Opinion
No. 25913
Decided March 10, 1975. Rehearing denied March 31, 1975
Defendant was convicted of second-degree kidnapping, statutory rape and joyriding and appealed.
Affirmed
1. RAPE — Objection — Question — Accusation — Sustained — Lack of Error — Counsel — Failure to Reveal Source — "Outcry." Trial court did not err in sustaining objection to question propounded to prosecutrix in rape case, to wit: "Isn't it true that you had accused another man in California of similar actions?" — particularly, where in chambers defense counsel did not reveal source of information as to such accusation; he did not state that "outcry" involved sexual intercourse; and did not even state that it was the prosecutrix who made the "outcry."
2. WITNESSES — Cross-Examination — Wide Latitude. Wide latitude should be allowed in the cross-examination of a prosecuting witness in a rape case.
3. Prosecutrix — Prior False Accusations — Admissible — Affect — Credibility. In a rape case, evidence of prior false accusations made by prosecutrix may be admitted as affecting her credibility.
4. Questions to Prosecutrix — Defense Counsel — Doubt — Credibility — Prohibited. Court will not countenance questions — propounded to prosecutrix by defense counsel in a rape case — which can cause a doubt in the jury's mind when there is no reasonable basis in fact for the interrogation.
5. RAPE — Defense — Cross-Examine — Prosecutrix — Prior False Accusations — Questions — Predicated — Fact — Rational Basis. In a rape case, for defense counsel to be permitted to cross-examine prosecutrix in a manner to indicate that she made prior false accusations, such questions must be predicated upon statements of fact by counsel, in chambers, showing to the court that there was a rational and reasonable basis for the question, including source, or at least a good reason for lack of identification of source.
6. ATTORNEYS AT LAW — Question — Examiner — Cannot Support — Unprofessional — Defense Counsel. It is unprofessional conduct on the part of defense counsel to ask a question which implies the existence of a factual predicate which the examiner cannot support by evidence.
7. PROSECUTING ATTORNEYS — Impeaching Questions — Good Faith. Impeaching questions should not be propounded to a witness unless they are based upon facts that the interrogator intends to present in refutation of adverse answering of questions propounded; such line of questioning should be done in good faith, and not for the purpose of prejudicing and arousing suspicion of the jury against the defendant.
8. WITNESSES — Prosecutrix — Prior False Accusation — Defense Counsel — Rape Case — Quantum Sufficit. Prior to asking question of prosecutrix indicating that she had made prior false accusations against other men, defense counsel in rape case must be possessed of quantum sufficit to make question not unfair and not unsupportable in some manner.
9. PROSECUTING ATTORNEYS — "Rape of the Worst Kind" — Contemporaneous Objection — Failure to Make — Reversal — Negative. Where district attorney in rape case made statement that this was "rape of the worst kind" and that the citizens of the community were entitled to protection from men like the defendant, held, even though the remarks of the district attorney may have been improper, they were not glaringly or tremendously so; and in view of convincing evidence of guilt, conviction would not be reversed, though district attorney may have gone too far in his statements, especially, where no contemporaneous objections were made.
Appeal from the District Court of Mesa County, Honorable William M. Ela, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, Gregory L. Williams, Assistant, James Wendall Wilson, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Norman R. Mueller, Deputy, Thomas M. Van Cleave III, Deputy, Mary G. Allen, Deputy, for defendant-appellant.
The defendant was convicted of second-degree kidnapping, statutory rape and joyriding. We affirm.
At the time in question the prosecutrix was 11 years of age, and the defendant was in his late twenties. According to her testimony, early in the evening the defendant drove her to a rocky area near Grand Junction, kept her there all night and the following morning, and forced her to engage in sexual intercourse several times.
We comment on two arguments of the defendant: (1) improper limitation of cross-examination; and (2) prosecutorial misconduct in closing argument.
During cross-examination, counsel for the defendant asked the prosecutrix, "Isn't it true that you have accused another man in California of similar actions?" The court sustained an objection to the question. The defendant then rested and the jury was excused. Immediately thereafter in chambers defendant's counsel argued that he should have been permitted to have an answer to his question. The court in effect inquired as the basis counsel had for posing the question. The only response to the court was as follows:
"I have reason to believe that accusations have been made against another individual in California for the same kind of sexual contacts. These allegedly occurred before the acts in this case, but the outcry was subsequent to these alleged acts.
