Roby v. State

RAPER, Justice,

dissenting, with whom THOMAS, Justice, joins.

I dissent.

The record demonstrates to me that the defendant was a knowing participant in an attempt to fabricate evidence to support an alibi. The prosecutor conducted himself with complete propriety in his cross-examination of the defendant and the defendant’s father in that regard. To support my position, a more complete treatment of the facts, procedures and the law is necessary in order to lead into what the holding of the majority should have been.

The issue upon which the majority makes its disposition was raised by the defendant in this appeal in the following fashion:

“3. Was Defendant’s presence requisite at the Pretrial conference; and if the presence was not requisite, then was Defendant, under the rules, bound by any admissions or statements made by his attorney?”

In that connection, the defendant asserted that the prosecutor improperly conducted himself by cross-examining defendant on the matter of the lunch receipt listed by defendant’s counsel on the pretrial memorandum of defendant filed the day before the pretrial conference but not offered at the trial. No objection to defendant’s absence at the pretrial conference was made, either at the time of the pretrial conference or at the trial.

Rule 19, W.R.Cr.P. covers the pretrial conference in a criminal case, when held:

“At any time after the filing of the indictment or information the court upon motion of any party or upon its own motion may order one or more conferences to consider such matters as will promote a fair and expeditious trial. At the conclusion of a conference the court shall prepare and file a memorandum of the matters agreed upon. No admissions made by the defendant or his attorney at the conference shall be used against the defendant unless the admissions are reduced to writing and signed by the defendant and his attorney. This rule shall not be invoked in the case of a defendant who is not represented by counsel.”¹

Rule 42, W.R.Cr.P. covers the proposition that:

“The defendant shall be present at the arraignment, at every stage of the trial, including the impaneling of the jury, and the return of the verdict and at the imposition of sentence except as otherwise provided by these rules. * * * ”²

It is defendant’s contention that the language of these two rules requires the defendant’s presence. I disagree.

Rule 19 is silent as to the presence of the defendant, but the comment of the federal advisory committee is only that “in some cases it may be desirable or necessary to have the defendant present.”³ As appears from its language, Rule 42, W.R.Cr.P. refers to “trial” and certain specified proceedings before and after trial. Neither Rule 19 nor 42 makes provision for attendance of the defendant at the pretrial conference. A pretrial conference is not a part of the trial within the meaning of Rule 42. Peterson v. United States, 8th Cir. 1969, 411 F.2d 1074, cert. den. 396 U.S. 920, 90 S.Ct. 247, 24 L.Ed.2d 199.

In this case, the controversial receipt cannot fall within the provision of Rule 19 that admissions of the defendant or the attorney must be reduced to writing. The defendant’s alibi was that his father, a witness in the case, treated the defendant and the latter’s friend, Tim Worthington, to lunch at the Geyser Drive-In. Sometime after the defendant was charged and before the pretrial conference, the defendant’s father took an old receipt he had from the Geyser Drive-In and asked the proprietor or cashier to date it the day of the crime. The proprietor or cashier accommodated defendant’s father. The receipt was not produced by the defense at trial because, according to the father’s explanation, it was dated for income tax purposes and he was not sure it was actually a receipt received on the date it bore. He admitted having other receipts which had not been ante-dated in a similar way. Obviously the receipt episode seriously affected the father’s credibility. However that may be, if a pretrial conference is to have any value, anticipated witnesses and exhibits are proper matters of disclosure, as is the nature of the defense. Section 3.3, ABA Standards, Discovery and Procedure Before Trial, Compilation, p. 259.⁴ Having made the disclosure, failure to produce the receipt became a fair subject for cross-examination of both the father and the defendant. The State properly came into possession of the information that there was a receipt and it was admitted by both the defendant and his father that there was a receipt. The defendant testified:

“Q. Where did he get that receipt? Do you know?

“A. We had it before and it wasn’t dated.

“Q. Do you have receipts the rest of that week, the 3rd, 4th, 6th, 7th?

“A. No. We only ate there twice.”

There was no need to produce the receipt. The defendant and his father furnished all the evidence necessary to establish its existence.

