Gentry v. State

806 P.2d 1269, 1991 Wyo. LEXIS 23, 1991 WL 18433

• Court: Wyoming Supreme Court
• Decided: February 19, 1991
• Docket: 89-289
• Status: Published

Opinions

GOLDEN, Justice.

Appellant Michael Gentry, convicted by a jury of stealing a motor vehicle under W.S. 6-3-402(a) and (c)(i) (June 1988 Repl.), claims that the trial court committed reversible error when it ruled that his counsel could not elicit the fact of Gentry’s prior convictions upon direct examination. Gentry states the issue to be:

The trial court, having issued a ruling in limine allowing the prosecutor to inquire into defendant’s prior convictions on cross-examination under Rule 609(a), W.R.E., erred and abused his discretion in refusing to allow defendant to testify to those prior convictions on direct examination, prejudiced the defendant, and infringed his constitutional right to a jury trial.

The state restates the issue:

Whether the trial court committed reversible error under W.R.E. 609 in not permitting appellant to testify to his pri- or convictions on direct examination?

We affirm.

FACTS

The state’s theory of the case was that Gentry and his business associate, Jim La-riviere, co-owners of a motor vehicle repair shop, stole a 1977 blue and black Chevrolet Blazer from the Buggy Bath Car Wash which was located a few blocks from the accused’s repair shop. After stealing the Blazer, they allegedly stripped it of its more valuable parts and abandoned the damaged Blazer carcass in a remote area near the edge of town. The Blazer was reported stolen on January 12, 1989, and was found by the police two days later. Law enforcement authorities questioned Gentry and Lariviere on January 18 about the Blazer. Gentry consented to a search of his repair shop and seizure there of numerous parts from the Blazer. Gentry’s theory of defense was that he and his business associate had obtained the Blazer through a customer’s work order that had been telephoned to his business associate. He claimed he was innocent of any wrongdoing and that the stripping of the Blazer at their shop was done at the telephone request of the unidentified customer.

One of the state’s witnesses, officer Lip-ka, testified about an oral confession made by Gentry when questioned on January 18. Gentry denied he made any confession to Officer Lipka. Other facts as they are relevant to our disposition of the appeal will be set forth as necessary.

Before trial, the trial court denied Gentry’s motion in limine to exclude from trial any testimony about Gentry’s six-year old felony conviction for manslaughter. After the state rested following its case-in-chief, the prosecutor told the court that if Gentry testified on his own behalf, the state would not only impeach him with the manslaughter conviction but also with a misdemeanor check fraud conviction.

Gentry testified on his own behalf. On direct examination his counsel asked him whether he had ever been convicted of a felony. The prosecutor objected, stating “this is not the time to do that.” At the sidebar conference the court told Gentry’s counsel that Gentry’s prior convictions had no relevance except by way of impeachment. In reply, Gentry’s counsel explained, “I think that we should be able to bring it out to make it clear to the jury we’re not trying to hide it.” The court sustained the objection saying, “That’s an improper question at this time.”

On cross-examination the prosecutor asked Gentry about his prior felony conviction, to which Gentry’s counsel objected on relevancy grounds. Later, the prosecutor asked Gentry- about his check fraud conviction, to which Gentry's counsel objected on grounds of relevancy. The court overruled both objections.

In closing argument, the prosecutor emphasized that the jury had to decide whether the witnesses had told the truth. Directing the jury’s attention to Gentry, the prosecutor said,

[a]ll you saw was the defendant. This defendant, with the check fraud convictions. This defendant, with felony convictions — conviction on his record. This defendant * * * who doesn’t want to be convicted. This defendant, who will do anything to try to fool you.

Those things fit the considerations of credibility * * *.

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And, finally, whether the facts related are inherently believable * * *.

Defense counsel in his closing argument matched the prosecutor’s theme by telling the jury, “We end up with two men telling completely different stories.”

According to Gentry, the jury’s reaction to his credibility was the single most important factor in the trial. Since his credibility played such a crucial role, he claims that the court’s erroneous evidentiary ruling made it appear he was trying to hide his prior convictions and that false appearance unfairly tipped the scale against his credibility in the eyes of the jurors. Had he been allowed to testify first about his checkered past, Gentry asserts, it is reasonably possible the verdict might have been more favorable for him.

DISCUSSION

Standard of Review

Generally speaking, an evidentiary ruling is within the sound discretion of the trial court, and we will not find error unless the court abused its discretion. Velos v. State, 752 P.2d 411, 414 (Wyo.1988). We continue to say that, “[¡judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.” Martin v. State, 720 P.2d 894, 897 (Wyo.1986).

