State v. Major ( 1983 )

BISTLINE, Justice,

dissenting.

I.

I cannot agree with the majority’s summary disposition of the defendant’s claim that he was denied a fair trial because of improper cross-examination in asking questions which assumed facts not in evidence. The majority finds no error, simply stating:

“We have examined the record, and it appears that the prosecutor was attempting to establish a possible scenario of occurrences at the murder scene by asking the defendant if that was what really happened. All of the prosecutor’s questions were based on possible inferences which might be drawn from facts already in evidence.”

While it may be permissible to argue inferences, it is grossly improper to ask questions upon which there is no evidence as a predicate. While the jury may draw inferences from facts established, which is its province, the prosecutor cannot ask a question which assumes facts not in the record. See McDonald v. Price, 80 Cal.App.2d 150, 181 P.2d 115, 116 (Cal.App.1947) (“While a wide latitude should be given in cross-examination, counsel should not be allowed to assume facts not in evidence and state as positive assertions facts which if true would be detrimental to the opposing party’s case and of such a nature as to inflame and prejudice the minds of the jurors”.). See also State v. Bush, 50 Idaho 166, 175, 295 P. 432 (1930); Hutchinson v. State, 274 P.2d 74, 80-81 (Okl.Cr.App.1954). Being of the opinion that the nature of the prosecutor’s questions and the evidence upon which those questions could have been based should be fully disclosed, pertinent portions of the testimony are set forth below.

Two individuals testified regarding the course of events that transpired at Tony Mesa’s house on the night in question — the defendant and Kerry Buell. On direct examination, the defendant testified that he had gone to Tony Mesa’s house that night, that he was there for 30 to 45 minutes, that he had drank a beer and talked with Tony and that he had left when a car pulled up outside. He stated:

“Well, after we talked a little bit somebody pulled up outside. Tony went out, and he was out there for probably about ten minutes. I was waiting for the wife wondering what was happening to her. Finished drinking my beer, can of beer. Walked outside, told Tony, ‘Bye’. I’ll see him, and I left.

“Well, I walked up, and I walked around by the babysitter’s, and their lights — it was pretty dark there, so I didn’t figure — I thought maybe Roberta might still be there, but then I seen the light — it was pretty dark, so I just — I went on up to — Garrity Boulevard, and hitched a ride on home.”

Tr., pp. 1597-98.

Kerry Buell testified as follows:

“Q. [BY MR. GOFF] Did you see any actions?

“A. Well, they were messing with that stuff on the table there, and I can’t be sure. I even hate to even say this, because I’m not for sure, but Tony fell down, or this guy pushed him down, or something that — because anyway, Tony Mesa fell on the floor.

“Q. You could see that through the window?

“A. Yeah.

“Q. Were the curtains or drapes opened or closed on that window?

“A. They was open.

“Q. And what else did you see, if anything?

“A. And then after Tony got pushed down, you know, they was both back — he was back up again, and they was both back at that table again.

“Q. Did you see anything else?

“A. I shouldn’t say pushed down, I mean, maybe he fell down, or whatever.

“Q. Okay, did you see anything else?

“A. Well, I seen one or two — one of them went back in the back room there.

“Q. Couldn’t tell which one it was that went to the back room?

“A. No, and then I don’t think that I really seen any more than that that I can remember.

“Q. [BY MR. YOST] Now, you stated that you saw Tony was pushed down? He was pushed down, is that what you said?

“A. No, I said that he either fell down or he was pushed down, but I don’t know how he got down. I just seen him fall.

“Q. Did you see anyone hit him?

“A. No.

“Q. And was he down on the floor?

“A. Well, when you look through the window you can’t see over about three feet down.

“Q. You can’t see the floor?

“A. And I seen him standing there, and I seen him go backwards and went out of sight, and then—

“Q. Did he — he just went out of sight?

“A. Like this. (Indicating)

“Q. He fell down?

“A. Yeah.

“Q. No one hit him that you could see?

“A. I couldn’t see if anyone hit him or not.

“Q. What do you mean backwards? I— how did he fall?

“A. Just like you fainted, you know.

“Q. Pardon?

“A. Just like if you fainted.

“Q. Just fall over backwards?

“A. Yeah.

“Q. And after he fell over backwards did you see him get up?

“A. Yeah.

“Q. And did — what did you see then?

“A. Looked like the guy that was with him there picked him up, or bent over him, or something, and then they both came back into sight again.

“Q. The man helped him up?

