Albertson v. State
| Decision Date | 16 September 1976 |
| Docket Number | No. 11048,11048 |
| Citation | 1976 NMSC 56,554 P.2d 661,89 N.M. 499 |
| Parties | Brent J. ALBERTSON, Petitioner, v. STATE of New Mexico, Respondent. |
| Court | New Mexico Supreme Court |
This case presents the issues of (1) the propriety of questioning the defendant during cross-examination with regard to his prior misdemeanor convictions, (2) the effect of failure to object properly to such questioning, and (3) the effectiveness of the trial court's admonition to the jury to disregard such testimony.
Defendant-appellant-petitioner Brent Albertson and co-defendant Joe Byrd were charged with larceny and convicted by the jury. Albertson appealed to the Court of Appeals, which summarily affirmed the conviction. State v. Albertson, No. 2566 (Ct.App., June 29, 1976). We granted certiorari.
Petitioner presents one major issue for review: Do the prosecutor's questions during cross-examination regarding defendant's prior misdemeanor convictions, which did not involve defendant's veracity, constitute reversible error? The State argues that: (1) the defense attorney failed to object properly to such questioning, in that he failed to state the proper ground for his objection, and (2) in any event, the judge cured the error by instructing the jury to disregard the testimony as to the prior convictions.
Albertson had taken the stand and was testifying to his version of the alleged theft of a camper shell. Upon recross-examination the prosecutor asked the following question: 'Mr. Albertson, have you ever been convicted of any crimes, either felonies or misdemeanors?' Whereupon the defense counsel stated: 'Objection, your Honor, irrelevant to this proceeding under the Rules of Evidence, to be brought up only if the defendant himself raises the issue.' The trial court overruled the objection. Albertson then testified that he had not been convicted of any felonies but had twice been convicted of the misdemeanor offense of possession of marijuana. After other testimony, the trial court adjourned for lunch. Upon return the trial court professed concern over the admissibility of the testimony of the misdemeanor convictions, and it asked the defendant to take the stand. The jury did not hear this discussion and the following testimony. Both counsel questioned the defendant further with regard to these convictions. Albertson testified to some of the surrounding facts concerning those convictions but insisted that both were only misdemeanor convictions. The prosecution stated that he assumed that these convictions had to include at least one felony, because Albertson was placed on parole for three years. 1 However, the prosecutor could not prove that the defendant had been convicted of a felony. The trial court then concluded that it was in error in allowing that testimony. After the jury returned, the trial court instructed the jury that it should disregard the testimony concerning the convictions of possession of marijuana, stating:
Under the law, evidence of misdemeanor convictions are not admissible for any purpose in the impeachment of the credibility of the witness. So at this time I'm instructing you to completely disregard the question and the answers elicited from the defendant Brent Albertson relative to his convictions for possession of marijuana. Is that understood by everyone? I know it's difficult to do that under the circumstances, but try as hard as you can to completely eliminate that testimony from your deliberations and do not give it any consideration whatsoever in your final deliberation of this case.
Rule 609(a) of the Rules of Evidence (§ 20--4--609(a), N.M.S.A.1953 (as amended, April 1, 1976)) delimits the requirements for the admission of prior crimes to attack the credibility of a witness:
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted it elicited from him or established by public record during cross-examination but...
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State v. Anderson, 20157
...Olson, the trial court's comments indicate that it was adequately apprised of the application of the rule. See Albertson v. State, 89 N.M. 499, 501, 554 P.2d 661, 663 (1976) (no waiver by failure to raise specific objection when court alerted to the impropriety of questioning). Rule 410 Evi......
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State v. Bartlett
...convictions for prosecutorial misconduct of this nature. State v. Day, 91 N.M. 570, 577 P.2d 878 (Ct.App.1978); Albertson v. State, 89 N.M. 499, 554 P.2d 661 (1976); State v. Lara, 88 N.M. 233, 539 P.2d 623 (Ct.App.1975); State v. Ross, 88 N.M. 1, 536 P.2d 265 (Ct.App.1975); State v. Vallej......
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State v. Bobbin
...1 as "[a] crime less than [a] felony that by its nature tends to cast doubt on the veracity of one who commits it." Albertson v. State, 89 N.M. 499, 554 P.2d 661 (1976). Prior misdemeanor convictions, not bearing on the witness' veracity, are irrelevant to a witness' credibility. Id. Also, ......
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State v. Day
...the reference to a 1964 conviction, not admissible under the evidence rules, was in itself reversible error. See Albertson v. State, 89 N.M. 499, 554 P.2d 661 (1976). The misconduct occurred in the prosecutor's closing argument. Defendant, in his closing argument to the jury, asserted that ......