State of Iowa v. Raymond Carl Redmond , 803 N.W.2d 112 ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 10–0431
Filed September 9, 2011
STATE OF IOWA,
Appellee,
vs.
RAYMOND CARL REDMOND,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
Joseph Moothart, Judge.
Appellant claims district court abused its discretion by admitting
his prior harassment conviction for impeachment purposes under Iowa
Rule of Evidence 5.609(a)(1). DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE
REMANDED FOR NEW TRIAL.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and Dustin S.
Lies, Assistant County Attorney, for appellee.
2
ZAGER, Justice.
Raymond Redmond asserts the district court erred in allowing the
State to impeach Redmond with his prior first-degree harassment
conviction under Iowa Rule of Evidence 5.609(a)(1). The court of appeals
affirmed the district court’s evidentiary ruling. On further review, we
find the district court abused its discretion by allowing the State to
impeach Redmond with his prior conviction as the prior conviction’s
probative value did not outweigh its prejudicial effect to Redmond. The
error was not harmless. 1 Accordingly, we vacate the court of appeals
decision, reverse the district court judgment, and remand the case for a
new trial.
I. Background Information.
A. Facts and Proceedings. Raymond Redmond was charged by
trial information with indecent exposure, a serious misdemeanor, in
violation of Iowa Code section 709.9 (2009). On October 13, 2009, P.M.
reported to police Redmond exposed himself to her earlier that evening.
The matter proceeded to a jury trial.
At trial, Officer Albers of the Waterloo Police Department testified
he received an early-evening call about a disturbance at the University
Black Hawk Motel, and upon arrival, he found Redmond in a dispute
unrelated to P.M.’s allegations. Albers promptly diffused the dispute. In
light of Redmond’s heavy intoxication, Albers instructed Redmond “[t]o go
back in to his room, stay there and don’t come out the rest of the
evening.” Albers testified Redmond was so intoxicated it appeared he
was “gettin’ real close to” passing out.
1Because we find Redmond is entitled to a new trial for evidentiary reasons, we
need not examine Redmond’s alternative error claims.
3
P.M. testified she was shopping with her teenage son that evening,
but the two had an argument as they returned to their apartment at the
University Black Hawk Motel. P.M. had befriended her neighbor
Redmond and his roommates, Ben and Maria. After letting her son into
their apartment, she testified she went down to Redmond’s apartment.
P.M. frequently stopped by to see her three friends. P.M. said Redmond
let her in, and she asked Redmond where Ben and Maria were.
Redmond responded he did not care where his roommates were and
appeared distraught and intoxicated to P.M. She testified Redmond then
stood up and asked her if she wanted to see his penis. She testified,
“[J]ust like that it was there in front of me.” Redmond allegedly
approached to within a foot and a half of where P.M. was sitting with his
erect penis exposed. P.M. stated she repeatedly told Redmond “to put it
away, it wasn’t right.” P.M. testified her son interrupted the incident by
knocking on the door, which allowed her to leave the apartment.
On cross-examination, P.M. acknowledged she has been diagnosed
with “bipolar two” and is prescribed medications. P.M. stated she had
not taken her daily medication at the time the incident occurred.
Officer Albers returned to the University Black Hawk Motel in
response to P.M.’s call. She told Albers she went to visit Redmond and
his roommates, and Redmond exposed himself to her. Albers noted P.M.
was confused about whether to file charges, but she was coherent and
sober. Albers testified he did not talk with Redmond after P.M.’s report
because Redmond did not answer his door when Albers knocked. Albers
stated later in the evening Officer Wittmayer took Redmond into custody.
Redmond’s testimony was brief. He testified Officer Albers came to
his house early in the evening to resolve a dispute unrelated to P.M.
Redmond testified he passed out after Albers left. Redmond next recalled
4
being awakened to Officer Wittmayer banging on his door to take him
into custody in connection with P.M.’s report. Redmond claimed he did
not see P.M. on the evening of October 13.
On cross-examination, Redmond admitted he was very intoxicated
on the night of October 13. Redmond reiterated he passed out that
evening and awoke to the police banging on his door. The State
questioned Redmond about his prior first-degree harassment conviction:
Q. You’ve previously been convicted of First Degree
Harassment; is that correct?
[DEFENSE COUNSEL]: Objection, Your Honor,
previously urged.
THE COURT: Okay. I’ll note the objection; it’s
overruled for reasons previously indicated . . . .
A. Yeah, I have been charged with First Degree
Harassment.
Q. Okay. But it’s not that you’ve been charged, you
were convicted on August 21 of 2009; were you not? A. Yes,
I was convicted of it, I guess, ‘cause I went to court for it.
Q. Okay. And that was on August 21, 2009; correct?
A. Uh-huh.
At the time Redmond was cross-examined, the district court did
not instruct the jury to restrict the use of Redmond’s harassment
conviction to assessing his testimonial credibility. Before closing
arguments, the district court read a jury instruction stating the jury may
consider Redmond’s conviction “only to help decide whether to believe
the defendant and how much weight to give his testimony.”
During closing argument, the county attorney again revisited
Redmond’s prior harassment conviction. While instructing the jury it
had a duty to determine who was telling the truth between Redmond and
P.M., the county attorney stated:
5
The defendant admitted on the stand that he has been
convicted of First Degree Harassment as recent as August of
2009. Okay? He told very little of the story . . . . Ask
yourself is that the person you’re going to believe?
