The defendant, Erie Hebert, challenges his misdemeanor conviction for simple assault. RSA 631:2-a (2007). He argues that the Superior Court {Abramson, J.) erred by permitting the State to introduce evidence of his prior felony conviction under former New Hampshire Rule of Evidence 609(a) and by failing to provide a limiting instruction. We affirm.
I
The jury could have found the following facts based upon the record. The defendant and Eric Picard worked for a drywall business owned by the defendant’s uncle, Gilíes Hebert, who was married to Picard’s sister, Tasha. The defendant and Picard shared an apartment for several months in 2004 and 2005. Picard later moved out and, according to the defendant, owed him about $1,150. At trial, Picard acknowledged owing the defendant money, but contended that the debt was much less. After Picard moved out, the defendant attempted to collect on the debt, but Picard avoided him.
On August 18, 2005, Picard visited his sister Tasha, and, while he was there, the defendant arrived. Picard told Tasha that he owed the defendant money and then left through a rear door to avoid an encounter. The defendant, however, noticed a car depart, and, soon thereafter, he followed it. When he spotted Picard’s car at a gas station, he pulled in, unnoticed, and parked behind him. He alighted from his car and walked toward Picard’s vehicle. As he did so, Picard reached into his console to find money to buy cigarettes, and when he sat up, the defendant struck him in the face with an object. As the defendant was returning to his car, Picard saw him carrying a black object about sixteen inches in length.
After the two argued briefly, Picard went into the gas station to purchase cigarettes, and when he returned, the defendant demanded that Picard call his uncle to borrow money to pay the debt. The defendant initiated the phone call, and Picard did as requested. The two then returned to the sister’s home to retrieve the money. When Gilíes gave the defendant $400, he demanded an additional $200, stating that he had “paid $200 to get [Picard’s] legs broken.” At trial, the defendant denied making this statement but admitted that he had brandished a black rubber hose at Gilíes’ home. He also acknowledged telling Picard either that he should have broken Picard’s legs a long time ago, or that Picard was lucky that he had not hit him with the hose. At that point, Gilíes told the defendant to leave his property. Picard subsequently sought medical attention for his injuries, which included a broken jaw. He underwent
At trial, the defendant admitted to assaulting Picard but claimed that he acted in self-defense, using only a justifiable measure of force. According to the defendant, after he parked behind Picard’s vehicle, he made eye contact with Picard in his side mirror as he approached the car on foot. The defendant testified that he thought Picard was retrieving a weapon when he reached toward his console, so he punched him and then immediately shut Picard’s car door to protect himself. He denied striking Picard with any object other than his fist. He introduced evidence to support his fear of Picard, testifying that Picard was violent and had a reputation for violence. He further testified that Picard had apparently stabbed a drug dealer and had beaten someone over the head with a cell phone.
The State challenged the defendant’s credibility by submitting evidence that his version of events at trial differed from the version he had provided earlier to the police. During his trial testimony, the defendant admitted that he had lied to the police by claiming that Picard threw a punch at him first. In accordance with a pre-trial ruling, the State asked the defendant during cross-examination about a prior felony conviction to further impeach his testimony under Rule 609(a). The defendant acknowledged that in 1998, he had been convicted for operating a motor vehicle after being certified as a habitual offender (habitual offender conviction). On re-direct, he explained that the conviction was based upon driving after being certified as a habitual offender due to multiple motor vehicle convictions. Additionally, because the defendant had testified on direct examination that he was not generally a violent person, at the State’s request the trial court ruled that he had opened the door to the admission of additional prior convictions. Specifically, the State was permitted to cross-examine the defendant on his 1993 conviction for conspiracy to commit assault and his 2004 conviction for resisting arrest. Ultimately, the jury acquitted the defendant of second degree assault and convicted him of simple assault.
On appeal, the defendant does not challenge the admission of his 1993 and 2004 misdemeanor convictions that were offered to rebut his testimony on direct examination that he was not violent. Rather, he focuses exclusively upon the admission of his 1998 felony habitual offender conviction under Rule 609(a) to impeach his credibility.
II
The defendant’s challenge to the admission of his 1998 felony habitual offender conviction is two-fold. First, he argues that the trial court erred in permitting the State to introduce it under Rule 609(a). Second, he contends that the trial court erred by failing to provide a limiting instruction to the jury to ensure that it relied upon his habitual offender conviction solely for impeachment purposes.