W.R.E. 609(a)

The state contends that the trial court’s ruling was correct since our rule establishes on its face that a witness’s prior convictions may be raised only on cross-examination. That rule provides:

(a) General rule. — For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one (1) year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.

W.R.E. 609(a).

We do not read the rule as narrowly as does the state. As we read the rule, it does not say that the proponent of a witness may not elicit on direct examination the fact of the witness’s prior convictions. In the context of a charge of ineffective assistance of counsel, this court has commented: “It was also a legitimate tactic to have his client voluntarily discuss his prior convictions before they were raised by the prosecution in cross-examination.” Robinson v. State, 716 P.2d 364, 368 (Wyo.1986). Authors Louisell and Mueller tell us, “When the proponent of a witness anticipates that his adversary will raise the fact of prior convictions upon cross-examination, it should be proper for the proponent to blunt the impact of such impeachment by bringing out the pertinent facts upon direct examination.” 3 D. Louisell & C. Mueller, Federal Evidence § 319, p. 347 (1979).

A look at federal authority is helpful since W.R.E. 609(a) is identical to F.R.E. 609(a). See Jones v. State, 735 P.2d 699, 701 (Wyo.1987). In United States v. Hasenstab, 575 F.2d 1035, 1040 (2d Cir.1978), cert. denied, 439 U.S. 827, 99 S.Ct. 100, 58 L.Ed.2d 120 (1978), the court approved the government’s practice of eliciting from its chief witness on direct examination testimony about that witness’s prior convictions. The court noted that had the government not done so, the jury might think that the government had something to hide. See also, United States v. Bynum, 566 F.2d 914, 923 (5th Cir.), cert. denied, 439 U.S. 840, 99 S.Ct. 129, 58 L.Ed.2d 138 (1978); United States v. Apuzzo, 555 F.2d 306, 307 (2d Cir.1977), cert. denied, 435 U.S. 916, 98 S.Ct. 1470, 55 L.Ed.2d 507 (1978); United States v. Hawley, 554 F.2d 50, 52 (2d Cir.1977) (after trial court denied motion in limine, defense counsel brought up the subject of prior convictions on direct examination); and United States v. Nelson, 529 F.2d 40, 42 (8th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2631, 49 L.Ed.2d 377 (1976), (after trial court denied defense motion in limine to suppress prior convictions, defense counsel elicited testimony about them on defendant’s direct examination). In United States v. Dixon, 547 F.2d 1079, 1082 n. 2 (9th Cir.1976), the court said, “It seems clear from the legislative history that on direct examination, a party may elicit the evidence of a prior conviction from his own witness * *

Use of testimony about the existence of prior convictions, in order to blunt the opponent’s impeachment cross-examination on that subject,, is to be distinguished from the improper practice of a proponent's eliciting evidence of the absence of prior convictions from his or her own witness. See, e.g., United States v. Hicks, 748 F.2d 854, 859 (4th Cir.1984). This latter “tactic amounts to supporting a witness before he has been attacked, and it is forbidden by Rule 608(a).” 3 Louisell & Mueller, supra, at 206 (1989 Supp.).

We hold that a proponent may elicit on direct examination evidence of the existence, but not the absence, of his or her own witness’s prior convictions. Applying that view to the trial court’s ruling on Gentry’s direct examination about his prior convictions, we hold that the trial court erred in sustaining the prosecutor’s objection.

The state claims, however, that this erroneous evidentiary ruling was harmless error. W.R.Cr.P. 49(a) provides that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” See also W.R.A.P. 7.04. We turn now to this court’s harmless error jurisprudence to determine whether the trial court’s erroneous evidentiary ruling affected substantial rights to which Gentry was entitled.

Constitutional Error

Gentry asserts that the erroneous evidentiary ruling is of constitutional magnitude since it precluded him from testifying on direct examination about his prior convictions thereby impinging on his right to have the jury fairly judge his credibility. Positing that credibility determinations are an essential element of the right to a jury trial, Gentry seeks to anchor his assertion of constitutional error to the right of trial by jury found in the sixth amendment to the United States Constitution and Wyo. Const, art. 1, § 9. In the case of constitutional error, Gentry observes, the burden is on the state to show that the error is harmless beyond a reasonable doubt. Hyde v. State, 769 P.2d 376, 381 (Wyo.1989); Maupin v. State, 694 P.2d 720, 723 (Wyo.1985); Krucheck v. State, 671 P.2d 1222, 1225 (Wyo.1983); Ortega v. State, 669 P.2d 935, 943 (Wyo.1983); Campbell v. State, 589 P.2d 358, 366, 368 (Wyo.1979).

