State v. Greve

• Court: Washington Court of Appeals
• Writing for the Court: KENNEDY; GROSSE, C.J., and BAKER
• Citation: State v. Greve, 834 P.2d 656, 67 Wn.App. 166 (Wash. App. 1992)
• Decision Date: 24 August 1992
• Docket Number: No. 28641-2-I
• Parties: STATE of Washington, Respondent, v. James R. GREVE, Appellant.

Page 166

67 Wn.App. 166

834 P.2d 656

STATE of Washington, Respondent, v. James R. GREVE, Appellant.

No. 28641-2-I.

Court of Appeals of Washington Division 1.

Aug. 24, 1992.

Tom P. Conom, Edmonds, for appellant.

Seth R. Dawson, Pros. Atty., Seth Aaron Fine, Deputy Pros. Atty., Everett, for respondent.

KENNEDY, Judge.

James Greve appeals his conviction of attempted third degree rape of a child, claiming that the trial court incorrectly ruled that previously suppressed evidence could be used to impeach his testimony. Finding that, on the facts of this case, the trial court correctly interpreted the law governing the use of suppressed evidence for purposes of impeachment, we affirm.

FACTS

On December 17, 1988, the appellant attended a party at a friend's home. Also at the party was C.W., age 15 1/2. After C.W. became visibly intoxicated, the appellant gave her a ride home. During the ride home, appellant and C.W. allegedly had sexual contact. C.W. reported the matter to the police.

In the early morning hours of December 19, 1988, Edmonds police officers went to appellant's apartment. Appellant testified that when he went to the door he was told that he was under arrest. Appellant testified that the police came into his apartment, without his consent, and told him to get dressed. Appellant was subsequently taken to police headquarters. One of the police officers testified that the police obtained appellant's permission to enter the home, and that he was arrested inside his home. The police had no warrant for appellant's arrest.

At the station, appellant was given his Miranda ¹ warning, and he subsequently gave a written statement. According to police, in this statement, appellant indicated that when he was driving a girl home from the party she began playing with his penis with her head or her mouth on it for a couple of seconds. After giving the statement appellant was released.

The next day appellant voluntarily returned to the police station, without an attorney. After inquiring as to the status of his case, he proceeded to discuss the facts of the case with Officer Holmes for approximately 45 minutes.

The appellant was subsequently charged with third degree rape of a child, and later, by amended information, with third degree rape. Appellant then made a pretrial motion to suppress his statements to the police, based upon his warrantless arrest. After consideration of the issues at a CrR 3.5 hearing, the court ruled that there was a warrantless, illegal arrest in appellant's home, that both statements resulted from that arrest and that both statements should be suppressed pursuant to the fourth amendment to the federal constitution. The State moved twice for reconsideration of this ruling, and both motions were denied. ²

At the beginning of the trial, appellant moved in limine to preclude the use of his statements for impeachment purposes, should he choose to testify. Finding that the State Supreme Court would probably follow federal guidance in interpreting article 1, section 7 of the Washington Constitution, the trial court decided to allow the use of the suppressed statements for purposes of impeachment. Based on the ruling, counsel for the defense indicated that appellant would not testify at trial and appellant did not testify.

The case was tried to a jury, which returned a verdict of guilty of the lesser included offense of attempted rape of a child in the third degree. Judgment and sentence were subsequently entered. This appeal was originally taken to the Washington Supreme Court but was transferred to this court for disposition on June 15, 1991.

DISCUSSION

The appellant contends that the trial court erred in allowing the use of the previously suppressed evidence for impeachment purposes, claiming that such use is not allowed by federal law and that even if it were allowed under federal law, the protection afforded a defendant under article 1, section 7 of the Washington Constitution precludes such use.

Relying on State v. Brown, 113 Wash.2d 520, 540, 782 P.2d 1013 (1989), 787 P.2d 906 (Wash.1990), the State contends that appellant may not raise this issue on appeal. The State contends that, since appellant did not testify at the trial, the issue of a constitutional violation is merely speculative. In Brown, the Washington Supreme Court held that before a party may object to the admission of a prior conviction to impeach testimony under ER 609, he or she must first testify. The court reasoned that, without actual testimony, the proposed error is too speculative and offers the defendant a "free pass" to appeal when testimony may not otherwise have been offered.