We first address whether admission of the conviction pursuant to Rule 609(a) was erroneous. The version of Rule 609(a) in effect at the time of the defendant’s trial provided, in pertinent part:
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness 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 or she was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonestyor false statement, regardless of the punishment.
N.H. R. Ev. 609(a) (amended 2007). Because it concluded that “the probative value of the prior felony conviction significantly outweigh[ed] its prejudicial effect,” the trial court permitted the State to use it for impeachment purposes. We review its ruling under an unsustainable exercise of discretion standard.
State v. Deschenes,
“Prior convictions are admissible to impeach a defendant even if the crimes do not directly involve a lack of veracity.” Id. at 77 (quotation omitted). Jurors ought to be informed of “what sort of person is asking them to take his word, and lack of trustworthiness may be evinced by [a defendant’s] abiding and repeated contempt for laws which he is legally and morally bound to obey.” Id. (quotations and brackets omitted). When balancing the probative value and prejudicial effect under Rule 609(a), the following factors are pertinent:
the impeachment value of the prior conviction, the date of the conviction and the witness’s subsequent history, the degree of similarity between the past crime and any conduct of the witness currently at issue, the importance of the witness’s testimony, and the centrality of the credibility issue.
Id. at 76-77 (quotation omitted). When examining the prejudicial effect of convictions for crimes that do not involve dishonesty or false statement, two factors are pertinent:
(1) the inherent ability of a crime to appeal to a jury’s sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger other mainsprings of human action, and (2) when the witness is also the defendant, the similarity between the conviction introduced for impeachment purposes and the crime for which the defendant is on trial.
Id. at 78 (quotation and citation omitted). The second factor is measured along a continuum in which a conviction for a crime that is the most different from the charged crime is “least prejudicial,” while a conviction for the same crime would be the “most prejudicial.” Id. (quotations omitted).
The defendant argues that the habitual offender conviction had little probative value for impeachment of his credibility because the underlying crime did not involve dishonesty or a false statement, the State had other evidence challenging his credibility, and the conviction occurred nine years before his assault trial. He contends that its minimal probative value is outweighed by its inherent prejudicial effect because the conviction could have aroused negative jury sentiment, at a minimum implying that he was an unsafe driver and posed a danger to other travelers. We are not persuaded.
First, we reject the defendant’s attempt to minimize the probative value of his felony offense for driving after being certified a habitual offender because it did not involve dishonesty or a false statement. The trial court found that by asserting self-defense, the defendant asked the jury to believe that he was justified in assaulting Picard, and, thus, his credibility was “of particular importance.” At trial, the defendant explained that his certification as a habitual offender was based upon multiple motor vehicle violations. The trial court reasoned that the habitual offender conviction evinced an abiding and repeated contempt for the law, and thus provided insight into the defendant’s trustworthiness. This conclusion is not clearly untenable or unreasonable.
See State v. Hickey,
Further, we are unpersuaded by the defendant’s assertion that the other means of impeaching his credibility utilized by the State minimized the probative value of his habitual offender conviction. The defendant specifically points to the State’s reliance upon his trial testimony that he lied to the police when initially recounting his version of the assault. As the State points out, however, the defendant first admitted to this lie during cross-examination, well after the trial court rendered its pre-trial ruling, and the defendant makes no suggestion that he asked the trial court to reconsider its ruling in light of his admission. Moreover, even after the defendant admitted to lying to the police, his credibility remained at issue because he asked the jury to believe his explanation for lying and to trust the account he gave at trial.
Finally, the defendant relies upon the considerable passage of time between his 1998 felony conviction and the 2007 trial to challenge the conviction’s probative value. While we agree that the nine-year span may diminish the probative value of the habitual offender conviction, we cannot conclude that the trial court’s decision to admit it was clearly untenable or unreasonable given the repetitive transgression of the law that the habitual offender conviction represents. See id. (repeat convictions for same or similar offenses within nine-month time frame could be especially probative of trustworthiness, even when such convictions occurred nearly ten years earlier).
With respect to prejudicial effect, the trial court determined that it was diminished because the habitual offender conviction “may be considered a driving offense.” While the trial court did not explicitly apply the factors for reviewing prejudicial effect as outlined in Deschenes, we interpret its ruling to mean that the conviction in this case was not inherently horrifying and was sufficiently dissimilar to the charged assault. See id. (reviewing whether prior conviction was inherently horrifying even though trial court did not expressly address first prong of prejudicial effect test). We agree and conclude, therefore, that its ruling is not clearly untenable or unreasonable.
