John Kenneth LOPEZ, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). David L. POMROY, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
Nos. 4375, 4395.
Supreme Court of Wyoming.
Jan. 16, 1976.
544 P.2d 855
David B. Kennedy, Atty. Gen., Cheyenne, Jerome F. Statkus, Asst. Atty. Gen., Cheyenne, and David G. Lewis, Deputy County and Pros. Atty., Casper, for appellee.
Before MCCLINTOCK, RAPER and THOMAS, JJ.
THOMAS, Justice.
The appellants-defendants were found guilty by a jury, convicted of and sentenced for the crime of rape, that is, having carnal knowledge of a woman, forcibly and against her will, in violation of
The individual informations which were filed against the defendants were consolidated for trial, and the cases have been consolidated for purposes of this appeal. Two questions are presented by the appellants, which are:
- Whether they were tried by an impartial jury. This question is premised upon information to the effect that a female member of the jury had herself been a victim of rape some six years before the trial. This information was developed after the trial had been concluded and the jury verdict returned, and it was made the basis for a motion for a new trial by both defendants.
- Whether the trial court erred in failing to give to the jury a cautionary instruction, tendered by the defendants, relating to the testimony of the victim.
In considering these two questions background information as disclosed by the evidence submitted at trial is helpful. This factual statement is a product of an examination of the evidence in accordance with the standard which must be applied by this Court in reviewing evidence:
“* * * [I]n a light most favorable to the prosecution and determine questions of law as to whether there is substantial evidence, direct or circumstantial, or both, which, with the reasonable inferences that may be drawn therefrom, will sustain the verdict.”2
The case presented by the State of Wyoming consisted primarily of the testimony of the victim, which was corroborated in many material respects.
The victim was 16 years old at the time of the events leading to this prosecution. One evening at about 9:45 p.m. she finished her duties at the concession counter of a movie theater in Casper, Wyoming. She left the theater, got into her car, and proceeded to drive to her home. After driving about a block, she stopped for a red light at an intersection, and she then noticed the defendants, both of whom were strangers to her, standing by her car. Without her permission, both of them got into the car with Lopez sitting next to her and Pomroy seated by the door. During the course of the events that followed Pomroy engaged in very little dialogue
Finally, Lopez directed her to drive to a secluded area near an afterhours club, close to the North Platte River. He told her then that they intended to rape her. She pleaded with them not to do this, but Lopez told her to shut up, and threatened to kill her. He then shoved her over the back of the front seat into the back seat, forcibly disrobing her and in the process ripping off her blouse, bra and pants. Lopez then had sexual intercourse with her after which he urinated all over her. Pomroy then got into the back seat of the vehicle and had intercourse with the victim.
At about this time Lopez unsuccessfully attempted to drive the car. He was unable to get the car into gear, so he ordered the victim to get up in front and drive. The victim was clad only in a sweater at this time, and upon Lopez’ direction, she drove to a nearby gas station because she had informed the defendants that she was low on gas. At the gas station a coat was thrown over her naked lap and legs. While there she observed a man that she knew because she had been employed by the man and his wife as a baby sitter, and she called him over to the car to talk to him. She tried, by moving her lips so that the defendants would not notice, to give him a message to call the police, but this effort was unsuccessful. During this time Lopez kept pressure on her right shoulder with his hand.
After they left the gas station, Lopez directed her to drive to the city dog pound, and during that drive, he warned her that if she “went to the cops or told anybody” that he would kill her. At the site near the dog pound Lopez again made her get into the back seat of the car where he first, and Pomroy second, again had sexual intercourse with her. After she had warned them that since the hour was late her family would have called the police to look for her, the defendants permitted her to get dressed, and then directed her to drive to an alley where she let them out of the car. Before leaving her, Pomroy demanded to see her driver‘s license; Lopez then threatened her by advising that he had plenty of friends and that if she did anything about this and did not meet them at a designated place the next day, he would blow her in half with a double-barrel shotgun. During this entire ordeal, the defendants concealed their names, and the victim did not learn the identity of either of them until she was shown a police photo of Lopez. Later Pomroy was connected, by name, as the other of her assailants.
