Defendant does not put credibility at issue simply by testifying

Carol Longenecker Schmidt and Samuel Schirer won in State v. Armstead, No. 109,160 (Kan. App. March 21, 2014)(unpublished), obtaining a new trial in a Leavenworth County drug and obstruction prosecution.  During trial, the district court admitted evidence of prior convictions for the purpose of impairing Mr. Armstead's credibility.  Mr. Armstead claimed this was error because he had not placed his credibility at issue.  The COA agreed:

In its ruling, the trial court also did not mention K.S.A. 60–421 but simply stated to Armstead's attorney, “Your client took the stand. He's subject to cross-examination and he's entitled to be tested for truth and veracity.” We understand the trial court's ruling as stating that whenever a criminal defendant takes the witness stand he or she may be impeached with evidence of prior crimes of dishonesty or false statement. But Armstead challenges the trial court's legal formulation as an inaccurate statement of Kansas law.

A criminal defendant must have the right to deny the charges against him without fearing that such testimony will authorize the State to parade his history of past misconduct before the jury. Consequently, a criminal defendant does not place his credibility in issue, under K.S.A. 60–421, by merely taking the witness stand. We agree with Armstead that the trial court's stated reason during trial for admitting the prior crimes evidence was at variance with K.S.A. 60–421.

During cross-examination, Mr. Armstead said a police officer lied.  The state claimed that this put Mr. Armstead's credibility at issue.  The COA disagreed:

We question the validity of the State's argument. While Armstead accused the officer of lying, he did not refer to, let alone bolster, his own credibility. Moreover, the State's claim that Armstead's use of an alibi defense necessarily placed his credibility in issue is without merit.

The COA further found that the error was not harmless and, therefore, reversed and remanded for a new trial.

[Update: the state did not file a PR and the mandate issue on April 24, 2014.]