Miller v. State , 1989 Wyo. LEXIS 252 ( 1989 )

CARDINE, Chief Justice.

Appellant, Lee Vincent Miller, seeks reversal of his conviction for aggravated assault and battery, contending that the district court erroneously admitted evidence concerning a 1983 felony conviction in Los Angeles for possession of PCP with intent to sell. Miller contends that admission of this evidence violated W.R.E. 609(a). Ap-pellee argues that the evidence was admissible under the same rule.

We affirm.

Miller and his victim had been drinking whiskey and beer at a party when they began to argue. The victim verbally threatened Miller, punctuating his threats with racial epithets. Apparently, Miller had gained some knowledge of his victim’s physical prowess by witnessing him beat up three cowboys in one night and by engaging in a public fist fight with him a few months before. Fearing a beating and concerned that his recently injured leg would prevent him from adequately defending himself, Miller stabbed his victim in the abdomen with a knife, inflicting a potentially life-threatening injury.

During the trial, the prosecutor sought to admit into evidence a variety of appellant’s prior criminal convictions, primarily to contradict intimations from Miller’s testimony that he was a peaceable man. The district court did not view that testimony as having placed in issue his character as a peaceable man, and it refused to admit those prior convictions. The record then becomes somewhat obscure. After defense objections to admission of the prior convictions were sustained, the prosecutor asked:

“MR. BLONIGEN: I will still be allowed to go into the other?

“MR. RAYMOND [defense counsel]: I guess while we are here, what is the extent the Court will allow him to inquire, as I understand it, have you been convicted of it.

“MR. BLONIGEN: And when.

“THE COURT: Okay.”

The following cross-examination of Miller then took place, without an objection by the defense:

“Q. Mr. Miller, you previously discussed why people may have referred to you and about the name Ragsdale. Do you remember that testimony?

“A. Yes, sir.

“Q. It is also true you used the name of John Ragsdale, isn’t it?

“A. I used it once.

“Q. And one of the reasons you used that name in 1983 in Los Angeles you were convicted of a felony, isn’t that right?

“A. I don’t recall what felony that was or what the charge was.

“Q. The charge, was it not, possession of PCP with intent to sell, was it not?

“A. Well, that was possession when they busted me, it was possession of and sales both, but it wasn’t, they dropped from possession of to sell to possession.

“Q. You were subsequently convicted of the felony of selling in that?

“A. I don’t know if it was a felony.

“Q. You received 36 months probation?

“A. Well, let me think, it was a little more than that, five years, but at the time I got probation I did 2 and a half years and it was becoming monotonous as far as interfering with my job, and I would have to take off my job two or three times a week and go check, and my boss was kind of getting upset, so I went to my probation officer and asked him any way I could go back to court and ask them to just give me the six months, because I couldn’t do no more time myself any more time on the job, so we took it back to court and they gave me six months. I didn’t have no more probation, and still had my job when I got out, but I don't know if it was a misdemeanor or a felony or not.”

Appellant now asserts that the admission of this testimony violated W.R.E. 609(a), which provides in pertinent part:

“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 (1) 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 * *

His argument in this regard is two-fold. First, he argues that the district court erred in failing to make the requisite preliminary findings that the prior conviction was for a felony and that the probative value of the evidence outweighed its prejudicial potential. Second, he contends it was error to admit the testimony because its prejudicial effect far exceeded its negligible probative value.

We note that appellant’s failure to make a timely objection to the introduction of this testimony requires us to affirm his conviction, absent a finding that the admission of such evidence rises to the level of plain error.

“To determine whether the plain error standard has been met, we apply a three-part test. First, this court must be able to discern unequivocally from the record what occurred at trial without resort to speculation. Second, appellant must demonstrate that what occurred constitutes a clear and obvious violation of a clear and unequivocal rule of law. Finally, that violation must have adversely affected some substantial right of appellant.”

Schwenke v. State, 768 P.2d 1031, 1034 (Wyo.1989); see also Britt v. State, 752 P.2d 426, 428 (Wyo.1988). We will not find plain error in a discretionary ruling of the trial court unless the appellant demonstrates a clear abuse of that discretion by showing that the trial court could not have reasonably concluded as it did. See Schwenke, 768 P.2d at 1034-35; Gresham v. State, 708 P.2d 49, 56-57 (Wyo.1985); Munden v. State, 698 P.2d 621, 625-26-(Wyo.1985); Bradley v. State, 635 P.2d 1161, 1165 (Wyo.1981).

With respect to appellant’s first assignment of error, we hold that the trial court s failure to make the preliminary findings required by W.R.E. 609(a) did not violate a clear and unequivocal rule of law. As we explained in Bradley, W.R.E. 609(a) places no burden upon the court to make such findings to support the admission of prior convictions until the defendant enters a proper objection. Only at that time does the trial court’s obligation to make those preliminary determinations become clear and unequivocal. The failure to object constitutes a waiver of that obligation. Bradley, 635 P.2d at 1165. Appellant may not premise plain error upon the trial court’s failure to make the Rule 609 findings.

Appellant would also have us find plain error in the admission of his prior conviction based on his contention that its prejudicial effect exceeded its probative value. However, he concedes that the balancing of prejudice against probative worth is ordinarily a discretionary matter for the trial court and that to prevail on appeal he must, as a threshold matter, clearly demonstrate the inflammatory nature of the evidence and establish that it had little probative value. Appellant has failed to carry this burden. His evidence concerning the prejudicial nature of his prior drug conviction demonstrates only the widespread public concern with, and media attention given to, illicit drug use. We rejected a similar showing as insufficient to establish the prejudicial effect of a prior conviction in Apodaca v. State, 627 P.2d 1023, 1027-28 (Wyo.1981), and hold likewise in this case.

Appellant has also failed to establish that the testimony elicited from him had no probative worth. During the prosecution’s case in chief, testimony was given that appellant was also known as Lee Vincent Ragsdale. When appellant took the stand, he attempted to rebut the logical inference from that testimony that he employed an alias. He explained that he had been raised by a man named Ragsdale and only later in life discovered that his natural father was named Miller, a name he subsequently assumed. The prosecutor’s later inquiry into appellant’s use of the name John Ragsdale at the time of his prior conviction served to contradict that expía-nation and to generally impeach appellant’s credibility, suggesting that he had resorted to the deceptive practice of assuming an alias. We, therefore, hold that the admission of his testimony concerning the prior conviction did not amount to plain error.

Appellant’s conviction is affirmed.

URBIGKIT, J., filed a dissenting opinion.