*1 P.2d 533 Idaho, The STATE
Plaintiff-Respondent, PALMER, Larson, aka Michael
Francis
Defendant-Appellant. 12351.
No. Rowe, Boise, of Idaho. Supreme Tway Court & Tway William J. defendant-appellant. for Jan. Kidwell, Gen., Atty. David G. Wayne L. Rehearing Feb. Denied Thomas, Gen., High, Atty. Lynn Asst. E. Gen., Boise, plaintiff-re- Deputy Atty. spondent.
DONALDSON, Justice. Defendant-appellant Francis Palmer burglarizing convicted Meridian, Foodland Market Idaho and custody was sentenced to the Board of Correction for an indeterminate years. time not to exceed Scarborough of the Officers Calhoun and Department Meridian were on rou- Police patrol duty February 1976. At tine m., driving past while p. around Meridian, Officer Foodland Market Scar- (whom borough observed an individual Scarborough identified at trial as Francis Palmer, defendant) standing in front a safe in The Officers left their the store. car and Officer Calhoun went the back of Scarborough store while Officer reaching the Upon watched the front door. store, peo- rear of the Calhoun noticed two coming ple step off of a in the back of the they began running building. When in the direction, other he ordered them to halt and they then fired at them when were about 40 away. Palmer was found on the yards ground, through the shot abdomen. police discovered a walkie-talkie and a sat- in the field near where Palmer chel of tools No were fingerprints was found. detected. charged He was arrested and with first degree burglary.
At testified that he was in trial Palmer looking employment. Coming the area house, his car employer’s from his former four miles from Foodland broke down some *2 given phone a to booth 43(b)(6). and he was ride a “Rule Impeachment by ad- (The near the store. location of Palmer’s verse party. witness may be —A by impeached by the party against car was corroborated the of he whom called, was by contradictory evidence, employer, away.) who towed it or former general evidence that reputation his people he of There noticed two on roof truth, honesty integrity bad, is but went back store and out to observe the not by particular evidence of wrongful burglary. He testified that the two men acts, except that it shown past ran him and then he was shot witness, examination of the or the record policeman. judgment, of that he has been convicted Palmer own took stand defense felony.” of a previously and testified that he had been theory “The statutory behind such autho- No felony. convicted of a further mention 9-1209, rization now I.R.C.P. [I.C. prosecutor, until made of fact 43(b)(6)] is evidently witness, that a if closing argument, said: shown felon, to have been a convicted is “ ** * urge you, and I Ladies and probably unworthy of belief.” Fowler v. Gentlemen, that of an ex-con- Uezzell, Idaho going vict back a store at 11:00 (1972). night to watch other people o’clock two It clear that a record can pull burglary preposterous a on face its >> * * * to impeach be used the credibility of a However, witness. points McCormick Although objected this statement was not out, a careful line must be drawn between trial, prosecutor’s to at Palmer asserts the impeaching a witness’ credibility using comments require reversal. prior a a imply conviction that This case raises the issue the proper will simply commit another crime because use a Especial- of witness’ criminal record. past. he has committed crime in the ly sensitive is the situation wit- where the number of Supreme cases before various ness also the defendant. Courts on this issue attests to the sharpest prejudicial “The most im- sensitive nature of the use of prior convic pact practice tions. impeachment by * * * conviction is upon particu- one We have prior held that the use of felo- witness, type lar namely, accused impeachment only nies is for and that criminal ease who elects take use can a prejudicial further constitute er- If stand. the accused is forced to admit Shepherd, ror. convictions, he of past that has a ‘record’ P.2d In that case we held it was particularly the convictions are for question- error for the trial court to allow trial, crimes similar to the one on there is ing beyond asking if the defendant had danger jury, despite an obvious that felony. Specifical- ever been convicted of a instructions, give will heed more ly, it prejudicial was held for the prosecutor the ac- past convictions evidence continue questioning as to the nature kind would com- cused of man who felony. even charge, mit the crime on that he prosecutor’s Palmer contends that the use put ought away to be without too much prior exactly of his conviction was what the present guilt, will they concern with than Shepherd urges case condemns. He bearing past con- legitimate to the the use here proposition advance the McCormick, Evi- credibility.” victions that an ex-convict would never be at the 1972). (2d ed. dence 43§ back of store at 11:00 o’clock at night, lim- danger, Because of this obvious strict a person whereas without a conviction However, use put might its have been convic- be. this is not the infer- wit- tions. As concerns the record of ence drawn from view the entire rec- nesses, 43(b)(6) governs: ord. I.R.C.P. philosophy, absent previously announced been had argument doing Today’s for not so. alleged good some reason prior to the immediately
making unexplained depar- represents decision concerned the improper statement developing jurispru- theme from this Court’s testimony. The entire ture and Palmer’s *3 admissibility of question Palmer’s of question was to dence argument of purpose idea that of with the story. congruous This is in criminal case. the facts a defendant a impeaching version of referring to Palmer’s ex-convict,” prose- respectfully I dissent. of an “the felony Palmer’s properly using cutor was as wit- credibility a his question
