State v. Alexis
| Decision Date | 31 December 1980 |
| Docket Number | No. 46271,46271 |
| Citation | 621 P.2d 1269,95 Wn.2d 15 |
| Parties | STATE of Washington, Respondent, v. Andrew J. ALEXIS, Petitioner. |
| Court | Washington Supreme Court |
Timothy K. Ford, Seattle, for petitioner.
Grant Meiner, Pros. Atty., Kenneth L. Cowsert, Deputy Pros. Atty., Port Angeles, for respondent.
Washington Rule of Evidence (ER) 609 became effective April 2, 1979, 91 Wash.2d 1117, 1149 (1978), and reads in part:
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
Here, the issue is whether under the above rule defendant's 1975 second degree rape conviction is admissible in evidence for the purpose of attacking his credibility as a witness in the event he testifies in his retrial for first degree rape. We hold the admissibility to be within the trial court's sound discretion as circumscribed by ER 609.
The facts are not in dispute. Defendant, Andrew J. Alexis, was convicted of second degree rape on September 29, 1975. In May of 1977, he, together with another, was convicted of first degree rape. The Court of Appeals, Division Two, reversed that conviction. The court found that the representation of both defendants by one attorney deprived Alexis of the effective assistance of counsel. Details are set forth with greater particularity in State v. Alexis, 21 Wash.App. 161, 584 P.2d 963 (1978).
In its opinion, the appellate court noted that Alexis did not testify during the 1977 trial. His failure to testify apparently was motivated by fear of the prejudice to him which would follow if his 1975 rape conviction was admitted for impeachment purposes. Since it disposed of the case on the effective counsel issue, the Court of Appeals did not discuss the admissibility of Alexis' 1975 rape conviction.
When the Judicial Council submitted its proposed ER 609 to this court for approval, it accompanied the rule with this comment:
This rule is substantially the same as Federal Rule 609 and is more restrictive than previous Washington law.
Two Washington statutes provide that the credibility of a witness may be attacked by evidence that the witness had been previously convicted of a crime. RCW 5.60.040; 10.52.030 ... Rule 609 offers a balance between the right of the accused to testify freely in his own behalf and the desirability of allowing the State to attack the credibility of the accused who chooses to testify. The two statutes ... are superseded.
Prior to ER 609, the trial courts of this state were required to admit evidence of a witness' prior conviction. Now, however, the court has limited discretion. Under ER 609(a)(2), only evidence of convictions for crimes involving dishonesty or false statements must be admitted when offered. Convictions of other crimes may be admitted under ER 609(a)(1) in the trial court's discretion, but only after balancing the probative value of the prior conviction as it relates to the credibility of the witness against the potential prejudice to the defendant.
Normally, evidence of conviction of "other crimes" should be admitted only if the trial court is satisfied the need to submit the issue of the credibility of a particular witness to the jury outweighs the possible prejudice to defendant. Such a determination, of course, becomes more difficult when the witness is a defendant.
Here, in a pretrial hearing, the trial court in effect determined that should Alexis elect to testify at his retrial, evidence of his 1975 second degree rape conviction would be admitted as being more probative of his credibility than it would be prejudicial to him. In support of its decision, the court prepared what it entitled "Court's Memorandum Opinion Supplementing Oral Ruling Denying Motion of Criminal Defendant". Therein, the court philosophized:
The male rapist rejects the thought that his desires should not be met with a receptive attitude by his chosen female and puts that lack of reception out of his mind by deluding himself into believing that the woman really desires him sexually but refuses him for no valid reason. This self-deception or self-lie leads to the commission of these acts which the man tends to convince himself he did not commit because she really wanted him all the time.
The Court further feels that the rapist is one step up from the child molester in the opinion of his fellow men. This is another reason to lie to himself as well as a jury.
While the prejudicial effect of the admission may be great, this Court feels that the evidence of a prior crime of this nature is directly related to the credibility of an accused rapist.
From the last paragraph above, it would appear that the trial court has fashioned a per se rule for defendants previously convicted of rape who elect to testify in their current trial. Whether that rule would apply to one charged with a crime other than rape is not clear.
The court's basis for its rule in this case then is that anyone who commits rape would lie about that fact to himself and therefore to the jury. The trial court's conclusion here is that as the previous conviction was for rape, the balance between the probative value of admitting evidence of the conviction to assist in assessing credibility as opposed to its exclusion because of potential prejudice to the defendant, tilts toward admissibility. And, this is so in this case because the crime presently charged is for rape; the same kind of crime for...
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State v. LeFever
...of defendant's testimony and properly exercise its discretion through the balancing procedure prescribed by ER 609. State v. Alexis, 95 Wash.2d 15, 19, 621 P.2d 1269 (1980). This rule also enables the trial court to comply with the mandatory rule we set out in State v. Jones, 101 Wash.2d 11......
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...of the jury hearing the defendant's account of events with the importance that it know of his prior convictions. State v. Alexis, 95 Wash.2d 15, 19, 621 P.2d 1269 (1980). A defendant faced with impeachment evidence of convictions may elect not to testify; this is one basis upon which ER 609......