The jury convicted Redmond of indecent exposure. He was
sentenced to jail for 365 days. Redmond’s jail sentence was suspended
except for 119 days, and Redmond received credit for 119 days
previously served. Redmond was ordered to pay a fine and received
supervised probation for two years. The district court imposed a ten-year
special sentence of parole and required Redmond to register as a sex
offender.
Redmond filed a timely notice of appeal. The case was transferred
to the court of appeals. The court of appeals affirmed Redmond’s
conviction finding the district court did not abuse its discretion in
admitting Redmond’s first-degree harassment conviction for
impeachment purposes. The court of appeals also preserved Redmond’s
ineffective-assistance-of-counsel claim for postconviction relief. We
granted Redmond’s petition for further review.
B. District Court’s Decision to Admit Redmond’s Prior
Conviction. After the State presented its case, it informed the court of
its intention to impeach Redmond with his prior first-degree harassment
conviction in the event he testified. Redmond’s counsel remarked he did
not know the facts of the prior conviction, but he was likely to object.
The court did not rule on the issue at this time and waited to make a
ruling until Redmond testified and the record was further developed.
After Redmond’s direct examination, the court conducted another
colloquy. The State informed the court Redmond’s prior conviction was
for first-degree harassment, the conviction was on August 21, 2009, and
Redmond’s jail sentence concluded in September of 2009. The State
6
provided the court no other details, and the court did not request
additional information.
The court properly determined Iowa Rule of Evidence 5.609(a)(1)
governed this evidentiary dispute and recited the rule’s balancing test.
The State advocated for the conviction’s probative value:
I think the fact that the defendant has just recently been
convicted of Harassment in the First Degree, I believe while
intoxicated as well, goes to establish that this type of
behavior—that the defendant’s impeachment on this offense
is proper . . . .
....
I think it’s clear that the defendant acts in an aggressive and
sometimes obviously violent or threatening manner when
intoxicated given that previous conviction. . . . I was just
going to raise it for the purpose of letting the jury know or
making the jury aware that it exists.
Thus, the State essentially argued the conviction is probative for its
propensity inference: the fact finder will assume Redmond behaved
toward P.M. in conformity with his prior actions.
Redmond objected to the conviction’s admissibility stating the
conviction would cause him “extreme prejudice.” He did not specifically
articulate the prejudice, but it is clear he is referring to a fear the jury
will assume his guilt based upon a similar prior conviction.
After hearing the parties’ oral arguments, the court ruled, “Under
these circumstances, in my opinion, the probative value of admitting the
evidence of the prior conviction . . . outweighs the prejudicial effect [to]
the accused . . . .” The court did not make any case-specific
considerations or findings on the record.
II. Standard of Review.
We review rulings on the admission of prior crimes evidence for an
abuse of discretion. State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008).
An abuse of discretion occurs when the trial court exercises its discretion
7
“on grounds or for reasons clearly untenable or to an extent clearly
unreasonable.” Id. (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa
1997)) (internal quotation marks omitted). “A ground or reason is
untenable when it is not supported by substantial evidence or when it is
based on an erroneous application of the law.” Graber v. City of Ankeny,
616 N.W.2d 633, 638 (Iowa 2000).
III. Issues.
Redmond claims the district court abused its discretion in two
respects. First, Redmond asserts the district court abused its discretion
when it failed to make a record of explicit findings in employing the rule
5.609(a)(1) probative-versus-prejudice balancing test. Second, Redmond
claims the district court abused its discretion in concluding the probative
value of his harassment conviction outweighs its prejudicial effect.
IV. District Court Did Not Abuse Its Discretion by Failing to
Make On-The-Record Findings.
This court has never required the district court to make explicit
findings as to a prior conviction’s admissibility for impeachment
purposes. In considering whether explicit findings were required under
rule 5.609(b) 2 we noted “it would be [the] better practice for the trial
court to make on-the-record findings as to the specific facts and
circumstances which demonstrate the probative value of the conviction
substantially outweighs its prejudicial effect.” State v. Hackney, 397
N.W.2d 723, 728 (Iowa 1986). Similarly, in State v. Daly, 623 N.W.2d
2The textual language of Iowa Rule of Evidence 5.609(b) provides support for an
on-the-record requirement as it states “a conviction . . . is not admissible . . . unless the
court determines . . . the probative value of the conviction supported by specific facts
and circumstances substantially outweighs its prejudicial effect.” (Emphasis added.)
Iowa Rule of Evidence 5.609(a)(1) does not contain any reference to “specific facts and
circumstances” in its text. This opinion does not purport to make any determinations
with respect to an on-the-record-findings requirement under rule 5.609(b).
8
799, 802–03 (Iowa 2001), we declined to hold the district court abused
its discretion simply because it failed to make a record of its balancing
considerations. Instead, in Daly we independently examined the district
court’s admissibility decision and concluded the district court’s decision
to admit the prior conviction, not its failure to make explicit findings, was
an abuse of discretion. Daly, 623 N.W.2d at 802–03. We have held,
however, that when a district court makes explicit on-the-record findings
as to probative value, prejudicial effect, and individual circumstances,
the district court often creates a persuasive record that it properly
exercised its discretion. See State v. Axiotis, 569 N.W.2d 813, 816 (Iowa
1997), overruled on other grounds by State v. Harrington, 800 N.W.2d 46,
47 (Iowa 2011).
