State v. Hardy

• Decision Date: 19 August 1996
• Docket Number: No. 35992-4-I,35992-4-I
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Patrick Eldon HARDY, Jr., Appellant.

Page 167

83 Wn.App. 167

920 P.2d 626

The STATE of Washington, Respondent, v. Patrick Eldon HARDY, Jr., Appellant.

No. 35992-4-I.

Court of Appeals of Washington,

Division 1.

Aug. 19, 1996.

Eric J. Nielson, Eric Broman, Fran-Michelle Reichert, Seattle, for appellant

Francis D. Zavatsky, Deputy Pros. Atty., Seattle, for respondent.

COLEMAN, Judge.

We are asked to address whether the court erred by admitting Patrick Hardy's 1993 VUCSA conviction under ER 609(a)(1) when it failed to identify how the specific nature of the crime was probative of veracity. Because we find that the specific nature of the prior conviction here bears on veracity, we affirm. We also reject his claim that the court erred by admitting statements as excited utterances. While containing some detail, the statements were still made under the stress of the startling event under ER 803(a)(2). We further reject Hardy's claim that the prosecutor denied him a fair trial by shifting the burden of proof on him to disprove the victim's credibility.

Shamsa Wilkins and her friend, Margaret Smith, met a group of people downtown at Third and Yesler one night. That same night, Hardy was looking for his friends in the same area. At this point, the jury was presented with two divergent accounts.

Wilkins testified that Hardy drove up in a Black Camaro. Hardy tried to talk to Wilkins, but when Wilkins would not respond, he started calling her names. Wilkins testified that Hardy grabbed her gold necklaces. Hardy put the chains in his pocket and started pulling Wilkins across the street. Wilkins claimed that another man helped Hardy throw her into a car. The men then grabbed her four gold bracelets, her gold watch, and her money. Wilkins testified that Hardy slammed her head and pulled her hair. When Hardy then walked away, Wilkins asked him for her jewelry back. Hardy told Wilkins that if she had sex with him, he would return her jewelry. When she Hardy, on the other hand, testified that when he drove up to Third and Yesler to look for his friends, he heard a commotion. When he went to see what was happening, he saw Wilkins and another woman fighting. As the women fought, pieces of jewelry fell to the ground. He retrieved the jewelry and put it in his pocket. Wilkins's friend started yelling obscenities at him, and Wilkins said, "My friend said you have my jewelry." Hardy told her, "I ain't got your jewelry." Hardy then drove away. But Hardy was extremely intoxicated that night and soon passed out in his car.

                refused, Hardy said, "You better not call the police, I'll kill you."   Wilkins testified that Hardy told her that he had a gun but she never saw it.  Hardy then drove off
                

Wilkins then called the police. Officer Kevin Stewart testified that he arrived approximately 30 seconds after he received the dispatch. Officer Stewart testified that Wilkins, very distraught and upset, would at times break down and cry. Smith was also "upset and excited." Wilkins told him that Hardy had grabbed her, punched her, tried to choke her, felt her breasts, and grabbed her jewelry. Wilkins also told Officer Stewart about the other man that helped pull her into the car and rob her. In the ten to fifteen minute conversation, Wilkins and Smith gave Stewart a detailed description of Hardy and his license plate number. Officer Stewart testified that as Wilkins spoke, Smith "was standing there confirming all this."

Police soon found Hardy passed out behind the wheel of his car. Officer Stewart met Hardy at the precinct and saw that his clothing matched the description. Officer Stewart searched Hardy and found the jewelry, including a pendant which said "Shamsa."

The court admitted Hardy's 1993 conviction for delivery of a controlled substance. The court analyzed the Alexis ¹ factors on the record and made the following findings: (1) The length of the defendant's criminal history would not Finally, in analyzing its impeachment value, the court stated, "The impeachment value of the prior crime is almost nil. Drugs, prior convictions, certainly means that a person testifying might be looking at more time should he be or she be convicted. By the nature of the offense it suggests that impeachment value is not that great." The court concluded:

cause great prejudice because only one conviction was at issue; (2) The 1993 conviction was not so remote such that it should be excluded; (3) The nature of the prior crime--delivery of a controlled substance--suggested a need to proceed with extreme caution given the antidrug fever; (4) The age and circumstances did not suggest excluding the conviction; and (5) Credibility was central because the victim and defendant would present divergent stories.

On balance, then, it would appear to me that the jury should be entitled to know that there is some prior conviction. I will allow this to be in as an unnamed felony, because, as I said, of the reaction that people have to drug offenses. This way the jury will know that something did transpire, should Mr. Hardy take the stand. But they'll not be told the nature of the offense. And they then will not be deprived of any information which suggests that they closely examine all of the witnesses' testimony, including that of Mr. Hardy, should he testify.