The defendant has cited the following cases to support his position that cross-examination of defendant with respect to the receipt was improper: Smith v. State, Okl.Cr.1969, 453 P.2d 307; U. S. v. Meeker, 7th Cir. 1977, 558 F.2d 387; State v. Davis, 1975, 305 Minn. 539, 233 N.W.2d 561; and, Roquemore v. State, Okl.Cr.1973, 513 P.2d 1318. I find none of them to be in point. We could have decided this case on that point alone. The citing of inapplicable authority is equivalent to the failure to cite authority. In the absence of cogent argument or authority to support a contention, it merits no consideration. Joly v. Safeway Stores, Inc., Wyo.1972, 502 P.2d 362. There is no question here but that a receipt existed, properly disclosed by defendant’s counsel at a pretrial conference, and admitted by the defendant and his father. This is not a case of the prosecutor inquiring about evidence that did not exist.

Nor is this a case falling within § 5.7(d), ABA Standards Relating to the Prosecution Function:

“(d) It is unprofessional conduct to ask a question which implies the existence of a factual predicate which the examiner cannot support by evidence.”

The comment to the standard states:

“d. Unfounded question

“The attempt to communicate impressions by innuendo through questions which are answered in the negative, for example, ‘Have you ever been convicted of the crime of robbery?’ or ‘Weren’t you a member of the Communist Party?’ or ‘Did you tell Mr. X that . . . ?’ when the questioner has no evidence to support the innuendo, is an improper tactic which has often been condemned by the courts. See, e. g., Richardson v. United States, 150 F.2d 58 (6th Cir. 1945); People v. DiPaolo, 355 [366] Mich. 394, 115 N.W.2d 78 (1962); State v. Flowers, 262 Minn. 164, 114 N.W.2d 78 (1962). See generally 6 Wigmore, Evidence § 1808(2) (1940). See also American College of Trial Lawyers, Code of Trial Conduct §§ 20(c), (d), (g) (1963).”

The majority, to support its holding, cites State v. Stevens, 1969, 93 Idaho 48, 454 P.2d 945, 949, which has much the same thrust as the cited ABA Standard. Following is an excerpt from the page 949 of 454 P.2d referred to:

“During the cross-examination of defendant, he was asked if he had contacted a young lady to have her come to the trial and testify that she had been with him during the day in question. Defendant objected to this question on the ground that it was improper cross-examination. The trial court overruled the objection, and the defendant denied that he had contacted the young lady in question. Defendant contends there was prejudicial error in this regard because the state did not later produce the young lady to testify to these facts. While the practice on the part of the state of leaving with the jury an inference of improper conduct on the part of the defendant in the guise of impeachment, without properly substantiating it by evidence, is not to be condoned in the trial of a criminal case, herein the charge of prejudicial error is neither supported by citation of authority or contained in the argument in the defendant’s brief.”

As can be seen, that is not representative of the state of facts before us. The State, here, did produce evidence through cross-examination of the defendant and the father that one receipt out of several was taken by the father with the apparent knowledge of the defendant to the Drive-In for dating as of the day of the crime. That was all the proof necessary. When the father made that admission, there were facts from which the jury could properly draw an inference — not innuendo. I have no argument with the Stevens case, it just simply is not in point.

State v. Burris, 1922, 194 Iowa 628, 190 N.W. 38, cited by the majority likewise deals with the same subject of a bad-faith examination by a prosecutor without an attempt to establish the facts suggested by the inquiry. That is not the situation we have.

I consider it proper to comment on the dilemma into which the defendant placed himself and inferences that the jury and this court can fairly draw from the facts. The defendant apparently represented to his attorney that he could support his alibi of being somewhere else at the time of the crime by means of a dated lunch receipt from the Drive-In. His attorney, relying on those representations in accordance with the criminal rules pertaining to pretrial conferences, in good faith represented to the trial judge and the State’s prosecutor that he would support the defendant’s alibi with a lunch receipt. Nowhere in the record does it appear that such a receipt would not be produced until the defendant failed to do so during his case.

The lunch receipt, however, was one that had been altered in a dishonest attempt to fabricate evidence. It would seem, then, that the defendant came to realize the dangers arising from such an attempt because of the very real potential that the State could establish its alteration, so decided against its use. However, rather than admit the alteration for the genuine reason to explain its nonuse as evidence, his position was aggravated by a decision to explain it away by a representation that it had been ante-dated for income tax purposes, discredited by the fact that no other receipts had been altered.

