State v. Randall ( 2002 )

SANDSTROM, Justice,

concurring in the result.

[¶ 28] I agree with the majority’s construction of the balancing tests in Rules 609 and 403, N.D.R.Ev.; however, the majority wrongly concludes that the district court abused its discretion when applying the rule. I write separately (1) to disagree with the majority’s conclusion the district court erred in the application of Rule 609 and abused its discretion by excluding some of Davenport’s prior felony convictions, (2) to emphasize public policy considerations when the witness in question is the alleged victim, and (3) to emphasize that the complexity of Rule 609 demands the parties prepare appropriately and raise the issue of admission of prior convictions before trial.

I

[¶ 29] The majority correctly sets forth the history of Rule 609 and explains the different balancing tests of Rule 609, including the application of the Rule 403 balancing test in the context of Rule 609. Under the majority’s construction of the rules, I do not believe the district court abused its discretion.

[¶ 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 Rule 403.

[¶ 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 Rule 403. First, the judge asked the State to argue the prejudicial value of Davenport’s convictions.

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 Rule 609(a)(ii), as crimes involving dishonesty or false statement, the district court recognized the convictions were possibly prejudicial. At this point in the hearing, the district court commented on the State’s argument and directed a question to the defense.

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.

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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 N.D.R.Ev. 403, within the context of N.D.R.Ev. 609(a)®.

[¶ 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 Rule 403.

[¶ 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 N.D.R.Ev. 609(a)(ii) because they were crimes involving dishonesty or false statement. Again, when arguing the harmlessness of the district court’s perceived error, the majority, at ¶ 21, chooses to acknowledge “the case was not solely determined on Davenport’s testimony. Randall was still able to impeach Davenport’s credibility with the six convictions that were admitted.” It is simply not accurate to assert this was a case in which there was no other evidence to impeach the witness.

[¶ 38] The district court did not abuse its discretion in applying N.D.R.Ev. 609.

II

[¶ 39] When the witness is either the alleged victim in a criminal case or a plaintiff in a civil case, as Davenport was, public policy concerns must be considered when evaluating how many prior convictions should be admitted as impeachment evidence. See Minnesota v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn.1995); Wilson v. Groaning, 25 F.3d 581, 585 (7th Cir.1994); 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence, § 274 (2d ed.1994). North Dakota has recognized similar concerns for alleged victims of sexual misconduct and has provided additional protection accordingly. N.D.R.Ev. 412; N.D.C.C. §§ 12.1-20-14, 12.1-20-15, 12.1-20-15.1 (superseded by N.D.R.Ev. 412, effective March 1,1998).

[¶ 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 plaintiffs 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.” Fed. R.Evid. 609 advisory committee’s note to 1990 amendment. The Advisory Committee’s comments also explain how Rule 403 helps to minimize the potential danger in the use of prior convictions for impeachment:

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, Rule 609 provides for the possibility the victim-witness’s prior convictions could be used in a prejudicial manner. Id. Because of this possible misuse of impeachment evidence, Weinstein suggests a list of factors to assist a district coui-t in weighing the admissibility of the prior convictions of a witness other than the accused:

1. The impeachment value of the prior crime.

2. The date of the conviction and the witness’s subsequent history.

3. The degree of similarity between the past crime and any conduct of the witness that is at issue in the present litigation.

4. The importance of the witness’s testimony.

5. 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 Rule 609 is a complicated issue that should not be “sprung” on the district court as it was in this case. Absent unforeseen circumstances, Rule 609 issues should be raised before trial when all parties involved have adequate time and resources to make a carefully reasoned decision.

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 N.D.R.Ev. 609. Although courts have been cxiticized for assuming the text of the rule allows them to exercise wide discretion in applying the rule, see Victor Gold, Impeachment by Conviction Evidence: Judicial Disci’etion and the Politics of Rule 609, 15 Cardoza L.Rev. 2295, 2296, and for ignoring the legislative history of Rule 609, id., the rule, with its incorporation by reference of Rule 403, does not appear ambiguous. In North Dakota, at least, we resort to legislative history only when a statute, and, presumably, a rule, are ambiguous. N.D.C.C. § 1-02-05. It appears to me the rule is ambiguous only when the legislative history is considered. But, I am persuaded by the majority opinion on this point because, in respect to the issue before us, the North Dakota rule tracks the Federal rule and the Uniform Rules of Evidence. See Explanatory Note to N.D.R.Ev. 609. Furthermore, the logic and policy expressed in the legislative history convince me it is the interpretation we should follow.

[¶ 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.