Promptly after her release by the defendants the victim located her sister; called the Casper Police Department on the telephone; went to the police department to report the rape; and was sent from there to the hospital for examination. The account of the events given by the victim to the people she saw immediately after the crime was consistent in every respect with her testimony at the trial. At the trial her sister testified that when the victim came to her she was crying and screaming that two “guys” had raped her; her clothing was disheveled and torn; and she had no shoes on. Another friend testified that the victim was “kind of hysterical” and was crying; that her hair was all messed up; and she was barefooted. A police officer
Both of the defendants testified at the trial, and they admitted the fact of intercourse, but both claim she had given her consent and willingly participated in and enjoyed the experience. As supporting their version of these events the defendants also relied upon the victim‘s admission to a previous sexual experience which did not involve either of the defendants.
On the day following the trial, which culminated in the return of separate verdicts by the jury finding both Pomroy and Lopez guilty, one of the female jurors telephoned another of the female jurors and advised her that some six years previously she herself had been the victim of a rape by two men under similar circumstances. This telephone conversation had been arranged after the jury‘s verdict was reached when the first juror asked the second for her phone number, telling her that she would call her the next day and tell her something that would make her feel more comfortable about the result of the jury‘s deliberations. The information furnished by the first juror was reported to counsel for the defendants by the second juror and counsel then obtained an affidavit from her. This affidavit was attached to the motions for a new trial on behalf of the defendants. The county attorney then obtained an affidavit from the juror who had been the victim of the prior rape. The hearing on the motion for a new trial was conducted upon the factual information contained in those affidavits,3 no other evidence being taken.
Upon consideration of the argument and the information contained in the affidavits, the district judge concluded that there had been no actual prejudice to the rights of the two defendants, and for that reason denied their motion for a new trial. The district judge also stated that he could not find that the juror who had been the victim of rape was disqualified as a matter of law because of that prior experience.4 The defendants insist in this Court that prejudice must be presumed as a matter of law and that their respective convictions must be reversed in order to afford them the right to a new trial before a jury having no such biased member.
The appellants’ contention is founded upon constitutional mandates. The Sixth Amendment to the Constitution of the United States guarantees to the accused in all criminal prosecutions “* * * a public trial by an impartial jury
“In all criminal prosecutions the accused shall have the right * * * to a speedy trial by an impartial jury * * *.”
This Court does not question the fundamental principle that parties to any action are entitled to a fair and impartial jury. Vivion v. Brittain, Wyo., 510 P.2d 21 (1973); and Redwine v. Fitzhugh, 78 Wyo. 407, 329 P.2d 257, 72 A.L.R.2d 664 (1958), reh. den. 78 Wyo. 426, 330 P.2d 112 (1958). We conclude, however, that under the circumstances of this case the right to raise the question of the impartiality of the jury with respect to this particular matter was waived.
“(a) Examination of jurors. The parties, or their attorneys, may conduct the examination of prospective jurors, but such examination shall be under the supervision and control of the court, and the court may itself conduct such further examination as it deems proper.”
