This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1829

 

 

State of Minnesota,

Respondent,

 

vs.

 

Ivan Joseph Diaz,

Appellant.

 

 

Filed November 7, 2006

Affirmed

Hudson, Judge

 

Hennepin County District Court

File No. 05006211

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, Minnesota 55487  (for respondent)

 

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

 

            Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant Ivan Joseph Diaz challenges an evidentiary ruling that allowed the state to impeach him with his prior convictions if he chose to testify.  Appellant argues that his prior convictions were inadmissible because they were stale and substantially similar to the present charges.  Appellant also urges this court to abandon the “whole person” rationale for determining the impeachment value of prior convictions.  Because we conclude that the prior convictions were admissible and the “whole person” rationale remains firmly entrenched in Minnesota law, we affirm.

FACTS

In April 1995, appellant pleaded guilty to first-degree aggravated robbery and first- and second-degree assault.  Appellant served an 86-month sentence for these convictions.

In late January 2005, approximately three years after his release from prison, appellant was arrested in connection with another robbery.  Relying on the robbery victim’s identification of appellant as the robber, the state charged appellant with first-degree aggravated robbery and simple robbery on February 1, 2005.

At trial, appellant planned to present an alibi based mainly on his own testimony.  The state notified appellant, however, that it intended to impeach him with his 1995 convictions if he testified.  In response, appellant brought a motion in limine to exclude the prior convictions arguing that the prior convictions were ten years old and substantially similar to the present charges.  Appellant also argued that his testimony was important to his defense and that the introduction of his prior convictions would likely prevent him from testifying.  

The district court denied appellant’s motion in limine.  The court noted the age of the convictions and their similarity to the offenses charged in the present case, but it denied appellant’s motion, stating that “[t]he case language that I recall is the necessity of having the jury see the picture of the whole person . . . .”  The court, therefore, ruled that it would “allow the State the opportunity to impeach with these [prior] convictions if the Defendant determines to testify.” 

Appellant’s counsel objected to the ruling, and appellant decided not to testify.  This appeal follows.

D E C I S I O N

Appellant argues that the district court erred by admitting the evidence of his prior convictions because the prior convictions are ten years old and substantially similar to the present charges.  Appellant also argues that this court should abandon the “whole person” analysis.  We disagree.

Like other evidentiary rulings, a district court’s ruling on the impeachment of a witness with a prior conviction is reviewed under a clear-abuse-of-discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998); State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993).  Evidence of a prior conviction for a crime not involving dishonesty or false statement is admissible to impeach a witness only if the crime is punishable by death or imprisonment in excess of one year and the court determines that the probative value of the prior conviction outweighs its prejudicial effect.  Minn. R. Evid. 609(a).  The determination of whether the probative value of prior convictions outweighs their prejudicial effect is a matter within the district court’s discretion and will not be reversed absent a clear abuse of discretion.  State v. Graham, 371 N.W.2d 204, 208–09 (Minn. 1985).

Appellant’s prior convictions were punishable by imprisonment in excess of one year.  Therefore, the issue before this court is whether the district court abused its discretion by determining that the probative value of the 1995 convictions outweighed their prejudicial effect.

To determine whether the probative value of impeachment evidence outweighs its prejudicial effect, courts must consider: (1) the impeachment value of the prior conviction; (2) the date of conviction and the defendant’s subsequent history; (3) the similarity of the past and charged crimes; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue.  State v. Jones, 271 N.W.2d 534, 537–38 (Minn. 1978).  If a district court considers the Jones factors but fails to place its analysis on the record, an appellate court’s review of the district court’s exercise of discretion becomes speculative and difficult.  State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006).  Therefore, district courts must make explicit findings on the record regarding the Jones factors, and the failure to make these findings on the record can be reversible error.  State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001) (citing Minn. R. Evid. 609(a) cmt.).  But the “error is harmless if the conviction could have been admitted after a proper application of the Jones-factor analysis.”  Vanhouse, 634 N.W.2d at 719 (citing State v. Lund, 474 N.W.2d 169, 172 (Minn. App. 1991)). 

