Opinion
Court of Appeals No. A-9983.
January 14, 2009.
Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins, Judge, Trial Court No. 1JU-06-599 Cr.
Brian T. Duffy, Assistant Public Advocate, Appeals Statewide Defense Section, and Joshua P. Fink and Rachel Levitt, Public Advocates, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION
Scott A. Thistle was charged with assaulting another inmate at the Lemon Creek Correctional Center. At Thistle's trial in October 2006, the victim of this assault, John Salm, was called as a witness by the State. Thistle's attorney requested permission to impeach Salm with evidence that he had been convicted of a crime involving dishonesty (writing bad checks). However, Salm's conviction was from 1998; in other words, it was more than five years old.
Because the conviction was more than five years old, it was presumptively inadmissible under Alaska Evidence Rule 609(b). This rule declares that evidence of a witness's conviction for a crime involving dishonesty or false statement "is [normally] inadmissible [for the purpose of attacking the credibility of a witness] if a period of more than five years has elapsed since the date of the conviction."
The trial judge, Superior Court Judge Patricia A. Collins, recognized that Evidence Rule 609(b) gave her the authority to relax the five-year time limit if she concluded "that admission [of the] evidence [was] necessary for a fair determination of the case." She therefore invited Thistle's attorney to explain why evidence of Salm's conviction was necessary for a fair trial. The defense attorney offered an argument on this point, but her argument did not convince Judge Collins to relax the rule. Therefore, when Salm took the stand during the State's case-in-chief, the defense was not allowed to impeach him with evidence of his bad check conviction.
However, after the prosecutor rested, just before the defense began presenting its case, the defense attorney renewed her request to introduce evidence of Salm's prior conviction. The defense attorney provided the court with more information regarding Salm's criminal history. In addition, Judge Collins conducted her own research into the law regarding Evidence Rule 609(b) and a trial judge's authority to relax the five-year limit.
Based on this legal research and on the new information presented by the defense attorney, Judge Collins concluded that Thistle should be allowed to impeach Salm with evidence of the bad check conviction. Pursuant to this ruling, the defense attorney called Salm back to the stand and had him admit that he had been convicted of a crime of dishonesty in 1998.
Thus, this issue was seemingly resolved in Thistle's favor. But on appeal, Thistle argues that Judge Collins's handling of this issue deprived him of his right to due process of law. In particular, Thistle argues that his defense attorney should have been allowed to question Salm about the prior conviction as part of cross-examination when Salm took the stand for the first time ( i.e., when Salm was called as a witness by the State). Thistle asserts that the impact of this evidence was substantially diminished because the jury did not hear it until the very end of the case, during the re-examination of Salm by the defense attorney.
For the reasons explained here, we conclude that Thistle failed to preserve this argument for appeal, and we further conclude that he has not shown plain error.
Underlying facts
As we have already explained, Salm's conviction for writing bad checks was more than five years old, so it was presumptively inadmissible under Alaska Evidence Rule 609(b). Judge Collins understood that she had the authority to relax the five-year time limit if this evidence was necessary for a fair determination of the case. She therefore invited the defense attorney to explain why evidence of Salm's conviction was necessary for a fair trial. Here is what the defense attorney offered:
Defense Attorney: [Mr. Salm is] an important witness. . . . [And] even though [his] conviction [is eight years old], he's continued to have his probation extended. . . . I mean, it look[s] like, [because] he was in jail when this incident occurred, . . . [he] was finishing up the last of his sentence for issuing a bad check. So it seems like, overall, [the effects of] this [conviction] continued on. He was never able to successfully complete probation.
. . .
I think that this is more [important] for us because, especially in a case where basically you have two people, nobody [else] saw anything — it's one person's word against the other['s]. I think that goes directly to bias and motive, whether or not this person has a history of not telling the truth, and whether or not this person has a history of basically stealing, getting money that they are not entitled to, writing insufficient checks, especially with the background of somebody who was writing a lot of checks to get money for drugs. This goes into the whole credibility and going into motive for why somebody like that has a history of lying and trying to basically put one over on everybody else.
After hearing the defense attorney's argument, Judge Collins concluded that these concerns were insufficient to warrant relaxation of the normal five-year rule.
