State v. King, 29372-9-I

• Decision Date: 08 August 1994
• Docket Number: No. 29372-9-I,29372-9-I
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Jimmy Lee KING, Appellant.

Page 899

75 Wn.App. 899

878 P.2d 466

The STATE of Washington, Respondent, v. Jimmy Lee KING, Appellant.

No. 29372-9-I.

Court of Appeals of Washington,

Division 1.

Aug. 8, 1994.

As Amended Oct. 11, 1994.

Mary Jane Ferguson, Washington Appellate Defender, Seattle, for appellant

Sabrina Housand, Deputy Pros. Atty., Seattle, for respondent.

BECKER, Judge.

Jimmy Lee King appeals his conviction for possession of cocaine pursuant to the Uniform Controlled Substances Act. He claims the trial court erred when it failed to provide the jury with an unanimity instruction under State v. Petrich, 101 Wash.2d 566, 683 P.2d 173 (1984), because the State, while telling the court it would elect one of two possible acts of possession, failed to do so. We agree, and reverse. We

also review the trial court's decision to admit, as a generic "felony", evidence of King's 9-year-old prior conviction for drug possession. Upon retrial, the trial court should consider the nature of the prior felony in balancing probative value against prejudice, without assuming that any prejudice can be cured by admitting it unnamed. Any decision to admit the felony as unnamed must be made subsequent to the balancing decision, not as a substitute for it.

I.

Seattle police officers Bachler and Kraus stopped a car driving with defective brake lights in February, 1992. The officers checked for outstanding warrants on both the driver and the only passenger, King. Officer Bachler observed that both King and the driver looked like they were trying to reach down in between the seat.

Finding an outstanding warrant only on the driver, the officers arrested him. As King stepped from the car, Officer Bachler saw him make a flipping motion, appearing to toss something away. He noticed that the fanny pack King was wearing was open while it had been closed only moments before.

Officer Kraus saw the driver also make a throwing motion in the direction of the car's interior with his right hand as he got out of the car. Searching between the driver and passenger seats, Officer Bachler found on the floor a red Tylenol container containing rock cocaine. As a result of this discovery, the officers arrested King too.

Upon arrival at the police station, Officer Kraus, conducting an inventory search, found another piece of rock cocaine in King's fanny pack. The State charged King with only one count of possession of cocaine.

At trial, King disputed the officer's account of the arrest. He testified that when the officers arrested him, they dumped the contents of the fanny pack out on top of the car's roof, finding only his identification, cigarettes, and spare change. King asserted that Officer Kraus, while searching King's person in the holding cell, held up a rock of cocaine he Over defense counsel's objection, the judge allowed the prosecutor to impeach King's credibility as a witness under ER 609(a)(1) with an unnamed felony, King's 9-year-old conviction for the identical crime, possession of cocaine.

                had been hiding beneath his fingernail, saying, "Look what I found in your pouch."   When King asked Officer Kraus why he was planting this on him, the officer responded that it was a drug area and that if King were ever caught in the area again and did not "have something," the officers would make sure that he did "have something."
                

The jury found King guilty of one count of possession as charged. He was sentenced to 6 months based on an offender score of 1.

II. RIGHT TO A UNANIMOUS JURY

Washington law holds that a defendant may be convicted only when a unanimous jury concludes the criminal act charged in the information has been committed. State v. Stephens, 93 Wash.2d 186, 190, 607 P.2d 304 (1980). When the prosecutor presents evidence of several acts that could form the basis of one count charged, either the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act. State v. Petrich, 101 Wash.2d 566, 570, 572, 683 P.2d 173 (1984). The rationale for Petrich 's protections in multiple act cases stems from possible confusion as to which of the acts a jury has used to determine a defendant's guilt, where the evidence tends to show two separate commissions of a crime.

The State argues that the evidence amounts to a "continuing course of conduct" rather than two separate acts.

Under appropriate facts, a continuing course of conduct may form the basis of one charge in an information. But "one continuing offense" must be distinguished from "several distinct acts," each of which could be the basis for a criminal charge. To determine whether one continuing offense may be charged, the facts must be evaluated in a commonsense manner.

(Citations omitted.) Petrich, at 571, 683 P.2d 173.