Ill
The defendant next argues that the trial court’s failure to give a limiting instruction to the jury regarding its proper use of his felony habitual offender conviction requires that his conviction for simple assault be reversed pursuant to
State v. Skidmore,
Because evidence of a prior conviction is inherently prejudicial to a defendant, when a trial court admits such evidence for impeachment purposes pursuant to Rule 609(a), it must give a limiting instruction. State
v. Cassell,
Today, we stand by our holding that a trial court is required to give a limiting instruction when evidence of a prior conviction is utilized on cross-examination to impeach a defendant’s testimony under Rule 609(a),
unless the defendant expressly waives his right to such an instruction on the record.
See Skidmore,
Overruling any part of established precedent is not a task we undertake lightly. The doctrine of stare decisis “demands respect in a society governed by the rule of law,” because “when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.”
State v. Holmes,
[sjeveral factors inform our judgment, including whether: (1) the rule has proven to be intolerable simply by defying practical workability; (2) the rule is subject to a kind of reliance that would lend a special hardship to the consequence of overruling; (3) related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; and (4) facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.
Id. at 724-25. The first two factors have little implication in this case. Rather, the latter two prompt us to overrule Skidmore in part.
The plain error review standard, Supreme Court Rule 16-A, is an exception to the contemporaneous objection rule and provides us with the discretion to review unpreserved error on appeal for plain error that affects substantial rights.
See State v. Panarello,
Today, we overrule that portion of
Skidmore
that created an exception to the contemporaneous objection requirement and consequently applied the harmless error standard of review to the trial court’s error. Accordingly, should a trial court fail in its obligation to provide a limiting instruction
Because the defendant did not object to the trial court’s failure to provide a limiting instruction in this case, our holding today would dictate that we review the trial court’s failure for plain error. Application of the plain error standard of review in this case, however, would lead to a harsh result, contrary to the interests of justice.
See Appeal of State Employees’ Assoc. of
N.H.,
For the purposes of this appeal, therefore, and in conformity with
Skidmore,
we apply the harmless error standard to the trial court’s failure to give a limiting instruction in this case. “The erroneous admission of evidence is harmless only if it is determined, beyond a reasonable doubt, that the verdict was not affected by the admission.”
Skidmore,
The purpose for providing a limiting instruction when prior conviction evidence is admitted under Rule 609(a) is to
Under the circumstances of this case, we conclude beyond a reasonable doubt that admission of the defendant’s habitual offender conviction without a limiting instruction did not affect the verdict. First, the evidence of the defendant’s guilt is overwhelming. This is not a case in which the defendant denies any involvement with the charged offense. Rather, the defendant admitted to striking Picard, but claimed that he acted in self-defense. He testified that he repeatedly sought repayment of a debt from Picard, and that he grew “very upset” because Picard continually avoided him. He admitted that on the day of the assault, he parked behind Picard at the gas station in order to confront him about the debt. He testified that when Picard saw him walking toward his car, Picard promptly bent down in the direction of his car’s console. Consequently, he feared that Picard was retrieving a weapon. He claimed that he struck Picard with his fist to protect himself. According to Picard, however, he was trying to avoid the defendant and was parked at the gas station when he was suddenly assaulted by him with a long black object.
While the jury was asked to decide between two different versions of the same event, the defendant impeached his own credibility by admitting that he lied to the police when he told a detective that Picard swung at him first. Moreover, the defendant undermined his own explanation of the assault.
See State v. Taylor,
Second, we conclude that any improper inference that the jury drew from the defendant’s habitual offender conviction was
Finally, the State did not present the habitual offender conviction to the jury in a manner that would have suggested that the defendant had a propensity to commit the charged assault or that would have aroused the jury’s sense of horror, outrage or an instinct to punish. The State asked only one question about the conviction during its cross-examination of the defendant and did not mention it during closing argument. Cf. id. (State juxtaposed prior burglary conviction with events underlying charged crimes in manner that gave jury impression that defendant acted similarly regarding the charged crimes).
Accordingly, we conclude that the State has established beyond a reasonable doubt that the trial court’s error in failing to provide a limiting instruction was harmless.
Affirmed.