However, after the State rested its case-in-chief, the defense attorney renewed her request to be allowed to impeach Salm with evidence of the prior conviction. The defense attorney argued that it was much clearer, at the end of the State's case-in-chief, that the State's case rested almost entirely on Salm's version of events — thus making Salm's credibility a crucial underpinning of the State's case. The defense attorney also argued that, because Salm's probation had been extended "time and time again", the record suggested that Salm had not been rehabilitated — and that therefore his 1998 conviction for writing bad checks, although old, remained pertinent to the issue of Salm's credibility as a witness.
At this point, Judge Collins informed the parties that she had been thinking about this issue on her own. She declared that she had "reviewed the 68 pages or so . . . from [the] Ketchikan [court file] with respect to [Salm's] prior conviction". The judge also declared that she had "reviewed a bit of the case law" on this issue.
In particular, Judge Collins had read this Court's decision in Clifton v. State, 728 P.2d 649 (Alaska App. 1986), where we upheld a trial judge's decision to allow the impeachment of a witness with older crimes of dishonesty. The determinative factor, according to this Court, was that the witness did not simply have one or two convictions beyond the five-year limit, but rather "a significant string of felonies involving dishonesty" — a series of crimes that the trial judge found to be "extremely probative of the [witness's] character". Id. at 652-53.
Later reversed by the supreme court, 751 P.2d 27 (Alaska 1988).
Judge Collins noted that Salm's court file showed that the State had filed a petition to revoke his probation based on the allegation that he wrote another bad check. But the judge also noted that this petition was never adjudicated — so she did not know if the State could have proved that allegation (even under the "more probable than not" standard that applies to probation revocation proceedings).
At this point, Thistle's attorney informed Judge Collins that Salm had another prior conviction for a crime of dishonesty: a conviction for forgery. The defense attorney told Judge Collins that she had not mentioned the forgery conviction before because "it was so beyond the five years". However, because Judge Collins had prompted her to think about "a pattern" of dishonesty, the defense attorney now believed that the existence of this additional forgery conviction was relevant to the issue of whether Thistle should be allowed to introduce evidence of Salm's bad check conviction. The defense attorney also suggested that Salm might have yet a third prior conviction for an unspecified crime of dishonesty.
When Thistle's attorney told Judge Collins that she was willing to provide the details of these prior convictions "later on", the judge replied that there did not appear to be much "later on" left in Thistle's trial — because the defense case was about to start. Nevertheless, the defense attorney did not ask for a recess. Rather, the attorney told Judge Collins that she could retrieve this information while the judge was "advising [Thistle] outside the presence of the jury" — apparently, a reference to the LaVigne inquiry that a trial judge must conduct when the defense announces an intent to rest without presenting the defendant as a witness. Thistle's attorney then proceeded to call the first defense witness to the stand.
See LaVigne v. State, 812 P.2d 217, 222 (Alaska 1991).
At the conclusion of that witness's testimony, the defense attorney presented Judge Collins with more information concerning Salm's criminal history. This information showed that Salm had a forgery conviction from 1999 as well as the bad check conviction from 1998. It also showed that Salm had several probation revocations from his bad check conviction.
Judge Collins concluded that this information was important, not only for the analysis contained in this Court's Clifton decision, but also because of the approach taken by the Alaska Supreme Court when it reviewed (and ultimately reversed) this Court's decision: see Clifton v. State, 751 P.2d 27 (Alaska 1988). In the supreme court's decision in Clifton, the court suggested that evidence of a witness's conviction might be admissible, even though the conviction was older than five years, if the circumstances affirmatively demonstrated that the witness had not been rehabilitated. Id., 751 P.2d at 30 n. 2.
Having considered all of the new information about Salm's criminal history in light of both this Court's 1986 Clifton decision and the supreme court's 1988 Clifton decision, Judge Collins concluded that the defense attorney should be allowed to impeach Salm with evidence of his conviction for writing bad checks.
After Judge Collins made this ruling, the defense attorney suggested that the ruling created "a procedural problem" — because Salm had already been called as a witness and had left the stand. The defense attorney told Judge Collins that she had no objection to allowing the prosecutor to re-open the State's case for the purpose of calling Salm to the stand again. But Judge Collins pointed out that there were other ways to apprise the jury of Salm's conviction for a crime of dishonesty — alternatives such as simply having the parties stipulate that Salm had such a conviction, or having the defense call Salm as a witness.
