State v. Coe

• Decision Date: 07 June 1984
• Docket Number: No. 49184-4,49184-4
• Parties: The STATE of Washington, Respondent, v. Frederick H. "Kevin" COE, Appellant.
• Court: Washington Supreme Court

Page 772

101 Wn.2d 772

684 P.2d 668

The STATE of Washington, Respondent, v. Frederick H. "Kevin" COE, Appellant.

No. 49184-4.

Supreme Court of Washington En Banc.

June 7, 1984.

Frederick H. Coe, pro se.

Allen & Hansen, Richard Hansen, David Allen, Seattle, for appellant.

Donald Brockett, Spokane County Prosecutor, Patricia Thompson, Deputy Pros. Atty., Spokane, for respondent.

STAFFORD, Justice.

Appellant, Frederick H. "Kevin" Coe, was charged in Spokane County Superior Court with five counts of first degree rape and one count of second degree rape. He was convicted of four counts of first degree rape. Coe appealed to the Court of Appeals which certified the cause to this court. Appellant raises eight issues:

(1) Was evidence of Coe's prior misdemeanor conviction of third degree theft properly admitted for the purpose of impeachment?

(2) Did the trial court abuse its discretion by allowing the Prosecuting Attorney to present evidence of Coe's sexual relations with his former girl friend?

(3) Did the trial court properly allow the prosecutor to introduce evidence of an incident for which Coe was never charged with a crime?

(4) Was it proper to cross examine Coe regarding articles and books he had written several years before trial?

(5) Did the trial court properly require Coe to stand before the jury and repeat statements made by the rapist?

(6) Did the limited discovery authorized by the trial court violate CrR 4.7 and Coe's due process rights?

(7) Did the trial court properly admit testimony of witnesses who had been previously hypnotized?

(8) Did the court's instruction to the jury regarding the burden of proof violate Coe's due process rights?

I

Some time prior to the present case, Coe was convicted in Spokane County District Court of shoplifting. After the conviction, he wrote a letter to the District Court Judge. During the cross examination of Coe, in the instant case, the Prosecuting Attorney used the conviction for the purpose of impeachment and questioned Coe extensively about the letter. The objections of defense counsel both to introduction of the prior conviction and to questions regarding the letter were overruled.

ER 609(a) provides the credibility of a witness may be attacked by evidence that the witness has been previously convicted of a crime. ER 609(a)(2) permits admission of evidence of a conviction to attack credibility if the crime "involved dishonesty or false statement, regardless of the punishment". In State v. Burton, 101 Wash.2d 1, 676 P.2d 975 (1984), we held "the category of crimes involving 'dishonesty' is defined to include only those crimes having elements in the nature of crimen falsi, the commission of which involves some element of deceit, fraud, untruthfulness or falsification bearing on the accused's propensity to testify truthfully." Burton at [10-11], 676 P.2d 975. In so holding, we recognized that the purpose underlying ER 609(a)(2) (i.e. to shed light on the defendant's credibility as a witness) is not served where a prior conviction does not bear directly on a defendant's propensity for truthfulness.

In Burton, shoplifting was found to lack the requisite element of untruthfulness, and therefore was held inadmissible under ER 609(a)(2). This holding is in accord with the position adopted by numerous federal circuit courts. As was stated in United States v. Ortega, 561 F.2d 803, 806 (9th Cir.1977):

Human experience does not justify an inference that a person will perjure himself from proof that he was guilty of petty shoplifting ... An absence of respect for the property ... is not an indicium of a propensity toward testimonial dishonesty.

See United States v. Ashley, 569 F.2d 975 (5th Cir.) cert. denied, 439 U.S. 853, 99 S.Ct. 163, 58 L.Ed.2d 159 (1978). Accordingly, evidence of Coe's prior conviction of third degree theft should not have been admitted.

Cross examination regarding the letter sent to the District Court Judge was also improper. Since evidence of the underlying conviction was inadmissible, it follows that Coe's letter concerning that crime should have been excluded. Moreover, even if evidence of the conviction could have been properly admitted, this cross examination would have exceeded the scope of permissible impeachment. 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 ..." Cross examination on prior convictions under ER 609(a) is limited to facts contained in the record of the prior conviction: the fact of conviction, the type of crime, and the punishment imposed. State v. Coles, 28 Wash.App. 563, 625 P.2d 713 (1981); see State v. Brewster, 75 Wash.2d 137, 449 P.2d 685 (1968); State v. Lindsey, 27 Wash.2d 186, 177 P.2d 387 (1947). Cross examination exceeding these bounds is irrelevant and likely to be unduly prejudicial, hence inadmissible. See State v. Coles, supra, 28 Wash.App. at 572-73, 625 P.2d 713.

