Pearson v. State , 1991 Wyo. LEXIS 81 ( 1991 )

CARDINE, Justice.

James Pearson challenges his forgery conviction. The issues he brings concern the admission of evidence over objection which he contends violated W.R.E. 404, the State’s closing argument, and his refused instructions concerning eyewitness identification.

We affirm.

Pearson frames the issues as:

“I. Whether the court below erred when it admitted evidence of Mr. Pearson’s prior bad acts in violation of W.R.E. 404(b) when an alibi witness was improperly cross examined.

“II. Whether the court below erred by allowing the prosecutor to discuss mathematical probabilities in his closing argument.

“HI. Whether the court below erred when it refused to give requested cautionary jury instructions regarding the limitations of eyewitness testimony and the factors to consider in assessing the reliability of eyewitness testimony.”

About 3:00 p.m. on August 16, 1989, Ray Spearman discovered that his briefcase was missing from his truck parked at a Casper savings and loan. Inside the briefcase were various business papers and two checkbooks. One of the checkbooks was for his personal checking account at Hilltop National Bank. A man found the briefcase that evening and returned it to Spearman two days later. Although the Hilltop checkbook remained in the briefcase, Spearman discovered one check had been removed.

Sometime between 4:20 p.m. and 4:30 p.m. on August 16, a 1986 blue Z 28 Cáma-ro entered one of the drive-up lanes at Hilltop Bank. A man identified as Pearson was driving the car. The missing check, made payable to Spearman for $500, was sent from the car through a pneumatic tube to the teller booth located about 25 feet from the drive-up lane. The teller asked the driver if he had a driver’s license. After the driver said he did not have one, the teller asked him if he was Spearman. The driver indicated that a passenger in the front seat of the car was Spearman. The passenger was slumped in the seat, and the teller could not see the passenger as well as she could see the driver. The teller retrieved and examined Spearman’s signature card. Because the teller was not certain that the signatures on the check and the card matched, she went to get her supervisor. When she returned to the teller booth, the car had left.

The teller gave a description of the driver and the car, including the model and year, to the police. On August 23, 1989, a Casper police detective spotted a car matching the description the teller had given. The detective observed Pearson driving the vehicle and followed it to a convenience store and to Pearson’s home. Through a license plate check, the detective determined that the vehicle was registered to Pearson. The detective prepared a photo lineup with eight pictures of the faces of similar looking men. One of the men was Pearson. He then took a photograph of the vehicle. The detective went to the bank and showed the photo lineup to the teller. The teller identified Pearson from the lineup without any help or suggestion from the detective. The teller identified the car in the photograph as the one in which a man had attempted to pass the forged check. Pearson was subsequently charged with forgery under W.S. 6-3-602.

Pearson pled not guilty and utilized an alibi defense. At the trial, the State’s witnesses included the teller who identified the defendant. She testified that her attention was drawn to the car because she was interested in Z 28 Cámaros and had once owned one similar to Pearson’s. She noticed the silver striping on it and the nearly new condition of the car. She was able to identify the model and year of the car as 1986 because she was familiar with the design changes in the car due to her interest in Camaros. Pearson is a tall black man whose head rose above the headrest as he sat in the car. These physical features contributed to her certainty that the defendant was the driver of the vehicle. She also testified that she had received training in fraud detection including making close observations of persons.

Two people testified as alibi witnesses for Pearson. During the cross-examination of one witness, the State asked him:

“Q: [By the State]: Isn’t it true * * * that you have been an alibi witness for the defendant before?

“A: Yes.”

Pearson objected:

“[Pearson’s counsel]: Objection, I don’t see the relevance, Your Honor, has nothing to do with this case before the court. “[The State]: Shows bias, goes to credibility.

“The Court: I will overrule the objection.”

