Jack L. GUSTAFSON, Sr. v. STATE of Arkansas
CR 78-209
Supreme Court of Arkansas
December 3, 1979
590 S.W. 2d 853
(In Banc)
Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
DARRELL HICKMAN, Justice. Jack L. Gustafson, Sr. was convicted in the Independence County Circuit Court of burglary, attempted theft and soliciting capital murder. He was sentenced to a total of 50 years imprisonment.
He raises numerous issues on appeal. We find prejudicial error was committed and reverse his conviction and remand the matter for a new trial. Our discussion of some of the issues will be limited since there will likely be a new trial.
Gustafson was charged with burglarizing a National
Law enforcement officials testified that they learned that Gustafson had made statements while he was in the Independence County Jail, on other charges, that he had automatic weapons for sale and that he planned to burglarize a National Guard Armory. A federal agent wired for sound was placed in the cell with Gustafson. He gave Gustafson a telephone number in Louisiana to call in the event Gustafson was interested in selling the automatic weapons and hiring somebody to commit the murder.
After Gustafson got out of jail on bond he made the telephone call. The undercover agent then met Gustafson at the Red Bird Truck Stop in Batesville. At this meeting a tape recording was made of the conversation. It related to the burglary of the armory and the murder of Ray Seeley and was decidedly incriminating. It was admitted into evidence over the objections of the appellant.
On October 26th, the night after the conversation at the Red Bird Truck Stop, the appellant was shot outside the National Guard Armory in Batesville. Gustafson had a gun and the State offered evidence that a pry bar was in his possession at the time he was shot. There was evidence that the armory had been entered with the use of the pry bar. There was no evidence that any weapons were taken.
The first allegation of error is that any conversations with Gustafson in the jail were obtained in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution as well as
While Massiah and its progeny stand for the proposition that the Sixth Amendment right to counsel proscribes surreptitious interrogation by a government agent of an accused about an offense with which the accused has already been charged, this exclusionary rule does not apply to information legally obtained in the investigation of a new and different criminal offense initiated by the accused while awaiting trial. Hummel v. Commonwealth, 219 Va. 252, 247 S.E. 2d 385, 388 (1978).
There was nothing unreasonable in the fact that an undercover agent was introduced in Gustafson‘s cell in connection with conduct that was unrelated to his incarceration. In U.S. v. White, 401 U.S. 745 (1971), the Court said:
If the law gives no prоtection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State‘s case. Id at 752.
It was not disputed that Gustafson made a telephone call on his own to the undercover agent after he got out of jail. This fact belies the appellant‘s argument of inducement.
The appellant argues it was error for the prosecuting attorney‘s “investigator“, a material witness, to remain in the courtroom although all other witnesses had been excluded from the courtroom during the trial. The appellee argues that the witness was properly allowed in the court
At the request of a party the court shall order witnesses excluded sо that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
It may have been only harmless error in this case for the trial judge to permit the investigator to remain in the courtroom. The investigator testified after the first witness had been called for the State and his testimony did not appear to relate in any way to the testimony of the first witness. There is no way the “investigator” in this case could qualify as an exception by
Weinstein quotes extensively from Senate Judiciary Committee statements in connection with
Many district courts permit government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness. The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself in — he always has the client with
him to consult during the trial. The investigative agent‘s presence may be extremely important to government counsel, especially when the case is complex or involves some specialized subject matter. The agent, too, having lived with the case for a long time, may be able to assist in meeting trial surprises where the best-prepared counsel would otherwise have difficulty. Yet, it would not seem the Government could often meet the burden under rule 615 of showing that the agent‘s presence is essential... [Emphasis added.] Report, Committee on the Judiciary, United States Senate, 93rd Cong., 2d Sess., on the Federal Rules of Evidence, p. 26 (1974). As quoted in Weinstein, Evidence, par. 615[01].
The Advisory Committee‘s Notes on
The category contemplates such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation. See 6 Wigmore § 1841, n.4. As quoted in Weinstein, Evidence, par. 615[01].