II

At trial, Coe's former girl friend testified as a witness for the prosecution. Her testimony included a description of various details of her sexual relationship with him. For example, she testified Coe indicated he liked to masturbate, and that he used certain vulgar terms while they were engaged in sexual activity. She also declared Coe would frequently perform cunnilingus on her and that he would fondle his penis and insert his fingers in her vagina prior to having sexual intercourse.

Appellant contends the admission of this testimony was both irrelevant and prejudicial. The State argues the testimony was relevant to establish modus operandi and identity. In support of its argument, the State notes the statements and actions of the rapist bore similarities to the statements and actions of Coe in his sexual relationship with his girl friend.

The propriety of admission of the challenged testimony is governed by ER 404(b), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Before evidence of prior crimes, wrongs, or acts can be admitted, the evidence must be shown to be logically relevant to a material issue before the jury. If the evidence is relevant, its probative value must be shown to outweigh its potential for prejudice. State v. Saltarelli, 98 Wash.2d 358, 361-62, 655 P.2d 697 (1982); State v. Goebel, 40 Wash.2d 18, 21, 240 P.2d 251 (1952).

As noted above, Coe's sexual acts with his girl friend were admitted to establish modus operandi. Where prior acts are sought to be admitted to show modus operandi, "the primary purpose ... is to corroborate the identity of the accused as the person who likely committed the offense charged." State v. Irving, 24 Wash.App. 370, 374, 601 P.2d 954 (1979), review denied 93 Wash.2d 1007 (1980). The method employed in committing the act must be so unique that mere proof that an accused acted in a certain way at a certain time creates a high probability that he also committed the act charged. United States v. Silva, 580 F.2d 144, 148 (5th Cir.1978); State v. Fernandez, 28 Wash.App. 944, 949-50, 628 P.2d 818, 640 P.2d 731 (1980); State v. Irving, supra. "The device used must be so unusual and distinctive as to be like a signature." E. Cleary, McCormick on Evidence § 190, at 449 (2d ed. 1972).

A prior or subsequent crime or other incident is not admissible for this purpose merely because it is similar, but only if it bears such a high degree of similarity as to mark it as the handiwork of the accused.

United States v. Goodwin, 492 F.2d 1141, 1154 (5th Cir.1974).

The requirement that the evidence be distinctive or unusual insures that the evidence is relevant. The greater the distinctiveness of the act, the higher the probability that the defendant committed the crime. The admissibility of this highly prejudicial evidence is thus limited to those cases in which the evidence is highly relevant.

The words and actions of the perpetrator of the rape, though similar to Coe's behavior with his former girl friend, do not meet the stringent test of uniqueness required for admission to establish identity. While we make no determination as to what constitutes customary behavior in sexual relations today, we do not believe Coe's behavior in his sexual relationship with his former girl friend was sufficiently "unusual and distinctive" to warrant admission under ER 404(b). Further, we question the relevancy of an individual's behavior in a consensual sexual relationship to demonstrate modus operandi with respect to a violent nonconsensual sexual act. The trial court abused its discretion in permitting the presentation of this evidence.

III

Appellant objects to the examination, by the Prosecuting Attorney, of a woman who claimed she was approached by Coe on a jogging trail. At trial, this witness testified that as she jogged along a trail in Spokane on March 8, 1981, she was approached by a man fondling what appeared to be a replica of a penis. She stated the man made several rude comments to her of an explicit sexual nature.

The witness described the man as a white male, about 6 feet tall, medium build, brown hair, clean shaven, with a definite jawline. She testified the man had an eerie sounding voice and was wearing light blue pants, a light blue sweater, and sunglasses. When she grew angry the man ran away.

The witness testified she contacted some passing motorists, who gave chase to a car that turned out to belong to Coe. Coe denied he had anything to do with the incident but acknowledged that he was in the vicinity because he was driving to the offices of the Washington Water Power Company to pay his utility bill. The police did...