A continuing course of conduct has been used to describe acts of assault during a 2- The State's evidence tended to show two distinct instances of cocaine possession occurring at different times, in different places, and involving two different containers--the Tylenol bottle and the fanny pack. One alleged possession was constructive; the other, actual.

time period resulting in a fatal injury, State v. Crane, 116 Wash.2d 315, 330, 804 P.2d 10 (1991); acts of assault used in an attempt to secure sexual relations, State v. Handran, 113 Wash.2d 11, 17, 775 P.2d 453 (1989); acts taken collectively which promote prostitution, State v. Gooden, 51 Wash.App. 615, 620, 754 P.2d 1000, review denied, 111 Wash.2d 1012 (1988); and acts of assault used for the purpose of intimidating a witness, United States v. Berardi, 675 F.2d 894 (7th Cir.1982). No Washington cases have applied the "continuing course of conduct" exception to Petrich in the context of a drug possession offense.

The trial court offered to submit a written unanimity instruction. The prosecutor said, "I guess I just do not see why that could not be done in argument as opposed to written down." At this point, King requested a written unanimity instruction. The court denied the request in light of the State's avowed intention to make an election in argument. In closing argument, however, the State offered both the Tylenol bottle and the fanny pack as a basis for conviction.

If the State claims it will elect one out of multiple incidents to rely on for conviction it may not later equivocate. In such a case, the trial court must remedy the State's error by issuing a unanimity instruction. Here, as a result of the State's comment and the court's inaction, we cannot say that the jury acted with unanimity as to one act of possession.

Failure to follow Petrich's protections is constitutional error. The jury verdict will be overturned if a rational trier of fact could have a reasonable doubt as to whether each incident established the crime beyond a reasonable doubt. State v. Kitchen, 110 Wash.2d 403, 411, 756 P.2d 105 (1988).

Sufficient conflicting evidence exists as to which one of the car's occupants constructively possessed the Tylenol bottle Under these circumstances, the lack of a unanimity instruction to the jury was not harmless. Accordingly, we reverse and remand for a new trial.

for us to conclude that a rational trier of fact could entertain reasonable doubt as to whether King was responsible for the Tylenol bottle. The evidence is also conflicting as to King's alleged possession of the cocaine in the fanny pack. King testified that he was unaware of the cocaine in his fanny pack and asserted that the officers must have planted it. King's testimony requires a determination of credibility that is uniquely the jury's to make. We cannot say that no rational trier of fact would entertain a reasonable doubt about King's responsibility for the cocaine in his fanny pack.

III. UNNAMED FELONY

King also challenges the trial court's ruling which allowed the jury to hear that he had been convicted of a felony 9 years earlier. We address this issue because it will recur at the retrial.

The court instructed the State not to name the prior felony as a drug offense and not to point out to the jury that the felony was unnamed. "That in my experience, tends to highlight the mystery of it more than just say is it true that you've been convicted of a felony back in 1983, and then march along."

ER 609(a)(1) ¹ specifically makes evidence of prior felonies admissible for the limited purpose of attacking the credibility of a witness. Unless the prior felony involved dishonesty or false statement, in which case the conviction is per se admissible, the trial court must determine whether the evidence will be more useful in helping the jury to determine whether the witness is credible than it will be prejudicial to the defendant. "Such a determination, of course, becomes more difficult when the witness is a defendant." State v. Alexis, 95 Wash.2d 15, 17, 621 P.2d 1269 (1980).

The law has long recognized that evidence of prior crimes is inherently prejudicial to a defendant in a criminal case.

Statistical studies have shown that even with limiting instructions, a jury is more likely to convict a defendant with a criminal record. H. Kalven & H. Zeisel, The American Jury 146, 160-69 (1966). It is difficult for the jury to erase the notion that a person who has once committed a crime is more likely to do so again.

State v. Jones, 101 Wash.2d 113, 120, 677 P.2d 131 (1984), overruled on other grounds, State v. Brown, 113 Wash.2d 520, 782 P.2d 1013 (1989)).

Significant restrictions apply to the use of prior conviction evidence. Jones, at 121-122, 677 P.2d 131. Where ER 609 speaks of the "probative value" of the prior conviction, it does not mean that the prior conviction will help the jury to determine guilt for the current crime. The "sole purpose" of impeachment evidence under ER 609 is "to enlighten the jury with respect to the defendant's credibility as a witness." Jones, at 118, 677 P.2d 131. The prior convictions "must have some relevance to the defendant's...