In response to Gentry’s assertions, the state counters that an erroneous ruling under W.R.E. 609(a) does not reach constitutional dimension, Vaupel v. State, 708 P.2d 1248, 1250 (Wyo.1985), and that Gentry, as appellant, has the burden of establishing the prejudicial or injurious nature of the error. Jones, 735 P.2d at 702-03; and Spilman v. State, 633 P.2d 183, 185 (Wyo.1981).

Vaupel is not helpful because this court was treating whether a ruling in limine under W.R.E. 609(a) reaches constitutional dimensions. The issue here goes beyond a ruling in limine; the trial court’s ruling prevented Gentry from presenting prior conviction evidence in his case-in-chief. In Campbell this court adopted for constitutional questions the rule of Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11, 24 A.L.R.3d 1065 (1967): before a federal or state constitutional error can be held harmless, the burden is on the state to demonstrate and the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Campbell, 589 P.2d at 367, 368. In that case this court referenced the few constitutional violations that can never be classified as harmless error: coerced confession, right to counsel, and impartial judge. Id., 589 P.2d at 367 n. 6. In Ortega this court identified as constitutional error the erroneous admission of improperly seized evidence in violation of the fourth amendment of the United States Constitution, but found it to be harmless beyond a reasonable doubt under the totality of all the evidence. In Krucheck this court held an erroneous jury instruction, which failed to inform the jury that the existence of malice as an element of the offense of second degree murder must be proven beyond a reasonable doubt, was constitutional error in light of the requirement of the fourteenth amendment, United States Constitution, that the state must prove every element of a criminal offense beyond a reasonable doubt. In Maupin this court identified the trial court’s erroneous ruling, that the trial proceedings could continue despite the accused’s involuntary health condition-caused absence, as constitutional error in light of the accused’s right under the sixth amendment, U.S. Const, amend. VI and Wyo. Const, art. 1, § 10 to be present during every stage of his or her trial.

We conclude that the trial court’s erroneous ruling precluding Gentry’s direct examination testimony about his prior convictions reached constitutional magnitude. U.S. Const, amend. VI; and Wyo. Const, art. 1, § 10. Because the ruling infringed on Gentry’s right to defend himself and present evidence in his own behalf, it is constitutional error.

Effect of Constitutional Error

We turn now to determine whether that constitutional error requires reversal or was harmless beyond a reasonable doubt under the totality of all the evidence. Gentry urges us to keep our focus in the narrow context that the ease boils down to “two men telling completely different stories.” With that narrow focus, Gentry claims, the jury reaction to Gentry’s credibility is the single most important factor in the trial. Thus, Gentry sees the case as whether the jury believed officer Lipka, who testified that Gentry confessed to him, or Gentry, who testified that he never confessed to officer Lipka.

We have examined this constitutional error in the context of the entire record, Jones, 735 P.2d at 703, including the complete trial transcript; we did not simply compare officer Lipka’s testimony with Gentry’s, but examined each witness’s testimony in light of the testimony of the other witnesses. The following is the court’s instruction to the jury as to its role in the determination of witness credibility:

You will decide which witnesses you believe and how much weight you give their testimony. In deciding what you believe, you may consider anything about a witness which tends to prove or disprove truthfulness, including the following:

1. His conduct, attitude, and manner while testifying;

2. His physical and mental capacity to have heard or seen that about which he testifies;

3. His ability to remember and to tell here in court what he has heard or seen;

4. His reputation for honesty and truthfulness or for dishonesty and untruthfulness;

5. Whether he has a bias or prejudice, an interest in the outcome of the trial, or any other motive for not telling the truth; and

6. Whether the facts he related are inherently believable or unbelievable.

In evaluating witness credibility other facts are also important.

1. You should consider statements by a witness that are either consistent or inconsistent with testimony given in court.

2. If a witness admits to untruthfulness at some other time, you may consider that admission but you should take into account all the circumstances surrounding it; for instance, whether it was a sworn statement, whether it was made under pressure, whether it was self-serving and whether it was an important or merely a minor misstatement.

3. If you conclude that a witness has willfully lied under oath about any material fact in this case you may distrust all of his testimony. On the other hand, if you think it is reliable, considering all the other evidence, you may still believe it. Differences between one witnesses’ testimony and that of others, does not necessarily mean someone is untruthful. Two persons who witness an incident may see or hear it differently. In resolving differences in testimony, you should consider all the circumstances of the case whether the discrepancy concerns an important fact or a trivial one.

You should not decide a fact based on the number of witnesses who testify about it. The testimony of one witness you believe, considering all the circumstances of the case, is sufficient to prove any point.

