Giles v. State
| Decision Date | 05 August 1998 |
| Docket Number | No. 90A05-9712-CR-526,90A05-9712-CR-526 |
| Citation | 699 N.E.2d 294 |
| Parties | Robert Stephen GILES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Robert Stephen Giles appeals from two convictions for theft, class D felonies. 1 Giles presents three issues on appeal which we restate as:
I. Whether the trial court abused its discretion by allowing Giles to be impeached by a conviction over ten years old under Indiana Evid.R. 609(b).
II. Whether the trial court abused its discretion by admitting evidence of prior bad acts under Indiana Evid.R. 404(b).
III. Whether the trial court erred when it refused Giles' tendered instruction on mistake of fact.
We reverse and remand.
The facts most favorable to the verdicts are that Giles, d.b.a. Toolbox, opened a checking account with a $100 deposit on April 16, 1993. The account had a negative balance by June 1, 1993 and throughout the month of June. Giles was aware of the negative balance, but deposited no money into the account. Nevertheless, on June 10, 1993 and June 21, 1993, Giles cashed two checks at Scott's Grocery Store payable to himself from Toolbox as payroll checks. The bank refused to honor the checks for insufficient funds. Scott's sent notice to Giles that the checks were not honored, but Giles did not respond or reimburse the store. The Toolbox account was closed by the bank on June 25, 1993. Based on these two checks, Giles was charged and convicted of two counts of theft. This appeal ensued.
During cross-examination of Giles, the State was permitted to impeach him with a 1976 conviction for uttering a forged instrument. 2 Giles contends that it was error for the prosecution to introduce this evidence since he was not provided sufficient advance written notice of the State's intent to impeach him with this conviction as required by Ind. Evidence Rule 609(b).
The relevant portion of Evid.R. 609 provides:
(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.
Evid.R. 609. We review a trial court's decision regarding whether to admit a conviction over ten years old under an abuse of discretion standard. Schwestak v. State, 674 N.E.2d 962, 964 (Ind.1996).
It is undisputed that the State did not provide Giles with any advance written notice calculated to comply with Evid.R. 609(b). Nevertheless, the State contends the habitual offender charge it filed, which contained the 1976 conviction, sufficiently advised Giles of the State's intent to impeach him with the 1976 conviction. We disagree.
Initially, we note that the habitual offender charge was dropped, thereby eliminating the use of the 1976 conviction upon which the State relies. Even had the habitual offender charge not been dropped, we fail to see how the filing of an habitual offender charge should cause a defendant to conclude that stale convictions will be used to impeach him. Commentary to Evid.R. 609(b) recommends that the required notice include: (1) the date of the conviction; (2) the jurisdiction; (3) the offense; and (4) the specific facts and circumstances alleged to justify admission. Evid.R. 609 Committee Commentary Subsection (b). While the habitual offender charge may have contained the first three parts, the fourth and most important piece of information is absent. The entire purpose of providing advance written notice of intent to use a stale conviction is to allow the adverse party "a fair opportunity to contest the use of such evidence." Evid.R. 609(b). Evid.R. 609(b) excludes stale convictions unless the proponent of the evidence demonstrates that its probative value substantially outweighs its prejudicial effect. Evid.R. 609(b); Dowdy v. State, 672 N.E.2d 948, 951 (Ind.Ct.App.1996), reh. denied, trans. denied. A defendant who received proper notice would thus direct his arguments and research toward prejudice and probative value under 609(b), neither of which is any use in defending against an habitual offender charge. In other words, the habitual offender charge would not motivate a defendant to take a defensive posture which would be useful in contesting stale, impeaching convictions. Since the notice requirement of 609(b) is intended to provide a litigant with a fair opportunity to contest the use of dated convictions, 3 notice which does not so motivate a litigant is no notice at all. Accordingly, we conclude that Giles did not receive sufficient advance notice of the State's intent to impeach him with the 1976 conviction.
