State v. Calegar

• Decision Date: 20 November 1997
• Docket Number: No. 64948-1,64948-1
• Citation: 133 Wn.2d 718,947 P.2d 235
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Michael Dennis CALEGAR, Petitioner. . En Banc

Page 718

133 Wn.2d 718

947 P.2d 235

The STATE of Washington, Respondent, v. Michael Dennis CALEGAR, Petitioner.

No. 64948-1.

Supreme Court of Washington En Banc.

Argued May 28, 1997.

Decided Nov. 20, 1997.

Nielsen, Broman & Associates, P.L.L.C., by Eric Broman,Eric Nielsen, Seattle, Douglas J. Ende, Andrew L. Subin & Neal J. Philip, of Ende, Subin & Philip, Vashon, for Petitioner.

Norm Maleng, King County Prosecutor, Deborah A. Dwyer, Lee D. Yates, Cynthia Gannett, Theresa L. Fricke, Deputy King County Prosecutors, for Respondent.

DOLLIVER, Justice.

Michael Calegar argues that a prior conviction for possession of a controlled substance was inadmissible to impeach his testimony in his trial for obtaining a controlled substance by means of a forged prescription.

On October 22, 1993, Calegar went to the emergency room at Valley Medical Center for an eye injury sustained in his job as a welder. The examining physician, Dr. Larry Kedig, wrote Calegar three prescriptions in black ink, including one prescription for eight tablets of Vicodin, a narcotic pain-killer. Dr. Kedig placed the prescriptions on a clipboard hung outside Calegar's examining room. A discharge nurse then came to the room, handed Calegar the prescriptions, and discharged him. It is not clear how long the prescriptions hung outside the room. Nor is it clear how long the discharge nurse had the prescriptions in her possession.

Calegar went to the Valley Medical Center pharmacy to get the prescriptions filled. Lynn McKerracher, the assistant pharmacist, made some notations on the prescriptions and began to fill them. She soon noticed, however, that there was a blue mark that appeared to be a "1" in front of the black "8" on the Vicodin prescription. Thinking someone may have altered the prescription, McKerracher called the emergency room to find out how many tablets had been prescribed. McKerracher then called the police.

The police arrived and arrested Calegar. Calegar denied having altered the prescription, but conceded he had exclusive possession of it from the time he received it from the discharge nurse until he gave it to the pharmacist. An officer searched Calegar and did not find a blue pen.

A forensic document examiner testified at trial that the blue mark in front of the number "8" was the only mark on the prescription made with that color ink. The examiner also found the mark had been made with approximately six strokes of light pressure. The examiner could not say whether the mark was intended to be a "1." Nor could the examiner conclude whether the mark was made before or after the prescription was written.

Calegar moved, in limine, to exclude a 1989 conviction for possession of a controlled substance (cocaine). The court denied Calegar's motion, reasoning that Calegar "may have a heightened reason not to tell the truth ... because of the fact that he has a prior conviction which might impact his sentencing in this case." Verbatim Report of Proceedings at 9. The court ruled, however, that the nature of the felony could not be divulged because it would be "unduly prejudicial" as a prior drug conviction. Verbatim Report of Proceedings at 9.

Calegar admitted on direct examination that he had a prior felony conviction. Defense counsel briefly discussed this portion of Calegar's testimony in closing argument. The State never mentioned the conviction.

The emergency room physician, the pharmacist, the investigating officer, and the forensic document specialist testified for the State. The discharge nurse did not testify. A jury convicted Calegar of obtaining a controlled substance by means of a forged prescription.

Calegar appealed, arguing the trial court's admission of the prior conviction was erroneous. In an unpublished per curiam opinion, the Court of Appeals, Division One, held the trial court erred in failing to weigh on the record the impeachment value of the conviction and remanded the case for a hearing on this issue. State v. Calegar, 81 Wash.App 1046 (1996). On remand, the trial court ruled the conviction should have been excluded under State v. King, 75 Wash.App. 899, 878 P.2d 466 (1994), review denied, 125 Wash.2d 1021, 890 P.2d 463 (1995). The Court of Appeals informally inquired about certifying the case to this court, and it was subsequently transferred.

I

Evidence Rule (ER) 609 governs the admission of the prior convictions of a witness. Part (a) of the rule states:

For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.