Pearson also presented a witness, a friend who worked at the bank. She testified that she observed a different vehicle at the drive-up lane than the one owned by Pearson at the time the incident occurred. The only other witness for Pearson was also employed at the bank. He testified that, sometime after the check passing incident, Pearson’s friend reported to him that the vehicle she had seen was not a Camaro.

In its closing, the State discussed the credibility of the teller’s eyewitness identification. In summarizing her credibility, the State argued:

“That is what tells you that [the teller] is to be believed, because her testimony is supported by all of the other evidence. * * * She picks out the person in that line up that happens to be incredibly tall, that happens to own a car. I guess the million dollar question is, folks, * * * how many black men in town that are that tall, that you think own that kind of car like that. That tells you that her identification is correct.”

Pearson objected at this point contending the State was making a mathematical type argument. The objection was overruled, and the State continued its closing argument by reiterating:

“What are the odds in Casper, Wyoming, that there is another very tall, black man with a Chevrolet Camaro Z 28, that is a 1986, she recognized the car as a 1986, what are the odds? And then she looked at it and says, that is the car. That is the one I saw.”

Pearson’s closing argument attacked the credibility of the teller’s identification.

The jury found Pearson guilty of forgery. He received a sentence of three to five years in the state penitentiary.

Pearson claims that the State’s questioning of one of his witnesses concerning that witness having previously provided an alibi for Pearson violated W.R.E. 404(b). The State argues that we should analyze this issue under our plain error standard of review because of the way Pearson objected to the question. When an objection is inadequate to alert the trial court to a problem, the admission of evidence must rise to plain error before it will be considered by this court. Schmunk v. State, 714 P.2d 724, 739 (Wyo.1986). Pearson objected to the question on the basis of relevancy. Admission of this evidence and evidence under W.R.E. 404(b) is a question of relevance. See State v. Ellis, 208 Neb. 379, 303 N.W.2d 741, 749 (1981). Pearson’s objection was sufficient to raise the issue before this court. Plain error analysis is unwarranted for this issue.

W.R.E. 404(b) states:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

The question concerning providing a prior alibi and the witness’s affirmative response were not admitted “to prove the character of [Pearson] in order to show that he acted in conformity therewith.” W.R.E. 404(b). In response to the objection, the prosecutor stated the question went toward the bias of the witness, and thus credibility of the witness was involved. Pearson argues that “[t]he clear implication of this question was that the defendant had been in trouble * * * before.” However, he does not elaborate on this statement. The line of questioning when Pearson made the objection concerned reasons for the witness to have a bias in favor of Pearson. The testimony had nothing to do with Pearson’s character.

Attempts to demonstrate bias through cross-examination are subject to the wide discretion of the trial court in determining the admissibility of evidence. Loomer v. State, 768 P.2d 1042, 1048 (Wyo. 1989). The court’s discretionary ruling on evidence will not be upset absent a clear abuse of discretion. Nimmo v. State, 603 P.2d 386, 392 (Wyo.1979). The appellant has the burden to demonstrate that an abuse of discretion exists. Id. A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. Mayer v. State, 618 P.2d 127, 131 (Wyo.1980).

We cannot conclude that the question and answer resulted in a violation of W.R.E. 404(b). The fact that a witness’s bias might be tied to the defendant in a manner that he would prefer not be divulged before the court does not necessarily implicate the restrictions of 404(b). Bias can be shown from having been with a defendant in jail without invoking 404(b) concerns. Stephens v. State, 252 Ala. 183, 40 So.2d 90, 92 (1949); 2 C. Torcia, Wharton’s Criminal Evidence § 406 at 674 (14th ed. 1986). Similarly, impeachment of a defendant’s witness through disclosure that he was on parole will not necessarily amount to evidence of other crimes. Hall v. United States, 540 A.2d 442, 447 (D.C. App.1988). See also United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) (cross-examination of witness concerning membership in prison gang permissible to show bias) and United States v. Greschner, 802 F.2d 373, 382 (10th Cir. 1986) (cross-examination of witness concerning time spent in prison permissible to show bias toward defendant and against the government). The question asked in this case is in a similar vein. Further, no circumstances of the witness’s earlier alibi statement were elicited or given, and the record gives no other indication of the circumstances of the same. We cannot find a clear abuse of discretion in admitting the question and answer to show bias.