Federal courts generally follow a similar approach. The United
States Court of Appeals for the Seventh Circuit, in one of the more cited
passages on this issue, instructed the district court:
In the future, to avoid the unnecessary raising of the
issue of whether the judge has meaningfully invoked his
discretion under Rule 609, we urge trial judges to make such
determinations after a hearing on the record, as the trial
judge did in the instant case, and to explicitly find that the
prejudicial effect of the evidence to the defendant will be
outweighed by its probative value. When such a hearing on
the record is held and such an explicit finding is made, the
appellate court easily will be able to determine whether the
judge followed the strictures of Rule 609 in reaching his
decision.
The hearing need not be extensive. Bearing in mind
that Rule 609 places the burden of proof on the government,
the judge should require a brief recital by the government of
the circumstances surrounding the admission of the
evidence, and a statement of the date, nature and place of
the conviction. The defendant should be permitted to rebut
the government’s presentation, pointing out to the court the
possible prejudicial effect to the defendant if the evidence is
admitted.
9
United States v. Mahone, 537 F.2d 922, 929 (7th Cir. 1976) (citations
omitted); see also United States v. Sides, 944 F.2d 1554, 1561 (10th Cir.
1991) (“[T]his circuit has not adopted a requirement that trial courts
make explicit findings in determining the admissibility of prior
convictions. While explicit findings enable the appellate court to ensure
the proper application of Rule 609, explicit findings are not ‘an absolute
requirement the nonperformance of which mandates reversal.’ ” (citation
omitted) (quoting United States v. Jackson, 627 F.2d 1198, 1208–09 (D.C.
Cir. 1980))).
The district court should undertake to make explicit findings
concerning the balancing test articulated in rule 5.609(a)(1). See
Hackney, 397 N.W.2d at 728. Such findings guide courts in making
principled admissibility determinations in accord with the language of
rule 5.609(a)(1). Explicit findings also provide appellate courts
assurance the district court properly exercised its discretion. Absent
such findings, it may be difficult for the appellate courts to determine if
the district court properly utilized its discretion or applied the proper
framework. The absence of explicit findings, however, is not a per se
abuse of discretion. See Daly, 623 N.W.2d at 802–03. Instead, appellate
courts are then required to perform their own de novo review to
determine whether the district court invoked any meaningful discretion
and whether the record supports the district court’s decision to admit the
prior conviction.
Here, the district court held an on-the-record hearing to determine
the admissibility of Redmond’s prior conviction. The district court
properly noted rule 5.609(a)(1) governed the conviction’s admissibility
and allowed both parties to present argument as to admissibility. The
district court did not make explicit findings as to probative value or
10
prejudicial effect. Absent these findings, we proceed de novo to
determine whether the district court abused its discretion in admitting
Redmond’s prior first-degree harassment conviction.
V. Admissibility Under Rule 5.609(a)(1).
Iowa Rule of Evidence 5.609 states:
a. General rule. For the purpose of attacking the
credibility of a witness:
(1) Evidence that a witness other than the accused has
been convicted of a crime shall be admitted, subject to rule
5.403, if the crime was punishable by death or imprisonment
in excess of one year pursuant to the law under which the
witness was convicted, and evidence that an accused has
been convicted of such a crime shall be admitted if the court
determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the accused; and
(2) Evidence that any witness has been convicted of a
crime shall be admitted if it involved dishonesty or false
statement, regardless of the punishment.
Rule 5.609(b) restricts admissibility of prior convictions more than ten
years from the date of the conviction or release of the witness from
confinement unless the “the probative value of the conviction supported
by specific facts and circumstances substantially outweighs its
prejudicial effect.” Iowa R. Evid. 5.609(b).
A. History of Prior Conviction Admissibility. The traditional
rationale for admitting prior convictions rests on the assumption prior
convictions undermine a witness’s credibility because a person who
commits a crime is more likely to lie than a law-abiding citizen. See
Parker, 747 N.W.2d at 206 (observing this traditional policy rationale). In
1974, this court reexamined the admissibility of prior convictions against
a defendant–witness and modified the traditional per se acceptance of
prior conviction evidence. State v. Martin, 217 N.W.2d 536, 540–43 (Iowa
1974). We framed the issue as whether the State could cross-examine
11
the defendant about “prior felony convictions unrelated to truth and
veracity.” Id. at 538. We concluded “relatively unlimited cross-
examination of a witness as to prior felony convictions, more particularly
an accused, is fraught with inequities.” Id. at 541.
This court cited to Gordon v. United States, 383 F.2d 936 (D.C. Cir.
1967), which was drafted by Chief Justice Warren Burger, then a circuit
court of appeals judge, for guidance in establishing admissibility
standards. Id. at 540–42. First, we directed courts to look to the nature
of the impeachment, as the impeachment should not “show that the
accused . . . is a ‘bad’ person but rather . . . show background facts
which bear directly on whether jurors ought to believe him.” Id. at 540
(quoting Gordon, 383 F.2d 940) (internal quotation marks omitted).
