Byner v. State (In re Byner)

• Decision Date: 17 August 2018
• Docket Number: 1170397
• Citation: 270 So.3d 1162
• Parties: EX PARTE Dionntez BYNER (In re Dionntez Byner v. State of Alabama)
• Court: Alabama Supreme Court

270 So.3d 1162

EX PARTE Dionntez BYNER(In re Dionntez Byner

v.State of Alabama)

1170397

Supreme Court of Alabama.

August 17, 2018

Roger C. Appell, Birmingham, for petitioner.

Steve Marshall, atty. gen., and Andrew L. Brasher, deputy atty. gen., and Marc A. Starrett, asst. atty. gen., for respondent.

PARKER, Justice.

Dionntez Byner petitioned this Court for a writ of certiorari to review the Alabama Court of Criminal Appeals' decision affirming the Jefferson Circuit Court's dismissal of Byner's petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P. See Byner v. State, 268 So. 3d 629 (Ala. Crim. App. 2017) (table). In his petition, Byner challenged his 2015 convictions for one count of robbery in the first degree, see § 13A-8-41, Ala. Code 1975, and one count of obstructing justice using a false identity, see § 13A-8-194, Ala. Code 1975. We issued the writ of certiorari in order to determine as an issue of first impression whether robbery is a crime involving "dishonesty or false statement" for purposes of Rule 609(a)(2), Ala. R. Evid., thereby rendering evidence of a conviction for robbery admissible for impeachment purposes. We hold that robbery is a crime involving "dishonesty or false statement" and that a prior robbery conviction is admissible for impeachment purposes under Rule 609(a)(2). Accordingly, we affirm the Court of Criminal Appeals' judgment.

Facts and Procedural History

The facts in this case are undisputed. On February 17, 2015, Byner was convicted in the circuit court of robbery in the first degree and of obstructing justice using a false identity. Byner was sentenced as a habitual felony offender to concurrent terms of 360 months' imprisonment for his robbery conviction and 120 months' imprisonment for his obstruction-of-justice conviction.

At trial, Byner testified on his own behalf. Byner testified that he and the victim had staged the robbery because the victim owed money to a drug dealer and needed an excuse for his failure to pay the debt. The State then cross-examined Byner about two prior robbery convictions -- a first-degree robbery conviction in October 2000 and a third-degree robbery conviction in July 2001. The Court of Criminal Appeals affirmed Byner's convictions and sentences on direct appeal. See Byner v. State, 219 So.3d 722 (Ala. Crim. App. 2015).

On April 14, 2016, Byner filed the instant Rule 32 petition, his first, alleging that he had been denied his right to the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. Specifically, Byner argued that his trial counsel had failed to object to the State's cross-examination of Byner regarding his two prior robbery convictions and that his failure to do so constituted ineffective assistance of counsel. The circuit court summarily dismissed Byner's Rule 32 petition on June 21, 2017.

On December 8, 2017, the Court of Criminal Appeals affirmed the circuit court's dismissal of Byner's Rule 32 petition by an unpublished memorandum. See Byner v. State, 268 So. 3d 629 (Ala. Crim. App. 2017) (table). Byner petitioned this Court for a writ of certiorari, and this Court issued the writ to review as a material question of first impression whether robbery is a crime involving "dishonesty or false statement" for purposes of Rule 609(a)(2) so as to make evidence of a robbery conviction admissible for impeachment purposes.

Standard of Review

" ‘ "[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, the court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001).’ Ex parte Clemons, 55 So.3d 348, 350 (Ala. 2007)."

Ex parte Carruth, 21 So.3d 770, 772 (Ala. 2009).

Discussion

Byner claims that he was deprived of effective assistance of counsel when his trial counsel failed to object to evidence of Byner's two prior robbery convictions. In order to prove that his counsel was ineffective in that regard, Byner must demonstrate that an objection to the admission of evidence of Byner's prior robbery convictions would have been sustained. Therefore, the issue before us is whether evidence of a prior robbery conviction is automatically admissible for impeachment purposes under Rule 609(a)(2).

In his brief before this Court, Byner contends that "robbery is not a crime involving crimen falsi and thus should not be automatically admissible under Rule 609(a)(2) of the Alabama Rules of Evidence." Byner's brief, at p. 2. Instead, Byner contends that evidence of the two prior robbery convictions is admissible only if its probative value outweighs any prejudicial effect under the balancing test set forth in Rule 609(a)(1), Ala. R. Evid., allowing evidence of such a conviction "if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." Byner's brief, at pp. 4-5. The State contends, on the other hand, that "robbery is a crime of dishonesty and is thus admissible for impeachment under Rule 609 of the Alabama Rules of Evidence." State's brief, at p. 11.

