State v. Donaldson

• Decision Date: 14 August 1969
• Docket Number: No. 40642,40642
• Citation: 458 P.2d 21,76 Wn.2d 513
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Donnell James DONALDSON, Appellant.

Page 513

76 Wn.2d 513

458 P.2d 21

The STATE of Washington, Respondent, v. Donnell James DONALDSON, Appellant.

No. 40642.

Supreme Court of Washington, Department 2.

Aug. 14, 1969.

Sanford Clement, Vancouver, for appellant.

Henry R. Dunn, Pros. Atty., R. Terry Husseman, Deputy Pros. Atty., Kelso, for respondent.

DONWORTH, Judge. ^*

Appellant, Donnell J. Donaldson, was employed by the Woodland school district to teach industrial arts and driver education courses. One of his pupils in the latter course was a 16-year-old girl, the prosecutrix in the instant action. On November 27, 1967, appellant, at the conclusion of a driving instruction class, brought the prosecutrix to her parents' home. Immediately upon entering the home she complained to her parents concerning certain liberties appellant allegedly took with her while they were alone in the automobile. These alleged acts of appellant are those involved in this case.

Thereafter, appellant was charged by information with taking indecent liberties with the prosecutrix, which is a gross misdemeanor. He pleaded not guilty to the charge and was tried by the court sitting with a jury. At the conclusion of the trial, the jury returned a verdict of guilty. The trial court sentenced appellant to 90 days in jail, which sentence was suspended for a period of 12 months upon condition that appellant serve 45 days in the Cowlitz County jail with credit for time already served and that he obtain psychiatric counsel. Appellant appeals from the judgment and sentence so entered.

No error is assigned by appellant relating to the sufficiency of the state's evidence which was presented to prove the acts of appellant alleged in the information. Indeed, there appears to be substantial evidence (which evidently the jury believed) to support his conviction.

There are two assignments of error upon which appellant relies for reversal of the instant conviction and sentence. The first one relates to questions propounded by the state on cross-examination of appellant's character witnesses and questions asked of appellant on cross-examination when he took the stand in his own defense.

Appellant chose to put his own character in issue by calling character witnesses to testify on his behalf. He also elected to take the stand and deny that tne events testified to by the prosecutrix ever occurred. He also denied that shortly after his arrest he had orally admitted to a deputy sheriff and the prosecutor that he had committed the acts concerning which the prosecutrix had testified. Further, appellant denied that on the day in question, when the acts complained of allegedly occurred, that he and the prosecutrix had driven on Dike Road in Woodland, which was the place where the prosecutrix claimed the acts were committed.

In his brief appellant quotes the questions propounded by the state to the character witnesses on cross-examination, and also to appellant himself while he was on the stand testifying on his own behalf. Almost without exception the character witnesses, in response to the questions, answered in the negative. In essence, the questions asked by the state on cross-examination, of which appellant complains, related to rumors of similar acts of misconduct by the accused. After each character witness had testified, the state, on cross-examination, asked them if they had heard of certain specific acts of misconduct of appellant. The similar acts of misconduct involved rumors that appellant had been discharged 2 years prior to this action by another school for making improper advances to young female pupils; that he allegedly had been carrying on an affair with a 60-year-old secretary in Raymond; that he had allegedly 'got fresh' with another girl in the driver's education course in Woodland the year before and that she had to leave the car to avoid him; and that appellant had an annoying habit of slapping young girls on the backside. All the questions asked by the state were prefaced by 'Did you hear,' 'Have you heard,' or 'Do you know.'

In most cases an objection was interposed by appellant to the state's questions on cross-examination. It was appellant's contention that this line of cross-examination was highly prejudicial and constituted reversible error in that it concerned prior acts of misconduct involving crimes of which appellant had never been formally accused or found guilty. The state, on the other hand, contended that since appellant had elected to put his character in issue, he opened up an avenue of allowable cross-examination of his character witnesses and himself in an attempt to impeach their testimony regarding his character.

The trial court overruled appellant's objections to the questions posed by the state on the basis that appellant had elected to put his character in issue, and by so doing he created a situation which entitled the state to cross-examine the character witnesses as to whether they had heard of specific acts of prior misconduct by the accused. The trial court further held that the purpose of such testimony was not to prove the fact that such events occurred, but rather was a legitimate attempt to impeach the testimony of the character witnesses.