Second, we directed courts to consider the “remoteness in time” of the
conviction, as dated convictions may have less bearing on witness truth
and veracity. Id. at 541. We also noted prior convictions “based on
conduct the same or substantially similar to [the current charge]
militates against admissibility of the prior [conviction] because it
enhances the danger of unfair prejudice.” Id. at 543 (quoting People v.
Delgado, 108 Cal. Rptr. 399, 404–05 (Ct. App. 1973), overruled on other
grounds by People v. Rist, 545 P.2d 833, 840 (Cal. 1976)). This court
summarized:
[F]or the purpose of attacking credibility of any witness,
including an accused . . . , evidence that he has been
previously convicted of a felony is admissible only if (1) the
felony involved dishonesty or false statement, and (2) the
judge determines any danger of unfair prejudice does not
substantially outweigh the probative value of such prior
felony conviction, taking into account factors such as
(a) nature of the conviction, (b) its bearing on veracity, (c) its
age, and (d) its propensity to improperly influence the minds
of the jurors.
Id. at 542.
12
Martin created this state’s framework for admissibility of prior
convictions against the accused. Martin’s four factors still guide the legal
landscape in this area of law. See, e.g., Daly, 623 N.W.2d at 802–03
(citing Martin’s factors as controlling); Axiotis, 569 N.W.2d at 816 (same);
Hackney, 397 N.W.2d at 726–27 (Iowa 1986) (same).
But Martin and Gordon both predated the adoption of specific
evidentiary rules governing the impeachment use of prior convictions.
Federal Rule of Evidence 609 was adopted in 1974. In 1983, this state
adopted Iowa Rule of Evidence 5.609 which was patterned after the
Federal Rule. As the Martin court observed, “The effect of prior felony
convictions upon testimonial rights [was] a matter of concern to both
courts and legal scholars,” and the rules of evidence were created in
culmination of these long-standing concerns. Martin, 217 N.W.2d at
538. The rules of evidence sought to replace fragmented case law on the
issue and provide definite guidance as to the admissibility of prior
convictions. The legislative history of the Federal Rule is substantial,
and the rule was the byproduct of a heated ideological congressional
debate. See Victor Gold, Impeachment by Conviction Evidence: Judicial
Discretion and the Politics of Rule 609, 15 Cardozo L. Rev. 2295, 2298–
2321 (1994) [hereinafter Gold] (providing a detailed summary of Rule
609’s legislative history). The tension resided between society’s interest
in convicting the guilty and providing the accused a fair trial. Id. at
2310. Federal Rule of Evidence “609(a) embodies a series of calculated
risks that admission of prior convictions evidence will lead to the
acquittal of the guilty or the conviction of the innocent.” Id. at 2321.
As a result of this congressional struggle, one commentator
quipped, “The text of Rule 609[] incorpor[ates] no less than three
balancing tests, two references to fairness, one to justice, and several
13
other undefined terms . . . .” Id. at 2296. Iowa Rule of Evidence 5.609,
patterned after the Federal Rule, contains a similar set of compromises.
Rule 5.609 distinguishes between the testimonial rights of the accused
and other witnesses, between crimes of dishonesty or false statement
and other crimes, and between convictions not within ten years and
those more recent. Iowa R. Evid. 5.609. Depending on such
classifications, different admissibility tests are required.
Rule 5.609(a) and Martin embrace many of the same principles.
But the discrete framework of rule 5.609 and Martin’s more generic
analysis have tenuously coincided, at times causing precedent
inconsistent with the rule’s language. See, e.g., Harrington, 800 N.W.2d
at 47, 50–51 (overruling case law that applied Martin’s four factors to
crimes that come within rule 5.609(a)(2) as this rule provides the district
court no balancing discretion). For example, Martin’s factors direct the
court to determine the prior conviction’s bearing on veracity, but rule
5.609(a)(2) provides a special rule of admissibility for convictions
involving dishonesty or false statement. Id. at 50. How Martin’s generic
factors interplay with the rule’s specific contours is unclear.
Federal courts have developed a body of case law tied to the
language and approach articulated in Federal Rule of Evidence 609. See
Tome v. United States, 513 U.S. 150, 160–61, 115 S. Ct. 696, 702–03,
130 L. Ed. 2d 574, 584 (1995) (noting the Federal Rules of Evidence often
adhere to common law, but “[w]here the Rules did depart from their
common-law antecedents, in general the Committee said so”). The
principles articulated in Gordon and other pre-Rule 609 cases serve as
valuable guidance, but the framework is not controlling in federal courts.
Our jurisprudence must move past Martin’s framework and embrace the
comprehensive approach instructed by Iowa Rule of Evidence 5.609.
14
See, e.g., Harrington, 800 N.W.2d at 48–51 (distinguishing admissibility
rules between convictions within rule 5.609(a)(1) and (2) in accord with
the rule’s text). This case presents an opportunity to examine rule
5.609(a)(1)’s policies and framework for admitting prior conviction
evidence against the accused. 3
B. Framework for Admitting Convictions Under Rule
5.609(a)(1). Iowa Rule of Evidence 5.609(a)(1) applies to a witness’s
prior convictions that: (1) are punishable by death or imprisonment in
excess of one year, (2) do not involve dishonesty or false statement
(governed by rule 5.609(a)(2)), and (3) are within ten years (governed by
rule 5.609(b)). Rule 5.609(a)(1) distinguishes between a defendant–
witness’s prior convictions and an ordinary witness’s prior convictions.