The purpose of this voir dire examination is to raise alleged bias “from the realm of speculation to the realm of fact.” Dennis v. United States, 339 U.S. 162, 168, 70 S. Ct. 519, 521, 94 L.Ed. 734 (1950). It is designed to explore the possible grounds for challenges for cause under our statutes.5
In this context a most pertinent provision of the Wyoming Statutes appears in
“Challenge for cause shall lie with both the defense and the prosecution, and all challenges for cause shall be tried by the court on the oath of the person challenged, or on other evidence, and such challenge shall be made before the jury is sworn, and not otherwise.” [Emphasis added]
This Court has considered this problem on two prior occasions. In Keffer v. State, 12 Wyo. 49, 73 P. 556 (1903), which was a homicide case, the Court concluded that the only issue presented for trial was whether the defendant was sane and legally responsible for his acts at the time he killed the victim. On appeal the defendant was complaining of the candid admission by one of the jurors that he had formed an opinion as to the guilt of the defendant based upon information furnished by men who were at the coroner‘s inquest and by others who had brought the prisoner to the jail. He explained that he thought he could give the defendant a fair and impartial trial, but not as well as in a case in which he had never heard anything about the facts, and that he had no different feelings against the defendant than he would have against any other stranger charged with the same crime. The trial court denied the defendant‘s challenge for cause, and this ruling was raised as error
“* * * The accused was under no obligation to disclose the character of his defense at this stage of the proceedings; but, if he chose to hold it in reserve, he cannot complain that the examination did not direct the attention of the jurors to it, or disclose whether any of them had formed any opinion in regard to it. * * *”
This Court then said that there was no error in the ruling of the trial court because the defendant had failed to pursue a voir dire examination disclosing any bias on the one significant issue to be submitted. This Court also said, quoting from Holt v. People, 13 Mich. 224, at 12 Wyo. 64, 73 P. 559:
“* * * ‘Where the answer of the juror is fairly susceptible of a construction consistent with his impartiality, the challenging party, if he claims that a different construction should be put upon it, should follow up his inquiries so as to elicit the real facts; and he cannot reasonably require that the juror shall be excluded on the ground that the examination, which he has chosen to leave imperfect, does not exclude all inference of bias.’ * * *”
When read in conjunction with the requirements of
A recent civil case makes the position of this Court clear. In Vivion v. Brittain, supra, one of the parties discovered after the case had been tried, that one of the jurors had been involved in a lawsuit for damages to his automobile, but not for any personal injuries. On voir dire the jurors had been asked if they or their families had been involved in a lawsuit for personal injury, and this juror had not responded. This was not considered to be error because he was not asked about any litigation or about injuries to any of his property. The Court there said, at 510 P.2d 24, “* * * The method of determining if a juror is qualified and can reasonably be expected to be fair and impartial is through voir dire examination. * * *” In the same case a question was raised with respect to the disqualification of a juror because of his prior conviction of a felony. In this context we find the following language at 510 P.2d 24:
“There is nothing in the record to show that any member of the jury was ever asked any question which would elicit from them any answer as to their statutory jury qualifications under
§ 1-78 . Under the circumstances we hold that defendant waived any objection to the qualification of this juror because of his previous felony conviction. See 66 C.J.S. New Trial § 23, p. 116.”
A failure to directly and plainly examine jurors with respect to a particular basis for bias or prejudice, which later is developed, constitutes a waiver of that ground. It is the obligation of the defendant to examine jurors on voir dire and discover by proper investigation facts affecting their qualifications, and then to reasonably raise that objection with respect to any member of the panel. There is no
Furthermore, we note that the burden, in an instance such as this, is upon the defendants. The Supreme Court of the United States in dealing with jury-related questions has frequently cited and quoted7 from Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268 (1942), where the court said in connection with waiver of a trial by jury:
“* * * If the result of the adjudicatory process is not to be set at naught, it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality.”
Particularly applicable to the necessity of showing an actual impartiality by a juror or jury is the observation made in Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), where the Supreme Court of the United States said:
“* * * To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror‘s impartiality would be to establish an impossible standard. It is sufficient if a juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. * * *”
The burden upon the defendants to demonstrate impartiality or bias is well stated in Fabian v. United States, 358 F.2d 187, 191 (8th Cir. 1966), cert. den., 385 U.S. 821, 87 S.Ct. 46, 17 L.Ed.2d 58 (1966), where the court said:
“* * * Although there may have been prejudice here, appellants would have us reverse the convictions, and remand for a new trial on the assumption that the jury actually was so prejudiced that a fair trial was impossible. But the rule is otherwise—jury prejudice cannot be presumed, and appellants have the burden of showing its existence. Beck v. Washington, 369 U.S. 541, 558, 82 S. Ct. 955, 8 L.Ed.2d 98 (1962). It rested with appellants to request a hearing and produce evidence to determine which jurors heard the statement and the effect it might have had. Cf. Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187 (1948); United States v. Gordon, 253 F.2d 177, 184 (7th Cir. 1958). * * *” [Emphasis theirs.]
