Hopkins v. State, 90-KA-0921

• Citation: 639 So.2d 1247
• Decision Date: 21 October 1993
• Docket Number: No. 90-KA-0921,90-KA-0921
• Parties: Charles Alexander (Charlie) HOPKINS v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 1247

639 So.2d 1247

Charles Alexander (Charlie) HOPKINS v. STATE of Mississippi.

No. 90-KA-0921.

Supreme Court of Mississippi.

Oct. 21, 1993.

Rehearing Denied Aug. 18, 1994.

Douglas C. Stone, Stone & Hayes, Columbus, for appellant.

Michael C. Moore, Atty. Gen., Pat S. Flynn, Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, C.J., and SULLIVAN and McRAE, JJ.

SULLIVAN, Justice, for the Court:

THE FACTS

The trial to determine Charlie Hopkins' guilt or innocence on a charge of sexual battery began on August 30, 1990, in the Circuit Court of Lowndes County. When pre-trial motions were taken up, Hopkins presented a motion in limine to preclude admission, for impeachment use pursuant to M.R.E. 609, of his 1983 conviction of touching a child for lustful purposes. Janice Stockman, a social worker with the Department of Human Services, was called to testify regarding this motion. She stated that Hopkins was known by her agency to be a pedophile and that one general characteristic of pedophiles is an inability to be truthful. The example given concerning a pedophile's inability to tell the truth was the refusal to admit having committed such offenses. When asked whether conviction of a pedophilic crime would reflect on the truthfulness of the individual convicted, Ms. Stockman answered in the affirmative.

After reviewing Peterson v. State, 518 So.2d 632 (Miss.1987), the trial judge found the prior conviction more probative than prejudicial and overruled Hopkins' motion. The following findings were made on the record:

1. The date of the prior conviction was within ten (10) years of the date of the current crime as alleged in the indictment and within ten (10) years of the date of the trial.

2. The prior conviction was for a different crime than that for which Hopkins was currently standing trial, although substantially similar.

3. Pedophiles share a general characteristic of untruthfulness.

4. Credibility in this case was extremely important due to a lack of witnesses and Hopkins' characteristic of untruthfulness was central to his credibility, therefore probative in that respect.

5. The probative value of the prior conviction far outweighed the prejudicial effect and evidence of the conviction would be allowed for impeachment purposes only.

The jury was then returned to the courtroom and the State proceeded with its case-in-chief. Evidence of the prior conviction, via Hopkins' admission on cross-examination that he had been convicted of touching a child for lustful purposes, was used to impeach Hopkins' credibility. A verdict of guilty was subsequently returned. Hopkins was sentenced to twenty-eight (28) years in the Mississippi Department of Corrections. Following denial of his motion for new trial, Hopkins perfected an appeal to this Court. Because we reverse and remand based on one issue presented by Hopkins, we decline to address his remaining assignment of error.

THE LAW

DID THE LOWER COURT ERR IN DENYING HOPKINS' MOTION IN LIMINE TO PRECLUDE ADMISSION OF HIS PRIOR CONVICTION OF TOUCHING A CHILD FOR LUSTFUL PURPOSES, NOTWITHSTANDING THAT IT WAS ALLOWED FOR IMPEACHMENT PURPOSES ONLY?

Prior to the adoption in 1986 of the Mississippi Rules of Evidence, evidence law in this state was composed of various statutes and caselaw. See generally, Staton, Miss. Evidence (2d Ed.), Preface. Before the adoption of the Rules, Mississippi common law had little, if any, restriction on the admissibility of prior criminal convictions. Under Mississippi common law, once an accused took the stand, prior criminal convictions were admissible to affect his credibility. Miss.Code Ann. Sec. 13-1-13 (1972) (previously, Miss.Code of 1942, Sec. 1693; originally, Miss.Code of 1857, Ch. 61, Art. 208). Baker v. State, 307 So.2d 545 (Miss.1975); Allison v. State, 274 So.2d 678 (Miss.1973); Benedetti v. State, 249 So.2d 671 (Miss.1971); Dorroh v. State, 229 Miss. 315, 90 So.2d 653 (1956); Breland v. State, 221 Miss. 371, 73 So.2d 267 (1954); Smith v. State, 217 Miss. 123, 63 So.2d 557 (1953); Scarbrough v. State, 204 Miss. 487, 37 So.2d 748 (1948); Hartfield v. State, 186 Miss. 75, 189 So. 530 (1939); Brown v. State, 96 Miss. 534, 51 So. 273 (1910).

