Leo Norman Yeager, appellant here, defendant in the trial court, was convicted of theft. The appeal is based on the alleged error of the trial court in permitting the prosecution to elicit on cross-examination of the defendant the fact that he had two prior felony convictions, both of which occurred more than five years prior to trial. C.R.S.1963, 154-1-1.
The defendant challenges C.R.S.1963, 154-1-1 on two grounds. First, he contends that the act is unconstitutional in that the classification of witnesses by the type of action in which they testify constitutes a denial of equal protection of the law as to criminal defendants. He submits that the equal protection test applied by this court in Lee v. People, 170 Colo. 268, 460 P.2d 796 (1969) is not valid and should be overruled. Second, he argues for an interpretation of the language of the statute which would leave the matter of the admissibility of the prior conviction to the discretion of the trial court.
The equal protection argument derives from the fact that the statute in question limits, for purpose of impeachment in civil actions, evidence of a conviction of a witness to those felonies occurring within five years of the time of his testifying, whereas,
This court has continuously adhered to Lee. Velvarde v. People, Colo., 500 P.2d 125 (1972); Mays v. People, Colo., 493 P.2d 4 (1972); Taylor v. People, 176 Colo. 316, 490 P.2d 292 (1971); Garcia v. People, 174 Colo. 372, 483 P.2d 1347 (1971); Nunez v. People, 173 Colo. 236, 477 P.2d 366 (1970). The defendant, however, contends that the Lee test is no longer valid, arguing that:
We do not accept the defendant's argument, believing as we do that, under the circumstances of this case, the traditional classification test does no violence to the constitutional rights of the defendant, nor is the statutory classification "suspect." We adhere to the soundness of this statement from Lee:
The defendant bases his second argument that the trial court has discretion to suppress a witness's prior felony convictions on an interpretation of the statute. Section 154-1-1, in pertinent part, provides:
Yeager acknowledges that previous decisions of this court in applying this statute have not recognized discretionary power in the trial court as to the use of prior convictions for impeachment purposes. See Candelaria v. People, Colo., 493 P.2d 355 (1972); Diaz v. People, 161 Colo. 172, 420 P.2d 824 (1966); and Bowland v. People, 136 Colo. 57, 314 P.2d 685 (1957). Nevertheless, defendant urges this court to consider a construction of Section 154-1-1, holding that the word "may" makes the use of prior convictions for impeachment purposes discretionary with the trial court.
Defendant would have us adopt the reasoning of the United States Court of Appeals for the District of Columbia Circuit which in construing "may" in a similar statute, held that the use of prior convictions for the impeachment of witnesses is discretionary with the trial judge. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). We are cognizant of the fact that Illinois, in People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695 (1971), and a few other jurisdictions, have followed the Luck construction. The cases reaching the contrary result comport more closely with what we believe to be the intent of the Colorado Legislature. We are particularly impressed with the rationale of State v. Hawthorne, 49 N.J. 130, 228 A.2d 682 (1967)
Bolstering our confidence in the correctness of our conclusion is the history of Section 154-1-1 relating to the competency of witnesses to testify in civil and criminal proceedings. At common law and by prior
The act provided for specific exceptions, primarily privileged communications arising out of confidential relationships (husband-wife, attorney-client, clergyman-confessor, physician-patient). It is interesting to note, however, in another section of the same act, the legislature demonstrated that it knew how, if it so desired, to give the court discretion. The provision reads:
This law was unchanged until 1941 when it was amended to its present form, providing for the distinction between the use of prior convictions for impeachment purposes in criminal and civil cases. The amendment provides:
In 1941 the General Assembly had the matter of prior convictions specifically before it. In considering one of the elements —remoteness—(considered to be vital in Luck and Montgomery) the legislature limited the use of prior felony convictions for impeachment purposes to those occurring within five years prior to the witness's testimony in civil cases, but left unchanged the unlimited time applying to the use of prior convictions of witnesses testifying in criminal cases. In the period between 1883 and 1941 the question of whether the use of prior felony convictions was mandatory or discretionary does not appear to have been drawn in question. Nor are we aware of any challenges on this basis from 1941 to the present time. Velvarde v. People, supra; Garcia v. People, supra; Nunez v. People, supra; Lacey v. People, 166 Colo. 152, 442 P.2d 402 (1968); Diaz v. People, supra; Routa v. People, 117 Colo. 564, 192 P.2d 436 (1948); Dockerty v. People, 96 Colo. 338, 44 P.2d 1013 (1935); Hendricks v. People, 78 Colo. 264, 241 P. 734 (1925); Dively v. People, 74 Colo. 268, 220 P. 991 (1923); Tarling v. People, 69 Colo. 477, 194 P. 939 (1921); Dennison v. People, 65 Colo. 15, 174 P. 595 (1918); and Solander v. People, 2 Colo. 48 (1873).
The practice of leaving to the attorney representing the adverse party the discretion of using prior felony convictions to impeach a witness was universally followed, according to the reported decisions. The General Assembly met at least biennially in the interim without making any changes in the law, except for the 5-year limitation in civil cases already noted. This legislative acquiescence over a period
The statute discussed in State v. Hawthorne, supra, is substantially the same as Section 154-1-1. In the New Jersey case the trial judge concluded that the criminal convictions, the last one being about nine years prior to the criminal act pending trial, were too remote and therefore ought to be excluded at the trial because their potential for prejudice to Hawthorne would be disproportionate to their probative value in impeaching his credibility.
The trial judge relied upon Luck v. United States, supra, as does the defendant here, in concluding that "may" gave the trial court discretionary power to admit or exclude evidence of prior convictions for testing credibility. This is what the New Jersey Supreme Court said in disposing of this argument:
We hold to the view that a previous felony conviction of a witness, whatever its age, may be shown to affect credibility. In the present state of the law the effect on credibility of a "remote" conviction must be left to the judgment of the jury.
The judgment is affirmed.
DAY and ERICKSON, JJ., do not participate.