State v. Jones

• Decision Date: 09 February 1984
• Docket Number: Nos. 49397-9,49422-3,s. 49397-9
• Citation: 677 P.2d 131,101 Wn.2d 113
• Parties: The STATE of Washington, Respondent, v. Alfred Lawrence JONES, Petitioner. The STATE of Washington, Respondent, v. Darryl YOUNG, Petitioner.
• Court: Washington Supreme Court

Page 113

101 Wn.2d 113

677 P.2d 131

The STATE of Washington, Respondent, v. Alfred Lawrence JONES, Petitioner.

The STATE of Washington, Respondent, v. Darryl YOUNG, Petitioner.

Nos. 49397-9, 49422-3.

Supreme Court of Washington,

En Banc.

Feb. 9, 1984.

Elizabeth K. Selleck, Washington Appellate Defender Association, Seattle, for petitioner Jones.

Raymond H. Thoenig, Washington Appellate Defender Association, Seattle, for petitioner Young.

Seth Dawson, Snohomish County Prosecutor, Larry McKeeman, Deputy Pros. Atty., Everett, for respondent.

STAFFORD, Justice.

In these consolidated cases, we formulate guidelines for the exercise of discretion under ER 609(a)(1) and determine the appropriate harmless error standard for use under ER 609(a)(1). We affirm the Court of Appeals on a different ground with respect to petitioner Jones, but reverse as to petitioner Young.

The facts of each case will be dealt with separately.

State v. Jones

On April 23, 1981, Jones and a companion, Clarence Williams, were arrested shortly after police observed them moving various items of property from Williams' car into Jones' adjacent motel room. The property found in Jones' motel room matched the description of items reported stolen from two local residences earlier that day. A subsequent search of the motel room also disclosed property reported stolen from two other local residences earlier that month. In addition, the search revealed two pairs of pliers, one of which was later determined to have been used to gain entry to at least one of the burglarized homes. Jones was charged with four separate counts of second degree burglary.

Prior to testifying at trial, Jones filed a motion in limine to exclude evidence of prior felony convictions for drug possession and carrying a concealed weapon. Jones contended that under ER 609(a)(1), the evidence was inadmissible because its probative value was outweighed by its prejudicial effect. The State countered by arguing that because lying is an integral facet of the criminal personality, Jones' criminal record necessarily reflected a propensity for lying. The trial court denied Jones' motion, ruling that the prosecution could introduce Jones' prior convictions if he denied them.

Jones nevertheless took the stand in his own defense. He claimed he did not commit the burglaries and that the stolen property found in the motel room was acquired from Clarence Williams in exchange for drugs. Jones also suggested the police "planted" the pliers in his room. On direct examination, he acknowledged one prior felony conviction. On cross-examination, and over defense objection, the prosecutor elicited an admission of two prior felony convictions as well as the particular circumstances of each conviction.

The jury returned guilty verdicts on all four counts of second degree burglary. The Court of Appeals affirmed, reasoning that even if the admission of Jones' prior convictions was error (which the Court of Appeals did not expressly decide), it was harmless under the nonconstitutional standard of State v. Cunningham, 93 Wash.2d 823, 831, 613 P.2d 1139 (1980). State v. Jones, 33 Wash.App. 372 375-77, 656 P.2d 510 (1982), review granted 99 Wash.2d 1009 (1983).

State v. Young:

On September 20, 1980, two men entered a Snohomish County residence, threatened the four occupants with what appeared to be a pistol, and stole a safe. Two weeks later, the State charged Darryl Young and Thomas Diamont with first degree robbery. Diamont was never apprehended.

Prior to trial, Young filed a motion in limine to exclude evidence of his prior convictions. Young had been convicted of grand larceny in 1970, forgery and credit card theft in 1974, and attempted escape in 1977. The trial court held the 1970 conviction was too remote and thus inadmissible. The State was permitted to present evidence of the other convictions, however, for purpose of impeachment under ER 609(a)(1). The court concluded, "the probative value of these [three] convictions substantially outweighs any remote prejudicial effect that might result."

At trial, Young presented an alibi defense. On direct examination, he admitted his prior convictions of forgery and grand larceny. On cross-examination, the prosecutor elicited an acknowledgment of the attempted escape and credit card theft convictions.

As with Jones, the trial court instructed the jury, in accordance with WPIC 5.05, that evidence of a defendant's prior convictions could be considered only in determining defendant's credibility as a witness. The jury returned a guilty verdict. The Court of Appeals affirmed in an unpublished opinion. We reverse.

