*1 GIST, Appellant Louis Steven
(Defendant), Wyoming,
The STATE (Plaintiff). Appellee Sumida, Defender, Steven E. Asst. Public No. 87-263. appellant. for Wyoming. Supreme Court of Gen., Joseph Meyer, Atty. Sylvia B. Lee Dec. 1988. Hackl, Gen., Atty. Senior Asst. and Marla Intern, (argued), Vollmar Student Prosecu- Clinic, appellee. Assistance CARDINE, C.J., Before THOMAS, MACY, JJ., URBIGKIT and BROWN, J., Retired.* CARDINE, Chief Justice. Appellant Steve Gist was convicted of delivery substance, marijua- a controlled na, 35-7-1031(a)(ii), in violation of W.S. § conviction, appeals 1977. He contend- ing prohibiting that the trial court erred presenting him from witnesses to against a narcotics officer who testified him.
We reverse. 17,1985, Lauck,
On David an under- Campbell cover narcotics officer for the County Department, appel- met Sheriff’s brother, Gist, Roger alley lant’s be- side Gist brothers’ house. two vehicle, Roger men entered a Gist Agent Lauck if make asked he wanted to purchase. During this discus- sion, Roger marijua- lit and smoked a Gist cigarette. According na Roger cigarette Gist offered the to him and cigarette.” he “simulated the use of that Roger While Gist and Lauck were in car, appellant Steve Gist was outside talking the residence to someone in a truck. Roger Gist and Lauck left and, they vehicle walked towards house, person pulled up named Robin buy Roger told Gist wanted Gist, marijuana. Roger Agent Lauck into the house and en- and Robin walked kitchen removed tered the where * Justice, Retired, Chief June *2 it out in the car “Q. you just smoked So marijuana be- “samples” of everybody? of in front Af- kitchen table. the leaves tween Agent Lauck and I samples, “A. didn’t smoke viewing the
ter purchase. agreed to make you do sim- “Q. Robin both You simulated it. How exhaling someone’s smoke when ulate Lauck, appellant Agent According to sitting right you? next to and, Roger after residence entered the then exhaling. I I didn’t “A. didn’t simulate pur- quantities to be him of informed any I didn’t take any smoke out. blow and returned chased, kitchen he left my I even touch it to smoke in. didn’t marijuana, was all ounce of with one lips. According Agent to left. that was you’ve used “Q. you say And never baggie marijuana appellant handed drugs? money him to him and told right. “A. That’s Lauck did so and Agent windowsill. Objection, Your Honor. “MR. MASSEY: left the residence. inappropriate. That’s transaction, appellant a result of this As I believe he testified “MR. SAMPSON: marijuana delivery of charged with was direct, Honor. that on Your brother, Roger, was his and I don’t think he did testi- “THE COURT: delivery. jury- A abetting a aiding and fy to that. delivery charge. appellant of the convicted Honor, Your whether or “MR. MASSEY: conviction, con- appeal, reversed the On we day particular not he smoked on appellant received ineffective cluding that relevant, use, past if there was any but State, of counsel. Gist v. assistance any, under the rules of evi- is irrelevant P.2d 336 dence. remand, jury trial was After a second “THE COURT: Sustained.” Agent relied on Lauck as held. The State cross-examination, appellant’s Later In his its sole witness. if he testified asked counsel as follows: Lauck testified trial that he never earlier you else “Q. you anything do while Did drugs. The court sustained used Gist? were the vehicle stating question, objection to this State’s appeared Roger lit a—what “A. Yes. trial issue that’s “[t]he cigarette day, marijuana to be a perceptions his were is whether it, I the use of he smoked and simulated day.” drugs on that by the use of cigarette. conference, appel- ensuing In the bench use; “Q. simulated say you You stated attorney argued that Lauck’s testi- lant’s by that? you mean concerning grand jury in the mony his role appearance give suspects “A. investigation opened the door to evidence but that would be More Lauck. drugs. don’t use the argued appellant’s counsel specifically, you did that? “Q. it that And how was present allowed to he should be cigarette in a “A. rolled With prior drug use with other Agent Lauck’s is take it form, to do mainly, you all in order to contradict Lauck’s bring from them without hesitation the use simulated statement mouth, you like up your close to argued that the drugs. Appellant also it, smoking return it back be drug use was relevant them. recall the ability perceive you did then of On 17th appellant was for which transaction cigarette? smoke that hearing arguments, charged. After these No, (Emphasis not.” “A. appellant’s counsel court informed inquire Mr. Lauck you Lauek’s testimo- “if want During use, going I’m about his attacked ny on this going I’m permit you to do that. exchange: following you prove by to let extrinsic evidence or credibility, other than conviction of a attempt prove by any other kind of provided crime as in Rule may not