State v. Tolliver

Wise, J.,

concurring. While I concur in the judgment affirming appellant's conviction because the evidence of appellant’s guilt is overwhelming, I write separately to express my disagreement with the reasoning expressed by my colleagues in their overruling of appellant’s second assignment of error. I would hold that Evid. R. 609(A)(2) is limited to

crimen falsi.

Ohio Evid. R. 609 is patterned after Fed. R. Evid. 609. The federal rule is, for the purpose of the case at bar, the same as the Ohio rule. The federal rule provides:

“For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime * * * (2) involved dishonesty or false statement, regardless of the punishment.” Fed. R. Evid. 609(a).

“Rule 609 was one of the most hotly contested provisions in the Federal Rules of Evidence.”

United States

v.

Smith

(C.A.D.C. 1976), 551 F. 2d 348, 360 .

Fed. R. Evid. 609 restricts the liberal reception of impeachment evidence. A clear expression of this intent is found in the Congressional Conference Committee Report:

“By the phrase ‘dishonesty and false statement’ the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of

crimen falsi,

the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify untruthfully.” Conference Report No. 93-1597, 93rd Congress, Second Session 9, reprinted in U.S. Code Cong.

&

Admin. News (1974) 7098, 7103.

See, also,

United States

v.

Fearwell

(C.A.D.C. 1978), 595 F. 2d 771, 775-776 (discussion of conference committee’s report); McCormick on Evidence (3 Ed. Cleary Ed. 1984), Section 43, at 95, fn. 10.

“Even in its broadest sense, the term ‘crimen falsi’ has encompassed only those crimes characterized by an element of deceit or deliberate interference with a court’s ascertainment of truth.”

United States

v.

Smith, supra,

at 362-363 .

In addition, the federal courts have construed Fed. R. Evid. 609(a) narrowly. For example, Chief Judge J. Skelly Wright has written:

“* * * Rule 609(a)(2) is to be construed narrowly; it is not

carte blanche

for admission on an undifferentiated basis of all previous convictions for purposes of impeachment; rather, precisely because it involves no discretion on the part of the trial court, in the sense that all crimes meeting its stipulation of dishonesty or false statement must be permitted to be used for impeachment purposes, Rule 609(a)(2) must be confined, in the words of

[United States

v.]

Smith

[(C.A.D.C. 1976), 551 F. 2d 348, 362 ], to a ‘narrow

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subset of crimes’ — those that bear

directly

upon the accused’s propensity to testify truthfully.” (Emphasis

sic.) United States

v.

Fearwell, supra,

at 777 .

See, also,

United States

v.

Glenn

(C.A. 9, 1982), 667 F. 2d 1269, 1272 (Fed R. Evid. 609[a][2] provides for no balancing between prejudice and probative value).

The federal courts have uniformly held that theft crimes are

not

crimes which bear

directly

upon the accused’s propensity to testify truthfully,

i.e.,

they are not

crimen falsi:

“* * * Generally, crimes of violence, theft crimes, and crimes of stealth do not involve ‘dishonesty or false statement’ within the meaning of Rule 609(a)(2). Although such crimes may indicate a lack of respect for the persons or property of others, * * * they do not ‘bear

directly

on the likelihood that the defendant will

testify

truthfully.’

United States

v.

Hayes,

553 F. 2d [824,] at 827 (emphasis in original).”

United States

v.

Glenn, supra,

at 1273 (burglary and grand theft are not admissible).

See, also,

United States

v.

Grandmont

(C.A. 1, 1982), 680 F. 2d 867, 871 (“robbery

per se

is not a crime of dishonesty within the meaning of 609[a][2]”);

Government of Virgin Islands

v.

Toto

(C.A. 3, 1976), 529 F. 2d 278 (petit larceny is not admissible);

United States

v.

Fearwell, supra

(attempted larceny is not admissible);

United States

v.

Dorsey

(C.A.D.C.1978), 591 F. 2d 922 (shoplifting is not admissible);

United States

v.

Ashley

(C.A. 5, 1978), 569 F. 2d 975, 978 (shoplifting is not admissible);

United States

v.

Ortega

(C.A. 9, 1977), 561 F. 2d 803, 806 (“[a]n absence of respect for the property of others is an undesirable character trait, but it is not an indicium of a propensity toward testimonial dishonesty”).

The federal courts, however, recognize that a theft offense may be admissible if the offense may have been committed by means of deceit:

“Of course, if a statutory petty larceny offense is committed not by stealth, but by fraudulent or deceitful means,

e.g.,

taking by false pretenses, it may qualify as a crime involving dishonesty or false statement.”

