State v. Green

MARTONE, Justice,

dissenting.

¶ 24 The court concludes that the admission of Green’s prior convictions was an abuse of discretion. I disagree.

¶ 25 Rule 609, Ariz. R. Evid., governs “Impeachment by Evidence of Conviction of Crime.” Rule 609 has a single use: to cast doubt on a witness’ credibility through introduction of past convictions. It is true that under Rule 609(b), prior convictions that are more than ten years old should be admitted only where probative value substantially outweighs prejudice. But if that circumstance is not present in this case, then it never will be present under Rule 609(b). In this case, there was no physical evidence. There were no witnesses to the crime other than the victim and the defendant. The only evidence presented of the crime itself was testimony from those two witnesses. The only issue upon which the verdict turned was the credibility of the defendant and the victim.

¶26 Our cases and those of our court of appeals recognize the obvious: where witness credibility is case dispositive, the probative value of a conviction is very high. See State v. Harding, 141 Ariz. 492, 499, 687 P.2d 1247, 1254 (1984) (“[T]here were no witnesses to the crime, so the credibility of appellant was a vital consideration---- [I]t would have been important for the jury, when considering appellant’s credibility, to possess information about appellant’s history of convictions____” (citations omitted)); State v. Gillies, 135 Ariz. 500, 507, 662 P.2d 1007, 1014 (1983) (“Due to the absence of witnesses to the alleged crimes, the credibility of the appellant was of considerable importance.”); State v. Dickson, 143 Ariz. 200, 203, 693 P.2d 337, 340 (1985) (“That a defendant must depend substantially or even entirely upon his testimony for a defense does not preclude impeaching his credibility with prior convictions.”); State v. Davis, 137 Ariz. 551, 561, 672 P.2d 480, 490 (App.1983) (“[T]he sole contested issue was the credibility of the victim. Defense counsel was able to effectively cross-examine several witnesses and elicit substantial testimony to the effect that the victim had lied on various occasions to her parents, her sister and others. Under these circumstances, we believe that the jury was entitled to have before it any information which might have bearing on the defendant’s credibility also.”); State v. Dixon, 126 Ariz. 613, 618, 617 P.2d 779, 784 (App.1980) (“Where the direct conflict of testimony between [a witness] and the defendant is of such paramount importance, the jury should have before it all information which might reflect on the truthfulness of the defendant.”).

¶ 27 Instead of following Arizona’s understanding of the direct relationship between the admissibility of convictions and cases in *502which credibility is key, the court adopts this partial quote from among divergent circuit court cases: “[T]he mere fact that the defendant’s credibility is in issue — a circumstance that occurs whenever the defendant takes the stand — cannot, by itself, justify admission of evidence of convictions over ten years old.” Ante, ¶ 14, 617 P.2d 779 (quoting United States v. Acosta, 763 F.2d 671 (5th Cir.1985)).1 But even if this were the correct rule, the trial court did not admit the convictions solely because Green testified on his own behalf. The primary witness against Green, the victim, had been impeached with evidence of bias. Because there was no other evidence against Green, the jury had only one factor upon which to base a verdict— which witness was more credible, the victim or the defendant? Under these circumstances, the jury is entitled to have “all information which might reflect on the truthfulness of the defendant.” Dixon, 126 Ariz. at 618, 617 P.2d at 784.

¶ 28 The trial court admitted Green’s prior convictions because “the defendant’s credibility ... is extremely important for the jury to analyze.” Tr., Aug. 12, 1998, at 13. To abuse its discretion, a trial court must make an error of law, fail to consider the evidence, make some other substantial error of law, or have no substantial evidence to support its conclusion. Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982). None of these flaws is present in this case. The trial court followed the process required by Rule 609(b) without error.2 The judge clearly considered the evidence. There were no other claimed substantial errors of law. And there was sufficient evidence to support the conclusion that the convictions’ probative value substantially outweighed their prejudicial effect, especially as sanitized. See Little v. Little, 193 Ariz. 518, 520, 975 P.2d 108, 110 (1999) (“An abuse of discretion exists when the record, viewed in the light most favorable to upholding the trial court’s decision, is ‘devoid of competent evidence to support’ the decision.”) (quoting Fought v. Fought, 94 Ariz. 187, 188, 382 P.2d 667, 668 (1963)).

¶ 29 By holding that prior convictions more than ten years old are not admissible here, the court has, without expressly saying so, created an absolute bar to their admission in any case. Because this is contradicted by the plain language of Rule 609(b), I respectfully dissent.

. Relying on Acosta is problematic. There, the trial court failed to weigh probative value against prejudicial effect. Thus, Acosta merely remanded the case for a Rule 609(b) determination by the district court. Id. at 695. Moreover, the Acosta quote upon which the court relies originally comes from United States v. Brown, 603 F.2d 1022 (1st Cir.1979), which affirmed the trial court’s admission of prior convictions over ten years old. The full quote is as follows:

Of course, the mere fact that the defendant’s credibility is in issue — a circumstance that occurs whenever the defendant lakes the stand— cannot, by itself, justify admission of evidence of convictions over ten years old. Such a rule would make the ten year limit in Rule 609(b) meaningless. But when the defendant’s alibi is that another culprit committed the crime and the alternative culprit’s credibility is severely attacked when he takes the stand and denies his involvement, the probative value (i.e., the importance) of prior conviction evidence relating to the defendant necessarily increases.

Brown, 603 F.2d at 1028 (emphasis added).

Other federal circuits disagree with Acosta. See, e.g., United States v. Pritchard, 973 F.2d 905, 909 (11th Cir.1992); United States v. Maichle, 861 F.2d 178 (8th Cir.1988). Because Arizona precedents address the issue, supra, at ¶ 26, there is no need to resort to one of many divergent federal views. While most Arizona cases address Rule 609(a), Ariz. R. Evid., I agree with the court that Rule 609(a) analysis is applicable to Rule 609(b) cases. Ante, at ¶ 13.

. It weighed the probative value against the prejudicial effect and made a finding on the record that, under the facts and circumstances of this case, the probative value of Green’s prior conviction substantially outweighed its prejudicial effect.