United States v. Tse, 375 F.3d 148, 160, 164 (1st Cir. 2004) (“With
respect to the use of prior convictions for impeachment, Rule 609
distinguishes between the accused and mere witnesses.”); 4 Jack B.
Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence
§ 609.05[3][a], at 609–36 (Joseph M. McLaughlin ed., 2d ed. 2011)
[hereinafter Weinstein] (“Rule 609(a) distinguishes between the accused
and other witnesses when prior convictions are used for impeachment.”).
If the witness is not the defendant, the prior conviction “shall be
admitted” unless excluded under rule 5.403 because the conviction’s
“probative value is substantially outweighed by the danger of unfair
prejudice.” Iowa Rs. Evid. 5.403, 5.609(a)(1); accord Weinstein,
§ 609.05[2], at 609–33. Rule 5.609(a)(1) therefore operates as a rule of
admission as to an ordinary witness’s prior felony convictions. If the
3All parties agree Redmond’s harassment conviction falls within rule 5.609(a)(1)
as it is not a conviction that involves “dishonesty or false statement” which is governed
by rule 5.609(a)(2).
15
State seeks to impeach the defendant with a prior conviction, however,
the conviction is only admissible “if the court determines that the
probative value of admitting this evidence outweighs its prejudicial effect
to the accused.” Iowa R. Evid. 5.609(a)(1); accord Weinstein,
§ 609.05[3][a], at 609–36. Rule 5.609(a)(1) acts as a rule of exclusion as
to the defendant–witness’s prior convictions. The defendant–witness
provision is implicated in this case.
The salient feature of rule 5.609(a)(1) is the distinction between
defendants and witnesses. See Weinstein § 609.05[3][a], at 609–36 (“[A]
criminal defendant’s prior convictions may be excluded in situations that
would not justify exclusion concerning other witnesses.”). Only when the
prior conviction’s probative value outweighs its prejudicial effect to the
accused is the defendant’s prior conviction admissible for impeachment
purposes. Iowa R. Evid. 5.609(a)(1). The prosecution must carry this
burden to admit a prior conviction against the accused. See, e.g., United
States v. Rivers, 693 F.2d 52, 54 n.3 (8th Cir. 1982) (noting “the
government’s burden at trial to establish the admissibility of prior
convictions under Rule 609(a)”); United States v. Kiendra, 663 F.2d 349,
353 n.1 (1st Cir. 1981) (“Rule 609(a)(1) actually goes so far as to put the
burden on the government to show that probative value outweighs
prejudice.”). The rule requires the court to determine both the
conviction’s “probative value” and the conviction’s “prejudicial effect,” but
it does not define the meaning of either concept. The court must use its
discretion to make these findings. An appellate court cannot
hypothecate the countless individual circumstances that may influence a
conviction’s probative value or prejudicial effect, but it can provide
guidance to the content of these terms.
16
1. Probative Value. To ascertain “probative value,” the court must
identify what the prior conviction must tend to prove. See Alan D.
Hornstein, Between Rock and a Hard Place: The Right to Testify and
Impeachment by Prior Conviction, 42 Vill. L. Rev. 1, 9 (1997) (noting many
evidentiary challenges focus on prejudice, but sophisticated approaches
also take into account probative value towards credibility). Rule 5.609(a)
states the prior conviction is “[f]or the purpose of attacking the credibility
of a witness.” A prior conviction’s probative value then must be
measured by the degree it undermines the defendant’s testimonial
credibility; stated inversely, probative value is the extent to which
exclusion of the prior conviction evidence inhibits the jury from
accurately assessing the defendant’s testimonial credibility. Counsel
may attempt to show a witness’s testimony is unpersuasive in a number
of ways, such as showing bias, motive to lie, or flaws in perception. Prior
conviction evidence is simply another tool in the attorney’s belt.
Rule 5.609(a)(1) contemplates all convictions falling within its
scope undermine testimonial credibility to some degree. This conclusion
flows from the structure of rule 5.609. See United States v. Lipscomb,
702 F.2d 1049, 1058 (D.C. Cir. 1983) (concluding the language of
Federal Rule of Evidence 609 implies “all felony convictions were
somewhat probative of credibility”). Rule 5.609(a)(1) mandates the
defendant–witness’s conviction “shall be admitted if the court determines
the probative value . . . outweighs its prejudicial effect.” The rule
requires the court to consider “the probative value” which implies all
prior convictions within the scope of rule 5.609(a)(1) meet some
minimum degree of probative value. This inference is supported by other
classifications made in rule 5.609. For example, rule 5.609(a)(1) applies
only to convictions with potential sentences in excess of one year, which
17
implies not all convictions meet the threshold degree of probative value
required for rule 5.609(a)(1) to apply. Thus, convictions that come within
rule 5.609(a)(1) meet the minimum probative threshold to be admitted,
dependent on their prejudicial effect.
