State v. Hardy
| Decision Date | 20 November 1997 |
| Docket Number | No. 64619-8,64619-8 |
| Citation | 946 P.2d 1175,133 Wn.2d 701 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Patrick Eldon HARDY, Petitioner. |
Nielsen, Broman & Associates, Eric Broman, Eric Nielsen, Seattle, for Petitioner.
Norm Maleng, King County Prosecutor, Francis Zavatsky, Lee Yates, Cynthia Gannett, Deputies, Seattle, Theresa Fricke, Tacoma, for Respondent.
Patrick Hardy appeals a second degree robbery conviction, asserting a prior drug conviction was improperly admitted into evidence contrary to ER 609(a)(1). The Court of Appeals affirmed, but we reverse. As held in State v. Jones, 101 Wash.2d 113, 122, 677 P.2d 131(1984), overruled in part on other grounds by State v. Ray, 116 Wash.2d 531, 546, 806 P.2d 1220 (1991) prior drug convictions "have little to do with a defendant's credibility as a witness...."
At trial complaining witness Shamsa Wilkins testified that as she stood on a downtown Seattle street corner at 4:30 in the morning, Hardy approached her, spoke with her for a few minutes, and then robbed her of her jewelry. Wilkins testified Hardy remained for a few minutes trying to strike up a friendly relationship but she refused.
Seattle police officer Stewart testified he was summoned to the scene and arrived within a minute of the call. Officer Stewart testified the alleged victim and her female companion Margaret Smith were "very, very, distraught and upset ... break[ing] down into tears" and "excited" as they told him what allegedly happened. Verbatim Report of Proceedings (Trial) 1 (2RP) at 149-50. Over defense counsel's objection the trial court admitted the officer's testimony under the excited utterance exception to the hearsay rule. ER 803(a)(2). While alleged victim Wilkins testified at trial, her friend Margaret Smith did not.
Police also testified Hardy was found a few minutes after the alleged robbery at a nearby intersection passed out in his black Camaro. Wilkins' jewelry was found in Hardy's pockets.
Hardy took the stand and testified to a different version of events. He claimed Wilkins was in a push and shove match with her female friend and he had simply helped out by picking up loose jewelry from the ground. He did not deny he left the scene with the jewelry in his pocket, but such would not constitute robbery.
Before trial the State moved to introduce Hardy's prior felony drug conviction for impeachment purposes should he choose to testify. Defense counsel objected claiming the prior drug conviction was not only irrelevant to Hardy's credibility but very prejudicial as well. The court stated on the record "[t]he impeachment value of the prior crime is almost nil" and as a drug crime it would be particularly prejudicial given the anti-drug "fever." 1RP at 31. The court, nevertheless, admitted the prior conviction as an unnamed felony, reasoning "the jury should be entitled to know that there is some prior conviction." 1RP at 31, 32. Responding to the court's ruling, Hardy's counsel elicited the unnamed prior conviction on direct. 2 The jury convicted Hardy. Hardy appealed to the Court of Appeals, but for naught.
The appellate court affirmed, reasoning all prior drug convictions are relevant to the defendant's credibility because drug convictions necessarily show secrecy and deceit. State v. Hardy, 83 Wash.App. 167, 175-76, 920 P.2d 626 (1996). As to the hearsay offered by Officer Stewart from the complaining witness and her companion, the court found it was properly admitted as an excited utterance. Id. at 177, 920 P.2d 626. We reverse on the admissibility of the prior drug conviction under ER 609(a)(1) but affirm the excited utterance was properly admitted.
Evidence of prior felony convictions is generally inadmissible against a defendant because it is not relevant to the question of guilt yet very prejudicial, as it may lead the jury to believe the defendant has a propensity to commit crimes. Id. 5 Karl B. Tegland, Wash. Prac., Evidence § 114, at 383 (3d ed.1989). ER 609 represents a narrow exception to this rule against admitting evidence of prior convictions.
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) (emphasis added).
Drug convictions are not crimes of "dishonesty or false statement" like perjury or criminal fraud and thus ER 609(a)(2) does not apply. 3 Rather the inquiry focuses on ER 609(a)(1), which allows admittance of prior felony convictions only if "the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered...." ER 609(a)(1). State v. Jones, 101 Wash.2d 113, 122-23, 677 P.2d 131 (1984) is dispositive. 4
Probative value
ER 609(a)(1) requires the prior conviction have "probative value." When assessing probative value it is critical to understand "the sole purpose of impeachment evidence [under ER 609(a)(1) ] 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. 5 Credibility in this context refers to truthfulness. Jones, 101 Wash.2d at 118-19, 677 P.2d 131. Prior convictions are therefore only "probative" under ER 609(a)(1) to the extent they are probative of the witness's truthfulness.
