State v. Stewart

2002 ND 102, 646 N.W.2d 712, 2002 N.D. LEXIS 140, 2002 WL 1481044
CourtNorth Dakota Supreme Court
DecidedJuly 11, 2002
Docket20010283, 20010284
StatusPublished
Cited by13 cases

This text of 2002 ND 102 (State v. Stewart) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Stewart, 2002 ND 102, 646 N.W.2d 712, 2002 N.D. LEXIS 140, 2002 WL 1481044 (N.D. 2002).

Opinion

KAPSNER, Justice.

[¶ 1] John Lee Stewart appealed from two criminal judgments entered on jury verdicts finding him guilty of driving under the influence of liquor or drugs and aggravated reckless driving. We conclude evidence of Stewart’s prior felony convictions was admissible and there was sufficient evidence Stewart was under the influence of alcohol while driving a vehicle. We affirm.

I

[¶ 2] Stewart rolled his car north of Bottineau on October 10, 2000. Mike Kro-gen and Stewart’s brother, Mitch Lafram-boise, were passengers in the car. When a deputy sheriff and medical personnel arrived at the accident scene, Krogen was unconscious. Krogen later died from injuries received in the accident. Neither Stewart nor Laframboise would indicate who was driving the vehicle and investigators were unable to learn who the driver was until a few days later. After a jury trial, Stewart was convicted of driving under the influence of liquor or drugs and aggravated reckless driving. Stewart appealed the criminal judgments.

II

[¶ 3] Stewart contends the trial court abused its discretion in admitting three felony convictions into evidence. Stewart testified in his defense. On direct examination, he testified he had one alcoholic drink, a “Jim Beam and coke,” on October 10, 2000, with dinner, “about 7:00, 7:30,” and that he made the drink, which contained “about the same as one or two shots” of alcohol.

[¶4] Stewart testified on cross-examination: (1) he could not “remember everything up to the point of having the accident”; (2) “I remember parts of it. I guess I don’t remember the time of the accident. But there’s parts I don’t remember, you know, after the accident or before the accident too”; (3) the only drink he remembered was the one with dinner; (4) he did not remember talking to his father after the accident, did not “remember talking to the police at all”; and did not remember talking to his brother or to Emergency Medical Technician Bierman at the accident scene; and (5) when asked, “What do you remember in the hospital” *715 Stewart replied, “I remember they wouldn’t leave me alone.”

[¶ 5] The prosecutor offered three exhibits showing prior felony convictions of Stewart: (1) a December 30, 1991, judgment and order deferring imposition of sentence on a plea of guilty to unauthorized use of a vehicle, a class C felony; (2) a September 30, 1992, criminal judgment and commitment entered upon a plea of guilty to unlawful possession of a firearm, a class C felony; and (3) a March 29, 1996, criminal judgment and commitment upon a plea to reckless endangerment, a class C felony. The exhibits showed the sentences Stewart received, but did not disclose the underlying facts of the offenses.

[¶ 6] Rule 609, N.D.R.Ev., which was taken from the Uniform Rules of Evidence (1974), provides, in part:

(a) General Rule. For the purpose of attacking the credibility of a witness, (i) evidence that a witness other than an accused has been convicted of a crime must be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime must be admitted if the court determines that the probative value of admitting that evidence outweighs its prejudicial effect to the accused; and (ii) evidence that any witness has been convicted of a crime must be admitted if it involved dishonesty or false statement, regardless of the punishment.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of conviction or of the release of the witness from any confinement imposed for that conviction, whichever is the later date unless the witness is still in confinement for that conviction.

Under N.D.C.C. § 12.1-32-01, felonies are offenses punishable by a maximum imprisonment in excess of one year. Thus, under N.D.R.Ev. 609(a)(i), for the purpose of attacking the credibility of a testifying accused, evidence that the accused has been convicted of a felony that meets the time limit of subdivision (b) “must be admitted if the court determines that the probative value of admitting that evidence outweighs its prejudicial effect.” It has not been argued Stewart’s convictions involved dishonesty or false statement under N.D.R.Ev. 609(a)(ii).

[¶ 7] “[IJnherent in Rule 609(a) is an acknowledgment that prior convictions are probative of a witness’s credibility.” State v. Randall, 2002 ND 16, ¶ 6, 639 N.W.2d 439; see also State v. Lloyd, 345 N.W.2d 240, 247 (Minn.1984) (“Underlying Rule 609 is the principle that impeachment by a prior conviction assists the jury to judge better the credibility of a witness by affording it the opportunity to view that person as a whole.”). However, when dealing with the impeachment of a testifying defendant, the mere fact a prior conviction may have probative value does not automatically permit its use to impeach the defendant. When applied to the accused, Rule 609(a)® imposes a requirement that the evidence be admitted only if its probative value outweighs its prejudicial effect. As we have noted, Rule 609(a)(1) includes a special balancing test that “only applies to a criminal defendant because a criminal defendant faces the unique risk that juries will use prior convictions as evidence of the defendant’s propensity to commit crime, rather than considering the convictions for impeachment purposes.” Randall, 2002 ND 16, ¶ 13, 639 N.W.2d 439.

*716 [¶ 8] One of the factors to be considered in applying this special balancing test is the similarity between the prior crime and the charged crime. State v. Murchison, 541 N.W.2d 435, 442 (N.D.1995). We have previously explained that, when dealing with the impeachment of defendants, trial courts must be particularly careful about admitting prior convictions that are similar to the offense charged because of the potential prejudice that may result. See State v. Eugene, 536 N.W.2d 692, 695 (N.D.1995). Prior convictions similar to the charged crime should be admitted sparingly, while dissimilarity favors admission. 4 J. McLaughlin, Weinstein’s Federal Evidence § 609.05[3][d] (2d ed.2002). If the prior conviction is similar to the crime charged, there is a heightened danger the jury will use the evidence not only for impeachment purposes, but also as evidence of the defendant’s propensity to commit crime. Eugene, at 696. The Fourth Circuit explained the danger facing the accused:

Admission of evidence of a similar offense often does little to impeach the credibility of a testifying defendant while undoubtedly prejudicing him. The jury, despite limiting instructions, can hardly avoid drawing the inference that the past conviction suggests some probability that defendant committed the similar offense for which he is currently charged.

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Bluebook (online)
2002 ND 102, 646 N.W.2d 712, 2002 N.D. LEXIS 140, 2002 WL 1481044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stewart-nd-2002.