Fletcher v. State

340 N.E.2d 771, 264 Ind. 132, 1976 Ind. LEXIS 441

Opinions

Hunter, J.

Defendant-appellant William Henry Fletcher was convicted of committing a felony (robbery) while armed. The Court of Appeals in Fletcher v. State, (1975) Ind. App., 323 N.E.2d 261, affirmed the conviction. Appellant petitions us to transfer this cause on several grounds. We grant transfer to review appellant’s claim that the decision of the Court of Appeals contravenes the precedent of Dexter v. State, (1973) 260 Ind. 608, 297 N.E.2d 817.

I.

In Dexter we reversed a conviction for aggravated assault and battery where the state, over objection, was permitted to cross-examine Dexter as to his prior convictions for assault. In reversing Dexter’s conviction, we unanimously relied upon the rule enunciated in Ashton v. Anderson, (1972) 258 Ind. 51, 279 N.E.2d 210, that for impeachment purposes the only prior convictions which are admissible are those for crimes involving dishonesty or false statement and those for crimes which by statute would have rendered a witness incompetent.

At his bench trial, appellant took the stand in his own behalf. On cross-examination, the first question propounded was: “Mr. Fletcher, were you convicted of theft in January, 1972?” Appellant’s objection, the substance of which was premised upon our holding in Dexter, sv/pra, was overruled.

The Court of Appeals recognized appellant’s argument, but found it unnecessary to review the merits. The reason assigned for nonreview was the presumption obtaining in judge-tried cases that the trial judge knows the

rules of evidence and will ignore evidence improperly admitted in reaching his judgment. The presumption has no place in this case. Unlike King v. State, (1973) 155 Ind. App. 361, 292 N.E.2d 843, 845, where “defendant-appellant stated no reasons or grounds for his respective objections,” here the appellant specifically apprised the court that he was relying on a ruling of this Court and then proceeded to state the substance of such holding for the trial court. It is a curious ratiocinative process which presumes that the trial court will disregard that which it holds admissible over specific objection. We therefore reject the application of the presumption herein, and proceed to review the merits.

Prior to Ashton v. Anderson, supra, admission of previous convictions for impeachment purposes was held to be within the sound discretion of the trial court. In Ashton we noted the illogic of assuming “that a conviction of any crime reflects, ipso facto, on the credibility of the witness as to truth and veracity.” 258 Ind. 51, 60, 279 N.E.2d 210, 215. We further elaborated:

“Simply stated, either the particular criminal conviction reflects on the witness’ credibility for truth and veracity, or it does not. If the particular conviction is for a crime which has a tendency to reflect on the individual’s credibility for truth and veracity, such evidence should not be excluded; if the prior conviction is for a crime which has no bearing whatsoever on his credibility for truth and veracity, such evidence should not be admitted.” 258 Ind. 51, 61, 279 N.E. 2d 210, 216.

The only exception to Ashton’s guiding principle is mandated by Ind. Code § 34-1-14-14, which permits impeachment by proof of infamous crimes which would have rendered the witness incompetent at common law: namely, treason, murder, rape, arson, burglary, robbery, kidnapping, forgery, and willful and corrupt perjury.

Thus, the Ashton decision has generally been regarded as having two branches. The first branch allows proof of prior convictions which relate to the witness’s propensity to tell the truth — in the words of Ashton, “crimes involving dishonesty or false statement.” See, e.g. Dexter v. State, supra, Lewis v. State, (1973) 157 Ind. App. 149, 299 N.E.2d 193; Hannah v. State, (1974) 160 Ind. App. 317, 311 N.E.2d 838; Mayes v. State, (1975) Ind. App., 318 N.E.2d 811. The present case falls under this first branch.

The second branch of Ashton recognizes proof of prior conviction of infamous crimes. These convictions may relate to the individual’s propensity for truth telling, as in the case of the conviction for willful and corrupt perjury. Most infamous crimes, however, such as rape, murder and treason, bear no relationship to the convicted witness’s truthfulness. Because this non-relationship cuts deeply against the grain of Ashton, we believe that the second branch should be limited exclusively to proof of the infamous crimes enumerated above, and should not be judicially extended to permit proof of prior convictions of lesser included offenses.¹ Such extension should come, if at all, from the legislative branch.