However, "admission of prior conviction evidence under ER 609 [does not] constitute an unconstitutional procedure even where error occurred." Brown at 539, 782 P.2d 1013. By contrast, the use of evidence that is suppressed pursuant to the fourth amendment does raise constitutional concerns. Therefore, the adoption of the Brown rule in the context presented in the present case may "unacceptably infringe upon the defendant's rights". See Brown at 538, 782 P.2d 1013. In a similar situation, the Supreme Court of Vermont refused to bar consideration of self-incrimination issues on appeal simply because the defendant did not testify at trial.

The State argues that the defendant may not raise due process or self-incrimination issues on appeal in the absence of any testimony or offers of proof at trial, citing Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). The State's reliance on Luce is misplaced. In Luce, the United States Supreme Court distinguished the facts in that case, where a federal court's preliminary ruling on a question not reaching constitutional dimensions was held not to be reviewable, from its earlier cases, Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), and New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979), where the Court reviewed constitutional challenges to state court rulings which acted to discourage defendants from testifying. Luce, 469 U.S. at 42-43, 105 S.Ct. at 464.

State v. Brunelle, 148 Vt. 347, 534 A.2d 198, 204 (1987).

We choose to adopt the reasoning of the Vermont Court and reach the merits of appellant's claim.

Although federal case law concerning the use of illegally seized evidence for impeachment purposes has varied over the course of time, the use of such evidence is currently allowed under the fourth amendment to the United States Constitution. In the case of Agnello v. United States, 269 U.S. 20, 35, 46 S.Ct. 4, 7, 70 L.Ed. 145 (1925), the first Supreme Court case to examine this question, the court held that evidence obtained in violation of the fourth amendment could not be used in rebuttal testimony. Although Agnello had not testified concerning the illegally seized evidence on direct examination, the court stated that:

"The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all."

Agnello, 269 U.S. at 35, 46 S.Ct. at 7 (quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920)).

The scope of the Agnello ruling was narrowed in the later case of Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954). In that case, the Supreme Court held that illegally seized evidence could be used to rebut direct testimony as long as it was not used to rebut a mere denial of the elements of the case with which the party was then charged. Walder at 65, 74 S.Ct. at 356.

In the later case of Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Supreme Court re-examined Walder and retreated further, finding that statements obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), could be used to impeach witness testimony as to all matters. Harris, 401 U.S. at 224-25, 91 S.Ct. at 645. As stated by the court, "[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury." Harris at 225, 91 S.Ct. at 645. Although Harris concerned the admissibility of evidence under the fifth amendment, the case was cited with approval in United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980), a case concerning the fourth amendment, in which illegally seized evidence was allowed to be introduced in order to impeach a witness' testimony during cross examination.

Under present federal constitutional case law, previously suppressed evidence may be used for impeachment purposes regardless of its effect on the defendant's decision of whether or not to testify. Although there is a constitutional right to testify in one's own behalf, the federal cases recognize no chilling effect on an accused's right to take the stand in his own defense from the use of suppressed evidence in rebuttal, reasoning that a requirement that such testimony be truthful does not impinge on the right to testify. See Nix v. Whiteside, 475 U.S. 157, 173, 106 S.Ct. 988, 997, 89 L.Ed.2d 123 (1986) (The right to testify does not include "any right whatever" to testify falsely.). Furthermore, the federal cases examining the question consider the inability of the State to directly introduce suppressed evidence in its case in chief to be sufficient to deter illegal action on the part of authorities. See Havens, 446 U.S. at 626, 100 S.Ct. at 1916. ³

Appellant argues that, even if the use of such evidence for impeachment purposes is allowed under the fourth amendment to the federal constitution, the use of such evidence for impeachment purposes is not allowed under article 1, section 7 of the Washington Constitution. Although there is no Washington case law directly governing this issue, w...