Hardiman v. State

OPINION

LANE, Vice Presiding Judge:

Appellant was convicted of Possession of a Controlled Dangerous Substance After Former Conviction of Two or More Felonies (63 O.S.1981, § 2-402) after a trial by jury in the District Court of Oklahoma County, Case No. CRF-87-1430. After a two stage trial, the jury recommended a punishment of sixty (60) years incarceration. Appellant was sentenced accordingly. He now appeals that conviction alleging, among other things, that he was improperly impeached with former convictions. We agree and reverse the conviction.

Appellant and another man, . Ernest Thompson, were arrested in north-east Oklahoma City after police officers noticed them staggering, as if intoxicated, outside Henry’s Cafe. Appellant’s eyes were glassy and bloodshot. When the officer’s approached the two men, they detected a strong odor of phencyclidine (PCP). Both men were placed under arrest. After Appellant was arrested, one of the officers discovered a small brown bottle in Appellant’s front pants pocket. The liquid was later determined to be PCP. At trial, Appellant claimed that the bottle had been planted by the police and that he had never seen it before.

As his first and second assignments of error, Appellant claims that both he and Thompson, who testified at trial, were improperly impeached with prior convictions. He alleges that the convictions used were *224outside the ten year limitation found in 12 O.S.1981, § 2609. He also claims that the State failed to provide proper written notice prior to the introduction of the evidence. Finally, he claims that the admission of the convictions was more prejudicial than probative.

Section 2609(B) provides, in pertinent part that “evidence of a conviction under this section is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction or the release of the witness from the confinement imposed for that conviction, whichever is later....” We will first address Appellant’s contention that a sentence is to be considered remote when more than ten (10) years have passed since his release from physical incarceration by the Department of Corrections, rather than from the actual expiration of the sentence assessed by the trial court. We find it unnecessary to reach the merits of Appellant’s claim because he has failed to provide a sufficient record to allow us to consider even the potential remoteness of any of his convictions. Cardenas v. State, 695 P.2d 876, 878 (Okl.Cr.1985). We are provided only with the various dates on which Appellant and the witness were originally convicted of multiple crimes. No indication is given of the sentences received for any of the crimes. Accordingly, we are unable to determine whether or not the convictions were admitted in violation of Section 2609 or whether the State was obligated to provide the notice required by the section. Any error in this regard is waived.

As a part of this proposition of error, Appellant also claims that the two convictions used against him for impeachment purposes were unduly prejudicial.1 We agree. Under Section 2609(A), evidence of former convictions not involving “dishonesty or false statement” may be admitted if the court determines that the “probative value of admitting this evidence outweighs its prejudicial effect to the detriment of the defendant.” We established a test to aid in making this determination in Robinson v. State, 743 P.2d 1088 (Okl.Cr.1987). We summarized the test in Gilbert v. State, 766 P.2d 361, 363 (Okl.Cr.1988):

To further aid the trial court in determining the admissibility of the evidence, this Court set out five guidelines: 1) the impeachment value of the prior crime; 2) the point in time of the conviction and the witness’s subsequent history; 3) the similarity between the past crime and the charged crime; 4) the importance of the defendant’s testimony; and 5) the centrality of the credibility issue.

Immediately prior to the beginning of the trial, Appellant presented a Motion in Li-mine which sought to preclude impeachment under Section 2609. The trial court specifically considered the criteria listed in Robinson and determined that only two of Appellant’s six convictions were admissible under this section, both of which were related to possession of heroin. The court stated its findings:

Probative value because this is a same type of case that was done in the ten year period and that credibility is going to be all important in this case.

(Tr. 7).

In Robinson, the trial court committed error when it refused to sustain a Motion in Limine filed by the defendant. We held, however, that the error was cured when the trial court refused to allow the prosecutor to inquire further into the nature of the defendant’s prior crimes than simply establishing the number (and not the nature) of the prior convictions. In Robinson, we warned that a “special problem” could occur were not these limitations followed:

A special problem exists, however, when the previous conviction is the same or substantially the same as the one for which the defendant is on trial. In these situations, there exists a pressure on the jurors to think that ‘if the defendant did it once, he could do it again.’ This would be particularly true in cases such as this, *225where the evidence consists almost exclusively of conflicting testimony.

Robinson, 743 P.2d at 1091.

Appellant had been previously convicted of a total of six felonies, yet the only two allowed into evidence were the most prejudicial of all of them.2 After looking at the Robinson test, the trial court held that admission of four of the convictions were more prejudicial than probative. The court, however, specifically allowed the two drug convictions to be introduced solely because of their similarity to the present charges. We find that the trial court misinterpreted the Robinson guidelines and allowed evidence to go to the jury which even the court recognized as unduly prejudicial. We will give great deference to a trial court’s opinion in these matters, but where, as here, the decision of the trial court is clearly erroneous, we must remedy the situation. Johnson v. State, 761 P.2d 484, 491 (Okl.Cr.1988). It has long been the rule that a defendant must be convicted of a crime based upon the evidence relating to that crime and not his commission of prior similar acts. See Burks v. State, 594 P.2d 771 (Okl.Cr.1979). The trial court clearly abused this rule. Its decision to allow impeachment with these two crimes solely because of their similarity to the present case is precisely the danger warned of in Robinson.

By this opinion, we do not mean to establish a per se rule that when the convictions sought to be introduced as impeachment are the same or similar crimes as the current charge they will not be admissible. Rather, we continue to adhere to the balancing test established in Robinson, holding in this case, that given the conflicting evidence, the’ probative value of the evidence does not outweigh its prejudicial effect. Each case must be judged on its own facts under the criteria established in Robinson. If the determination is made that the convictions are more prejudicial than probative, the nature of the convictions are not admissible. Such a ruling, however, does not limit the State from establishing the number of prior convictions that a defendant has accrued, but merely prevents discussion of the nature of the crime.

We find that the trial court improperly applied the Robinson balancing test in this case. The danger that a defendant will be unfairly convicted because of his prior criminal acts, especially when credibility is a primary issue, is too great in such instances to allow the court’s decision to stand. Accordingly, we must REVERSE Appellant’s conviction and REMAND the case to the district court for a new trial.

PARKS, P.J., and BRETT, J., concur. LUMPKIN, J., specially concurs. JOHNSON, J., concurs in result.

. This proposition of error does not relate in any way to the use of the prior convictions for enhanced punishment purposes.

. The other convictions were: Receiving a Stolen Credit Card, two (2) charges of Burglary in the Second Degree and Concealing Stolen Property.