Jones v. State

735 P.2d 699, 1987 Wyo. LEXIS 440

• Court: Wyoming Supreme Court
• Decided: April 13, 1987
• Docket: 86-141
• Status: Published

Opinions

THOMAS, Justice.

The only issue raised by this appeal is whether two questions asked the defendant on cross-examination were permissible for purposes of impeachment. One question was whether the defendant had been convicted of a misdemeanor, credit card fraud. The other question related to an arrest for another misdemeanor, disturbing the peace. It was asked (according to the prosecutor) to lay a foundation for showing that the defendant had given a different address to the arresting officer from the one which she had testified to on direct examination. There was no error in asking the defendant about her conviction for credit card fraud. The question eliciting the fact of the arrest was improper, but the error was harmless in the context of this case. The judgment and sentence of the district court is affirmed.

Raynell Jones was convicted of the crime of attempted robbery in violation of §§ 6-1-301 and 6-2-401(a)(ii), W.S.1977 (June 1983 Replacement). Section 6-1-301, W.S.1977 (June 1983 Replacement), provides in pertinent part:

“(a) A person is guilty of an attempt to commit a crime if:

“(i) With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A ‘substantial step’ is conduct which is strongly corroborative of the firmness of the person’s intention to complete the commission of the crime; * * * ”

Section 6-2-401(a)(ii), W.S.1977 (June 1983 Replacement), provides in pertinent part:

“(a) A person is guilty of robbery if in the course of committing a crime defined by W.S. 6-3-402 he:

* * * * * *

“(ii) Threatens another with or intentionally puts him in fear of immediate bodily injury.”

Section 6-3-402, W.S.1977 (June 1983 Replacement), makes it a crime to steal the property of another. After the jury’s verdict of guilty, the court ordered a presen-tence report, and Raynell Jones then was sentenced to a term of not less than three nor more than five years in the Wyoming Women’s Correctional Center with appropriate credit given for presentence confinement. She appeals from that judgment and sentence.

In the Brief of Appellant, the issue is said to be:

“Whether the trial court erred in allowing the prosecutor to question the defendant about prior misdemeanors.”

The State of Wyoming in its Statement of Issues bifurcates the subject in this way:

“I. Does an isolated question from the prosecutor to the defendant about the defendant’s misdemeanor arrest, used as the foundation for impeachment of the defendant’s credibility and admitted by the trial judge, constitute reversible error?

“II. Is the question from the prosecutor to the defendant about the defendant’s misdemeanor fraud conviction allowable under Rule 609(a)(ii), W.R.E.?”

Raynell Jones did not emphasize or strongly urge the matter of the conviction for credit card fraud in her brief or argument.

The victim of this crime was an 81-year old man who, while on his evening walk, was confronted by a woman who indicated to him that she had a firearm and demanded his money. The victim simply continued his walk whereupon words to the effect that he should stop or be shot were addressed to him. He continued on his way and attempted to report this incident to the manager of the apartment complex where he lived. No one was available, so he went to a friend’s apartment and reported the incident. The friend described him as being shaky and nervous. The friend’s daughter then went to the vicinity in which the victim said he had been accosted, and as she turned the corner of one of the buildings, she encountered a woman whom she knew to be Raynell Jones. She so testified at trial. In his trial testimony, the victim identified Raynell Jones as the person who attempted to rob him. Raynell Jones’ defense was alibi which she substantiated by her testimony and that of two witnesses. The tenor of that testimony was that Raynell Jones was in Denver on the night of the robbery.

During the cross-examination of Raynell Jones by the prosecutor, the following questions were asked and the reported answers given:

“Q. Miss Jones, have you ever been convicted of any crime involving false statement and deceit?

“A. I don’t even understand it, could you specify it more or whatever?

“Q. Isn’t it true that in fact that you were convicted of credit card fraud a few years ago?

“A. No, it turned out to be a misdemeanor, and I did a year probation and paid back $500.

“Q. Yes, it was a misdemeanor, that is correct, but you were convicted of that?

“A. Well, yes, I guess, convicted, I don’t know.”

Defense counsel then objected to the information about this misdemeanor on the grounds that it was improper impeachment examination and prejudicial to Raynell Jones.

This aspect of the case appropriately is addressed under Rule 609, W.R.E., which provides in pertinent part as follows:

“(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 * * * (2) involved dishonesty or false statement, regardless of the punishment.”

This rule was adopted from Rule 609, F.R.E., and consequently, the construction of the federal rule is persuasive authority with respect to the interpretation of this rule by our court. The legislative history relative to Rule 609, F.R.E., in the Congress of the United States reflects the debate with respect to the scope of crimes involving dishonesty or false statements. That legislative history indicates that the phrase “dishonesty or false statement” was intended to reach a very narrow subject of criminal activity “such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.” H.R.Conf.Rep. No. 93-1597, 93rd Cong., 2d Sess. 9 (1974), quoted from 3 D. Louisell and C. Mueller, Federal Evidence § 317 at 333 (1979). The crime of credit card fraud fits within that described category of offenses. See United States v. Smith, 179 U.S.App.D.C. 162, 551 F.2d 348, 39 A.L.R. Fed. 539 (1976); State v. Malloy, 131 Ariz. 125, 639 P.2d 315 (1981); and cases cited in Annot. 39 A.L.R.Fed. 520 (1978). We hold that the crime of credit card fraud clearly falls within those crimes involving dishonesty or false statement under Rule 609, W.R.E. See 3 D. Louisell and C. Mueller, Federal Evidence, supra, §§ 317 and 334-335 together with the cases cited.

