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Editor: Colin Miller
Univ. of South Carolina School of Law

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Monday, April 19, 2010

Quantum Of Stealth: Court Of Appeals Of Minnesota Finds Gross-Misdemeanor Theft Qualified As Crime Of Dishonesty Or False Statement

Like Federal Rule of Evidence 609(a)(2), Minnesota Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime...involved dishonesty or false statement, regardless of the punishment.

As the Advisory Committee's Note to Federal Rule of Evidence 609(a)(2) notes, very few crimes qualify as crimes of dishonsety or false statement:

By that phrase, the committee means crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.

In its recent opinion in State v. Gaiovnik, 2010 WL 1439156 (Minn.App. 2010), the Court of Appeals found that one of the defendant's prior convictions qualified for admission under Minnesota Rule of Evidence 609(a)(2). I'm not sure that I agree.

In Gaiovnik, Christopher Gaiovnik was convicted of simple robbery and theft from a person. At trial, the court allowed the prosecution to impeach Gaiovnik under Minnesota Rule of Evidence 609(a)(2) through, inter alia, his 2006 conviction for gross-misdemeanor theft.

The complaint in the 2006 case allege[d] that appellant entered a bar with two other people, and the three sat at a back booth and had a couple drinks. After several employees left the bar, appellant left the booth, walked into a back hallway, pried open the door to a room where night-deposit bags were kept, and took six bags. Appellant then went to the bathroom before returning to the booth. When he reached the booth, the other two people immediately stood up, and the three walked out of the bar and avoided the surveillance-camera angles as they left.

After he was convicted, Gaiovnik appealed, claiming, inter alia, that this prior conviction did not involve a crime of dishonesty or false statement. The Court of Appeals of Minnesota disagreed, finding that "[t]he ruse of being a bar patron was deceit used to commit the theft." To me, this seems inconsistent with the way that the vast majority of courts construe crimes like theft and larceny. For instance, check out the following passage from United States v. Estrada, 430 F.3d 606, 614-15 (2nd Cir. 2005):

The district court did not err...in determining that the circumstances of Padilla's larceny convictions did not involve falsity or deceit such as to fall within the ambit of Rule 609(a)(2). See United States v. Hayes, 553 F.2d 824, 827 (2d Cir.1977) (noting that "crimes of force, such as armed robbery or assault, or crimes of stealth, such as burglary or petit larceny, do not come within" Rule 609(a)(2) (internal citations omitted)); cf. United States v. Sellers, 906 F.2d 597, 603 (11th Cir.1990) ("[C]rimes such as theft, robbery, or shoplifting do not involve ‘dishonesty or false statement’ within the meaning of Rule 609(a)(2)."). While much successful crime involves some quantum of stealth, all such conduct does not, as a result, constitute crime of dishonesty or false statement for purposes of Rule 609(a)(2). See Hayes, 553 F.2d at 827 (stating that Congress limited the crimes covered by Rule 609(a)(2) because of the Rule's inflexibility and noting that a conviction that "involved nothing more than stealth" could not be introduced automatically under Rule 609(a)(2); cf. United States v. Brackeen, 969 F.2d 827, 829-30 (9th Cir.1992) (en banc) (distinguishing between the broad meaning of "dishonesty" as a lack of integrity or principles and its narrow meaning under Rule 609(a)(2) as a disposition to deceive).

The way I see it, Gaiovnik's prior crime was the classic crime of theft involving some quantum of stealth but an insufficient quantum of dishonesty of deceit to qualify it as a crime of dishonesty or false statement.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/04/609--state-v-gaiovniknot-reported-in-nw2d-2010-wl-1439156minnapp2010.html

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