STATE of North Dakota, Plaintiff and Appellee, v. Alfred R. RANDALL, Defendant and Appellant.
No. 20000325.
Supreme Court of North Dakota.
Feb. 19, 2002.
2002 ND 16 | 639 N.W.2d 439
Robert W. Martin, Bismarck, N.D., for defendant and appellant.
MARING, Justice.
[¶1] Alfred Randall appealed from a South Central Judicial District Court conviction for the attempted murder of Terry Davenport. We affirm.
I
[¶2] On December 29, 1999, law enforcement officers from the Burleigh County Sheriff‘s Department received a call from the Davenport residence reporting a shooting. At the scene, the officers found Davenport who had been shot in his lower abdomen. Randall was identified as the shooter and was arrested and charged with attempted murder.
[¶4] During the in-chambers hearing, the State conceded to the admission of Davenport‘s two forgery convictions and his conviction for theft by deception. However, the State argued Davenport‘s fourteen other convictions should not be admitted because they did not involve dishonesty or false statement. Of the fourteen remaining convictions, the trial court admitted three and excluded the other eleven under
II
[¶5] On appeal, Randall argues the trial court erred in excluding eleven of Davenport‘s seventeen prior convictions. We review a trial court‘s ruling under
For the purpose of attacking the credibility of a witness, (i) evidence that a witness other than an accused has been convicted of a crime must be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime must be admitted if the court determines that the probative value of admitting that evidence outweighs its prejudicial effect to the accused.
We have previously addressed the admissibility of conviction evidence offered by the State under
III
[¶6]
[¶7] The 1969 Preliminary Draft of
[¶8] The Preliminary Draft was sharply criticized by scholars for its failure to give trial courts any power to exclude even highly prejudicial convictions. See id. at 145. The drafters responded to this criticism by revising the Preliminary Draft to add a provision which provided for the exclusion of conviction evidence when its probative value is substantially outweighed by the danger of unfair prejudice. See id. Some members of Congress, however, sharply disagreed with the revision made to the Preliminary Draft. See id. at 149. Thus, before submitting
[¶9] Once in Congress,
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 to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
Wright & Gold, supra, § 6131, at 166 n. 42 (quoting
[¶10] Despite the level of debate preceding its enactment,
For purpose of attacking the credibility of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
[¶12] Prior to the 1990 amendments,
[¶13] When a conviction is offered under
[¶14] When convictions are offered to impeach any witness other than an accused in a criminal prosecution, the special balancing test of
Since the behavior of the witness is not the issue in dispute in most cases, there is little chance that the trier of fact will misuse the convictions offered as impeachment evidence as propensity evidence. Thus, trial courts will be skeptical when the government objects to impeachment of its witness with prior convictions. Only when the govern-
ment is able to point to a real danger of prejudice that is sufficient to outweigh substantially the probative value of the conviction for impeachment purposes will the conviction be excluded.
See
[¶15] Placing this burden on the prosecution is consistent with our construction of
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
In Zimmerman, we recognized that a trial court should sparingly exercise its power to exclude evidence under
[¶16] In this case, Randall, a defendant in a criminal case, offered evidence of seventeen prior convictions for the purpose of impeaching the credibility of Davenport, a prosecution witness. There is no dispute that the eleven convictions excluded by the trial court were for crimes “punishable by death or imprisonment in excess of one year under the law under which the witness was convicted.”
[¶17] The State attempted to meet its burden in this case by arguing the eleven convictions were not probative because the convictions did not involve dishonesty or false statement. However, the State made no argument
[¶18] Despite the State‘s failure to make any showing of prejudice, the trial court required Randall‘s counsel to argue why admission of all seventeen convictions would not be prejudicial:
THE COURT: That‘s what I said earlier. 403 is the one I have to interpret but these are admissible under 609. The question now becomes should I allow them in under 403? They‘re admissible clearly under 609. 609 says any time you commit a felony subject to 403, of course that‘s always the case although they‘re irrelevant if it‘s outweighed by the unfair prejudice then that‘s the question. That‘s the issue right there now. So argue that. Mr. Martin, you have 17 things here exactly. Why isn‘t that prejudicial?
