Opinion
No. 380-80
Opinion Filed November 2, 1982
Evidence — Past Offenses — Admissibility
Where the trial court's ruling that it had no discretion to exclude evidence of the defendant's prior conviction for adultery, although consistent with the law under State v. Manning, 136 Vt. 436, 392 A.2d 409 (1978), violated the decision in State v. Gardner, 139 Vt. 456, 433 A.2d 249 (1981), since the decision in Gardner applied to all convictions that were not final in Vermont on the date Gardner was decided, defendant's conviction would be reversed.
Appeal by defendant convicted of sexual assault. District Court, Unit No. 4, Caledonia Circuit, Keyser, Acting District Judge, presiding. Reversed and remanded.
John J. Easton, Jr., Attorney General, Susan R. Harritt and James R. Crucitti, Assistant Attorneys General, and Gordon C. Gebauer, Jr., Law Clerk (On the Brief), Montpelier, for Plaintiff-Appellee.
Andrew B. Crane, Defender General, and William A. Nelson, Appellate Defender, Montpelier, for Defendant-Appellant.
Present: Billings, Hill and Underwood, JJ., and Daley and Larrow, JJ. (Ret.), Specially Assigned
This is an appeal from a judgment convicting the defendant of sexual assault. 13 V.S.A. § 3252. As grounds for appeal the defendant claims, inter alia, that the trial court erred in denying his motion for exclusion of his prior criminal record. We agree.
Prior to trial the defendant moved in limine to prohibit the State from impeaching his testimony by use of his prior conviction for adultery. The trial court denied the motion, ruling that since this was a conviction for a crime occurring within the past fifteen years and one involving moral turpitude the State had an absolute right to impeach with it under State v. Manning, 136 Vt. 436, 392 A.2d 409 (1978). Thereafter, the defendant was tried and convicted on January 7, 1981.
On April 7, 1981, this Court overruled Manning in State v. Gardner, 139 Vt. 456, 433 A.2d 249 (1981), and held that trial courts must exercise discretion before admitting a prior conviction of a defendant for impeachment purposes. Id. at 458, 433 A.2d at 250. On appeal, the defendant contends that Gardner should apply to his case, and that the trial court erred as a matter of law in ruling that his prior conviction was admissible as a matter of right. The State argues that Gardner should not be applied retroactively and that Manning controls.
The issue whether the rule announced in Gardner should be applied to a case tried before Gardner, but not final on appeal when that decision was handed down, was resolved by this court in State v. Shattuck, 141 Vt. 523, 450 A.2d 1122 (1982). In Shattuck, we held that " Gardner applies to all convictions that were not final in Vermont on the date Gardner was decided." Id. at 530, 450 A.2d at 1126.
In the instant case, the trial court's ruling that it had no discretion to exclude evidence of the defendant's prior conviction was consistent with the law under Manning but it violated Gardner. Defendant's conviction therefore must be reversed.
In view of our disposition of this principal question, we do not reach the defendant's other claims of error.
Reversed and remanded.