State v. Hatcher ( 1996 )

My inability to agree with my colleagues stems from a single issue: Evid.R. 609.

The lead opinion declares that the trial court did not commit any error. I disagree. Evid.R. 609, which allows for impeachment of a witness by evidence of his prior criminal conviction, affords the trial court "broad discretion in determining the extent to which testimony will be admitted." State v. Wright (1990), 48 Ohio St. 3d 5, 8, 548 N.E.2d 923, 926. The means by which to exercise this discretion, however, is specified by the rule. Evid.R. 609(F) clearly sets forth the permissible methods of proof of such convictions:

"When evidence of a witness's conviction of a crime is admissible under this rule, the fact of the conviction may be proved only by the testimony of the witness on direct or cross-examination, or by public record shown to the witness during his or her examination. If the witness denies that he or she is the person to whom the public record refers, the court may permit the introduction of additional evidence tending to establish that the witness is or is not the person to whom the public record refers." (Emphasis added.)

"As a rehabilitative device, customary practice generally permits explanations by the witness of extenuating circumstances of the conviction." Weissenberger's Ohio Evidence 1994 Courtroom Manual (1993) 192. Obviously, the rule contemplates a witness being present at the time of impeachment and not, as in this case, the use of mere recorded testimony. In this case, the copies of Morton's prior convictions were not shown to him because he was unavailable at the time of appellant's second trial. I would conclude that the trial court erred in admitting the record of Morton's prior convictions where he was not present for the impeachment as required by Evid.R. 609.

This conclusion, however, does not terminate my analysis. Because appellant did not object to the admission of Morton's prior felony convictions, the error has been waived unless it constitutes plain error. See State v. Underwood (1983), 3 Ohio St. 3d 12, 3 OBR 360, 444 N.E.2d 1332; Crim.R. 52(B). To constitute plain error, it must appear from the record not only that an error occurred, but that except for that error, the outcome of the trial court would have been different. State v.Long (1978), 53 Ohio St. 2d 91, 7 O.O.3d 178, 372 N.E.2d 804. The invocation of plain error should occur "only under exceptional circumstances in order to prevent a manifest miscarriage of justice." State v.Cooperrider (1983), 4 Ohio St. 3d 226, 227, 4 OBR 580, 581,448 N.E.2d 452, 453.

Under the facts of the instant case, I am convinced that the substantial rights of appellant were so adversely affected by the admission of the record of Morton's prior convictions as to undermine the fairness of the trial and to affect its outcome. My conclusion is based on the fact that Morton provided testimony that appellant was not involved in the robbery and stabbing of Hammond. He provided identification of the persons who were involved. The fact that his credibility was impeached in contravention of Evid.R. 609(F), without his being available to admit or deny that the prior convictions referred to him or to rehabilitate himself, undermined the fairness of the proceedings.

Therefore, I would sustain appellant's third assignment of error and would reverse the judgment of the trial court and remand this cause for further proceedings.