State v. Jones
| Decision Date | 13 December 1982 |
| Docket Number | No. 10743-7-I,10743-7-I |
| Citation | 33 Wn.App. 372,656 P.2d 510 |
| Parties | STATE of Washington, Respondent, v. Alfred L. JONES, Appellant. |
| Court | Washington Court of Appeals |
Russell B. Juckett, Snohomish County Pros. Atty., Asa Glazer, Deputy Pros. Atty., Everett, for respondent.
Following a jury trial, the defendant, Alfred L. Jones, was convicted of four counts of burglary in the second degree. On appeal, his principal assignment of error concerns the admission into evidence of two prior convictions for purposes of impeachment.
Following a series of burglaries, the defendant and one Clarence Williams were arrested after officers observed them carrying stolen television sets from Williams' car into a motel room rented by the defendant. A lawful search of the premises revealed numerous items later identified as stolen. The search also revealed two pair of pliers, one of which was later determined to have been used to gain entry to one of the burglarized residences.
At trial, one witness, who was herself facing forgery charges, testified that the defendant signed and gave her a check to cash. Another witness testified that the defendant gave her a tea set to sell. Both the check and tea set were identified as loot from the burglaries.
Also at trial, the court ruled that the defendant's prior convictions for possession of dangerous drugs and carrying a concealed weapon were admissible under ER 609(a) for the purpose of impeachment.
The defendant testified. He denied the burglaries, having a tea set, owning the pliers or having anything to do with the check in question. As he explained it, he had received the stolen items in a drug transaction with the Mr. Williams who was arrested with him. The defendant also accused the arresting officers of taking things from Williams' car and saying that they were found in his motel room. On direct examination, the defendant admitted to one prior felony. 1 On cross-examination, the prosecutor elicited testimony as to two prior felony convictions and their nature.
One issue is determinative of this appeal.
Was admission of the defendant's two prior felony convictions for impeachment purposes by the trial court reversible error?
CONCLUSION. Even if the admission into evidence of the defendant's two prior convictions for impeachment purposes was error under the circumstances, such error was not of constitutional dimension and was not prejudicial, therefore, the conviction will be affirmed.
Trial error is not a ground for reversal unless the error is prejudicial. Where the error is of constitutional proportion, it will be held prejudicial unless it is "harmless error beyond a reasonable doubt"; but where the error is not of constitutional proportion, a somewhat less rigorous test is applied and such error will not be held prejudicial unless "within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected." State v. Cunningham, 93 Wash.2d 823, 831, 613 P.2d 1139 (1980).
Admission of a prior conviction for impeachment is governed by ER 609. 2 This rule was adopted from the Federal Rules of Evidence with only minor changes. Comment, ER 609, 91 Wn.2d 1150 (1979); State v. Alexis, 95 Wash.2d 15, 16, 621 P.2d 1269 (1980).
In reviewing the federal decisions which have addressed the issue of whether the constitutional or nonconstitutional standard of review is applicable to ER 609 violations, we conclude that although the federal courts are not unanimous on the issue, the better reasoned decisions have not treated violations of the rule as being of constitutional stature. United States v. Glenn, 667 F.2d 1269, 1273-74 (9th Cir.1982); United States v. Slade, 627 F.2d 293, 308 (D.C.Cir.1980); United States v. Mahler, 579 F.2d 730, 736 (2nd Cir.1978); United States v. Smith, 551 F.2d 348, 366, 39 A.L.R.Fed. 539 (D.C.Cir.1976).
In reviewing decisions in this jurisdiction which have addressed similar evidentiary questions, it is apparent that they too support the view that the nonconstitutional standard of review is the one which should be applied to errors in the admission of prior convictions under ER 609. See State v. Robtoy, 98 Wash.2d 30, 653 P.2d 284 (1982) (); State v. Tharp, 96 Wash.2d 591, 599, 637 P.2d 961 (1981) (); State v. Jamison, 93 Wash.2d 794, 800-01, 613 P.2d 776 (1980) (); State v. Cunningham, supra, 93 Wash.2d at 831, 613 P.2d 1139 (); State v. Mack, 80 Wash.2d 19, 21-23, 490 P.2d 1303 (1971) (). Also pertinent in this regard is State v. Thompson, 95 Wash.2d 888, 632 P.2d 50 (1981), wherein the defendant challenged the use of a prior manslaughter conviction for impeachment on the basis that the conviction was based on an invalid guilty plea. It was there held that State v. Thompson, supra at 895, 632 P.2d 50. 3
We also observe that the statutory predecessor to ER 609, which is RCW 10.52.030, 4 was held constitutional in State v. Ruzicka, 89 Wash.2d 217, 570 P.2d 1208 (1977), by a unanimous en banc decision of the State Supreme Court. As there held:
Evidence of a witness' prior convictions is not inadmissible evidence which should not be placed before the jury for any reason.
State v. Ruzicka, supra at 229, 570 P.2d 1208. And further:
We are not convinced that juries either cannot or willfully do not follow the court's instructions to use evidence of a defendant's prior criminal record only in weighing the defendant's veracity on the witness stand.
State v. Ruzicka, supra at 229, 570 P.2d 1208. It would be incongruous and illogical to now conclude that simply because a statutory rule has been superseded by a court rule, what was formerly not considered a constitutional right should now be judged by constitutional standards.
Based on the foregoing analysis, we hold that violations of ER 609 are to be judged by the nonconstitutional standard of harmless error, namely that "error is not prejudicial unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected." State v. Cunningham, supra, 93 Wash.2d at 831, 613 P.2d 1139. Accord, State v. Robtoy, supra.
Turning to the case before us, the outcome of the defendant's trial would not have been materially affected if evidence of his prior convictions had not been admitted. As shown at the trial: he was apprehended carrying stolen property into his motel room; he was in possession of a pair of pliers positively identified as having been used in one of the burglaries; he signed and passed a stolen check through an intermediary; he sold a stolen tea set through another intermediary; and items from all four burglaries were found in his possession or traced to him. Wholly independent of the impeaching evidence, the jury could not reasonably have reached any conclusion other than that the defendant was guilty as charged.
Further in that same regard, the defendant admitted on direct examination that he was a dealer trading drugs for stolen property. Admission of his prior conviction for possession of dangerous drugs could well...
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State v. Jones
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