record I. of I.R.C.P. reference This is sort ness. closing in his majority holds that The 43(b)(6) allows. was jury prosecutor “the remarks prosecu earlier Six sentences using felony Palmer’s record to properly you believe jury: of “Do asked tor a I credibility as witness.” am question his watching bur a just there defendant is a not convinced that this fair character- just defendant believe the glary? you Do happened. thing It is one of what ization ** * this ?” He continued was curious prosecutor closing to remark in that for the testimony through attack on Palmer’s liberty jury is at to consider the defend- jury The closing argument. of his the end felony judging conviction in previous ant’s testimony in consider Palmer’s entitled to quite credibility testimony. of his It Hag record. State v. light defendant’s jury another to tell the that the gard, 94 Idaho theory is that of “an ex-con- entire case remarks went prosecutor’s me, latter, go it seems to would vict.” The specif testimony. of his credibility laid beyond the narrow strictures down he was to what Palmer said ic allusion was Shepherd, supra, Court in State v. say this was doing the scene. We cannot at what was then I.C. 9-1209. interpreting improper. My reading prosecutor’s closing own of the not Further, remarks leads me to believe he was so properly was instructed aiming credibility at the of the de- purpose a witness’s much the correct “knocking” he was the entire specifical- fendant as Instruction No. felony record. bring I cannot case an “ex-convict.” ly read: myself beyond to conclude a reasonable been con- “The that a witness had fact was not prosecutor’s that the conduct doubt fact, if such be a felony, of a victed was so harmless in error or that such error purpose only for the you considered the defendant’s prejudiced as not to have determining of that wit- credibility jury. for a fair trial before this chances such a conviction does ness. The fact of wit- destroy necessarily impair not credibility. It one of the circum-
ness’s II. you take into considera- stances that however, dissent, my does heart such a weighing tion in majority’s questionable concern the witness.” of whether the characterization affirmed. The conviction is brought himself within a recent court-made evidence, concerns the rule of but rather SHEPARD, J., McFADDEN and C. of that rule itself. acceptance uncritical BAKES, JJ., concur. impeachment of allowing the The statute Justice, BISTLINE, dissenting. credibility by evi a criminal defendant’s had, prior felony convictions in- dence of jurisprudence Jurisprudence, target been the repeal to be to its cluded, If that science is science. In State frequent criticism this Court. perpetuated, important it is maintained and 528, 164 Branch, P.2d 182 with its own be consistent that (which the statute was then codified as tion for honesty and integrity unless the 16-1209) I.C.A. was held not to apply defendant himself open chooses to criminal defendants all. The Court door. The Court concluded that traced the of the statute and history noted impeachment provisions of I.C.A. 16-1209 it had evolved from a tradition where- were by, . not applicable ato defendant
At common law the defendant
in crimi-
jurisdiction,
criminal action in this
incapable
nal action was
testifying
obvious reason that
there is no
punishment,
his own behalf. Fear of
here,
statutory provision
juris-
as in other
innocence,
guilt
dictions,
whether
conscious
defendant,
providing that
assumed,
him testify
would cause
behalf,
when he testifies in his own
be-
untruthfully,
to avoid such
his testi-
*4
any
comes “as
other witness”
is gov-
and
mony
wholly
66
at
excluded.
Idaho
erned
the same rules of evidence.
Id.
533,
537,
The Court Branch was called rules and conditions as other witness. statutory language per- the construe Id. “by impeaching mits the of a witness evi- truth, general reputation dence that his The issue in Owen was whether or not a Court, honesty integrity is bad.” The in criminal defendant’s credibility could be equally applicable words to the context of impeached by showing of prior felony
impeaching a witness use of and, so, prosecu- whether convictions, logical questioned underpin- tion entitled to go still further and reveal nings provision being of the statutory the nature of the crimes for which the
. upon Keeton, based convictions were suffered. Justice dissent, kindred nature of vices. This involves renewed the Branch Court’s at- logic tack on necessity sanctioning drawing impeachment of the stat- ute: A of an inference from an inference. having
witness
been shown to be dishon-
.
recognized
it well
[that]
est or immoral
to have
perti-
committed
crimes
no
commission
other
has
[or
felony],
bearing
it is inferred from that
trait
nent
on whether or not an ac-
untruthful;
guilty
character
that he is
then
particu-
cused is
or innocent of the
upon
being investigated.
the inference that he is untruthful
lar offense
Id. at
427,
generally it
be inferred that he is
untruthful
has
Indeed,
it is a well-known fact
Id. at
164 P.2d at
given.
prosecutor’s desire to reveal the details of a
rule,
therefore, would
prior felony
The best
be one
defendant’s
has little
conviction
permit
prosecution
put
nothing
impeaching
which did not
to do with
the de-
general reputa-
credibility:
defendant’s
fendant’s
experi-
charging
meanor or
with even limited
of mere arrest and
Every attorney,
also,
Scott,
knows that
practice,
an offense. See
ence
criminal
(1952);
in a
accused
Idaho
conduct
injecting
jury by
way
hate into
construed I.C.
