Wright v. State, 3803
| Decision Date | 01 April 1970 |
| Docket Number | No. 3803,3803 |
| Citation | 466 P.2d 1014 |
| Parties | Jerry Wayne WRIGHT, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Willima J. Knudsen, Jr., Laramie, for appellant.
James E. Barrett, Atty. Gen., Richard A. Stacy, Asst. Atty. Gen., Cheyenne, for appellee.
Before GRAY, C. J., and McINTYRE, PARKER and McEWAN, JJ.
Jerry Wayne Wright was convicted of the possession and sale, on November 17, 1968, of marijuana. On appeal from the judgment and sentence against him, he assigns two grounds of reversible error, namely:
1. The trial court erred in allowing the state to cross-examine defendant, over defense counsel's objection, with respect to an arrest on a separate charge.
2. Certain testimony on rebuttal went beyond the scope of rebuttal evidence and had a harmful effect on the jury.
A careful review of the record convinces us prejudicial error did not occur where defendant claims it did. We will explain why.
Appellant admits in his brief the state was alleging defendant, Wright, and Jim Harvey went to the house of Richard Wordeman on the evening of November 17, 1968. According to the State's evidence, Wright, Harvery, Wordeman, and Wordeman's wife sat around at the Wordeman home smoking marijuana cigarettes; Wordeman asked Wright if he could have a cigarette for later in the evening and Wright consented; after Wright and Harvey left, wordeman took the cigarette to the police.
Defendant-Wright testified on direct examination to the day's events and to the things he did November 17, 1968. None of the events previously testified to by Wordeman were mentioned. In fact, Wright denied he saw Wordeman that day; he denied going to Wordeman's house that day; and he denied he had marijuana in his possession November 17, 1968.
The last question asked of the defendant on direct examination was how he knew all of the events he talked about occurred November 17, 1968. Before he could answer, his attorney explained, 'Of course, this is of utmost importance.' Wright then testified to his reasons for being sure his relating of events for November 17, 1968 were correct.
The prosecution was aware that Wright was at Wordeman's home November 23, 1968. As a matter of fact, the only date on which Wright would admit to having contact with Wordeman, except at Wright's service station, was November 23, 1968.
The prosecution commenced its cross-examination of defendant-Wright, not only with knowledge that Wright was at Wordeman's home November 23, but also with an emphatic denial by defendant that he had any contact with Wordeman November 17. The transcript of testimony reflects the following at this point:
'(Whereupon, the following proceedings were had in the presence of the jury:)
'(Question read)
'
'
On behalf of defendant it is argued, proper cross-examination may go to any fact in issue or to the credibility of a witness; but since the prior arrest of defendant on another charge was not in issue, and since a mere arrest without more cannot be used to attack credibility, it was error to allow the line of questioning set out above. Eads v. State, 17 Wyo. 490, 101 P. 946, 950; and Rosencrance v. State, 33 Wyo. 360, 239 P. 952, 956, are relied upon as authority for such argument.
We realize mere charges, accusations, and arrests are consistent with innocence; and they should not be inquired into if the purpose of the prosecution is to discredit the witness in the eyes of the jury and convey to the jury knowledge that such witness was charged with a crime. That is not to say, however, that the prosecution in this case has done what stands condemned in Eads and Rosencrance.
This prompts us to look at the exact question objected to on behalf of defendant. The county attorney first asked: Then, after the witness admitted seeing Wordeman November 23, he was asked the critical question: 'What were you doing at that time?'
We can scarcely imagine a more appropriate question to test the memory of the witness, if the prosecution believed defendant was confused about what happened on November 17 and what happened on November 23; and there was reason for the prosecution so to believe. In any event, it must be observed there was nothing improper about the question which was asked. It did not inquire about an arrest.
The trial court indicated in its ruling that counsel for the state had a right to test the momory of the witness. It is indeed permissible on cross-examination to ask questions designed to test the soundness of a witness' testimony and the accuracy of his memory. Valdez v. Glenn, 79 Wyo. 53, 330 P.2d 309, 311, rehearing denied 332 P.2d 1119; Sanders v. Sitton, 179 Kan. 118, 292 P.2d 1099, 1102.
The question objected to was merely, what were you doing at that time (November 23)? After defendant was evasive in answering as to what he was doing and what happened November 23, the county attorney asked: 'Did anything happen with marijuana that evening?' There still was no question about an arrest.
Of Course, counsel for the defendant might have warned that this last question called only for a yes or no answer. Or, if he expected it to lead into the matter of an arrest of defendant on a charge other than the one for which defendant was being tried, he should not have remained silent. He should have made an objection.
Counsel had not previously asked for a continuing objection to future Questions, when his objection was overruled on the question about what defendant was doing when he saw Wordeman November 23. Although counsel had previously suggested, this is going to be getting into 'this other situation,' the court had agreed maybe so and maybe not, but it was not at that time. This obviously left it to the defense to object at the proper time-if the...
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