State v. Jarrett

465 A.2d 238, 143 Vt. 191, 1983 Vt. LEXIS 491

• Court: Supreme Court of Vermont
• Decided: June 7, 1983
• Docket: 485-81
• Status: Published

Opinions

Larrow, J. (Ret.),

Specially Assigned. Defendant appeals a conviction, after jury trial, for breaking and entering in the daytime. 13 Y.S.A. § 1201. We reverse and remand.

Defendant raises on appeal three claims of error. Our disposition of his first claim makes consideration of the others unnecessary. That claim relates to the action of the trial court on his motions, made in limine and at the close of the State’s evidence, to exclude the use of prior convictions to impeach his credibility should he take the stand. Some prior convictions were indeed held inadmissible, as not involving moral turpitude under the statute. 12 V.S.A. § 1608. Ruled admissible, however, were convictions for a 1973 grand larceny (of food and drink from a restaurant), the 1977 forgery of a $46.00 check, and an uttering (date unspecified) involving goods Worth under $300.00.

It would serve no useful purpose to outline at length the evidence against the defendant. Although practically all circumstantial, it established virtually beyond question his presence at the scene, and his taking and later possession of the personal property removed from the premises. His only indicated defense was entry to escape the cold, and an intent to steal formed only after the entry. However believable, the defense as to intent was highly dependent, from its nature, on the defendant’s own testimony. After the ruling allowing impeachment through his prior convictions, defendant did not testify.

We do not rule as a matter of law upon the admissibility of the convictions in question, beyond indicating that the circumstances here certainly warrant the reluctance to admit of which we speak in State v. Gardner, 139 Vt. 456, 461, 433 A.2d 249, 252 (1981). As we there held, the court’s ruling is a discretionary one, to be made in light of all the relevant circumstances, no one of which is in itself governing. Gardner had been handed down before the trial here, and was in fact discussed by the trial court and counsel during argument on the defendant’s motions to exclude. The parties do not question that it governs in his case. State v. Shattuck, 141 Vt. 523, 450 A.2d 1122 (1982).

We laid down in Gardner a number of factors which the trial court should consider in ruling on the question of admissibility, and indicated that even these were not exclusive considerations. We particularly urged consideration of defenses dependent upon a respondent’s testimony, as here, and the deterrent effect of a fear of impeachment and prejudice therefrom. Id. at 461, 433 A.2d at 252. Although no formal order was made, and no conclusions of law filed (a procedure we do not by rule require), it is quite apparent from the transcript below that the trial court, as defendant argues, gave only “short shrift” to all but one of the Gardner criteria, i.e., whether each of the prior convictions involved falsehood. This is not adequate compliance with Gardner standards.

If the record were silent, we could assume such compliance with a well-established and clearly stated standard, since there would be no showing that it had withheld discretion or exercised it for “clearly untenable reasons or to an extent clearly untenable.” Miller v. Ladd, 140 Vt. 293, 297-98, 437 A.2d 1105, 1108 (1981) ; vanLoon v. vanLoon, 132 Vt. 236, 238, 315 A.2d 866, 867 (1974). We have accorded similar treatment to participation by assistant judges in equitable cases, refusing to assume automatic harm therefrom, without more appearing. Braun v. Humiston, 140 Vt. 302, 305, 437 A.2d 1388, 1389 (1981). But we have summarily reversed where the record clearly showed the presence of active participation in the decision. Maskell v. Beaulieu, 140 Vt. 75, 435 A.2d 699 (1981). It is one thing to assume compliance with recognized standards, in keeping with the burden on the appellant to demonstrate error, but it is quite another to ignore error below, raised in the trial court and apparent from the record.

It is indeed possible that some members of our judiciary are unhappy with the result in Gardner. When handed down, it was not a unanimous decision. But whatever qualms about the decision previously existed should be laid to rest by the recent adoption of the Vermont Rules of Evidence. Rule 609 clearly incorporates the ruling of Gardner and makes the balancing test of Rule 403 controlling on the admissibility of prior convictions, subject to the overall limitations of the statute, 12 V.S.A. § 1608. Probative value for impeachment must be weighted against the chilling effect on the right of a criminal defendant to testify, as guaranteed by 13 V.S.A. § 6601. It is true that the Rules of Evidence were not in effect at the time of the trial in this case, but their subsequent adoption certainly militates most strongly against any present judicial modification of the principles enunciated in Gardner. Those principles were not here conformed to, and reversal is required. Such reversal makes consideration of other points raised unnecessary.

Judgment reversed, conviction vacated, and cause remanded.