IN COURT OF APPEALS
Lancintino Antwon Flemino,
Filed September 5, 2006
Ramsey County District Court
File No. K5-04-004716
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Patrick J. Swift, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)
M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender,
Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.
S Y L L A B U S
1. There are two categories of crimes that can be admissible for impeachment under Minn. R. Evid. 609: felonies and crimes of false statement or dishonesty.
2. To be admissible for impeachment, felonies do not need to be crimes directly implicating honesty but rather can be allowed so as to permit the trier of fact to assess the witness’s general trustworthiness.
3. Felonies are not admissible for impeachment unless their probative value outweighs their prejudicial effect as assessed through the application of the factors in State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978).
4. Prior felony convictions of burglary and drug possession may be admissible for impeachment, after application of the balancing test, on the broad issue of general trustworthiness.
O P I N I O N
Appellant challenges his first-degree aggravated-robbery conviction, arguing that the district court abused its discretion in ruling that he could be impeached with his prior convictions if he testified. He contends that the rationale that evidence of even crimes not bearing on credibility allows the jury to see the “whole person” should be abandoned. We affirm.
The state charged appellant Lancintino Antwon Flemino with first-degree aggravated robbery and domestic assault, alleging that Flemino came to the apartment of M.R., a woman he had dated, punched her in the face, and stole several items of jewelry, including rings, belonging to M.R. and her son.
When questioned by the police, Flemino contended that he had lent money to M.R. and that she had given him her boyfriend’s ring as collateral. He stated that he went to her apartment to collect the loan but M.R. refused to pay him. He denied striking her and alleged that M.R.’s boyfriend hit her when he learned that she had given his ring to Flemino.
Flemino pleaded not guilty to the charges. During the jury trial, the state informed Flemino and the court that, if Flemino testified, the state would offer as impeachment prior felony convictions of third-degree assault, simple robbery, fifth-degree controlled-substance possession, and second-degree burglary. Flemino objected to the introduction of evidence of the convictions on the ground that none of them related to honesty or dishonesty and that the court’s ruling would affect his decision of whether to testify. The court ruled that the robbery and assault convictions were inadmissible but that the burglary and drug-possession convictions could be admitted if Flemino testified.
Flemino opted not to testify but the version of the incident that he related to the police was recorded and introduced into evidence by the state. The jury found Flemino guilty of first-degree aggravated robbery. The domestic-assault charge was not submitted to the jury.
Flemino appeals from the conviction, challenging the court’s evidentiary ruling.
May felony convictions of burglary and drug possession be admissible for impeachment even though they do not directly show dishonesty?
Contending that the district court erred in ruling that his prior felony convictions of burglary and drug possession were admissible for impeachment if he testified, Flemino states the essence of his argument in his brief as follows: “Here, in a he said/she said case, appellant was presented with the Hobson’s choice of: not presenting his version of what happened or presenting his version and having his character attacked by prior convictions for offenses not involving dishonesty.”
The district court enjoys
broad discretion in its evidentiary rulings, and we will not reverse on appeal
absent a showing of a clear abuse of that discretion. State
v. Swanson, 707 N.W.2d 645, 654 (
In a criminal case, it is
improper to introduce evidence of an accused’s character so as to invite an
inference that the accused had a propensity to commit the crime charged.
There are two categories of
prior criminal convictions allowed for impeachment under rule 609(a). The first is felonies. The second is crimes of dishonesty and false
statement, irrespective of the level of the crime. To be admissible under the first category,
the crime need not involve dishonesty, false statement, or deceit. But to be admissible under that category the
court must determine “that the probative value of admitting this evidence outweighs
its prejudicial effect.”
The rationale for admitting
felonies that do not directly implicate honesty is that the jury should be
allowed to consider a testifying witness as a “whole person.” State
v. Gassler, 505 N.W.2d 62, 67 (
Flemino assails the
rationale as well and, pointing to the first Jones factor, contends that his prior burglary and drug-possession
convictions have little or no impeachment value. His premise is that those convictions do not
implicate his credibility because they are not crimes relating to
dishonesty. But the intent of rule
609(a) seems plain. There is one
category for crimes of dishonesty or false statement, crimes of crimen falsi, and another that allows
for a broader credibility assessment, perhaps aptly described in Brouillette as general
trustworthiness. Although credibility
might be most directly and concretely assessed through considerations of past
dishonesty that not only rose to the level of a crime but that also were
established beyond a reasonable doubt, credibility in evidence law is broader
than just those types of crimes. Bias,
prior inconsistent statements, contradiction, and faulty perception or
inaccurate recollection all implicate credibility, even though they might not
involve dishonesty. See
Flemino also contends, as do
many historical critics, that the jury might misuse impeachment evidence and
rely on it as propensity evidence. That
risk likely exists but it is diminished by the court’s careful exercise of
discretion in applying the Jones
factors; by cautionary instructions, which the law presumes the jury will
follow; and by the court’s discretion to allow the accused to mitigate the impeachment
evidence by explaining the circumstances of the prior conviction.
Viewing Flemino’s convictions
of burglary and drug possession in light of the broader credibility concept
reflected in the felony category of rule 609(a), the district court did not
abuse its discretion in ruling those convictions admissible. Furthermore, this court is without authority
to alter a rule adopted by our supreme court.
Flemino also addresses three other Jones factors. Although he concedes that the burglary and drug convictions are within the permissible ten-year time limit under rule 609(b), he argues that other Jones factors weigh against admissibility. He claims his prior burglary conviction was similar to the robbery charge for which he was tried because they both involved entering a residence and committing a crime therein. But burglary involves nonconsensual entries or the withdrawal of consent. The entry here was consensual and was followed by a crime not similar in name or fact to burglary.
As to the importance of
Flemino’s testimony, the jury heard his version of the event through the playing
of his tape-recorded statement to the police.
Finally, Flemino acknowledges that, when a “defendant’s credibility is crucial, the impeachment need is greater,” but he argues that the state had corroborating witnesses and thus Flemino’s credibility was not central. M.R.’s son and nephew were present in M.R.’s apartment when Flemino came in. These other people were asleep when Flemino struck M.R. and when he took the jewelry. None of the others could corroborate either event. Furthermore, none of the others could corroborate M.R.’s statement that the jewelry belonged to her, with the exception of a basketball necklace that belonged to her son. There were only two eyewitnesses to the crime of which Flemino was convicted, namely, Flemino and M.R. Flemino’s credibility was a central issue.
The district court did not abuse its discretion in allowing into evidence for impeachment Flemino’s prior burglary and drug-possession convictions.
D E C I S I O N
The district court did not abuse its discretion in ruling that prior convictions of burglary and drug possession could be used to impeach appellant if he testified.