There is nothing in the affidavits before us which demonstrates any actual partiality by this juror. There is no showing that she argued the jury into its verdict of guilty or that, by reason of her experience comparable to that of the victim here, she was influential in any way in the outcome of the case. The evidence as observed by the trial judge who had long experience on the bench, “was of unusual force and strength” and it seemed “inconceivable to [him] that any unbiased jury would have returned a verdict for the defendants.” It
The trial court specifically found no actual lack of fairness. The fact that a juror has been the victim of a crime not disclosed on voir dire does not require a conclusion of bias or partiality as a matter of law. See, e. g., Williams v. United States, 418 F.2d 372 (10th Cir. 1969); and Brown v. United States, 356 F.2d 230 (10th Cir. 1966). The language of the United States Court of Appeals for the Tenth Circuit in Brown v. United States, supra, is pertinent and appropriate. The defendant there claimed error in not granting a motion for a new trial because of the probable partiality of a member of the jury. During the voir dire inquiry, prospective jurors were asked if any of them or anyone in their immediate family had ever been the victim of an attack on their person. There was no response, and subsequent to the trial it was developed that the brother of one of the jurors had been murdered some years prior. The defendant urged upon the Court of Appeals that he was denied a fair trial and that the verdict was returned by a tainted jury. He did not contend that there was actual bias. The circuit court stated the issue as being whether the circumstances of the case compel an imputation of inherent bias to the jury as a matter of law. The court then stated at p. 232:
The court continued at p. 233:“* * * Certainly the voir dire oath administered to potential jurors obligates them fully to tell the truth. However, no reason appears for concluding that the juror was in fact not fully responsive to the actual interrogatory, which referred to the juror‘s ‘immediate family.’ Such a term is indeed ambiguous, for depending upon such circumstantial variables as age and marital status, it can import different meanings to different individuals. Defense counsel was free to explain to the jury what was meant by ‘immediate family‘, and could have expanded his inquiry to include ‘family’ and ‘relatives‘, but he elected to pursue the point no further. It cannot be presumed that the juror‘s failure to respond to the question was not proper, and an inference of intentional or inadvertent non-disclosure is unwarranted.”
“* * * The record here does not disclose that the juror either failed to give a truthful answer to the question propounded, or conceal a known disqualification. * * * “Disruptive consequences to the trial of criminal cases are suggested by permitting defense counsel to come forth after conviction and successfully contend that, notwithstanding the absence of actual bias, and notwithstanding his own failure sufficiently to pursue voir dire inquiry to expose possible predilections on the part of a prospective juror, that nevertheless probable prejudice must be imputed to the juror as a matter of law and a new trial thereafter granted. ‘A disqualification which by reasonable diligence could have been discovered before verdict, may not afterwards be made the subject of an attack upon a verdict.’ Spivey v. United States, 109 F.2d 181, 186, (5th Cir. 1940), cert denied 310 U.S. 631, 60 S.Ct. 1079, 84 L.Ed. 1401 (1940). “Therefore, in the absence of any non-disclosure, intentional or inadvertent, from which it can be conclusively presumed that there was so obvious a disqualification and inherent prejudice as a matter of law, Frazier v. United States, 335 U.S. 497, 513, 69 S.Ct. 201, 93 L.Ed. 187, reh. denied 336 U.S. 907, 69 S.Ct. 488, 93 L.Ed. 1072, we hold that the action of the court below in denying the motion for new trial was not a clear abuse of discretion.”
The contention of the appellants that bias and prejudice must be presumed is
In light of these authorities we hold, with respect to the contention that the defendants were denied their right to a trial by an impartial jury, that they not only waived that right as to this ground by their failure to examine with respect to it at the voir dire examination; but, furthermore, their failure to demonstrate on the record actual bias on the part of the juror would foreclose the possibility that they could, as a fundamental matter, claim any right to be relieved of the consequences of their waiver.
The second question presented by the appellants is whether the court erred in failing to give a cautionary instruction which they requested. It reads as follows:
“A charge as that made against the Defendants in this case is one, which, generally speaking, is easily made, and once made, difficult to disprove even if the defendants are innocent. From the nature of a case such as this, the complaining witness and the defendants are usually the only witnesses. Therefore I charge you that the law requires that you examine the testimony of the prosecution witness with caution. [In giving this instruction, I do not mean to imply an opinion of my own as to the credibility of any witness.]”