The exclusionary rule is considered as effective as cross-examination in serving the court to garner the truth. It should not be easily circumvented. On a retrial, unless the prosecuting attorney can demonstrate that his investigator is actually essential to the trial of the case, the investigatоr should be treated like any other witness.
The appellant argues that the court should have granted a continuance. The attorneys for Gustafson were appointed seven days before the trial. The record is not clear whether the attorneys pursued the matter in a timely manner. The attorneys had been negotiating with the prosecuting attorney about this case for some time before their appointmеnt. A motion for a continuance was not filed until the day before the trial. It is unlikely that such a matter will occur on a retrial.
The prosecuting attorney, over the objections of Gustafson, was permitted to require Gustafson to demonstrate to the jury certain actions of his outside the armory on the
Gustafson argues that he was entitled to separate trials on the charges of burglary аnd conspiracy. We find no merit at all to this argument since all the charges were related and grew out of the same conversation and course of conduct.
The appellant argues his right to cross-examine Sgt. Bob Reynolds and John Ford was improperly limited by the trial court. There is some merit to this argument. At times counsel for appellant was unduly repetitious, a factor no doubt in the trial court‘s occasionаlly limiting cross-examination. This error will no doubt not arise on a new trial. A cross-examiner is given wide latitude and cannot be unduly restricted in eliciting facts which affect a witness’ credibility. Haight v. State, 259 Ark. 478, 533 S.W. 2d 510 (1976).
When Gustafson took the witness stand, as a witness in his own behalf, he was asked by the prosecuting attorney about previous criminal convictions and previous misconduct. The trial judge permitted some of the questions over the objections of Gustafson‘s lawyеr.
There are circumstances where it is possible for the State to introduce into a criminal trial evidence that the defendant has committed crimes unrelated to those which he is charged. One circumstance is in its case in chief, where, in very limited circumstances, the State may offer evidence of other offenses. Ordinarily, such evidence is not permitted. It is prejudicial by nature and should only be used against a dеfendant in a criminal action in rare cases. See Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). Another circumstance is when a defendant in a criminal case takes the
First, Gustafson was asked on cross-examination if he had been convicted of burglary and larceny in Sharp County, Arkansas. He admitted that he had been. It does not appear from the record that this question was improper under
Next, he was asked if he was not, in fact, guilty of pоssessing several thousand dollars worth of CB radio equipment which had been stolen from Jay‘s CB Shop at Batesville. The trial judge sustained an objection to this question. He was then asked if he was not guilty of knowingly possessing a 4-wheel drive Chevrolet pick-up truck which had been stolen from Richard Thomas at Arkansas College in Batesville. Gustafson refused to answer this question, claiming his privilege under the Fifth Amendment. The judge ordered him to answer and hе did. These two questions about Gustafson‘s previous misconduct, because they were not related to convictions but to misconduct, are governed by
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by
extrinsic evidence. They may, however, in thе discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.
There is no doubt that Rule 608(b) was intended to restrict the use of such evidence, especially in a criminal case. Our rule is based on the federal rule and most commentators take the position that Rule 608(b) should be interpreted restrictively. See McCormick, Evidence, § 42 (2d ed. 1972); Weinstein, Evidence, § 608[05] (1978).
We read Rule 608(b) to provide that the trial court may, if it finds good faith and that the probative value of such information outweighs the prejudicial effect, allow such a question about certain offenses. The most important change is that the question must be concerning misconduct which relates to truthfulness or untruthfulness. That is, one element of the offense alleged must be an act of dishonesty. The question cannot regard misconduct which has no relation at all to honesty. Weinstein, supra, indicates that misconduct
We are aware that the use of such information can be highly prejudicial to a defendant in a criminal case and that the use of such information may well be abused. No doubt Rule 608(b) was designed to curb this possible abuse. We find three conditions on the use of such information. First, the question must be asked in good faith. This has always been our rule. Balentine v. State, 259 Ark. 590, 535 S.W. 2d 221 (1976); Moore v. State, supra, and Butler v. State, supra. This means the court may require evidence of good faith before it pеrmits such a question to be asked; that is, that the questioner must have credible knowledge that the offense has been committed, not just information based on rumor or speculation. Next, the court in its discretion should decide if the probative value of the question outweighs the prejudicial effect of such a question.