* * * *
"I am not sure exactly [as to the time involved]. The officer who investigated out there for the — I think — Orange County Police Department, or Sheriff's Department, was unable to pin down the date, but the date of the outcry was on 7-20-72, and the information was given at the initiation of the officer investigating a complaint of another person."
In his closing argument the district attorney said: "I state to you this was rape of the worst kind. We have a little girl 11 years old." His last statement in closing argument was, "Citizens of this community are entitled to protection from men like Rudy Simbolo." There was no contemporaneous objection. Counsel for the defendant objected and moved for a mistrial after the jury had retired to consider its verdict.
I.
[1] There was no error in sustaining the objection to the question propounded to the prosecutrix, "Isnt' it true that you had accused another man in California of similar actions?" As the only basis for this question, counsel stated in chambers that "the information" was given to a law enforcement officer in California, who was investigating another matter, and that the date of the "outcry" was found by the officer to be July 20, 1972. Counsel did not reveal the source of his information. For aught that appears of record, it could have come from the defendant, a friend of the defendant, an anonymous call or any one of dozens of sources, believable or unbelievable, reliable or unreliable. Except for the question addressed to the prosecutrix, counsel did not state that the "outcry" involved sexual intercourse nor what the "information" was that was given to the California officer. He did not even state that it was the prosecutrix who made the "outcry."
[2-4] We are not unmindful of the general proposition that wide latitude should be allowed in the cross-examination of a prosecuting witness in a rape case ( DeSalvo v. People, 98 Colo. 368, 56 P.2d 28 (1963)), and that evidence of prior false accusations may be admitted as affecting the credibility of the prosecutrix. People v. Hurlburt, 166 Cal. App. 2d 334, 333 P.2d 82 (1958). However, it is unfair to allow — and we cannot countenance — questions, such as that propounded here, which can cause a doubt in the jury's mind as to the prosecutrix' credibility when there is no reasonable basis in fact for the interrogation.
[5] To cast an innuendo, such as was involved in this question, the question must be predicated upon a statement of fact by counsel (in chambers, of course) in justification, which will show to the court that there was a rational and reasonable basis for the question, including source, or at least a good reason for lack of identification of source.
[6] ABA Standards Relating to the Defense Function § 7.6 reads:
"It is unprofessional conduct to ask a question which implies the existence of a factual predicate which the examiner cannot support by evidence."
[7] In Kizer v. State, 67 Okla. Crim. 16, 93 P.2d 58 (1939), it was stated:
"It is a well-established rule that impeaching questions should not be propounded to a witness unless they are based upon facts that the interrogator intends to present in refutation of adverse answering of questions propounded; such line of questioning should be done in good faith, and not for the purpose of prejudicing and arousing suspicion of the jury against the defendant."
[8] We are unmindful of the fact that the quoted ABA Standards discuss "unprofessional conduct" and not error. Assuming arguendo that the unprofessional conduct mentioned in the Standards also amounts to error, we do not here have to travel the distance traversed by the ABA Standards and Kizer, i.e., we do not here have to impose as a condition precedent to the propounding of the question that counsel be able to support by other available evidence the inference arising from the question. We make no ruling in this respect. We merely state that, prior to asking such a question, counsel be possessed of quantum sufficit to make the question not unfair and not unsupportable in some manner. It was not error for the court so to limit cross-examination.
II.
[9] The district attorney may have gone too far in his statements that this was "rape of the worst kind" and that the citizens of the community are entitled to protection from men like the defendant. No contemporaneous objections were made. While the remarks of the district attorney may have been improper, they were not glaringly or tremendously so. With a background here of most convincing evidence of guilt, we have no hesitancy in applying the ordinary rule that contemporaneous objection should be made — and we apply it.
III.
We find the remaining assignments of error without merit.
Judgment affirmed.
MR. JUSTICE ERICKSON dissents.