A man who admitted fault and negligence for a Lake County drunken-driving crash is appealing damages of $2 million awarded in the case, claiming the jury was wrongly provided evidence of his prior alcohol-related driving convictions that were 17 and 30 years old.
“There is no specific Indiana case that addresses such stale convictions,” Noblesville attorney Thomas Rosta argued for defendant/appellant Danny Sims before the Indiana Court of Appeals on June 14. The closest case, he said, dealt with admission of evidence of multiple convictions within the prior 10 years. “In this particular case, I struggle to see, your honors, any probative value of convictions that happened 17 or 30 years prior.”
“Obviously the jury placed some emphasis on it,” Judge Robert Altice countered, though he acknowledged Rosta’s argument that the staleness of the convictions might have “poisoned” the jury. Jurors awarded the crash victim $1.44 million in compensatory damages, $182,500 in punitive damages, and his wife $373,500 for loss of consortium.
Andrew Pappas, a father of four, was driving north on his way to work a night shift at a Meijer store in Crown Point. Sims, who was southbound, turned left in front of Pappas, who later said the collision happened so fast that there was no way to avoid it. Pappas sustained numerous injuries that required doctors to leave him immobilized for weeks, according to the record. Authorities who drew Sims’ blood after the crash discovered his blood alcohol content was nearly three times the legal limit.
The trial court jury heard all this evidence pertaining to the May 2013 crash, but they also learned Sims’ license had been suspended in 1983 after a conviction of operating a vehicle while intoxicated and leaving the scene of an accident involving injury, death or entrapment. He also failed a breath test in 1996, after which he pleaded guilty to reckless driving. This evidence came into the civil trial as an investigator testified about Sims’ prior driving convictions.
Pappas’ appellate counsel, Adam Sedia of Dyer, argued the evidence was properly admitted. He told the appeals panel the trial court was within its discretion to allow the evidence despite the age of the convictions. He said the evidence went to proving reprehensibility as an element for the jury to consider in deciding punitive damages.
“The 7th Circuit said it best: All evidence is prejudicial. The concern before the trial court here was whether the prejudice was unfair and whether it outweighed its probative value,” Sedia said. He cited Davidson v. Bailey, 826 N.E.2d 80 (Ind. Ct. App. 2005), as standing for the proposition that evidence of prior drunken-driving convictions in such cases is clearly relevant.
Rosta, though, said the admission of the evidence must be analyzed for abuse of discretion under Rules of Evidence 402 and 403, which test for relevance and whether the admission of the evidence would prejudice or confuse a jury. He also said Rule 609 should be a factor. This rule generally limits admissibility of prior convictions to 10 years, but only for impeachment purposes. But the rule also allows evidence of convictions more than 10 years old if its probative value outweighs its prejudicial effect. Rosta suggested this guidance should set a needed limit for admissibility of prior convictions in civil cases.
“I think there has to be some temporal cutoff; there has be some time cutoff,” he said. “I think 609 gives us that time cutoff.”
Judge Patricia Riley noted to Rosta that under an abuse of discretion analysis, if the panel found an abuse of discretion, reversal would require a determination that admitting the old convictions was not harmless. “The difficulty I have with that is to try to determine what effect it has on a jury,” Rosta said. Allowing the evidence “in my opinion is going to substantially inflame the jury. … I still struggle to this day to determine what probative value a 17- and 30-year-old conviction may have.”
But Sedia said the analysis should go to the weight of the evidence. By its terms, he said Rule 609 clearly applies only to impeachment; Rules 402 and 403 leave admission of evidence to the discretion of the trial court, and the court didn’t abuse its discretion.
He also pointed to the tests for evidence admissibility established in State Farm v. Campbell, 538 U.S. 408 (2003), which he said are met in this case. He told the panel the evidence established elements of reckless disregard and also went toward proving repetitive conduct. Where punitive damages are concerned, the nature of the evidence “adds to the weight of the test in favor of the plaintiffs,” Sedia said.
Indianapolis personal injury attorney Bill Hurst, who is not involved in this case, said that evidence of older convictions generally most often arises in the context of attacking the credibility of a witness, and there can be problems with admitting evidence of past crimes in a civil context.
Other than for purposes of trying to show a witness was lying or to challenge a person’s character or testimony, he said, “I just don’t see any way a 30-year-old conviction could be relevant to anything.”
Riley Bennett & Egloff LLP commercial litigator Ray Seach said Evidence Rule 404(b) bars evidence of past crimes to prove a person’s character in most civil contexts. “That evidence is almost never admissible,” he said, though he said consideration of this evidence in a punitive damages context may be a narrow exception.
Seach, who likewise is uninvolved in the case, said Rule 609 seems to open the door slightly for admission of prior offenses, but he believes Rule 404(b) is more on point. He said this rule arose from past abuses when defendants were deprived of fair trials when their previous offenses were used to define their present character.
Elliott Pinkie, a defense litigator for Cline Law Group LLC in Indianapolis who also isn’t involved in this case, believes evidence of convictions beyond 10 years old may be admissible in civil cases within the judge’s discretion under Evidence Rules 402 and 403, as long as its prejudicial nature is outweighed by its probative value.
“Everybody realizes people do make mistakes and bad decisions and can be rehabilitated,” he said. “There are multiple arguments to make on both sides of this issue. … Certainly there can be circumstances where the admission may be proper, and each case is different.”
The case is Danny Sims v. Andrew Pappas, et al., 45A03-1509-CT-01424.•