State v. GreenState v. Green
Defendant, Charles E. Green, was convicted by a jury of third offense theft,
“If the offender in such cases [when the theft is less than а value of $100] has been convicted of theft two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than one thousand dollars, or both.”
La.R.S. 14:67 , par. 4.
The effect of the statute is to enhance the range of punishment for a defendant found guilty of theft of less than $100 who has also been convicted of two or more thefts previously. Thus, the statute calls for the jury to be fully informed of a defendant‘s prior convictions through the reading of the allegations in the indictment and the introduction of evidence of the past convictions. The statute fails, however, to require the trial judge to charge the jury that the prior convictions are not to be taken into account in assessing the defendant‘s guilt or innocence under the current indictment.
Defendant, Green, was charged by indictment with theft of a video cassette worth less than $100 from K & B Drugs on September 15, 1984. Additionally, the indictment alleged two previous convictions of theft, one on June 26, 1984 in district cоurt and another in city court on November 9, 1982.
At trial the defense counsel objected to the reading of the allegations of previous crimes in the indictment to the jury on the ground that evidence of the past crimes “is only admissible in the event Mr. Green is
After being convicted of third offense theft and sentenced to 18 months in jаil, defendant appealed. On appeal, the court of appeal affirmed after reviewing several assignments of error. We granted certiorari to review only relator‘s assignment of error relating to the court‘s failure to give a limiting instruction.
Considering the defendant‘s attack upon the third offense theft recidivist procedure solely as a complaint about the trial court‘s failure to give a limiting jury instruction under state law, the court of appeal found defendant‘s assignment of error to havе no merit. The appeals court reasoned that because defendant did not object to the failure to give a limiting instruction in the trial court,
Defendant‘s assignment of error in the court of appeal and in this court, however, involves much more than a simple failure to give a jury instruction required by state law. He contends that
The question raised by defendant‘s due proсess attack is whether a state statute may constitutionally authorize the prosecutor, in a single proceeding, to offer both evidence of the defendant‘s guilt of the primary charge and evidence of his prior criminal record of crimes of a similar nature to enhance his punishment, without also requiring a limiting jury instruction that the defendant‘s past convictions are not to be taken into account in assessing his guilt or innocence of the primary offense charged.
The United States Supreme Court in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), upheld the constitutionality of a Tеxas recidivist statute which permitted the state to fully inform a jury, during a defendant‘s trial on the pending criminal charge, of the defendant‘s past convictions when the jury was also charged that such matters were to be considered only for the limited purpose of enhancement of punishment and not for deciding guilt or innocence. It follows from the high court‘s rationale that a recidivist procedure is unconstitutional, when it allows evidence of defendant‘s past crimes to be admitted for punishment enhancement
The United States Supreme Court recognized that prior crime evidence has a potentiality for prejudice and is usually excluded except when it is particularly probative in showing such things as intent, a system of criminal activity, or when the defendant has raised the issue of his character, or when the defendant has testified and the state seeks to impeach his credibility. 385 U.S. at 560-62, 87 S.Ct. at 651-53. But, the сourt noted that, in all these situations, the conceded possibility of prejudice is believed to be outweighed by the validity of the state‘s purpose in permitting introduction of the evidence, and that the defendant‘s interests are believed to be protеcted by limiting instructions and by the trial judge‘s discretion to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence. Id. at 561, 87 S.Ct. at 652. The court acknowledged that the use of prior crime evidence in a one-stage recidivist trial may represent a less cogent state interest than does its use for other purposes, in that other procedures for applying enhancement-of-sentence statutes are available to the State, such as bifurcated proceedings, which are not feasible in the other situations in which such evidence is introduced. Id. at 563, 87 S.Ct. at 653. Nonetheless, the court concluded that the use of prior crime evidence in a one-stage recidivist trial is justified, despite the prejudiciаl effect which is acknowledged to inhere in this practice, because (1) the admonitory instruction is given which the jury is expected to follow in limiting the evidence to its proper function, and (2) a valid state purpose is served by its introduction, viz., the enforcеment of recidivist laws. Id. at 562-63, 87 S.Ct. at 652-53.
The Supreme Court expressly affirmed Spencer in Marshall v. Lonberger, 459 U.S. 422, 438, 103 S.Ct. 843, 853, 74 L.Ed.2d 646 (1983), and two United States Courts of Appeal have extended Spencer by holding that the prejudice to the defendant which results from a failure to give limiting jury instructions with regard to prior crime evidence in one-stage recidivist trials is so great that it constitutes plain error of constitutional magnitude, requiring relief even whеre the defendant did not request the limiting jury instructions. Dawson v. Cowan, 531 F.2d 1374 (6th Cir.1976); Evans v. Cowan, 506 F.2d 1248, 1249 (5th Cir.1974).
Applying these precepts to the present case, we conclude that a one-stage recidivist trial procedure would, in the absence of a mandatory limiting jury instruction, “fall below the minimum level the Fourtеenth Amendment will tolerate.” Spencer v. Texas, 385 U.S. at 569, 87 S.Ct. at 656 (Stewart, J. concurring). Spencer took a balancing approach to interpreting the requirements of the Fourteenth Amendment‘s Due Process Clause and held that under the Texas recidivist statute the conceded potentiality for prejudice from admitting a prior conviction did not outweigh the benefits the state might derive from the procedure that required admitting the evidence of the prior conviction—because the Texas procedure required that the jury be given proper limiting instructions. On the other hаnd, a one-stage recidivist procedure which does not require a limiting instruction to reduce the substantial possibility that the jury will take past crimes into account in deciding present guilt or innocence, falls short of the delicate balance struck by Spencer as the minimum safeguard required, and therefore, violates the Due Process Clause.
In isolation from other statutes,
Following this principle, we conclude that
Although we granted certiorari in this case primarily beсause of the alleged facial unconstitutionality of
Applying the foregoing precepts, we conclude that defendant‘s conviction and sentence were obtained through a procedure which falls below the minimum level that the Due Process Clause will tolerate and therefore must be set aside. The jury which was to decide defendant‘s guilt or innocence on the primary charge was informed of the allegations of defendant‘s two prior convictions in the indictment and given evidence of these convictions during the guilt-determination phase trial. The jury was not instructed to refrain from taking this information into account in deciding defendant‘s guilt or innocence. This presented a substantial and constitutionally intolerable potential for prejudice. Accordingly, the defendant‘s conviction and sentence are reversed and the case is remanded to the trial court for further proceedings.
REVERSED AND REMANDED.
LEMMON, J., concurs and assigns reasons.