Dale CRONEY, Appellant, v. STATE of Oklahoma, Appellee.
No. F-85-509.
Court of Criminal Appeals of Oklahoma.
Dec. 14, 1987.
747 P.2d 34
Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
PARKS, Judge:
Dale Croney, appellant, was tried by jury and convicted of First Degree Arson [
The appellant was charged with setting fire to a dwelling for profit and tried conjointly with the property owners. The State presented expert testimony that the fire resulted from arson. The State further presented evidence that the ashes from the fire contained no furniture debris, indicating removal of the furniture before the fire. The defense presented expert testimony that the fire did not result from arson, and that the ashes did indeed contain melted parts of furniture.
No evidence was presented directly linking the appellant to the fire. Circumstantial evidence was introduced that the appellant possessed certain furniture after the fire similar to that allegedly burned. A witness testified that the appellant told him that the furniture came from a “little job“. The witness interpreted the phrase “little job” to mean that the appellant had committed arson for profit.
Thе appellant, his wife, daughter, brother and sister all testified that the appellant took his family on a vacation to Silver Dollar City in Branson, Missouri, on May 26, 1981; that the sister‘s car broke down in Mount Vernon, Missouri, on May 27; that the appellant drove his sister back to Tulsa, arriving there at 10:00 p.m. on May 27; and the appellant returned to Branson, Missouri, arriving at 2:00 a.m. on May 28. The house the State alleges the appellant burned is located in a rural area outside of Okmulgee, Oklahoma, some thirty-eight miles south of Tulsa. The fire occurred during either the evening hours of May 27 or the morning hours of May 28, roughly during the period the appellant claimed he was enroute either to Tulsa or back to Branson.
The resolution of this case hinged on the jury‘s perception of the credibility of the witnesses. The State impeached the appellant‘s credibility by eliciting from him on cross-examination his previous felony convictions. See
The State may attack the credibility of a witness with evidence of prior cоnvictions, elicited from the witness or established by public record during cross-examination, “but only if the crime [w]as punishable by death or imprisonment in excess of one (1) year, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the detriment of the defendant.”
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Evidence of a conviction under this section is not admissible if a period of more than ten (10) years has elapsed since the date of confinement or of the release of the witness from the confinement imposed for that conviction, whichever is later, unless the court determines, in the interests оf justice, that the probative value of the conviction supported
by specific facts and circumstances substantially outweighs its prejudicial effect. Evidence of a conviction more than ten (10) years old, as calculated herein, is not admissible unless the proponant gives to the adverse рarty sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. (emphasis added)
We find three errors in introducing the appellant‘s previous convictions which were more than ten years old. First, thе State failed to give advance written notice to the appellant that his stale convictions would be used for impeachment purposes. Second, the State failed to offer any, much less sufficient, specific facts and circumstances to satisfy their burden of proof that the probative value of the stale convictions substantially outweighed the prejudicial effect. Third, the trial court failed to conduct a balancing test to determine whether the probative value of the stale convictions substantially outweighed the prejudicial effect, and failed to support its admission of the stale convictions by identifying the specific facts and circumstances which determined its decision to admit the prior convictions which fell outside the ten (10) year limitation of
As originally submitted by the Supreme Court and adoptеd by the House Committee on the Judiciary, Rule 609(b) made impeachment by evidence of convictions totally inadmissible if more than ten years had elapsed since the date of conviction or of release from confinement. The Senate Committee disagreed with this approach and suggested there might be “exceptional circumstances” under which the conviction might bear on the credibility of the witness. The Committee did note, however, that “[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances.” Because of the differences between the House and Senate versions, the Conference Committee adopted a compromise, basically the Senate version with addition of the notice requirement to avoid surprise. United States v. Shapiro, 565 F.2d 479, 481 (7th Cir.1977) (citations omitted) (emphasis added). See also United States v. Cavender, 578 F.2d 528, 530 (4th Cir.1978). See generally Annot. 43 ALR Fed. 398 (1979). It is “crystaline” that a trial court may depart from the prohibition against the use for impeachment purposes of convictions more than ten years old only “very rarely and only in exceptional circumstances,” and there are strict limits within which the trial court may exercise its discretion to permit use of such convictions for impeachment purposes. Cavender, at 530.
The State candidly admits giving no advance written notice to appellant that his stale convictions would be used for impeachment purposes. The State argues, however, that the notice requirement was fulfilled because the appellant had the opportunity to contest the use of the evidence before it was admitted. In the instant case, notice came when the State tried to
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Once the State introduces “specific facts and circumstances” in support of their burden of proof, the trial court is required to perform a balancing test to determine whether the probative value of the stale convictions substantially outweighs the prejudicial effect. Thе trial court is further required to make a record and support its admission of the stale convictions by identifying the “specific facts and circumstances” which determined its decision.