“A. I don’t know if he helped him up or not. The other man bent out of sight, and then they both came back up.

“Q. Well, what did you see?

“A. Pardon me?

“Q. Just tell us what you did see?

“A. I just did.

“Q. That’s all?

“A. That’s all.

“Q. Now, Mr. Buell, are you the same Kerry Buell that testified at the preliminary hearing—

“A. That’s correct.

“Q. —the prosecutor was talking about?

“A. That’s correct.

“Q. Did you think to tell us about that at the preliminary hearing?

“A. Yes. I did.

“Q. Did you tell us?

“A. No, I didn’t.

“Q. You didn’t say that—

“A. No, I didn’t.

“Q. —at the preliminary hearing, did you?

“A. Pardon me?

“Q. You didn’t say that at the preliminary hearing—

“A. No, I didn’t.

“Q. —did you?

“A. No, I didn’t.

“Q. And were you telling the truth at the preliminary hearing?

“A. You bet.

“Q. But you didn’t tell us about that?

“A. Right.

“Q. And you are telling the truth now?

“A. You bet.

“Q. Why didn’t you tell us about that at the preliminary hearing if this was so?

“A. Well, I will tell you why. This guy here, he is in a lot of trouble if he done this, and I didn’t know for sure if that’s what he done, and I didn’t want to come in here; and I been in court a couple of times myself, and when somebody says something, whether people believe it, or hear it, or whatever, it’s still in their mind and they know it, and I didn’t want to say that against that guy because I didn’t know if for a fact; and I didn’t want to say it today, either.

“Q. And this is the truth today, now?

“A. Yes, it is.

“Q. But it — you didn’t tell us when you were asked if there anything more to say—

“A. That’s correct.

“Q. —at the preliminary hearing?

“A. That’s correct.

“Q. Now, you — did you see a knife—

“A. No.

“Q. This other fellow had a knife?

“A. No.

“Q. You never seen this fellow before that you are talking about?

“A. No.

“Q. And then after you saw that, what you said you saw here, what did you see next?

“A. After what?

“Q. What?

“A. After what?

“Q. Well, after you saw whatever you saw, what did you see next?

“A. Then they was back at the table again.

“Q. Pardon?

“A. They were back at the table again.

“Q. They were just standing there at the table again?

“A. Yeah.

“Q. What were they doing then?

“A. They was still messing — messing in them bags.

“Q. They were just messing with the bag, and then you were still in the room in your — just looking over there; is that right?

“A. (No response.)

“Q. And then what — how long did you continue to watch them playing with the bag, or whatever they were doing with the bag?

“A. I believe I ceased watching right then.

“Q. Pardon?

“A. I believe I quit watching them right then.

“Q. You quit watching?

“A. (No response.)

“Q. Now, you weren’t afraid there would be — he would fall down again?

“A. Why would I be afraid he would fall down?

“Q. Well, nothing that caused you to be interested enough in what you were seeing to — to continue to look?

“A. Well, I’ll tell you, I almost went over there.

“Q. You almost went over?

“A. Yeah.

“Q. But you didn’t go over, though?

“A. No, I been stuck a couple of times myself, and I just — no way.

“Q. Why do you say you have been stuck a couple of times?

“A. Well, I didn’t want—

“Q. Did you know there was any knife over there?

“A. No.

“Q. Or think there was any?

“A. No, but ever since I been stabbed I have a very bad feelings about Mexican people, and being around them.

Tr., pp. 1193-94, 1207-13.

With the testimony of the defendant and Kerry Buell as a predicate, the prosecutor proceeded to cross-examine the defendant as follows:

“Q. Isn’t it true that after you entered that house of Mr. Mesa’s that you and Mr. Mesa was messing around with something in clear plastic bags on the table?

“A. No.

“Q. Isn’t it true that you and Mr. Mesa was sitting at the table in the living room messing around with these clear plastic bags, and you became angered?

“A. No.

“Q. Isn’t it true that you drew that knife from your right rear pants pocket, and stuck Mr. Mesa — excuse me — in the knees with that butcher knife as set forth in State’s Exhibit Number Fifty-eight?

“A. No, it isn’t.

“Q. Isn’t it true that Mr. Mesa arose from that table kicking his chair over as shown on the diagram behind you with the chair laying on its side, that you came at him with the knife and as he backed up, he fell over backwards?

“A. No, it isn’t true.

