State v. Cooper

Berdon, J.,

dissenting. I am troubled by this case. At the very least, I would reverse on the basis of the introduction of the twenty-six year old conviction of breaking and entering, which was used to impeach the credibility of Raymond Vail, an important defense witness. Vail was convicted of breaking and entering when he was seventeen years old.

“Three factors should be examined to determine whether a prior criminal conviction properly has been admitted: (1) the extent to which admission is likely to prejudice the defendant’s cause; (2) the significance of the prior crime as bearing on . . . truthfulness; and (3) the remoteness in time of the prior conviction.” State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984); see also State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982).

In the present case, it is quite evident that the trial court failed to make this analysis. The trial court obviously relied on the rule, long discarded, that remoteness goes “to [the] weight, not [the] admissibility” of *446the evidence. State v. Robington, 137 Conn. 140, 145, 75 A.2d 394 (1950). The trial court stated: “It is quite, remote; there is no question about that. But, of course, that’s something that can be considered in reference to any weight, if any, that would be given to that conviction on the question of impeachment. Objection overruled. Exception may be noted.”

The majority would have us believe that the prejudice to the defendant was minimal. Vail, however, was one of only two witnesses who corroborated the defendant’s claim that he had been attacked by a group of young men, including the victim. Vail’s testimony was essential because it directly undermined the credibility of the state’s three principal witnesses.

Just this term, we upheld the trial court’s refusal to admit into evidence the following criminal convictions for the purpose of impeaching the credibility of the state’s key witness: “four counts of breaking and entering in 1957; two counts of breaking and entering and two counts of larceny in 1958; one count of breaking and entering theft in 1959 . . . State v. Sauris, 227 Conn. 389, 408, 631 A.2d 238 (1993). In Sauris, we said: “While leaving the matter to the general discretion of the trial court, we have sanctioned a general guideline for the determination of remoteness that parallels rule 609 (b) of the Federal Rules of Evidence. Rule 609 (b) establishes a ten year limitation from conviction or release from resulting confinement upon the use of the conviction for impeachment purposes unless the probative value of the conviction substantially outweighs its prejudicial effect. State v. Nardini, supra, 525-26. Although we recognize that convictions having special significance on the issue of veracity may surmount the standard ten year bar; id., 526; we conclude that, in this case, it was within the trial court’s discretion to conclude that three convictions over thirty years *447old, even though bearing on the witness’ veracity, were too remote to be admissible.” Id., 409-10.

I believe the time has come to adopt rule 609 (b) of the Federal Rules of Evidence, which places a presumptive time limitation on the age of the conviction, as follows: “Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction . . . unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.” Federal Rules of Evidence 609 (b).

Accordingly, I would find either that the trial court failed to exercise its discretion or alternatively, that it abused its discretion in allowing the conviction into evidence to impeach the credibility of Vail.

I am also concerned about part I of the majority opinion, which upholds the admission into evidence of the defendant’s possession of marijuana two months prior to the incident in this case. The majority acknowledges that this is a close call. I do not believe that the defendant’s possession of marihuana two months prior to the date of the shooting is relevant to establish a motive for the shooting or to establish that he was carrying a weapon. Even if the evidence were relevant, its prejudicial impact far outweighs any probative value. State v. McDermott, 190 Conn. 20, 25, 458 A.2d 689 (1983); see also C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 8.3.2, p. 233.

*448This was not an open and shut case. The jury deliberated over the course of seven days and obviously was concerned about intent because it asked to be reinstructed on this element. In view of the difficult issues in this case, the attack on Vail’s credibility and the evidence of the defendant’s misconduct were especially prejudicial. I would reverse.

Accordingly, I dissent.