State v. Harris

• Decision Date: 28 June 1984
• Docket Number: No. 49849-1,49849-1
• Citation: 685 P.2d 584,102 Wn.2d 148
• Parties: The STATE of Washington, Respondent, v. Carl Perry HARRIS, Petitioner.
• Court: Washington Supreme Court

Page 148

102 Wn.2d 148

685 P.2d 584

The STATE of Washington, Respondent, v. Carl Perry HARRIS, Petitioner.

No. 49849-1.

Supreme Court of Washington En Banc.

June 28, 1984.

Michael Filipovic, Seattle-King County Public Defender Association, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, Marilyn Nowogroski, Deputy Pros. Atty., Seattle, for respondent.

UTTER, Justice.

This petition presents three questions: whether a cautionary accomplice jury instruction is required in all cases in which the State relies on accomplice testimony; whether admission of a prior felony conviction for possession of stolen property is error under ER 609(a) in a prosecution for first degree robbery; and whether RCW 9.95.040 and RCW 9.41.025 violate the double jeopardy clause of Const. art. 1, § 9? We conclude that a cautionary accomplice jury instruction is required whenever the prosecution relies solely on accomplice testimony but that failure to give such an instruction is not reversible error where there is sufficient corroborating testimony; that admission of a prior felony conviction for possession of stolen property in a prosecution for first degree robbery is error under ER 609(a)(2) and may also be error under ER 609(a)(1), but that such error was harmless in this case; and that RCW 9.95.040 and RCW 9.41.025 do not violate the double jeopardy clause. Accordingly, we affirm the judgment of the court below.

Petitioner, Carl Perry Harris, was charged with the crime of robbery in the first degree. ¹ On October 17, 1981, petitioner participated in a robbery with three codefendants. Petitioner's three codefendants testified against him at trial after pleading guilty pursuant to a plea bargain. The facts elicited from these codefendants established that Harris and they had planned the robbery earlier that day; that the two female codefendants had lured the victim into a darkened area of the Seattle Pike Place Market; and that petitioner had held a gun on the victim while the male codefendant took the victim's money.

Petitioner did not dispute his participation in the robbery or the basic facts testified to by his codefendants. His defense was one of diminished capacity which he testified was due to his longtime use of drugs and alcohol, combined with his heavy use of a varied quantity of intoxicating substances on the day of the robbery. His codefendants contradicted this testimony. Each testified that petitioner was neither physically nor mentally impaired at the time of the robbery. One testified that the petitioner had not taken any intoxicant on the day of the robbery, while the other two testified that he had, at most, shared a marijuana cigarette with them. They further testified that petitioner had had the presence of mind to throw away the purse, which contained the gun used in the crime, while fleeing from the scene. Additional witnesses corroborated the substance of the codefendants' testimony regarding petitioner's mental state.

Petitioner made a motion in limine and at trial to exclude evidence of a prior felony conviction for possession of stolen property. The trial court admitted the conviction for impeachment under ER 609(a)(2) as a crime involving dishonesty or false statement. In addition, the trial court refused to give petitioner's requested jury instruction on accomplice testimony, WPIC 6.05. ²

Petitioner was convicted of robbery in the first degree, as a consequence of which his probation for a prior conviction of possession of stolen property was revoked. Petitioner was sentenced to a 20-year prison term for the robbery which included a minimum 7 1/2-year term for his use of a deadly weapon. He was also sentenced to a 5-year concurrent term of imprisonment for his prior conviction of possession of stolen property.

He appealed this conviction to the Court of Appeals. There, he argued that the trial court committed reversible error by admitting the prior conviction and by failing to give the accomplice instruction. He further charged that application of the deadly weapon and firearm statutes to enhance his sentence offends the double jeopardy clause of the United States and Washington Constitutions because use of a deadly weapon or firearm is also an element of the underlying offense of first degree robbery.

The Court of Appeals affirmed, State v. Harris, 34 Wash.App. 649, 663 P.2d 854 (1983), relying on the accomplice instruction case of State v. Gross, 31 Wash.2d 202, 196 P.2d 297 (1948) and the nonconstitutional harmless error standard of State v. Cunningham, 93 Wash.2d 823, 613 P.2d 1139 (1980). We accepted review to clarify the law regarding accomplice instructions and to apply to this case the recent decisions of State v. Burton, 101 Wash.2d 1, 676 P.2d 975 (1984) and State v. Jones, 101 Wash.2d 113, 677 P.2d 131 (1984).

