State v. Roche
| Decision Date | 22 August 1994 |
| Docket Number | No. 30811-4-I,30811-4-I |
| Citation | 878 P.2d 497,75 Wn.App. 500 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. Joseph Dwayne ROCHE, Appellant. |
David L. Donnan, Seattle, for appellant.
Michele Ann Hauptman, Seattle, for respondent and Norm Maleng, Pros. Atty.
Joseph Roche (Roche) appeals his conviction and sentence for first degree robbery, challenging the trial court's: (1) admission of his prior felony convictions for impeachment purposes; (2) refusal to give a lesser included offense instruction on first degree theft; and (3) calculation of the offender score.
The events leading up to Roche's conviction began on the morning of January 31, 1992, when Mohammed Owjama (Owjama), a Yellow Cab driver, picked up Roche. According to Owjama, he picked up Roche in downtown Seattle on Second Avenue and Pike Street or Pine Street. Roche immediately asked for Owjama's business card. Roche initially asked to be taken to 601 Belmont Avenue East, but then asked to be taken to 22nd Avenue and Jefferson Street because he had forgotten something. Owjama waited and then took Roche to 601 Belmont East, as requested. Upon arriving, Roche insisted that Owjama drop him off behind the apartment complex, instead of the front where Owjama usually drops off passengers. Owjama complied and waited to be paid his fare. Roche, who was sitting in the back seat, grabbed Owjama by the hair with his left hand, in which he was also wielding a knife, pointed a black pistol to Owjama's head with his right hand, and said, "I need your money and your car or otherwise I will kill you." Owjama then grabbed the microphone from his radio and quickly exited the cab. Owjama radioed the dispatcher of an emergency at 601 Belmont Avenue East. Roche got into the driver's seat and drove away, damaging the cab in the process.
Roche's version of events differs from Owjama's. According to Roche, Owjama picked him up on 25th Avenue and Cherry Street. Roche asked Owjama whether he used cocaine and "that is why [he] asked for his business card." Roche initially asked to be taken to 23rd Avenue and Union Street, but changed his destination to 22nd Avenue and Jefferson Street because he had forgotten something. Upon arriving at 22nd Avenue and Jefferson Street, Roche gave Owjama some cocaine as payment while he waited. Roche returned to the cab and asked to be taken to 601 Belmont Avenue East. Upon arriving, Roche asked to be dropped off in the parking lot behind the complex so that they could finish smoking cocaine. While they were smoking, Roche asked why the meter was still running. When Roche gave Owjama $20 for the fare, Owjama gave him $4 in change. Roche told Owjama that he owed him $5 more in change. When Owjama refused, Roche stated, "if you [don't] give me back my five dollars, I [am] going to hit you." At that point, Owjama radioed that he was being robbed by a man with a gun. Owjama then fled the cab and slammed the door. Roche got behind the wheel and drove off because he "was mad and ... agitated ... and [he] panicked" after hearing Owjama's emergency radio report. Roche maintains that he never had a gun or a knife.
The events which followed are not in dispute. Owjama, aided by Charlotte Alexander (Alexander), formerly Cheryl Wells, pursued the cab in her car. When they eventually caught up to it at a stop light, Owjama jumped out, ran to the cab, got inside, and wrestled Roche to the outside of the cab. Roche and Owjama were separated by several cab drivers who arrived at the scene. Seattle Police Department officers were dispatched to the scene.
William Stein (Stein), a cab driver who arrived at the scene, looked in the cab after a police officer allegedly asked him to find Owjama's trip sheet. As he was searching for it, he saw what appeared to be the butt of a pistol partially concealed by papers scattered on the cab's floor. When he picked it up, he discovered it was a toy gun. Stein gave the gun to Seattle Police Officer Melinda Wilson.
Roche was arrested at the scene. He was charged by information with robbery in the first degree contrary to RCW 9A.56.190 and RCW 9A.56.200(1)(b).
Prior to trial, the court ruled that Roche's four misdemeanor theft convictions and one misdemeanor false reporting conviction would be automatically admissible for impeachment purposes as crimes of dishonesty under ER 609(a)(2). The court decided that Roche's felony conviction for taking a motor vehicle without permission was not a crime of dishonesty and therefore not automatically admissible under ER 609(a)(2). The court weighed the probative value of this conviction and his two felony convictions for cocaine possession against their prejudicial effect in deciding whether they would be admissible for impeachment purposes under ER 609(a)(1). The court determined that the felony convictions would be admissible for impeachment purposes, but that it would be Roche's decision to name them. At trial, Owjama testified on cross examination that he never used cocaine with Roche. On redirect examination, Owjama testified that he has never used cocaine because drug use is contrary to the Muslim religion.
