Grable v. State ( 1979 )

ROSE, Justice.

The only issues we will consider in this appeal from convictions of two counts of forgery and three counts of conspiracy are (1) whether the trial judge committed reversible error by referring to witnesses as “co-conspirators,” and (2) whether the trial judge committed reversible error in not permitting the alleged co-conspirator witnesses to explain their guilty pleas with respect to crimes connected with the crimes with which appellant was charged. We will decide both issues in favor of appellant and reverse and remand.

The other issues raised by appellant were either not briefed with authorities, and therefore we will not consider them, Scherling v. Kilgore, Wyo., 599 P.2d 1352 (1979); Satterfield v. Sunny Day Resources Inc., Wyo., 581 P.2d 1386, 1390 (1978), reh. den.; Rissler & McMurry Co. v. Atlantic Richfield Co., Wyo., 559 P.2d 25, 30 (1977); and Reed v. Wadsworth, Wyo., 553 P.2d 1024, 1033 (1976); or the problems they present are not likely to arise at a new trial and therefore need not .be considered.

Donald Murphy, Leroy Coleman, and Floyd Suchta were defense witnesses. All, along with Grable and others, were indicted and accused of participating in a scheme involving, among other things, theft of an oil pumping unit. At the time of Grable’s trial, each of the above-named defense witnesses had pleaded guilty to one crime in connection with the above-alleged scheme, although none pleaded guilty to any crime of which Grable was ultimately convicted.

Point I — Misconduct of Court

The factual context in which the alleged error occurred was set during an exchange between counsel and the trial judge. In the process of presenting the State’s case, a defense objection — not relevant to this discussion — was lodged. In disposing of the objection, and with obvious reference to defense witness Coleman, who had not yet testified, the trial judge said— in the presence of the jury:

“ . . . [W]e are dealing with a co-conspirator [Coleman] who is no longer in the case because of having pled guilty. . ” [Bracketed matter supplied]

In response to this gratuitous remark, defense counsel moved for a mistrial, which motion the court refused to grant.

It is ambiguous whether the jury could have interpreted the judge’s remark to mean that Coleman was a co-conspirator of Grable’s. It is reversible error for the trial judge to remark that a witness is an accomplice of the person on trial since this carries the implicátion that the defendant’s guilt has been determined even though that fact is peculiarly within the province of the jury. Filbert v. State, Wyo., 436 P.2d 959, 960 (1968). See, also, People v. Brown, 44 Mich.App. 402, 205 N.W.2d 207, 209 (1973).

But, even if we understand the judge’s remark to indicate that Coleman was a co-conspirator with Suchta and Murphy, the judge’s statement was substantively objectionable under Kwallek v. State, Wyo., 596 P.2d 1372, reh. den. (1979). Kwallek held that when two persons are indicted for separate offenses growing out of the same circumstance, the fact that one has pleaded guilty is inadmissible against the other when offered by the State in its case-in-chief. Kwallek, supra, 596 P.2d at 1375. Since Coleman had not yet testified, and since the statement came from the judge, the statement could not be excused as having been made for impeachment purposes under Rule 609, W.R.E.

Additionally, our attention is drawn to an earlier similar objectionable remark by the trial judge in the presence of the jury:

“Mr. Suchta is an indicted co-conspirator in this case, outside the hearsay rule, overruled.”

Everything that we have said about the earlier remark by the judge applies to this comment.

Point II — Refusal of the Court to Permit the Defense Witnesses to Explain Their Convictions

Appellant argues that it was reversible error for the trial judge to refuse to allow the defense witnesses to explain their convictions arising out of the same alleged scheme for which appellant was standing trial. It is the appellant’s contention that the defense witnesses should have been permitted to explain their convictions for the purpose of negating the inference that appellant must be guilty since three of the people the judge described as co-conspirators admit that they pleaded guilty. Grable also argues that the prosecutor’s cross-examinations of the defense witnesses with respect to their guilty pleas exceeded the scope of impeachment allowed under Wyoming Rules of Evidence by leading the witnesses to connect their guilty pleas with the crimes for which appellant was standing trial. Finally, appellant argues that he did not ask witness Murphy about his conviction on direct examination because he understood that the trial judge ruled in advance that questions relating to Murphy’s plea would not be allowed.

The importance to appellant of explaining the convictions of the defense witnesses is illustrated by the testimony which defense witness Coleman would have given if he had been permitted to testify. The transcript of the proceeding at which Coleman’s judge accepted his plea of guilty of conspiracy to commit a felony reveals that: (1) Coleman claimed that his initial involvement in the scheme was innocent; (2) the judge asked Coleman’s attorney, “I am not sure this man is guilty. Do you think he should plead guilty to this charge?”; (3) Coleman and his attorney indicated that Coleman was prompted to enter into the plea bargain to avoid going to the state penitentiary.

We observe that the United States Supreme Court has upheld the validity of a guilty plea made pursuant to a plea bargain and made concurrently with a statement of innocence. In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the Court upheld a plea of guilty to second-degree murder made by a defendant who denied guilt but stated that he was making the plea, on the advice of his attorney who had assessed the evidence against him, to avoid prosecution for first-degree murder with its attendant risk of capital punishment.

Shorn of the fact of judicial misconduct, the further allegation that the judge misled the defense and the allegation of prosecuto-rial misconduct, the issue confronting us— and the issue which is likely to arise on retrial — is: If a witness is impeached under Rule 609, W.R.E., by a conviction arising out of the same circumstances underlying the prosecution of the defendant, does the defense have a right — which it is reversible error to deny — to explain the conviction? We hold that an affirmative answer is required. Under Kwallek, supra, the state may not, as part of its case, introduce evidence that a witness has pleaded guilty to a charge arising out of the same circumstances underlying the defendant’s prosecution. This rule is based on the sound reasoning that the defendant is entitled to have his trial on its own merits. Kwallek, supra, 596 P.2d at 1375-1376. But, Rule 609(a), W.R.E., appears to give either side an absolute right to impeach certain witnesses by showing certain prior convictions, and the rule gives the trial court discretion to allow impeachment for certain other crimes if “the probative value of admitting this evidence outweighs its prejudicial effect.” (Appellant has not raised on appeal the issue of whether the impeachments were proper under Rule 609, supra, and we will not consider it.)

There is considerable tension between Rule 609, W.R.E., and the rule of Kwallek. To the extent that impeachment is allowed under Rule 609, supra, the tension must be resolved by allowing the impeached defense witness to explain his conviction for any crime which arose out of the same circumstances underlying the defendant’s prosecution.

Reversed and remanded for new trial.