State v. Palmer, 12351

• Decision Date: 10 January 1978
• Docket Number: No. 12351,12351
• Citation: 574 P.2d 533,98 Idaho 845
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Francis PALMER, aka Michael Larson, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 533

574 P.2d 533

98 Idaho 845

The STATE of Idaho, Plaintiff-Respondent, v. Francis PALMER, aka Michael Larson, Defendant-Appellant.

No. 12351.

Supreme Court of Idaho.

Jan. 10, 1978.

Rehearing Denied Feb. 27, 1978.

William J. Tway of Tway & Rowe, Boise, for defendant-appellant.

Wayne L. Kidwell, Atty. Gen., David G. High, Asst. Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.

DONALDSON, Justice.

Defendant-appellant Francis Palmer was convicted by a jury of burglarizing the Foodland Market in Meridian, Idaho and was sentenced to the custody of the State Board of Correction for an indeterminate time not to exceed 14 years.

Officers Calhoun and Scarborough of the Meridian Police Department were on routine patrol duty on February 8, 1976. At around 11 p. m., while driving past the Foodland Market in Meridian, Officer Scarborough observed an individual (whom Scarborough identified at trial as Francis Palmer, the defendant) standing in front of a safe in the store. The Officers left their car and Officer Calhoun went to the back of the store while Officer Scarborough watched the front door. Upon reaching the rear of the store, Calhoun noticed two people coming off of a step in the back of the building. When they began running in the other direction, he ordered them to halt and then fired at them when they were about 40 yards away. Palmer was found on the ground, shot through the abdomen. The police discovered a walkie-talkie and a satchel of tools in the field near where Palmer was found. No fingerprints were detected. He was arrested and charged with first degree burglary.

At trial Palmer testified that he was in the area looking for employment. Coming from his former employer's house, his car broke down some four miles from Foodland and he was given a ride to a phone booth near the store. (The location of Palmer's car was corroborated by the testimony of the former employer, who towed it away.) There he noticed two people on the roof of the store and went out back to observe the burglary. He testified that the two men ran past him and then he was shot by the policeman.

Palmer took the stand in his own defense and testified that he had been previously convicted of a felony. No further mention was made of this fact until the prosecutor, in closing argument, said:

" * * * and I urge to you, Ladies and Gentlemen, that the theory of an ex-convict going to the back of a store at 11:00 o'clock at night to watch two other people pull a burglary is preposterous on its face * * *."

Although this statement was not objected to at trial, Palmer asserts the prosecutor's comments require reversal.

This case raises the issue of the proper use of a witness' criminal record. Especially sensitive is the situation where the witness is also the defendant.

"The sharpest and most prejudicial impact of the practice of impeachment by conviction * * * is upon one particular type of witness, namely, the accused in a criminal case who elects to take the stand. If the accused is forced to admit that he has a 'record' of past convictions, particularly if the convictions are for crimes similar to the one on trial, there is an obvious danger that the jury, despite instructions, will give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime on charge, or even that he ought to be put away without too much concern with present guilt, than they will to the legitimate bearing of the past convictions on credibility." McCormick, Evidence § 43 (2d ed. 1972).

Because of this obvious danger, strict limits have been put on the use of prior convictions. As concerns the prior record of witnesses, I.R.C.P. 43(b) (6) governs:

"Rule 43(b)(6). Impeachment by adverse party. A witness may be impeached by the party against whom he was called, by contradictory evidence, or by evidence that his general reputation for truth, honesty or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of judgment, that he has been convicted of a felony."

"The theory behind such statutory authorization (I.C. § 9-1209, now I.R.C.P. 43(b)(6)) is evidently that a witness, if shown to have been a convicted felon, is probably unworthy of belief." Fowler v. Uezzell, 94 Idaho 951, 956, 500 P.2d 852, 857 (1972).

It is clear that a felony record can be used to impeach the credibility of a witness. However, as McCormick points out, a careful line must be drawn between impeaching a witness' credibility and using a prior conviction to imply that a criminal will commit another crime simply because he has committed a crime in the past. The number of cases before various Supreme Courts on this very issue attests to the sensitive nature of the use of prior convictions.

