State v. Ward

*295OPINION

FORSBERG, Judge.

This appeal is from a conviction for burglary, Minn.Stat. § 609.58 Subd. 2(2) (repealed). Appellant moved before trial for a change of venue due to pretrial publicity and for an order ruling that appellant’s prior convictions would not be admissible against him for purposes of impeachment. The trial court at a pretrial hearing denied the motion for a change of venue and ruled that the prior convictions would be admissible for impeachment. At the sentencing hearing, the trial court sentenced appellant to 34 months executed sentence. We affirm.

FACTS

On February 13, 1983, the Duluth home of State Senator James E. Ulland was burglarized while he and his wife were at home. Ulland pursued the intruder through the second floor of his house and out the front door, where he confronted him briefly. Ulland chased the intruder to an apartment building and called the police, who arrested appellant inside the building, in his mother’s apartment.

The incident received limited newspaper coverage, as well as coverage in other media, the extent of which cannot be determined from the record. One of the articles reporting Ward’s arrest was written so as to attribute responsibility for the burglary to Ward, citing an unnamed police source. The article was a short, four-paragraph story, otherwise factual in nature, which did identify the victim of the burglary as Senator Ulland.

In 1976, at the age of 16, Ward had been tried as an adult and convicted of the felony offenses of aggravated assault and burglary. For reasons that do not appear in the record, he served these sentences almost to expiration. He was released from Lino Lakes and given his final discharge papers on February 11, 1983, two days before the offense, and four days prior to his expiration date of February 15. The discharge papers were postdated to February 15, without any conditions being attached to his release.

ISSUES

I. Did the trial court abuse its discretion in ruling that media coverage of appellant’s arrest, which included an attribution of guilt by an unnamed police source in a newspaper article, did not require a change of venue?

II. Did the trial court abuse its discretion in ruling that appellant’s seven-year-old convictions for assault and burglary were admissible against him for impeachment purposes?

III. Did the trial court err in assigning a custody status point for the commission of an offense while on release four days prior to expiration of sentence, with postdated final discharge papers?

ANALYSIS

Change of Venue

Appellant concedes that this case did not receive publicity comparable to that accorded in other cases in which a change of venue has been ordered. See, e.g., State v. Thompson, 266 Minn. 385, 123 N.W.2d 378 (1963). Ward’s argument is based largely on the attribution of guilt in a newspaper report of his arrest. That article stated as follows:

“Police say Ward was surprised by Ulland in a bedroom of Ulland’s home Sunday afternoon. Ward ran from the home and Ulland chased him to a nearby apartment building where Ward later was arrested, police said.”

Appellant’s argument is based also on the role of Ulland, a prominent local public official, as the prosecution’s chief witness.

Whether a change of venue should be granted because of pretrial publicity is a matter over which the trial court has wide discretion. State v. Salas, 306 N.W.2d 832 (Minn.1981). The standard of review is as follows:

“Before it can be concluded that the trial court has abused this discretion, it *296must be shown that a real possibility exists that the jury will not render an unprejudiced or unbiased verdict.”

State v. Hogan, 297 Minn. 430, 437, 212 N.W.2d 664, 669 (1973).

The volume of publicity accorded the Ulland burglary, as it appears from the evidence in the record, was insufficient to require a change of venue. The statement attributed to the unnamed police source, however, which expressed no qualification as to police reporting of Ward’s involvement in the offense, was potentially prejudicial to his chances for a fair trial. In State v. Thompson, supra, the Supreme Court held that, in a first-degree murder case receiving enormous publicity, a change of venue was required, where such publicity included statements attributed to named police officers, including the chief of police and the head of the homicide unit, ascribing guilt to the defendant. Cf., State v. Lupino, 268 Minn. 344, 129 N.W.2d 294 (1964) (extensive publicity without dissemination of opinions of defendant’s guilt by public officials did not require a change of venue).

The newspaper article in this case erred in failing to phrase the initial report of the burglary and arrest in terms of allegations against Ward rather than attributions of guilt. To find a “prejudicial atmosphere,” Thompson, supra, 266 Minn. at 389, 123 N.W.2d at 381, however, which jeopardizes the defendant’s right to a fair trial, requires a determination of the dissemination and likely effect of such a statement. The attribution of guilt in this case was not prominently displayed, given a named source in the police department, or dramatized as part of an ongoing investigation, in the manner of the Thompson news stories.

Nor did the involvement of Senator Ul-land as a victim of the offense combine with these facts to raise the minimal publicity to a prejudicial level requiring a change of venue. The prospect of his trial testimony was not widely publicized. Nor was Ulland the type of “responsible public authority],” State v. Lupino, supra, 268 Minn. at 352, 129 N.W.2d at 300, whose statement may require a change of venue, since he was not a public official charged with investigation of the crime.

