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State of North Dakota v. Thomas Doppler

April 4, 2013

STATE OF NORTH DAKOTA,
PLAINTIFF AND APPELLEE
v.
THOMAS DOPPLER, SR., DEFENDANT AND APPELLANT



Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Harlan Patrick Weir, Judge.

The opinion of the court was delivered by: Crothers, Justice.

N.D. Supreme CourtState v. Doppler, 2013 ND 54 This opinion is subject to petition for rehearing. [Go to Documents]

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REVERSED AND REMANDED.

Opinion of the Court by Crothers, Justice.

[¶1] Thomas Doppler appeals a district court judgment of conviction for possession of methamphetamine and possession of drug paraphernalia after a jury trial. Doppler argues the district court abused its discretion by admitting evidence of Doppler's prior felony convictions. We reverse and remand for a new trial, concluding Doppler's substantial rights were affected by the improper admission of Doppler's prior convictions.

I

[¶2] Doppler's apartment was searched on May 18, 2011. The search was supervised by Doppler's probation officer and was conducted by Dickinson Police Department officers. The officers discovered a small amount of methamphetamine as well as two glass pipes with traces of methamphetamine. Doppler was convicted of possession of a controlled substance and possession of drug paraphernalia, both class C felonies. He was sentenced to five years imprisonment with two years suspended and supervised probation.

[¶3] Doppler testified at trial. During cross-examination, the State asked, "Mr. Doppler, isn't it true that you are a convicted felon?" Doppler's counsel made no objection, and Doppler answered, "Yes." The State then asked, "And what is--what is the date of the most recent conviction?" Doppler's counsel objected and stated, "Your Honor, I am going to object as to the relevance of his criminal history in this matter." The State replied, "I believe it reflects clearly on his credibility and is permitted by the rule." Doppler's counsel stated, "Your Honor, I don't believe the door has been opened." The district court stated, "When was the alleged--well we're going to have to establish a record please approach the bench counsel. The objection is overruled. You may proceed." The trial transcript did not contain the conversation that occurred between the court and counsel. The State asked Doppler about the dates of the two felony convictions. Doppler testified one felony conviction occurred in 2004 and was the basis for his probation and the other conviction occurred prior to 2004. The State also highlighted the convictions during its closing argument.

[¶4] The trial transcript of the jury trial was filed as part of this appeal. Appellate briefs were filed, and oral arguments were held on October 11, 2012. The case was taken under advisement. This Court directed the district court to prepare a transcript or audio recording of the bench conference missing from the original transcript or, in the alternative, to prepare a stipulation of the bench conference from the best available means, including counsel's and court's recollection. See N.D.R.App.P. 10(h).

[¶5] The supplemental transcript was prepared from the audio recording. The transcript reflects the district court stated, "Now Rule 609 says that if crime was punishable in excess of one year, and the evidence that he was convicted of a crime. What is it?" The remaining portion of the bench conference was inaudible and could not be transcribed. The district court held a hearing with counsel present to produce a stipulation of what transpired during the bench conference and provided a transcript of that hearing to this Court. The district court noted the recording of the bench conference clearly reflected the court referencing Rule 609 and inquiring whether the crime of which Doppler had been convicted involved a punishment of more than one year. The State said Doppler had been convicted of possession of drugs in Texas, Washington and North Dakota. The State argued the convictions go to the credibility of the witness, though the district court was unable to say with certainty that the word "credibility" was used. The district court could not remember anything Doppler's counsel said. The district court independently recalled being aware of relevance and prejudice issues but could not recall exactly what was said.

[¶6] Doppler's counsel offered her recollection of the bench conference on the record. She recalled that the State argued the evidence went to Doppler's credibility and that Rule 609 was referenced. She recalled arguing "under the 401/403 balancing test that [evidence of prior convictions] was more prejudicial than--than probative." She recalled the district court referencing Rule 609 and the State's counsel saying he would mention the felony convictions, but would not identify the nature of the convictions. Doppler's counsel also said the district court engaged in some discussion of Rule 401 and Rule 403 involving balancing the probative value of the evidence against the prejudice to the defendant.

II

[¶7] Doppler argues the district court erred in admitting evidence of his prior convictions. "The district court exercises broad discretion in determining whether to admit or exclude evidence, and its determination will be reversed on appeal only for an abuse of discretion." State v. Chisholm, 2012 ND 147, ¶ 10, 818 N.W.2d 707. "A district court abuses its discretion in evidentiary rulings ...


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