“Q. Isn’t it true that you went over, and — as Kerry Buell said, bent over Mr. Mesa, and stabbed him in the buttocks with your knife as shown in State’s Exhibit Number Sixty-one?

“A. No.

“MR. YOST: Now, I am going to object to that, Your Honor, as not only assuming facts not in evidence, but assuming facts that aren’t in anyone’s imagination. Mr. Buell never testified to any such a thing.

“COURT: This is cross examination, and I will permit it.

“Q. Isn’t it true that after you did that, Mr. Major, that Mr. Mesa went into the bathroom?

“A. (No response.)

“Q. Yes or no?

“A. No.

“Q. And isn’t it true that once he was in the bathroom he grabbed the bath towel, white bath towel, that you have seen passed around in this trial?

“A. That he grabbed it?

“Q. Yes?

“A. No.

“Q. Then isn’t it true that he stayed in there for some several moments, and then came out into the hallway, and you took your knife again and struck him in the top of the scalp as shown in State’s Exhibit Number Forty-eight?

“A. No.

“Q. Isn’t it true that after you struck that blow to Mr. Mesa because he was drunk, and because he had lost considerable amount of blood, that he fell to the floor?

“A. No.

“Q. He fell to the floor shown in State’s Exhibit Number Forty-six?

“A. (No response.)

“Q. Yes or no?

“A. No, he never fell in my presence.

“Q. And as Mr. Mesa fell, you came at him again with the knife and cut his ear and his cheek as shown in State’s Exhibit Number Sixty?

“A. No.

“Q. And as Mr. Mesa was falling he raised his left arm to ward you off, and you stuck him with your knife as shown in State’s Exhibit Forty-nine, Fifty-three, and Fifty-four, in the armpit area?

“A. No, I didn’t.

“Q. And isn’t it true, Mr. Major, at that point you got on him and you cut his throat several times as shown in State’s Exhibits Number Fifty-one—

“MR. YOST: Your Honor, I want to have the record show—

“Q. —and Fifty-four?

MR. YOST: —that our objection—

“A. No, I didn’t.

“MR. YOST: —is continuing to this, and each one of these are assuming facts not in evidence. Each one of these questions are assuming facts not in evidence, are attempting to dramatize a scenario not proven in this courtroom, or offered in any—

“COURT: Sustained.

“Q. Mr. Major, did you see Tony Mesa’s throat in the condition as set forth in State’s Exhibit Number Fifty-two before you left?

“A. No, I didn’t.

“Q. Did you see the penetration shown on the right side of Mr. Mesa’s throat as shown in State’s Exhibit Number Fifty-five?

“A. No.

“Q. Did you see the wounds in his chest before you left his residence as shown in State’s Exhibit Number Fifty-seven and Number Fifty-six?

“A. No, J have never seen them.

“Q. And isn’t it correct, Mr. Major, that you had this bath towel in your hand at one point and stood on the newspapers with your new Jarman shoes, wiped your knife with the blood towel, and threw it on the floor next to the newspapers as shown in State’s Exhibits Number Forty-four?

“A. No, that’s not true.

“Q. Isn’t it true, Mr. Major, that after you attacked your friend, Mr. Mesa, that you then fixed some drugs?

“A. No, that’s false. I never attacked Tony, and I never — never fixed any drugs.

“Q. Isn’t it true, then, Mr. Major, that after you fixed your drugs by that time your wife Roberta had arrived?

“A. That’s false.

“Q. And Roberta had arrived at your residence — Mr. Mesa’s residence to get you to help her take that child home?

“A. No.

“MR. YOST: Your Honor, I object to this again. The jury — he is assuming facts not in proven. Just—

“COURT: Sustained.

“Q. Mr. Major, did you — how many miles is it from Mr. Mesa’s house to your home at unit number nine, Charoláis Motel?

“A. I don’t know. I have never — I have never—

“Q. Is it accurate—

“A. —measured it in miles. Probably a couple of miles.

“Q. Is it an accurate representation by Officer Newton that it’s approximately three to three and a half miles?

“A. If that’s what he says, I guess — I guess it is.

“Q. And so you never helped Roberta Major carry that baby that was one years old by the name of Bambi from Mr. Mesa’s house that three and a half mile walk to your Charoláis Motel, unit number nine?

“A. No, not that night I didn’t, no.

“MR. GOFF: Mr. Major, the last question, or near the last question asked you on direct is that you didn’t commit that murder of Manuel Antonio Mesa on January 1, 1980 in the County of Canyon, State of Idaho.

“WITNESS: No, I did not.

