Appeal from the District Court of Johnson County The Honorable John G. Fenn, Judge
The opinion of the court was delivered by: Hill, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Appellant, Stephen Bernard Barnes (Barnes), contends that his conviction for larceny should be reversed because the prosecuting attorney committed misconduct by questioning witnesses using a technique wherein the prosecutor repeatedly asked Barnes if the witnesses against him were lying (or other similar words) when their testimony tended to contradict his. This tactic of the prosecutor persisted during closing argument. Barnes' attorney did not object to the questions and did not ask for a curative instruction from the presiding judge. On the basis of that issue, we will reverse and remand for further proceedings in the district court, consistent with this opinion. Barnes also contends that his defense attorney did not provide effective assistance of counsel. Because we reverse on the basis noted above, we need not address his second issue.
[¶2] Barnes raises these issues:
I. Did the prosecutor commit misconduct when he cross-examined [Barnes] as to whether other witnesses were lying or mistaken?
II. Was [Barnes] provided effective assistance of counsel?
The State's summary of the issues comports with that set out by Barnes, but qualifies Issue I as the "limited use" of such questioning.
[¶3] Barnes had a history of alcoholism and mental disorders. There is very little in the record about that other than Barnes' own testimony, but it is corroborated in part by medical records from the United States Veteran's Administration, Sheridan Medical Center. Those records reveal only the medications prescribed to Barnes while he was a patient there. Of particular interest here were these medications: oxycodone for pain; sertraline HCL (100 mg) for depression; sertraline TAB (150 mg) for depression; and trazodone for insomnia.
[¶4] On or about September 9, 2008, Barnes was hitchhiking from Casper to Gillette. Tom Jarrard (Jarrard) took note of Barnes because he had a United States flag tied around his possessions. Jarrard made what he described as a "dummied up" decision to offer Barnes a lift, thinking he might be a returning Middle East war veteran trying to make his way home. Barnes told Jarrard he was trying to get home (to Massachusetts) and that he was broke. Jarrard offered Barnes some work on his nearby ranch digging a trench from a water well to an RV that was being used as a temporary ranch home. At that site, Jarrard also had a blue flatbed pickup and a nicely restored sheepherder's wagon. There was some canned/preserved food in the wagon and Jarrard provided Barnes with some additional fresh food. Jarrard said that he would return in two or three days and assign additional work to Barnes, as well as bring more food. Jarrard intended to employ Barnes for a couple of weeks. Barnes testified that he had about $1,200.00 on him when he went to work for Jarrard. Barnes testified that he did the work Jarrard asked him to do; Jarrard said he did not.
[¶5] When Jarrard returned on September 12, 2008, Barnes was gone, as was the blue flatbed pickup, a television from the RV, a shot gun from the RV, an electric drill from the RV, and all the liquor that had been stored in the RV. It was eventually discovered that all of the gasoline had been siphoned from the RV (maybe 3/4 of a tank) and presumably put into the pickup, since Jarrard knew the pickup was very close to being empty on fuel. He called the thefts into the Johnson County Sheriff and found out almost immediately that Barnes was already in custody in Laramie.
[¶6] In the meantime, apparently late in the day on September 11, 2008, Barnes took all of his remaining medications, got drunk, and contemplated suicide by shooting himself with a shotgun he found on the premises. From this point forward, Barnes claimed he remembered nothing until September 13, 2008. He left the worksite in the blue flatbed pickup (the keys were in it). Although he claimed not to remember it, he stopped at Muddy Gap to buy gas. Because he did not have enough cash to pay the $135.00 fuel bill, he sold the shotgun from Jarrard's RV for $35.00 to a man named Ron Stoltenberg (Barnes apparently had a hundred dollar bill on him). The date of this event is not identified in the record (Stoltenberg was not asked what date it occurred). Stoltenberg later pawned the shotgun in Casper, and it was located there and included in the evidence in this trial.
[¶7] On September 12, 2008, just after 3:00 p.m., Barnes was arrested for speeding (about 93 mph) on I-80 just east of Laramie. He was driving from east to west toward Laramie. Once Barnes was stopped after a brief chase, the State Trooper assessed that Barnes was very drunk and he was arrested. Barnes was questioned but he could remember virtually nothing of what he had done since late in the day on September 11th.
