dissenting:
I respectfully disagree with the result reached by my colleagues. In my opinion the three areas discussed in the majority opinion when considered together did deprive the defendant of a fair trial, and I believe he should be granted a new trial.
I think that from the facts as set forth in the majority opinion it can well be concluded that there is ample evidence which, if believed by the jury, was sufficient to support his conviction beyond a reasonable doubt. It may also be inferred from the facts the evidence is contradictory, the credibility of witnesses is the principal issue in the case, and if the issues relating to credibility were resolved in favor of the defendant by the trier of fact, a different result would have been reached. Thus, the fact of the errors, either actual or potential, is of primary significance.
With respect to the first issue relating to the admission of evidence of pot smoking at the party the majority decides, and I agree with the decision, that this area of inquiry was erroneous. Whether it would be sufficient to warrant reversal standing alone is a question which does not require resolution because it should be considered with the other issues in the case. At this juncture it is sufficient to say that the unfair prejudice engendered by the improper questioning was serious in view of the nature of the offense charged. Although the majority purports to consider the error in its cumulative effect with other errors, it is difficult to ascertain whether in fact any substantial significance was attributed to any of the errors individually, let alone collectively.
Concerning the prosecuting attorney’s misstatement of evidence during final argument to which an objection was interposed, I think the court erred in its response. Because the defendant’s motion was quite specific, the judge’s ruling might well have been considered by the jury as a disagreement with the position of defense counsel or in fact an approval of the allegation by the prosecution. Pursuant to appropriate defense motion made during the course of the trial, the evidence had been excluded by the trial court. However, when the same issue was referred to again in final argument, the trial court did not make the same ruling, and the jury may well have been left with the impression that there was such evidence. I do not think that the general instructions were sufficient to reduce or eliminate the erroneous impression which might have been created by the judge’s ruling.
Generally, a brief comment on the last issue concerning the letter, its exclusion from evidence and the judge’s explanation. I’m not sure whether the majority has found the procedure to be erroneous or not. What the majority does say is that to draw unfavorable prejudicial inferences from the circumstances surrounding the letter requires speculation and conjecture, thereby precluding the defendant from complaining. I think this is the very point at issue. Because of the circumstances surrounding this incident many speculations and conjectures are possible, some favorable to the defendant, some unfavorable. Yet because they are all speculations and conjectures they have little to do with the truth-seeking process and may have permitted the jury to draw conclusions not based on reasonable inferences or evidence.
Whether or not the cumulative effect of the foregoing errors is harmless error depends on whether we can say that we believe beyond a reasonable doubt the effect of such errors may not have contributed to the verdict of the jury. In my opinion the cumulative effect of the errors is significant, and in a case such as this, depending primarily on credibility of witnesses, I think the effect was unfairly prejudicial. The majority characterizes the evidence as being overwhelming. I believe the evidence presented by the prosecution was sufficient to support a conviction and was substantial. I do not believe it can be viewed as overwhelming to the extent that it can be deemed unaffected as a matter of law by the errors which took place. The case in chief against the defendant was the testimony of the prosecutor’s undercover police officer and the lab technician. The third party, who set up the transaction and who was apparently present at the transaction, did not testify. Additionally, rebuttal evidence was offered to refute the defendant’s alibi, which evidence indicated that defendant was on the premises sometime after the time of the sale.
In summary, considering the errors as a whole, I believe they may have significantly affected the credibility of witnesses and deprived the defendant of a fair trial.