Hardy testified and acknowledged that he had a prior felony drug conviction.

In closing, defense counsel stated, "[D]o keep a close eye on Ms. Wilkins and her story. She doesn't match up a single one of those. Her story isn't reasonable. There are huge holes in it. Her interest obviously is she wants to get him hammered for taking her jewelry. That's fine, but that's at most what he did."

In rebuttal, the prosecutor stated, "If you believe Shamsa Wilkins, what did this man do? He committed robbery. Now, defense counsel has presented no reason why she would lie, no reason why she would make this ER 609(a)(1)

                up."   Defense counsel objected.  The court noted the objection and asked the prosecutor to "move on."
                

We are asked to address whether the court erred by admitting Hardy's 1993 VUCSA conviction after finding that the impeachment value of the crime was "almost nil." Hardy argues that the court erred by failing to explain how the specific nature of the VUCSA conviction could help the jury evaluate Hardy's credibility. The State contends that all prior VUSCA convictions have impeachment value to some degree and that the court engaged in a proper balancing of the appropriate factors.

A prior conviction involving a crime of dishonesty or false statement shall be admitted under ER 609(a)(2) if elicited from the witness or established by public record on cross examination. State v. Jones, 101 Wash.2d 113, 117, 677 P.2d 131 (1984), overruled on other grounds, State v. Brown, 111 Wash.2d 124, 761 P.2d 588 (1988). The decision to admit other prior convictions lies within the sound discretion of the trial court but shall be admitted only if the probative value outweighs the prejudice to the party against whom the evidence is offered. ER 609(a)(1); State v. Millante, 80 Wash.App. 237, 246, 908 P.2d 374 (1995), review denied, 129 Wash.2d 1012, 917 P.2d 130 (1996).

In exercising its discretion under ER 609(a)(1), the trial court must analyze the Alexis factors on the record. State v. Alexis, 95 Wash.2d 15, 19, 621 P.2d 1269 (1980); Jones, 101 Wash.2d at 122, 677 P.2d 131. The Alexis factors are (1) the length of the defendant's criminal record--unnecessarily cumulative prior convictions are more prejudicial, (2) the remoteness of the prior conviction--older convictions are less probative, (3) the nature of the prior crime--how this particular crime reflects on the defendant's ability to testify truthfully, (4) the defendant's age and circumstances--whether the defendant was particularly young or extenuating circumstances existed, (5) the centrality of We focus our inquiry on the third Alexis factor and address the following issue: Did the court properly find the prior VUCSA conviction probative of veracity when it failed to identify how the specific nature of the crime bore on Hardy's veracity? There are two competing viewpoints within this court. Compare State v. King, 75 Wash.App. 899, 906-07, 878 P.2d 466 (1994), review denied, 125 Wash.2d 1021, 890 P.2d 463 (1995) with State v. Begin, 59 Wash.App. 755, 760, 801 P.2d 269 (1990), review denied, 116 Wash.2d 1019, 811 P.2d 220 (1991). This conflict stems largely from different interpretations of Jones and ER 609(a)(1).

the credibility issue--if credibility is essential, the necessity of hearing defendant's side of the story is enhanced, but the need for the jury not to be misled regarding defendant's credibility is also enhanced, and (6) the impeachment value of the prior crime--whether the evidence is necessary to impeach the defendant or whether other evidence can be used. State v. Alexis, 95 Wash.2d 15, 19, 621 P.2d 1269 (1980); see also Jones, 101 Wash.2d at 121, 677 P.2d 131 (whether defendant testified at a previous trial is also probative of veracity).

In Jones, the Supreme Court stated that when crimes are not automatically admissible under ER 609(a)(2), the State must show that the crime has some relevance to the defendant's ability to testify truthfully. Jones, 101 Wash.2d at 118, 677 P.2d 131. The Jones court rejected the notion that because lying is "an integral facet of the criminal personality, all prior convictions are per se admissible." Jones, 101 Wash.2d at 119, 677 P.2d 131. Rather, Jones emphasized that courts should consider several factors in determining the probative value of a prior conviction, including the Alexis factors. Jones, 101 Wash.2d at 120-21, 677 P.2d 131.

In State v. Begin, 59 Wash.App. 755, 760, 801 P.2d 269 (1990), review denied, 116 Wash.2d 1019, 811 P.2d 220 (1991), this court determined that ER 609(a)(1) implies that all prior felony convictions less than ten years old have probative value to some degree. Otherwise, the trial court would not...