Thus, the trial court incorrectly placed the burden on Randall to show that evidence of Davenport‘s seventeen prior convictions would not be prejudicial when, in fact, the burden should have been on the State to show that the unfair prejudice of the evidence of the convictions would substantially outweigh their probative value. See Greer, 831 F.2d at 705 (noting that under
[¶19] Although the State did not raise the argument at trial, the trial court also appears to have considered the “cumulative evidence” and “waste of time” factors of
IV
[¶20] When a trial court errs in excluding evidence, this Court must decide whether the error was so prejudicial that a defendant‘s substantial rights were affected and a different decision would have resulted without the error. State v. Kelly, 2001 ND 135, ¶ 26, 631 N.W.2d 167. To determine whether an error affecting the defendant‘s substantial rights has been committed, the entire record must be considered and the probable effect of the error determined in the light of all the evidence. See id. (citing
[¶21] Even though the trial court erred in excluding Davenport‘s eleven felony convictions, the error is harmless. While Davenport‘s convictions should have been admitted, the case was not solely determined on Davenport‘s testimony. Randall was still able to impeach
[¶22] Davenport‘s testimony, while helpful, was not critical to the State‘s case. See Burston, 159 F.3d at 1336. There was sufficient independent evidence presented to support the jury‘s verdict finding Randall guilty, even without the testimony of Davenport. Most notably, the jury was presented with Randall‘s taped admissions of shooting Terry Davenport. The jury had an opportunity to assess Randall‘s credibility when they heard Randall‘s conflicting accounts of the events leading to the shooting. In Randall‘s taped admissions, he made contradicting statements. Initially, he claimed the shooting was in self-defense. Later, he claimed the shooting was accidental. Finally, he claimed he was trying to scare Davenport by shooting in the air. Randall also described taking a slingshot and launching the empty bullet casing into a field by his house, so it would not be used as evidence against him. Randall also repeatedly stated he hoped Davenport learned his lesson from the shooting. The jury did not believe Randall‘s self-defense theory. We are not persuaded admission of Davenport‘s remaining eleven felony convictions would have produced a different result in this case. See State v. Hart, 1997 ND 188, ¶ 21, 569 N.W.2d 451.
[¶23] In addition, the jury heard testimony supporting a guilty verdict from other witnesses. Dale Davenport, Terry‘s brother, was an eye-witness to the shooting. Dale Davenport testified Terry Davenport and Randall had a five to ten minute conversation, that Randall turned to walk away, but then turned back and shot Terry. Dale Davenport‘s testimony supports Terry Davenport‘s testimony and contradicts the circumstances of the shooting given by Randall. Nothing in the record suggests that Dale Davenport‘s testimony was manufactured to support Terry Davenport‘s version of the events, nor was this suggested by Randall. Ellen Glennon, a resident of Regan, testified that on the morning of the shooting Randall told her there were going to be fireworks that night. Glennon‘s testimony, along with Randall‘s testimony about the night of the shooting being the first time he had ever taken a gun with him, supports the jury‘s rejection of Randall‘s self-defense theory.
[¶24] In light of the substantial evidence supporting Randall‘s guilt, the erroneous exclusion of impeachment evidence was harmless error. See Burston, 159 F.3d at 1336; see also Rowe, 92 F.3d at 933.
V
[¶25] We conclude the trial court abused its discretion by misapplying
[¶26] MARY MUEHLEN MARING, WILLIAM A. NEUMANN, JJ., and LAURIE A. FONTAINE, D.J., concur.
[¶27] LAURIE A. FONTAINE, D.J., sitting in place of KAPSNER, J., disqualified.
[¶28] I agree with the majority‘s construction of the balancing tests in Rules 609 and 403,
I
[¶29] The majority correctly sets forth the history of
[¶30] The majority misconstrues the district court‘s language and actions, and then says the language and actions as misconstrued reflect an abuse of discretion.
[¶31] The majority asserts two reasons for its conclusion the district court abused its discretion. First, at ¶ 18, the majority concludes the district court placed the burden of showing prejudice on the wrong party. Second, at ¶ 19, the majority concludes the district court erred when applying the “needless presentation of cumulative evidence” provision of
[¶32] First, at ¶ 18, the majority concludes the “trial court incorrectly placed the burden on Randall to show that evidence of Davenport‘s seventeen prior convictions would not be prejudicial.” The majority provides an excerpt, at ¶ 18, from the in-chambers hearing. This excerpt is taken out of context.