The corollary of the inference that all prior convictions within rule
5.609(a)(1) have some probative value is the inference prior convictions
all carry different degrees of probative value. See United States v.
Estrada, 430 F.3d 606, 619 (2d Cir. 2005) (“[T]he gradations among Rule
609(a)(1) crimes, in terms of their bearing on truthfulness, . . . lie at the
heart of the . . . analysis . . . under Rule 609(a)(1).”); accord Weinstein,
§ 609.05[3][b], at 609–39 (“Although Rule 609(a)(1) addresses convictions
for crimes that do not involve . . . dishonesty or false statement, some
felonies are more related to veracity than are others.”). The special
distinctions made in rule 5.609(a)(1) demonstrate that prior convictions
do not uniformly bear on a suspect’s testimonial truthfulness. Rule
5.609(a)(2), for example, concludes crimes of dishonesty or false
statement are so probative towards a witness’s testimonial credibility
that the district court should not have balancing discretion under rule
5.609(a) to exclude the convictions. See Harrington, 800 N.W.2d 46, 50
(Iowa 2011) (“[P]rior convictions involving dishonesty or false statement
are always sufficiently relevant to the truthfulness of the witness’s
testimony that protections against jury misuse of the prior-conviction
evidence is not necessary.”). Similarly, rule 5.609(b) creates a
presumption of exclusion for convictions more than ten years old, which
suggests older convictions become less probative. Rule 5.609(a)(1) thus
tasks courts to use their discretion to ascertain the relative probative
value of each prior conviction within the rule’s scope.
18
A narrow set of factors cannot account for all circumstances or
conditions that might affect a prior conviction’s probative value. Instead,
discussion of a nonexhaustive list of circumstances that might affect a
conviction’s probative value is more useful. See United States v. Jackson,
627 F.2d 1198, 1209 (D.C. Cir. 1980) (articulating five common
circumstances the district court should consider but noting the list “does
not exhaust the range of possible factors”). 4 The conviction’s underlying
conduct might affect its probative value. For example, crimes of stealth
or premeditation may undermine a witness’s testimonial credibility more
substantially than crimes of impulse, carelessness, or moral turpitude as
perjury encompasses elements of stealth and planning. See, e.g.,
Weinstein, § 609.05[3][b], at 609–39 to 609–40 (noting crimes that imply
some dishonesty or stealth, such as theft, often have more probative
value then crimes of violence). The need for prior conviction evidence
may also affect a conviction’s probative value. Id. § 609.05[3][e], at 609–
43 (“[T]hat a defendant’s testimony is important to demonstrate . . . his
or her defense constitutes a factor . . . .”). Cumulative evidence, for
example, may carry less probative value. By contrast, where the witness
has boasted of his credibility, impeachment with a prior conviction may
be necessary to ensure the jury does not overvalue the defendant’s
credibility. See Charles Alan Wright & Victor James Gold, 28 Federal
Practice and Procedure: Evidence § 6134, at 234–35 (1993) [hereinafter
Wright & Gold]. The substance of the defendant’s testimony could affect
4The five common circumstances employed in federal court are: (1) the
impeachment value of the prior crime, (2) the date of the conviction and the defendant’s
subsequent history, (3) the degree of similarity between the past crime and the charged
crime, (4) the importance of the defendant’s testimony, (5) the centrality of the
credibility issue. Weinstein, § 609.05[3][a], at 609–38. These general circumstances
outline high-level relevant circumstances, but, as this opinion’s discussion shows, the
individual facts of each case may create different, unique applications of these general
circumstances.
19
a prior conviction’s probative value as the testimony itself may be
inconsequential, noncredible, or conclusively shown credible by other
evidence. Id. As contemplated in rule 5.609(b), the period of time since
the prior conviction may affect probative value. Weinstein, § 609.05[3][c],
at 609–41. Also, the defendant’s behavior or conduct since the
conviction may show changed or unchanged character which could affect
a conviction’s probative value. These are nonexhaustive examples of
considerations that may affect the probative impeachment value of prior
conviction evidence.
2. Prejudicial Effect. Prejudicial effect is the extent of the risk that
the jury may misuse the prior conviction evidence to decide the case on
an improper basis. The prejudice risks for a defendant–witness generally
fall into three categories. First, the jury may assume propensity, drawing
an inference of present guilt by assuming the defendant acted in
conformity with his prior conviction. Harrington, 800 N.W.2d at 50;
Hackney, 397 N.W.2d at 726. Second, the jury may use the prior
conviction to infer the defendant is a bad person deserving of
punishment and decide the case, in part, on their dislike for the
defendant, rather than the defendant’s testimonial credibility. Parker,
747 N.W.2d at 206 (noting juries may use prior conviction evidence as
justification to convict with minimal concern for present guilt); accord
Gold, 15 Cardozo L. Rev. at 2313 (noting in a criminal prosecution “the
jury may ignore the issues and convict because evidence of prior
conviction suggests the accused is a bad person who, if not guilty of the
crime charged, may be deserving of punishment for something else”).
Finally, a jury may overweigh the impeachment value of prior conviction
evidence. Harrington, 800 N.W.2d at 50 (“[P]rejudice occurs if the fact
finder affords undue significance to a witness’s prior convictions . . . .”);
20
see also Wright & Gold, § 6134, at 243–44 (detailing potential prejudice
risks caused by prior conviction evidence).