We have held that the use of prior felonies is for impeachment only and that any further use can constitute a prejudicial error. State v. Shepherd, 94 Idaho 227, 486 P.2d 82 (1971). In that case we held it was error for the trial court to allow questioning beyond asking if the defendant had ever been convicted of a felony. Specifically, it was held prejudicial for the prosecutor to continue questioning as to the nature of the felony.

Palmer contends that the prosecutor's use of his prior conviction was exactly what the Shepherd case condemns. He urges that the use here was to advance the proposition that an ex-convict would never be at the back of a store at 11:00 o'clock at night, whereas a person without a conviction might be. However, this is not the inference drawn from a view of the entire record. The argument the prosecutor had been making immediately prior to the alleged improper statement concerned the evidence and Palmer's testimony. The entire theme of the argument was to question Palmer's story. This is congruous with the idea that in referring to Palmer's version of the facts as "the theory of an ex-convict," the prosecutor was properly using Palmer's felony record to question his credibility as a witness. This is the sort of reference I.R.C.P. 43(b)(6) allows.

Six sentences earlier the prosecutor asked of the jury: "Do you believe the defendant was just there watching a burglary? Do you believe the defendant just was curious * * * ?" He continued this attack on Palmer's testimony on through to the end of his closing argument. The jury is entitled to consider Palmer's testimony in light of his felony record. State v. Haggard, 94 Idaho 249, 252, 486 P.2d 260, 263 (1971). The prosecutor's remarks went to the credibility of his testimony. The specific allusion was to what Palmer said he was doing at the scene. We cannot say this was improper.

Further, the jury was instructed properly as to the correct purpose of a witness's felony record. Instruction No. 7 specifically read:

"The fact that a witness had been convicted of a felony, if such be a fact, may be considered by you only for the purpose of determining the credibility of that witness. The fact of such a conviction does not necessarily destroy or impair the witness's credibility. It is one of the circumstances that you may take into consideration in weighing the testimony of such a witness."

The conviction is affirmed.

SHEPARD, C. J., and McFADDEN and BAKES, JJ., concur.

BISTLINE, Justice, dissenting.

Jurisprudence, criminal jurisprudence included, is a science. If that science is to be maintained and perpetuated, it is important that the Court be consistent with its own previously announced philosophy, absent some good reason for not doing so. Today's decision represents an unexplained departure from this Court's developing jurisprudence on the question of the admissibility of prior convictions for the purpose of impeaching a defendant in a criminal case. I respectfully dissent.

I.

The majority holds that, in his closing remarks to the jury, "the prosecutor was properly using Palmer's felony record to question his credibility as a witness." I am not convinced that this is a fair characterization of what happened. It is one thing for the prosecutor to remark in closing that the jury is at liberty to consider the defendant's previous felony conviction in judging the credibility of his testimony. It is quite another to tell the jury that the defendant's entire case theory is that of "an ex-convict." The latter, it seems to me, would go beyond the narrow strictures laid down by this Court in State v. Shepherd, supra, in interpreting what was then I.C. § 9-1209. My own reading of the prosecutor's closing remarks leads me to believe he was not so much aiming at the credibility of the defendant as he was "knocking" the entire case of an "ex-convict." I cannot bring myself to conclude beyond a reasonable doubt that the prosecutor's conduct was not in error or that such error was so harmless as not to have prejudiced the defendant's chances for a fair trial before this jury.

II.

The heart of my dissent, however, does not concern the majority's questionable characterization of whether the prosecutor brought himself within a recent court-made rule of evidence, but rather concerns the uncritical acceptance of that rule itself.

The statute allowing the impeachment of a criminal defendant's credibility by evidence of prior felony convictions had, prior to its repeal in 1975, been the target of frequent criticism by this Court. In State v. Branch, 66 Idaho 528, 164 P.2d 182 (1945) the statute (which was then codified as I.C.A. § 16-1209) was held not to apply to criminal defendants at all. The Court traced the history of the statute and noted that it had evolved from a tradition whereby,

At common law the defendant in a criminal action was incapable of testifying in his own behalf. Fear of punishment, whether conscious of guilt or innocence, it was assumed, would cause him to testify untruthfully, and to avoid such his testimony was wholly excluded. 66 Idaho at 533, ...