State v. Johnson

*190VOGEL, Judge

(dissenting).

Agreeing with much of the opinion of Chief Justice Erickstad as I do, I regret that I must dissent on one point. I believe it was error to allow the State’s Attorney to interrogate the defendant as to nonexistent or unproved convictions and to interrogate as to arrests, as distinguished from convictions. I believe the asking of such questions is a fundamental invasion of the defendant’s rights, even in the absence of objection or motion to strike, so long as the State’s Attorney does not prove or offer to prove the existence of convictions to justify his right to ask the questions.

Even more so is there error where the defendant’s attorney makes a motion to strike, as he did during the trial, and that motion to strike is ignored by the court.

The facts are correctly stated in the majority opinion, but I would add the following excerpt from the transcript to the excerpts quoted by the majority:

“Q. Have you had any other convictions for burglary?
“A. No, I haven’t.
“Q. Now, you have had a conviction of possessing stolen property. When did that occur?
“A. About four years ago.
“Q. Have you ever been convicted of assaulting a peace officer?
“A. No, I haven’t.”

It has been the law of this State for more than 75 years that it is improper to ask whether or not a witness (including a defendant who testifies in his own behalf) has been “accused” or whether it was “claimed” that he committed a crime, “. . . because all that may have been true, and yet no such crime as claimed have [sic] been committed.” State v. Kent, 5 N.D. 516, 557, 67 N.W. 1052, 1064 (1896).

The majority opinion recognizes the existence of the rule and admits it was violated by the State’s Attorney in this case, but excuses it by saying that the violation was “technically improper,” that the objections and motion to strike were not made at the appropriate time in the appropriate words, and that the -improper questioning was “only harmless error” and, since the defendant admitted having been convicted of some crimes, “ . . . the prejudicial effect of an improper reference to one additional crime would be minimal.”

With all of these assertions I disagree.

I disagree just as strongly with the basis of the special concurrence. Speaking first to the special concurrence, in my view the prohibition of cross-examination as to arrests and charges of crime is based on far different considerations from the restrictions imposed on the use of collateral matters in cross-examination. Cross-examination on collateral matters is indeed limited because of the danger of losing sight of the real issues in the case, but the prohibition against cross-examination as to arrests is additionally based on the obvious fact that it is unfair to a defendant to give jurors the impression that he has been guilty of crimes other than the one he is being tried for, when in fact he has not been so convicted or the prosecutor cannot prove that he was. See Wigmore on Evidence, Chadbourn Revision, IIIA, § 980a. If the rule were otherwise, very few people would dare take the witness stand in their own defense, since the prosecutor would be free to take random shots at reputations imprudently exposed or ask groundless questions to waft unwarranted innuendoes into the jury box. See Goodman v. United States, 273 F.2d 853 (8th Cir. 1960). Certainly the prohibition against such conduct is based upon more fundamental reasons than merely keeping the length of trial within bounds.

Furthermore, I think the concurring opinion treats much too broadly the rule that witnesses may be asked about the commission of degrading acts. An arrest, as such, is not a degrading act by the defendant, although it may have a tendency to degrade him. It is, however, involuntary on his part, and he cannot be blamed for the deg*191radation, as he can for the commission of acts he himself committed.

Both the majority opinion and the concurring opinion, it seems to me, fail to adequately recognize the essential unfairness of letting a prosecuting attorney leave with the jury the impression that a defendant is guilty of nonexistent crimes.

The State’s Attorney is not an ordinary advocate. He is at least a quasi-judicial officer, with broad discretion to prosecute or not, and his ethics should correspond to those of the bench. O’Neill v. State, 189 Wis. 259, 207 N.W. 280 (1926); State v. Polan, 78 Ariz. 253, 278 P.2d 432 (1954).

“It would be as impossible for the jury to believe as it is for us to conceive that the district attorney would ask questions of this character without any information whatever upon which to predicate the question. If he had no such information and sought by a question of that type to instill in the minds of the jury the idea that there was some information in his possession which justified the question, the misconduct would have been immeasurably greater than if the facts were that he had information which justified the question. A district attorney is charged with the public duty of seeing that the defendant has a fair trial. The jury is aware of this fact and must have assumed that he had information which justified the question. . . . The real question is: Has the defendant had a fair trial? . . . ” People v. Anthony, 185 Cal. 152, 196 P. 47, quoted in People v. Douglas, 83 Cal.App.2d 80, 82-83, 187 P.2d 819 (1947).

The California Supreme Court, sitting en banc, stated the California rule to be that cross-examination is- limited by the requirement that it must be conducted in good faith. People v. Perez, 58 Cal.2d 229, 23 Cal.Rptr. 569, 573, 373 P.2d 617, 3 A.L.R.3d 946 (1962).