I.

We must first determine whether the respective trial courts erred in permitting the State to impeach petitioners' credibility with evidence of their prior convictions under ER 609(a)(1).

In 1979, this court adopted ER 609, superseding former RCW 10.52.030. ¹ See 91 Wash.2d 1117, 1149 et seq. (1979). The language of ER 609(a) was taken verbatim from the Federal Rule of Evidence 609. See Fed.R.Evid. 609, 28 U.S.C. p. 563. ER 609(a) provides:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.

(Italics ours.)

Prior to 1979, we recognized that a defendant's past convictions were relevant to his or her credibility as a witness. See State v. Ruzicka, 89 Wash.2d 217, 226, 570 P.2d 1208 (1977). Moreover, a trial judge had no discretion to refuse evidence of a prior conviction; admission was mandatory, regardless of whether the prior conviction was for a felony or misdemeanor offense. See former RCW 10.52.030, footnote 1 above; see also State v. Ruzicka, supra; State v. Robinson, 75 Wash.2d 230, 450 P.2d 180 (1969). With the adoption of ER 609, we established significant restrictions on the use of prior conviction evidence. See State v. Alexis, 95 Wash.2d 15, 621 P.2d 1269 (1980).

As set forth in State v. Burton, 101 Wash.2d 1, 676 P.2d 975 (1984), ER 609 establishes two categories of prior convictions which may be admitted to impeach a defendant's credibility as a witness. First, if a prior conviction involves a crime of "dishonesty or false statement", it is automatically admissible under ER 609(a)(2). The trial judge has no discretion and the rule applies regardless of whether the prior conviction was for a felony or misdemeanor offense. See State v. Burton, supra. In Burton, we adopted a narrow definition of the word "dishonesty" as used in ER 609(a)(2). Only those crimes, felony or misdemeanor, which have a direct bearing on the defendant's ability to testify truthfully are automatically admissible to impeach a defendant witness. Prior felony convictions for crimes which do not contain an element of deceit, fraud, or false swearing, are admissible only under the discretionary standard of ER 609(a)(1).

Second, under subsection (a)(1), a prior felony conviction for an offense not involving "dishonesty or false statement" is admissible only if the trial court first determines that "the probative value of admitting this evidence outweighs its prejudicial effect to the defendant." ER 609(a)(1). This required balancing process injects an important element of discretion which was lacking under previous Washington law. As was noted in the Comment to ER 609, 91 Wash.2d 1150 (1979):

Rule 609 offers a balance between the right of the accused to testify freely in his own behalf and the desirability of allowing the State to attack the credibility of the accused who chooses to testify....

Section (a) ... narrows the scope of convictions which may be used to impeach the accused in a criminal case. RCW 10.52.030, which is superseded by the rule, did not contain the restrictions expressed in section (a).

The question before this court is one of clarifying and delineating the proper standards to be used in exercising the discretionary authority granted under ER 609(a)(1).

At the outset, we reiterate what was previously emphasized in both Burton and Alexis. When exercising the discretionary authority granted under ER 609(a)(1), a trial court must bear in mind at all times that the sole purpose of impeachment evidence is to enlighten the jury with respect to the defendant's credibility as a witness. Therefore, prior convictions admitted for the purpose of impeachment must have some relevance to the defendant's ability to tell the truth. See United States v. Smith, 551 F.2d 348 (D.C.Cir.1976); State v. Burton, supra; State v. Alexis, supra. Simply because a defendant has committed a crime in the past does not mean the defendant will lie when testifying. In these consolidated cases the State argues that because lying is an integral facet of the criminal personality, all prior convictions are per se admissible. We disagree.

In State v. Alexis, supra, we clearly rejected any per se rule for the admissibility of prior conviction evidence. See also State v. Moore, 29 Wash.App. 354, 628 P.2d 522, review denied 96 Wash.2d 1003 (1981) (Moore I); State v. Moore, 33 Wash.App. 55, 651 P.2d 765 (1982) (Moore II). ER 609(a)(1) requires the exercise of discretion. Moreover, crimes which are not automatically admissible as crimes involving "dishonesty or false statement" under ER 609(a)(2) must have some relevance to the defendant's ability to testify truthfully.

There has been an abundance of scholarly debate on the issue of impeachment by prior convictions, with many scholars advocating the demise of Rule 609 in favor of a strict nonadmissibility policy, or at least a severely...