Saturday, June 19, 2010
Brief Inquiry: Court Of Appeals Of Indiana Affirms Child Molesting Conviction Despite Possibly Erroneous Impeachment
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement 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. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
So, let's say that the prosecution impeaches the defendant with a conviction that is more than ten year old, and the defendant does not object to the admission of his conviction for impeachment purposes. After the defendant is convicted, however, he appeals, claiming that evidence of this conviction was improperly admitted. Clearly, the defendant has to prove plain error. But can he do so if the prosecution's impeachment of him was fairly brief? According to the recent opinion of the Court of Appeals of Indiana in its recent opinion in Boyd v. State, 2010 WL 2396260 (Ind.App. 2010), the answer is "no."
In Boyd, James Boyd was convicted of Child Molesting, a class A felony. The opinion of the Court of Appeals of Indiana does not tell us about what transpired at trial with two exceptions. First, the prosecutor made statements which Boyd contended on appeal constituted reversible prosecutorial misconduct. Specifically, the prosecutor claimed that the alleged victim was "truthful" during his opening statement and suggested that Boyd had the burden of proof at trial during his closing argument, in which he asked jurors why Boyd did not call certain witnesses on his behalf. The Court of Appeals of Indiana agreed with Boyd that each of these acts constituted prosecutorial misconduct, but it noted that the trial court gave jury instructions which cured any prejudice flowing from these acts.
Second, the prosecutor impeached Boyd with his conviction for burglary in 1996. Boyd filed a pretrial motion in limine, which sought to preclude this evidence at trial, but he failed to renew his objection to its admission at trial. After he was convicted, however, he raised this issue again, and the Court of Appeals of Indiana noted that "Boyd testified in the instant trial on October 16, 2009, which is more than ten years after he was convicted of burglary."
The court correctly noted, however, that
Rule 609(b) provides that where, as here, the conviction resulted in confinement, then the starting point of the ten-year period is the date of the release from confinement rather than the date of the conviction. At trial, the prosecutor noted that Boyd was sentenced to ten years with four years suspended, arguing that if we assume that Boyd
had good time credit and he served that time under, so [the confinement] would have been three years generally speaking which would put his release date from prison approximately 12-16-1999, so therefore we are within the ten year limit of when he was released, just barely, but we are within that ten year limitation.
Boyd argued, though, that the prosecution failed to offer any actual evidence of the date of his release from confinement and that its mere assumption that the release date must have been around December 16, 1999 was insufficient. The court assumed for argument's sake that Boyd was correct and found that, even if he was, the trial court did not commit plain/fundamental error, requiring reversal. The court noted that the following was the sole evidence of the past burglary conviction occurred in the midst of the State's cross-examination of Boyd:
STATE: Mr. Boyd, back in 1996, you were convicted of burglary in this Court is that correct?
BOYD: Yes, sir.
STATE: A [class] B felony burglary?
According to the court,
The State then moved on to other lines of questioning. Thus, the State's questioning regarding the prior conviction was very brief. Furthermore, the lack of similarity between the prior burglary conviction and the present child molesting charge decreases the possibility that the jurors impermissibly inferred Boyd's guilt based on the past conviction. Given the brevity of the State's questioning regarding the past conviction, we cannot conclude that the admission of this evidence constituted a blatant violation of basic and elementary principles that prevented Boyd from receiving a fair trial. Thus, any error was not fundamental and we decline to reverse on this basis.
I probably agree, but it is tough to say because, as noted above, the court's opinion doesn't tell us what evidence was presented at trial. I admit that the above impeachment was not that prejudicial, but if the evidence were otherwise close, I can see how Boyd's prior conviction (especially when joined with the aforementioned prosecutorial misconduct) could have tipped the scales.