Just as all convictions within rule 5.609(a)(1) contain some
probative value, prior convictions, by their nature, always contain some
degree of prejudicial risk. The lay jury is often at risk to misuse the
evidence as it may have difficulty compartmentalizing evidence as going
towards a defendant’s testimonial credibility from inferences as to the
defendant’s character or propensity. Intellectually there is a distinction,
but human emotion makes it difficult to separate. See Abraham P.
Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b),
608(b), and 609(a), 38 Emory L.J. 135, 135 (1989) (“[Lawyers] create
conceptual distinctions which, though capable of articulation, are not
always capable of application either by ourselves or by the juries that
ultimately must deal with them.”).
Certain circumstances unique to the particular case may make the
prejudicial risks more acute. For example, a more heinous prior
conviction might cause the jury to believe the defendant is a bad person
and lead the jury to decide the case without concern for present guilt.
Wright & Gold, § 6134, at 232. Also, our case law has continually
cautioned against admitting prior convictions which are similar to the
defendant’s current charge for fear the jury will assume the defendant’s
guilt by inferring the defendant acted in conformity with his past
conduct. See, e.g., Harrington, 800 N.W.2d at 50 (warning convictions of
the same character pose a special risk of prejudice); Parker, 747 N.W.2d
at 210 (same); Hackney, 397 N.W.2d at 728 (same); Martin, 217 N.W.2d
at 542–43 (same). Juries may be more likely to misuse prior conviction
evidence in cases with weak evidence or cases that are he-said-she-said
swearing matches. United States v. Sanders, 964 F.2d 295, 299 (4th Cir.
21
1992) (finding risk of prejudice could “tip the balance” in an
uncorroborated credibility contest). Multiple convictions, similarly, could
increase the risk of jury misuse. These examples are not always
authoritative, nor are the examples exhaustive. Rule 5.609(a) demands
the district court exercise discretion in accord with the circumstances
surrounding a particular decision to ascertain the prejudicial effect prior
conviction evidence causes the accused.
3. Balancing Probative Value and Prejudicial Effect. As stated, rule
5.609(a)(1) as applied to the accused is a rule of exclusion. This rule
saddles the prosecution with the burden to show the defendant’s prior
conviction evidence is more probative to the defendant’s testimonial
credibility than prejudicial to the defendant. Iowa R. Evid. 5.609(a)(1).
The balancing process, like all of rule 5.609(a), requires the district
court to exercise judgment. The court should identify and calculate the
probative value of the prior conviction as it relates to testimonial
credibility. It is equally important that the court identify what specific
prejudice might be realized. Only then can the court utilize meaningful
discretion to assess the prior conviction’s prejudicial effect. Weighing
prejudicial effect requires probability estimates. How likely is the jury to
assume guilt through propensity or bad character, or how likely is the
jury to overemphasize the prior conviction’s impeachment value? The
greater the probability of prejudice, the less likely the prosecution can
meet its burden.
Rule 5.609(a) is an ideologically compromised rule of evidence
which requires the quantifying and balancing of vaguely described terms.
The rule strongly influences the defendant’s decision to testify, and it can
affect the outcome of trials. The district court must exercise its
discretion and hold the prosecution to its burden of establishing that the
22
prior conviction evidence has probative value which exceeds its
prejudicial effect to the accused.
With these principles in mind, we turn to the application of rule
5.609(a) to the admission of Redmond’s first-degree harassment
conviction.
C. Application of Rule 5.609(a)(1). First our task is to ascertain
the probative value of Redmond’s prior first-degree harassment
conviction, or, stated another way, to determine the extent to which the
evidence undermines Redmond’s testimonial credibility. The record does
not reveal the circumstances surrounding Redmond’s first-degree
harassment conviction except that the conviction occurred on August 21,
2009, approximately two months before the present incident. This case
was a he-said-she-said case, and Redmond and P.M.’s credibility were
essential. Redmond’s testimony was brief, and his defense was he was
intoxicated, passed out early in the evening, and did not wake up until
the officer arrested him.
In light of these facts, we have difficulty ascertaining extensive
probative value in the harassment conviction. Harassment has several
definitions, but primarily is defined as “[c]ommunicates with another . . .
without legitimate purpose and in a manner likely to cause the other
person annoyance or harm.” Iowa Code § 708.7(1)(a)(1). Since the State
did not introduce the circumstances surrounding the harassment, we
assume this general definition defines Redmond’s underlying conduct.
Harassment thus does not generally involve stealth or theft—
characteristics of perjury that impeach testimonial credibility to some
degree. Wright & Gold, § 6134, at 233. The crime does not necessarily
even require premeditation, but is often impulsive. Id. (“[C]rimes . . .
involving premeditation are relatively higher in probative value because
23
they suggest the witness is willing to break the law when it furthers his
interest.”). The conviction’s probative value is limited to showing
Redmond has intended to disturb or upset others. This showing may
allow the jury to infer Redmond might disregard his duty to testify
truthfully based upon his previous disregard of social communicative
norms for self-gratification. But “crimes based on conduct that is either
violent or disorderly are ordinarily not” as probative toward testimonial
credibility. Weinstein, §§ 609.04[3][b], 609.05[3][b], at 609–26.1 to 609–
26.2 & nn.22–25, 609–39 & n.17 (citing collections of cases).
