Whiteside v. State
| Decision Date | 14 September 2006 |
| Docket Number | No. 49A05-0511-CR-674.,49A05-0511-CR-674. |
| Citation | 853 N.E.2d 1021 |
| Parties | David WHITESIDE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Michael R. Fisher, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Scott Barnhart Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
David Whiteside appeals his conviction for class C felony auto theft.1 We affirm.
Whiteside raises two issues, which we restate as the following three:
I. Whether the trial court erred in permitting the State to impeach his witness with evidence of the witness's prior conviction;
II. Whether the trial court abused its discretion in admitting evidence that the arresting officer addressed Whiteside by his first name; and
III. Whether the trial court abused its discretion in admitting evidence that Whiteside had been incarcerated.
On January 22, 2005, David Fernandez and his six-year-old son drove to an Indianapolis appliance store. Fernandez went into the store, leaving his son in his Toyota Sequoia SUV with the engine running. Wearing a ski mask, Whiteside approached the vehicle, tapped on a window, and told the child that his father wanted him in the store. The child went to the open door at the front of the store and saw his father inside. The child looked back at the car and saw Whiteside get in the car and drive away. The child told Fernandez that someone had stolen the car, and Fernandez came outside the store and saw that the car was gone. Fernandez went back into the store and told the clerk that his car had been stolen. The store clerk called 911 and gave Fernandez the phone to report the stolen vehicle. Approximately ten minutes later, police officers stopped a vehicle matching Fernandez's description two blocks from the appliance store. Whiteside was alone in the vehicle. Police officers drove Fernandez and his son to the location of the stop, and the child identified the mask Whiteside had worn.
On January 24, 2005, the State charged Whiteside with the following: Count I, class D felony auto theft, with a class C felony enhancement under Part II;2 and Count II, class D felony theft. On April 1, 2005, the State charged Whiteside with being a habitual offender.
On August 24, 2005, a jury trial commenced. Outside the presence of the jury, Whiteside submitted, inter alia, two oral motions in limine. First, he asked the trial court to prohibit the arresting officer from testifying that, when he approached Fernandez's vehicle, he greeted Whiteside by his first name. The trial court denied Whiteside's request, ruling that the officer would be allowed to testify for the sole purpose of identification and would be prohibited from testifying how he knew Whiteside, and offered to provide a limiting instruction to the jury. Additionally, Whiteside requested that the trial court prohibit the State from presenting evidence that his witness, Anthony Parker, had been convicted of auto theft.3 The trial court initially granted the motion so that it could research the issue but ultimately denied Whiteside's motion and allowed evidence of Parker's prior auto conviction. The State informed the trial court that it intended to question Parker as to whether he had contact with Whiteside when both men were incarcerated at the same facility. Whiteside objected. The trial court ruled that the State would be allowed to question Parker regarding his contact with Whiteside because "it goes directly to the heart of whether Mr. Parker is truthfully testifying." Tr. at 158.
During the State's case in chief, the arresting officer testified that as he approached Fernandez's vehicle he said, "[H]ello, David." Id. at 166. The trial court immediately provided the jury with the following instruction: Id.
Whiteside presented the testimony of Anthony Parker. During cross-examination, the State asked Parker whether he had been convicted of auto theft on September 28, 1993. Id. at 217. Parker confirmed that he had. Id. Immediately thereafter, the trial court admonished the jury: "Ladies and Gentlemen, evidence of a prior conviction of a witness may be used only to evaluate that witness's credibility." Id. at 217-18.
The State also questioned Parker regarding his contact with Whiteside during the time both men were incarcerated. Parker testified that he had been in contact with Whiteside while incarcerated. The State then attempted to impeach Parker's credibility by inquiring as to whether he had previously denied any contact with Whiteside.
On August 25, 2005, the jury found Whiteside guilty of auto theft but not guilty of theft. Whiteside then waived his right to a jury trial as to Part II under Count I and the habitual offender enhancement. The trial court found Whiteside guilty as to Part II and found him to be a habitual offender.
