State v. Bennett

• Decision Date: 28 August 1979
• Docket Number: No. 77-387-C,77-387-C
• Citation: 122 R.I. 276,405 A.2d 1181
• Parties: STATE v. Charles A. BENNETT. A.
• Court: Rhode Island Supreme Court

Page 1181

405 A.2d 1181

122 R.I. 276

STATE v. Charles A. BENNETT.

No. 77-387-C.A.

Supreme Court of Rhode Island.

Aug. 28, 1979.

[122 R.I. 287] Dennis J. Roberts II, Atty. Gen., Joel D. Landry, Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Barbara Hurst, Chief App. Atty., John A. MacFadyen III, Nicholas L. Colangelo, Asst. Public Defenders, Providence, for defendant.

OPINION

WEISBERGER, Justice.

The defendant, Charles Bennett, was convicted by a jury in the Superior Court of rape, kidnapping, and assault with a dangerous weapon. He has appealed to this court from the judgment of conviction.

The sole argument offered by defendant is that the trial justice improperly refused to rule on an oral motion in limine made by defendant at the close of the state's case. ¹ The defendant sought by means of this motion " to preclude the State from using certain convictions as an impeachment tool against this defendant should he decide to take the witness stand in this particular case." Two reasons were offered in support of the motion. First, defendant's counsel stated that defendant's criminal record began in 1945 and that defendant honestly could not remember if he was represented by counsel. ² The second ground was that the convictions prior to 1953 were remote.

The trial justice stated, however, that he knew "of no part of the Rules of Criminal Procedure which provides for this kind of motion." The trial justice also stated that in his judgment defendant was seeking a preliminary ruling or advisory opinion as to how the court would rule on an objection to the admissibility of the convictions should defendant take the stand and be confronted with the prior convictions. The trial justice stated defendant was not entitled to a ruling until that time. Accordingly, the trial justice refused to entertain defendant's oral motion in limine.

While we have never specifically considered the propriety of the motion in limine, we believe that the trial justice had inherent power to rule on the motion. In this state, the scope of cross-examination is subject to control in the trial court's sound discretion. State v. Eckhart, 117 R.I. 431, 367 A.2d 1073 (1977); State v. Mattatall, 114 R.I. 568, 337 A.2d 229 (1975). Because one basic purpose of cross-examination is impeachment, there can be no fixed limit to the scope of that examination and the scope must be left to judicial discretion. State v. Crescenzo, 114 R.I. 242, 332 A.2d 421 (1975). This discretion should foster a search for the truth by giving reasonable latitude to the purpose of cross-examination while preserving a fair and orderly trial. State v. Frazier, 101 R.I. 156, 221 A.2d 468 (1966).

By statute in this state, no person is deemed an incompetent witness because of conviction of a crime but "conviction or sentence for any crime or misdemeanor may be shown to affect his credibility." G.L. 1956 (1969 Reenactment) § 9-17-15. Admission of evidence of a conviction or sentence for impeachment purposes is generally mandatory under this section. We have held, however, that the trial justice has the discretion to exclude evidence of remote convictions offered to impeach a witness' credibility. In State v. Lombardi, 113 R.I. 206, 319 A.2d 346 (1974), we declined to adopt a balancing theory under which evidence of a prior conviction would be excluded in the trial justice's discretion when he determined that the prejudicial effect of such evidence outweighed the probative value. In so doing we stated that:

"Here, we have over the years followed a practice which permits a witness to be impeached by evidence of a prior conviction irrespective of whether that conviction was for a crime involving 'moral turpitude' affecting credibility, or was likely to result in disproportionate prejudice. The sweep of our broad practice has, however, been somewhat narrowed by our insistence that the prior conviction not be too remote in time, and that at the time it is received in evidence the jury be instructed that its admission is for the sole purpose of impeaching credibility and is otherwise without probative value." Id. at 208-09, 319 A.2d at 347.

The discretion to exclude evidence of remote convictions does not flow, however, from § 9-17-15. In Pedorella v. Hoffman, 91 R.I. 487, 165 A.2d 721 (1960), we stated that there is no hard and fast rule requiring the trial justice to sustain an objection on the ground of remoteness to a question aimed at impeaching a witness by means of a prior conviction. We observed that § 9-17-15 did not provide the basis for such an objection but stated that the better rule was to leave the matter to the sound discretion of the trial court. We also noted that the exercise of discretion was subject to review by this court only for abuse of discretion. For example, in Mercurio v. Fascitelli, 107 R.I. 511, 268 A.2d 427 (1970), we stated that the exclusion for remoteness of four convictions for violation of the motor vehicle code occurring less than 3 years before trial would be a clear abuse of discretion.