ER 609(a). This case concerns only section (a)(1) of the rule, which gives the court discretion to admit or exclude any prior felony not involving "dishonesty or false statement." The State bears the burden of proving that the probative value of the prior conviction outweighs any undue prejudice. State v. Jones, 101 Wash.2d 113, 121-22, 677 P.2d 131 (1984), overruled in part on other grounds by State v. Ray, 116 Wash.2d 531, 806 P.2d 1220 (1991).

Before admitting a prior offense under ER 609(a)(1), the trial court is required to balance the following factors on the record: (1) the length of the defendant's criminal record;(2) the remoteness of the prior conviction; (3) the nature of the prior crime; (4) the age and circumstances of the defendant;(5) the centrality of the credibility issue; and (6) the impeachment value of the prior conviction. State v. Alexis, 95 Wash.2d 15, 19, 621 P.2d 1269 (1980).

In its unpublished opinion, the Court of Appeals held that the trial court failed to "properly weigh" factor (6), the impeachment value of the conviction. State v. Calegar, No. 35450-7-I, slip op. at 4 (May 20, 1996). The court found the trial court erred in admitting the prior conviction on the basis that it gave Calegar a heightened reason to lie due to the impact of the prior conviction on his sentence in this case. This logic, the court reasoned, was rejected in State v. King, 75 Wash.App. 899, 878 P.2d 466 (1994), review denied, 125 Wash.2d 1021, 890 P.2d 463 (1995). The Court of Appeals reminded the parties it was the State's burden on remand "to demonstrate that the specific nature of the prior crime makes it probative of the defendant's credibility." Calegar, slip op. at 5 n. 4.

On remand, the State argued the conviction was relevant to the defendant's credibility because "the possession of an illicit substance always involves some level of dishonesty...." Hearing at 3-4 (June 12, 1996). The trial court disagreed and found it was "unable to determine" that the possession conviction had impeachment value. Findings of Fact and Conclusions of Law (Findings) at 3. The court concluded that State v. King "preclude[d]" the use of the prior conviction. Findings at 3. In so doing, the court indicated it had improperly relied at trial upon State v. Begin, 59 Wash.App. 755, 801 P.2d 269 (1990).

Although the decision of whether to admit a prior conviction is a matter of discretion for the trial court, the court "must bear in mind at all times that the sole purpose of impeachment evidence is to enlighten the jury with respect to the defendant's credibility as a witness." Jones, 101 Wash.2d at 118, 677 P.2d 131. Prior convictions admitted under ER 609 must therefore have some relevance to the defendant's ability to tell the truth. Jones, 101 Wash.2d at 118-19, 677 P.2d 131. This court has observed that "few prior offenses that do not involve crimes of dishonesty or false statement are likely to be probative of a witness' veracity." Jones, 101 Wash.2d at 120, 677 P.2d 131.

Justice Holmes discussed the relevance of prior convictions in Gertz v. Fitchburg R.R. Co. [W]hen it is proved that a witness has been convicted of a crime, the only ground for disbelieving him which such proof affords is the general readiness to do evil which the conviction may be supposed to show. It is from that general disposition alone that the jury is asked to infer a readiness to lie in the particular case, and thence that he has lied in fact. The evidence has no tendency to prove that he was mistaken, but only that he has perjured himself, and it reaches that conclusion solely through the general proposition that he is of bad character and unworthy of credit.

137 Mass. 77, 78, 50 Am. Rep. 285 (1884) (holding that evidence of plaintiff's character and reputation for veracity should have been admitted after defendant introduced plaintiff's prior felony conviction).

Two cases out of this court direct our analysis. In State v. Thompson, 95 Wash.2d 888, 632 P.2d 50 (1981), we upheld the trial court's admission of prior convictions for manslaughter and an unspecified violation of the Uniform Controlled Substances Act (VUCSA) in the defendant's trial for second degree assault with a deadly weapon. We reasoned:

[A] narcotics trafficker lives a life of secrecy and dissembling in the course of that activity, being prepared to say whatever is required by the demands of the moment, whether the truth or a lie.

Thompson, 95 Wash.2d at 892, 632 P.2d 50 (quoting United States v. Ortiz, 553 F.2d 782, 784 (2d Cir.1977)). We concluded in Thompson that the trial judge was entitled to find the VUCSA violation was probative of the defendant's veracity.

We analyzed this issue more extensively, and reached the opposite result, in the later case of State v. Jones, 101 Wash.2d 113, 677 P.2d 131 (1984), overruled in part on other grounds by State v. Ray, 116 Wash.2d 531, 806...