Turning to the case at bar, the determination of whether appellant’s prior theft conviction was admissible depends upon whether under Ashton such conviction may be said to involve “dishonesty or false statement.” The determination is not an easy one. Conduct which would sustain a conviction for theft under our Offenses Against Property Act, Ind. Code § 35-17-5-1 et seq., Burns § 10-3028 (1975 Supp.) et seq., would have previously sustained a conviction for any of several crimes including grand larceny, petit larceny, larceny by trick, obtaining property by false pretenses, blackmail, embezzlement, and receiving stolen property. If we examine the elements of these crimes, particularly focusing upon the method of the wrongful taking, we will find some which directly correlate with the propensity of the witness for truth and veracity. In others, however, any relation between the offense and the witness’s inclination to tell the truth is tenuous or nonexistent. These differences, however, are not considerations which may readily be taken into account. There is today but one conviction possible for any of these crimes and that is theft. We reject as too cumbersome any procedure which would require the trial court to probe about the record of the witness’s prior theft conviction to ascertain the common law equivalent, prior to admitting any evidence of the conviction at trial. We therefore hold that proof of prior theft convictions are admissible for impeachment purposes under that portion of Ashton which allows proof of crimes involving “dishonesty or false statement.” We further hold that appellant was properly questioned with regard to his prior theft conviction.

In reaching our decision, we are not unmindful of Judge Buchanan’s admonition in Mayes v. State, supra, that “all crimes have some element of dishonesty in the broad sense of moral depravity.” The word dishonesty as used in Ashton was not used in such a broad sense, and our holding here should not be construed as granting approval for such a reading. At the same time we recognize that our holding herein may allow admission of some theft convictions which arise from factual situations which do not indicate a lack of veracity on the part of the witness. In such cases, we believe that counsel should make such facts known to the court through a pre-trial motion in limine, supported by appropriate affidavits, thereby allowing the court the opportunity to exclude, in its discretion, any reference to such prior conviction. The vigilant use of this procedure by counsel will insure that the guidelines of Ashton are adhered to, without disrupting the trial.

II.

Appellant also argues that the trial court erred in failing to suppress identification testimony because it was the product of an illegal lineup. Aside from the lineup, the record shows a sufficient independent basis for appellant’s identification by the witness. When such basis exists, a tainted pre-trial identification procedure does not necessitate reversal. Bowen v. State, (1975) 263 Ind. 558, 334 N.E.2d 691.

Transfer granted. Judgment affirmed.

Arterburn, J., concurs in result with opinion in which Givan, C.J., concurs; Prentice, J., concurs in result with opinion; DeBruler, J., dissents with opinion.

Footnotes

1

. In my opinion, we erred in denying transfer in Mayes v. State, (1975) Ind. App., 318 N.E.2d 811. Mayes was a prosecution for possession of heroin. The defendant was cross-examined about a previous conviction for assault with intent to commit robbery. The Court of Appeals held the crime to be admissible as one involving “dishonesty,” noting that our holding in Ashton permitted proof of “only those con victions for crimes involving dishonesty or false statement.” The Court of Appeals noted in a footnote:

“2. Use of the disjunctive ‘or’ clearly implies that crimes involving dishonesty are not limited to those crimes involving false statement, i.e., ‘a lack of veracity’, such as ‘fraud, forgery, perjury, and the like.’ ”

Our denial of transfer in Mayes unmistakably invites a return to pre-Ashton days when any crime evidencing bad character was admissible. See Judge Buchanan’s excellent dissent in Mayes. There is no doubt that our holding in Ashton was phrased in the disjunctive, but the essence of the words “dishonesty or false statement” appearing in the holding, must be controlled by the central theme of Ashton: “either the particular criminal conviction reflects on the witness’ credibility for truth and veracity, or it does not.”

Our denial of transfer was based on the premise that the mental state necessary to sustain a conviction for robbery is the same mental state required to sustain a conviction for assault and battery with intent to commit robbery. Since robbery was admissible as an infamous crime, ergo, a crime with the same mental elements should be admissible. The problem with this analysis is that assault and battery with intent to commit robbery is not an infamous crime which would have rendered the witness incompetent at common law or under the statute.

With regard to whether our decision herein dictates that the result reached in Mayes was, neyertheless, a correct one, we intimate no opinion.