Defendant Williams appeals from a conviction of robbery on grounds of numerous alleged errors during trial.
On November 24, 1979, one Mike Weaver was arrested for shoplifting. Apprehensive about being returned to prison, Weaver volunteered to cooperate with authorities concerning a robbery planned for that evening. Weaver informed sheriff’s deputies that the defendant had called him earlier in the day indicating an intention to commit an armed robbery that evening. Weaver then called defendant from the police station and discussed the plans for the robbery. The conversation was recorded, and the recording was subsequently admitted in evidence at trial. Defendant and Weaver proceeded to rob a service station that evening.
Defendant raises numerous procedural points on appeal. He first attacks the prosecutor’s statement in the opening argument
The purpose of an opening statement is to apprise the jury of what counsel intends to prove in his own case in chief by way of providing the jury an overview of, and general familiarity with, the facts the party intends to prove.
State v. Erwin,
Whether an improper statement on opening argument constitutes reversible error depends on whether the prosecutor was guilty of bad faith and the prejudicial effect of the statement on defendant’s case.
Id.
As stated in
Gladden v. Frazier,
The controlling question should be the good faith or lack of good faith of counsel in saying what he said in his opening statement and the likelihood that the opening statement was unfairly prejudicial to the defendant.
Weaver testified that while in prison heavy pressure — even physical coercion— was applied to him by other inmates to sign a statement that defendant was not involved in the crime. Weaver had been presented on separate occasions with a handwritten statement by defendant and also a typewritten statement by an investigator employed by defense counsel for Weaver to sign. Both statements were to the effect that Weaver alone had committed the robbery and that defendant had only been a hitchhiker picked up just prior to the commission of the crime. The investigator’s handwritten statement was signed by Weaver, but the record does not conclusively indicate whether the typewritten statement was ever signed by him. Weaver testified that the typed statement was repossessed by the investigator for the public defender’s office and that the handwritten statement was still in his cell. Without indicating whether his reference was to the typewritten or handwritten statement, the prosecutor, in his opening statement, apprised the jury that Weaver had been coerced into signing a statement exculpating Williams and that the statement was in the custody of defense counsel. Defendant neither introduced the statements into evidence nor relied on them to impeach Weaver’s testimony.
The question then is whether prejudice resulted from the errors. In
State v. Hodges,
The asking of the question ... is certainly not to be commended; and we are made to wonder why the prosecuting attorney would ask it. Nevertheless, the processes of justice should not be distorted simply for the purpose of censuring a mistake. The critical inquiry should be whether there is a reasonable likelihood that the incident so prejudiced the jury that in its absence there might have been a different result.
Because of defendant’s own testimony admitting that he committed the robbery, he clearly did not suffer prejudice as a result
Defendant’s next contention is that the trial court improperly denied defense counsel’s motion to withdraw as counsel prior to trial so that he could testify as a witness in behalf of defendant. However, since defense counsel admitted at trial that he was not going to testify, there is no basis to the argument that the trial court erred in denying counsel’s motion to withdraw.
Nor was there error in the trial court’s refusal to require the prosecuting attorney to take the stand. A trial court has the authority to refuse to allow lawyers, including prosecuting attorneys, to be called as witnesses by the adverse party unless the result would be to prejudice the defendant’s case.
Gajewski v. United States,
Defendant also contends that the prosecutor improperly cross-examined a defense witness about details of a prior felony conviction. The defense called James Miller, a prisoner at the Utah State Penitentiary, to establish that Weaver had reason to fear members of the prison population and that Weaver was generally disliked at the prison. On cross-examination the prosecutor inquired into the nature and details of Miller’s past criminal acts, and defendant’s objection to that line of questioning was overruled.
Section 78-24-9, Utah Code Ann., 1953, provides:
A witness must answer questions legal and pertinent to the matter in issue, although his answer may establish a claim against himself but he need not give an answer which will have a tendency to subject him to punishment for a felony; nor need he give an answer which will have a direct tendency to degrade his character, unless it is to the very fact in issue or to a fact from which the fact in issue would be presumed. But a witness must answer as to the fact of his previous conviction of felony.
When impeaching a defendant, or any other witness, by conviction of a prior felony, it is permissible to inquire only into the fact and nature of the prior conviction, but not, except in unusual circumstances, the surrounding details or circumstances.
State v. Kazda,
Defendant also asserts error in the prosecutor’s closing argument in which he referred to injuries which the victim could have suffered. The prosecutor invited the jurors to consider what might have happened had the victim of the robbery, the attendant at the gas station, been injured:
[A]sk yourself whether or not this was sufficient to justify an aggravated robbery or a simple robbery, or for that matter a crime of any kind. Ask yourselves what you would have done under that set of circumstances. Bear in mind also what the impact would have been had (the victim) been injured ...
The crime charged in the instant case was aggravated robbery. There was evidence at trial that appellant had possession of a knife seconds before the robbery and that the existence of a gun was simulated to
Defendant also claims error in the prosecutor’s closing argument concerning State’s witness Mike Weaver. Defense counsel argued that Weaver had a motive to lie in order to be released early from prison. The prosecuting attorney rebutted that argument by stating that Weaver had an additional two-year sentence to serve. However, less than a month later, Weaver was granted parole after the same prosecutor personally appeared before the Board of Pardons and urged his early release. At the hearing before the Board, the prosecutor asserted that Weaver’s conduct during trial had been so exemplary that he had decided to use his efforts to get Weaver out of prison.
Of course the State in a criminal case is duty-bound by law and professional ethics to treat a defendant fairly. A prosecutor may not suppress evidence favorable to defendant to obtain a conviction.
State v. Jarrell,
Utah,
Affirmed.