Alaska Evidence Rule 608(b) declares that "evidence of . . . specific instances of the conduct of a witness offered for the purpose of attacking or supporting that witness' credibility is inadmissible unless [the] evidence is explicitly made admissible by [another provision of the evidence] rules". However, the Commentary to Rule 608(b) (third paragraph) acknowledges that evidence of a witness's conviction of a crime involving dishonesty or false statement is one of the codified exceptions to this general rule. See also Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal Rules of Evidence Manual (9th ed. 2006), Vol. 3, p. 609-8 (the existence of the conviction can be brought out on either direct examination or cross-examination of the witness).
A few minutes later, Judge Collins asked if the State planned to call Salm to the stand as a rebuttal witness, or if the defense attorney wanted to call Salm as a witness during the defense case. The prosecutor replied, "I want to think about it." Judge Collins then called a short recess. When the court reconvened, the prosecutor told Judge Collins that he did not intend to re-call Salm to the stand, and that it "sound[ed] like [Salm] would be witness number two in [the defense] case." The defense attorney responded, "That's fine." The prosecutor then added that, given the circumstances, he would not object to having the defense attorney ask Salm leading questions ( i.e., proceeding as if the subject had come up during cross-examination of a State's witness).
Soon thereafter, Thistle's attorney called Salm to the stand. The defense attorney asked Salm a single question: "Were you convicted of a crime of dishonesty in 1998?" Salm answered, "Yes, ma'am." Salm then left the stand, and the defense rested its case.
Thistle's claim on appeal
As we stated earlier, Thistle claims that Judge Collins's handling of this issue deprived him of his right to due process of law. He argues that his defense attorney should have been allowed to question Salm about the prior conviction as part of the defense attorney's cross-examination when Salm took the stand during the State's casein-chief. But, as explained in the preceding section of this opinion, when Salm testified during the government's case-in-chief, the governing ruling (at that point in the trial) was that evidence of Salm's prior conviction was not admissible.
That ruling remained in place until the beginning of the defense case, when Thistle's attorney renewed her motion to introduce evidence of Salm's prior conviction. At that time, Judge Collins changed her ruling — but not because she believed that the original ruling was incorrect (given the information available to her at the time of that original ruling). Rather, Judge Collins changed her ruling because, by the end of the State's case-in-chief, the judge had re-assessed how important Salm's credibility was to the jury's decision, and (in addition) the defense attorney had provided her with supplemental information about Salm's criminal history. These two factors, assessed in light of the additional legal research that the judge herself had conducted on this point of law, caused Judge Collins to re-evaluate whether she should relax the time limit codified in Evidence Rule 609(b).
Given these facts, if Thistle is to pursue a claim that he should have been able to cross-examine Salm about the prior conviction when Salm initially took the stand, the first thing Thistle must do is convince this Court that Judge Collins's initial ruling on this issue was wrong. But Thistle does not even address this point in his briefs to this Court. Thistle's failure to brief this crucial issue is the first reason why his due process claim is not preserved.
Moreover, as we explained in the preceding section of this opinion, Thistle's attorney expressly recognized that Judge Collins's changed ruling on the admissibility of Salm's prior conviction posed a "procedural problem" — because Salm had already testified and had left the stand. Yet, despite the defense attorney's open acknowledgement of this problem, when the prosecutor declared that the State would not re-call Salm to the stand, and that the defense attorney would have to call Salm as a witness in the defense case, the defense attorney did not object. Rather, the defense attorney answered that this was "fine". This is the second reason why the due process issue is not preserved for appeal.
Because this issue is not preserved for appeal, Thistle must confine himself to a claim of plain error. And there are two reasons why he can not show plain error.
First, even though Thistle's attorney presented the impeachment evidence by calling Salm as a witness in the defense case, the prosecutor announced that he did not object if the defense attorney asked Salm leading questions. In other words, the defense attorney was able to employ leading questions in her examination of Salm, just as if she had been cross-examining him.
Second, as described above, after Judge Collins gave the defense attorney permission to elicit evidence of Salm's prior conviction, the defense attorney asked Salm a single question — whether he had been convicted of a crime involving dishonesty in 1998 — and Salm answered "yes". There is nothing in the record to suggest that Thistle's attorney needed to, or even wanted to, ask additional questions on this subject — much less anything to suggest that the defense attorney was precluded or hindered from asking additional questions.
For these reasons, we conclude that Thistle has failed to show plain error.
Conclusion
The judgement of the superior court is AFFIRMED.