Even though an accused's prior convictions could not be admitted for the purpose of proving aggravating circumstances, they were still admissible to impeach the witness' credibility. Mhoon v. State, 464 So.2d 77 (Miss.1985).

The Federal Rules of Evidence, adopted in 1975, preceded the Mississippi Rules of Evidence by about ten (10) years. The original F.R.E. 609(a) proposed by the United States Supreme Court was modeled after Section 133(a) of Public Law 91-358, enacted in 1970 as part of the District of Columbia code. Moore's Federal Practice, 1993 Rules Pamphlet, Part 2, Federal Rules of Evidence at 232. It stated,

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible 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 or (2) involved dishonesty or false statement regardless of the punishment.

As evidenced by Congressional committee reports and extensive debates, section (1) as proposed by the Court was too wide in scope in the opinion of Congress. The version of F.R.E. 609(a) passed by Congress amended the Court's proposal, adding among other things, the requirement that the trial judge determine the degree of prejudice caused if the prior conviction is admitted.

(a) General rule. 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 the witness 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 the witness 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.

F.R.E. 609(a) (effective October 1, 1987). ¹

Congress felt that admission of evidence of prior crimes for the purpose of affecting a defendant's credibility had a high risk of affecting not only his credibility, but also his propensity to act in conformity with his prior crime. Therefore, it proposed a balancing test to insure that prior convictions could be admitted only if the evidence was more probative than prejudicial.

Crimes involving dishonesty or false statement do not fall under the balancing test of part (a)(1). It is clear from the debate that crimes which involve "dishonesty or false statement" are those which contain dishonesty as an element of its legal meaning, such as perjury. Sen. McClellan, & Sen. Hart, 120 Cong.Rec. 37076-37077 (November 22, 1974), cited in, Louisell and Mueller, Federal Evidence, Vol. 3, at 300-03 (1979). However, crimes which factually could involve deception, but do not require deception for a conviction, are not crimes which involve "dishonesty or false statement" according to Rule 609(a)(2). Id. Therefore, prior convictions of rape, murder, armed robbery, and the like would be admissible only if they pass the prejudicial/probative balancing test of 609(a)(1). Id.

The meaning of crimes involving dishonesty as intended by Congress is further indicated by the Notes of the Committee on the Judiciary, Senate Report No. 93-1277. The committee states,

Therefore, with respect to defendants, the committee agreed with the House limitation that only offenses [which] involved false statement or dishonesty may be used. By that phrase, the committee means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit or falsification bearing on the accused's propensity to testify truthfully.

28 U.S.C.A., Rule 609, Notes of Committee on the Judiciary, Senate Report No. 93-1277. Note to Subdivision (a). (West 1984 & Supp.1993). The House and Senate Conference Committee reiterated this meaning of part (a)(2), that the crimes spoken of are those which involve dishonesty as an element necessary for conviction. 28 U.S.C.A., Rule 609 (West Supp.1993).

Cases interpreting Rule 609(a)(2) have also found that the meaning of crimen falsi was restricted to crimes where deceit was an element. United States v. Smith, 551 F.2d 348 (D.C.Cir.1976). Congressional debate indicates that the Congressmen who adopted this rule were fully aware of this limited meaning of crimes involving dishonesty. Smith, 551 F.2d at 363. The term crimen falsi covered several crimes which rendered a witness ineligible to testify at common law. Id. at 362-362, n. 26. Robbery is not a crimen falsi. Id. Felony theft is not a crime "involving dishonesty or false statement." Coursey v. Broadhurst, 888 F.2d 338, 342 (5th Cir.1989).

Though a few differences exist, the Mississippi Rules of Evidence are generally the same as the Federal Rules of Evidence. In construing the Mississippi Rules of Evidence, this court has generally cited federal caselaw which interpreted the federal rule corresponding with the Mississippi Rule of Evidence at issue in the case. See generally, Johnson v. State, 529 So.2d 577, 587 (Miss.1988).

The balancing test of Rule 609(a)(1), as elaborated upon in the Mississippi case Peterson v. State, involves the consideration of factors which originated in a federal case, Gordon v. United States, 383 F.2d 936 (D.C.Cir.1967) (Burger, J.). Gordon is a pre-rules case which the Seventh Circuit incorporated in United States v. Mahone, 537 F.2d 922 (7th Cir.1976).

Gordon and Mahone were the sources relied upon by this court in Peterson v. State, 518 So.2d 632, 636 (Miss.1987). See also Johnson v. State, 525 So.2d 809 (Miss.1988)...