9-1209 in such a
prejudices the
Id.
judgment
a defendant’s record of
exclude
proceedings.
when,
a prior felony
and conviction of
sub-
attorneys,
criminal defense
Experienced
sequently,
judgment
had been vacated
necessity
allowing their
with the
faced
prosequi
an order of nolle
entered.
stand,
invariably
to take the
have
clients
came under
statute
to the draw
to beat
chosen
more direct attack in the case of State
damage
which will arise
and to lessen
Dunn,
in a
Idaho
“injection
inevitable
prosecution’s
from the
special
penned by
Spear
Justice
concurrence
proceedings,” by slipping
into the
hate
[of]
joined in by
one other member of the
felony-conviction question and answer
special
concurrence voiced con-
Court.
a time when the im-
into the evidence at
that,
cern
hopefully,
be softened. Such was
pact,
question
“A serious
of fundamental un-
*5
technique employed by
counsel
defense
evidentiary
fairness arises when an
rule
came
damage
here at Palmer’s trial. The
may
testifying
deter a defendant from
manifold, however,
prose-
where the
back
testify
his own behalf or if he does
sub-
attorney
cuting
dropped his bomb almost as
jects
highly prejudicial
him
filing
jury
was
out to deliberate.
guilt though
on the issue of
inadmissible
conclusion still seems
Keeton’s
Justice
purpose.
for that
[Footnote omitted.]
me, namely,
that whatever
unassailable
permits this on the theo-
present
rule
admitting
might
value there
be in
probative
helps
ry
jury
determine
felony
prior
evidence of the defendant’s
the defendant.
whether
believe
by
outweighed
is more than
.
jury
expected
A
be
cannot
upon
jury:
prejudicial
impact
it has
departmentalize such evidence.
highly prejudicial
Such an examination is
“Perhaps
prior
evidence of
criminal
the matter
wholly
and is
collateral
record
be limited to a conviction
should
investigated.
impeachment,
Such
being
directly
credibility per-
bears
on
—
permit
necessity
must of
permitted,
879,
jury,
example,”
91 Idaho
434 P.2d
issues, and
jury to avoid or confuse the
97, quoting from
v.
Stevens
United
general princi-
a verdict based on
return
States,
U.S.App.D.C.
125
370
crimes, knavery
ples,
prior
or because of
485,
(1966).
F.2d
486
by
indulged
malicious conduct
and
least,
special
At
concurrence in
P.2d at 223.
Id. at
accused.
prohib-
Dunn advocated
rule which would
prosecution
probing
it the
from
into the
uncomfortable
the Court remained
That
previous
or nature
felonies. As
number
laid down in Owen
clear
with the rule
concerned,
credibility
probing
far as
such
placed upon
strict limits
from
surely unnecessary:
Bassett,
cases.
In State v.
rule in later
indelibly
The accused has
been labeled
Idaho
felon,
jurors
the minds of
and
striking
questions
a trial court’s
upheld
impeached.
