State v. EvansState v. Evans
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- Before:
- Per Curiam
OPINION
PER CURIAM.This ease came before the court on Decеmber 8,1992, pursuant to an order directed to both the defеndant and the state to appear and show cause why the defendant’s appeal from a conviction of assault with intent to murder should not be summarily decided. After considering the arguments and memoranda of counsel, we are of the opinion that cause has beеn shown and we sustain the appeal.
This matter arose out of an altercation between defendant, Rоbert A. Evans, and the victim, William Musco. Although both men parted ways for a few moments, there was a later confrontаtion between the two, at which time defendant admittedly fired a gun at the victim in an effort to scare him off. On cross-examination defendant testified that he was afraid that if hе shot too low, the bullet would hit the concrete sidewаlk and ricochet. After further cross-examination and over defendant’s objection, the trial justice questionеd defendant about his prior experience with guns. The defendant responded that he had shot a .25-caliber аutomatic “a couple of times” before. Shortly thereafter, defendant made a motion to pass.
The trial justice denied defendant’s motion to pass. Howеver, the trial justice offered a cautionary instructiоn to the jury upon defendant’s request. In her instruction the trial justiсe warned that,
“there are many legitimate circumstances under which a person is permitted to fire a wеapon. The fact that he has done that is in no way tо be recorded by you as evidence that he’s guilty, obviоusly, of this crime. That question had nothing to do with his guilt or innocenсe of this particular offense.”
This court has recоgnized that it is within the ambit of a trial justice’s discretion to questiоn a witness when he or she deems it necessary and prоper to do so. See State v. Giordano, 440 A.2d 742, 745 (R.I.1982); State v. Amaral, 47 R.I. 245, 249-50, 132 A. 547, 549 (1926). When a trial justice chooses to engage in questioning a witness, he or she should do so only if his оr her question or questions will elicit the truth and will clarify matters that may be otherwise confusing in the minds of the jurors. Giordano, 440 A.2d at 745. We believe that in the case at bar the trial justice posed a question to defendant that did not serve to clarify any сonfusing matter and that, therefore, she improperly quеstioned defendant about his past experiencеs with firearms.
We are also of the opinion that the triаl justice’s cautionary instruction was an unsuccessful curаtive measure. Our review of the record leads us to bеlieve that the tenor of the trial justice’s questioning cоntained prejudicial influences. As such, we believe that the trial justice’s questioning therefore impinged bn the prоvince of the jury as a factfinding body in assessing the defendant’s culpability.
Accordingly the defendant’s appeal is sustained. The judgment of conviction appealed from is reversed, and the case is remanded to the Superior Court for a new trial.