 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Miller v. State12/14/1989
ent part:
"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 (1) was punishable by death or imprisonment in excess of one (1) year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant * * *."
His argument in this regard is two-fold. First, he argues that the district court erred in failing to make the requisite preliminary findings that the prior conviction was for a felony and that the probative value of the evidence outweighed its prejudicial potential. Second, he contends it was error to admit the testimony because its prejudicial effect far exceeded its negligible probative value.
We note that appellant's failure to make a timely objection to the introduction of this testimony requires us to affirm his conviction, absent a finding that the admission of such evidence rises to the level of plain error.
"To determine whether the plain error standard has been met, we apply a three-part test. First, this court must be able to discern unequivocally from the record what occurred at trial without resort to speculation. Second, appellant must demonstrate that what occurred constitutes a clear and obvious violation of a clear and unequivocal rule of law. Finally, that violation must have adversely affected some substantial right of appellant."
Schwenke v. State, 768 P.2d 1031, 1034 (Wyo. 1989); see also Britt v. State, 752 P.2d 426, 428 (Wyo. 1988). We will not find plain error in a discretionary ruling of the trial court unless the appellant demonstrates a clear abuse of that discretion by showing that the trial court could not have reasonably concluded as it did. See Schwenke, 768 P.2d at 1034-35; Gresham v. State, 708 P.2d 49, 56-57 (Wyo. 1985); Munden v. State, 698 P.2d 621, 625-26 (Wyo. 1985); Bradley v. State, 635 P.2d 1161, 1165 (Wyo. 1981).
With respect to appellant's first assignment of error, we hold that the trial court's failure to make the preliminary findings required by W.R.E. 609(a) did not violate a clear and unequivocal rule of law. As we explained in Bradley, W.R.E. 609(a) places no burden upon the court to make such findings to support the admission of prior convictions until the defendant enters a proper objection. Only at that time does the trial court's obligation to make those preliminary determinations become clear and unequivocal. The failure to object constitutes a waiver of that obligation. Bradley, 635 P.2d at 1165. Appellant may not premise plain error upon the trial court's failure to make the Rule 609 findings.
Appellant would also have us find plain error in the admission of his prior conviction based on his contention that its prejudicial effect exceeded its probative value. However, he concedes that the balancing of prejudice against probative worth is ordinarily a discretionary matter for the trial court and that to prevail on appeal he must, as a threshold matter, clearly demonstrate the inflammatory nature of the evidence and establish that it had little probative value. Appellant has failed to carry this burden. His evidence concerning the prejudicial nature of his prior drug conviction demonstrates only the widespread public concern with, and media attention given to, illicit drug use. We rejected a similar showing as insufficient to establish the prejudicial effect of a prior conviction in Apodaca v. State, 627 P.2d 1023, 1027-28 (Wyo. 1981), and hold likewise in this case.
A
Page 1 2 3 4 5 6 7 8 Wyoming DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|