The relevant portions of Rule 609 state:

"(a) General Rule. For the purpose of attacking the credibility of a witness,

"....

"(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment."

Although this Court has never addressed the issue whether robbery is a crime involving dishonesty or false statement for purposes of Rule 609(a)(2), the Court of Criminal Appeals has interpreted Rule 609(a)(2) with regard to the admissibility of evidence of convictions for other crimes. In Huffman v. State, 706 So.2d 808 (Ala. Crim. App. 1997), the Court of Criminal Appeals held that theft is a crime involving dishonesty for purposes of Rule 609(a)(2). In reaching its conclusion, the Huffman court relied on the following passage from McElroy's Alabama Evidence, in which Professor Gamble explained the then newly adopted Rule 609(a)(2) :

"The phrase ‘dishonesty or false statement’ generally has been given a narrow interpretation such as to include only crimes that carry some element of deceit, untruthfulness or falsification bearing on the witness' propensity to testify untruthfully. In light of this interpretation, such would quite clearly include crimes, among others, such as embezzlement, perjury, subornation of perjury, false statement, criminal fraud, false pretense, forgery, worthless check violations, failure to file tax returns, counterfeiting and bribery.

"The uncertainty in this area arises with regard to convictions for crimes of theft and violence. A number of courts addressing the issue hold that violent crimes, such as robbery, generally do not involve dishonesty or false statement. Some courts conclude that theft crimes, such as burglary or larceny, do not involve dishonesty or false statements. This issue will have to be decided on a case-by-case basis after Alabama's adoption of the Alabama Rules of Evidence. If Alabama courts accept the narrow interpretation of dishonesty and false statement then many crimes that were usable to impeach under the historic moral turpitude test would not qualify under Rule 609(a)(2). In contrast, however, Alabama courts could follow the lead of other courts which have placed additional emphasis upon the term ‘dishonesty’ as opposed to focusing entirely upon ‘false statement.’ Preexisting Alabama decisions have long used the term ‘dishonesty’ as a trait for testing whether crimes satisfy the historic moral turpitude test. Should the courts deem this line of cases controlling post-rules then convictions for the following crimes could continue usable for impeachment: murder, robbery, rape, burglary and larceny. Even if the narrow interpretation is adopted, and these crimes of violence and theft are held not to involve dishonesty or false statement per se, they could yet be found usable by following the lead of those courts which have been willing to look beyond the formal elements of the crime to the underlying facts to determine whether the crime was committed under circumstances of deceit, untruthfulness or falsification."

C. Gamble, McElroy's Alabama Evidence § 145.01(9) at 675–76 (5th ed. 1996)(footnotes omitted; emphasis added).¹

In Huffman, one of the first cases applying the Alabama Rules of Evidence, the Court of Criminal Appeals declined to adopt the narrow interpretation of dishonesty set forth in federal decisions interpreting the federal version of Rule 609(a)(2). Instead, the Huffman court followed Alabama's own pre-rules precedent regarding dishonesty as a test for determining whether a crime was one "involving moral turpitude" under § 12-21-162, Ala. Code 1975. The Huffman court stated:

"In Ex parte McIntosh, [443 So.2d 1283 (Ala. 1983) ], the Alabama Supreme Court listed murder, rape, burglary, robbery, and larceny as ‘[a]mong those crimes that rise to such a level as to permanently cast doubt on the truthfulness and veracity of those who commit them.’ 443 So.2d at 1285. We do not see how a crime can cast a permanent doubt upon one's truthfulness under the ‘moral turpitude’ standard and yet not involve dishonesty or false statement under the Alabama Rules of Evidence. We find that the narrow interpretation of ‘dishonesty’ in federal cases construing Rule 609(a)(2) beggars common sense. Clearly, the crime of theft involves deceit and would directly bear on the ability of the person convicted of the offense to testify truthfully."

706 So.2d at 813 (emphasis added).

The Huffman court followed the lead of other courts in placing greater emphasis on whether violent crimes involved "dishonesty" rather than focusing solely on whether such crimes involved "false statements." Specifically, the Huffman court adopted the Florida Supreme Court's broader interpretation of "dishonesty" in Florida's version of Rule 609(a)(2) set forth in State v. Page, 449 So.2d 813 (Fla. 1984). The Huffman...