Dugas v. Felton

• Decision Date: 23 December 1976
• Docket Number: No. 9254,9254
• Citation: 249 N.W.2d 215
• Parties: Ray DUGAS and Janet Dixon, Plaintiffs and Appellees, v. Dean FELTON, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 215

249 N.W.2d 215

Ray DUGAS and Janet Dixon, Plaintiffs and Appellees, v. Dean FELTON, Defendant and Appellant.

Civ. No. 9254.

Supreme Court of North Dakota.

Dec. 23, 1976.

Syllabus by the Court

1. Evidence of a crime involving dishonesty or false statement may be used to impeach a witness under cross-examination, and the trial court has no discretion to prevent its admission.

2. For impeachment upon cross-examination as to a crime committed by the witness, details may not be inquired into beyond the name of the crime, the time and place of conviction, and the punishment.

3. Where witness was convicted of Conspiracy resulting from his conspiracy to commit forgery, and the statute under which the conviction was obtained requires intent that a specific crime be performed, witness may be impeached by inquiring whether he was convicted of Conspiracy to commit forgery.

4. Where trial court erroneously precluded cross-examination of a plaintiff in a wrongful death action as to his conviction of a crime involving dishonesty or false statement, and his testimony was the only substantial evidence of his relationship with the decedent, the error was not harmless.

5. For reasons stated in the opinion, it was not error, in an action by parents to recover damages for the wrongful death of an emancipated, married daughter, for the trial court to give an instruction that pecuniary loss need not be established by proof in dollars and cents and that a substantial loss will be presumed.

Kenneth M. Moran, Jamestown, for plaintiffs and appellees.

Hjellum, Weiss, Nerison, Jukkala & Vinje, Jamestown, for defendant and appellant; argued by Russell G. Nerison, Jamestown.

ERICKSTAD, Chief Justice.

This appeal from a judgment on a jury verdict is taken by the defendant in a wrongful death action. It is urged that the trial court erred in 1) ruling that a partywitness could not be impeached by reference to a felony conviction, 2) instructing the jury that a substantial loss will be presumed in a wrongful death action, and 3) denying the defendant's motion for a mistrial based on alleged improper and prejudicial statements by counsel for plaintiffs in his closing argument. The judgment was on a jury verdict awarding damages, liability having been admitted prior to trial.

Ray Dugas and Janet Dixon brought this wrongful death action under Chapter 32--21, N.D.C.C., to recover damages suffered by them resulting from the death of their daughter, Sherry Lee Zimbelman, who, along with her husband and infant son, was killed, on May 9, 1975, when the automobile in which she was riding was involved in a head-on collision with an automobile driven by the defendant, Dean Felton. Felton also died as a result of the collision.

Parties representing Felton's interests admitted liability, so the case went to trial solely to determine the amount of damages.

Shortly after trial began, counsel for Felton discovered that Dugas had been convicted in Oregon, in 1974, of conspiracy to commit forgery, a felony under the laws of that state.

The court ruled, upon motion of Dugas' counsel, that evidence of this conviction could not be used to impeach Dugas' testimony. Felton's counsel, at that time, made an offer of proof of copies of various documents relating to Dugas' conviction, and urges that this evidence should have been admitted.

These documents, before us as Court's Exhibit 1, include a copy of a Judgment of the Circuit Court of the State of Oregon for Multnomah County, finding Raymond Louis Dugas guilty of the crime of conspiracy, a violation of the following Oregon statute:

'(1) A person is guilty of criminal conspiracy if with the intent that conduct constituting a crime punishable as a felony or a Class A misdemeanor be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.' Oregon Revised Statutes § 161.450(1).

Under present North Dakota law, evidence of any criminal conviction may be used to impeach a witness. State v. Moe, 151 N.W.2d 310 (N.D.1967); Killmer v. Duchscherer, 72 N.W.2d 650 (N.D.1955).

Under the Federal Rules of Evidence for United States Courts and Magistrates, a somewhat different rule applies:

'For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.' Fed. Rules Evid. Rule 609(a), 28 U.S.C.A.

Federal Rule 609(a) is quite similar to its counterpart in the North Dakota Rules of Evidence recommended by the Joint Committee of the State Bar Association of North Dakota and the Judicial Council of North Dakota and adopted by this court, to be effective at a date to be determined later. ¹

Under this rule, crimes used for impeachment are divided into two classes: (1) felonies and (2) crimes involving dishonesty or false statement. Crimes not involving these elements give rise to discretion in the trial court as to admissibility. The Conference Committee Notes to the Federal Rules have this to say in explanation of the separate classification:

'The admission of prior convictions involving dishonesty and false statement is not within the discretion of the Court. Such convictions are peculiarly probative of credibility and, under this rule, are always to be admitted. Thus, judicial discretion granted with respect to the admissibility of other prior convictions is not applicable to those involving dishonesty or false statement.' H.R.Rep.No. 1597, 93rd Cong., 2d Sess. (1974), U.S. Code Cong. & Admin.News 1974, pp. 7051, 7103, reprinted following Fed.Rules Evid.Rule 609, 28 U.S.C.A.

Therefore, under present North Dakota case law and Proposed Rule 609(a), evidence of a crime involving dishonesty or false statement, such as forgery, may be used to impeach a witness under cross-examination.

The scope of the inquiry is, however, limited:

'We are of the opinion that for the purpose of impeachment the most reasonable practice, and the one generally prevailing, minimizing prejudice and distraction, is that beyond the name of the crime, the time and place of conviction, and the punishment, further details may not be inquired into. McCormick, Evidence § 43, at 92--93 (1954).' State v. Moe, supra, at 320.

What is unclear in this case is just what is the 'name of the crime' which may be inquired into. Counsel for Dugas states in his brief that he would advise his client to answer 'no' when asked if he had been convicted of Conspiracy to commit forgery, since the Oregon court conviction is of Conspiracy.

This is a somewhat anomalous situation, as the name of a crime as spelled out in a statute generally is an indication of the culpability requisite for guilt and would impart sufficient information for a jury to consider it in determining a witness's credibility. No such indication is present in this conspiracy conviction, as the intent element necessary for such a conviction depends upon the crime the conspiracy is entered into to commit. Oregon Revised Statutes § 161.450, Supra.

Court's Exhibit 1 includes a copy of the indictment leading to Dugas' conviction, which charges that the conspiracy was entered into with the intent to commit Forgery in the First Degree. Oregon Revised Statutes § 165.013(2).

For the purposes of impeachment, we believe that it would have been proper to describe the crime in this case as the crime of Conspiracy to commit forgery. Permitting the cross-examiner that leeway does not violate the policy of State v. Moe, supra, as prejudice and distraction would be kept to a minimum.

Having concluded as we have, it would have been improper for Dugas to have denied that he had been convicted of the crime of conspiracy to commit forgery.

Accordingly, we find that the trial court erred in its ruling that defense counsel could not impeach Dugas by bringing out his conviction of conspiracy to commit forgery.

Plaintiffs contend, however, that any error in refusing to admit this evidence is harmless error and should not result in a reversal.

The determination of damages in this action depended almost entirely on the jury's perception of each plaintiff's relationship with Sherry Zimbelman. Virtually all evidence submitted by plaintiffs involved each parent's relationship...