“Q. Would you look to the jury and tell them — look into their eyes and tell them that you did not cut, strike, or stab Manuel Antonio Mesa with a knife on January 1, 1980?

“A. I never harmed Tony — Tony at all. I never — never had no reason to, either, and what they’re trying to say is false.

“MR. GOFF: I have no further questions of Mr. Major.”

Tr., pp. 1636-42.

The questions of the prosecutor in this case are not unlike the comments made by the prosecutor in his closing argument in the recent case of State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980). In Griffiths, a woman was tried for second degree murder in connection with the death of her husband. The woman admitted that she had killed her husband, but claimed that she had acted in self-defense. In his closing argument in Griffiths, the prosecutor described a scenario in which the dying husband was on his knees, totally helpless and begging for mercy, while his wife continued to fire shots into his body. A somewhat more candid Court in Griffiths recognized that the prosecutor had been guilty of misconduct, having “referred to facts which were not in evidence,” 101 Idaho at 166, 610 P.2d at 525, but nevertheless went on to hold the error harmless, stating that “in view of the verdict of involuntary manslaughter, the closing argument of the prosecutor could not have contributed to that verdict.” 101 Idaho at 167, 610 P.2d at 526.

Remarkably, the majority in this case finds no error, although as in Griffiths, the scenario described by the prosecutor cannot be said to have been based upon facts already in evidence.¹ The misconduct in this case is even more egregious, however, because the scenario which the prosecutor attempted to describe was set forth not only in his closing argument, but in questions to the defendant as well. The defendant during cross-examination was repeatedly forced to state that what the prosecutor said happened was not true. Thus, by arguing in closing that the defendant was not a credible witness, which no doubt suggested to the jury that the defendant may have lied when he denied that what the prosecutor stated had occurred, the prosecutor was able to create an inference that his, the prosecutor’s, description of what transpired, was what actually occurred.²

What transpired at trial in this case is not surprising. The Court’s opinion in Griffiths having been released before the commencement of the trial in this case, the prosecutor was no doubt cognizant of the fact that even if he engaged in improper conduct at trial it would be unlikely to result in the reversal of any conviction obtained. The Court’s holding in Griffiths that the prosecutor’s misconduct was harmless error in effect granted a license to overzealous prosecutors to engage in unfair trial tactics. The result is clear: the same sort of prosecutorial misconduct which denied Thelma Griffiths a fair trial, today is allowed to deny Melvin Major the same. While aspiring young prosecutors cannot be overly-faulted for employing tactics which this Court tolerated in Griffiths and today directly sanctions, they would do well to remember the words of this Court in State v. Givens, 28 Idaho 253, 268, 152 P. 1054, 1058 (1915):

“It is the duty of the prosecutor to see that a defendant has a fair trial, and he should never seek by innunendo or inference to pervert the testimony, or make statements to the jury which, whether true or not, have not been proved. The desire for success should never induce him to obtain a verdict by argument based upon anything except the evidence in the case and the conclusions legitimately deducible from the law applicable to the same.”

(Quoted in State v. Owen, 73 Idaho 394, 408, 253 P.2d 203, 211 (1953), and in State v. Griffiths, 101 Idaho 163, 168, 610 P.2d 522, 527 (1980) (Bistline, J., dissenting).)

II.

The Court in my opinion also fails to adequately address the defendant’s contention that the prosecutor improperly questioned him on cross-examination regarding his post-arrest silence. The Court states that “even if the question was erroneous in that regard, the error was not fundamental.” As support for this conclusion, the Court states that the asserted violation in this case is “less serious” than that asserted in State v. Swenor, 96 Idaho 327, 528 P.2d 671 (1974). Swenor is inapposite. In that case the Court did not even mention the fundamental error rule, the Court concluding, although the issue in question had not been properly raised on appeal, that no error had occurred at trial. The majority also supports its conclusion that no fundamental error occurred by stating that “the extent of inquiry into silence in this case [does not] come near to the intrusion found in State v. Haggard, [94 Idaho 249, 486 P.2d 260 (1971) ] or State v. White, 97 Idaho 708, 551 P.2d 1344 (1976).” However, the nature of the intrusion in question — the improper use of the defendant’s post-arrest silence to raise an inference of guilt — causes me to believe that fundamental error occurred in this case. The same type of intrusion occurred in Haggard and White, and the Court held in both cases that fundamental error resulted. The majority attempts to distinguish these cases on the ground that a greater intrusion on the right to silence occurred because the defendant in each case was asked several questions regarding his silence. Certainly it cannot be denied that the same inference of guilt may arise if a defendant is asked a single question regarding his silence as when he is asked several such questions. This is particularly true when, as in this case, the prosecutor in his closing argument specifically directs the jury’s attention to the defendant’s silence. The reasoning of the Court in White is persuasive: “If a prosecutor is allowed to introduce evidence of silence, for any purpose, then the right to remain silent guaranteed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), becomes so diluted as to be rendered worthless.” 97 Idaho at 715, 551 P.2d at 1350-51.

