Wells v. State

CARDINE, Justice, specially

concurring.

In Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1184-85, 68 L.Ed.2d 378 reh’g denied 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), the United States Supreme Court set down the rule which governs interrogation of an accused who has invoked his right to counsel:

[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police, [emphasis added; footnote omitted]

The Court explained, in dicta, that an accused may waive his privilege against self-incrimination by voluntarily initiating a conversation concerning his alleged crime:

In concluding that the fruits of the interrogation initiated by the police on January 20 could not be used against Edwards, we do not hold or imply that Edwards was powerless to countermand his election or that the authorities could in no event use any incriminating statements made by Edwards prior to his having access to counsel. Had Edwards initiated the meeting on January 20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary,, volunteered statements and using them against him at the trial.

Edwards, 451 U.S. at 485, 101 S.Ct. at 1885.

It further added this caveat, in a footnote:

If, as frequently would occur in the course of a meeting initiated by the accused, the conversation is not wholly one-sided, it is likely that the officers will say or do something that clearly would be “interrogation.” In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.

Id., 451 U.S. at 486, n. 9, 101 S.Ct. at 1885, n. 9.

This dicta was further developed in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), cited by the majority in this case, in which the Supreme Court formulated a two-step inquiry for waiver under Edwards: (1) whether the defendant initiated the contact leading to his incriminating statement, and (2) if so, whether the prosecution has demonstrated *597that “subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” Bradshaw, 462 U.S. at 1044, 103 S.Ct. at 2834. The Court held that when the defendant, while being transported to the county jail, asked the police “[w]ell, what is going to happen to me now?”, his inquiry satisfied the first part of the test; it “evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship.” Bradshaw, 462 U.S. at 1045-46, 103 S.Ct. at 2835. The Court also found the second part of the test satisfied under the circumstances.

Subsequent cases have reaffirmed the Edwards/Bradshaw rule that a defendant who knowingly and voluntarily initiates a conversation concerning his alleged offenses, may waive his privilege against self-incrimination, even after appointment of counsel. See e.g., Minnick v. Mississippi, 498 U.S. 146, -, 111 S.Ct. 486, 492, 112 L.Ed.2d 489 (1990). In Bradshaw, the Supreme Court explicitly avoided a hyper-technical definition of “initiation”:

There can be no doubt in this case that in asking, “Well, what is going to happen to me now?”, respondent “initiated” further conversation in the ordinary dictionary sense of that word. * * * [W]e doubt that it would be desirable to build a superstructure of legal refinements around the word “initiate” in this context

Bradshaw, 462 U.S. at 1045, 103 S.Ct. at 2835.

Application of Bradshaw must begin with an assessment of whether the defendant initiated, in the ordinary sense of the word, the conversation which led to his admissions. At the suppression hearing, Special Agent Wheeler stated the following concerning his conversation with appellant:

Well, Mr. Wells just started the first conversation that had anything to do with the case by saying that he did know Kevin Steiner, and he had been to his house visiting but, you know, we had— that it was completely innocent * * *.

Appellant’s statement to Wheeler initiated the conversation in which he incriminated himself. Our next inquiry must concern the knowledge and voluntariness of appellant’s waiver. Again, at the suppression hearing, Agent Wheeler testified as follows:

Q. Was [appellant] Mirandized then?
A. * * * Special Agent Arter advised him of his rights per Miranda and then I heard Special Agent Arter tell him that we weren’t going to ask him any questions, you know, we were just there to take him back, and he said okay.
Q. Any conversation that took place in the car on the way back, I’m going to ask you about when it commenced?
A. We drove out the county road and had just gotten on the freeway.
A. * * * So we were in the car maybe five or ten minutes, and that’s when Mr. Wells just kinda said that, you know, he knew Kevin Steiner.
Q. Had anybody asked him anything up to this point?
A. No.
******
Q. Now up to that point in time has the defendant ever said, I don’t want to talk, or I want my lawyer, or I want a lawyer or anything along those lines?
A. No.
Q. Did he indicate any misunderstanding of the Miranda warnings?
A. He indicated that he understood it, and he was specifically asked, Arter read the Miranda rights and then said, do you understand all of those and he said, yes, I do.

