This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Terry Lane Carter,


Filed January 27, 1998

Reversed and remanded

Randall, Judge

Ramsey County District Court

File No. K4-96-1288

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent).

John M. Stuart, State Public Defender, Evan W. Jones, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.[*]



Appellant challenges the district court's rulings that the prosecution could impeach his testimony by introducing evidence of his prior felony convictions and that a hearsay statement was admissible as an excited utterance. We reverse and remand for a new trial.


A.T., a seventeen-year-old female, lived with her family in the lower level of a duplex in St. Paul. Appellant Terry Lane Carter and his wife, Kimberly Carter (Kimberly), lived with their children in the upper level of the duplex. On April 13, 1996, A.T.'s family held a party in the lower level. The party eventually moved upstairs to the Carters' apartment and continued until the early hours of April 14. After the party broke up, A.T. went to sleep in the bedroom of Kimberly's son, who was away from home. She testified she went to bed fully clothed and when she awoke her pants and underwear were down and her mother and Kimberly were screaming. A.T. testified that she was not aware of anything that happened prior to waking up with her pants down, but believed she had been raped.

Kimberly testified she went to bed after the party and was awakened by her daughter, who told her that Carter was in the other bedroom with A.T. and the door was locked. Kimberly ran down the hallway screaming and kicked in the bedroom door. Carter was fully clothed and standing at the end of the bed. A.T. was lying on her side on the bed with her back to the door. Kimberly pulled the covers off of A.T. and slapped A.T. on her exposed buttocks, while screaming and swearing at her. A.T. did not respond, so Kimberly went to the downstairs apartment and got A.T.'s mother. By the time they returned A.T. had pulled up her pants and underwear, but was still lying on the bed. Kimberly would not allow A.T. to use her phone, so A.T. ran down the street and used the telephone at White Castle to call police. She told police that the man who lived upstairs from her had raped her. Kimberly also called police, she testified, because she believed the pair had consensual sexual intercourse and she wanted them both out of her house.

Laboratory tests performed on the stains on the sheet and A.T.'s clothes indicated the presence of Carter's semen. No semen was found in A.T.'s vagina. Carter did not testify at trial, but gave a statement to police. He admitted having sexual contact with A.T., but insisted that she initiated the contact and that they had had consensual intercourse the previous summer.

Following a jury trial, Carter was convicted of fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(d) (1996) for engaging in sexual contact with a physically helpless person. Carter moved for a judgment of acquittal based on insufficient evidence or a new trial. The district court denied these motions and sentenced Carter to 65 months imprisonment. This appeal by Carter followed.



Carter argues the district court erred by ruling that the prosecution could use all six of his prior felony convictions to impeach him if he chose to testify. He asserts that because of this ruling, he was forced to waive his right to testify and he was prevented from using his only defense, his own version of what happened with A.T. He reasons that because only he could give direct evidence of the events occurring on the night in question and because A.T.'s story included inconsistencies, the district court's ruling was prejudicial error. We agree.

Evidence of witnesses' prior criminal convictions may be admitted at trial for impeachment purposes

only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness 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. R. Evid. 609(a).

Here, Carter has six prior felony convictions including: convictions for second-degree burglary and receiving profit from prostitution in 1984, convictions for receiving profit from prostitution and solicitation to practice prostitution in 1985, a conviction for fifth-degree possession of cocaine in 1988, and a conviction for third-degree burglary in January 1994.

Although four of Carter's convictions were over ten years old at the time of trial, he was released from incarceration within the past ten years for all of his convictions. Thus, the convictions were not technically barred from use as impeachment by the ten-year time limit, as the limit refers to either the date of conviction or the date of release from incarceration, whichever is later. See Minn. R. Evid. 609(b) (permitting impeachment only under narrowly defined circumstances where ten years has elapsed from date of conviction or release from confinement, whichever is later). But the analysis does not end there. None of Carter's convictions "involved dishonesty, or false statement." See Minn. R. Evid. 609(a)(2) (permitting impeachment with past conviction if crime "involved dishonesty or false statement"); see also Minn. R. Evid. 609(a) comm. cmt. ("dishonesty in this rule refers only to those crimes involving untruthful conduct.") Thus, they would be admissible for impeachment purposes only if more probative than prejudicial. Minn. R. Evid. 609(a)(1). The factors for determining whether the prejudicial value outweighs the probative value include:

(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.

