Fajeriak v. State

439 P.2d 783, 1968 Alas. LEXIS 162
CourtAlaska Supreme Court
DecidedApril 1, 1968
Docket794
StatusPublished
Cited by14 cases

This text of 439 P.2d 783 (Fajeriak v. State) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fajeriak v. State, 439 P.2d 783, 1968 Alas. LEXIS 162 (Ala. 1968).

Opinions

NESBETT, Chief Justice.

Appellant was convicted of the first degree murder of Anthony Rizzo upon the eye witness testimony of Dean Gamradt and [785]*785James Benton.1 Appellant’s defense, as outlined in his counsel’s opening statement, was that Gamradt and Rizzo were both homosexuals who were strongly attracted to appellant and that Gamradt killed Rizzo because he was a competitor with Gamradt for the homosexual attention of appellant.

The first question to be resolved is whether the trial court unduly restricted the defendant-appellant’s right to cross-examine a state’s witness.

During the direct examination of Dean Gamradt the State inquired whether he was a homosexual. His answer was “no”. On cross-examination counsel for appellant inquired whether he knew any homosexuals and whether he was familiar with their vernacular. The answers to both questions were in the affirmative. The witness was then asked whether he knew what a “Queen” was in homosexual vernacular. At this point the district attorney objected on the ground that the question was beyond the scope of the direct examination. The objection was sustained. The court explained its ruling by stating that the defense would not be allowed to try the witness for homosexuality during the course of a first degree murder trial and pointed out that appellant could recall the witness Gam-radt later to prove his defense if. he desired to do so.

Appellant now contends that the court’s ruling was an unwarranted restriction of his constitutional right to confront and cross-examine witnesses.2 Appellant argues that because the prosecution asked the witness whether he was a homosexual, the subject was a proper one for cross-examination and his right to a full and fair cross-examination on the subject of the direct examination was violated by the ruling. Appellant represents that it is only after the defendant has been afforded a full and fair cross-examination on the subject matter of the direct examination that the limitation of the scope of further cross-examination can become a matter within the court’s discretion.

Appellee’s position is that the court did not in fact limit appellant’s cross-examination of the witness Gamradt as alleged, but that it merely limited the scope of inquiry on what was at best a collateral issue, his knowledge of homosexual vernacular.

The permissible scope of cross-examination is governed in Alaska by Civil Rule 43(g) (7) which states:

An adverse party may cross examine a witness as to any matter stated in the direct' examination or connected therewith, and in so doing may interrogate the witness by leading questions.

In Pedersen v. State 3 this court held that the trial judge was vested with wide discretion in controlling the scope of cross-examination. We now hold that the trial [786]*786•court’s ruling concerning the permissible scope of cross-examination will not be disturbed on appeal in the absence of an abuse •of discretion.

The court did not err in sustaining the appellee’s objection. Appellant’s right to cross-examine was not unreasonably curtailed.4 1-Iis attempt to continue to cross-examine the witness on the collateral subject of his knowledge of homosexual vernacular was not improperly restricted.5 The court appropriately pointed out that if appellant desired to examine the witness in areas which might prove his defense that Gamradt had committed the murder, he should recall Gamradt as his own witness at the time he presented his defense.

The next question is whether the trial court abused its discretion when it refused to permit appellant to examine the state’s witness Gamradt by leading questions, as though he was a hostile witness, when recalled to the stand by appellant as a defense witness.

Appellant relies on that portion of Civil Rule 43(g) (12) which states:

A party may interrogate any unwilling or hostile witness by leading questions,

and argues that Gamradt should have been considered a hostile witness because of his “clear alignment of interest with the State” and because of “antagonism directed to appellant”. In support of his claim of clear alignment and antagonism appellant emphasizes that his defense was that Gamradt had killed Rizzo and alleges in his brief:

Only Gamradt and Fajeriak (appellant) knew exactly what happended in the back seat of Benton’s automobile. If Fajeriak was not the murderer, then Gamradt had to be. Fajeriak had already testified that Gamradt did the killing.

In denying appellant’s request that he.be permitted to examine Gamradt as a hostile witness the court explained that a showing of hostility must have first been made before he could be considered hostile.

In the writer’s opinion, the trial court was correct. Professor Wigmore says that the reason for not permitting a party to examine his own witness by leading questions is to prevent false testimony from being suggested to a friendly witness by the form of the question.6 A witness is assumed to be friendly to the party calling him, but if he in fact or by reason of alignment, turns out to be hostile to that party, no reason exists for prohibiting his examination by leading questions.7

The above reasoning reflects the basis for the common law rule. Federal decisions interpreting Federal Rule of Civil Procedure 43(b), which is identical with that portion of our Civil Rule 43(g) (12) with which we are here concerned, also require that a showing of hostility be made before the witness may be examined by leading questions.8 I so interpret the requirements of Civil Rule 43(g) (12).

This court has held that whether leading questions are to be permitted lies within the discription of the trial court,9 which will not be interfered with on appeal in the absence of an abuse. Appellant has not invited our attention to any portion of the record that would indicate that Gamradt was in fact hostile and we have found none. Appellant relies on his assertion that he had already testified that Gamradt did the killing as a basis for the presumption that Gamradt was clearly aligned with the State. Our examination of the record has convinced us that appellant is in error as to this assertion. Appellant had not testified [787]*787at the time it was attempted to examine Gamradt as a hostile witness.10 In my opinion, no showing of alignment sufficient to support a presumption of hostility was made. My colleagues disagree with me on this point and the majority view on the question of hostility by alignment is set out in the separate opinion of Justice Dimond.

Appellant’s third point is that the trial court erred in admitting the testimony of Jack Ebner and John Martinson to the effect that Dean Gamradt did not have the general reputation of being a homosexual in his home town of Brainerd, Minnesota.

Appellant’s defense was that Gamradt, prompted by jealousy, had killed Rizzo. Appellant took the stand in his own defense and testified that Gamradt was a homosexual. In rebuttal the State called Ebner and Martinson.

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Fajeriak v. State
439 P.2d 783 (Alaska Supreme Court, 1968)

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Bluebook (online)
439 P.2d 783, 1968 Alas. LEXIS 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fajeriak-v-state-alaska-1968.