No Indiana case has addressed the notice provision of Evid.R. 609(b) nor the ramifications of failing to provide notice. However, the language of 609(b) is quite clear as to the result of failing to provide adequate notice. "[E]vidence of a conviction more than ten years old ... is not admissible unless the proponent gives to the adverse party sufficient advance written notice...." Evid .R. 609(b) (emphasis added). Too, since Indiana has adopted the federal rule's approach to the use of stale convictions for impeachment, Evid.R. 609 Committee Commentary Subsection (b), federal law, although not binding, is persuasive. Dowdy, 672 N.E.2d at 951.
District court decisions prohibiting the use of stale convictions for impeachment purposes due to lack of notice have been uniformly upheld. A "district court's ruling that the proposed impeachment would not be permitted because [the proponent] failed to provide advance notice to the [adverse party] is unassailably correct." United States v. Colletti, 984 F.2d 1339, 1343 (3d Cir.1992); see also United States v. Vgeri, 51 F.3d 876, 880 (9th Cir.1995); United States v. Peak, 856 F.2d 825, 830 (7th Cir.1988), cert. denied, 488 U.S. 969, 109 S.Ct. 499, 102 L.Ed.2d 535 (1988); United States v. Word, 806 F.2d 658, 666 (6th Cir.1986), cert. denied 480 U.S. 922, 107 S.Ct. 1383, 94 L.Ed.2d 697 (1987). It is considered error where, as in this case, convictions over ten years old are admitted without the proper notice. Powell v. Levit, 640 F.2d 239, 241 (9th Cir.1981), cert. denied 454 U.S. 845, 102 S.Ct. 160, 70 L.Ed.2d 131 (1981); United States v. Gilliland, 586 F.2d 1384, 1390 (10th Cir.1978). Contra, Sloman, 909 F.2d 176. We agree with Powell and Gilliland and also conclude that it is error to permit the impeaching of a witness with a conviction over ten years old when the proponent of the evidence has failed to provide the adverse party with proper notice under 609(b).
We also note that the State did not proffer any argument demonstrating that the probative value of the stale conviction outweighed its prejudicial effect. Predictably then, neither did the trial court make any finding regarding, or otherwise demonstrate that it considered, the probative value of the 1976 conviction relative to its prejudicial effect. The legislative history of FED .R.EVID. 609(b) evidences Congress's belief that stale convictions have little, if any, probative value on the issue of credibility, and that convictions more than ten years old should be admitted very rarely and only in exceptional circumstances. United States v. Felix, 867 F.2d 1068, 1073 (8th Cir.1989); United States v. Sims, 588 F.2d 1145, 1147-48 (6th Cir.1978). Accordingly, Evid.R. 609(b) is biased against admissibility, Dowdy, 672 N.E.2d at 951, and the general rule is that stale convictions are not admissible. Schwestak, 674 N.E.2d at 964; see also United States v. Estes, 994 F.2d 147, 149 (5th Cir.1993); United States v. Cathey, 591 F.2d 268, 275 (5th Cir.1979). In effect, Rule 609(b) creates a rebuttable presumption that convictions over ten years old are inadmissible for impeachment purposes. Dowdy, 672 N.E.2d at 951; Cathey, 591 F.2d at 275; Sims, 588 F.2d at 1150. Thus, the burden is on the proponent of the evidence to demonstrate that the probative value of the evidence supported by specific facts and circumstances substantially outweighs its prejudicial effect. Dowdy, 672 N.E.2d at 951; United States v. Beahm, 664 F.2d 414, 418 (4th Cir.1981). Too, the trial court must engage in a balancing test on the record before the admission of a stale conviction is permitted. Estes, 994 F.2d at 149; Beahm, 664 F.2d at 417-18; Gilliland, 586 F.2d at 1390. In this case, the State offered no argument supported by specific facts and circumstances as to why the probative value of the 1976 conviction substantially outweighed its prejudicial effect, and the trial court did not engage in the required balancing analysis. It is error to admit stale convictions under these circumstances. See United States v. Acosta, 763 F.2d 671, 695-96 (5th Cir.1985), cert. denied 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 148 (1985); Beahm, 664 F.2d at...
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