Admitting too many priors harmless error

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“This appeal involves the difference between two convictions and five convictions, a difference that we conclude was too slight to have contributed to the jury’s verdict.” Judge David G. Deininger Wisconsin Court of Appeals

Although it was error to permit three 25-year-old convictions to be used to impeach a defendant’s credibility, the error is harmless when the defendant could properly be impeached with two others, the Wisconsin Court of Appeals held on March 6.

Gary M.B. was charged with three counts of first-degree sexual assault of a child, based on allegations involving his stepdaughter.

The girl testified at trial that when she was between the ages of 9 and 12, Gary sexually assaulted her two to three times per week. She stated that she told her mother, but was not believed. When the girl’s mother died, she went to live with her biological father and his girlfriend in Iowa.

Several months later, she described Gary’s behavior to her father’s girlfriend, who in turn contacted social workers. Police in Wisconsin were notified, took statements from the girl, and the charges were brought.

Prior to trial, Gary filed a motion in limine concerning the number of convictions that could be used for impeaching him. He had a total of five previous convictions: a 1973 conviction for “uttering or insufficient funds”; a 1975 conviction for disorderly conduct; a 1977 conviction for assault; and two 1991 convictions for domestic abuse.

Gary did not object to the use of his two 1991 convictions, but did object to the three from the ‘70s. Nevertheless, Grant County Circuit Court Judge Robert P. VanDeHey ruled that all five could be used.

At trial, before the State could impeach Gary with the convictions, his own attorney asked him how many times he was convicted. During closing arguments, the prosecutor reference the five prior convictions.

Gary was convicted and appealed, but a divided court of appeals affirmed in a decision written by Judge David G. Deininger and joined by Judge Margaret J. Vergeront. Judge Charles P. Dykman dissented.

Waiver

Before addressing the merits of the appeal, the court considered whether Gary waived his objection by preemptively testifying to them on direct examination, but concluded that he did not.

In Ohler v. United States, 529 U.S. 753, 760 (2000), the United States Supreme Court held, “a defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error.”

The court of appeals declined to adopt Ohler as the law in Wisconsin, however, for several reasons.

First, the court has previously held in Vanlue v. State, 87 Wis. 2d 455, 275 N.W.2d 115 (Ct. App. 1978), rev’d on other grounds, 96 Wis. 2d 81, 291 N.W.2d 467 (1980), that a defendant who unsuccessfully objects to the admission of prior conviction evidence does not waive the objection by preemptively testifying about the convictions on direct examination. The court noted that, because Vanlue has not been overruled, withdrawn, or modified, it must be followed.

The court acknowledged that it has pre-viously cited Ohler with approval, in State v. Frank, 2002 WI App 31, 250 Wis. 2d 95, 640 N.W.2d 198, review denied, 2002 WI 121, 257 Wis. 2d 117, 653 N.W.2d 890. There, the court held that a defendant who enters a Wallerman stipulation to avoid the introduction of other acts evidence waives his objection to the court’s underlying ruling that the evidence was inadmissible.

Nevertheless, the court distinguished Frank, concluding “Our conclusion in Frank was plainly premised on the fact that the defendant had obtained the very result he desired — preventing the jury from hearing of his prior acts — and he could not claim prejudicial error from something that did not happen.”

The court continued, “Here, unlike in Frank, Gary did not prevent the jury from hearing the disputed conviction evidence, and we conclude that, under Vanlue, his preemptive introduction of it did not constitute a waiver. It is one thing for a defendant to completely eliminate the potentially harmful impact of unsuccessfully objected to evidence by taking alternative steps to prevent its introduction, and quite another to merely soften the blow by beating the State to its punch.”

The court also declined to distinguish Vanlue on the basis that Vanlue involved the introduction of other acts evidence to prove intent, while here, only the number of convictions was admitted for impeachment purposes.

The court stated, “Our holding in Vanlue … did not turn on the State’s intended purpose in using the prior conviction evidence. Rather, we premised our conclusion on the principle that a pre-trial ruling permitting the introduction of prior conviction evidence effectively forces the defendant to introduce the evidence preemptively, and the defendant’s introduction of the evidence should not therefore constitute a waiver of his or her prior objection to its admissibility.”

The court also declined to distinguish Vanlue, even though the defendant there expressly preserved the claim for appeal by obtaining assurance from the trial court that preemptive introduction of the evidence would not result in waiver.