Here, the district court obviously considered the Jones factors in denying appellant’s motion in limine, but the court referred to only three of the five factors on the record.  First, the district court briefly noted the age of appellant’s convictions.  Second, the district court noted the similarity of the prior convictions to the present charges.  Finally, the district court concluded that appellant’s prior convictions have impeachment value based on an examination of the “whole person.”  But the district court erred in failing to record its findings on the importance of appellant’s testimony or the centrality of the credibility issue.  Because the district court failed to make more detailed, explicit findings on the record, we must perform an independent analysis of the Jones factors[1] to determine whether the district court abused its discretion by admitting appellant’s prior convictions for impeachment purposes.  Vanhouse, 634 N.W.2d at 719. 

1.         The Impeachment Value of Appellant’s Prior Crimes

Appellant’s prior convictions have impeachment value based, at least in part, on the “whole person” rationale.  Under the “whole person” rationale, a prior conviction can have impeachment value simply because it helps the jury see the “whole person,” thus allowing the jury to better evaluate the truthfulness of the defendant’s testimony.  Swanson, 707 N.W.2d at 655; Gassler, 505 N.W.2d at 67 (quoting State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979)); St. Paul v. DiBucci, 304 Minn. 97, 100, 229 N.W.2d 507, 508 (1975)). 

Appellant argues that it is time for the Minnesota courts to reexamine the “whole person” rationale.  But appellant did not raise his challenge to the “whole person” rationale in the district court.  We need not, therefore, consider it on appeal.  Swanson, 707 N.W.2d at 656; Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  We note, in any event, that while convictions involving violent crimes lack the impeachment value of convictions involving dishonesty, the “whole person” rationale has recently been applied by the Minnesota Supreme Court.  See Swanson, 707 N.W.2d at 655 (assigning impeachment value to prior convictions under a “whole person” analysis). 

This court’s role is not to reexamine established precedent.  See, e.g., Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that “[t]he function of the court of appeals is limited to identifying errors and then correcting them.”); Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (stating that “the task of extending existing law falls to the supreme court or the legislature, but it does not fall to [the court of appeals]”), review denied (Minn. Dec. 18, 1987).  Because appellant’s prior convictions have impeachment value under the “whole person” rationale, this factor weighs in favor of admitting the prior convictions. 

2.         The Date of Conviction and Appellant’s Subsequent History

            Appellant’s prior convictions were within the time limit for admissibility.  Impeachment evidence

is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

 

Minn. R. Evid. 609(b).

Appellant’s prior guilty pleas were entered on April 21, 1995.  He served an 86-month executed sentence for those convictions.  Appellant was released from incarceration approximately three years before he was charged with the present offenses.  The 1995 convictions, therefore, are admissible because less than ten years have elapsed since appellant’s release from confinement for those crimes.

Even if appellant had not been confined for his 1995 convictions, the convictions were within the ten-year limit.  The date of the presently charged offense is the appropriate end point for the ten-year time limit for determining whether a conviction is stale under Minn. R. Evid. 609(b).  Ihnot, 575 N.W.2d at 585.  Here, appellant was charged with the present offenses on February 1, 2005.  Therefore, even if the ten-year limit began running on the date appellant’s guilty plea was entered (April 21, 1995) the present charges were within the ten-year time limit by more than two months.

The district court incorrectly determined that the end date of appellant’s ten-year limit was the date of trial.[2]  If a witness whose credibility is subject to impeachment by evidence of a prior conviction also happens to be the defendant in that case, the time limit for impeachment becomes subject to potential abuse through delay or manipulation.  State v. Munger, 597 N.W.2d 570, 572 (Minn. App. 1999) (citing Ihnot, 575 N.W.2d at 585), review denied (Minn. Aug. 25, 1999).  Because of this potential for abuse, it is inappropriate to use either the date of the current trial or the date of the defendant’s testimony as the end date for the impeachment time limit.  Id.  The proper end date is “the date of the charged offense.”  Ihnot, 575 N.W.2d at 585.  Therefore, the end date here was the date on which appellant committed the present offenses, which was February 1, 2005, and not the date of trial or the date appellant would have testified.

