State v. Farris

379 S.E.2d 283 (1989)

STATE of North Carolina
v.
Kenneth Duane FARRIS.

No. 8823SC1025.

Court of Appeals of North Carolina.

May 16, 1989.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Norma S. Harrell, Raleigh, for the State.

Appellate Defender, Malcolm Ray Hunter by Asst. Appellate Defender, Teresa A. McHugh, Raleigh, for defendant-appellant.

WELLS, Judge.

Defendant contends the trial court erred by admitting into evidence defendant's convictions for contributing to the delinquency of a minor and assault on a juvenile which were more than ten years old. Defendant argues that the trial court should have made findings of fact to support its determination that the probative value of the convictions outweighed the prejudicial effect. Defendant further argues that admission of the evidence of the convictions was prejudicial to his case. Rule 609 of the Evidence Code of North Carolina concerns impeachment of a witness by evidence of conviction of a crime. The Rule provides that evidence that a witness has been convicted of a crime which is punishable by more than 60 days' confinement is admissible to attack the credibility of the witness. N.C. Gen.Stat. § 8C-1, Rule 609(a) (1988). The statute further imposes a time limit on such evidence and prescribes a procedure for the trial court to follow when evidence exceeding the time limit is introduced. The statute states in part:

(b) Time limit.—Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

G.S. § 8C-1, Rule 609(b) (1988). In the present case the State attempted to attack the credibility of defendant's testimony by introducing evidence of defendant's convictions of contributing to the delinquency of a minor and assault on a juvenile, each of which was more than ten years old. The following excerpt from the trial transcript is illustrative of the trial court's actions regarding this matter:

Q. You were convicted of contributing....

MR. ELMORE: ... OBJECTION. Ask to be heard.

THE COURT: Approach the bench a moment. (The following is conference at the bench between all counsel and the Court):

THE COURT: Is that within the ten years?

MRS. HARDING: No, it isn't.

MR. ELMORE: No, sir.

MRS. HARDING: It's in January, 25th, 1977.

MR. ELMORE: Clearly outside of the scope....

THE COURT: ... when was the date of the offense here?

MRS. HARDING: Here? November 15th, 1987.

THE COURT: It would be within the ten there.

MR. ALBRIGHT: I'd like to see a certified copy of it.

MRS. HARDING: I have that.

THE COURT: Let's see it.

. . . . .

THE COURT: Did he give written notice?

MRS. HARDING: Yes, sir.

THE COURT: Let's see the certified copy?

MRS. HARDING: There are going to be two; one is, if allowed, I'll ask about a contributing, and also about a [sic] assault on a juvenile.

THE COURT: Okay, the Court will determine that in the interest of justice, that the probative value of the conviction substantially outweighs the [sic] its prejudicial effect. OVERRULED.

. . . . .

Q. You have also been convicted, have you not, of contributing to the delinquency of a minor in Pulaski, Virginia in January of 1977?

A. Yes.

Q. And, you have also been convicted in Pulaski, Virginia of assaulting a juvenile, haven't you?

A. Yes, same thing; same case.

Inherent in Rule 609(b) is "a rebuttable presumption that prior convictions more than ten years old [are] more prejudicial to defendant's defense than probative of defendant's general character for credibility and, therefore, should not be admitted into evidence." State v. Blankenship, 89 N.C. App. 465, 366 S.E.2d 509 (1988). "[I]n those rare instances where the use of the older prior convictions [is] not more prejudicial than probative, the trial court must make appropriate findings of fact." Id. at 468, 366 S.E.2d at 511. These findings must concern "specific facts and circumstances which demonstrate the probative value outweighs the prejudicial effect." State v. Hensley, 77 N.C.App. 192, 334 S.E.2d 783, disc. rev. denied, 315 N.C. 393, 338 S.E.2d 882 (1986). The transcript makes it clear that the State laid no foundation for the admission of these prior convictions, thereby failing to provide the trial court a basis for making appropriate Rule 609(b) findings.

In the present case the trial court clearly failed to make appropriate findings of specific facts and circumstances to support its determination that the probative value of the convictions outweighs their prejudicial effect. This failure to make the necessary findings of fact amounted to reversible error. Accordingly, defendant is entitled to a new trial.

As a result of our decision on defendant's first assignment of error, it is unnecessary for us to address defendant's other assignments of error.

New trial.

HEDRICK, C.J., and EAGLES, J., concur.