The majority applies a sound but inapplicable rule belonging in some other case— not this — to address a question of credibility and permissible cross-examination. When a defendant voluntarily testifies as a witness, he may be cross-examined the same as any other witness and the latitude of cross-examination is largely within the discretion of the trial judge. Porter v. State, Wyo.1968, 440 P.2d 249. Once the defendant in a criminal case takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any witness and the breadth of his waiver is determined by the scope of relevant cross-examination; he cannot give to the jury only those facts in his favor without laying himself open to a cross-examination on those facts. Brown v. United States, 1958, 356 U.S. 148, 157, 78 S.Ct. 622, 628, 2 L.Ed.2d 589, 72 A.L.R.2d 818.

This court has recently announced its rule with respect to the scope of cross-examination. Rule 611(b), W.R.E.:

“(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.” (Emphasis added.)

In the case before us, nothing was more applicable to the subject of alibi covered by the defendant’s direct examination than the existence of a receipt for the lunch which he testified was his alibi. Just how the prosecutor went into the inquiry was perfectly logical:

“Q. I know it is. Why do you remember the 5th, Mr. Roby?

“A. I don’t remember for sure. I just saying I think we were eating up there at the Geyser Drive In.

“Q. Do you have any receipts or anything that would show that?

“A. Not for that day. We have got receipts a lot of the other days, but I don’t think we have one for that date. (Emphasis added.)

“Q. You don’t have a receipt for the 5th of January?

“A. No, sir.

MR. SIMONTON: May we approach the Bench, Your Honor?

(Counsel approached the Bench and a discussion was had out of the hearing of the jury.) (Counsel resumed their places in the Courtroom and the following was taken in the hearing of the jury.)

BY MR. SIMONTON:

“Q. Mr. Roby, have you ever seen a receipt?

MR. JONES: Objection, Your Honor. It’s beyond the scope of direct.

THE COURT: Overruled.

BY MR. SIMONTON:

“Q. Have you ever seen a receipt from the Geyser Drive In in handwriting byone [sic] of the waitresses at the Geyser Drive In with January 5th on it?

“A. Yes, sir.

“Q. Where did you see that receipt?

“A. From my dad.”

Then followed the testimony heretofore set out in this opinion. An unreported bench conference is a bad trial practice. In any event, when held as noted, it would have been appropriate and proper practice to remind the court that a receipt had been reported by the defendant at the pretrial conference, the State was not shooting from the hip and was not about to ask a question it would be unable to pursue.

When the defendant takes the stand, the State is allowed great latitude in cross-examination testing his credibility. State v. Thompson, 1973, 110 Ariz. 165, 516 P.2d 42. Witnesses, West’s Digest System. It is well established that the scope of proper cross-examination may extend to the whole transaction of which the defendant has testified, or it may be employed to elicit any matter which may tend to overcome, qualify or explain the testimony given on direct examination. People v. Dotson, 1956, 46 Cal.2d 891, 299 P.2d 875. The defendant cannot adopt a strategy and at the same time preclude the State from testing its validity by cross-examination. Commonwealth v. Williams, 1974, 227 Pa.Super. 103, 323 A.2d 135. There is no authority that renders alibi testimony on the part of defendant immune from the probing search of cross-examination, and the State has a right to make such inquiry as will cast doubt upon the credibility of a defendant’s alibi. State v. Davis, Mo.App.1975, 527 S.W.2d 32. Any fact which diminishes the personal trustworthiness of the defendant taking the stand in his own defense that is material and germane to the issue may be elicited on cross-examination. State v. Robideau, 1967, 70 Wash.2d 994, 425 P.2d 880, citing V Wigmore on Evidence, § 1368:

“I. The theory of cross-examination. 1. Proof by direct examination of the same witness, contrasted. The fundamental feature is that a witness, on his direct examination, discloses but a part of the necessary facts. That which remains suppressed or undeveloped may be of two sorts, (a) the remaining and qualifying circumstances of the subject of testimony, as known to the witness, and (b) the facts which diminish the personal trustworthiness of the witness.”⁵

The trial judge then, after properly exercising his discretion in receiving the facts elicited on cross-examination, left it to the jury to apply them for whatever effect they might have on the credibility of not only the defendant but his father as well. The jury was properly instructed that it was the jury’s duty to determine the credibility of witnesses. It would be an unreasonable burden to require the State to do more than elicit the facts involving the receipt and, as the trial judge ruled, it was thereafter a question for the jury. Besides that, it would only be repetitious.