I

In State v. Gross, supra, this court considered the question whether a cautionary instruction is mandatory whenever accomplice testimony is relied upon by the prosecution. There we stated:

[W]hile a defendant may be convicted on the uncorroborated testimony of an accomplice, provided that all the evidence and circumstances in the case satisfy the honest judgment beyond a reasonable doubt of the defendant's guilt, nevertheless the trial court should carefully caution the jury, in such cases, in the matter of weighing uncorroborated testimony, and should warn it against a conviction on such testimony; and the failure to give such instruction on request, where the testimony is uncorroborated, may constitute reversible error.

It is to be noted that this rule requiring the giving of a cautionary instruction applies only where the testimony of an accomplice is uncorroborated, and not where the testimony of such witness is corroborated by other evidence in the case.

(Citations omitted.) Gross, 31 Wash.2d at 216, 196 P.2d 297. Because the accomplice's testimony in Gross was corroborated by other evidence, we held that the trial court's refusal to give the instruction was not error. Petitioner argues that our more recent case of State v. Carothers, 84 Wash.2d 256, 525 P.2d 731 (1974) has overruled Gross.

Carothers addressed the issue of whether the standard instruction on accomplice testimony adequately cautioned the jury in assessing this testimony. We found the standard instruction adequate and rejected the Court of Appeals holding that the instruction was an unconstitutional comment on the evidence. We then stressed the importance of cautionary accomplice instructions:

Far from being superfluous or objectionable, a cautionary instruction is mandatory if the prosecution relies upon the testimony of an accomplice. A conviction may rest solely upon the uncorroborated testimony of an accomplice only if the jury has been sufficiently cautioned by the court to subject the accomplice's testimony to careful examination and to regard it with great care and caution....

... We adhere, therefore, to the rule that a cautionary instruction is proper where accomplice testimony is relied upon by the prosecution.

(Citations omitted. Footnote omitted.) Carothers, at 269-70, 525 P.2d 731. Carothers stresses this court's often repeated concern over accomplice testimony and the need to caution jurors regarding its questionable reliability. State v. Badda, 63 Wash.2d 176, 181, 385 P.2d 859 (1963); State v. Troiani, 129 Wash. 228, 224 P. 388 (1924); State v. Jones, 53 Wash. 142, 101 P. 708 (1909); State v. Pearson, 37 Wash. 405, 79 P. 985 (1905). The confusion here results from both the Gross and Carothers courts' imprecise statement of a rule set forth by this court many years ago. Where the testimony of an accomplice is uncorroborated, a cautionary instruction must be given, State v. Troiani, supra 129 Wash. at 229, 224 P. 388; State v. Pearson, supra 37 Wash. at 415, 79 P. 985. Yet, where the accomplice testimony is corroborated by independent evidence, failure to give the instruction may not be error. The court will first look to whether the failure to give the instruction prejudiced the defendant before making this determination. Troiani, 129 Wash. at 229, 224 P. 388. Gross and Carothers are both susceptible to contrary interpretations. To the extent that Gross implies that failure to give a cautionary instruction in cases where the accomplice testimony is wholly uncorroborated may not be reversible error, it is disapproved. To the extent that Carothers- implies that it is error not to give a cautionary instruction, even where accomplice testimony is substantially corroborated, it is disapproved.

Yet, even this clarification of the rules regarding accomplice testimony is insufficient here, for this case requires us to determine the extent of corroboration necessary to save the defendant from prejudice in the absence of a cautionary instruction. While the majority of courts have held that it is preferable to give a cautionary jury instruction whenever the prosecution introduces accomplice testimony, State v. Moore, 229 Kan. 73, 622 P.2d 631 (1981), and have held the failure to give a cautionary instruction reversible error when such testimony is wholly uncorroborated, see, e.g., United States v. Bernard, 625 F.2d 854 (9th Cir.1980); cf. United States v. Slocum, 695 F.2d 650 (2d Cir.1982), cert. denied, 460 U.S. 1015, 103 S.Ct. 1260, 75 L.Ed.2d 487 (1983) (error only reversible where defendant has suffered "substantial prejudice"), the courts have differed regarding the circumstances under which failure to give a cautionary instruction constitutes reversible error where there is some corroboration. Some federal courts look to whether the accomplice testimony supplied the only strong evidence of guilt, United States v. Moore, 700 F.2d 535 (9th Cir.1983), while others are satisfied if aspects of the testimony are corroborated, United States v. Wright, 573 F.2d 681 (1st Cir.), cert. denied, 436 U.S. 949, 98 S.Ct. 2857, 56 L.Ed.2d 792 (1978), and one court has...