Summary 2010 WY 14

Summary of Decision issued February 12, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Phillip v. State

Citation: 2010 WY 14

Docket Number: S-09-0080

Appeal from the District Court of Natrona County, Honorable Scott W. Skavdahl, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General

Facts: This matter arose out of a fight that occurred in a bar in Casper, Wyoming, on July 18, 2008. During the altercation, the appellant bit off a piece of the ear of another patron, and as a result was charged with one count of aggravated assault and battery. The appellant pled not guilty and a jury trial was held. The jury found the appellant guilty as charged. The appellant timely appealed.

Issues: Whether the district court erred when it gave the jury an instruction regarding an aggressor’s right to self-defense claiming that there was no evidence presented at trial that supported a finding that he was the aggressor in the conflict. Whether the district court erred when it admitted into evidence the appellant’s Affidavit of Indigency for impeachment purposes.

Holdings: The appellant did not object at trial to the instruction to which he now takes exception. Therefore the appellant’s claim will be reviewed under a plain error analysis.

The instruction at issue read:

YOU ARE INSTRUCTED that generally, the right to use self-defense is not available to one who is the aggressor or provokes the conflict. However, if one who provokes a conflict thereafter withdraws from it in good faith and informs his adversary by words or actions that he wants to end the conflict, and he is thereafter pursued or attacked, he then has the same right of self-defense as any other person.

