, Jr., Okanogan, for appellant.
Douglas S. Boole, Pros. Atty., Thomas Benner, Deputy Pros. Atty., Okanogan, for respondent.
Kineth York appeals a conviction and order for deferred sentence on two counts of delivery of a controlled substance. We reverse.
York was convicted primarily upon the testimony of Gary Smith, an undercover investigator for the Okanogan County Sheriff's Department, who testified to buying two bags of marijuana from York on the night of January 15, 1979.
On direct examination, Smith testified as to his background and military service and his work experience after leaving the military. He had held jobs doing undercover work, initially in the military, and then for the Wenatchee Police Department. The defense sought to elicit, on cross-examination, that Smith had been employed by the Mineral County Sheriff's Department in Montana as a trainee, from which position he had been fired because of irregularities in his paperwork procedures, and his general unsuitability for the job. However, the state had moved in limine to exclude cross-examination on this issue. The court, in granting the motion in limine, held this was a collateral matter and sustained the state's objection. The defense presented a substantial number of alibi witnesses indicating Kineth York had not been present at the location where the alleged drug buy occurred. They attempted to show a motive on Smith's part to fabricate the sale. Smith had been unemployed and practically penniless upon arriving in Okanogan County; he was paid by the sheriff's department $20 per successful drug buy. Smith earned $740 during his brief tenure as an undercover drug agent in Okanogan County. The defense sought to introduce testimony regarding his Mineral County, Montana, 1 employment to show that Smith was not above fabricating or otherwise adjusting his testimony regarding drug buys in order to obtain money.
The importance of Smith's testimony cannot be overstated. He was the only witness to have allegedly seen York sell the marijuana. In closing argument the prosecutor said:
There's no reason at all to doubt the testimony of Gary Smith. Absolutely no reason at all. He has no axe to grind. He has no stake in the outcome. He's not working here anymore. His time here is through. He's done a good job, just like he's done in the past in his prior jobs.
Two issues are presented by this appeal. The first is whether evidence of Smith's job difficulties in Montana was merely collateral to the questions presented in this case. The second is, assuming it was not collateral, whether the judge was correct in limiting cross-examination on that issue.
Smith was the only witness to the sale. His credibility, based on his apparent unsullied background and the total lack of meaningful impeachment, was stressed heavily by the prosecution. In short, his credibility was crucial to the state and to the defense; it was simply a contest between the word of Gary Smith and Kineth York's alibi witnesses. The prosecution's ability to argue there was nothing negative in Smith's background may have been the single factor which caused the jury to believe him rather than the other witnesses. Credibility was not, therefore, collateral; it was the very essence of the defense.
Evidence Rule 608(b) states:
Specific instances of the 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, ...
The trial court, in its exercise of discretion, appears to have found the proffered testimony not to have been probative of truthfulness or untruthfulness. We must therefore question whether the trial court abused its discretion.
Normally, matters of trial court discretion are reviewed by a standard which requires this court to find that no reasonable man would have taken the action pursued by the trial court. See, e. g., State v. Huelett, 92 Wash.2d 967, 969, 603 P.2d 1258 (1979). But in a criminal case, to allow the defendant no cross-examination into an important area is an abuse of discretion. State v. Fluhart, 123 Wash. 175, 212 P. 245 (1923). It is well established that a criminal defendant is given extra latitude in cross-examination to show motive or credibility, especially when the particular prosecution witness is essential to the state's case. State v. Peterson, 2 Wash.App. 464, 469 P.2d 980 (1970); State v....
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