Fletcher v. State, 176S28

• Docket Nº: No. 176S28
• Citation: 340 N.E.2d 771, 264 Ind. 132
• Case Date: January 29, 1976
• Court: Supreme Court of Indiana

Page 771

340 N.E.2d 771 264 Ind. 132 William Henry FLETCHER, Appellant,
v.
STATE of Indiana, Appellee. No. 176S28. Supreme Court of Indiana. Jan. 29, 1976.

[264 Ind. 133]

Page 772

David F. McNamar, John Muller, Steers, Klee, Sullivan, McNamar & Rogers, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

Page 773

HUNTER, Justice.

Defendant-appellant William Henry Fletcher was convicted of committing a felony (robbery) while armed. The Court of Appeals in Fletcher v. State, (1975) Ind.App., 323 N.E.2d 261, affirmed the conviction. Appellant petitions us to transfer this cause on several grounds. We grant transfer to review appellant's claim that the decision of the Court of Appeals contravenes the precedent of Dexter v. State, (1973) Ind., 297 N.E.2d 817.

I.

In Dexter we reversed a conviction for aggravated assault and battery where the state, over objection, was permitted to cross-examine Dexter as to his prior convictions for assault. In reversing Dexter's conviction, we unanimously relied upon the rule enunciated in Ashton v. Anderson, (1972) 258 Ind. 51, 279 N.E.2d 210, that for impeachment purposes the only prior convictions which are [264 Ind. 134] admissible are those for crimes involving dishonesty or false statement and those for crimes which by statute would have rendered a witness incompetent.

At his bench trial, appellant took the stand in his own behalf. On cross-examination, the first question propounded was: 'Mr. Fletcher, were you convicted of theft in January, 1972?' Appellant's objection, the substance of which was premised upon our holding in Dexter, supra, was overruled.

The Court of Appeals recognized appellant's argument, but found it unnecessary to review the merits. The reason assigned for nonreview was the presumption obtaining in judge-tried cases that the trial judge knows the rules of evidence and will ignore evidence improperly admitted in reaching his judgment. The presumption has no place in this case. Unlike King v. State, (1973) Ind.App., 292 N.E.2d 843, 845, where 'defendant-appellant stated no reasons or grounds for his respective objections,' here the appellant specifically apprised the court that he was relying on a ruling of this Court and then proceeded to state the substance of such holding for the trial court. It is a curious ratiocinative process which presumes that the trial court will disregard that which it holds admissible over specific objection. We therefore reject the application of the presumption herein, and proceed to review the merits.

Prior to Ashton v. Anderson, supra, admission of previous convictions for impeachment purposes was held to be within the sound discretion of the trial court. In Ashton we noted the illogic of assuming 'that a conviction of any crime reflects, ipso facto, on the credibility of the witness as to truth and veracity.' 258 Ind. 51, 60, 279 N.E.2d 210, 215. We further elaborated:

'Simply stated, either the particular criminal conviction reflects on the witness' credibility for truth and veracity, or it does not. If the particular conviction is for a crime which has a tendency to reflect on the individual's credibility for truth and veracity, such evidence should not be excluded; if the prior conviction is for a crime which has no bearing [264 Ind. 135] whatsoever on his credibility for truth and veracity, such evidence should not be admitted.'

258 Ind. 51, 61, 279 N.E.2d 210, 216. The only exception to Ashton's guiding principle is mandated by IC 1971, 34--1--14--14, which permits impeachment by proof of infamous crimes which would have rendered the witness incompetent at common law: namely, treason, murder, rape, arson, burglary, robbery, kidnapping, forgery, and willful and corrupt perjury.

Thus, the Ashton decision has generally been regarded as having two branches. The first branch allows proof of prior convictions which relate to the witness's propensity to tell the truth--in the words of Ashton, 'crimes involving dishonesty or false statement.' See, e.g. Dexter v. State, supra; Lewis v. State, (1973) Ind.App.,

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299 N.E.2d 193; Hannah v. State, (1974) Ind.App., 311 N.E.2d 838; Mayes v. State, (1975) Ind.App., 318 N.E.2d 811. The present case falls under this first branch.

The second branch of Ashton recognizes proof of prior conviction of infamous crimes. These convictions may relate to the individual's propensity for truth telling, as in the case of the conviction for willful and corrupt perjury. Most infamous crimes, however, such as rape, murder and treason, bear no relationship to the convicted witness's truthfulness. Because this non-relationship cuts deeply against the grain of Ashton, we believe that the second branch should be limited exclusively to proof of the infamous crimes enumerated above, and should not be judicially extended to permit proof of prior convictions of lesser included offenses. ¹ Such extension should come, if at all, from the legislative branch.

[264 Ind. 136] Turning to the case at bar, the determination of whether appellant's prior theft conviction was admissible depends upon whether under Ashton such conviction may be said to involve 'dishonesty or false statement.' The determination is not an easy one. Conduct which would sustain a conviction for theft under our Offenses Against Property Act, IC 1971, 35--17--5--1 et seq., Ind.Ann.Stat. § 10--3028 (Burns 1975 Supp.) et seq., would have previously sustained a conviction for any of several crimes including trand larceny, petit larceny, larceny by trick, obtaining property by false pretenses, blackmail, embezzlement, and receiving stolen property. If we examine the elements of these crimes, particularly focusing upon the method of the wrongful taking, we will find some which directly correlate with the propensity of the witness for truth and veracity. In others, however, any relation between the offense and the witness's inclination to tell the truth is tenuous or nonexistent. These differences, however, are not considerations which may readily be taken into account. There is today but one conviction possible for any of these crimes and that is theft. We reject as too cumbersome any procedure which would require the trial court to probe [264 Ind. 137] about the record of the witness's prior theft conviction to ascertain the common law equivalent, prior to admitting any evidence of the conviction at trial. We therefore hold that proof of prior theft...