Thus, the discretion of a trial justice to exclude evidence of remote prior convictions is well established. The question is when that discretion may be exercised. In State v. Lombardi, supra, the trial justice denied a motion made by the defendant after the state had rested to prohibit the state from using a prior narcotics conviction for impeachment purposes. We stated in regard to this motion that:

"The state does not question the practice whereby defendant obtained an advance ruling on whether, if he took the stand, he could be impeached by his prior criminal record. While to our knowledge that procedure has not heretofore been followed in this state, it apparently has been used elsewhere. United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968), Cert. denied, 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed.2d 480 (1969); Barber v. United States, 129 U.S.App.D.C. 193, 392 F.2d 517 (D.C.Cir.1968); See United States v. Stroud, 474 F.2d 737, 739 (9th Cir.), Cert. denied, 412 U.S. 930, 93 S.Ct. 2759, 37 L.Ed.2d 157 (1973)." 113 R.I. at 207 n.2, 319 A.2d at 347 n.2.

The type of motion made by defendant in this case has been considered by a number of state and federal courts. Although the admissibility in federal courts of prior convictions for impeachment purposes is governed by the specific provisions of Fed.R.Evid. 609, the treatment accorded to the motion in limine in federal courts is instructive. See generally 3 Weinstein & Berger, United States Rules, PP 609(01) to 609(03b) (1978 ed.). For example, in United States v. Oakes, 565 F.2d 170 (1st Cir. 1977), the defendant was convicted of possession and transfer of an unregistered machine gun. The district court judge, however, refused to rule before the defendant's opening on whether the prosecution could use evidence of a prior manslaughter conviction to impeach the defendant's credibility. When the defendant took the stand, the trial court ruled that the evidence was admissible. On appeal, the Court of Appeals for the First Circuit stated that the admission of evidence of the prior conviction had not been an abuse of discretion. The court also stated, however, that the trial court had the discretion to make an advance ruling on the admissibility of such evidence.

"The fact that the rule (Fed.R.Evid. 609(a)) speaks of using the impeaching conviction during cross-examination does not, in our view, indicate any restriction on making an advance ruling so long as the court has enough information to make the mandated determination as to probative value. Indeed, while we emphasize that the timing is discretionary, we think a court should, when feasible, make reasonable efforts to accommodate a defendant by ruling in advance on the admissibility of a criminal record so that he can make an informed decision whether or not to testify. The court's ruling 'may have a significant impact on opening statements and the questioning of witnesses' (citation omitted).

"Having stressed the general desirability of giving a ruling on the admissibility of prior convictions in advance of actual testimony (whether during pre-trial proceedings, at the close of the Government's case, or before the defendant or other affected witness takes the stand), we nevertheless refrain from making this an inflexible rule." Id. at 171-72.

Similarly, in United States v. Cavender, 578 F.2d 528 (4th Cir. 1978), the defendant made a pretrial motion pursuant to Fed.R.Evid. 609(b) for an order protecting him from cross-examination with respect to convictions more than 10 years old. The motion was renewed at the conclusion of the government's case, but the trial judge again denied the motion. As a result the defendant chose not to testify. On appeal, the court held that the trial justice had abused his discretion in allowing the use of such evidence. The court also stated, however, that it was not improper for the defendant to move in advance of trial to obtain a ruling on the admissibility of prior convictions for impeachment. But see United States v. Johnston, 543 F.2d 55 (8th Cir. 1976) (defendant not entitled to ruling before taking stand).

The New York Court of Appeals faced the question in People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974). In that case, immediately prior to the selection of the jury, the defendant's counsel made a motion to the trial court requesting the court in its discretion to prohibit the impeachment of the defendant by prior crimes and convictions if he decided to testify. The trial court permitted the use of certain crimes but excluded others. The court of appeals upheld these rulings and specifically considered the propriety of the motion. The court emphasized that the nature and extent of cross-examination were subject to the discretion of the trial judge. The court continued and stated that:

"We now hold that in exercise of that discretion a Trial Judge may, as the...