State v. Malloy, 5284-PR

Decision Date18 December 1981
Docket NumberNo. 5284-PR,5284-PR
Citation131 Ariz. 125,639 P.2d 315
PartiesSTATE of Arizona, Appellee, v. John William MALLOY, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen., by William J. Schafer, III, Diane M. Ramsey, Asst. Attys. Gen., Phoenix, for appellee.

Richard S. Oseran, Pima County Public Defender by Frank P. Leto, Asst. Public Defender, Tucson, for appellant.

STRUCKMEYER, Chief Justice.

Appellant, John William Malloy, was convicted of burglary in the third degree and sentenced to two years' imprisonment. The Court of Appeals, Division Two, reversed and remanded to the Superior Court for a new trial. 130 Ariz. ---, 639 P.2d 335 (App.1981). This Court granted review. A.R.S. § 12-120.24; Rule 31.19, Rules of Criminal Procedure, 17 A.R.S. Opinion of the Court of Appeals vacated. Judgment of the Superior Court reversed.

On April 19, 1980, Attorney S. Leonard Scheff, while working in his office located at 325 W. Franklin, Tucson, Arizona, heard a noise which sounded like breaking glass. Upon investigation, he saw an individual, later identified as appellant, picking glass out of the window frame of Stotler and Company, a commodity exchange located in the same building. When Scheff saw that the appellant was about to enter the building, he called the police. Shortly thereafter, Officer Vaughan of the Tucson Police Department arrived and placed the appellant under arrest.

Prior to the start of trial, the appellant requested that the court rule whether it would permit evidence of appellant's prior conviction for attempted burglary in the third degree to be used for impeachment purposes should he decide to take the stand on his own behalf. The court ruled that the prior conviction was admissible for impeachment purposes. Appellant did not therefore take the witness stand. The ruling of the court is assigned as error.

Rule 609(a), Rules of Evidence, 17A A.R.S., governs the admissibility of evidence on prior convictions for impeachment purposes. It provides:

"For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record, if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, and if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonesty or false statement regardless of the punishment."

Preliminarily, the State argues that appellant's prior conviction is within the scope of Rule 609(a)(1) and is admissible regardless of whether it is considered a crime involving dishonesty or false statement.

The Arizona Rules of Evidence are patterned on the Federal Rules of Evidence. The Advisory Committee's notes to the Federal Rules indicate that section (1) of Rule 609(a) was meant to encompass those offenses serious enough to be considered felonies. See Fed.R.Evid. 609, Advisory Committee Notes (28 U.S.C.A.). In this case, appellant's prior conviction was for attempted burglary in the third degree. Under Arizona's criminal code, the decision whether attempted burglary in the third degree is an offense serious enough to be considered a felony rests within the trial judge's discretion. 1 The trial judge who presided over appellant's former trial did not consider his attempted burglary offense serious enough to constitute a felony, and entered judgment for a class (1) misdemeanor for which the maximum sentence was six months. A.R.S. § 13-707(1). Hence, it is clear that the appellant's prior conviction does not come within Rule 609(a)(1) and is admissible, if at all, only under Rule 609(a)(2).

Rule 609(a)(2) limits the admissibility of convictions for misdemeanors to those involving dishonesty or false statement. What misdemeanor convictions involve dishonesty or false statement is a question to which this Court has not spoken. Both divisions of the Court of Appeals have considered the issue and have held that burglary is not such a crime. See State v. Malloy, 130 Ariz. ---, 639 P.2d 335 (App.1981); State v. Johnson, (Ariz.App.1981) (CA-CR 4524, filed May 19, 1981). Both courts relied upon the federal courts' interpretation of the federal counterpart to Rule 609, limiting its scope to crimes such as perjury, subornation of perjury, false statement, criminal fraud, embezzlement, false pretense, and other offenses in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully. See United States v. Smith, 551 F.2d 348, 362 (D.C.Cir.1976). After examining the purpose and history of Rule 609, we agree that the phrase "dishonesty or false statement" should be construed narrowly to include only those crimes involving some element of deceit, untruthfulness, or falsification.