The trial court did give the following instruction:
“YOU ARE INSTRUCTED the charge of rape is likely to create a strong prejudice against an accused. It is a charge easy to make and hard to disprove. Thus, you should bear in mind this difficulty of defending against such a charge and consider carefully all the evidence and instructions of the Court. “YOU ARE FURTHER INSTRUCTED that from the peculiar character of rape, care should be used by you in considering the evidence for the prosecution, the female claiming injury is a competent witness in such cases, but the degree of credit to be given her testimony depends more or less upon the concurrence of the circumstances and facts proved at the trial in support of her testimony.”
The defendants contend that the instruction given by the trial judge is inadequate because it fails to address iself to the credibility of the victim, instead dwelling only upon the weight to be given her testimony. In support of their contention, the defendants cite State v. Slane, 48 Wyo. 1, 41 P.2d 269 (1935). There the court did hold that the jury should have been instructed to “examine the testimony of prosecutrix with care.” It is to be noted that the instruc
In other cases this Court has held that where there is reasonably clear corroborating evidence fully justifying the verdict of guilty, a cautionary instruction such as that given here is unnecessary. Kennedy v. State, Wyo., 470 P.2d 372, reh. den., 474 P.2d 127 (1970), cert. den., 401 U.S. 939, 91 S.Ct. 933, 28 L.Ed.2d 218 (1971); State v. Hines, 79 Wyo. 65, 331 P.2d 605 (1958), cert. den., 366 U.S. 972, 81 S.Ct. 1938, 6 L.Ed.2d 1261 (1961); State v. Koch, 64 Wyo. 175, 189 P.2d 162 (1948); Strand v. State, 36 Wyo. 78, 252 P. 1030 (1926). Under these cases a failure of a district court to give the cautionary instruction such as that given here would not be error. Certainly in a case such as this in which the victim‘s testimony was corroborated by her immediate complaint on release, her hysterical weeping, her disheveled condition, her torn clothing, her missing shoe found at the site of one of the episodes, the testimony of the doctor who told of her bruises and the presence of spermatozoa in her vaginal fluid, and even the testimony of the defendants admitting the sexual intercourse, the refusal to give the instruction requested by the defendants, patterned after the cautionary instruction suggested in State v. Slane, supra, was not erroneous. The court could have refrained from giving any cautionary instruction at all.
The judgment of the district court is affirmed.
RAPER, Justice (concurring).
I concur in everything my brothers have said and particularly in the result reached, except insofar as it might be inconsistent with what follows. I do not believe they have gone far enough though, and would have held and directed that the trial courts of this State shall no longer give any special cautionary instruction in rape cases, such as that here given or offered or approved by State v. Hines, 1958, 79 Wyo. 65, 331 P.2d 605, cert. den. Petition of Hines, 366 U.S. 972, 81 S.Ct. 1938, 6 L. Ed.2d 1261; State v. Holm, 1950, 67 Wyo. 360, 224 P.2d 500; State v. Koch, 1948, 64 Wyo. 175, 189 P.2d 162; Strand v. State, 1926, 36 Wyo. 78, 252 P. 1030, or any other case.
My colleagues misconceive the function of an appellate court that it must only dispose of the matter immediately before it, without regard to the fact that in so limiting its effort, it is permitting the perpetuation of error in the future by neglect to frame a course for trial courts and bar to follow. It is true that this court will not generally pass upon questions not necessary to be decided in the disposition of the matter immediately before it. It is a sound rule of appellate practice but it is not so unyielding that we must blind ourselves to other compelling considerations. Justice cannot be administered from within the bindings of a straightjacket. As Chief Justice Blume has observed in those cases where there is a question bound to arise again, it is not only our right but our duty to decide the question and prevent further appeals. A decision on a point under these circumstances cannot be regarded as obiter dictum. Chicago and North Western Railway Co. v. City of Riverton, Fremont County, 1952, 70 Wyo. 84, 246 P.2d 789, reh. den. 70 Wyo. 119, 128, 247 P.2d 660, 663-664. In the same case it was observed that “were we to limit our decisions strictly and literally to the arguments advanced by counsel in a case, the law in this jurisdiction would be in a sorry state.”