There is no dispute that the appellant and the victim had been engaged in a verbal confrontation, based on the appellant’s, the victim’s, and the witnesses’ testimonies. It is also not disputed that the victim threw the first punch. However, the record also shows the victim testified he only punched the appellant after the appellant came toward him in an aggressive manner. In instances such as that presented here, where opposing parties claim the other was the aggressor, the task on appeal is not to weigh the evidence, but only to determine whether the district court could reasonably conclude that there was competent evidence from which the jury might find the party claiming self-defense was the aggressor. The instruction on self-defense as given was a correct statement of Wyoming law, and the jury was presented with testimony that could reasonably support a finding that the appellant was the aggressor. Therefore, the appellant has failed to show a violation of a clear and unequivocal rule of law, thereby failing to prove plain error.
The affidavit of indigency contained a sworn statement which was inconsistent with the appellant’s trial testimony. Showing that a witness made statements inconsistent with his testimony is one of five recognized means of impeachment. The purpose of this type of impeachment evidence is to show a witness to be generally capable of making errors in his testimony. The admissibility of evidence of prior inconsistent statements for impeachment purposes is not without limits, however. The cross-examiner may not impeach a witness on a collateral matter. Collateral matters are generally considered to include facts irrelevant to the substantive issues in the case and facts which are not independently provable by extrinsic evidence, apart from impeachment purposes. The test which determines if a matter is collateral is whether the matter could be introduced for any purpose other than to contradict. When a defendant in a criminal action takes the witness stand in his own defense, his credibility becomes an issue. Credibility of witnesses is always a question of fact for the trier of fact to determine. The evidence of the prior inconsistent statement in the present action was offered, admitted, and ultimately used for the purpose of challenging the appellant’s credibility. Furthermore, it is conceivable that the Affidavit of Indigency and the statements contained therein would have been independently admissible for purposes other than to show contradiction. Finally, whether evidence was collateral is a question primarily left to the discretion of the district court and, upon reviewing the entire record, it cannot cannot be said that the district court abused its discretion in admitting the affidavit.
Under the maxim, falsus in uno, falsus in omnibus, as strictly interpreted, if a witness testifies falsely as to any one material part of his testimony, his testimony should be discarded as a whole, and cannot be relied on for any purpose whatever, unless strongly corroborated; but this rule is not inflexible. It is true that the maxim should only be applied, if applied at all, where a witness falsely testifies to a material fact. However, under the facts presented here there is a question whether the falsus in uno maxim, as a separate legal concept, was ever even considered by the jury. The jury was told it was at liberty to disregard any witness’s testimony if it believed from the facts that the witness’s testimony was false. Likewise, the prosecutor never told the jury that it must disregard all of the appellant’s testimony because of the inconsistencies, as required by strict application of the falsus in uno maxim. Rather the prosecutor merely referenced the inconsistencies and told the jury it may consider such inconsistencies when judging the appellant’s credibility. Thus, the falsus in uno maxim was never plainly invoked in either the jury instructions or in any of the prosecutor’s comments. To find otherwise would require speculation and assign meaning not expressly conveyed in either instance. Furthermore, even if the jury was erroneously instructed on the falsus in uno concept, the appellant fails to point to anything in the record showing that the jury applied this maxim to his prejudice. The jury may have assigned more weight to the victim’s version of the events, or found the state’s evidence to be more credible; however, nothing in the record indicates that the jury disregarded all or even part of the appellant’s testimony.
The appellant asserts the admission of the Affidavit of Indigency violated his constitutionally protected right to equal protection by implicitly revealing to the jury that he was represented by a court-appointed attorney. The appellant contends that as an indigent, he was wrongfully subjected to ill feelings, resentment, and a general belief that those who are represented by public defenders are more likely to be guilty than those represented by retained counsel. The appellant cites no authority holding that that admission of an indigency affidavit, under the circumstances and for the purpose presented here, amounts to a violation of law. In fact, the only authority the appellant cites involves a defendant being presented to a jury in prison clothing and shackles – clearly a different scenario than the present. Furthermore, the appellant provides no support for his statements that the public is resentful of defendants represented by court-appointed counsel and automatically assume the individual is guilty. While it is clear from the record that the affidavit was used at trial, the appellant fails to show a violation of a clear and unequivocal rule of law or that he was unfairly prejudiced.
Next the appellant claims that admission of the Indigency Affidavit resulted in a violation of his Fifth Amendment right against self-incrimination. It is difficult to discern the thrust of the appellant’s argument inasmuch as he does not specify what information contained in the affidavit might have been incriminating. The appellant cites one tangentially related case and then concludes, without analysis or argument, that that case should govern here. The case cited, United States v. Hardwell is readily distinguishable from the present case. In Hardwell, the defendant was convicted of money laundering. The prosecution introduced the defendant’s financial affidavit into evidence in its case in chief as substantive evidence of the fact the defendant did not have a legitimate source of income. The lack of a legitimate source of income was a key element to the money laundering charge. The court held such use of that evidence violated the defendant’s Fifth Amendment right against self-incrimination.
Here, in contrast, the affidavit was not used as substantive evidence, but only for purposes of impeachment, and not until the appellant was testifying during the presentation of his case. The United States Supreme Court has held that such a use is proper and not in contravention of a defendant’s Fifth Amendment rights. In Harris v. New York the Court held that voluntary statements made by a defendant, although later deemed inadmissible as substantive evidence by the Fifth Amendment, could be used as impeachment evidence against the defendant if he testifies. , Miranda v. Arizona bars the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. However, it does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards. Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.
The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. As a result, it is unnecessary to determine whether the evidence admitted via the Affidavit of Indigency in the present action was obtained in violation of the appellant’s Fifth Amendment rights inasmuch as the evidence here was used only for impeachment purposes.
Finally, the appellant contends that his Sixth Amendment right to counsel was violated when he was compelled to answer the questions on the Affidavit of Indigency without counsel present. Once again, it is unnecessary for us to determine whether the appellant’s right to counsel was, or was not, abridged here inasmuch as the same principle discussed in the Fifth Amendment discussion applies in the context of an alleged Sixth Amendment violation. That is, even if the evidence was unlawfully obtained because a defendant’s right to counsel was not properly observed, the evidence may still be used for impeachment purposes. The prosecution must not be allowed to build its case against a criminal defendant with evidence acquired in contravention of constitutional guarantees and their corresponding judicially created protections. But use of statements so obtained for impeachment purposes is a different matter. If a defendant exercises his right to testify on his own behalf, he assumes a reciprocal obligation to speak truthfully and accurately In the present case, because the evidence contained in the affidavit was used only for impeachment, the appellant’s claim that he was denied his right to counsel must necessarily fail.

Conclusion: The evidence in the record could reasonably support the jury’s conclusion that the appellant was the aggressor in the altercation; therefore the district court did not err when it instructed the jury regarding an aggressor’s forfeiture of his right to self-defense. Additionally, the Affidavit of Indigency was properly admitted as a prior inconsistent statement under W.R.E. 613(b), and the district court did not abuse its discretion in admitting the affidavit. The appellant was unable to satisfy his burden of showing that the jury was erroneously instructed on the falsus in uno, falsus in omnibus maxim, or that even if so instructed, that he was prejudiced thereby. Finally, the appellant also failed to demonstrate that the admission of the Affidavit of Indigency resulted in an abridgement of his constitutionally protected right to equal protection, his Fifth Amendment right against self-incrimination, or his Sixth Amendment right to counsel.

Affirmed.

C.J. Voigt delivered the opinion for the court.

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