Criminal acts such as theft and robbery commonly carry a connotation of dishonesty. Rule 609 is, however, concerned with those crimes which establish the trait of untruthfulness. Rule 609(a)(1) recognizes that all felonies have some probative value in determining a witness' credibility upon the theory that a major crime entails such an injury to and disregard of the rights of other persons that it can reasonably be expected the witness will be untruthful if it is to his advantage. The perpetrator of a major criminal act has demonstrated such a lack of scruples as to show a willingness to give false testimony. See Fed.R.Evid. 609, Advisory Committee Notes (28 U.S.C.A.).

Prior to the adoption of the Rules of Evidence, it was the rule in Arizona that convictions for misdemeanors were not admissible for impeachment. State v. Daymus, 90 Ariz. 294, 302-303, 367 P.2d 647 (1961). Although 609(a)(2) departs from this approach in part, it does not give a trial judge unlimited authority to admit evidence of all prior misdemeanor convictions. See Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates (March 1969 Draft). See also, Government of the Virgin Islands v. Toto, 529 F.2d 278, 281 (3d Cir. 1976); United States v. Montgomery, 126 F.2d 151, 155 (3d Cir.), cert. denied, 316 U.S. 681, 62 S.Ct. 1268, 86 L.Ed. 1754 (1942).

It is true that Arizona's 609(a) differs from that of its federal counterpart in that it gives the trial judge discretion to exclude evidence of prior misdemeanor convictions involving dishonesty or false statement if he determines that the prejudicial nature of the conviction outweighs its probative value. See Gaffney and Cohen, The New Practice in Cross Examination of A Character Witness Under Arizona Rules of Evidence, 405(a), 1978 Ariz.St.L.J. 31, 42 n. 71. Because of this difference, the State argues for an interpretation of 609(a)(2) which would allow evidence of misdemeanor convictions other than those involving deceit or falsification to be admitted, leaving it to the trial judge to exclude misdemeanor convictions with low probative value. We, however, are not convinced. Misdemeanors which do not contain an element of deceit or falsification are not simply low in probative value, but more often than not wholly lack such probative value. Moreover, in this class of cases, whatever residuary relevance a witness' conviction for a misdemeanor not involving deceit or falsification may have on the question of his credibility, it is likely to be outweighed by its prejudicial effect. See United States v. Evans, 398 F.2d 159, 164 (3d Cir. 1968). 2

In this case, the appellant's prior conviction was for attempted burglary in the third degree. A person commits burglary in the third degree by "entering or remaining unlawfully in a nonresidential structure or fenced commercial yard with the intent to commit any theft or any felony therein." A.R.S. § 13-1506. The crime of burglary does not necessarily involve an element of deceit or falsification and, consequently, is not admissible under Rule 609(a)(2). See United States v. Seamster, 568 F.2d 188, 190-91 (1977).

We are aware that some jurisdictions have held that burglary is a crime involving dishonesty or false statement. See Bates v. United States, 403 A.2d 1159 (D.C.Ct.App.1979); State v. Thomas, 220 Kan. 104, 551 P.2d 873, 876 (1976); Stiles v. Commonwealth, 570 S.W.2d 645 (Ky.App.1978); Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745, 753 (1976), cert. denied, 429 U.S. 1044, 97 S.Ct. 746, 50 L.Ed.2d 757 (1977). However, the interpretation of the phrase "dishonesty or false statement" adopted here is the more consistent with the pre-code practice of completely excluding evidence of prior misdemeanor convictions, and at the same time has the advantage of being in conformity with the current federal practice. 3 We hold, therefore, that a prior misdemeanor conviction is admissible under 609(a)(2) only if the conviction is for an offense which involved an element of deceit or falsification.

Nor do we find that the trial court's ruling was harmless error. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed. 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed. 705 (1967). The test for reversible error is "whether there was a reasonable probability under such facts that the verdict might have been different had the error not been committed." (Citation omitted.) State v. Jessen, 130 Ariz. 1, 633 P.2d 410, 416 (1981); State v. McVay, 127 Ariz. 450, 453, 622 P.2d 9 (1980).

In this case, the appellant intended to present his defense through his own testimony, denying that he had committed the burglary and explaining his presence at the scene of the crime. Because of the trial court's erroneous ruling, as the lesser of two evils the appellant decided not to take the stand. He was, therefore, unable to present this defense. It is true that a police officer in testifying for the State related the...

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