Baskin Robbed?: Court of Appeals of Mississippi Finds Trial Court Erred In Allowing Impeachment Via Petty Larceny Conviction

February 13, 2013

Similar to its federal counterpart, Mississippi Rule of Evidence 609(a) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party 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 party; and

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.

So, let’s say that a defense witness has prior convictions for misdemeanor embezzlement and petty larceny. Can the prosecution impeach the witness through either, both, or neither of these convictions pursuant to Rule 609(a)? Let’s take a look at the recent opinion of the Court of Appeals of Mississippi in Baskin v. State, 2013 WL 500762 (Miss.App. 2013).

In Baskin, Joel Baskin for possession of cocaine and as a habitual offender. After he was convicted of both crimes, he appealed, claiming, inter alia, that the trial court erred in permitting the prosecution to impeach defense witness Darsheika Wallace through evidence of her prior convictions for misdemeanor embezzlement and petty larceny.

First, the Court of Appeals of Mississippi found no problem with impeachment of Wallace through her embezzlement conviction, finding that it was admissible under Mississippi Rule of Evidence 609(a)(2). As noted by the court, the advisory committee note to Rule 609 states that

The phrase “dishonesty or false statement” in 609(a)(2) means crimes such as perjury or subornation of perjury, false statement, fraud, forgery, embezzlement, false pretense or other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the witness'[s] propensity to testify truthfully. Such convictions are peculiarly probative of credibility and are always to be admitted, not subject to the discretionary balancing by the judge (emphasis added).

The appellate court, however, did find error with the trial court allowing impeachment through evidence of the petty larceny conviction:

With regard to petty larceny, the Mississippi Supreme Court has found that it does not constitute a crime involving dishonesty or a false statement. The supreme court stated: “While there is a split of authority on the question whether theft crimes such as larceny and shoplifting should be categorized as crimen falsi, historically they have not been and this Court has adopted the majority view that they are not.”…Therefore, for theft crimes to be admissible for impeachment purposes, they must fall under Rule 609(a)(1)….Because Wallace’s petty-larceny conviction was not punishable by death or imprisonment in excess of one year, that conviction does not fall under Rule 609(a)(1).

That said, because Baskin failed to object to this issue at trial, the court found that he had failed to preserve it for appellate review.

-CM