Pearson’s second issue concerns the use of mathematical type statements in the State’s closing argument. He places much reliance upon the case of People v. Collins, 68 Cal.2d 319, 66 Cal.Rptr. 497, 438 P.2d 33, 36 A.L.R.3d 1176 (1968). In Collins, the victim of a robbery was unable to identify the defendant. 66 Cal.Rptr. at 500, 438 P.2d at 36. In an attempt to combat this deficiency in its case, the prosecution had a mathematician testify as to the probability the defendant and his girlfriend were the perpetrators of the crime. Id. The California court found the statistics were flawed and that such use of probability as evidence was unfair. Id. 66 Cal.Rptr. at 502, 438 P.2d at 38. Collins is distinguishable from this case in two respects. First, a positive identification was made by a witness in this case. Second, the probability type statements were argument and not presented as evidence.

Pearson also looks to a law review article by Professor Laurence H. Tribe to explain the problems with using statistics as evidence. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv.L.Rev. 1329 (1971). Professor Tribe, however, differentiates between using mathematics as a means for proof and as a “language.” 84 Harv.L.Rev. at 1331. Professor Tribe does not find the use of mathematics as a “language” to be problematic. Id. As used by the State in its closing, the mathematical type statements were used as language not as a means of proof.

To determine the propriety of a closing argument, we examine it in its entirety. Hopkinson v. State, 632 P.2d 79, 166 (Wyo.1981). The purpose of closing argument is to allow counsel to offer ways of viewing the significance of the evidence. Wheeler v. State, 691 P.2d 599, 605 (Wyo. 1984). The scope of permissible argument by counsel to the jury is within the discretion of the trial court and will not be disturbed absent a clear or patent abuse of discretion. Mayer, 618 P.2d at 132. The court should allow a wide latitude of comment on the evidence. State v. Spears, 76 Wyo. 82, 300 P.2d 551, 561 (1956).

The remarks in question came after the State summarized the reasons why the teller was a credible and believable witness. The reasons included the teller’s training in identification, her interest in Cámaros and her picking the defendant out of photo lineup. These remarks amounted to nothing more than rhetorical questions properly used in closing argument. Cf. Thomas v. State, 784 P.2d 237, 240 (Wyo.1989). The mathematical type statements did not amount to evidence, but were used as “language” to tie together the reason’s why the teller should be believed. See, e.g., State v. Noel, 693 S.W.2d 317 (Mo.App. 1985) (statement in closing argument concerning the percentage of black men who kill other blacks held not prejudicial). Argument as to what is more likely — more probable — is often heard in the trial arena. It is proper. It is argument and nothing more. We find no error in the trial court overruling the objection to the State’s argument.

Pearson’s final issue concerns the refusal of offered jury instructions. Although six of Pearson’s jury instructions were refused, Pearson contests only three of them. The three refused instructions dealt with eyewitness identification testimony. Defendant’s offered Instruction 9 provided:

“YOU ARE INSTRUCTED that identification testimony is an expression of belief or impression by the witnesses. Its value depends on the opportunity the witnesses had to observe the offender at the time of the offense and to make a reliable identification later.

“Whether the witnesses had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short of time was available, how far or close the witnesses were, how good were lighting conditions, the confusion of the moment, the possible likeness or similarity to other persons.

“You may take into account both the strength of the identifications, and the circumstances under which the identifications were made.

“If the identifications by the witnesses may have been influenced by the circumstances under which Defendant’s picture was presented to them for identification, you should scrutinize the identifications with great care. You may also consider the length of time that lapsed between the occurrence of the crime and the next opportunity of the witnesses to see that Defendant, as a factor bearing on the reliability of the identifications.