Even though in Chicago and North Western Railway Co., supra, the court had particular reference to a retrial of the same case, it was a principle that does not stop there. The rule, as stated, is but a segment of one of larger scope. It makes
Only recently in Tavares v. Horstman, Wyo.1975, 542 P.2d 1275, 1278-1279, we have had an occasion to quote Justice Cardozo from his treatises, “The Nature of the Judicial Process” and “The Growth of the Law“:
“‘* * * If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.’ “‘* * * A rule which in its origin was the creation of the courts themselves, and was supposed in the making to express the mores of the day, may be abrogated by courts when the mores have so changed that perpetuation of the rule would do violence to the social conscience. * * *‘”
We cannot permit bad law to infect our jurisprudence.
In failing to take corrective measures, we are doing nothing but contributing to the law‘s already almost unbearable delays. An appellate court is at liberty to decide a case upon any point which in its opinion the ends of justice may require, even though the matter had not been argued. State Highway Commission v. Triangle Development Co., Wyo.1962, 371 P.2d 408, citing Wyuta Cattle Co. v. Connell, 1931, 43 Wyo. 135, 299 P. 279, reh. den. 3 P.2d 101, wherein it was said that if we were limited to the arguments and reasoning of counsel to the exclusion of our own observations, we would be led astray of the true object of the court. That this question was not raised by the Attorney General is of no consequence. The State in the future will be subjected to grievous injury, as will complainants in rape cases. Our function is to promote justice not perpetuate injustice. If we pass up an opportunity to improve and update the administration of justice and discard a fallacious rule, we are not performing our proper judicial function. We are lending the aid of the court to the accomplishment of what is improper.
The defendants have raised a question about the trial court‘s cautionary instruction. It has compelled our study in depth of such an instruction and caused an exploration of what the nation‘s courts have done and are doing about it. There are authoritative reasons to abolish it entirely from use in this jurisdiction as based on ancient, outmoded and invalid reasoning.
The instruction had its origin in the writings of Sir Matthew Hale, Lord Chief Justice of the Court of King‘s Bench from 1671 to 1676. State v. Koch, Wyo.1948, supra; Strand v. State, Wyo.1926, supra. The exact language of his musings, as found in 1 P.C. 634-635, is as follows:
“It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho [sic] never so innocent.”1
An examination of the refused instruction, which is little different than the ones this court has approved and to which my
“A charge such as that made against the defendant in this case is one which is easily made and, once made, difficult to defend against, even if the person accused is innocent. “Therefore, the law requires that you examine the testimony of the female person named in the information with caution.”
Compare them:
“A charge as that made against the Defendants in this case is one, which, generally speaking, is easily made, and once made, difficult to disprove even if the Defendants are innocent. “From the nature of a case such as this, the complaining witness and the Defendants are usually the only witnesses. “Therefore I charge you that the law requires that you examine the testimony of the prosecuting witness with caution. “[In giving this instruction, I do not mean to imply an opinion of my own as to the credibility of any witness.]”
The second sentence was unnecessary because the jury was aware of who testified and, not only that, it was an inaccurate statement in the light of corroborating evidence which has here already been reviewed. The bracketed matter was surplusage. The jury had already been instructed that “[I]t is the exclusive province of the jury * * * to determine the credibility of all witnesses. * * *”
The California instruction has been entirely abrogated for use in that state. In People v. Rincon-Pineda, 1975, 14 Cal.3d 864, 123 Cal.Rptr. 119, 132, 538 P.2d 247, 260, it was declared:
“* * * [W]e think the instruction as it has customarily been worded (i. e., CALJIC No. 10.22) is inappropriate in any context, and the further use of such language is hereby disapproved. * * *”
Rincon-Pineda has literally taken the bull by the horns and has exploded Hale‘s myth. After citing extensive statistical data showing that,
it must be concluded that the charge of rape is not so difficult to defend against as to warrant a cautionary instruction. The court went on to say that: (123 Cal.Rptr. at 132, 538 P.2d at 260):“* * * Of the FBI‘s four ‘violent crime’ offenses of murder, forcible rape, robbery, and aggravated assault, forcible rape has the highest rate of acquittal or dismissal. * * * Equally striking is the ranking of forcible rape at the bottom of the FBI‘s list of major crimes according to percentage of successful prosecutions for the offense charged. * * *”
“Whatever might have been its historical significance, the disapproved instruction now performs no just function, since criminal charges involving sexual conduct are no more easily made or harder to defend against than many other classes of charges, and those who make such accusations should be deemed no more suspect in credibility than any other class of complainants. When such prosecutions present close evidentiary questions, they do so not because a victim—generally a woman—claims to have been sexually assaulted or abused, but because the alleged crime took place in evanescent circumstances difficult to reconstruct in court, a happenstance which may plague prosecution of any crime involving specific intent, and which is indeed a typical occurrence in such non-sexual crimes as fraud and narcotics transactions. A cautionary instruction bred in the circumstances of 17th century criminal rape and criminal justice need not be disinterred in a contemporary California courtroom to insure that a defendant faced essentially by a single accuser will not be casually convicted without due consideration of the relative weight of the evidence.”