Admissibility of Prior Convictions for Impeachment Use

The Minnesota Rules of Evidence permit the use of prior convictions to impeach a witness,

“... but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.”

Minn. Rules of Evid., Rule 609(a). The State concedes that Rule 609(a)(2) was not advanced as grounds for admissibility at trial and is not available on appeal.

The Supreme Court in State v. Jones, 271 N.W.2d 534 (Minn.1978), identified five factors to consider in determining admissibility under Rule 609(a)(1):

“... (1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.”

271 N.W.2d at 538.

Ward’s argument centers on the third Jones factor, the similarity of his prior burglary conviction to the charged crime, also burglary. The Supreme Court has considered the admissibility of prior convictions for identical offenses on numerous occasions. See, State v. Lee, 322 N.W.2d 197 (Minn.1982) (prior first degree murder conviction, prosecution for second-degree murder); State v. Bellcourt, 305 N.W.2d 340 (Minn.1981) (both aggravated robbery); State v. Bettin, 295 N.W.2d 542 (Minn.1980) (both sexual offenses); State v. Leecy, 294 N.W.2d 280 (Minn.1980) (both ag*297gravated assault); State v. Brouillette, 286 N.W.2d 702 (Minn.1979) (both sexual offenses).

These cases indicate that, while the similarity of offenses increases the potential for prejudice, admissibility of the prior conviction must be decided based on all the factors identified in Jones.

The Supreme Court has not indicated the impeachment value of a prior burglary conviction. The Court has, however, expressed the view that Rule 609 itself “necessarily recognizes that a prior conviction, though not specifically involving veracity, is nevertheless probative of credibility.” State v. Brouillette, supra, 286 N.W.2d at 708; see also, City of St. Paul v. DiBucci, 304 Minn. 97, 229 N.W.2d 507 (1975).

The age of Ward’s prior convictions in this ease might lessen their probative value, but for the fact that he had been imprisoned during virtually the entire period, and, therefore, the offenses “had not lost any relevance.” State v. Bettin, supra, 295 N.W.2d at 546.

Although there is no indication what Ward’s testimony would have been, the record does not show that his testimony would have been critical. The accuracy of eyewitness identification is not an issue on which a defendant’s testimony is normally crucial. Cf., State v. Bettin, supra (Otis, J., dissent) (defendant claimed consent in sexual offense case). Moreover, because of Ward’s apparent lack of corroborating evidence, his testimony would have had to rely heavily on his own credibility.

Considering all the factors identified in Jones, the trial court’s ruling that the prior convictions were admissible for impeachment purposes was not an abuse, of discretion. See, State v. Lee, 322 N.W.2d 197 (Minn.1982).

Criminal History Score

Ward’s release from Lino Lakes with postdated final discharge papers placed him in an ambivalent custody status at the time the offense was committed, two days following his release, and two days before the expiration of his sentence. The trial court did not accept Ward’s argument that he had been finally discharged, and gave him a custody status point, which increased his criminal history score to 3, and resulted in a presumptive sentence of 34 months, executed, rather than 30 months stayed.

The Sentencing Guidelines refer to five custody statuses that may result in a custody status point: probation, parole, supervised release, confinement, or release pending sentencing. Section H.B.2.; Comment, II.B.201. The Sentencing Worksheet includes two additional categories: escape, and “other.” Ward’s custody status was marked “other” on the Worksheet. We agree that Ward’s status was custodial for the purposes of calculating his criminal history score.

The Supreme Court has held, under earlier statutes, that the paroling authority retains control and custody of the inmate until final discharge. State ex rel. Bush v. Whittier, 226 Minn. 356, 32 N.W.2d 856 (1948). In Bush, the former Board of Parole had, by written agreement, relinquished control of a parolee during his period of military service. The parolee later violated the conditions of his previously-granted parole. The Court rejected his argument that the relinquishing agreement constituted a final and complete discharge from parole, stating as follows:

“[Under the agreement], the board merely relinquished control and supervision ‘during all of such time as he is in the United States Military Service.’ This could not be construed as a final discharge .... The language used indicates merely that for a specified period of time the board agreed not to exercise the control which at all times it possessed and retained.”

226 Minn. at 360-361, 32 N.W.2d at 859 [emphasis in original].

The Department of Corrections acted similarly here in releasing Ward prior to his expiration date. Ward gained his freedom but was still legally subject to the custody of the state until the effective date of his final discharge. The effective date *298of the discharge papers here was not waived by the early release. See, State ex rel. Lutz v. Rigg, 256 Minn. 241, 98 N.W.2d 243 (1959). The postdating of those papers implied an agreement that Ward would remain law-abiding until his expiration date.

DECISION

There was no abuse of discretion in denying appellant’s motion for a change of venue, or in permitting the use for impeachment purposes of his prior convictions. The trial court correctly included a -custody status point in calculating appellant’s criminal history score.

Affirmed.