State v. Brown

Decision Date14 July 1988
Docket NumberNo. 53997-9,53997-9
Citation761 P.2d 588,111 Wn.2d 124
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. James Artis BROWN, Petitioner.

Washington Appellate Defender, Linda Antonik, Lenell Nussbaum, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Saul Gamoran, Deputy, Seattle, for respondent.

BRACHTENBACH, Justice.

The primary issues are whether the trial court properly admitted prior misdemeanor theft convictions pursuant to ER 404(b), and whether the trial court properly ruled that the same convictions and a prior felony theft conviction were admissible for impeachment purposes pursuant to ER 609.

Our decision in this case changes this state's law relating to ER 609(a) in a number of respects; each change has been weighed carefully. We are mindful of principles of stare decisis, and we have not lightly altered prior decisional law. Yet this case has, by its factual status and the legal issues to be resolved, demonstrated the need to comprehensively reevaluate the law respecting admissibility of prior conviction evidence. We have engaged in such reevaluation, and find it essential to overrule some of this court's decisions, in whole or in part.

Defendant Brown was charged with two counts of second degree theft. Both involved theft by deception of cash from victims who were approached by a man who offered to sell salvaged televisions and video equipment. In each case the victim drove the man to a certain location in Seattle, gave him cash to purchase merchandise, and then waited in vain for him to return after he left with the money.

Prior to trial, defendant moved to preclude the State from presenting evidence of three prior theft convictions. The State sought to present evidence of two prior misdemeanor convictions under ER 404(b) to show a common plan or scheme of thefts by deception and prove Brown's identity based upon use of the same modus operandi in the charged crimes as used in the prior misdemeanor thefts. The State also wanted to use the two misdemeanor convictions plus a prior felony theft conviction as impeachment evidence under ER 609. The trial court ruled that the prior misdemeanor convictions could be used by the State under both ER 404(b) and ER 609, and that the prior felony conviction could be used by the State under ER 609.

At trial the victims described the thefts. The first count involved theft by deception of $600 from a restaurant owner who testified that on September 14, 1984, he met with Brown outside the restaurant and agreed to purchase salvaged televisions and video equipment from him at substantially reduced prices. He further testified that Brown left his car at the restaurant and then left with the restaurant owner's son-in-law. The son-in-law testified that Brown directed him to a certain location in Seattle, took the cash, left, and did not return. The restaurant owner testified that 2 or 3 days later Brown returned for the car, which the restaurant owner refused to release unless the money was returned. Brown left. The theft was reported to the police. Neither the restaurant owner nor his son-in-law identified Brown from a police photo montage. However, both identified him in court as the thief.

The second count involved theft by deception of $400 on December 17, 1984, from a couple who were renovating an apartment building. The wife testified that Brown approached her in the apartment building and offered to sell her salvaged televisions and video equipment at greatly reduced prices. The couple agreed to buy two TV's and one VCR. The wife left with Brown, drove to a cash machine about 6 p.m. to obtain the $400 agreed upon, and then drove to a Seattle location specified by Brown. She testified that she gave the cash to Brown, he left, and she waited for over an hour for him to return. Thereafter, Brown flagged her down as she started to drive off and directed her to drive to other locations in Seattle. He again left, and did not return.

Two days later he called the wife, claimed he was "spaced out" before, and told her he had the merchandise. On December 30, 1984, Brown again approached the couple at the apartment building; this time the husband went with Brown to get the merchandise. He testified that Brown directed him to several locations in Seattle, demanded an additional $40, and left and did not return. Both the husband and wife presented testimony that they had reported the theft to the police after the wife's trip with Brown and that the husband went with Brown on the second trip to try to gather evidence or discover a method to lead to Brown's apprehension.

Both the wife and husband independently described the thief to the police as having a large scar on his neck (Brown has such a scar), and each independently identified Brown from a police photo montage. Both identified Brown in court as the thief.