Because less than ten years elapsed since appellant’s release from confinement for his prior convictions and because appellant’s present offenses occurred less than ten years after his prior convictions, and because appellant was in prison for much of the intervening period, we conclude that the prior convictions were not barred due to age.  This factor weighs in favor of admission of the prior convictions.

3.         Similarity of the Past and Charged Crimes

Minnesota courts generally favor impeachment by prior convictions when the elements of the presently charged crime differ from the elements of the prior conviction.  See Ihnot, 575 N.W.2d at 588 (finding no abuse of discretion in admitting third-degree criminal-sexual-conduct conviction as impeachment in trial for first-degree criminal sexual conduct); State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985) (affirming decision to impeach with prior rape, robbery, and adultery convictions in trial for first-degree criminal sexual conduct). 

Appellant’s prior aggravated-robbery conviction is substantially similar to the present aggravated-robbery charge.  Therefore, the similarity of the aggravated-robbery charges appears to weigh in favor of excluding the prior convictions.  But the elements of appellant’s prior assault convictions are substantially different from the present robbery charges.  Because of this difference, we conclude that this factor favors admission of the prior convictions.  Even if we were to assume that this factor weighs against the admission of appellant’s prior convictions, they would still be admissible because the remaining factors weigh in favor of admission.  Swanson, 707 N.W.2d at 656. 

4.         The Importance of Appellant’s Testimony

Appellant’s testimony is important in this case because it would be necessary to substantiate his alibi.  To the extent that admission of appellant’s prior convictions prevented him from testifying, this factor weighs in favor of exclusion.  State v. Hofmann, 549 N.W.2d 372, 375 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996); Vaughn v. Love, 347 N.W.2d 818, 821 (Minn. App. 1984), review denied (Minn. July 26, 1984).  But if it was important for appellant to testify, it was also important for the jury to evaluate his credibility.  Therefore, this factor must be considered in conjunction with factor five, the centrality of the credibility issue. 

5.         The Centrality of Appellant’s Credibility

If appellant had testified, his credibility would have been central to the case because his testimony was essential to his defense.  A criminal defendant’s credibility is subject to impeachment once the defendant takes the stand.  Swanson, 707 N.W.2d at 657 (citing State v. Silvers, 230 Minn. 12, 15, 40 N.W.2d 630, 632 (1950)).  In Swanson, the defendant intended to present an alibi defense based solely on his own testimony.  Swanson, 707 N.W.2d at 655.  The supreme court reasoned that the jury would have to decide whether or not to believe the defendant, so credibility was central to the case.  Id. at 655–56.  “If credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of the prior convictions.”  Id. at 655; see also Ihnot, 575 N.W.2d at 587 (stating that the fourth and fifth Jones factors are satisfied when the defendant chooses to testify because credibility becomes the central issue in the case).

Here, as in Swanson, appellant intended to present an alibi defense, for which his testimony was the main source of evidence.  Therefore, we conclude that his credibility would have played a central role in this case, and factors four and five weigh in favor of admitting the prior crimes for impeachment purposes.

Citing State v. Blasus, 445 N.W.2d 535 (Minn. 1989), appellant argues that any error made in this case was prejudicial.  But Blasus is distinguishable.  In Blasus, the district court allowed the prosecutor to impeach expert witnesses by questioning them about the gruesome details of other cases in which they had testified.  Id. at 540.  The district court also allowed the prosecutor to make inflammatory, prejudicial remarks during closing argument.  Id. The supreme court held that these errors, when combined, were prejudicial because they allowed the jury to mentally link the defendant with the frightening violence of the other cases.  Id.  In this case, by contrast, the district court merely failed to make an explicit Jones-factor analysis on the record. 

On the totality of this record, we conclude that an independent Jones-factor analysis demonstrates that evidence of appellant’s prior crimes was admissible for impeachment purposes against appellant.  Swanson, 707 N.W.2d at 656.  Further, we conclude that the district court committed harmless error by failing to place an explicit Jones-factor analysis on the record.  Vanhouse, 634 N.W.2d at 719.  Therefore, the district court did not abuse its discretion by allowing the state to impeach appellant with his prior convictions.

            Affirmed.