Ascertaining the prejudicial effect of the prior conviction as to
Redmond is the next step. To ascertain prejudicial effect, we first must
articulate what prejudicial risks are present. Here, the risk of propensity
is overwhelmingly present, as well as the risk the jury may assume
Redmond’s bad character as a reason for current guilt. The propensity
risk is obvious, so obvious it was the reason the State argued the
harassment conviction should be admitted:
I think the fact that the defendant has just recently been
convicted of Harassment in the First Degree, I believe while
intoxicated as well, goes to establish that this type of
behavior—that the defendant’s impeachment on this offense
is proper . . . .
....
I think it’s clear that the defendant acts in an aggressive and
sometimes obviously violent or threatening manner when
intoxicated given that previous conviction. . . . I was just
going to raise it for the purpose of letting the jury know or
making the jury aware that it exists.
Several circumstances make the propensity risk substantial. First,
harassment is “communic[ation] . . . without legitimate purpose and in a
manner likely to cause the other person annoyance or harm.” Iowa Code
§ 708.7(1)(a)(1). Notably, this definition also encompasses Redmond’s
alleged conduct charged in this case. Juries are more susceptible to
24
making an improper propensity inference when the prior conviction
involves a similar crime. “As a general guide, those convictions which
are for the same crime should be admitted sparingly . . . .” Daly, 623
N.W.2d at 802 (quoting Gordon, 383 F.2d at 940) (internal quotation
marks omitted)). This risk is heightened because the prior harassment
was not defined for the jury so jurors were free to speculate what
behavior may have formed the basis of Redmond’s prior conviction.
The evidence in this case also creates a substantial risk the jury
will improperly use the prior conviction evidence to assume guilt through
propensity. The case was tried to the jury based on he-said-she-said
facts. As the State aptly observed in its closing argument “all this case
boils down to . . . is whether or not [P.M.] is telling the truth or whether
or not the defendant is.” There was no corroborating evidence or
witness. P.M. said she went to Redmond’s room and he exposed himself,
and Redmond says otherwise. Their testimony is irreconcilable. In a
similar situation, the United States Court of Appeals for the Fourth
Circuit reasoned:
The assault prosecution turned essentially upon the jury’s
assessment of the relative credibility of Sanders and
Jenkins, the direct protagonists, who gave widely conflicting
versions of the stabbing. In such a situation, evidence
having no possible basis except to show a propensity for
violence on the part of the defendant obviously has the
capacity to tip the balance in such a swearing contest.
Sanders, 964 F.2d at 299. Redmond’s harassment conviction, similarly,
“ha[d] the capacity to tip the balance” in this swearing contest. Id. The
harassment conviction creates an acute risk the jury will resort to
propensity or assume his guilt based upon recent bad character as a way
to resolve the irreconcilable, uncorroborated evidentiary dispute.
25
Rule 5.609(a)(1) finally requires the court to balance the prior
conviction’s probative value with its prejudicial effect. The harassment
conviction undermines Redmond’s testimonial credibility to some extent,
as it shows he is willing to disregard social conventions for self-
gratification. But this inference can be derived from most any crime.
The similarities between Redmond’s harassment conviction and his
current charge, and the he-said-she-said nature of the case, create a
substantial probability the jury will misuse the prior conviction evidence
and assume present guilt based upon his prior conviction. The State has
fallen far short of meeting its burden of showing the probative value of
Redmond’s harassment conviction outweighs its prejudicial effect to
Redmond. Substantial evidence does not support the district court’s
decision to admit the prior conviction. Accordingly, the district court
abused its discretion by admitting Redmond’s harassment conviction
under rule 5.609(a)(1).
D. Admission Was Not Harmless Error. A trial court’s erroneous
admission of evidence is only reversed on appeal if “a substantial right of
the party is affected.” Parker, 747 N.W.2d at 209 (quoting Iowa R. Evid.
5.103(a)). An erroneous evidentiary ruling is harmless if it does not
cause prejudice. See id. Where, as here, the party claims
nonconstitutional error, prejudice occurs when the party has “been
‘injuriously affected by the error’ or . . . has ‘suffered a miscarriage of
justice.’ ” Id. (quoting State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004)).
Past cases have held the erroneous admission of the defendant’s
prior conviction does not violate the defendant’s “substantial right[s]”
when overwhelming evidence supports his conviction. Id. at 210; see
also State v. Martin, 704 N.W.2d 665, 673 (Iowa 2005); State v. Holland,
485 N.W.2d 652, 656 (Iowa 1992). This is not that type of case. P.M.
26
testified to one version of the events on that evening; Redmond to
another. There was little corroborating evidence. The district court’s
admission of Redmond’s prior conviction carried an acute risk of jury
misuse. The district court’s error was not harmless.
VI. Disposition.
The district court abused its discretion in permitting the State to
impeach Redmond with his prior first-degree harassment conviction.
The error was not harmless. Accordingly the decision of the court of
appeals is vacated, the district court judgment is reversed, and the case
is remanded to the district court for a new trial.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED FOR NEW
TRIAL.
All justices concur except Mansfield, J., who takes no part.