1 . One might wonder at the different conclusion regarding the prosecutor’s conduct in this case and that in Griffiths. It might be explained by the Court’s wish to reach its desired result — affirming Mr. Major’s conviction for first degree murder. Although the Court in Griffiths found error in the prosecutor’s conduct, it was somehow able to say the error was harmless because the defendant in that case was convicted only of manslaughter — as opposed to second degree murder. 101 Idaho at 167, 552 P.2d at 526. However, that rationale could not be applied in this case, the jury having convicted Mr. Major of murder in the first degree.

2 . “We testified and determined the fact that Kerry Buell said they were talking at the table, and doing something with some plastic bags. They got up and there was a struggle, or a push, or just fell backwards, and Mr. Major bent over and helped him up, or pulled him up, and that one of them went to the bathroom, and grabbed a bloody — a bath towel, white bath towel, to try to stop the bleeding; only to come out a few moments later into the narrow hallway of his house, Mr. Mesa, and to be met again by the defendant swinging his knife.

“It was stated in voir dire at the beginning of this trial that the credibility of the witnesses is one of the most important factors, and functions of a jury. Credibility requires that — any time we have a trial, we are going to have different versions of the story, and you must decide the credibility, and base that decision of credibility and the weight that you are going to give to the testimony of any witness upon those factors which the Court has instructed you is proper to consider.

“During voir dire the state brought to your attention that its witnesses would-be felons, et cetera. The defendant’s attorney quoted that I — there are other problems of the defendant’s witnesses — state’s witnesses, an impediment of the state’s witnesses. However, at no time during voir dire was the jury ever informed that the defendant also had those impediments.

“The defendant took the stand today. The Court has instructed you that you consider his testimony as you do any other witness, and one of those factors in considering the credibility and the weight you give his testimony is whether or not he has been convicted of a felony.

“You were further instructed to consider the witnesses’ opportunities to observe, their bias, prejudice, and interest in the outcome of this trial. It should be obvious to you as it is, I think, to most, that the defendant certainly is and should be biased and interested in the outcome of this trial, but it should also become obvious to you that not one single witness of the state is interested in the outcome of this trial other than that justice be done.”

And then there was some discussion about Kerry Buell. I think that it should have become obvious to you, ladies and gentlemen of the jury, that Kerry Buell, from his testimony, saw more than he is going to tell you about, and he told you why he is not going to tell you about it. He said, T didn’t want to get involved’, and how do you know that he saw more than he told you? Because he said, T looked over there at my friend’s house. I was supposed to be watching his house. I saw them come in there. I saw them struggling. I saw them fall, Mr. Mesa fall,’ and he said, T even thought about going over there, but I didn’t want to get stuck’. What does that mean to you? What does that statement mean to you, ‘That he didn’t want to get stuck’? And then he said later on cross examination, T never paid any attention after that to Mr. Mesa’s house’. Why didn’t he pay any attention after he had been asked.

“You will have to answer those questions. I can submit to you the answers. He knew there was no need. He didn’t want to get involved. He knew his friend Tony Mesa was no longer alive.

“And last, the defendant argued that even after looking at these atrocious and brutal and whatever adjective you might want to place on those photographs, and those bloody clothes that defendant, under oath, at my request, and I felt it was a kind request, look — ‘Mr. Major, look the jury in the eye. Tell the jury you didn’t kill your friend, or murder Mr. Mesa’, and then I asked you— Mr. Yost says that he looked you right in the eyes. I ask you where those eyes were? I ask you where Mr. Major’s eyes were when I said that? Who was he staring at standing right over here, (indicating)? Who did he give an evil look to here?

“The defendant would have you believe it’s unfortunate, and unreasonable set of circumstances that points that finger of guilt to him. 1 submit to you that that set of circumstances only came, and was presented to you through a long thorough investigation.”

Tr„ pp. 1667-68, 1705-06, 1707.