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Univ. of South Carolina School of Law

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Friday, August 27, 2010

Crimes And Misdemeanors? Arizona Court Implies Drug Convictions Can Qualify For Rule 609 Impeachment Based On Statutory Amendment

Like its federal counterpart, Arizona Rule of Evidence 609(a)(1) 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 if elicited from the witness or established by public record, if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, and if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted....

So, let's say that a defendant is convicted under a statute that mandates a sentence of probation, rather than imprisonment, for first-time convictions of personal possession or use of controlled substances or drug paraphernalia. But let's say that the statute also allows courts to impose additional probation conditions, including incarceration, for probation violations regarding court-ordered drug treatment, and courts can revoke probation for failure or refusal to participate in drug treatment. Could the conviction be admissible under Arizona Rule of Evidence 609(a)(1)? According to the recent opinion of the Court of Appeals of Arizona, Division One, in State v. Hatch, 2010 WL 3310267 (Ariz.App. Div. 1 2010), the answer seems to be "yes." I disagree.

In Hatch, the facts were as stated above, with the trial court permitting the prosecution to impeach the defendant. After he was convicted, the defendant appealed, citing the Supreme Court of Arizona's opinion in State ex rel. Romley v. Martin, 69 P.3d 1000 (Ariz. 2003), for the proposition that witnesses cannot be impeached under Arizona Rule of Evidence 609(a)(1) via convictions under A.R.S. § 13-901.01, the statute under which he was previously convicted.

The Court of Appeals of Arizona, Division One, however, noted that, at the time that Martin was decided, A.R.S. § 13-901.01 mandates a sentence of probation, rather than imprisonment, for first-time convictions of personal possession or use of controlled substances or drug paraphernalia. The court then noted that A.R.S. § 13-901.01 was since amended so that courts can now impose additional probation conditions, including incarceration, for probation violations regarding court-ordered drug treatment, and courts can revoke probation for failure or refusal to participate in drug treatment. According to the court,

In this case, defendant's prior conviction remained potentially punishable by imprisonment in excess of one year until the conditions of his probation were satisfied....

The current statutory landscape has changed significantly since the time Martin was decided. Initially, Proposition 200's flat prohibition on imprisonment was dispositive on the notion of the seriousness of the covered offenses; minor, non-repetitive drug offenses were insufficiently grave to warrant impeachment given the statute's strictly therapeutic, non-punitive approach....After Proposition 302, however, such crimes are not properly characterized as unserious, but rather as felonies for which drug treatment is offered in the first instance, with incarceration allowed as an adjunct to probation or as a punitive sanction in the circumstances set forth statutorily. Failure or refusal to participate in treatment can now result in revocation of probation and consequent imprisonment, and mandatory probation is inapplicable if a defendant refuses drug treatment or rejects probation. A.R.S. § 13-901.01(G), (H)(2)-(3). This is a dramatic departure from the strictly therapeutic regime that was in place when Martin was decided.

The court then didn't answer the question of whether the trial court should have deemed the defendant's conviction admissible under Arizona Rule of Evidence 609(a)(1), finding that, even if it did, its admission constituted harmless error. But it seems clear to me that a first-time conviction of personal possession or use of controlled substances or drug paraphernalia is not a crime punishable by death or imprisonment in excess of one year Arizona Rule of Evidence 609(a)(1). Instead, if an individual commits such an offense and then commits a parole violation or act leading to parole being revoked, then the individual can be sentence to imprisonment in excess of one year. In the absence of this latter act, however, I don't see how Arizona Rule of Evidence 609(a)(1) could apply.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/08/609--state-v-hatch----p3d------2010-wl-3310267arizapp-div-12010.html

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