Lankin v. Stasik, No. S1263-03 CnC (Norton, J., Jan. 25, 2005)

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STATE OF VERMONT                                     SUPERIOR COURT
Chittenden County, ss.:                          Docket No. S1263-03 CnC



LANKIN

v.

STASIK



                                  ENTRY

        In an eviction proceeding, defendant tenant seeks to exclude
evidence of his prior criminal convictions, which plaintiff landlord plans to
introduce at trial. Landlord argues that the tenant’s criminal record is
necessary for two reasons: 1) to demonstrate that the eviction was not
retaliatory; and 2) to show tenant’s bad character. Landlord argues that the
convictions are admissible under the rules of evidence. The court disagrees
with landlord for the following reasons.
        In 2001, tenant was convicted of possessing three pieces of child
pornography. There is some dispute whether tenant told landlord that he
had a criminal record when applying for the apartment or whether he hid
that information. Regardless, landlord clams that he did not learn about the
nature of the tenant’s prior convictions until after he sought to evict the
tenant. The convictions, in and of themselves, do not constitute grounds for
eviction or termination of the lease. The nature of tenant’s crime is such
that its introduction into court could do nothing but reflect negatively on
tenant.

       The first purpose for which landlord seeks to offer this evidence is to
rebut tenant’s claim of retaliatory eviction. See Houle v. Quenneville, 173
Vt. 80, 90–91 (2001). The relevance of this evidence as rebuttal, however,
is undercut by the fact that this eviction process began before landlord ever
knew about the convictions. That the criminal convictions do not amount
to a breach of the lease and do not relate to the problems that arose between
landlord and tenant concerning habitability issues further raise questions
about its relevance. To the extent that the convictions might give some post
hoc rationale, its probative value is far outweighed by its prejudice to the
tenant and its potential to mislead the jury. V.R.E. 403. Despite the
landlord’s present feelings, the objective facts of this case are that he was
not aware of this incriminating evidence when he began to evict tenant.
This evidence will not dispute those facts, but it will provoke the jury to
consider tenant in an unfair light. State v. Bruyette, 158 Vt. 21 (1992). The
evidence of tenant’s prior criminal convictions is therefore not admissible
under V.R.E. 403.

        As to landlord’s second proposed use of the evidence as
impeachment or character evidence. The applicable rule, V.R.E. 609 (a),
states that “evidence that the witness has been convicted of a crime shall be
admitted if elicited from the witness or, if denied . . . by extrinsic
evidence.” The conditions on using such evidence require that the
underlying crime be either one of untruthfulness—i.e., one whose statutory
elements necessarily involve untruthfulness—or a felony. Id. The court
must also apply a balancing test to determine whether the prejudicial effect
of the conviction outweighs its probative value. See, e.g., State v. Ashley,
160 Vt. 125, 128 (1993) (listing four factors to consider). This is
essentially the same analysis as before for Rule 403. The potential
probative value of this evidence, to discredit tenant’s testimony, is far
outweighed by the potential prejudice to tenant. This proposed use is akin
to using a sledgehammer to swat a fly. It would certainly discredit tenant
but not necessarily for the right reasons. Much of the power of using
tenant’s crime comes from the social stigma that attaches to the crime. It is
not a crime of particular untruthfulness, nor is it relevant to tenant’s
testimony. Its power is one of shock value and promises only to mislead.
For these reasons, the evidence of tenant’s convictions is not admissible for
impeachment or character evidence.

       Based on the foregoing, tenant’s motion in limine is granted.



       Dated at Burlington, Vermont________________, 2005.




                                          ________________________
                                          Judge