On September 6, 2005, Whiteside filed a motion to correct error requesting that the trial court vacate its habitual offender finding, arguing that one of the convictions upon which the State relied was improper. On October 13, 2005, the trial court granted Whiteside's motion. The trial court then sentenced Whiteside to a term of seven years for the class C felony auto theft conviction. Whiteside appeals. Additional facts will be provided as necessary.
Our standard of review for the admissibility of evidence is well established. The admission or exclusion of evidence lies within the sound discretion of the trial court and is afforded great deference on appeal. Bacher v. State, 686 N.E.2d 791, 793 (Ind.1997). We will reverse the trial court's ruling on the admissibility of evidence only for an abuse of discretion. State v. Lloyd, 800 N.E.2d 196, 198 (Ind.Ct.App.2003). An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Id. In reviewing the admissibility of evidence, we consider only the evidence in favor of the trial court's ruling and any unrefuted evidence in the defendant's favor. Wilhelmus v. State, 824 N.E.2d 405, 414 (Ind.Ct.App.2005). Errors in the admission or exclusion of evidence are considered harmless unless they affect the substantial rights of a party. Camm v. State, 812 N.E.2d 1127, 1137 (Ind.Ct.App. 2004), trans. denied. To determine whether an error in the admission of evidence affected a party's substantial rights, we assess the probable impact of the evidence on the jury. Id.
Whiteside contends that the trial court erred in allowing the State to impeach Parker by eliciting evidence that he had been convicted of auto theft. Indiana Evidence Rule 609 governs impeachment by evidence of conviction of crime.4 Evidence Rule 609(b) provides,
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, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement 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. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
Specifically, Whiteside argues that Parker's prior auto theft conviction lies outside the ten-year limitation provided by Indiana Evidence Rule 609(b), that the trial court failed to properly balance the probative value of the conviction against its prejudicial effect, and that the State failed to provide written notice of its intent to use evidence of the conviction. We address each argument in turn.
The threshold question is whether Parker's prior conviction falls outside the ten-year time period provided by Evidence Rule 609(b). Whiteside and the State agree that the ten-year time limit began to run on the date that Parker was released from confinement imposed for his auto theft conviction: March 1, 1995. However, they disagree as to the termination point of the ten-year time period. The State argues, and the trial court agreed, that the termination point of the ten-year time period is the date the current offense was committed, January 22, 2005, rendering evidence of the conviction admissible. Whiteside argues that the termination point of the ten-year time period is the date trial is commenced, which here occurred on August 24, 2005, or the date the witness testifies, here August 25, 2005, thus rendering evidence of the conviction inadmissible unless the requirements of Evidence Rule 609(b) are met.
Indiana courts have addressed several issues regarding Evidence Rule 609(b), including whether the trial court abused its discretion in balancing the probative value of a stale conviction against its prejudicial effect. See Scalissi v. State, 759 N.E.2d 618 (Ind.2001); Stephenson v. State, 742 N.E.2d 463 (Ind.2001); Schwestak v. State, 674 N.E.2d 962 (Ind.1996); Hall v. State, 769 N.E.2d 250 (Ind.Ct.App.2002); Dowdy v. State, 672 N.E.2d 948 (Ind.Ct.App.1996), trans. denied (1997). We have also concluded that the notice requirement of Evidence Rule 609(b) is not satisfied by a habitual offender charge. See Giles v. State, 699 N.E.2d 294 (Ind.Ct.App.1998). We have determined that, where the defendant opens the door to inquiries about his criminal past, evidence of a prior...
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§ 22.08 UNTRUTHFUL CHARACTER — PRIOR CONVICTION: FRE 609
...the time limit for impeaching convictions is the start of the trial at which the witness is testifying."); but see Whiteside v. State, 853 N.E.2d 1021, 1027, 1028 (Ind. App. 2006) ("Three different termination points have been identified by various jurisdictions. Some jurisdictions identify......
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§ 22.08 Untruthful Character—Prior Conviction: FRE 609
...the time limit for impeaching convictions is the start of the trial at which the witness is testifying."); but see Whiteside v. State, 853 N.E.2d 1021, 1027 (Ind. App. 2006) ("Three different termination points have been identified by various jurisdictions. Some jurisdictions identify the t......