State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). Further, the court should also consider "whether the admission of the evidence will cause the defendant not to testify." State v. Gassler, 505 N.W.2d 62, 66 (Minn. 1993).

Impeachment Value

The district court concluded that Carter's past convictions "weigh[ed] heavily" in favor of impeachment and that the probative value of these convictions as to his credibility outweighed their prejudicial effect. We disagree.

Carter's convictions for receiving profit from prostitution and solicitation to practice prostitution have little to do with honesty and veracity. See State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988) (noting that "sexual crimes have less bearing on veracity than do many other crimes"). Similarly, his conviction for cocaine possession is unrelated to honesty. In addition, burglary is not always a crime of dishonesty. State v. Hofmann, 549 N.W.2d 372, 375 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). Frankly, Carter's past convictions have little impeachment value, other than to portray him as a "bad person" which is precisely what the law forbids the state to do. See Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967) ("[T]he legitimate purpose of impeachment * * * is * * * not to show that the accused who takes the stand is a 'bad' person * * *."); see also State v. Norregaard, 380 N.W.2d 549, 554 (Minn. App. 1986) (noting there is a risk that a jury will find "a defendant with prior convictions a fit candidate for punishment for the pending offense regardless of the weight of the substantive evidence") aff'd as modified on other grounds, 384 N.W.2d 449 (Minn. 1986).

Similarity with Charged Crime

The district court misapplied the similarity factor. The court determined that Carter's past convictions for solicitation to practice prostitution and receiving profit from prostitution were sufficiently similar to the crime charged here. Because of this similarity, the court determined that the prosecution could use the convictions to impeach Carter.

Under this factor, the court should establish whether the past convictions are so similar to the charged crime that there is an increased likelihood that the jury will use the past conviction as substantive evidence of guilt and not just for impeachment. See State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (noting danger "that the jury will use the evidence [of similar past convictions] substantively rather than merely for impeachment"). As the supreme court stated in Jones, "the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach." 271 N.W.2d at 538; see also State v. Schwab, 409 N.W.2d 876, 880-81 (Minn. App. 1987) (Randall, J., concurring specially) (quoting Gordon, 383 F.2d at 940) (emphasizing "'the inevitable pressure on lay jurors to believe that "if he did it before he probably did so this time"'").

Carter's past convictions include two for receiving profit from prostitution and one for solicitation to practice prostitution. Although these are not identical to the crime Carter was convicted of in this case, they are types of sex crimes. They do not

involve dishonesty, but most assuredly will cause a jury to consider a defendant a bad person "who has now gone and done it again."

Importance of Defendant's Testimony

The district court concluded that Carter's testimony would not be that important because various versions of his testimony had come in through the testimony of Sergeant Anderson, an investigating police officer. We disagree. It is unlikely that due process and the constitutional right to a fair trial can be assured when an investigating officer becomes the conduit for a defendant to the jury.

If appellant's version is "centrally important to the result reached by the jury" and by admitting impeachment evidence "appellant's account of events would not be heard by the jury," impeachment evidence may be excluded. Gassler, 505 N.W.2d at 67. Even relevant prior convictions may be excluded if the court concludes that admitting evidence for impeachment purposes will result in the defendant not testifying "and if it is more important in the case to have the jury hear the defendant's version of the case." Bettin, 295 N.W.2d at 546.

In Jones, the supreme court ruled that although the jury heard the police officer's testimony regarding the defendant's statements, "it was extremely important that the jury hear the story of the defendant." 271 N.W.2d at 538. The supreme court noted that if the defendant had testified, he could have explained an ambiguous statement made to police, and the jury could have better determined his truthfulness and the reasonableness of his actions. Id.

Here, Carter did not testify because he did not "want to get found guilty because of [his] past." Although the police officer testified to what Carter told him when he interviewed Carter, this did not give the jury an opportunity to hear Carter's own testimony. In the adversarial system, it is irrebuttably presumed that defendants do not consent to their story coming in from someone supporting the prosecution. Similar to Jones, Carter's testimony would have aided the jury in adjudging his truthfulness.

Centrality of Credibility Issue

The district court concluded that because Carter gave a number of different versions of history to Sergeant Anderson, if Carter testified, it would be important for the jury to "see the entire person." Credibility is crucial to this case; only Carter, and possibly A.T., know what actually happened between the two during the morning in question. None of Carter's past convictions are for crimes of dishonesty. It is difficult to see how any of these convictions would aid a jury in judging credibility, other than to simply portray him as a bad person of low character.

