State v. Burton, 49311-1
| Citation | 101 Wn.2d 1,676 P.2d 975 |
| Decision Date | 02 February 1984 |
| Docket Number | No. 49311-1,49311-1 |
| Parties | The STATE of Washington, Respondent, v. Robbie W. BURTON, Petitioner. |
| Court | United States State Supreme Court of Washington |
Kurtz & Hurley, Susan L. Hahn, Yakima, for petitioner.
Jeffrey C. Sullivan, Yakima County Prosecutor, Robert N. Hackett, Jr., Deputy Pros. Atty., Yakima, for respondent.
Petitioner, Robbie Burton, asks this court to reverse a Court of Appeals decision which held that his prior misdemeanor convictions for petit larceny and shoplifting were admissible to impeach his credibility pursuant to ER 609(a)(2). We reverse the Court of Appeals.
On February 25, 1981, the ARCO mini-mart in Union Gap, Washington was robbed at gunpoint. The cashier, Sherry Fryar, was the only clerk on duty and the sole eyewitness to the robbery. She testified that about 8:30 p.m. on February 25, a man came into the store, looked at some magazines, commented that he had "forgotten his money" and left. Approximately 30 minutes later, the man returned, pointed a gun at her and demanded that she give him the money in the cash register. She complied with his request. Fryar described the robber as approximately 5 feet 8 inches tall, with dishwater blond hair and an acne-scarred face. On April 9, 1981, Fryar selected Burton's photograph from a montage and identified him as the man who had robbed the mini-mart.
On April 24, 1981, Burton checked into the Tapadera Motor Inn in Union Gap, located immediately adjacent to the ARCO mini-mart. While checking into the motel, he was observed by Fryar, who worked full time as a maid at the motel in addition to her part-time job at the mini-mart. Upon recognizing Burton as the man she had identified from the photo montage, Fryar contacted the local police. Burton was subsequently arrested in his motel room and charged with the February 25 armed robbery of the mini-mart.
At trial, prior to presenting its case in chief, defense counsel made a motion in limine to preclude the State from impeaching Burton's testimony with evidence of his three prior misdemeanor convictions for petit larceny in 1975, shoplifting in 1976, and giving false information to a police officer in 1977. The trial court denied the motion and held that each of these crimes involved "dishonesty or false statement" within the context of ER 609(a)(2) and therefore were admissible for impeachment purposes.
Despite this ruling, Burton took the stand to testify regarding his alibi defense. He stated that he had spent the evening of February 25, 1981 at the home of his friends Jim and Kathy Layne of Yakima. He explained that his common law wife had left on February 4 for Minnesota and that since her departure he had spent most of his time at the Laynes' home. On cross examination, the State brought out Burton's prior convictions. The Laynes testified that although they could not state with absolute certainty that Burton had been with them during the evening of February 25, he had been visiting them almost every evening since his wife's departure and, thus, was very likely with them that evening as well.
The jury found Burton guilty of first degree robbery. The Court of Appeals affirmed, holding that Burton's misdemeanor convictions were all crimes involving dishonesty under ER 609(a)(2). We granted the petition for review to address this important issue.
In 1979, this court adopted ER 609, superseding former RCW 10.52.030. 1 See 91 Wash.2d 1149 (1978). ER 609 was taken word for word from the Federal Rule of Evidence 609. See Fed.R.Evid. 609, 28 U.S.C. ER 609(a) provides:
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.
(Italics ours.) While ER 609(a)(1) grants discretionary authority to admit prior felony convictions, ER 609(a)(2) requires the admission of all prior convictions, felony or misdemeanor, which involve a crime of "dishonesty or false statement". Because Burton's three prior convictions were all misdemeanor convictions, they were admissible only if the crimes "involved dishonesty or false statement" under ER 609(a)(2). Thus the question before this court is whether petit larceny and shoplifting are crimes of "dishonesty". 2 For the reasons that follow we find that they are not.
Prior to 1979 we consistently recognized that a defendant's past convictions were relevant to his or her credibility as a witness. See State v. Ruzicka, 89 Wash.2d 217, 226, 570 P.2d 1208 (1977). Further, a trial judge had no discretion to refuse evidence of a prior conviction; admission was mandatory, regardless of whether the prior conviction was for a felony or misdemeanor offense. See former RCW 10.52.030, footnote 1 above; see also State v. Ruzicka, supra; State v. Robinson, 75 Wash.2d 230, 450 P.2d 180 (1969).