The questions asked of Gustafson relate to misconduct which is defined as theft by receiving in
The prosecuting attorney asked Gustafson two questions: Both were, had he not, in fact, knowingly possessed certain stolen property, and the prosecuting attorney identified the property, time and place in both questions, as he should have. Those were, on their face, proper questions. The offense of theft by receiving requires that one receive, retain or dispose of stolen property knowing that it was stolen or having good reason to believe that it was stolen.
In the case of State v. Miller, 92 N.M. 520, 590 P. 2d 1175 (1979), the New Mexico Court dealt with the identical problem. In the Miller case there were some fourteen questions asked of the defendant relating to his guilt of various crimes. The Court said:
... The only purpose of the questions was to test defendant‘s credibility. State v. Coca, supra. The crimes involved in the questions could not be proved by extrinsic evidence. Evidence Rule 608(b). Defendant answered each of the questions in the negative.
What then was the probative value of the questions? There was none. Under the balancing test required by Evidence Rule 403, the trial court abused its discretion in permitting the questioning because the questions were prejudicial and, in light of the answers, there was no probative value.
We do not hold that a question under Evidence Rule 608(b), which asks for an admission concerning a felony, can never be asked. Our holding is that any one of such questions is prejudicial, see State v. Rowell, 77 N.M. 124, 419 P. 2d 966 (1966) and, if there is nothing indicating the question has probative value on the question of credibility, it is an abuse of discretion to permit the question. When the question is under Evidence Rule 608(b), a prosecutor, who seeks to have a defendant make an admission concerning a felony when there has been no conviction, hazards a reversal absent a showing of probative value because of thе prejudicial nature of the question.
We arrive at the same conclusions.
In Cox v. State, 264 Ark. 608, 573 S.W. 2d 906 (1978), two statements were made which are inconsistent with this
We were also mistaken in Cox if we left the impression that a negative answer to an improper question results in no prejudicial error. There is no doubt that such a question harms a defendant‘s case. When it is proper, about a type of misconduct that is relevant, it is allowed only because it is relevant to the determination of the credibility of the defendant. But to say that а negative answer always removes the prejudice in every case goes too far. Prejudicial error may result whether the question is properly phrased or not. We cannot predict whether prejudice can be removed in every case.
The trial court sustained an objection to the first question regarding the stolen CB radios. For what reason we cannot say. Then the trial court required Gustafson to answеr the question about the 4-wheel drive truck. Gustafson claimed his privilege against self-incrimination regarding this question. The trial court, clearly in error, ordered Gustafson to answer the question. Rule 608(b), specifically the last paragraph, provides that the privilege against self-incrimination is preserved in such circumstances. This was prejudicial error that requires us to reverse the judgment of the court.
The difficult question for us is whether both of these questions may be asked of Gustafson at a retrial if he takes the witness stand. That presumes too much. First of all the judge sustained an objection to the first question for some reason finding it improper. No doubt the trial judge had good reasons for sustaining that objection. We would not presume that those reasons no longer exist, although they might.
We cannot predict for future cases what questions will or will not be so improper as to require a new trial. We do not intend to be so restrictive in our application of Rule 608(b) as to remove a valuable tool in garnering the truth. However, we do want it made clear that the use of such evidence in a criminal case creates a real hazard of a mistriаl or a reversal. Prosecuting attorneys would be well advised to procure a ruling from the trial judge before asking such quetions before a jury.
Reversed and remanded.
HARRIS, C.J., not participating.
BYRD, J., concurs.
HOLT, J., dissents.
FRANK HOLT, Justice, dissenting in part. I would adhere to the views expressed in Cox v. State, 264 Ark. 608, 573 S.W. 2d 906 (1978), which is overruled today. The majority‘s view meets the prophecy of Weinstein when he wrote: “Such an approach paves the way to an exception which will swallow the rule.” Rule 608(b) was not meant to include every act of dishonesty but only those going to the veracity of the witness.
Reversed and remanded.
HARRIS, C.J., not participating.