From this testimony, the trial court could properly conclude that appellant made a knowing and voluntary waiver of his privilege against self-incrimination. Thus, both prongs of the Edwards test are satisfied, and the evidence was properly admitted.

Next it is claimed that testimony of a special agent about information received *598which caused him to believe a state’s witness was violative of holdings in our Stephens and Bennett cases, infra. In Stephens v. State, 774 P.2d 60 (Wyo.1989), we held that reversible error was committed when expert witnesses testified to their opinion that a child had been abused and identified the perpetrator. Error was also committed when an expert witness vouched for the victim’s credibility. This is because “jurors are as qualified as expert witnesses to determine the credibility of any witness, and * * * testimony commenting on the credibility of a witness is not admissible under Rule 704.” Stephens, 774 P.2d at 68.

In Bennett v. State, 794 P.2d 879 (Wyo. 1990), an investigating officer testified he believed the defendant was a drug dealer, and gave reasons for his belief. We held that both the statement of the officer’s opinion concerning guilt and his explanation of reasons for his opinion were an impermissible usurpation of the province of the jury.

I discern two rules from Bennett/,Stephens: (1) no one (except perhaps the defendant) may testify concerning his opinion of whether the defendant is guilty of the crime charged, or of the basis of his opinion; and (2) no expert witness may give an “expert opinion” of a witness’ credibility. Neither rule was violated here.

Agent Wheeler did not testify concerning his opinion of the defendant’s guilt. All that was asked was whether Agent Wheeler received information during the course of his investigation that caused him to believe Kevin Steiner. Agent Wheeler responded:

I received a fingerprint identification of Allen Craig Wells’ left thumb having come in contact with a bag that contained the nearly five ounces of cocaine I found in Kevin Steiner’s house.

The prosecutor did not ask whether Wheeler believed appellant was guilty. That would have been an impermissible inquiry into an opinion of guilt. Of course the officer’s testimony had some bearing on the ultimate question of guilt or innocence. If it had no bearing on that question, it would have been excluded as irrelevant. See W.R.E. 401, 402.

Nor did Agent Wheeler offer an expert opinion concerning whether Steiner, the state’s witness, was telling the truth at trial. He was' asked to give his reasons for believing Mr. Steiner, and he did so. If it was evidence that went to Steiner’s credibility, it was not barred. Under W.R.E. 702 expert testimony on a victim’s credibility is prohibited because it invades the province of the jury. See Zabel v. State, 765 P.2d 357, 360 (Wyo.1988); Lessard, v. State, 719 P.2d 227, 233 (Wyo.1986). We prohibit such testimony because we do not need or want a parade of “truth or falsehood” experts invading the jury’s traditional function by offering expert opinions of credibility. The same concerns are not present where “lay” testimony showing a factual basis for belief is used to bolster a witness’s credibility after it has been attacked by the other side.

Prior to Wheeler’s testimony, Steiner’s credibility had been attacked by the defense. Steiner was a target of impeachment on the grounds that he had received favorable treatment from the government for his testimony. The defense elicited testimony that prior to his plea arrangement, he was facing a 120-year sentence for his part in this crime but that because of his arrangement with the prosecution, he would only serve ten months incarceration. The defense also pointed out that Steiner had changed his story from the “wild story” he told at the time he was arrested. Under the circumstances, Wheeler’s testimony was relevant and needful to bolster Steiner’s credibility.

In short, Agent Wheeler neither gave his opinion regarding appellant’s guilt nor offered an expert opinion regarding Kevin Steiner’s credibility. I agree that we affirm appellant’s conviction, as he has presented no reversible error.