[¶33] The transcript of the hearing in chambers shows the judge appropriately placed the initial burden on the State. The transcript also shows the district court asked both parties to argue the probative value, as well as the potential for unfair prejudice, of the convictions under
THE COURT: Of the 17 different felonies now tell me why you think generally 609A allows admissibility for any or all of those subject to the rule of whether or not probative outweighs the prejudicial.
Although the State focused its argument on whether the convictions were admissible under
THE COURT: That‘s what I said earlier. 403 is the one I have to interpret but these are admissible under 609. The question now becomes should I allow them in under 403? They‘re admissible clearly under 609. 609 says any time you commit a felony subject to 403, of course that‘s always the case although they‘re irrelevant if it‘s out-weighed by the unfair prejudice then that‘s the question. That the issue right there now. So argue that. [Defense counsel], you have 17 things here exactly. Why isn‘t that prejudicial?
Finally, the judge ruled:
I am going to allow the admission of 6 criminal convictions spread over a period
of time . . . for purposes of showing that there is an extended period of time. This is not an isolated example. I think it gives us a whole impression of this individual. . . . More than that I am satisfied would be substantially prejudicial to show there was [sic] eleven more felonies in 1995.
The district court appears to have based its ruling on the “unfair prejudice” factor of
[¶34] Under the majority‘s interpretation of the in-chambers hearing, the district court apparently is allowed to consider only the orally articulated arguments of counsel when making an evidentiary decision. The majority refuses to acknowledge the district court‘s ability to recognize prejudice independently. I disagree with this unduly narrow interpretation of the in-chambers hearing.
[¶35] Second, the majority, at ¶ 19, discounts the district court‘s consideration of the cumulative nature of the additional prior convictions, by attempting to distinguish “cumulative evidence” from the “needless presentation of cumulative evidence.” Because the district court used the shorthand reference to “cumulative evidence” without repeating the whole phrase, “needless presentation of cumulative evidence,” the majority unreasonably concludes the district court must have gotten the standard wrong, saying, at ¶ 19, the district court “appears to have concluded that the cumulative nature based on the number of convictions alone was prejudicial.” The majority‘s characterization is unfair.
[¶36] Language from the in-chambers hearing shows the district court was considering the “needless presentation of cumulative evidence” nature of the prior convictions.
So . . . how many more should I let in and why? At what point does the state become redundant, superfluous and highly, highly prejudicial? We have already established this guy is a criminal. How much of a criminal do we have to do? I have 1, 2, 3, 4, 5, 6, 7, 8, 9 convictions for breaking into a motor vehicle.
(Emphasis added). The majority, at ¶ 21, when arguing the error by the district court was harmless, recognizes “[t]he impact of introducing more convictions similar to those already in evidence arguably would not have been great.” The district court could have excluded the remaining convictions under the “cumulative evidence” or “waste of time” factors of
[¶37] In discussing the cumulative nature of the prior convictions, the majority, at ¶ 19, also states “where there is no other evidence to impeach the witness, the probative value of the conviction evidence is increased.” While this statement is accurate, it ignores the district court‘s decision to admit three of Davenport‘s prior convictions under
[¶38] The district court did not abuse its discretion in applying
II
[¶39] When the witness is either the alleged victim in a criminal case or a plain-
[¶40] As the Minnesota Supreme Court has noted, a court should be concerned with protecting all witnesses from harassment and embarrassment, the jury from being confused or misled, and all parties involved from an undue waste of time. Minnesota v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn.1995). Minnesota‘s rule of evidence for the admission of prior convictions for impeachment purposes differs from the North Dakota and federal rules; however, the Lanz-Terry decision illustrates the public policy concerns at stake when the witness in question is also the alleged victim. Specifically, when reviewing the convictions of an alleged victim, the Minnesota Supreme Court stated:
The type and number of [the victim‘s] convictions might have lead [sic] the jury to “see him as a person not capable of being a victim in this particular instance.” In other words, the convictions might have led the jury to conclude that [the victim] was a bad person who deserved to be the victim of a crime, which would amount to a decision being made on an improper basis.
