Commentary: Admitting too many prior convictions harmless.

• Author: Ziemer, David

Byline: David Ziemer

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 referenced 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 previously 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...