Friday, September 24, 2010
State Your Reasoning: Court Of Appeals Of North Carolina Finds Trial Court Failed To Conduct Proper Rule 609(b) Analysis
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. However, evidence of a conviction more than 10 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.
Rule 609(b) flips the typical Rule 403 balancing test, which deems evidence admissible as long as its probative value is not substantially outweighed by its prejudicial effect. It also requires trial courts to state specifically the facts and circumstances which led it to conclude that a more-than-ten-year-old conviction should be admissible for impeachment purposes. And, according to the opinion of the Court of Appeals of North Carolina in State v. Denton, 2010 WL 3633457 (N.C.App. 2010), a North Carolina trial court recently erred in applying the second aspect of Rule 609(b) while the prosecution's argument on appeal misstated the first aspect of the Rule.
In Denton, Jonathan Denton was convicted of possession of cocaine. Before Denton's trial, the State notified him of its intention to present evidence of his prior criminal convictions that were more than ten years old. Denton responded by filing a motion in limine seeking the exclusion of such evidence. While the trial court granted this motion in part, it found that
The defendant's motion in limine as to [his convictions for] possession of stolen goods and the common law robbery and robbery with a dangerous weapon at this time is denied. But I'll have to conduct a weighing of that when we reach that point in the trial.
After the State rested, Denton renewed his motion in limine, and the trial court concluded that:
[S]ubject to further consideration as to balancing called for by the context in which the questions arise, I'm denying the motion in limine as to the possession of stolen goods, common law robbery and robbery with a dangerous weapon.
After he was thereafter impeached and convicted, Denton appealed, claiming, inter alia, that the trial court erred by admitting evidence of convictions that were more than ten years old without making findings as to “specific facts and circumstances” that justified their admission. The Court of Appeals of North Carolina agreed, finding that
Although the State asserts that “the trial judge complied with the balancing test required by the rule and determined, in his discretion, that the probative value of the convictions outweighed their prejudicial effect,” it has not cited us to any transcript excerpts that support this contention and we have not identified any support for this contention during our own examination of the record. In addition, the State's argument that the trial court adequately complied with N.C. Gen.Stat. § 8C-1, Rule 609(b) by finding “that the probative value of the convictions outweighed their prejudicial effect” misstates the applicable law, which requires the trial court to determine that the “probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” (emphasis added). Finally, the State contends that the trial court “specifically stated for the record that he had applied the balancing test required by the rule.” However, the trial court's only reference to the application of the required balancing test occurred at the time of its ruling denying Defendant's motion in limine “subject to further consideration as to balancing called for by the context in which the questions arise.” Although the State appears to argue that the trial court's reference to “further” balancing suggests that “previous” balancing had already occurred, the record clearly reflects that the trial court did not make any findings of the type required by N.C. Gen.Stat. § 8C-1, Rule 609(b). As a result, since “[t]here are no findings of specific facts and circumstances in the record to support the trial court's determination that the evidence was more probative than prejudicial,” “[t]he trial court's admission of defendant's prior convictions beyond ten years was error and we now examine whether defendant was prejudiced."
That said, the court deemed this error harmless and thus affirmed Denton's conviction.