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Rule 403: Old Chief and Stipulations to Prior Convictions

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Some crimes, such as felon in possession of a firearm, include as an element that the defendant has a qualifying prior conviction. When this is the case, the defense may seek to limit the prejudicial effect of the prior conviction by offering to stipulate to its existence and asking the trial judge to preclude the State from introducing evidence of the crime at trial. Often, Old Chief v. United States, 519 U.S. 172 (1997), will be cited in support of this argument.

Old Chief involved a federal prosecution for the crime of felon in possession of a firearm. So as to keep the details of his prior felony—assault causing serious bodily injury—from the jury, the defendant offered to stipulate to the prior conviction. The prosecutor objected, insisting that he had a right to prove his case his own way. The trial court rejected the defendant’s offer to stipulate and allowed the government to prove its case by introducing evidence of the prior crime. The defendant was convicted and he appealed. The United States Supreme Court held that because the nature of the prior offense raised a risk of a verdict tainted by improper considerations and the evidence was admitted solely to prove the fact of the prior conviction, the trial court abused its discretion under Federal Rule 403 by admitting the record of the defendant’s prior conviction where an admission was available as an alternative form of proof. Id. at 191. It explained:

 

In dealing with the specific problem raised by [the federal felon in possession statute] and its prior-conviction element, there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant. That risk will vary from case to case . . .  but will be substantial whenever the official record offered by the Government would be arresting enough to lure a juror into a sequence of bad character reasoning. Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious . . . .

Id. at 185. The Court went on to note that when a prior offenses is far removed “in time or nature” from the current charges, its potential to prejudice the defendant is minimal. Id. at 185 n.8.

But does Old Chief apply in North Carolina? Noting that Old Chief was decided under federal evidence rule 403, several North Carolina Court of Appeals decisions have concluded that the case is not binding on North Carolina courts interpreting state Rule 403. State v. Little, 191 N.C. App. 655 (2008); State v. Jackson, 139 N.C. App. 721 (2000), reversed on other grounds, 353 N.C. 495 (2001); State v. Faison, 128 N.C. App. 745 (1998). However, the Court of Appeals has declined to reject Old Chief outright, opting instead to distinguish it from the facts presented. Jackson, 139 N.C. App. 721 (at defendant’s trial for carrying a concealed weapon, possession of a firearm by a felon, and resisting an officer, the State offered evidence of the defendant’s prior voluntary manslaughter conviction and the defendant offered to stipulate to having a prior felony conviction; the defendant was not “charged with any attendant offenses similar to his prior conviction of voluntary manslaughter, thus reducing the potential of prejudice in comparison to Old Chief”); Little, 191 N.C. App. 655 (defendant was charged with felon in possession, attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and discharging a firearm into occupied property; defendant offered to stipulate to the existence of a prior felony conviction; distinguishing Old Chief, the court concluded that given the charged crimes, “we cannot say admission of the record evidence of defendant’s prior involuntary manslaughter conviction in lieu of defendant’s stipulation . . . so risked unfair prejudice that it substantially outweighed the discounted probative value of the record of conviction”); State v. Fortney, __ N.C. App. __, 687 S.E.2d 518 (Jan. 5, 2010) (no abuse of discretion by allowing the State to introduce evidence of the defendant’s prior rape conviction, notwithstanding the defendant’s offer to stipulate to a prior felony conviction; the prior conviction was not substantially similar to the offenses being tried: drug possession, possession of a firearm by a felon, and carrying a concealed weapon).

Also, the North Carolina Court of Appeals has said that even if Old Chief applies in North Carolina, the issue cannot be raised on appeal unless the defendant offers to stipulate to the prior conviction at trial. Faison, 128 N.C. App. 745 (in the absence of a defense stipulation “[t]he State . . . had no alternative but to introduce evidence of Defendant’s prior convictions in order to meet its burden of showing an element of the crime charged”).

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