State v. Fluellen

Evid.R. 609(B) is patterned after Fed.R.Evid. 609(b). The exception granting authority to trial courts to admit convictions that are more than ten years old was added to Fed.R.Evid. 609(b) by the Senate Judiciary Committee for the following reasons:

"Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness. * * *

"It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances. The rules provide that the decision be supported by specific facts and circumstances thus requiring the court to make specificfindings on the record as to the particular facts and circumstances it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial impact." (Emphasis added.) S.Rep. No. 93-1277, 93d Cong. 2d Sess., reprinted in U.S. Code Cong. Adm.News (1974) 7051, 7061-7062. See Giannelli, Ohio Evidence Manual (1992) 50, Section 609.06(a); see, also, State v. Ellis (1982), 8 Ohio App.3d 27, 8 OBR 29, 455 N.E.2d 1025.

Convictions over ten years old should be admitted under Evid.R. 609(B) only rarely and in exceptional circumstances.Lenard v. Argento (C.A.7, 1983), 699 F.2d 874 (analyzing analogous federal provision). It is the prosecution's burden in stale conviction cases to present specific, or articulated, facts and circumstances that support the probative value of the conviction such that it substantially outweighs its prejudicial effect. United States v. Beahm (C.A.4, 1981), 664 F.2d 414. Appellee failed to present any facts and circumstances concerning appellant's prior conviction. Additionally, the mere nature of the prior conviction, i.e., involuntary manslaughter, does not appear to bear on appellant's credibility in a subsequent aggravated robbery prosecution. Cf. State v. Grubb (1988), 44 Ohio App.3d 94, 541 N.E.2d 476 (prosecution allowed to use twenty-four-year-old sodomy conviction to impeach defendant in a gross sexual imposition trial). Based upon the foregoing, since appellee did not present specific facts and circumstances supporting the probative value of the prior conviction and the trial court made no such findings, the court abused its broad discretion in allowing appellee to impeach appellant's credibility with the 1976 involuntary manslaughter conviction.

Nevertheless, in order to support the reversal of a judgment, appellant has the burden to establish that any error was prejudicial. See, e.g., Gries Sports Enterprises, Inc. v.Cleveland Browns Football Co. (1986), 26 Ohio St.3d 15, 28, 26 OBR 12, 23, 496 N.E.2d 959, 969; Lowry v. Lowry (1988), 48 Ohio App.3d 184,190, 549 N.E.2d 176, 181. Crim.R. 52(A) provides that "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Error in the admission of evidence in criminal proceedings is harmless if there is no reasonable possibility that the evidence may have contributed to the accused's conviction. Giannelli, supra, at 20, Section 103.03, citing State v. Bayless (1976), 48 Ohio St.2d 73, 2 O.O.3d 249, 357 N.E.2d 1035; State v. Rabe (June 3, 1991), Clermont App. No. CA90-09-092, unreported, 1991 WL 96371. In order to affirm the conviction, the error in the admission of evidence must be harmless beyond a reasonable doubt. Giannelli,supra; Rabe, supra.

If evidence of guilt is overwhelming, courts have held any error in the admission of evidence to be harmless beyond a reasonable doubt. State v. Hart (1991), 72 Ohio App.3d 92, 99,593 N.E.2d 463, 467; State v. West (Nov. 17, 1988), Cuyahoga App. No. 54598, unreported, 1988 WL 122944. In the case at bar, appellant conceded that he had participated in the aggravated robbery of the store. However, he claimed the affirmative defense of duress. Under Ohio law, duress is an affirmative defense which must be proven by the defendant. State v.Broughton (Feb. 16, 1993), Clermont App. No. CA92-06-061, unreported, 1993 WL 38178. The defendant must establish that the force which is claimed to have compelled his criminal conduct was (1) immediate and imminent and threatened grave bodily harm; (2) present throughout the transaction; and (3) could not have reasonably been avoided. State v. Hackley (Aug. 15, 1990), Montgomery App. No. 11407, unreported, 1990 WL 119292, citingState v. Proctor (1977), 51 Ohio App.2d 151, 158, 5 O.O.3d 309, 313, 367 N.E.2d 908, 913; see, also, State v. Cross (1979),58 Ohio St.2d 482, 12 O.O.3d 396, 391 N.E.2d 319. The force which is claimed to have compelled criminal conduct against the will of the actor must be immediate and continuous during all the time the act is being committed. State v. Dapice (1989), 57 Ohio App.3d 99,106-107, 566 N.E.2d 1261, 1268-1269; State v.McClain (Mar. 31, 1988), Franklin App. No. 87AP-645, unreported, 1988 WL 37105.

The reason the trial court gave in allowing evidence of appellant's prior conviction was because the "central issue" in the case was appellant's credibility. Appellee specifically placed special emphasis on the prior conviction in its closing argument:

"* * * Now how do you determine whether someone was under duress? You look at their actions at the time the offense occurred and you hear what the witnesses have to say. Well the only person that's talking about duress in this case is one person and that's Damon Fluellen and your job is to gauge the credibility or the believability of Damon Fluellen. Simply put, you determine whether Damon Fluellen is a very, very big liar.Well how do you gauge credibility? The Court will tell you how you gauge credibility. The first thing I think you need to lookat in this case is Damon Fluellen's prior record. You heard that Damon Fluellen has previously been convicted of Involuntary Manslaughter. Now you can't use that to determine that he committed this offense, but the Court did tell you that you can use that prior conviction for Involuntary Manslaughter to gauge whether he's a truthful person. Is a person who has been convicted of a felony before, as reliable as other people who haven't been convicted and who testified in this case?" (Emphasis added.)

Finally, appellee does not even assert on appeal that any error in the admission of appellant's involuntary manslaughter conviction was harmless. Based upon the foregoing circumstances, and a complete review of the record, I am persuaded that there remains a reasonable possibility that the prior conviction may have contributed to appellant's conviction.¹ Accordingly, I cannot find the trial court's error to be harmless beyond a reasonable doubt.

¹ The jury is free to believe all, part or none of the testimony of each witness. State v. Harriston (1989), 63 Ohio App.3d 58,63, 577 N.E.2d 1144, 1148; State v. Nichols (1993),85 Ohio App.3d 65, 619 N.E.2d 80. The jury could thus credit appellant's testimony relating to duress.