extrinsic evidence that what he said is proved by be They extrinsic evidence. false. You have to with his live answers. may, however, in the discretion of the answers, just don’t like his that’s court, probative if of truthfulness or un- going tough to be cookies.” truthfulness, inquired into on cross- *3 (1) examination of the concerning Defense witness counsel’s cross-examination of his Agent character for following Lauck continued with the truthfulness or untruth- fulness, (2) exchange: concerning the character for truthfulness or “Q. untruthfulness of an- drugs? Officer use other witness as to which character the illegal drugs. “A. No. I’ve never used being witness cross-examined has testi- drugs You never used May on fied.” 17th? purpose 608(b) “A. That’s The correct.” of Rule prevent is to party extrinsic spe- evidence of rested, After the State the court allowed cific conduct order to establish character appellant to proof make an offer of disposition to be untruthful. 3 D. Loui- persons form of of several who Mueller, sell and C. Federal Evidence drugs claimed to Agent have used with 306. To the extent that the § Lauck. The thrust of their was Agent Lauck’s during was offered Campbell County Grand purpose, for this clearly it was Jury investigations Lauck did not inadmissible simulate use, 608(b). under drug Rule The actually evidence was also ingested but instead sev- offered, however, for including purposes. eral different two other metham- phetamine purpose first was marijuana. Agent to contradict hearing After proof, the offer of Lauck’s assertion in his the court reaffirmed its ruling excluding testimony. simulated the use of but did not use them. Sec- Roger Gist then testified on behalf of ond, the evidence was offered to show that appellant. He stated that Lauck because prior Lauck used on “definitely marijuana inhaled” when the occasions, marijuana he likewise used two men were the car outside 1985, and, Gist on as a day residence on the of the trans- result, perception his was at the action, “got and that high” on that time of the transaction. marijuana. He also testified that he deliv- marijuana ered the to Lauck ap- and that The trial court erred in determining that pellant the house when the 608(b)precluded Rule the admission of the transaction Appellant occurred. then testi- offered testimony purposes. for these fied that he did not deliver the (though “It is perhaps unfortunate un- Agent Lauck and that he did not know that derstandable) that the courts sometimes transaction occurred until some- recognize fail to that the focus of Rule Approximately time later. eight hours af- upon impeachment 608 is and rehabilita- beginning deliberations, ter re- by proof of the disposi- character or guilty turned a verdict. respect tion of a witness with to veraci- In challenging conviction, appel ty, provision and that affects im- lant focuses ruling on the peachment trial court’s by only in contradiction prevented which presenting him from wit way. most incidental Where a nesses to disposi- seeks to establish character or drug use. In excluding by proof specific tion to untruthful 608(b), W.R.E., trial court relied on Rule witness, conduct in- Rule provides, which part: structs that such conduct be re- “Specific Specif- questions instances vealed directed to the of conduct.— himself,
ic instances of conduct of and not means of purpose attacking (or ‘extrinsic’) supporting other evidence. Inciden- Thus, past. the offered is to tion of an innocent of this restriction
tally, the effect it miscon- was admissible since tended to extrinsic foreclose might have the effect Lauck’s direct examination testimo- duct refute the witness elicit- tradicting denial ny point. aon substantive and in this ed It is the trial court 608(b) does indeed Rule narrow sense might have excluded this evidence “in separate mechanism quite affect First, Rule 403. discretion” under by contradiction. readily apparent the trial court did sight lost focus courts have discretion, not, in its exclude this evidence indicated that and have Rule erroneously under Rule but excluded general imposes a more provision 608(b). Thus, the trial court impeachment by contra- upon restriction stated: diction, these respect in this deci- Furthermore, Rule MASSEY:] “[MR. and should be treated sions are unsound *4 404(a)(ii) that of a wit- states character caution. ness, of a witness evidence of character in his direct a witness asserts “When 607, 608, governed by Rules is testimony point which can be refuted a ** * im- I think it’s “MR. SAMPSON: particular a his conduct on evidence of portant to know whether Mr. Lauck is occasion, question the ad- the whether drugs under the influence wheth- be allowed to intro- should verse * * liar, Mr. Lauck is a *. er way counterproof by duce such tradiction must be answered resort [******] witness, at the other 403 and 611. Often such ly admissible to