State v. Kazda

382 P.2d 407, 14 Utah 2d 266, 1963 Utah LEXIS 198

• Court: Utah Supreme Court
• Decided: June 14, 1963
• Docket: 9792
• Status: Published

Opinions

CALLISTER, Justice.

Defendant appeals from a conviction by a jury of the crimes of assault with intent to commit murder and robbery.

On February 20, 1962, an elderly man was robbed and shot at his home in Bridgeland, Utah. A Mrs. Norma Barker testified that she had accompanied the defendant and his brother, Dennis, in an automobile from Salmon, Idaho to Bridgeland where the two brothers put nylon stockings over their heads, took a sawed-off shotgun and entered the home. Upon their return they told her of the robbery and shooting.

Prior to defendant’s trial Mrs. Barker had been convicted of being an accessory and Dennis convicted of the same two crimes for which the defendant now stands convicted.

Both the defendant and his brother testified that the defendant was asleep in the hack seat of the automobile at the time and was unaware of the occurrence.

Defendant first urges that there was no corroboration of the testimony of Mrs. Barker, an admitted accomplice, and that the evidence was insufficient. These contentions are without merit. The defendant admitted his presence in Bridgeland at the time of the incident; the shotgun and the nylon stockings were found along the route taken by the trio after leaving the scene; and, an independent witness testified that the defendant admitted to him that he shot a man with a shotgun in Utah.

Also assigned as error is the cross-examination of the defendant as to prior convictions. It was elicited upon cross-examination that the defendant had several prior felony convictions, unrelated to the instant charge, and he maintains that this amounted to a general assault upon his character and thus constituted prejudicial error. This is also without merit. When an accused voluntarily takes the witness stand he may be asked whether or not he has ever been convicted of a felony. Such a question is sanctioned by statute.¹ If the accused answers in the affirmative, he may be asked the nature of the felony.² Further, the accused may be asked if he has been convicted of more than one felony,³ and if so, the type or nature thereof.

The apparent purpose and reason for permitting the prosecution to question the accused 'regarding prior felony convictions is to affect his credibility as a witness.⁴ However, the details or circumstances surrounding the felony or felonies for which the accused was convicted may not be inquired into except under unusual circumstances, when the inquiry would tend to show a scheme, plan, modus operandi, or the like. In the instant case the details of the prior felony convictions were not asked of the defendant.

This brings us to an assignment of error made by the defendant which is meritorious. At the trial an F. B. I. agent testified for the State. His testimony related to interviews had with the defendant after the latter had been arrested and incarcerated (not for the crimes for which defendant now stands convicted) in Medford, Oregon. The only pertinent, and admissible, statement made by the defendant to the agent was that (referring to the Bridge-land incident) “I guess you can consider me an accessory to the fact * * *. I was in the back seat of the car drunk and my brother Dennis and Norma Barker robbed that man * * *. Norma Barker shot the man.”

However, the court permitted, over some objections, the prosecuting attorney to elicit from the agent the entire conversations he had with the defendant which included questions by the agent relating to various crimes, including murder, which had been committed in numerous states. The defendant denied the commission of these crimes, but, according to the agent, did admit that he had been arrested for an armed robbery of a liquor store in Nebraska, but that he had had nothing to do with the same. At the close of the interrogation the agent, as he so testified, advised the defendant that there were two outstanding warrants for his arrest in Nebraska.

It is true that the court, in response to an objection, at one time admonished the jury that any offenses mentioned in the interrogation should be disregarded since they did not tend to connect defendant with the instant case. However, the prosecution proceeded to elicit from the agent the entire conversation.

We deem the foregoing to constitute prejudicial error. It implied that the defendant was implicated in other crimes, none of them proven, and could have no other effect than to degrade the defendant and give to the jury the impression that he had a propensity for crime. It is true that the defendant admitted prior felony convictions, but “we cannot say with any degree of assurance that there would not have been a different result” ⁵ in the absence of such testimony.

Reversed and remanded for a new trial.

McDonough, crockett and WADE, JJ., concur.

1 . 78-24-9, U.C.A.1953; State v. Crawford, 60 Utah 6, 206 P. 717.

2 . State v. Crawford, ibid; State v. Dickson, 12 Utah 2d 8, 361 P.2d 412.

3 .People v. Eldridge, 147 Cal. 782, 82 P. 442. It is true that 78-24-9, U.C.A.1953 uses the word “felony” in the singular, but 68-3-12(6) provides that in construing statutes the singular includes the plural.

4 . State v. Crawford, supra n. 1.

5 . State v. Dickson, supra n. 2.