Mills v. Estelle, 76-2434

• Decision Date: 12 May 1977
• Docket Number: No. 76-2434,76-2434
• Citation: 552 F.2d 119
• Parties: 2 Fed. R. Evid. Serv. 1109 James William MILLS, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 119

552 F.2d 119

2 Fed. R. Evid. Serv. 1109

James William MILLS, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections,

Respondent-Appellant.

No. 76-2434.

United States Court of Appeals, Fifth Circuit.

May 12, 1977.

John Hill, Atty. Gen., David M. Kendall, Jr., 1st Asst. Atty. Gen., Joe B. Dibrell, Robert E. De Long, Jr., Asst. Attys. Gen., Joe H. Thrash, Austin, Tex., for respondent-appellant.

Ted Redington, Staff Counsel for Inmates, Texas Dept. of Corrections, Huntsville, Tex., for petitioner-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before TUTTLE, GOLDBERG and CLARK, Circuit Judges.

TUTTLE, Circuit Judge:

A Texas jury convicted appellee Mills of stealing a trailerload of apples. Pursuant to the Texas enhancement statute, he was sentenced to life imprisonment, for this was his third conviction. The United States district court granted Mills' habeas corpus petition on the ground that the state trial court's refusal to admit evidence of a prosecution witness' prior conviction denied Mills his sixth amendment right to confront the witnesses against him. The State of Texas appeals.

I. CONFRONTATION AND CREDIBILITY

This Court confronts a constitutional question. We need not attempt to conclude the running debate about the evidentiary value and/or prejudicial effect of employing evidence of prior crimes in an effort to impeach a witness. Obviously, prior crime evidence is prejudicial. First, a jury is bound to be less reluctant to convict a person whom they know to have been convicted of other crimes by other juries. Second, if used to impeach a defense witness, prior crime evidence risks establishment of guilt by association. Third, if used against a prosecution witness, prior crime evidence invites a jury improperly to weight testimony according to their perceptions of the relative infamy associated with a particular crime. But just as obviously, prior crime impeachment evidence is relevant in evaluating credibility: a person whose prior criminal record evinces a disrespect for the social norms evidenced by positive law is unlikely to have the normal witness' respect for the necessity of giving truthful testimony.

Rules of evidence sometimes attempt to establish a bright-line balance between expected prejudice and undeniable relevance. Federal Rule of Evidence 609(b), for example, generally prohibits the use of prior convictions for impeachment purposes when the prior conviction or release from confinement occurred more than ten years before the witness testifies in the current trial. ¹

The implicit judgment of the Federal Rules is that evidence of convictions over a decade old is generally more prejudicial to the side which calls the witness than it is helpful to the jury in evaluating the witness' credibility. Alternatively, the ten-year time limit could be conceptualized as a policy statement that if an offender keeps his record unblemished for ten years, he will be presumed to be as truthful as a normal citizen, i. e., that the ten-year period is evidence that the inference supporting use of prior crime impeachment evidence (a lawbreaker is likely to lie) can no longer be drawn about a certain person. It should be understood, however, that this judgment is normative rather than empirical: that is, Rule 609(b) stands for the proposition that a jury should not be influenced by prior crime impeachment evidence over ten years old, not that they would not be influenced by such evidence.

Texas has made a similar judgment. Article 38.29 of the Texas Code of Criminal Procedure provides that:

"(t)he fact that a defendant in a criminal case, or a witness in a criminal case, is or has been charged by indictment, information or complaint with the commission of an offense against the criminal laws of this State, or the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired."

Tex.Code Crim.P.Ann. art. 38.29.

The effect of this rule is that prior convictions may not be used to impeach testimony of either prosecution or defense witnesses (including the defendant) if the prior conviction resulted in probation which has been successfully completed. If the witness is still on probation, evidence of the prior conviction may be introduced.

The lynchpin of the state's case in the trial court was the testimony of one Chandler. Chandler testified (1) that he had observed Mills as passenger in a car, driven by one Norris, which was towing the trailerload of stolen apples; and (2) that he had observed Mills, Norris and several others unloading the apples, apparently for sale to one Winn. Defendant Mills called his wife, Norris, and Winn, all three of whom provided exculpatory testimony. The prosecutor correctly framed the case as a credibility choice for the jury:

"This case boils down to one thing and one thing only, and that is who you are going to believe. If you believe Mr. Chandler, this man is guilty as charged in the indictment. If, on the other hand, you believe the witnesses that the Defense has called and disbelieve Mr. Chandler, you are going to have to find him not guilty."

The wife's credibility came under severe attack: she had testified that Mills was with her at a time when the evidence conclusively showed he was already in police custody. The prosecutor also adverted to Norris' prior convictions for burglary (which were admissible under the Texas statute), and suggested that since Norris had already been convicted of stealing the apples, his statement that Mills was not with him in the car cost him nothing. Finally, the prosecutor challenged Winn's testimony as inconsistent with Norris' account of the crime, and as motivated by Winn's own desire to dampen any suspicion that he had knowingly received stolen property.

When the defense attempted to counter this assault on its witnesses' credibility by introducing evidence that, some eleven years prior to trial, Chandler had been convicted of the felony of stealing from a coin-operated machine, the trial court invoked the bar of article 38.29. As a first offender, Chandler had been put on probation and had successfully completed his probation: evidence of his prior offense was therefore inadmissible for impeachment purposes under the Texas statute. The question for this Court is whether the state's rule which equates the credibility of testimony given by a successful probationer with that of a normal citizen ² can be enforced without trenching upon appellee's constitutional right to confront the witnesses against him.

II. BEYOND DAVIS: FROM BIAS TO GENERAL IMPEACHMENT

Our point of departure is Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In that case, the defendant had been convicted of grand larceny and burglary, mainly on the testimony of a witness who claimed to have seen the defendant in an area where a stolen safe was found. This testimony was bolstered by evidence showing that paint chips and insulation particles found in the defendant's car matched those from the safe. Defense counsel wanted to introduce evidence proving that the witness, a juvenile, was currently on probation for burglary. The witness might well have been a suspect himself, for the safe was found on his stepfather's farm. Defense counsel contended that the witness' possible bias a desire to help the police and thereby improve his tenuous position with the law, or to turn suspicion away from himself should be made known to the jury. The state argued that its interest in rehabilitating juveniles justified exclusion of the evidence concerning the witness' criminal record.

The Supreme Court disagreed with the state, holding that "the state cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State's interest in the secrecy of juvenile criminal records." 415 U.S. at 320, 94 S.Ct. at 1112. Moreover, despite the incriminating physical evidence, the Court seemed unwilling to engraft a "harmless error" exception on its holding that a prior conviction could be introduced in order to show bias.

"We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to...