In other words, a witness’s credibility is a quilt of many patches: demeanor, forthrightness, apparent motives, internal consistency of testimony, external consistency of testimony when compared to other witnesses’ testimony, and plausibility of the witness’s testimony in relation to the jury’s combined life experiences. No one of these patches is a talisman for the jury; instead, it is in their interrelationship as perceived in the collective mind of the jurors that they have significance and effect. Probably, the whole is larger than the individual parts.

The Evidence

Gentry’s credibility was damaged by several telling pieces of evidence. A more detailed review of the facts bearing on credibility may help place Gentry’s claim of error in perspective. We are mindful that the trial court had properly instructed the jury that if it concluded that a witness has willfully lied under oath about any material fact in this case, it could distrust all of that witness’s testimony. Apart from officer Lipka’s claim and Gentry’s denial of confession, strong evidence of Gentry’s guilt existed. There was no dispute that Gentry went to get the Blazer, towed it to his repair shop, stripped it of its valuable parts, voluntarily showed those parts to law enforcement authorities and first consented to their seizure. The dispute centered on whether he stole the Blazer in the first place or, as Gentry claimed, he was innocently involved in someone else’s theft of it.

Gentry testified that when he and his business associate Lariviere first went to work on the Blazer on January 12 at a location where the alleged customer had left it because it would not start, Lariviere handed him the key to the ignition and he (Gentry) tried unsuccessfully to start the engine. Gentry further testified that the Blazer key was at his repair shop along with the Blazer as they worked on it on January 12 and 13. In sharp contrast, the state presented two witnesses, the manager of the Buggy Bath Car Wash and the owner of that firm who also was the Blazer’s owner, who testified they had possession of the only sets of keys to the Blazer at all times. Since these men had possession of the Blazer’s keys both before and after the Blazer was stolen, the jury no doubt did not believe Gentry’s testimony that he had a key for the Blazer.

Gentry called game warden William F. Burton to testify about Burton’s questioning of Gentry which occurred shortly before officer Lipka questioned him. Burton testified that when he asked Gentry about a possible vehicle that might be in his shop, Gentry denied knowing anything about the vehicle and would not talk to Burton about it. In contrast, Gentry’s trial testimony was the Blazer had been in his repair shop. The jury reasonably could have believed Burton’s testimony and drawn the inference that initially Gentry was trying to deny knowledge about the Blazer.

The jury also heard testimony from both Gentry and his wife that on January 14, the day on which the police found the stolen Blazer, Gentry and his wife drove to California, allegedly to visit her father who had allegedly suffered a heart attack. Their testimony had Gentry returning to Gillette without his wife on January 17, but not returning to his repair shop where he was the sole mechanic and where three customers’ motor vehicles awaited his work. Instead, Gentry and Lariviere sighted in a rifle on January 18, and Gentry left for California again on January 20 to get his wife. Their testimony then had them both returning to Gillette late in the evening of January 22 or early in the morning of January 23; then, Gentry in just “a few hours” left again for California allegedly to “keep an eye on his wife’s parents” and do some remodeling work on a friend’s apartment complex. Moreover, despite Mrs. Gentry’s testimony to the contrary, officer Lipka testified that she told him on January 23 that when Gentry arrived in California, before she returned to Gillette, he met with her for an hour, gave her custody of their children, told her he was in trouble and would be leaving. Gentry was arrested in Washington several months after leaving Gillette. In light of Gentry’s testimony that he wanted to make a go of his Gillette repair shop, the jury reasonably could have concluded that he left Gillette to avoid arrest in connection with the stolen Blazer. Flight is evidence of guilt. Smizer v. State, 752 P.2d 406, 411 (1988).

Having carefully examined the error in the context of the entire record, we conclude that it did not adversely affect the jury’s verdict. The error related to which party would present the prior conviction evidence, not to whether that evidence was admissible. Gentry concedes that the prior conviction evidence had sting — it would hurt him. He claims that deprivation of his right to present that harmful evidence first rendered his trial unfair. We disagree. There was strong evidence of Gentry’s guilt, which evidence fatally implicated his credibility. We note that the prosecution in closing argument did not comment about which party presented the prior conviction evidence. There was no argument that Gentry had tried to hide that evidence but that the prosecution had brought it forward in its search for the complete truth.

In this instance, we are unable to find that the trial court’s failure to let the accused present the prior conviction evidence in his case-in-chief was such an error that in its absence there would be any reasonable possibility of a verdict more favorable to Gentry. It is clear that he was convicted because the jury believed the prosecution’s witnesses and did not accept Gentry’s explanation of innocent involvement. We presume the jury read and followed the instructions and, in particular, determined witness credibility in light of all of the facts that relate to it as properly explained in those instructions.

We conclude that although the trial court erred in not permitting the accused to present prior conviction evidence in his case-in-chief, that error was harmless beyond a reasonable doubt.

Affirmed.