In State v. Alexis, 95 Wash.2d 15, 621 P.2d 1269 (1980), we recognized the significant changes brought about by the adoption of ER 609. Unlike prior Washington law, ER 609(a) requires that the trial court look to the nature of the prior conviction before determining its admissibility. Under ER 609(a)(2), crimes which involve "dishonesty or false statement" must be admitted, whether felony or misdemeanor. The trial court has no discretion. Evidence of prior felony convictions which do not involve dishonesty or false statement, however, are admissible under ER 609(a)(1), but only if the trial court first determines that the probative value of the evidence outweighs its prejudicial effect. State v. Alexis, supra.
Although this case presents the first opportunity for us to determine which crimes are crimes of "dishonesty", Division One of the Court of Appeals recently held in a well reasoned opinion that the misdemeanor crime of receiving stolen property is not a crime involving dishonesty within the meaning of ER 609(a)(2). State v. Zibell, 32 Wash.App. 158, 646 P.2d 154, review denied, 97 Wash.2d 1039 (1982). We further note that Division One has also determined that felony robbery is not a crime involving dishonesty under ER 609(a)(2). State v. Moore, 29 Wash.App. 354, 628 P.2d 522, review denied 96 Wash.2d 1003 (1981) (Moore I); State v. Moore, 33 Wash.App. 55, 651 P.2d 765 (1982) (Moore II). But see State v. Anderson, 31 Wash.App. 352, 359-60, 641 P.2d 728 (1982); State v. Turner, 35 Wash.App. 192, 665 P.2d 923 (1983). 3 The Court of Appeals in the instant case adopted a broad definition of dishonesty, expressly rejecting the approach taken by Division I in Zibell and Moore I and II. Rather, the Court of Appeals, Division Three, adopted the view that stealing is an act of deceit which impinges upon one's reputation for honesty. State v. Burton, 33 Wash.App. 417, 420, 655 P.2d 259 (1982).
We do not agree with the Court of Appeals' overly broad definition of the phrase "dishonesty"; it is inconsistent both with our intent in adopting ER 609(a)(2) and with the vast majority of federal case law interpreting Federal Rule of Evidence 609(a)(2), 28 U.S.C.A. 609. Contrary to the Court of Appeals, we find the phrase "dishonesty" must be defined in the context of the rule. Because the language of ER 609(a)(2) is taken verbatim from its federal counterpart, see Comment, ER 609, 91 Wash.2d 1150 (1978), and Fed.R.Evid. 609, we find that it is proper to look to the legislative history surrounding the adoption of the federal rule as well as the federal case law developed since its adoption to define the category of crimes included under ER 609(a)(2).
The Senate Judiciary Committee Report explained the intended meaning of the phrase as follows:
By that phrase, the committee means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit or falsification bearing on the accused's propensity to testify truthfully.
(Italics ours.) S.Rep. No. 1277, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News, 7051, 7061. See also Comment, Fed.R.Evid. 609(a). This is essentially the same definition as that given by the House-Senate Conference Committee. H.R.Conf.Rep. No. 1597, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 7098, 7103.
At common law, the term "crimen falsi" referred to "crimes of infamy". State v. Payne, 6 Wash. 563, 34 P. 317 (1893).
[P]ersons are rendered infamous ... by having been convicted of forgery, perjury, subornation of perjury, suppression of testimony by bribery, or conspiracy to procure the absence of a witness, or other conspiracy, to accuse one of a crime, and barratry. And from these decisions it may be deduced, that the "crimen falsi" of the Common Law not only involves the charge of falsehood, but also is one which may injuriously affect the administration of justice, by the introduction of falsehood and fraud.
(Footnotes omitted.) 2 J. Wigmore, Evidence § 520, at 730 (rev. 1979). Accord, Black's Law Dictionary 446-47 (4th rev. ed. 1968). We have previously held that "crimen falsi" does not include the offense of simple petit larceny. State v. Payne, supra. We adhere to this definition and find that crimes of "dishonesty" include only those crimes which contain elements in the nature of crimen falsi and which bear directly on a defendant's propensity for truthfulness.
The purpose of allowing impeachment by prior conviction evidence is to shed light...
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