The State called the victims of Brown's two prior misdemeanor thefts, who described the circumstances of those thefts. Both victims testified, as to separate incidents, that Brown approached them and offered to sell them salvaged televisions and video equipment for cash, that they drove Brown to a location in Seattle he specified, that Brown left with the cash and did not return with the merchandise, and that Brown later approached them again. Each victim identified Brown as the thief.

Brown defended the first count by trying to establish that someone else was the thief, that at the time of the theft Brown was suffering from a boil on his foot and had a noticeable limp, and that he wore only one shoe when he was driven to the restaurant to get the car. Neither the restaurant owner nor his son-in-law described the thief as having a limp or missing a shoe. As to the second count, Brown presented an alibi defense. A man for whom he worked shifting carpet rolls testified that Brown worked for him on December 17 from 1 p.m. until 7 p.m. He recalled the date, he said, because he and his employees discussed Christmas and Brown talked about getting a Christmas tree. This employer did not keep records of the times Brown worked for him, nor could he recall specifically any other time that Brown worked for him. A longtime friend of Brown and his family testified that on December 17 she was making candy and that about 7:30 p.m. Brown came by with a Christmas tree for her. She said he stayed about 2 hours. She also said the carpet place and a tree lot were within walking distance of her home in Renton.

Brown did not testify, but after the State and the defense presented their cases in chief, his counsel made an offer of proof as to what Brown's testimony would have been had the trial court granted his motions in limine. Essentially, Brown would have denied the thefts and corroborated his witnesses' testimony.

The jury found Brown not guilty as to count one, but guilty as to count two, the theft of $400. The Court of Appeals affirmed Brown's conviction, State v. Brown, 47 Wash.App. 565, 736 P.2d 693 (1987), holding, among other things, that the trial court erred in ruling that the prior felony conviction was admissible. The Court of Appeals further held, however, that the error was harmless under a constitutional harmless error standard. We affirm, but employ different reasoning than did the Court of Appeals.

Brown maintains that the trial court erred by admitting the two prior misdemeanor theft convictions under ER 404(b). He argues that the evidence was not relevant nor was it necessary to prove a necessary element of the crime charged. He reasons that the prior thefts were merely similar factually to the charged crimes, and were not signature crimes sufficient to establish identity.

While not admissible to prove a witness' character or to show that he or she acted in conformity with that character, evidence of other crimes, wrongs, or acts may be admissible for other purposes, for example, to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ER 404(b). The trial court must identify the purpose for which the evidence is sought to be introduced, and determine whether the evidence is relevant to prove an essential element of the crime charged. State v. Smith, 106 Wash.2d 772, 776, 725 P.2d 951 (1986); State v. Saltarelli, 98 Wash.2d 358, 655 P.2d 697 (1982); ER 402. The relevancy determination requires that the purpose for which the evidence is sought to be introduced is of consequence to the outcome of the action and that the evidence tends to make the existence of the identified fact more probable. Smith, 106 Wash.2d at 776, 725 P.2d 951; Saltarelli, 98 Wash.2d at 362-63, 655 P.2d 697. If the court finds the information relevant, it must then weigh on the record the probative value of the evidence against its prejudicial effect. State v. Jackson, 102 Wash.2d 689, 694, 689 P.2d 76 (1984).

Here, the purpose for which the State sought to introduce the evidence was to establish the identity of the thief. In this case, the identity of the thief was of consequence to the outcome of the action in light of Brown's proffered defense to count 1 that another man was the thief and his alibi defense to count 2.

As to the requirement that the evidence tend to make the existence of the identified fact more probable, we have said that where a prior crime is sought to be introduced for the purpose of establishing identity, the method employed in the charged crime and the other crime "must be so unique that mere proof that an accused committed one of them creates high probability that he also committed the act charged." Smith, 106 Wash.2d at 777, 725 P.2d 951 (quoting State v. Laureano, 101 Wash.2d 745, 764, 682 P.2d 889 (1984)). Here, in each of the prior misdemeanor thefts and the charged crimes the thief approached the victim with an offer of salvaged televisions or video equipment at substantial savings, directed the victim to drive to a certain part of...

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