The district court abused its discretion when it ruled it would permit the prosecution to admit impeachment evidence of Carter's prior felony convictions if he chose to testify. The district court misapplied the third Jones factor and failed to adequately consider the other factors. If Carter's prior convictions had any "probative value," they would most likely be "probative" as substantive evidence of guilt to a jury. Impeachment evidence may not be used for this purpose.


Carter also argues that the district court erred by permitting a police officer to testify to a statement made by Kimberly. Sergeant Anderson testified that Kimberly told him in a telephone conversation that, while at first she believed A.T. had willingly had sexual intercourse with Carter, she no longer thought A.T. had done so willingly. Kimberly testified that she did not recall making that specific statement.

Carter asserts that the court improperly admitted this hearsay evidence under the "excited utterance" exception to the hearsay rule. He points out this statement by Kimberly was made at 2:30 p.m., seven and one-half hours after the police were first called at 7:00 a.m.

An exception to the general rule that hearsay statements are inadmissible is granted for "statement[s] relat[ed] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Minn. R. Evid. 803(2).

The district court ruled in an in-chambers conference during trial that the statement would be admitted as an excited utterance. In denying Carter's post-trial motions, the district court reasoned that the statements fell within the hearsay exception because there were "sufficient particularized guarantees of trustworthiness." One guarantee of trustworthiness that the court noted was that Kimberly had been intoxicated. Thus, the trial court reasoned that despite the seven and one-half hour lapse of time, it was "unlikely" that she had the opportunity to reflect and "unlikely" that she intentionally made up the story she told Officer Anderson. We cannot accept the reasoning that when a witness was intoxicated at the time of the crime, but has substantial time to sober up, the witness's statements revert to "excited utterances" as if they had been issued seven hours before and contemporaneous with the event. Her statements over seven hours later may or may not have evidentiary value. But they are not "excited utterances."

Kimberly testified that by 2:30, she had slept and calmed down some, but was still angry. Testimony also indicates it was possible she had talked to her husband, who was then in jail, during the interim. Anderson testified that he believed, based on Kimberly's tone of voice, that she was angry when he spoke to her on the telephone.

As Carter highlights, this statement took place seven and one-half hours after the police were first called. Although the time between the event and the statement is not necessarily determinative here, Kimberly had a great deal of time to reflect on her statements. See State v. Daniels, 380 N.W.2d 777, 783 (Minn. 1986) (holding "lapse of time between the starting event and the excited utterance is not always dispositive"). The hearsay statement itself indicates Kimberly changed her mind about who had initiated the sexual contact between the time she first spoke to police and her telephone conversation with Anderson. The fact that she may have been intoxicated at the time she made the initial statement, does not support admission of a later statement as an excited utterance. The district court erred in ruling that this statement fell under the excited utterance exception to hearsay.

The state asserts that even if the statement was not an excited utterance, Anderson's testimony was merely cumulative, only corroborated other evidence about Kimberly's reaction to the event, and was not offered to "prove the truth of the matter asserted." Minn. R. Evid. 801(c). The state also argues that this statement was a prior inconsistent statement admissible to impeach Kimberly's testimony.

Anderson's testimony about this specific statement was not merely cumulative. This is the only evidence introduced to show that Kimberly did not always believe A.T. consented to the sexual contact. The statement could not have been introduced simply to corroborate evidence of Kimberly's reaction to the event. Further, the record is clear that the prosecution intended to introduce this evidence to "prove the truth of the matter asserted" and not to impeach Kimberly. This is evidenced by the prosecution's attempt to admit the evidence as substantive proof of guilt as an exception to the hearsay rule.


The state asserts that even if the district court erred in its evidentiary rulings, the rulings were "harmless" because other evidence supported the verdict.

If an error affecting constitutional rights occurs in a criminal trial, a new trial should be granted unless the state can prove that the error was harmless beyond a reasonable doubt. State v. Scott, 501 N.W.2d 608, 619 (Minn. 1993). Error is prejudicial if there is "a reasonable possibility" the error contributed to appellant's conviction. State v. Larson, 389 N.W.2d 872, 875 (Minn. 1986).

Here, the district court erred by ruling that hearsay introduced by Sergeant Anderson's testimony fell under the excited utterance exception to hearsay. The district court also erred in ruling that all Carter's prior convictions were admissible to impeach his testimony if he chose to testify at trial. We are not left with an abiding conviction that the cumulative errors were harmless beyond a reasonable doubt.

Reversed and remanded.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.