contradict out timony form of by way provisions the least where of cross-examination of extrinsic evidence specifically Rules 401- whether it also tends to proof is the or comes it entire- takes tes- Lauck. of conduct that seems to me is “[THE COURT:] attempt [******] try the character you’re trying to merely a [T]he specific instances thinly Detective elicit, veiled it prove by going I’m to let “But such on a substantive refute prove by (as attempt or by contradicting an assertion extrinsic evidence point evidence that party-witness any of an innocent or acci- other kind of extrinsic a false. past), or to another he said is dent-free establish what witness scheme defense or to establish a which affects his other character substantive than or was involved in some (as by showing that plot, point by shedding criminal (as by showing credibility in some fact case, about might support light upon his for inway example) that witness way wit- a ness State stand “MR. [******] [******] under Rule 608. would MASSEY: prove your ruling, for object truthfulness or untruthful- Your using anything pri- Honor, if I record, under- ness is of extrinsic whether of conduct ler, does not ceived.” ence). original.) Federal Evidence § biased the evidence should be (Footnotes even evidence 3 D. Louisell such bear subject does of specific circumstances, upon the omitted; not bar to undue and C. Muel- pp. 127-28 instances emphasis question receipt influ- re- let use said. “[THE COURT:] “THE COURT: permit Mr. [******] They Sampson that he did.” can’t That’s past, that. on a whole batch what I’m not I’m not says: thought going to going didn’t (1988 Supp.) Second, prosecut- we have this case examination, is ing witness —who on direct “but Lauck testified in his for testifies drugs.” an the State —who This was asser- don’t that, impeachment probably “I don’t use the direct examination resulted drugs.” That went to the a different verdict. That of defendant’s case. heart The State contends that the trial court’s Yet, false.
may have been
ruling
supported by
is
Valerio v.
opportunity to
there should be no
(1975). Valerio,
prosecutor’s key only and narcot- use. agent ics Lauck. There was a clear and The case and is reversed remanded to the present obvious this district court. otherwise, suggest we should not for we an successful know ancient and THOMAS, J., dissenting filed a prosecutors present trial tactic that seek to BROWN, J., Retired, opinion in which honest, pure, drug-clean, their witnesses as joined. because, boys. They all-American do that successful, BROWN, J., Retired, if their witnesses are more be- filed a they THOMAS, lievable and dissenting opinion more credible. when in which say, illegal drugs,” they J., “I’ve never used joined.
open being impeached themselves to THOMAS, Justice, dissenting, with statement. know whether We cannot BROWN, Justice, Retired, joins. whom jury gullible as to this was so believe disagree therefore was I reversal of this con- Lauck never used viction, join perceptive dissent- most credible and not under the influence Brown, ing opinion Retired. at the time. We know that this Justice arriving dissenting opinion, eight deliberated hours would embellish that before briefly, way. in guilty at a verdict. It seems this transaction,” ante, technique truly non-se- at is a has become favorite It also place quitur. my judgment, attempts case to at in a criminal of defense opin- majority on trial. Even rationalization found officials enforcement law only ion would be true if the on trial majority conceded that this though the admissible, officer rather than Since was the law Gist. proffered W.R.E., interpretation that is not a correct its conclu- pursuant to Rule situation, independent the relevance is lost. testimony had sion is that the correct, it should If that view is relevance. support the exercise of the trial court’s testimony out necessary take the not be excluding pursu- discretion Yet, justify it. sever- in order to of context only purpose ant to Rule W.R.E. Its times, opinion uses majority al was to confuse the issues and mislead the justify in order to part of the same answer Furthermore, jury. I do not believe and, contrary argument gullible any panel jurors could be so response on quoted, uses a which is it then accept as credible of Gist’s effort to es- cross-examination a further Consequently, friends in this case. the ex- majority position. validity of the tablish the simply did not make clusion of any difference. slip opinion, majori- page At 5 of the extensively 3 Louisell & ty quotes When each of these defense witnesses Mueller, 307 at 126-128 Federal Evidence § testifies, proper impeachment relative to (1988 Supp.). quotation, In that revenge their misconduct and motive of language: critical against the efforts culminat- officer whose “ * * * Incidentally, the effect of this respective ed in their convictions will be is to foreclose extrinsic evi- restriction necessary. majority The result then might dence of misconduct which swearing approach will be a match which contradicting a denial the effect the real issue will be lost the introduc- elicited on confusing misleading mess of does and in this narrow sense information unrelated to Gist’s crime. quite separate mecha- indeed affect the would affirm. *6 impeachment by contradiction.” nism of BROWN, Justice, dissenting, in which context, majority
