Rowe v. StateRowe v. State
Michael Paul Rowe was charged in a two-count indictment with armed robbery,
I.
The victim, Patricia Dulaney, fell asleep while alone in her apartment on October 27, 1988. She awoke to find Michael Rowe in her apartment. He solicited a contribution to a fictitious charity. Dulaney refused. Rowe then asked for and was given a glass of water. Subsequently, Rowe attacked Dulaney with a weapon, forced her onto her bed, and demanded money. Dulaney gave Rowe $1.25. Rowe did not leave immediately, but attacked Dulaney again. She fought him off and screamed, after which Rowe left the apartment.
Rowe‘s fingerprints were lifted from the water glass. Rowe admitted being in Dulaney‘s apartment, but claimed that his presence was by invitation, in response to his knock. He denied any robbery.
II.
DID THE TRIAL COURT ERR IN ALLOWING EVIDENCE OF ROWE‘S PRIOR CONVICTION?
In 1984 Rowe was convicted of armed robbery. Before trial, Rowe filed a motion in limine to exclude evidence of prior convictions. Rowe cited
Dulaney testified that Rowe had attacked her with a sharp metal object, approximately six to eight inches long. Rowe testified in his own behalf. He stated that he had knocked at Dulaney‘s door and was invited into the apartment. He admitted soliciting for a fictitious charity, but denied attacking Dulaney. His version of the incident was that Dulaney had attacked him in an attempt to force him out of the apartment, and he only fought her off. On cross-examination the state never raised the issue of past convictions. On re-direct, Rowe was asked the following:
Q. Michael, if you had taken some money from somebody according to the lie you were telling them about the charity, in your mind you would not have hurt them, would you?
A. No, sir.
Q. Would you have hurt anybody to get money? A. No, Sir.
After these questions, the prosecution requested and obtained a bench conference, out of the hearing of the jury. The prosecutor argued that Rowe, by presenting himself as a person who would not harm another, had opened the door to evidence of prior conduct involving violence in obtaining money; and the state was entitled to present evidence of prior convictions involving the use of violent acts to obtain money. The trial court then overruled defendant‘s motion to exclude evidence of Rowe‘s guilty plea and conviction of attempted strong armed robbery in January, 1984.
Rowe argues that his testimony on re-direct was merely a denial of the crime, and did not place his character and credibility in issue to the point of opening the door to allow the introduction of evidence of prior convictions.
Three issues were raised by the dialogue quoted above: Rowe‘s credibility3; his predisposition for peaceableness or violence; and whether or not he actually committed the crime. Rowe‘s credibility was not the primary issue. Rowe admitted that he would lie to obtain money when he testified that he had solicited funds for a fictitious charity, but denied having the predisposition to threaten or hurt anyone to obtain money. In essence, he was asking the jury to find that he would not have threatened Dulaney, but had only attempted to deceive her. This raised the issue of Rowe‘s character or predisposition for peaceableness or violence. See Gordon v. U.S., 383 F.2d 936, 940 (D.C. Cir.1967).
The defendant in a criminal case may offer his good character to evidence the improbability of his doing the act charged.
The prosecution may not offer evidence of the accused‘s character unless and until the accused has raised the issue by offering evidence of his good character. If and when the accused has raised the issue of his character, the prosecution may then offer evidence of the accused‘s bad character.
The defendant does not put his character in issue by taking the stand as a witness, * * * If the defendant testifies as a witness, his credibility as a witness may be attacked. * * * A defendant‘s character is put in issue when he states that he has a good character or a good record, or when he otherwise offers evidence of good character. (emphasis added)
1 Wharton‘s Criminal Evidence § 169 (1985).
Robbery is a crime of violence by definition.
Until Rowe testified that he would not hurt another to obtain money, the admissibility of evidence of prior crimes was subject to the limitations imposed by
The evidence of prior convictions was properly admitted. The conviction and sentence are affirmed.
AFFIRMED.
DAN M. LEE, P.J., concurs in result only.
Notes
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect on a party or (2) involved dishonesty or false statement, regardless of the punishment. (emphasis added)
The comment states:
Under 609(a) crimes are divided into two categories for purposes of impeachment: (1) felonies, provided the court determines that the probative value of admitting evidence of the crime outweighs its prejudicial effect, or (2) crimes involving dishonesty or false statement, whether felonies or misdemeanors.