State v. Doppler

• Decision Date: 04 April 2013
• Docket Number: No. 20120198.,20120198.
• Citation: 828 N.W.2d 502,2013 ND 54
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Thomas DOPPLER, Sr., Defendant and Appellant.
• Court: North Dakota Supreme Court

828 N.W.2d 502

2013 ND 54

STATE of North Dakota, Plaintiff and Appellee

v.Thomas DOPPLER, Sr., Defendant and Appellant.

No. 20120198.

Supreme Court of North Dakota.

April 4, 2013.

James Allen Hope, Assistant State's Attorney, Dickinson, ND, for plaintiff and appellee.

Carey Ann Goetz, Bismarck, ND, for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Thomas Doppler appeals a district court judgment of conviction for possession of methamphetamine and possession of drug paraphernalia after a jury trial. Doppler argues the district court abused its discretion by admitting evidence of Doppler's prior felony convictions. We reverse and remand for a new trial, concluding Doppler's substantial rights were affected by the improper admission of Doppler's prior convictions.

I

[¶ 2] Doppler's apartment was searched on May 18, 2011. The search was supervised by Doppler's probation officer and was conducted by Dickinson Police Department officers. The officers discovered a small amount of methamphetamine as well as two glass pipes with traces of methamphetamine. Doppler was convicted of possession of a controlled substance and possession of drug paraphernalia, both class C felonies. He was sentenced to five years imprisonment with two years suspended and supervised probation.

[¶ 3] Doppler testified at trial. During cross-examination, the State asked, “Mr. Doppler, isn't it true that you are a convicted felon?” Doppler's counsel made no objection, and Doppler answered, “Yes.” The State then asked, “And what is—what is the date of the most recent conviction?” Doppler's counsel objected and stated, “Your Honor, I am going to object as to the relevance of his criminal history in this matter.” The State replied, “I believe it reflects clearly on his credibility and is permitted by the rule.” Doppler's counsel stated, “Your Honor, I don't believe the door has been opened.” The district court stated, “When was the alleged—well we're going to have to establish a record please approach the bench counsel. The objection is overruled. You may proceed.” The trial transcript did not contain the conversation that occurred between the court and counsel. The State asked Doppler about the dates of the two felony convictions. Doppler testified one felony conviction occurred in 2004 and was the basis for his probation and the other conviction occurred prior to 2004. The State also highlighted the convictions during its closing argument.

[¶ 4] The trial transcript of the jury trial was filed as part of this appeal. Appellate briefs were filed, and oral arguments were held on October 11, 2012. The case was taken under advisement. This Court directed the district court to prepare a transcript or audio recording of the bench conference missing from the original transcript or, in the alternative, to prepare a stipulation of the bench conference from the best available means, including counsel's and court's recollection. SeeN.D.R.App.P. 10(h).

[¶ 5] The supplemental transcript was prepared from the audio recording. The transcript reflects the district court stated, “Now Rule 609 says that if crime was punishable in excess of one year, and the evidence that he was convicted of a crime. What is it?” The remaining portion of the bench conference was inaudible and could not be transcribed. The district court held a hearing with counsel present to produce a stipulation of what transpired during the bench conference and provided a transcript of that hearing to this Court. The district court noted the recording of the bench conference clearly reflected the court referencing Rule 609 and inquiring whether the crime of which Doppler had been convicted involved a punishment of more than one year. The State said Doppler had been convicted of possession of drugs in Texas, Washington and North Dakota. The State argued the convictions go to the credibility of the witness, though the district court was unable to say with certainty that the word “credibility” was used. The district court could not remember anything Doppler's counsel said. The district court independently recalled being aware of relevance and prejudice issues but could not recall exactly what was said.

[¶ 6] Doppler's counsel offered her recollection of the bench conference on the record. She recalled that the State argued the evidence went to Doppler's credibility and that Rule 609 was referenced. She recalled arguing “under the 401/403 balancing test that [evidence of prior convictions] was more prejudicial than—than probative.” She recalled the district court referencing Rule 609 and the State's counsel saying he would mention the felony convictions, but would not identify the nature of the convictions. Doppler's counsel also said the district court engaged in some discussion of Rule 401 and Rule 403 involving balancing the probative value of the evidence against the prejudice to the defendant.

