State v. Johnson
| Decision Date | 06 February 1998 |
| Docket Number | No. 19714-6-II,19714-6-II |
| Citation | 90 Wn.App. 54,950 P.2d 981 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Robert Cornelius JOHNSON, Appellant. |
Pattie Mhoon (Court Appointed), Tacoma, for Appellant.
John W. Ladenburg, Prosecuting Attorney, and Barbara L. Corey-Boulet, Pierce County Deputy Prosecuting Attorney, Tacoma, for Respondent.
Robert Johnson appeals his convictions of felon in possession of a firearm, first degree assault, and second degree assault. We find that the cumulative effect of the following erroneous rulings denied Johnson a fair trial: (1) admitting Johnson's prior rape conviction to prove the unlawful possession charge; (2) allowing questions about Johnson's assertion of self-defense in an omnibus order to prove the assaults; (3) denying Johnson permission to impeach the State's key witness with a prior inconsistent statement; and (4) allowing the State to use a probation violation to impeach a defense witness. Thus, we reverse.
Philip Purcell, the victim of the assaults, provided the following version of the events of December 2, 1994. He testified that he went to Mary Martin's residence looking for his girlfriend at approximately 2:30 a.m. The girlfriend was asleep, but he talked with Martin for 15 to 30 minutes before he left.
He returned several hours later. Johnson was present and yelled at him for upsetting Martin earlier. Johnson then produced a gun, which Purcell described as a large caliber silver or chrome revolver. Johnson ordered Purcell to leave, stated that he was "going to bust a cap," and ordered Purcell to his knees. When Purcell refused, Johnson shot him in his left knee.
Purcell fell and Johnson kicked him in the ribs and neck. Johnson then grabbed Purcell and "helped" him walk across the street, telling him that if he told the police he would "have your [mother's] house shot up and I'll kill you." Johnson then shot Purcell in his right thigh, causing him to fall again.
According to police testimony, when the police and paramedics arrived, Purcell first told them he had been shot by a robber. He later claimed it was "RJ" who had shot him. Purcell subsequently viewed a photo montage and identified Johnson as his assailant.
Police Detective Anthony Wilkerson testified that two days after the shooting, he went to Martin's residence where he observed Johnson crouched by a chair, "fidgeting" with something. When Johnson saw the police, he stood with his hands out. After Johnson was arrested and removed from the house, Wilkerson found a .357 chrome revolver protruding from under the chair where Johnson had been crouching.
The State charged Johnson with being a felon in possession of a firearm and two counts of first degree assault. A month before trial, Johnson and his attorney signed an omnibus order indicating that the general nature of the defense was "general denial/self-defense." Four days before trial, Johnson revealed that he was going to rely upon an alibi defense, through the testimony of his brother, Rodney Bates. As a sanction for the dilatory disclosure of the alibi defense, the trial court ruled that if Johnson testified, the State could use the self-defense claim asserted on the omnibus order to impeach him. The court also ruled that the State could use the self-defense claim in cross-examining defense witnesses Bates and Martin. The trial court further ruled that it would admit Johnson's rape conviction, notwithstanding Johnson's willingness to stipulate to a prior conviction for a "violent offense."
At trial, Betty Ethridge testified for the State. Sometime after the shooting, she observed Purcell's mother beating Johnson on the chest and screaming, "You're the one that shot my son." Ethridge also thought she heard Johnson say "something about he was sorry." According to Ethridge, Johnson did not deny the shooting and, when she asked Johnson if he did it, he said "
The defense cross-examined Purcell about his claim that he would receive a monetary benefit if Johnson were convicted. After Purcell denied making such a claim, the defense sought to impeach him by questioning its witness, Martin, about a statement that Purcell allegedly had made in her presence. Allegedly, Purcell had said that "all he needed was a conviction, and he would be paid money." The trial court sustained the State's hearsay objection to the question. It reasoned that Purcell's statement was inadmissible hearsay and did not qualify as a prior inconsistent statement because the defense had not confronted him with the specific statement during its examination of him.