United States

v.

Smith, supra,

at 364, fn. 28 .

See, also,

United States

v.

Papia

(C.A. 7, 1977), 560 F. 2d 827, 847-848 (theft convictions “rest[ing] on facts revealing fraud and deceit” are admissible under Fed. R. Evid. 609[a] [2]).

In the

Johnson

decision, relied upon by the majority, the Franklin County Court of Appeals considered the language of the Staff Note to Ohio Evid. R. 609 and stated that:

“Although there is some suggestion of limitation in the Staff Notes to the rule, it is inconceivable that the drafters of the rule would not have been more precise and used more limiting language, such as

crimen falsi

or fraud, had such a limitation been intended, rather than using the much broader term ‘dishonesty.’ ”

State

v.

Johnson, supra,

at 16, 10 OBR at 22, 460 N.E. 2d at 629.

Congress, however, did not use such limiting language in adopting Fed. R. Evid. 609(a), yet noted in its Conference Report that the rule is limited to

crimen falsi.

As noted above, the federal courts have acknowledged this intent and have duly limited the scope of Fed. R. Evid. 609(a)(2) to

crimen falsi.

The Ohio Supreme Court and General Assembly, by adopting the language and substance of Fed. R. Evid. 609(a)(2), also adopted the intent of Congress to limit the rule to

crimen falsi,

especially in light of then-existing judicial interpretation of the language by the federal courts. If the Ohio Supreme Court and General Assembly had meant the rule to be interpreted broadly, they could have used more expan

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sive language to distinguish Ohio’s rule from the federal rule. The Staff Note does manifest an intent to change prior Ohio law by providing that Evid. R. 609(A) “supersedes -a part of R.C. 2945.42 and

negates Murdock.”

(Emphasis added.)

The crux of the court’s reasoning in

Johnson

is the following:

“Clearly and undisputedly, a theft is inherently dishonest. Common sense dictates that stealing is a dishonest act. While dishonesty also includes deceit, it is not limited thereto. In light of the provision of Evid. R. 102,

supra,

the common law has been superseded only to the extent clearly indicated by the rules. Since a theft offense could be used to impeach under the common law, and in common parlance theft involves dishonesty, we are constrained to the common-sense conclusion that dishonest acts such as receiving stolen property and stealing are included within the meaning of the word ‘dishonesty,’ as used in Evid. R. 609(A)(2).”

State

v.

Johnson, supra,

at 16, 10 OBR at 22, 460 N.E. 2d at 629.

In light of the legislative and judicial history of the federal counterpart, and the expression of intent in the Staff Note, it is clear that the General Assembly intended to limit Evid. R. 609(A)(2) to

crimen falsi,

contrary to the holdings in

Johnson

and

Taliaferro, supra.

Compare

State

v.

Ellis

(1982), 8 Ohio App. 3d 27 , 8 OBR 29, 455 N.E. 2d 1025 (conviction for assault is not admissible under Evid. R. 609[A][2]).

However, in the case at bar, the erroneous admission of the prior misdemeanor theft conviction was harmless error. For the error to be harmless, it must be beyond a reasonable doubt that the error did not contribute to the verdict,

Chapman

v.

California

(1967), 386 U.S. 18, 24 (for cases involving a departure from constitutional norms), or at least that the error had no more than a “very slight” effect on the jury,

Kotteakos

v.

United States

(1946), 328 U.S. 750, 764-765 (for cases not involving a “departure * * * from a constitutional norm or a specific command of Congress”). Federal courts have analyzed cases construing Fed. R. Evid. 609(a)(2) under both standards, and have concluded that since a witness’ credibility is crucial, the court must determine whether his impeachment by prior conviction may have had a significant impact and cannot qualify as harmless error under either rule.

United States

v.

Dorsey, supra,

at 936 ;

United States

v.

Smith, supra.

See, generally, Traynor, The Riddle of Harmless Error (1970).

Under the facts and circumstances in the case at bar, I conclude, beyond a reasonable doubt, that the error did not contribute to the verdict, and that the error had no more than a “very slight” effect on the jury, given the overwhelming evidence of defendant’s guilt. In both

Dorsey

and

Smith ,

which found harmful error, the courts found the evidence of the defendants’ guilt tenuous and “ambiguous at best.” Such is not the state of the evidence in the case at bar. Therefore, I concur in judgment only.