Finally, the court rejected the State’s argument that there could be no error, because it may never have asked Gary whether he had any prior convictions. The court acknowledged that it had accepted this argument in Frank, labeling the claimed error only “speculative harm,” but disagreed that the argument applied here.

The court reasoned, “Once the court ruled that all five convictions were admissible for impeachment purposes, it was reasonable for Gary to assume that the State would elicit the number of his convictions on cross-examination.”

Admissibility

Having concluded that Gary did not waive the objection, the court turned to whether the three convictions from the ’70s were properly admitted.

The court found that the trial court failed to weigh the probative value of the convictions against the danger of unfair prejudice, and therefore, held that it did not engage in a proper exercise of discretion.

The court declined to make its own determination whether the convictions were sufficiently probative, however, leaving the issue for the trial court to consider first.

Harmless Error

The court found it unnecessary to remand the case to the trial court for that determination, however, because it concluded that, even if a proper exercise of discretion would have resulted in their not being admissible, the error was harmless.

The court determined that there was no reasonable possibility that Gary’s admitting to five prior convictions, instead of only two, contributed to his conviction.

The court acknowledged, “each additional conviction of which the jury learned may have added incrementally to its suspicion of Gary’s credibility,” but concluded, “this appeal involves the difference between two convictions and five convictions, a difference that we conclude was too slight to have contributed to the jury’s verdict.”

For support, the court cited State v. Bowie, 92 Wis. 2d 192, 204-06, 284 N.W.2d 613 (1979), in which the Supreme Court held that a defendant’s admission to four
convictions when he had only one was harmless error.

The court added, “both the supreme court and this court have recently concluded that where a jury is informed of a witness’s criminal past, the precise number of the witness’s convictions is unlikely to be outcome determinative,” citing State v. Trawitzki, 2001 WI 77, 244 Wis. 2d 523, 628 N.W.2d 801, and State v. Tkacz, 2002 WI App 281, 654 N.W.2d 37, review denied, (Wis. Jan. 14, 2003) (No. 02-0192-CR).

In addition, the court noted that the State did not make repeated references to the convictions in closing argument, and concluded that the trial record contains ample evidence of Gary’s guilt.

Calling the State’s evidence of guilt “ample,” the court found, “Gary’s stepdaughter testified to the circumstances of the assaults, including their frequency, content and locations; her attempts to stop them; and Gary’s efforts to discourage her from telling others about the assaults. The record also shows that she reported Gary’s conduct to a number of third-persons, including her mother initially, and later, her father’s girlfriend, social services personnel, and a Potosi police officer.”

In addition, the court concluded that, although admission of the convictions undermined Gary’s credibility, it did nothing to directly bolster the complainant’s testimony.
The court acknowledged various inconsistencies among her trial testimony, her preliminary hearing testimony, statements she made to police, and letters she wrote to Gary after her mother’s death in which she stated that she wanted to return to Wisconsin to live with him.

The court also acknowledged that this was a “she said, he said” case, and that anything tending to undermine Gary’s credibility would tend to bolster the credibility of the girl. Nevertheless, the court concluded that any error was harmless. Accordingly, the court affirmed.

The Dissent

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Judge Dykman dissented, stating, “Under the majority’s theory, a defendant who was eight times convicted of speeding, contrary to Wis. Stat. sec. 346.57(4)(1965), and once of disorderly conduct, contrary to Wis. Stat. sec. 947.01 could not successfully complain on appeal that the State improperly introduced evidence of the eight convictions, because even if the evidence was improperly admitted, the admission was ipso facto harmless. Human beings don’t behave that way, and juries are comprised of human beings. To say that it doesn’t matter whether a defendant answers ‘once,’ ‘nine times,’ or ‘57 times’ does not comport with the way ordinary people think.”

Besides concluding that, as a matter of law, the three convictions at issue were improperly admitted, Dykman further concluded that the improper admission could not be considered harmless.

Dykman reasoned, “There was significant evidence from which a jury could conclude that the sexual assaults did not occur, and there was also significant evidence from which a jury could conclude that they did. The credibility of the defendant and of the complainant was critical. I cannot conclude that there is ‘no reasonable possibility’ that the error contributed to Gary B.’s conviction.”

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David Ziemer can be reached by email.