“The burden of proof on the State extends to every element of the crime charged, and you have been instructed in another instruction that this includes the burden of proof and beyond a reasonable doubt the identity of the Defendant as a perpetrator of the crimes with which he stands charged.”

Defendant’s offered Instruction 12 provided:

“YOU ARE INSTRUCTED that with respect to identification the possibility of human error or mistake and the probable likeness or similarity of objects and persons are elements that you must act upon in considering testimony. You must carefully consider these factors in passing upon the credibility that you attach to a witnesses] testimony and you must be satisfied beyond a reasonable doubt as to the accuracy of the witnesses] identification,”

Defendant’s offered Instruction 14 provided:

“YOU ARE INSTRUCTED that one of the issues in this ease is the identification of the Defendant as the perpetrator of the crime. The State has the burden of providing identity, beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of the statement. However you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the Defendant before you may convict him. If you are not convinced beyond a reasonable doubt of the accuracy of the identification of the Defendant as the person who committed the crime, you must find the Defendant not guilty.

“Identification testimony is an expression of belief or impression of the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.

“In appraising the identification testimony of a witness, you should consider the following:

“Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender?

“Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had occasion to see or know the person in the past.

“In general a witness bases any identification makes on his perception through the uses of his senses. Usually the witness identifies an offender by the sense of sight — but this is not necessarily so, and he may use other senses.

“Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.

“If the identification by the witness may have been influenced by the circumstances under which the Defendant was presented to him for identification, you should scrutinize the identification with great care. You may also consider the length of time lapsed between the occurrence of the crime and the opportunity of the witness to see Defendant, as a factor bearing on the reliability of the identification.

“You may also take into account that an identification made by picking the Defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the Defendant alone to the witness.

“You may take into account any occasions in which the witness failed to make an identification of the Defendant, or made an identification that was inconsistent with his identification at trial.

“Finally you must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he has the capacity and opportunity to make a reliable observation on the matter covered in this testimony.

“I again emphasize that the burden of proof on the prosecutor extends to every element of the crime with which he stands charged. If after examining the testimony, you have a reasonable doubt as to the accuracy of identification, you must find the Defendant not guilty.”

Pearson’s theory of the case was that he was not the man who passed the check to the drive-up teller. The trial court has a duty to present an instruction supporting the defendant’s theory of defense, if the instruction is supported by competent evidence. Stapleman v. State, 680 P.2d 73, 75 (Wyo.1984). However, the court may refuse an instruction which is argumentative or unduly emphasizes one aspect of the law. Prime v. State, 767 P.2d 149, 154 (Wyo.1989). A court also may refuse an instruction if the principle is covered by other instructions. Griffin v. State, 749 P.2d 246, 256 (Wyo.1988).

These instructions are based on the “Model Special Instructions on Identification” adopted by the United States Court of Appeals, District of Columbia Circuit, in United States v. Telfaire, 469 F.2d 552, 558 (D.C.Cir.1972). We rejected the blanket use of the so-called Telfaire instructions in Thomas, 784 P.2d 237. We said in Thomas that such instructions “stand for the proposition that eyewitness identification testimony is inherently suspect in all cases.” 784 P.2d at 240 (emphasis in original). Instruction 14 is nearly identical to the refused instruction in Thomas. All three of the instructions, as the refused instruction in Thomas, contain two components: burden of proof of identity and credibility of eyewitness identification testimony. As in Thomas, the instructions represent “ 'a skillful effort to induce the trial court to argue the case for the defense through its instructions.’ ” 784 P.2d at 240 (quoting Prime, 767 P.2d at 154). General instructions on reasonable doubt and credibility of witnesses are sufficient to cover this part of the defendant’s theory of the case. Id. Instructions 2, 4, 5, and 6 adequately covered these areas. It was proper for the trial court to refuse these instructions.

Affirmed.

URBIGKIT, C.J., files a dissenting opinion.