Dowdy v. State, 49A04-9507-CR-288
| Decision Date | 30 October 1996 |
| Docket Number | No. 49A04-9507-CR-288,49A04-9507-CR-288 |
| Citation | 672 N.E.2d 948 |
| Parties | Kevin DOWDY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Kevin Dowdy appeals his conviction by jury of two counts of robbery 1 as class C felonies, and his adjudication as an habitual offender. 2 We affirm.
1. Whether the trial court erred in finding that evidence of Dowdy's 1982 robbery conviction would be admissible for impeachment purposes if Dowdy testified.
2. Whether the trial court erred in instructing the jurors that they would be able to submit questions to witnesses to clarify testimony.
3. Whether the trial court erred in refusing the jury's request to review a witness' testimony.
4. Whether there is sufficient evidence to support Dowdy's convictions.
On June 22, 1994, seventy year old John Taylor was leaving an auto parts store when Kevin Dowdy stopped him and asked him for assistance with a disabled vehicle. Taylor agreed to help Dowdy and drove him to a nearby apartment complex. Dowdy asked Taylor to give him the money to purchase a set of jumper cables. Taylor refused and checked the trunk of his car for cables. Dowdy took the keys to Taylor's car and continued to demand money. Further, Dowdy motioned toward his leg and asked Taylor if he wanted to see his weapon. Dowdy then grabbed Taylor's arm and told him, "You know I can pop you any time I want to." (R. 144). Taylor, who was worried for his safety, decided to give Dowdy some money in exchange for his car keys. As Taylor opened his wallet, Dowdy demanded all of Taylor's money. Taylor gave Dowdy his money, and Dowdy returned Taylor's car keys. Taylor then drove home and called the police.
Several months later, on October 31, 1994, Patrick Cooley was leaving a liquor store when Dowdy approached him and asked him for assistance with a disabled vehicle. Specifically, Dowdy told Cooley that the battery in his car was dead. Cooley did not have jumper cables, so he drove Dowdy to a nearby service station. When the two men arrived at the service station, Dowdy asked Cooley to drive him home. On the way to Dowdy's house, Dowdy told Cooley that he had a one hundred dollar bill and that he wanted to compensate Cooley, but that he needed change. Dowdy asked Cooley how much change he had. Dowdy then asked Cooley to drive him to an automated teller machine so that Cooley could obtain change for him, and Cooley refused.
Thereafter, Dowdy asked Cooley to drive him to a friend's house. Cooley pulled over and told Dowdy that he would leave him there. Dowdy reached over to the steering wheel, turned off the car's ignition, and, in a threatening tone of voice, asked Cooley how much change he had. Cooley showed Dowdy the coins that he had in his pocket, and Dowdy responded that Cooley had "better stop bullshitting around with [him]." (R. 200). Dowdy then told Cooley, "I'm going to let you have it right here and now," and reached behind his back as if he was reaching for a weapon. (R. 201). Cooley removed nine dollars from his wallet, and Dowdy took it. Cooley then suggested that they go to Dowdy's friend's house. When they got to the friend's house, both men exited Cooley's car; however, Dowdy told Cooley that Cooley could not go into the house. Cooley said that he would wait for Dowdy, but Cooley returned to his car and drove away. Dowdy was subsequently convicted by jury of two counts of robbery as class C felonies, and adjudicated to be an habitual offender.
Dowdy first argues that the trial court erred in finding that evidence of Dowdy's 1982 robbery conviction would be admissible for impeachment purposes if Dowdy testified. Specifically, Dowdy argues as follows:
Indiana Rules of Evidence 609(b) specifically adopts the Federal Rules of Evidence use of stale convictions for impeachment. Section (B) of 609 prohibits use of a conviction if, a period of more than ten (10) years has elapsed, unless the court determines in the interest of justice, the stale conviction may be used. The trial court only determined that the probative value of the 1982 robbery conviction outweighed the prejudicial effect. The appellant was prevented from testifying in his own behalf, as a result of the court's ruling, fearing the evidence of his 1982 robbery conviction being admitted by the State, arguing this case presents an ongoing pattern, would be simply to say that one who committed a similar crime more than a decade ago may now be guilty of doing it again. Because the trial court incorrectly rule[d] that the 1982 conviction was admissible under 609(B) without addressing the "interest of justice component" and chilling the appellant's fundamental right to testify, the conviction should be reversed.
We agree with Dowdy that the language of Ind.Evidence Rule 609(b) closely parallels that of Fed.Evidence Rule 609(b) regarding the admissibility and use of aged convictions to impeach a witness' testimony at trial. Although we are not bound by interpretations of the Federal Rules of Evidence, we do not hesitate to look to federal cases interpreting the rules for guidance when we are confronted with a similar issue.
A trial court's decision to admit evidence will not be reversed absent a showing of manifest abuse of the trial court's discretion resulting in the denial of a fair trial. Christian-Hornaday v. State, 649 N.E.2d 669, 670 (Ind.Ct.App.1995). Ind.Evidence Rule 609 provides in pertinent part as follows:
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime shall be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2) a crime involving dishonesty or false statement.
(b) Time Limit. 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.
We observe that Evid.R. 609(b) is biased against admissibility. Specifically, it requires the party seeking to impeach with an aged conviction to show that the probative value of the evidence substantially outweighs its risk of unfair prejudice. United States v. Estes, 994 F.2d 147, 149 (5th Cir.1993). Further, the party seeking to overcome the Rule 609(b) presumption of exclusion must support the argument for probative value with specific facts and circumstances upon which the trial court may base a finding of admissibility.
Trial courts may consider a broad range of factors in balancing an aged conviction's probative value against the risk of unfair prejudice. Robert Lowell Miller, Jr., Indiana Practice, Vol. 13, § 609.202 at 171 (1991). We find useful and utilize herein the following five factors which the Seventh Circuit considers in balancing an aged conviction's probative value against the risk of unfair prejudice:
(1) The impeachment value of the prior crime;
(2) The point in time of the conviction and the witness' subsequent history;
(3) The similarity between the past crime and the charged crime;
(4) The importance of the defendant's testimony; and
(5) The centrality of the credibility issue.
United States v. Castor, 937 F.2d 293, 298-99 (7th Cir.1991). 3
Here, because Dowdy was charged with two counts of robbery, the impeachment value of his 1982 robbery conviction was very significant. Further, although Dowdy was convicted of robbery in 1982, he was not released from confinement for that conviction until 1983. Thus, for the purposes of Evid.R. 609(b), his release from confinement was 12 years before the March 1995 trial, and two years past the ten-year time limit imposed by the rule. As to Dowdy's subsequent criminal history, the record reveals that following the 1982 robbery conviction, Dowdy had a theft conviction in 1983, two theft convictions in 1991, and another theft conviction in 1992. In addition, Dowdy has had several additional arrests for theft and robbery.
Further, we find some similarity between the 1982 conviction and the robberies before us. Dowdy's pre-sentence report reveals that, in the 1982 robbery, Dowdy and a codefendant robbed two individuals who were taking them to a liquor store. In addition, Dowdy's testimony was important, and because the case came down to Dowdy's perception of the events against the victims' perception of the events, both Dowdy's testimony and that of other witnesses would have been central to the issue of credibility. Specifically, Dowdy contended that he had merely "tricked" the victims out of their money.
Based on these facts, we agree with the trial court that the probative value of Dowdy's 1982 robbery conviction substantially outweighed its prejudicial effect. Accordingly, the trial court did not err in finding that Dowdy's 1982 conviction would be admissible for impeachment purposes if Dowdy testified.
The trial court instructed the jury as follows:
Instruction...
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