Improper impeachment with prior conviction not harmless

Rachel Pickering won in State v. Hoskins, No. 99,802 (Kan. App. Aug. 14, 2009)(unpublished), obtaining a new trial in a Montgomery County aggravated intimidation of a witness or victim prosecution. The main issue in the case was the admission of a prior forgery conviction for impeachment purposes. The district court had admitted the evidence after Mr. Hoskins testified, reasoning that it was a "he said/she said" type of case. On appeal, the state conceded that admission of the prior forgery conviction was error, but argued that it was harmless. The COA agreed that, simply because a defendant testifies, he or she does not put his or her credibility at issue and, therefore, the district court erred. The COA went on to conduct a lengthy harmless error analysis:

In this case, the State's key witness was the alleged victim, Dunn. The only other eyewitness was Officer Whittet, and he did not hear the conversation between Dunn and Hoskins. The last piece of the puzzle was the 911 call placed by Dunn. Otherwise, there was no physical evidence; the entire case turned on whom the jury believed more, Dunn or Hoskins. When this type of credibility determination is at stake, Kansas courts are more hesitant to find that erroneous admissions of evidence constitue harmless error. Considering the gravity that witness credibility played in this trial, we find the State's evidence is not so "direct and overwhelming" that we could comfortably conclude the evidence of Hoskin's prior forgery conviction did not affect the result of his trial.

So, the COA reverses. I would just note that the description that "the entire case turned on whom the jury believed more, Dunn or Hoskins" is not quite right. In a criminal case like this, it really should be "did the jury believe Dunn beyond a reasonable doubt." A jury could believe Dunn more, but not beyond a reasonable doubt. Maybe it's a small point, but one I have been thinking about lately.

[Update: the state did not file a PR and the mandate issued on September 17, 2009.]