II

[¶ 7] Doppler argues the district court erred in admitting evidence of his prior convictions. “The district court exercises broad discretion in determining whether to admit or exclude evidence, and its determination will be reversed on appeal only for an abuse of discretion.” State v. Chisholm, 2012 ND 147, ¶ 10, 818 N.W.2d 707. “A district court abuses its discretion in evidentiary rulings when it acts arbitrarily, capriciously, or unreasonably, or it misinterprets or misapplies the law.” Id.

[¶ 8] The admission of evidence of prior convictions for impeachment is governed by N.D.R.Ev. 609(a), which states:

“(a) For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime must be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime must be admitted if the court determines that the probative value of admitting that evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime must be admitted regardless of the punishment, if the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.”

The State did not argue Doppler's convictions involved dishonesty or false statement under N.D.R.Ev. 609(a)(2). Admission of prior convictions under N.D.R.Ev. 609(a)(1) is permitted only when the trial court determines the probative value of the evidence outweighs its prejudicial effect to the accused. State v. Eugene, 536 N.W.2d 692, 695 (N.D.1995). Courts consider five factors when determining whether the probative value of the prior conviction outweighs its prejudicial effect: “[1] the impeachment value of the prior crime, [2] the point in time of the conviction and the witness' subsequent history, [3] the similarity between the past crime and the charged crime, [4] the importance of the defendant's testimony and [5] the centrality of the credibility issue.” State v. Bohe, 447 N.W.2d 277, 281 (N.D.1989). This is a non-exhaustive list, but the factors outline the basic concerns relevant to the balancing test. Eugene, at 695.

[¶ 9] The special balancing test required by N.D.R.Ev. 609(a)(1) “only applies to a criminal defendant because a criminal defendant faces the unique risk that juries will use prior convictions as evidence of the defendant's propensity to commit crime, rather than considering the convictions for impeachment purposes only.” State v. Randall, 2002 ND 16, ¶ 13, 639 N.W.2d 439. “Because of this unique risk, Rule 609(a)(1) favors excluding rather than admitting the prior felony convictions of a witness who is an accused.” Id. “[T]he burden is on the prosecution to show that the probative value of the conviction outweighs its prejudicial effect.” Id.

[¶ 10] We have no record showing the district court weighed or considered the proper factors to determine whether the probative value of Doppler's prior convictions outweighed the prejudicial effect. “A trial court abuses its discretion if the record does not ‘show that the trial court meaningfully or appropriately considered the relevant factors' when it weighed the prior conviction's probative value and prejudicial effect.” State v. Stewart, 2002 ND 102, ¶ 9, 646 N.W.2d 712 (quoting State v. Murchison, 541 N.W.2d 435, 442 (N.D.1995)). “Although we prefer the trial court to articulate expressly how it balanced the relevant factors, it is often enough for the court to hold a brief hearing and to make an explicit finding on the record that demonstrates the trial court did not just apply [N.D.R.Ev. 609(a)(1) ] mechanically.” Stewart, at ¶ 9 (quoting Murchison, at 442).

[¶ 11] Our decisions illustrate the requirement that a trial court must meaningfully and appropriately consider the relevant factors. In Eugene, the defendant filed a motion in limine to preclude the State from admitting evidence of two prior convictions. 536 N.W.2d at 694. The defendant testified at trial and was impeached with the convictions. Id. Prior to trial, the court made a record denying the defendant's motion to exclude but incorrectly analyzed the motion under N.D.R.Ev. 609(a)(2) instead of applying the balancing test under 609(a)(1). Eugene, at 695. The defendant renewed his objection at trial. Id. The district court overruled his objection and stated, “I have made the balance.” Id. We held, “[T]he trial court failed to provide an adequate explanation for us to conclude it appropriately exercised its discretion in admitting the prior convictions for impeachment of Eugene's testimony under [Rule 609(a)(1), N.D.R.Ev.].” Eugene, at 696.

[¶ 12] Similarly, in Murchison, the trial court abused its discretion by not providing an adequate explanation for permitting the State to introduce evidence of the defendant's prior convictions. 541 N.W.2d at 442. We explained, “The trial court's ruling did not...