thus his
has been
probation,
which went
to such issues
1. Jones comments: inducement to the defendant to take the added.) 26.20, (Emphasis stand. fn. 50. Evidence, 21, The Uniform Rules of Rule take seemingly approach to a fresh and sound 2. The to Court went on state that if the defend- question. troublesome The rule would limit having felony, ant denies committed a then the involving evidence conviction to crimes prosecution is to entitled elicit the correct in- impairing dishonesty statement as or false by by formation either cross-examination or Furthermore, credibility. when the accused felony use of the the record witness, previous is a no evidence of convic- accused. The Court also made it clear that tions be admissible until the accused would evidence of other crimes the defendant is support has offered his credibili- admissible when relevant matters such as ty. reasoning away The this takes intent, motive, plan, a common scheme or etc. smearing fear of character and serves as an the defendant had admit convictions once statute con- of the Idaho strictures The Even this minimal re in subse- their existence. upon the Court ted grate tinued Uezzell, statute was impeachment 94 Ida- of the quirement Fowler In quent terms. Shepard, repeatedly reluctantly applied ques 951, (1972), Justice P.2d 852 ho Cliett, Court, again the final case State for a unanimous tioned. speaking statute, 9-1209: decided on Feb logic I.C. under the old questioned later, legis Five weeks ruary statutory autho- such behind passage 9-1209 I.C. witness, repealed lature evidently that rization Sess.Laws, effective March felon, of ch. have been convicted shown to 31, 1975. While we unworthy of belief. probably certain reservations entertain irony, provi- supreme twist of By a theory, vitality such a continued today are to live 9-1209 said of I.C. § sions ac- inquiry is nevertheless privilege their fundamental un- on, undiminished added.) (Emphasis statute. by the corded fairness, procedural of so-called by virtue at 857. which Court promulgated rules by appellant put law forward case long goad at the of a substan- so kicked had distinguished case) was (a civil Fowler enactment. The statute legislative tive cases: from criminal drawn having been gone. The Court should not hesitate now dogmatically apply rationales not promise implicit We will in its own earlier fulfill the obviously ap- and theories decisions. involv- cases to cases in criminal plicable consistent ruling to a sole obstacle procedures. Id. ing civil jurisprudence on this matter with our Cliett, 96 Idaho Finally, 43(b)(6) I.R.C.P. would seem to be again applied Court P.2d 9-1209, provisions of I.C. § has re-stated 9-1209, “Regardless of its noting that I.C. § hold impeachment statute. I would the old wisdom, statute Idaho’s [has simply a rule of evidence does that such en- unchanged original since its remained] Proce- in the Idaho Rules of Civil belong (Emphasis 6082 in 1877.” as R.S. § actment govern only pro- purport dure which added.) P.2d at 479. 96 Idaho at be followed in cedures which shall of Idaho. In courts of the State Supreme reading the Idaho
A close
admissible
that a
conviction is
on this issue indicates that
decisions
Court’s
de-
credibility
impeach
years a clear
emerged over the
there has
fendant,
embodies,
*7
as did
the new rule
neutralizing
intent on
the funda-
philosophy
statute,
proposition
In
old
a substantive
9-1209.
unfairness of I.C. §
mental
law,
past convictions con-
Branch,
namely, that such
supra, the Court held that
v.
State
a
apply to
evidence material
defendant’s
impeachment statute did not
stitute
credibility on the witness stand.
present
all
Idaho had
defendants at
since
embody
policy decision that
They
be treated
also
insisting
law
that defendants
no
probative
evidence out-
In
value of such
any
“as
other witness.”
the same
ac-
prejudice to the
Owen,
weighs
potential
a
reversed
supra,
divided Court
v.
a
with his
grounds
including
on the
that
cused
interference
Branch decision
a
his own defense. Such
jurisdictions
followed
to take
stand in
majority
other
left
policy
reasoned dis-
a
must be
carefully
rule. The
matter
substantive
different
legislature. The
statute
Keeton went unanswered.
to the
same
of Justice
sent
occasions,
empowers
by gen-
to “prescribe,
the Owen
this Court
numerous
On
rules,
.
all
courts of Idaho
narrowly construed and eventual-
eral
for
practice
procedure
in all actions and
overruled in State
and
expressly
it was
ly
power
denies this Court the
permitted
proceedings,”
the use
Shepherd,
“abridge, enlarge
modify
the sub-
for
[or]
rights
any litigant.”
stantive
I.C.
1-
which forbade
§
but
purposes
nature of such
213.
the number or
delve into
If,
argument,
for the sake of
one were to
. no no matter how tiffs-Appellants. be, time honored it may is immune from judicial scrutiny consequent altera- No. 12297. procedure tion if such had the effect of denying impartial accused fair and Supreme Court of Idaho. Johnson, trial. State Jan. why I see no reason Idaho is not now Rehearing Denied Feb. “ready might for what be deemed the more enlightened rule now extant the District v. Shepherd, supra,
of Columbia.” State urge
Idaho at
the Court to such a pursuant rule
the Court’s authority “duty adopt
procedure designed safeguard the rights impartial
of an accused to a fair and trial. 1-212; 1-213;
I.C. I.C. and I.C. Johnson, supra, 1-1622.” State v. Ida-
ho at
the conviction in the case and re- for new trial
mand reasons stated II, regard I. With Part Part should
be made known that the Court has not
rejected expressed the views which are Indeed,
therein. no contention was ad-
vanced the defendant trial court 43(b)(6) appeal that Rule field,
judicial legislative into the intrusion should modified line remarks
with Court’s its earlier case, being
cases. Such there is reason saying Court should not con- *8 argument has
sider presented. My obviously own view is
been can, should, where procedural
was adherence to a Court provoked only
which here conduct assigned error in an trial fair trial. The Court is not to be
otherwise
faulted, however, choosing to review the retaining, modifying or re-
desirability of
scinding this rule in a later case where both well,
parties, perhaps amicus curiae as been
have heard from.