I agree with the court’s disposition of the other assignments of error because of the likelihood they will arise during the course of a new trial. There is, however, one more point raised by the defendant in his brief in connection with the sufficiency of the evidence upon which this court has not spoken for many years and which should be enunciated for guidance because the question could likewise arise in any future trial of this case.

The defendant complains of the absence of corroboration of the testimony of the informer, Ring, and the absence of a proper cautionary instruction to the jury. There is no requirement that Ring’s evidence be corroborated. This court has never directly ruled that a cautionary instruction must be given when an interested informer testifies, though that is the general rule. In a rather indecisive way, this court stated the rule to be that a cautionary instruction is “sometimes” given when “informers, detectives, or other persons especially employed to hunt up evidence testified in the case.” Jenkins v. State, 1913, 22 Wyo. 34, 134 P. 260, reh. den. 22 Wyo. 34, 135 P. 749. In that opinion, the court said that since no such individual had testified at the trial, the district judge was justified in not giving such an instruction. I would clarify the applicable rule.

In the record before us, it is shown that the trial judge did give a cautionary instruction.⁶ The general rule is that:

“The testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer’s testimony has been affected by interest, or by prejudice against defendant.”

1 Devitt and Blackmar Federal Jury Practice and Instructions, 3rd Ed., § 17.02 and cases there cited. For an excellent history of the rule, comparatively new, see Fresneda v. State, Alaska 1971, 483 P.2d 1011. That court wisely cautions that every person coming forward to aid in the apprehension of criminals should not be singled out for use of the instruction. See also, Roquemore v. State, supra; Marshall v. State, 1971, 87 Nev. 536, 490 P.2d 1056; and, Todd v. United States, 10th Cir. 1965, 345 F.2d 299. The instruction should be reserved for those who fall within its terms. I am satisfied that the concept was properly applied in this case. In my view, the trial judge fully protected the record by use of a strong cautionary instruction giving the jury every opportunity to discard the key testimony of Ring and acquit the defendant.

I would have affirmed the district court in every respect.

1 . Identical to Rule 17.1, F.R.Cr.P.

2 . The quoted portion is identical to Rule 43(a), F.R.Cr.P. The rest of the federal rule is similar to the balance of Rule 42, W.R.Cr.P.

3 .8 Moore’s Federal Practice — Criminal Rules, § 17.103[3]. Moore suggests that the better and more cautious practice is to obtain a written waiver of presence from the defendant. I would join in the suggestion of Moore.

4 . Section 3.3, ABA Standards, Discovery and Procedure Before Trial, Compilation, p. 259:

“Subject to constitutional limitations, the trial court may require that the prosecuting attorney be informed of the nature of any defense which defense counsel intends to use at trial and the names and addresses of persons whom defense counsel intends to call as witnesses in support thereof.”

5 . Wigmore’s enlargement of (b), at page 37, is pertinent:

“(b) The facts which diminish the personal trustworthiness or credit of the witness will also, in every likelihood, have remained undisclosed on the direct examination. These it is the further function of the opponent’s examination to extract. Some of them, no doubt, could be as well or sometimes better proved by other witnesses. But many of them can be obtained only from the witness himself — particularly those which concern his personal conduct and his sources of knowledge for the case in hand. To this extent, again, cross-examination is vital, i. e., it does what must be done and what nothing else can do.” (Footnotes omitted and emphasis in original.)

6 . The court’s Instruction No. 7:

“One who testified with a promise from the State that he will not be prosecuted is a competent witness. His testimony may be received in evidence and considered by the jury even though not corroborated or supported by other evidence.

“Such testimony, however, should be examined by you with greater care than the testimony of an ordinary witness. You should consider whether the testimony may be colored in such a way as to further the witness’s own interest, for a witness who realizes that he may procure his own freedom by incriminating another has a motive to falsify. After such consideration, you may give the testimony of the promised witness such weight as you feel it deserves.”