State v. Randall

• Court: North Dakota Supreme Court
• Writing for the Court: MARING, Justice.
• Citation: State v. Randall, 2002 N.D. 16, 639 N.W.2d 439 (N.D. 2002)
• Decision Date: 19 February 2002
• Docket Number: No. 20000325.,20000325.
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Alfred R. RANDALL, Defendant and Appellant.

639 N.W.2d 439

2002 ND 16

STATE of North Dakota, Plaintiff and Appellee, v. Alfred R. RANDALL, Defendant and Appellant.

No. 20000325.

Supreme Court of North Dakota.

February 19, 2002.

Richard J. Riha, State's Attorney, and Cynthia M. Feland (argued), Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

Robert W. Martin, Bismarck, N.D., for defendant and appellant.

MARING, Justice.

[¶ 1] Alfred Randall appealed from a South Central Judicial District Court conviction for the attempted murder of Terry Davenport. We affirm.

I

[¶ 2] On December 29, 1999, law enforcement officers from the Burleigh County Sheriff's Department received a call from the Davenport residence reporting a shooting. At the scene, the officers found Davenport who had been shot in his lower abdomen. Randall was identified as the shooter and was arrested and charged with attempted murder. [¶ 3] At trial, Randall's tape-recorded admissions to law enforcement officers were admitted into evidence. In these admissions, Randall argued he either acted in self-defense or the shooting was accidental. On cross-examination of Davenport, Randall's counsel attempted to question Davenport about his seventeen prior convictions. The State objected, and further argument was heard in chambers.

[¶ 4] During the in-chambers hearing, the State conceded to the admission of Davenport's two forgery convictions and his conviction for theft by deception. However, the State argued Davenport's fourteen other convictions should not be admitted because they did not involve dishonesty or false statement. Of the fourteen remaining convictions, the trial court admitted three and excluded the other eleven under N.D.R.Ev. 609(a)(i). Thus, the court admitted six of Davenport's seventeen prior convictions, including a 1993 conviction for forgery, a 1994 conviction for forgery, a 1995 conviction for burglary, a 1995 conviction for theft, a 1998 conviction for theft, and a 1998 conviction for issuing checks without an account. Randall was convicted of the attempted murder of Davenport and appealed.

II

[¶ 5] On appeal, Randall argues the trial court erred in excluding eleven of Davenport's seventeen prior convictions. We review a trial court's ruling under N.D.R.Ev. 609 under the abuse of discretion standard. See State v. Eugene, 536 N.W.2d 692, 695 (N.D.1995). "A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law." Myer v. Rygg, 2001 ND 123, ¶ 8, 630 N.W.2d 62. The convictions excluded by the trial court included two convictions for burglary, eight convictions for breaking into a motor vehicle, and one conviction for conspiracy to commit breaking into a motor vehicle. Randall does not contend any of these eleven convictions constitute crimes involving dishonesty or false statement; therefore, N.D.R.Ev. 609(a)(ii) is not at issue in this case. See N.D.R.Ev. 609(a)(ii) ("[E]vidence that any witness has been convicted of a crime must be admitted if it involved dishonesty or false statement, regardless of the punishment."). At issue in this case, is whether the trial court abused its discretion in excluding Davenport's prior convictions under N.D.R.Ev. 609(a)(i). Rule 609(a)(i), N.D.R.Ev., provides,

For the purpose of attacking the credibility of a witness, (i) 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.

We have previously addressed the admissibility of conviction evidence offered by the State under N.D.R.Ev. 609(a)(i) to impeach a defendant in a criminal case, see, e.g., State v. Murchison, 541 N.W.2d 435, 442 (N.D.1995); State v. Eugene, 536 N.W.2d 692, 695 (N.D.1995). However, we have never directly addressed the admissibility of conviction evidence offered by a defendant in a criminal prosecution to impeach a witness for the State. See, e.g., State v. Neufeld, 1998 ND 103, ¶ 25, 578 N.W.2d 536 (impeachment using alleged victim's prior drug use that did not result in a conviction not allowed); State v. Overby, 497 N.W.2d 408, 413 (N.D.1993) (impeachment of confidential informant using prior drug sale that did not result in a conviction not allowed); State v. Moran, 474 N.W.2d 77, 78 (N.D.1991) (impeachment of alleged victim using an alleged assault that did not result in a conviction not allowed). Because of the similarities between N.D.R.Ev. 609 and Rule 609 of the Federal Rules of Evidence, we consider federal precedent interpreting Rule 609 persuasive. See State v. Farzaneh, 468 N.W.2d 638, 641 (N.D.1991).