It is a violation of the Code of Professional Responsibility for a prosecutor (or any other lawyer) to

“State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.” Code of Professional Responsibility, DR 7-104(C)(1), adopted by State Bar Association of North Dakota in 1970.

See, also, American Bar Association Standards Relating to the Prosecution Function, ¶ 5.8(d); and American College of Trial Lawyers Code of Trial Conduct 19(a)(1).

I suggest that a defense attorney is placed in an impossible position if he is required to adhere to all the niceties of timing and phraseology in making objections to a prosecutor’s questions which assume misconduct on the part of the witness. The defense attorney, as well as the jury, has some right to believe in the good faith of the prosecutor. He has the right to assume that the prosecutor has a basis for asking a question. In People v. Lo Cigno, 193 Cal.App.2d 360, 388, 14 Cal.Rptr. 354, 372 (1961), the District Court of Appeal said:

“These and many other questions of the district attorney implied the existence of facts which the People made no effort to prove and had no reason to believe could be proved. This was misconduct. It was improper to ask questions which clearly suggested the existence of facts which would have been harmful to defendant, in the absence of a good faith belief by the prosecutor that the questions would be answered in the affirmative, or with a belief on his part that the facts could be proved, and a purpose to prove them, if their existence should be denied.”

No objections were made. See People v. Lo Cigno, supra, 14 Cal.Rptr. at 369-370.

All the more is the defense attorney’s position made difficult when he has made a proper motion to strike, and the trial court ignored it. The majority opinion says that the defense attorney should have “again urged the court to order the testimony *192stricken and to admonish the jury to disregard it.” I suggest that an attorney who has made an appropriate motion need not court a contempt citation in order to preserve his record.

The majority opinion seems to be saying that if one has been convicted of burglary, possessing stolen property, and possession of a controlled substance, there are no restrictions on interrogation as to arrests or imaginary and nonexistent convictions. I cannot agree.

The Federal courts are required to notice “plain error” even though not objected to. Rule 52(b), F.R.Crim.P. Our North Dakota rule is the same, but uses the term “obvious error.” Rule 52(b), N.D.É.Crim.P. This latter rule is new to North Dakota. (See article, “An Introduction to the North Dakota Rules of Criminal Procedure,” by Charles M. Travis and John E. Jacobson, 50 N.D.L.Rev. 1, at 22.)

We have recently adopted the rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), that:

“. . . before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” State v. Hilling, 219 N.W.2d 164, 172 (N.D.1974).

In State v. Bragg, 221 N.W.2d 793 (N.D. 1974), although not deciding the present issue, we rather pointedly referred to Rule 52(b), N.D.R.Crim.P., and the Chapman rule in discussing the effect of interrogation which improperly brought out that the defendant had exercised his right to be silent under the Fifth Amendment.

As the Eighth Circuit Court of Appeals said in Echert v. United States, 188 F.2d 336, 341-342, 26 A.L.R.2d 752 (1951):

“When, in the prosecution of a defendant, counsel for the government indulges in unfair and improper cross-examination, the only purpose of which is to degrade the defendant and to prejudice the jury against him, the government, upon appeal, will not ordinarily be heard to say that the methods which were used did not have the effect which they were obviously intended to have.”

The United States Court of Appeals for the Eighth Circuit has held to be prejudicial the questioning of a defendant as to arrests, where some of the questions were objected to and some were not. Packineau v. United States, 202 F.2d 681 (8th Cir. 1953).

It is true, as stated in the majority opinion, that the Minnesota Supreme Court, in Bryant v. Larson, 298 Minn. 533, 214 N.W.2d 359 (1974), held that disclosure to the jury that the defendant had been charged with an offense, even though the charge was later dismissed, was harmless. Even if we were to adopt that rule, it would be inapplicable here, because it is by no means clear that there ever was a charge of assaulting a peace officer. But in Minnesota, the same Supreme Court, in State v. Williams, 297 Minn. 76, 210 N.W.2d 21 (1964), held:

“Since the ‘rap sheet’ relied upon failed to provide a factual predicate for the cross-examination pursued, the questions asked concerning nonexistent convictions were both improper and prejudicial.” 210 N.W.2d at 26.

In this State, however, we have limited the harmless error rule in criminal cases by requiring that the trial be fair even where the evidence is ample for conviction. State v. Haakenson, 213 N.W.2d 394 (N.D.1973); State v. Schlittenhardt, 147 N.W.2d 118 (N.D.1966). To the same effect, in Arizona, see State v. Polan, supra.

Whatever the Minnesota rule may be, I would adhere to the California rule and to the spirit of our own holdings, and would hold that the repeated interrogation of a defendant by a State’s Attorney on arrests and nonexistent or unprovable convictions is prejudicial error requiring reversal.