It is axiomatic that in the absence of any findings by the [trial court] and any articulation of the ‘specific facts and circumstances’ supporting its decision, there can be no meaningful appellate review of that decision.... [A]ppellate review in such circumstances would be a ‘meaningless gesture,’ an empty formality, and a ‘game of blindman‘s bluff.’ Cavender, supra at 532. This standard that a trial court support its findings by “specific facts and circumstancеs” is “stringent” because the purpose of
When conducting the balancing test, the trial court must weigh two primary, but not exclusive, factors. First, the pivotal issue of the probative value of a conviction turns largely on the nаture of the conviction itself, since the purpose of impeachment is not to show that the accused who takes the stand is a “bad” person but rather to show background facts which bear directly on whether the jurors ought to believe him. The crimes which meet this test of inferring a propensity to lie are those which rest on some element of deceit, untruthfulness, or falsification. Cavender, supra, at 534. Therefore, those previous stale convictions, to be admissible, must have some bearing on the accused‘s propen
The second primary factor to be weighed in the balancing test is the similarity between the previous conviction and the present charge. Similarity between the prior convictions and the charged offense greatly incrеases the risk of unfair prejudice. Shapiro, supra, at 481. “The jury, despite limiting instructions, can hardly avoid drawing the inference that the past conviction suggests some probability that the defendant committed the similar offense for which he is currently charged.” Beahm, supra, at 418-19. Here, the prior convictions have no similarity to the present offense, greatly lessening the prejudicial effect of admitting the stale convictions. However, the balancing test focuses on whether the probative value substantially outweighs the prejudicial effect. Since there was no probative value in admitting the previous convictions, because thе previous convictions did not go to the appellant‘s propensity for truthfulness or untruthfulness, the probative value of the convictions could not substantially outweigh the prejudicial effect.
Finally, the State argues that if error occurred here, it was harmless error. We do not agree. The jury‘s determination of guilt hinged on the credibility of the witnesses. The State improperly impeached the credibility of the appellant by introducing the stale convictions to prove the appellant‘s bad character, not to show his propensity for truthfulness or untruthfulness while on the stand. Under the facts and circumstances of this case, we cannot say the error was harmless beyond a reasonable doubt. See Cavender, supra, at 535.
Accordingly, for the foregoing reasons, the judgment and sentence is REVERSED and the case is REMANDED for a new trial.
BRETT, P.J., concurs.
BUSSEY, J., dissents.
BUSSEY, Judge, dissenting.
I must respectfully dissent to the Court‘s disposition of this case. Despite the fact that this case does not present an issue of first impression, appellant cited no cases supporting the assignment on which the majority has reversed. We have decided numerous cases applying and construing the section of the evidence code here disputed. A review of those cases demonstrates that appellant‘s conviсtion should not be reversed. It is well recognized that the trial judge has wide latitude in determining the probative value of a defendant‘s prior convictions. Henegar v. State, 700 P.2d 659 (Okl.Cr.1985); Campbell v. State, 636 P.2d 352 (Okl.Cr.1981), cert. denied, 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 479 (1983). In this case, the trial judge allowed questioning concerning the disputed convictions only after hearing argument from both sides. I cannot find that the trial judge abused his discretion. Furthermore, examination of a defendant concerning his prior convictions can be harmless, Rushing v. State, 676 P.2d 842 (Okl.Cr.1984), or invited Gilbreath v. State, 651 P.2d 699 (Okl.Cr.1982). In this case, testimony admitted as statements against appellant‘s penal interest along with expert testimony of evidence at the scene, telephone records showing appellant‘s connection with the owners of the insured premises, and appellant‘s subsequent acquisition of furniture supposedly destroyed in the fire overwhelmingly establishes appellant‘s guilt. His credibility was destroyed by his testimony which was inconsistent with this evidence, and any error that could have occurred by admission of his prior offenses was harmless. Appellant wholly failed to satisfy his burden to show that he was prejudiced in a substantial right. Harrall v. State, 674 P.2d 581 (Okl.Cr.1984).
The absence of authority supporting appellant‘s assignment is underscored by the majority‘s opinion, which contains no cases of this Court which could reach the majority‘s result. Nor has the Court distinguished or overruled our prior cases incon
For the foregoing reasons, I dissent.