State v. Foy

• Decision Date: 27 January 1984
• Docket Number: No. 82-511,82-511
• Citation: State v. Foy, 144 Vt. 109, 475 A.2d 219 (Vt. 1984)
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Edward FOY.

Page 219

475 A.2d 219

144 Vt. 109

STATE of Vermont v. Edward FOY.

No. 82-511.

Supreme Court of Vermont.

Jan. 27, 1984.

Reargument Denied Feb. 24, 1984.

John J. Easton, Jr., Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., and Terry Robertson, Law Clerk (on the brief), Montpelier, for plaintiff-appellee.

Andrew B. Crane, Defender General, and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

PECK, Justice.

This is an appeal by defendant from a conviction, after a jury trial in the district court, on two counts of breaking and entering in the daytime. We affirm.

Six issues were presented for review. Two of these issues were not raised below; accordingly, they are not preserved for review. State v. Billado, 141 Vt. 175, 182, 446 A.2d 778, 782 (1982). Of the four claims remaining, two were clearly raised below and are properly before this Court: (1) the trial court erred in allowing the State to impeach the defendant by the use of prior convictions; (2) the defendant was prejudiced by a statement by the prosecutor that he had "lost the race to the prosecutor's office" for plea bargaining purposes. There is some question as to whether the last two claims were preserved for review; we will examine them in the light of that question. They are the following: first, the court erred in refusing to grant a mistrial when the prosecutor improperly asked a defense witness a question prejudicial to defendant; second, the court erred in refusing to grant immunity to a prospective witness so that he might provide exculpatory testimony on defendant's behalf.

On March 25, 1982, defendant was charged with two counts of breaking and entering in the daytime, in violation of 13 V.S.A. § 1202. The charges arose out of two separate incidents that occurred on May 15 and November 7, 1980, in the Burlington area. The targets of both burglaries were private residences.

In the May 15th burglary, the victim's house had been entered through a kitchen window sometime during the afternoon while she was out shopping. The house had been ransacked and her stereo stolen. In the November 7th burglary, entry was gained by forcing open a set of sliding glass doors. This time the intruders took, among other things, a number of handguns, a rifle, a shotgun, and camera equipment. Investigation of these incidents by the police had been fruitless until one of defendant's accomplices came to the police with information regarding the crimes.

Testimony by co-defendants Walter LeClaire and Edward Ross played a key role in the State's case. Through their testimony and testimony of admissions made by defendant, and other evidence of a more circumstantial nature, the jury was justified in concluding that he participated in both offenses.

I.

Defendant has a record of numerous convictions for theft-related offenses, which include petty larceny, on September 3, 1980; aiding in the concealment of stolen property, on September 26, 1980; receiving stolen property, on March 16, 1981; and breaking and entering in the daytime, on March 18, 1981. The State argued that all four were crimes of moral turpitude under 12 V.S.A. § 1608, and proposed to use them to impeach the defendant at trial. At the pretrial conference on defendant's motion in limine to exclude the convictions, defendant conceded that the petty larceny and breaking and entering were crimes of moral turpitude; nevertheless, he argued for their exclusion. The court admitted all except the conviction for aiding in the concealment of stolen property.

We note at the outset that this case came to trial prior to the adoption of the Vermont Rules of Evidence (V.R.E.) on April 1, 1983. It is therefore governed by 12 V.S.A. § 1608, which allows the use of convictions for crimes involving moral turpitude which occurred within 15 years to impeach a witness.

Although the crux of defendant's claim here is that the trial court gave inadequate consideration to the prejudicial effect of his prior convictions in ruling on their admissibility, he argues also that his conviction for receiving stolen property did not involve moral turpitude. We address the latter argument first.

In State v. LaPlante, 141 Vt. 405, 410, 449 A.2d 955, 957 (1982), we held that receipt of stolen property may involve moral turpitude under certain circumstances. In that case, we held that the element of wrongful intent to take and keep the property of another was sufficient to make the crime of larceny "inherently base." Id. The circumstances of the instant case are sufficient to show the same wrongful intent concerning stolen property, although the lesser offense of its receipt was charged. Accordingly, we find no abuse of discretion in the trial court's ruling that, in the case at bar, the offense involved moral turpitude. Accord People v. White, 86 Ill.App.3d 19, 23-24, 41 Ill.Dec. 74, 79, 407 N.E.2d 572, 577 (1980); Commonwealth v. Pilosky, 239 Pa.Super. 233, 240, 362 A.2d 253, 257 (1976).

