Rule inapplicable as witness’s credibility not attacked

The Indiana Court of Appeals found a trial court didn’t err by not letting a defendant introduce evidence of his brother’s prior robbery because the defendant wasn’t attacking the brother’s credibility.

William R.D. Britt was charged with felony robbery following a robbery at a Fort Wayne store. One of the witnesses, Benjamin Busbee, initially thought one of the robbers may be Britt’s brother, Brandon, who the witness played high school sports with. Britt had dropped out of high school and didn’t play sports, whereas Brandon played many sports.

After seeing a photo array of a more recent photo of Britt, Busbee immediately identified Britt as the robber instead of Brandon. Britt wanted to call Brandon as a witness and question him regarding his prior robbery conviction. The state didn’t plan on impeaching Brandon’s testimony based on his prior conviction and argued Britt shouldn’t be allowed to mention the prior conviction on direct examination.

Britt’s attorney claimed Indiana Evidence Rule 609 contained mandatory language regarding impeachment by former convictions, so he shouldn’t be limited in his questioning of Brandon. Britt’s attorney also said they weren’t calling Brandon solely to impeach his credibility. The trial court declined to let Britt introduce the evidence of the previous robbery. Britt was convicted of Class B felony robbery, Class D felony criminal recklessness, and Class A misdemeanor carrying a handgun without a license.

The appellate court agreed with Britt that the language of Rule 609(a) is mandatory, but it is also expressly limited to when the evidence of the prior conviction is being offered to attack a witness’s credibility, wrote Judge Paul Mathias in William R.D. Britt v. State of Indiana, No. 02A03-1004-CR-253.

“Indeed, Britt used Brandon’s testimony to show that Britt did not play sports in high school, thus calling into question Busbee’s identification of the shorter robber as someone he had played sports with in high school,” wrote the judge. “He therefore had little to gain by attacking Brandon’s credibility.”

In addition, he even conceded on appeal he wasn’t attempting to attack Brandon’s credibility, so Evidence Rule 609(a) is inapplicable.