[¶8] Of significance to the issues in this appeal, Barnes complained bitterly about the performance of his attorney and asked the district court for relief in the form of a new attorney. Also, Barnes testified in his own behalf, and the principal thread of his testimony was that he remembered nothing from the time he became intoxicated on September 11th, until September 13th, when he woke up in the Albany County Detention Center. During cross-examination, the prosecutor asked Barnes six times if witnesses were lying or mistaken when they did not agree with his testimony. In closing, the prosecutor described Barnes' defense as the "CRS defense" ("I can't remember sh*t"). In his rebuttal closing argument, the prosecutor also spoke of Barnes' apparent contention that other witnesses were "lying." We will fill in some gaps in this brief synopsis of the facts in our discussion, but the foregoing information provides adequate context for our remaining discussion.
[¶9] In Proffit v. State, 2008 WY 114, ¶ 15, 193 P.2d 228, 235-36 (Wyo. 2008) we held:
.[W]e quote at length our holding in Jensen v. State, 2005 WY 85, ¶ 20, 116 P.3d 1088, 1095-96 (Wyo.2005):
Turning to the prosecutor's cross-examination of Jensen, we note, generally, that a defendant who testifies in a criminal case may be cross-examined regarding his credibility just like any other witness. Gist v. State, 766 P.2d 1149, 1152-53 (Wyo. 1988); MacLaird v. State, 718 P.2d 41, 47 (Wyo. 1986); Porter v. State, 440 P.2d 249, 250 (Wyo. 1968). In Beaugureau [v. State, 2002 WY 160, 56 P.3d 626 (Wyo. 2002)], however, we observed that there was a limit to the cross-examination of a criminal defendant:
Nonetheless, it is likewise error and misconduct for the prosecutor to cross-examine a defendant using the "lying" or "mistaken" technique (i.e., well, then if "soand-so" said "such-and-such," was he "mistaken" or "lying?"). Such questions are improper. If the prosecutor merely asked Beaugureau about what other witnesses had to say, allowing the jury to draw its own conclusions, the cross-examination would not have been objectionable. State v. Diggs, 272 Kan. 349, 34 P.3d 63, 72-73 (2001); State v. Manning, 270 Kan. 674, 19 P.3d 84, 100-3 (2001) ("Questions which compel a defendant or witness to comment on the credibility of another witness are improper. It is the province of the jury to weigh the credibility of the witnesses." (collecting cases)); State v. Stevenson, 70 Conn.App. 29, 797 A.2d 1, 7-9 (2002) (Such questions are improper because they "require a defendant to comment on another witness' veracity ... invade the province of the jury, create the risk that the jury may conclude that, in order to acquit the defendant, it must find that the other witnesses lied, and distort the state's burden of proof.") (relying on State v. Singh, 259 Conn. 693, 793 A.2d 226, 234-39 (2002)) (collecting cases); also see State v. Walden, 69 Wash.App. 183, 847 P.2d 956, 959 (1993); and State v. Pitts, No. 47488-0-1, 2001 WL 1641225 at *4 (Wash.App. Div. 1, Dec.24, 2001) (per curiam) (use of word "lying" is misconduct; use of word "mistaken" merely objectionable).
Beaugureau, ¶ 17. The reasoning for prohibiting this type of questioning was succinctly summarized by the Iowa Supreme Court:
[A] defendant who is asked whether another person lied is commenting directly on the other person's credibility.
The issue then is whether any purpose is served in asking a defendant whether another witness is lying. We think the predominant, if not sole, purpose of such questioning is simply to make the defendant look bad, as implied by the Maryland court's observation in [Fisher v. State, 128 Md.App. 79, 736 A.2d 1125, 1163 (1999)] that the accused's answer is unimportant. * * * The accused's answer is unimportant because the accused is in a no-win situation. If the defendant says the other witness is lying, then the defendant is put in the position of calling someone a liar, a particularly unenviable state when the other witness is a law enforcement officer. See [State v. Emmett, 839 P.2d 781, 787 (Utah 1992)] (holding such questions are improper because they put "the defendant in the untenable position of commenting on the character and motivations of another witness who may appear sympathetic to the jury"). If the defendant says a contradictory witness is not lying, then a fair inference is that the defendant is lying.
But, as any trial lawyer knows, there may be many explanations for differing descriptions of the same event. People have different perceptions of the same conversation that affect how and what they remember. Perhaps there was a misunderstanding of what was said; perhaps one person was ...