A finding of moral turpitude is only the first hurdle to overcome in determining the admissibility of prior convictions for impeachment purposes. The court must then weigh the probative value of the evidence against its prejudicial effect. The analysis is similar to the balancing test of V.R.E. 403. However, this case, having antedated 403, is governed by our holdings in State v. Gardner, 139 Vt. 456, 433 A.2d 249 (1981). In that case we held that impeachment by the use of prior convictions under 12 V.S.A. § 1608 is not a matter of right, but is subject to the trial court's discretion. Id. at 458, 433 A.2d at 250. As Gardner points out, there is a significant danger that when evidence of prior convictions is admitted, a jury will infer a propensity to commit the crime charged rather than weigh it in determining the defendant's veracity. Id. Such a result should be avoided. State v. Bushey, 142 Vt. 507, 510, 457 A.2d 279, 281 (1983). To reduce that risk, Gardner set forth a list of factors for consideration by the trial courts in evaluating the quality and necessity of the evidence relating to prior convictions. Gardner, supra, 139 Vt. at 460-61, 433 [144 Vt. 114] A.2d at 251-52. Failure to give them adequate consideration may constitute an abuse of discretion and result in reversal. See State v. Jarrett, 143 Vt. 191, 465 A.2d 238 (1983).

It is not necessary to repeat here the full litany of factors set forth in Gardner for consideration by the trial courts in ruling on motions to suppress prior convictions. In any event, by the express language of the opinion in that case, even that list is not necessarily exclusive: "This discussion is by no means exhaustive. Many other facts may well be important in different situations." Gardner, supra, 139 Vt. at 461, 433 A.2d at 252.

Under the provisions of 12 V.S.A. § 1608, the only preliminary "findings" required of the trial court are whether the earlier crimes occurred within fifteen years and whether they were crimes "involving moral turpitude." It is clear that these requirements were satisfied in the instant case. Beyond these essentials, however, and subject only to the trial court's discretion to be exercised in accordance with this Court's decision in Gardner, all prior convictions are admissible under § 1608.

It has been suggested that we should add a requirement that the lower court must make findings of fact to aid our review of its discretionary action. State v. Jarrett, supra, 143 Vt. at 195, 465 A.2d at 241 (Justice Underwood concurring). To do so, however, would reverse one of the clear holdings in Jarrett, that we can assume compliance with the Gardner criteria unless the contrary is clear from the record. State v. Jarrett, supra, at 193, 465 A.2d at 240. We decline to adopt the additional requirement.

In this case, arguments of both counsel and the ruling of the court were preserved in the transcript of the pretrial conference on defendant's motion to exclude the convictions. Review of that record satisfies us that the court considered and applied the Gardner factors as required by Jarrett, supra, and in doing so did not abuse its discretion.

Defendant maintained that the length of his record, and the similarity of the offenses to the crimes charged, posed a substantial risk of prejudice if disclosed to the jury. These are among the factors mandated for consideration in Gardner. The court was fully aware of the dilemma defendant faced in being compelled to reveal his record should he testify. However, it found that circumstances surrounding his participation in petty larceny, breaking and entering in the daytime and receiving stolen property, and the fact that they all occurred so closely in time to the crime charged, indicated a strong disposition for dishonesty. The court concluded that their bearing on veracity, when joined with the fact that they constituted the only substantial means of impeachment available to the State, outweighed the risk of prejudice to the defendant. We think this conclusion is amply supported.

This Court will not interfere with discretionary rulings that have a reasonable basis. State v. Savo, 141 Vt. 203, 208, 446 A.2d 786, 789 (1982), even if another court might have reached a different conclusion. In order to demonstrate an abuse of discretion, the burden is on the party claiming error to show that it has been withheld altogether, or exercised for some clearly untenable reason. Id. This has always been, and it remains, the standard, however difficult it may be in any discretionary action. We are satisfied that the court had a reasonable basis for its ruling; no abuse of discretion appears.

II.

Walter LeClaire, who had pled guilty to one of the burglaries for which defendant was charged, agreed to testify against defendant in return for a plea agreement relating to the second burglary. This arrangement was brought out by both sides at trial. During the...