Stein testified on cross examination that when he arrived at the scene, Owjama's eyes were "really red" and that "[b]etween the yelling and the screaming, they seemed to be talking about drugs and things like that going on, but it was hard to tell who was saying what about what at that point." Stein also testified that Yellow Cab had a policy prohibiting cab drivers from parking on 1st Avenue and Pike Street and 23rd Avenue and Cherry Street because of drug activity. He testified that 22nd Avenue and Jefferson Street was known for drug activity. He testified to having personal knowledge of cab drivers who dealt drugs from their cabs.
Officer Wilson testified that Owjama's eyes were bloodshot when she arrived at the scene, but that his performance of field sobriety tests led her to conclude that he was not under the influence. 1 Officer Wilson testified to having seen Stein reach into the cab and to having received the toy pistol from him, but denied asking him to look for Owjama's trip sheet. She testified that Owjama's business card was found on Roche following his arrest. On direct examination, Roche testified that he had used cocaine the morning of January 31, 1992. He testified that he had been previously convicted of taking a motor vehicle without permission and that he had been twice convicted of cocaine possession. He also testified to the misdemeanor theft convictions. On cross examination, the prosecutor reviewed Roche's felony and misdemeanor convictions individually. At the end of this examination the court admonished:
[I] just want to emphasize to the jury that the fact that the defendant has been previously convicted of a crime is not evidence of the defendant's guilt in this case. Such evidence may be considered by you only in deciding what weight or credibility should be given the testimony of the defendant, and for no other purposes.
Prior to the jury deliberations, defense counsel objected to the trial court's refusal to instruct the jury on first degree theft, which she argued was a lesser included offense. The court instructed the jury that it could convict Roche of the lesser included offense second degree theft. In addition, the court instructed:
Evidence that the defendant has previously been convicted of a crime is not evidence of the defendant's guilt. Such evidence may be considered by you in deciding what weight or credibility should be given to the testimony of the defendant and for no other purpose.
Roche was convicted of first degree robbery. At sentencing, no objection was made to the State's calculation of Roche's offender score as 5, which resulted in a standard range of 57-75 months. An April 27, 1983, California juvenile conviction for robbery was included in his criminal history. Roche received a 69-month standard range sentence.
Roche appeals.
ADMISSION OF FELONY CONVICTIONS UNDER ER 609(a)(1)
Roche contends that the trial court abused its discretion when it admitted his three felony convictions for impeachment under ER 609(a)(1).
As a preliminary matter, we first address which felony convictions are at issue for purposes of ER 609(a)(1). Although the trial court ruled that Roche's felony conviction for taking a motor vehicle without permission was not automatically admissible as a crime of dishonesty under ER 609(a)(2), this court has since held to the contrary. State v. Trepanier, 71 Wash.App. 372, 381, 858 P.2d 511 (1993). Thus, we need only decide whether the trial court erred in admitting Roche's two felony convictions for possession of cocaine under ER 609(a)(1).
Before a prior conviction for impeachment under ER 609(a)(1) can be properly admitted, the trial court must balance the Alexis 2 factors on the record to determine whether the probative value of the prior convictions outweighs their prejudicial effect. 3 State v. Jones, 101 Wash.2d 113, 122, 677 P.2d 131 (1984), overruled on other grounds, State v. Brown, 111 Wash.2d 124, 761 P.2d 588 (1988); opinion superceded on rehearing by State v. Brown, 113 Wash.2d 520, 782 P.2d 1013 (1989); State v. Gomez, 1994 WL 238974 (No. 30243-4-I, filed June 6, 1994). 4 Those factors are: (1) the length of the defendant's criminal record; (2) the remoteness of the prior conviction(s); (3) the nature of the prior crime(s); (4) the centrality of the credibility issue; and (5) the impeachment value of the prior crime(s). Alexis, 95 Wash.2d at 19, 621 P.2d 1269. The State has the burden of establishing that the probative value of the prior convictions outweighs their prejudicial effect. Jones, 101 Wash.2d at 120, 677 P.2d 131.
The trial court balanced the Alexis factors as follows:
[T]he defendant's criminal history is quite extensive within the past two years, two or three...
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