State v. Hickey

Decision Date31 December 1986
Docket NumberNo. 85-462,85-462
Citation523 A.2d 60,129 N.H. 53
PartiesThe STATE of New Hampshire v. Joseph HICKEY.
CourtNew Hampshire Supreme Court

Stephen E. Merrill, Atty. Gen. (Barbara R. Keshen, Asst. Atty. Gen., on the brief and orally), for the State.

Charles A. Donahue, of Keene, by brief and orally, for defendant.

BATCHELDER, Justice.

On July 22, 1985, the defendant, Joseph Hickey, was convicted in Superior Court (Dickson, J.) on two counts of aggravated felonious sexual assault. RSA 632-A:2. The defendant raises two principal issues on appeal: (1) whether the trial court erred in ruling that an eleven year old prior conviction for incest would be admissible under N.H.R.Ev. 609(b) to impeach the credibility of the defendant if he testified; and (2) whether the trial court erred in admitting evidence of alleged other crimes of the defendant under N.H.R.Ev. 404(b) to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. We find error on both points, reverse, and remand this case for a new trial.

The State indicted Joseph Hickey on two counts of aggravated felonious sexual assault on his grandson, RSA 632-A:2. Prior to trial, the State notified the defendant of its intent to introduce evidence of the defendant's prior conviction for incest to impeach his credibility if he testified and moved in limine for a ruling on admissibility. See Super.Ct.R. 68; N.H.R.Ev. 609. Defense counsel argued that the court should exclude evidence of the prior conviction under N.H.R.Ev. 609(b) because the prejudicial effect of the evidence outweighed its probative value where the prior conviction was remote in time and of the same nature as the charged offense. The trial judge summarily rejected this argument and, without articulating the factual underpinnings of his decision, concluded that evidence of the prior conviction would be admissible for impeachment purposes under N.H.R.Ev. 609(b).

The State based its case primarily on the testimony of the victim and his mental health counselor, Penelope Upton. Testimony indicated that the boy's mother left him in the care of the defendant and his wife for the weekend of November 24, 1984. At approximately 10:15 p.m. on the night of November 24, 1984, the defendant's wife went to work at a nearby hospital, leaving the victim in the sole care of the defendant. Sometime later that night, the defendant told his grandson, "You can sleep with me tonight." The boy then went into the defendant's bedroom. The defendant followed his grandson into the bedroom and allegedly assaulted the boy sexually.

At trial, the State introduced testimony regarding alleged prior unindicted sexual assaults upon the victim by the defendant. The defendant argued that the court should exclude the testimony regarding prior unindicted offenses, and the trial judge properly recognized that such evidence was not admissible to show the defendant's propensity to commit the charged offense. The State argued, and the court agreed, that the testimony was admissible to prove "all of the elements" of N.H.R.Ev. 404(b), i.e. "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Thus, the State was permitted to ask the victim the following series of questions:

"Q. Has your grandfather ever hurt you like that before?

A. Yes.

Q. Was it in the house in Penacook?

A. Yes.

Q. Do you remember how many times he had hurt you before in the house in Penacook?

A. No."

Similarly, over the defendant's objection, the State was permitted to introduce testimony from the victim's mental health counselor regarding the alleged other crimes. Upton testified, "There is no question in my mind that [this boy] has been sexually abused on many occasions by his grandfather." (Emphasis added.)

After the jury heard this testimony from Upton, the defendant moved for a mistrial. That motion was denied, but the court agreed that it would be proper to give a limiting instruction. The court instructed the jury that evidence of prior offenses is "not admissible to show a defendant's bad character ... or propensity to commit the crime" for which he is charged, but only for the "limited purposes" of showing "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The defense objected to this "general litany of the possible uses" of "other crimes" evidence and requested a specific instruction. In response, the State reiterated its position that the evidence was relevant for every purpose outlined in Rule 404(b), and the judge agreed. In the charge to the jury at the close of trial, the judge again made reference to the "general litany" of permissible uses of "other crimes" evidence. The jury found the defendant guilty, and the defendant brought this appeal.