The record discloses that just prior to the inquiry about the conviction of credit card fraud the following dialogue occurred between the prosecutor and Jones as part of her cross-examination:

“Q. What is the address of your mother’s house?

“A. 934 North Jefferson.

“Q. How long have you been living there, I didn’t catch that, at that time, how long had you been living there?

“A. At what time, in April?

“Q. In April how long had you been living there?

“A. Well, I been living there the whole month of April.

“Q. You were living there in March?

“A. Yes.

“Q. Isn’t it in fact true that you were arrested by Officer Lord for disturbing the peace on March 29, 1985?

“A. I could have been.”

Defense counsel then objected to the questioning and the reference to the arrest for disturbing the peace as being irrelevant and extremely prejudicial. The response of the prosecution was:

“Your Honor, if I may, the relevancy has to be connected as foundation for the next question on the booking forms that night she gave an address completely different than the one she says she was at, that is where the relevancy comes in, merely laying foundation for that question.”

The trial court overruled the objection and the next question and answer were:

“Q. Can you explain to me why on that date you gave the address of 324 East H Street, in Casper, Wyoming, if you were living with your mother?

“A. No law saying you can’t live at two places at one time.”

Jones urges that the reference to the misdemeanor of disturbing the peace is not permissible pursuant to Rule 609, W.R.E. We believe that is correct, but it does not address the vice of the particular question regarding an arrest. The State relies upon Rule 611(b), W.R.E., which provides:

“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.”

The State then contends that the ruling was discretionary with the trial judge and that the deference we give to rulings with respect to the admissibility of evidence is sufficient to sustain the action of the district court in this instance. Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982).

The admissibility of this evidence must be justified within the context set forth in Story v. State, Wyo., 721 P.2d 1020, cert. denied — U.S.-, 107 S.Ct. 459, 93 L.Ed.2d 405 (1986), in which the court advised that Rule 611(b), W.R.E., permits cross-examination which exceeds the scope of the direct examination when it goes to the credibility of the witness. As stated in 3 D. Louisell and C. Mueller, Federal Evidence § 336 at 433 (1979):

“ * * * Rule 611(b) makes it clear that cross-examination may properly pursue ‘matters affecting the credibility of the witness.’ This provision amounts to an endorsement of a long-recognized rule that the scope-of-direct limit does not in any event apply to cross-questions designed to test credibility.”

Even so the relevance of questions relating to arrest for crime traditionally is highly suspect, and ordinarily the prejudice which would attach to such questions when compared to the relevance of the information in the context of Rules 401, 402 and 403, W.R.E., leads to a conclusion that permitting the prosecution to inquire of the accused about prior arrests is error. Gabrielson v. State, Wyo., 510 P.2d 534 (1973), and cases cited in n. 1 at 536. Technically, that is true in this instance.

It is obvious from the record that the point of the prosecutor’s questions was to establish that having testified that she lived with her mother at a particular address during the period of time which is material in this case, Jones had furnished a different address to the arresting officer. In our judgment the prosecutor got the cart before the horse. It is apparent that Jones could have been asked about whether she had furnished a different address, and if she had admitted that she had the impeachment would have been accomplished without any reference to the circumstances under which she furnished it. If she denied having furnished a different address, even upon having her recollection refreshed, then in all likelihood the prosecution could have established the circumstances under which the different address was furnished although prudence might have suggested that the arresting officer simply be called to testify to the fact that she had given him the different address. All of this could have been accomplished without any reference to the arrest for the misdemeanor of disturbing the peace; certainly, it should not have occurred in the way that it did. We hold that it was error simply to ask about an arrest.

The State of Wyoming urges, however, the concept of harmless error with respect to this particular incident. Rule 7.04, W.R.A.P., provides:

“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”

An error must be injurious or prejudicial” to warrant reversal, and it is the burden of the party appealing to establish the injurious or prejudicial nature of the error. Spilman v. State, Wyo., 633 P.2d 183 (1981). We have said with respect to Rule 49(a), W.R.Cr.P., which is the source of Rule 7.04, W.R.A.P., that:

“ * * * For an error to be regarded as harmful, there must be a reasonable possibility that in the absence of the error, the verdict might have been more favorable to the defendant.” Hoskins v. State, Wyo., 552 P.2d 342, 351, reh. denied 553 P.2d 1390 (1976), cert. denied 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977).

Examining this error in the context of the entire record, we conclude that it was not so prejudicial that it affected the outcome of the decision. The reference to the arrest was momentary and not the subject of extensive inquiry by the prosecutor. Cf. Gabrielson v. State, supra. The evidence establishing the circumstances surrounding the attempted robbery and the identity of Jones as the perpetrator was relatively strong.

We have recognized that the danger which attaches to evidence concerning a prior bad act is that the defendant will be found guilty not because he committed the crime charged but because of a general propensity for committing criminal acts or being a bad person. Schmunk v. State, Wyo., 714 P.2d 724 (1986); Gabrielson v. State, supra. In this instance, we are unable to find that the passing reference to the arrest, which simply was prefatory to the fact that a different address had been furnished, was such an error that in its absence there would be any reasonable possibility of a verdict more favorable to Jones. It is clear that she was convicted because the jury believed the witnesses called by the prosecution who testified to the commission of the crime and Jones’ identity and did not accept the alibi evidence for other good reasons.

We conclude that while there was error in admitting the evidence of the arrest, it was not prejudicial, and that no error occurred with respect to the admission of the evidence of the crime of credit card fraud. The judgment and sentence of the district court is affirmed.

URBIGKIT, J., dissents.