Croney v. State

BUSSEY, Judge,

dissenting.

I must respectfully dissent to the Court’s disposition of this case. Despite the fact that this case does not present an issue of first impression, appellant cited no cases supporting the assignment on which the majority has reversed. We have decided numerous cases applying and construing the section of the evidence code here disputed. A review of those cases demonstrates that appellant’s conviction should not be reversed. It is well recognized that the trial judge has wide latitude in determining the probative value of a defendant’s prior convictions. Henegar v. State, 700 P.2d 659 (Okl.Cr.1985); Campbell v. State, 636 P.2d 352 (Okl.Cr.1981), cert. denied 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 479 (1983). In this case, the trial judge allowed questioning concerning the disputed convictions only after hearing argument from both sides. I cannot find that the trial judge abused his discretion. Furthermore, examination of a defendant concerning his prior convictions can be harmless, Rushing v. State, 676 P.2d 842 (Okl.Cr.1984), or invited Gilbreath v. State, 651 P.2d 699 (Okl.Cr.1982). In this case, testimony admitted as statements against appellant’s penal interest along with expert testimony of evidence at the scene, telephone records showing appellant’s connection with the owners of the insured premises, and appellant’s subsequent acquisition of furniture supposedly destroyed in the fire overwhelmingly establishes appellant’s guilt. His credibility was destroyed by his testimony which was inconsistent with this evidence, and any error that could have occurred by admission of his prior offenses was harmless. Appellant wholly failed to satisfy his burden to show that he was prejudiced in a substantial right. Harrall v. State, 674 P.2d 581 (Okl.Cr.1984).

The absence of authority supporting appellant’s assignment is underscored by the majority’s opinion, which contains no cases of this Court which could reach the majority’s result. Nor has the Court distinguished or overruled our prior cases incon*39sistent with this holding. If the majority’s theory is to be adopted, its impact on prior law must be explained in order that judges, prosecutors, and defendants alike can understand the law and apply it properly.

For the foregoing reasons, I dissent.