First, we consider whether the trial court erred in ruling that the defendant's prior conviction for incest was admissible under N.H.R.Ev. 609(b). In this State, "evidence of prior convictions is admissible if it will be of assistance in properly evaluating the testimony of the defendant witness and if its probative value exceeds its prejudicial effect." State v. Vanguilder, 126 N.H. 326, 330, 493 A.2d 1116, 1120 (1985). The rationale for admitting such evidence was explained in State v. Duke, 100 N.H. 292, 123 A.2d 745 (1956):

"When a defendant voluntarily testifies in a criminal case, he asks the jury to accept his word. No sufficient reason appears why the jury should not be informed what sort of person is asking them to take his word.... Lack of trustworthiness may be evinced by his abiding and repeated contempt for laws which he is legally and morally bound to obey, ... though the violations are not concerned solely with crimes involving 'dishonesty and false statement.' "

Id. at 293-94, 123 A.2d at 746. The need for such evidence, however, must be balanced against the danger that the jury will convict the defendant based on prior bad acts rather than the charged offense. See, e.g., State v. Cote, 108 N.H. 290, 294-95, 235 A.2d 111, 114-15 (1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968).

Under recently adopted New Hampshire Rule 609(a), the general approach is similar to our common law approach to the use of prior convictions to impeach the credibility of witnesses. See N.H.R.Ev. 609(a) (Reporter's Notes). Rule 609(b), however, departs from our prior common law by imposing a ten year limitation on the use of prior convictions for impeachment. N.H.R.Ev. 609(b) provides, in pertinent part, that:

"Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."

The ten-year limitation is the result of a considered judgment that the probative value of evidence of convictions more than ten years old is, in most cases, outweighed by its prejudicial effect. Under N.H.R.Ev. 609(b), which is the same as Fed.R.Evid. 609(b), "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances." S.Rep. No. 93-1277, 93 Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 7051, 7062.

In the case at bar, the State moved in limine for a ruling on the admissibility of the defendant's prior conviction for incest although he had been released from the confinement imposed for that conviction eleven years earlier. At the hearing on the motion, the State had the burden to produce evidence upon which the trial court could properly base its determination. See United States v. Portillo, 633 F.2d 1313, 1323 (9th Cir.1980), cert. denied, 450 U.S. 1043, 101 S.Ct. 1763, 68 L.Ed.2d 241 (1981). The State produced only the victim's age and identity along with the defendant's prior criminal record, and although the State argued that the defendant's prior conviction should be admitted for impeachment purposes, the State failed to discuss the impeachment value of the defendant's prior crime. The trial judge recognized that the evidence of the remote conviction was inadmissible unless he determined that "the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect," but only stated, "I hereby so find that at this juncture." The defendant argues that this finding was not adequate to support the admission of the defendant's prior conviction under Rule 609(b). We agree.

There is a rebuttable presumption that the prejudicial effect of evidence of a conviction over ten years old outweighs its probative value. Portillo supra. When determining the admissibility of a remote prior conviction under Rule 609(b), the trial court should explicitly evaluate the specific facts and circumstances of the case in light of this presumption. Cf. 3 J. Weinstein & M. Berger, Weinstein's Evidence p 609, at 609-83 (1985) (discussing Fed.R.Evid. 609(a)). Some of the factors which the trial court should consider when making this determination are:

(1) the impeachment value of the prior crime;

(2) the defendant's subsequent history;

(3) the similarity between the prior crime and the charged crime;

(4) the importance of the defendant's testimony; and

(5) the centrality of the credibility testimony.

Cf. United States v. Mahone, 537 F.2d 922, 929 (7th Cir.1976), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976) (discussing Fed.R.Evid. 609(a)). Unless the court concludes on the record, based on articulated facts and circumstances, that the probative value of the conviction substantially outweighs its prejudicial effect, the evidence should be...

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