The defense produced two witnesses to support its theory that Johnson did not shoot Purcell. Bates, Johnson's 17-year-old brother, provided an alibi, testifying that Johnson was sleeping at their home at the time of the shooting. And Martin, Johnson's girlfriend, said that when Purcell came to her house at 6:45 a.m., he was arguing about money with another man whom she had never seen before and that Johnson was not present. In its cross- examination of Martin, the State impeached her with a 1993 probation violation and her past use of aliases.
The case went to the jury late on a Friday afternoon, and the jury deliberated for a full day the following Monday. On Tuesday morning, the husband of a juror left a message with jury administration saying that his wife could not continue as a juror. The judicial assistant testified that she then telephoned the juror. The juror told the judicial assistant that she was "so nervous" about participating, about "talking in a group, that she can't even think." She did not "think that she [could] deliberate fairly for the defendant." The juror began crying when the judicial assistant asked if it would help if the judge spoke to her.
After hearing the judicial assistant's testimony, the judge brought in the presiding juror and asked for a "yes" or "no" response to whether the ailing juror had "participated in deliberations." The presiding juror said "no."
The court denied Johnson's motion for a mistrial, seated an alternate juror, and instructed the jury to start deliberations anew. The reconstituted jury found Johnson guilty of unlawful possession of a firearm, one count of first degree assault, and one count of second degree assault, with a special verdict finding that a deadly weapon was used in the second degree assault.
At sentencing, Johnson argued that the "three strikes" law was unconstitutional. The trial court upheld its constitutionality and sentenced Johnson to life in prison without the possibility of parole.
Johnson claims that the prejudicial effect of his prior rape conviction substantially outweighed its probative value, in light of his offer to stipulate that he had a previous conviction for a violent offense. ER 403. The State argues that it was entitled to decline the stipulation and, in any event, the admission of the prior conviction was harmless. See State v. Pirtle, 127 Wash.2d 628, 652, 904 P.2d 245 (1995); State v. Guloy, 104 Wash.2d 412, 426, 705 P.2d 1182 (1985).
We use a manifest abuse of discretion standard in reviewing a trial court's balancing of the probative value of prior crime evidence against the danger of unfair prejudice. ER 403; State v. Rice, 48 Wash.App. 7, 11, 737 P.2d 726 (1987). The availability of other means of proof is a factor in deciding whether to exclude prejudicial evidence. ER 403 cmt. Evidence likely to provoke an emotional response rather than a rational decision is unfairly prejudicial. Rice, 48 Wash.App. at 13, 737 P.2d 726 (citing 5 Karl B. Tegland, Washington Practice, Evidence Law and Practice § 106, at 250 (2d ed.1982)).
To prove the charge of unlawful possession of a firearm, the State had to establish that Johnson previously had been convicted of a serious offense. RCW 9.41.040(1). "Serious offense" includes any crime of violence. RCW 9.41.010(12)(a). Johnson offered to stipulate to a prior conviction for a violent offense, without naming the offense.
The situation here is similar to that in the recent United States Supreme Court decision in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Old Chief also involved a prosecution for felon in possession of a firearm and for assault. 519 U.S. at ----, 117 S.Ct. at 647. In Old Chief, as here, the issue was the defendant's legal status as a felon. And in Old Chief, as here, there was no factual connection between the earlier crime and the charged offenses. Further, in Old Chief, as in this case, the defendant offered to stipulate to a prior felony conviction. 519 U.S. at ----, 117 S.Ct. at 648.
The Court acknowledged the standard rule that
a defendant's Rule 403 objection offering to concede a point generally cannot prevail over the Government's choice to offer evidence showing guilt and all the circumstances surrounding the offense.
Old Chief, 519 U.S. at ----, 117 S.Ct. at 651. But,
[t]his recognition that the prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story has, however, virtually no application when the point at issue is a defendant's legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him.
Old Chief, 519 U.S. at ---- - ----, 117 S.Ct. at 654-55. The choice of evidence for a prior conviction element is
not between eventful narrative and abstract proposition, but between propositions of slightly varying abstraction, either a record saying that conviction for some crime occurred at a certain time or a statement admitting the same thing without naming the particular offense....
... [T]he functions of the competing evidence are distinguishable only by the risk inherent in the one and wholly absent from the other.
Old Chief, ...
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