Id. at 639. The Minnesota Supreme Court affirmed the trial court‘s ruling not to allow the alleged victim to be impeached with his five prior convictions for robbery, possession of cocaine, theft from a person, sale of a controlled substance, and possession of a pistol by a felon on the basis the convictions “would have potentially led the jury to decide the case on an improper basis, and would likely have confused the jury and unnecessarily prolonged the trial.” Id. at 638, 641.
[¶41] The Seventh Circuit has also recognized evidence of a plaintiff‘s prior convictions may prejudice his case. Wilson, 25 F.3d at 585. In a civil rights action brought by a prisoner against two correctional officers, the court said:
It “might be prejudicial to overload the factfinder . . . [by] put[ting] in all the convictions because [the jury] might well determine that as a result of having that many convictions, that regardless of how the facts come out, that [the plaintiff-prisoner] is a person not deserving of any relief.”
Id. The court noted the additional concerns apply to a criminal case as well, stating the victim-witness‘s prior convictions could lead to the inference the victim “had it coming,” and the defendant may be acquitted on improper grounds. Id. The Wilson court affirmed the trial court‘s admission of three of the plaintiff-prisoner‘s six prior convictions. Id. at 586.
[¶42] As the majority points out, the Advisory Committee‘s Note explains the 1990 amendment “resolve[d] an ambiguity as to the relationship of Rules 609 and 403 with respect to impeachment of witnesses other than the criminal defendant.”
The amendment also protects other litigants from unfair impeachment of
their witnesses. The danger of prejudice from the use of prior convictions is not confined to criminal defendants. Although the danger that prior convictions will be misused as character evidence is particularly acute when the defendant is impeached, the danger exists in other situations as well. The amendment reflects the view that it is desirable to protect all litigants from the unfair use of prior convictions, and that the ordinary balancing test of Rule 403, which provides that evidence shall not be excluded unless its prejudicial effect substantially outweighs its probative value, is appropriate for assessing the admissibility of prior convictions for impeachment of any witness other than a criminal defendant.
Id. The Advisory Committee‘s comments also acknowledge “there are cases in which impeachment of government witnesses with prior convictions that have little, if anything, to do with credibility may result in unfair prejudice to the government‘s interest in a fair trial and unnecessary embarrassment to a witness.” Id.
[¶43] Although the danger of unfair prejudice to a victim-witness does not invoke the same level of scrutiny we should employ when the prior convictions of a criminal defendant are at issue,
- The impeachment value of the prior crime.
- 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 that is at issue in the present litigation.
- The importance of the witness‘s testimony.
- The centrality of the credibility issue.
4 Weinstein‘s Federal Evidence, § 609.05[2] (2d ed.2001); see also Daniels v. Loizzo, 986 F.Supp. 245, 250 (S.D.N.Y.1997) (similar set of factors listed). Through the use of these factors, the potential for improper use of impeachment evidence will be lessened.
III
[¶44] The admission of prior convictions under
IV
[¶45] I agree the district court‘s judgment should be affirmed, but I would affirm on the ground the district court did not abuse its discretion.
[¶46] DALE V. SANDSTROM, J.
VANDE WALLE, Chief Justice, concurring in the result.
[¶47] I concur with most of the majority opinion concerning the application of
[¶48] It is not clear to me whether or not the trial judge applied the rule as interpreted by the majority opinion. I am inclined to agree with Justice Sandstrom that the trial court did properly apply the rule, but I suggest the record on these matters should be clear, or we will be consistently engaged in these discussions. Thus, although it is possible, as the concurring opinion suggests, that the trial court recognized prejudice independently of the orally articulated argument of counsel, I recommend the trial court make that clear on the record. The failure to do so will leave the trial court‘s decision subject to interpretation and, although I favor a conclusion affirming the trial court‘s exercise of discretion rather than a conclusion the court abused its discretion, my experience indicates this is a fertile ground for disagreement. A clear statement on the record will avoid that dispute.
[¶49] Finally, if there is error, I agree it is harmless and I concur in affirming the conviction.
[¶50] GERALD W. VANDE WALLE, C.J.