III

[¶ 6] Rule 609 of the Federal Rules of Evidence allows evidence of a witness's prior convictions to be admitted for the purpose of attacking the witness's credibility. See Fed.R.Evid. 609. Evidence admitted under Rule 609 serves no purpose other than to impeach a witness. See Fed.R.Evid. 609 advisory committee's notes to 1990 amendments ("[T]he title of the rule, its first sentence, and its placement among the impeachment rules clearly establish that evidence offered under Rule 609 is offered only for purposes of impeachment."). Thus, inherent in Rule 609(a) is an acknowledgment that prior convictions are probative of a witness's credibility. See U.S. v. Burston, 159 F.3d 1328, 1335 (11th Cir.1998); see also Cummings v. Malone, 995 F.2d 817, 826 (8th Cir.1993) ("Federal Rule of Evidence 609 is based on the common sense proposition that one who has transgressed society's norms by committing a felony is less likely than most to be deterred from lying under oath."). The types of convictions admissible to impeach witnesses and the extent of discretion trial courts have to exclude evidence of prior convictions have been subjects of great debate. See 28 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6131, at 142 (1993).

[¶ 7] The 1969 Preliminary Draft of Rule 609 allowed all felony convictions and all convictions for crimes involving dishonesty or false statements to be admitted for the impeachment of any witness. See Wright & Gold, supra, § 6131, at 143. It did not distinguish between accused persons and other witnesses and provided no provision for exclusion of convictions for unfair prejudice. See id. Additionally, the Advisory Committee's Notes to the Preliminary Draft suggested convictions admissible under Rule 609(a) would be immune from exclusion under Rule 403 of the Federal Rules of Evidence. See Wright & Gold, supra, § 6131, at 143.

[¶ 8] The Preliminary Draft was sharply criticized by scholars for its failure to give trial courts any power to exclude even highly prejudicial convictions. See id. at 145. The drafters responded to this criticism by revising the Preliminary Draft to add a provision which provided for the exclusion of conviction evidence when its probative value is substantially outweighed by the danger of unfair prejudice. See id. Some members of Congress, however, sharply disagreed with the revision made to the Preliminary Draft. See id. at 149. Thus, before submitting Rule 609 to Congress, the drafters removed the provision giving trial courts discretion to exclude prejudicial convictions, and the Preliminary Draft was submitted in its original form. See id.

[¶ 9] Once in Congress, Rule 609 was again the subject of vigorous debate. See id. at 153-65. As before, this debate focused on the types of convictions admissible to impeach a witness and a trial court's discretion to exclude prejudicial convictions. See id. Eventually a compromise on these issues was reached, and Rule 609(a) was enacted. See id. at 165-66. As originally enacted, Rule 609(a) provided:

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 during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.

Wright & Gold, supra, § 6131, at 166 n. 42 (quoting Fed.R.Evid. 609(a)).

[¶ 10] Despite the level of debate preceding its enactment, Rule 609(a) remained ambiguous with respect to impeachment of a witness other than a criminal defendant. See Fed.R.Evid. 609 advisory committee's notes to 1990 amendments. The Supreme Court resolved this ambiguity in Green v. Bock Laundry Machine Co., by holding trial courts could only consider prejudice to a defendant in a criminal prosecution when determining whether to exclude convictions for prejudice under Rule 609(a). See Green v. Bock Laundry Machine Co., 490 U.S. 504, 525-26, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989). Furthermore, the Supreme Court concluded evidence otherwise admissible under Rule 609(a) could not be excluded under Rule 403. See id. The 1990 amendments to Rule 609(a) were a direct response to this decision. See Fed.R.Evid. 609 advisory committee's notes to 1990 amendments (citing Green, 490 U.S. 504, 109 S.Ct. 1981).

[¶ 11] As amended in 1990, Rule 609(a) provides:

For purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall 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

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