California is not the only court to disapprove the instruction. In State v. Feddersen, Iowa, 1975, 230 N.W.2d 510, the instruction has been specifically cast off and the courts of that state now are prohibited from using it. That court declared that in Hale‘s rule:
“There are at least four vices in the first paragraph of that instruction. First, it constitutes a comment on the evidence. Second, it applies a stricter test of credibility to the rape victim than to other witnesses in the trial. Third, it applies a stricter test of credibility to rape victims than to victims of other crimes. Fourth, trial courts have been accorded an indiscriminate right to give or refuse to give the instruction absent any guidelines for so doing.”2
In Taylor v. State, 1972, 257 Ind. 664, 278 N.E.2d 273, the defendant tendered two instructions to the trial court which were refused. One cautioned the jury that the courts have always recognized the danger of conviction on her [the prosecutrix in a rape case] uncorroborated testimony and the testimony of the prosecutrix, if inherently improbable and uncorroborated, will not justify or support a conviction. The other was that “her evidence should be carefully scrutinized for the reason that the charge is easy to make and hard to defend.” The court held that it is error for the court to single out any special witness, personally, and burden her testimony with any suggestions which might indicate to the jury that in the opinion of the court such witness was liable to testify falsely. Instructions as to the credibility of witnesses should be general and apply equally to all the witnesses for the State and the defendant alike. Because a witness may be a rape victim is no reason why she should be visited with condemnation, on the one hand, or clothed with sanctity, upon the other. She is before the court as a witness and should be treated by both the court and the jury just as other witnesses are treated—no better and no worse.
In State v. Settle, 1975, 111 Ariz. 394, 531 P.2d 151, defense counsel sought to have the jury given a cautionary instruction in a rape case to the effect that the testimony of the prosecuting witness should be examined with particular care. The instruction was in accord with a past decision of the court. The Supreme Court of Arizona discovered that this was in violation of the state constitution,3 dealing with a comment upon the weight of the evidence, so its rule is now that a cautionary instruction, such as the one sought by the defendant, is a suggestion to the jury to particularly question the testimony of the prosecuting witness and is a comment upon the weight of the evidence and is a personal opinion of the judge concerning the facts of the case.
It is the jury‘s province to weigh and allocate the weight to be given to all evidence, direct or circumstantial. Buckles v. State, Wyo.1972, 500 P.2d 518, 521, cert. den. 409 U.S. 1026, 93 S.Ct. 475, 34 L.Ed. 2d 320. A jury has the uncanny ability of its twelve minds, and being representative of the common sense of the community, to soon and effectively identify the dis
The alleged victim should be treated as any other witness in any other type criminal case. Credibility is to be tested by and subjected to the same test and scrutiny as applicable to any other witness.4 To do otherwise is demeaning.
The trial court was not even under the prevailing law of the State required to give the cautionary instruction he did but that is typical of the sincere judge dutifully following what might be considered the unclear past expressions of this court, which said that the cautionary instruction should be given but never reversed for failure to do so. It is doing a disservice to the bench and bar and the people of this State to permit the district courts to continue to wallow in error against the State which cannot appeal or the witness unable to be treated at least equal to other witnesses, including the defendant, who (the witness) likewise cannot appeal. I just cannot join in fostering such error to await some propitious moment, at some uncertain date and occasion in the future, to wipe away such fallacious law. This is a recurrent problem capable of evading review.