State v. Begin, 59 Wash.App. 755, 759-60, 801 P.2d 269 (1990), review denied, 116 Wash.2d 1019, 811 P.2d 220, declared all prior felonies " 'are evidence of non-law-abiding character' " and thus "probative" under ER 609(a)(1). However, the proper inquiry under ER 609(a)(1) is not whether the prior conviction shows a "non-law-abiding character" 6 but whether it shows the witness is not truthful. To the extent Begin suggests all criminal convictions go to truthfulness or that every criminal act is evidence of an untruthful personality it is disapproved. 7 "Simply because a defendant has committed a crime in the past does not mean the defendant will lie when testifying." Jones, 101 Wash.2d at 119, 677 P.2d 131. To the contrary, we have held "few prior offenses that do not involve crimes of dishonesty or false statement are likely to be probative of a witness' veracity." Id. at 120, 677 P.2d 131. We again affirm that position and caution prior convictions not involving dishonesty or false statements are not probative of the witness's veracity until the party seeking admission thereof shows the opposite by demonstrating the prior conviction disproves the veracity of the witness.
Jones held "the trial court must state, for the record, the factors which favor admission or exclusion of prior conviction evidence." 101 Wash.2d at 122, 677 P.2d 131. The court must consider such factors to assess whether probative value outweighs prejudice. It is imperative the court state, on the record, how the proffered evidence is probative of veracity to allow appellate review. See State v. King, 75 Wash.App. 899, 913, 878 P.2d 466 (1994) ().
Some of the Jones and Alexis factors may also be useful to assess probative value. 8 For example, factor one focuses attention on the nature of the prior crime while factors two (remoteness) and four (age and circumstances) may indicate an otherwise probative conviction is less probative because it is chronologically remote.
The Court of Appeals relied upon State v. Thompson, 95 Wash.2d 888, 892, 632 P.2d 50 (1981) for the proposition that prior drug convictions, by their nature, are always probative of veracity. State v. Hardy, 83 Wash.App. at 175-76, 920 P.2d 626 (quoting Thompson, 95 Wash.2d at 892, 632 P.2d 50) (a drug seller lives a life of "secrecy and dissembling" and thus prior drug convictions go to veracity). But we rejected that aspect of Thompson in Jones wherein we stated a prior "felony conviction ... for possession of drugs ... ha[s] little to do with a defendant's credibility as a witness." Jones, 101 Wash.2d at 122, 677 P.2d 131. 9
We find nothing inherent in ordinary drug convictions to suggest the person convicted is untruthful and conclude prior drug convictions, in general, are not probative of a witness's veracity under ER 609(a)(1). Numerous sister jurisdictions are in accord. 10
Prejudicial effect
If the prior conviction is probative of veracity under ER 609(a)(1) the court must still assess prejudicial effect. "[P]rior conviction evidence is inherently prejudicial" when the defendant is the witness because it tends to shift the jury focus "from the merits of the charge to the defendant's general propensity for criminality." Jones, 101 Wash.2d at 120, 677 P.2d 131. 11 Several studies confirm the prejudice. 12 One commentator observed "[i]f the jury learns that a defendant previously has been convicted of a crime, the probability of conviction increases dramatically." Alan D. Hornstein, Between Rock and a Hard Place: The Right to Testify and Impeachment by Prior Conviction, 42 Vill. L.Rev. 1 (1997). The threat of admitting inherently prejudicial prior convictions places the accused in a catch-22 where he must either forego testifying in his defense or testify and risk portrayal as a criminal. 13 Forcing the accused to such a Hobson's choice is not favored. 14
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...or condition made while the declarant was under the stress or excitement caused by the event or condition." See State v. Hardy, 133 Wash.2d 701, 714, 946 P.2d 1175 (1997) ("Excited utterances are spontaneous statements made while under the influence of external physical shock before declara......
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Thomas v. State, No. 70727-8 (Wash. 5/8/2003)
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Table of Cases
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§ 11.5 Related Doctrines
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