Article 1, section 9 of the Washington State Constitution provides that no defendant in a criminal prosecution can be compelled to take the witness stand and testify against himself. Article 1, section 22 of the same document gives the defendant the right to testify if he elects to do so. When the defendant takes the witness stand on his own behalf, RCW 10.52.040 provides that he shall be subject to all the rules of law relating to cross-examination of witnesses. See also State v. Robideau, 70 Wash.2d 994, 425 P.2d 880 (1967).

In view of the foregoing provisions, we follow the general rule of law that a defendant in a criminal case must be tried on the offense charged and that evidence of unrelated acts of misconduct may not be admitted. State v. Emmanuel, 42 Wash.2d 1, 253 P.2d 386 (1953); State v. O'Donnell, 195 Wash. 471, 81 P.2d 509 (1938).

However, in Emmanuel, we recognized an exception to the aforementioned rule when we stated at 14, 253 P.2d at 393:

Notwithstanding what has just been said, if a defendant puts his prior conduct into issue by testifying as to his own past good behavior, he may be cross-examined as to specific acts of misconduct unrelated to the crime charged. State v. Armstrong, 29 Wash. 57, 69 P. 392; State v. Melvern, 32 Wash. 7, 72 P. 489; State v. Hollister, 157 Wash. 4, 288 P.2d 249; State v. Johnson, 180 Wash. 401, 40 P.2d 159; State v. Kelly, 187 Wash. 301, 60 P.2d 50.

When appellant took the stand in his own behalf in the instant action, he testified as to his own past good behavior and specifically denied that he had been involved in the alleged prior acts of misconduct. By injecting these issues into the direct examination, appellant opened the door for legitimate cross-examination of his testimony by the state. By so doing, appellant is now foreclosed by our holding in State v. Emmanuel, Supra, from claiming error.

After a thorough review of the record, including the questions asked and the answers given, we are convinced that the trial court properly applied the law in this jurisdiction and properly exercised its discretion in allowing the cross-examination of appellant. Therefore, we find no reversible error as to the instant cross-examination of appellant.

The second portion of the first assignment of error is concerned with the cross-examination by the state of character witnesses called by appellant.

In State v. Stilts, 181 Wash. 305, 42 P.2d 779 (1935), defendant therein was charged with possession of marijuana. In aid of his defense, defendant called 10 character witnesses. On cross-examination, one of the witnesses was asked if he did not know that appellant was selling narcotics to high school pupils, or was reported to have been making such sales. The witness answered in the negative. Another witness was asked a similar question. In ruling on the propriety of such cross-examination, we said at 312, 42 P.2d at 782:

On cross-examination of a character witness, the latter can be interrogated as to his knowledge of the defendant's acts and whether or not the witness has information to the effect that the defendant has been guilty of some misconduct. Appellant himself put his character in issue by calling witnesses who testified that it was good. In cross-examining these witnesses, the state did not transcend the bounds of legitimate interrogation, as defined by this court in the cases of State v. Austin, 83 Wash. 444, 145 P. 451, and State v. McMullen, 142 Wash. 7, 252 P. 108.

See also State v. Robinson, 24 Wash.2d 909, 915--916, 167 P.2d 986 (1946).

Thereafter, in State v. Cyr, 40 Wash.2d 840, 246 P.2d 480 (1952), we again acknowledged the general rule in this jurisdiction, but noted that we follow the minority rule in regard to the form of the question allowed. In this state, a character witness may be cross-examined as to his personal knowledge of acts of misconduct by the accused. The majority rule holds that such witnesses may only be cross-examined as to what he has heard of reports or rumors of such acts. Accordingly, it is proper to preface questions in such situations in this state by either 'Did you hear,' 'Have you heard,' or 'Do you know.' See also 28 Wash.L.Rev. 238--39 (1953).

Also, in State v. Cyr, Supra, we noted that there is a limitation on the admission of cross-examination on character witnesses as to acts of misconduct by the accused. At 845--846, 246 P.2d at 484, we stated:

This court, however, adheres to the general rule that cross-examination, in situations of this kind, must be limited to an effort to discredit the testimony of the character witness. State v. Presta, 108 Wash. 256, 183 P. 112. Stated conversely, the rule is that such cross-examination may be not be utilized for the primary purpose of discrediting...