In the which the answer THOMAS, Justice, joins. independent upon justify the rele- relies proof, appellant proffered proffered testimony simply the is In his offer of vance of testimony impeach explanation of two words. the of six witnesses a definitional Each of the of Officer Lauck. use; say you You stated simulated by these felons had been indicted the same what do mean that? appellant, grand jury that indicted and each give appearance “A. I the the through the had been convicted that I the but would be The the of Officer Lauck. court disallowed drugs.” don’t use the appellant, citing testimony proposed by Contrary quoted the to the abstraction provisions Wyoming Rules various majority opinion, hardly pure is a state- of Evidence. drugs. not use ment the witness does majority opinion gives The in its no ef- purpose I submit that the first fect to the discretion afforded the court in admitting majority opinion in evidentiary rulings. per- its W.R.E. by the justified evidence is not specific mits of instances of con- evidence upon by majority. As to the relied “in limited circumstances but duct leap logic purpose, it is a second think 403, of the court.” W.R.E. the discretion indepen- to claim that a demonstration provides: agent used dent that the relevant, Although may be that he used them occasions shows probative if its value is sub- question, the contention excluded on the date but danger stantially outweighed by the testimony would show that “his that this the is- prejudice, impaired at the time of the perception was unfair confusion sues, jury, misleading appellant con- identifiable victim so tried to di- delay, of undue waste vert attention to the siderations state’s witness. time, presentation of cumula- or needless The trial court not abuse its discre- (Emphasis tive evidence. excluding the impeachment testimo- Assuming appellant’s pro- arguendo that ny proposed by appellant. To allow such relevant, is no posed testimony was there testimony would confuse the issue and mis- court indication that the trial abused jury. lead This many court has held testimony nor rejecting discretion in such times that: opin- any explanation majority there admissibility Determinations of * * * justified in ex- why ion court Rule 403 are committed to dis- cluding under W.R.E. cretion of the trial judge. His decision rulings reversed Evidentiary will will not appeal long be reversed on so showing upon appellant’s of an abuse legitimate basis supporting exists State, 855, discretion. Miller v. 755 P.2d State, Ortega v. 935, 669 P.2d 944 (Wyo.1988). 861 State, Hopkinson v. 79, See also 632 P.2d composite Judicial discretion is a State, Buhrle v. (Wyo.1981); 126 627 P.2d things, conclu- many among which are State, 1374, (Wyo.1981); v. 1380 Grabill criteria; objective sions drawn from 802, v. (Wyo.1980); 621 P.2d 810 Nimmo judgment sound means a exercised State, 386, El (Wyo.1979); 603 P.2d 392 regard what is under the circum- State, v. 1044, liott 600 (Wyo. P.2d 1049 doing arbitrarily stances without so State, 1979); Sanville v. 593 P.2d capriciously. [Citation.] (Wyo.1979). Martin (Wyo. 720 P.2d permits Rule 403 also the court ex- 1986). clude cumulative evidence. this case Under Rule 403 the court exclude appellant produced testimony that if such evidence tends to drugs. state’s Officer used jury. confuse the issues or mislead the Therefore, proposed testimony by testimony proposed by appellant is a six witnesses was cumulative example classic of evidence to con- not admissible. fuse jury. the issues and mislead the I would affirm the conviction. impeach- alleged the court had allowed the testimony proposed by appellant, ment
then, consistent, to be should court produce
allow the state to witnesses wit-
nesses. All of this result two could *7 im-
dozen mini-trials to who had determine
peached whom. The would sight so that it lose confused CORSON, (Defendant), Appellant Bill issue, is,
trial guilt innocence the accused. Wyoming, STATE An tac- ancient and successful trial (Plaintiff). Appellee tic in criminal cases is for the accused thus divert victim trial and No. 88-26. jury’s example, For in murder attention. Supreme Wyoming. Court of cases, produce the accused tries tending was a show that the deceased Dec. great society bad suffered no man and has rape loss. cases the accused tries
produce designed to show that the de-
victim Jezebel reincarnated and Here, got.
served she there was no