State v. Knapp

• Decision Date: 06 August 1975
• Docket Number: No. 1571--II,1571--II
• Citation: 540 P.2d 898,14 Wn.App. 101
• Parties: The STATE of Washington, Respondent, v. Kenneth KNAPP, Appellant.
• Court: Washington Court of Appeals

Page 101

14 Wn.App. 101

540 P.2d 898

The STATE of Washington, Respondent, v. Kenneth KNAPP, Appellant.

No. 1571--II.

Court of Appeals of Washington, Division 2.

Aug. 6, 1975.

Review Denied Nov. 24, 1975.

Donald W. Frey, Klingberg, Houston, Reitsch, Cross & Frey, Longview, for appellant.

Henry R. Dunn, Pros. Atty., Kenneth Cowsert, Deputy Pros. Atty., Kelso, for respondent.

ARMSTRONG, Chief Judge.

Kenneth Knapp appeals from a conviction of second-degree assault with a weapon or thing likely to produce bodily harm. He argues that any one of five alleged errors committed in the trial court, or their cumulative effect, entitles him to a new trial. His initial contention raises a first impression issue--did the court err by ruling that a witness cannot be impeached by the showing of a prior conviction when he was not represented by counsel at the previous prosecution? We have concluded that to exclude evidence of the prior unconstitutional conviction was proper. Defendant's second contention is that the court erred by limiting his cross-examination of the complaining witness, his brother Clarence. We hold that the attempted cross-examination was remote, and that the court did not abuse its discretion in precluding the inquiry. Third, defendant objects to remarks made by the prosecutor during closing argument. We do not agree that the remarks amounted to misconduct having a prejudicial effect on the jury. Nor do we agree with the defendant's fourth contention, that the court commented on the evidence. Finally, defendant's fifth assignment of error is that a newspaper headline published during trial prejudiced the jury. We hold that error did not occur. Because we find that the trial court did not err in its ruling as to each of the five issues presented by the defendant on appeal, we affirm the conviction.

The record discloses that the defendant, Kenneth Knapp, and his brother, Clarence Knapp, had been involved in a continuing family dispute over a homestead which their father had given to another brother. In the early morning hours of April 1, 1973, following an altercation first at a tavern and later at a grocery store, Clarence received a stab wound in the abdomen. The sufficiency of the evidence supporting Kenneth's conviction of the stabbing is not challenged on appeal. Various family members had testified for each side, with one faction supporting Kenneth's version and another faction corroborating Clarence's testimony. The one neutral witness, a woman living across the street from the grocery store, saw most of the incident, but was not in a position to see the two men for several seconds, and did not see them come into contact.

The first issue presented on appeal is one which as yet has not been addressed by the appellate courts: Can the complaining witness in a criminal case be impeached by the introduction of a conviction obtained in violation of the sixth amendment to the United States Constitution? The record indicates that this issue was discussed by the trial court and counsel prior to the cross-examination of defendant's brother in relation to one of his prior convictions. Out of the presence of the jury, the trial court determined that in May, 1972, Clarence had been convicted of assault and battery, fined $250, and sentenced to 5 days in jail. Both the fine and sentence were suspended. Clarence testified that he did not have an attorney in that case, and there was no showing that he had effectively waived counsel. The trial court ruled that this prior conviction could not be introduced to impeach Clarence because he was not represented by counsel at the time.

In ruling that the assault and battery conviction was inadmissible, the trial court relied upon Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) and State v. Paul, 8 Wash.App. 666, 508 P.2d 1033 (1973). In Burgett, 389 U.S. at 115, 88 S.Ct. at 262, the court held:

To permit a conviction obtained in violation of Gideon v. Wainwright (372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963)) to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case.

We note that the rule excluding such convictions from evidence was reaffirmed by the Supreme Court in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). There the rule was applied in a case where a defendant's prior convictions obtained in violation of Gideon were used in sentencing him. Further in Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), the court held that the Burgett exclusionary rule applied to the use of such convictions to impeach the defendant. The court also ruled in Loper that Burgett was retroactive in its application without regard to whether the convictions were used prior to or after Gideon.

In the second case relied upon by the trial court, State v. Paul, supra, the court stated the rule in Washington, 8 Wash.App. at page 667, 508 P.2d at page 1034, as follows:

Hence, the rule now is that the use of prior convictions for the purpose of impeachment or enhancement of punishment shall not be allowed unless it shall appear upon the record that the defendant was afforded counsel at the prior hearing or, in fact, made a valid waiver of counsel.

The court in the Paul case held that prior felony convictions had been improperly used to enhance punishment, and also found that the convictions had been used to impeach the defendant on cross-examination, but that the cross-examination was not grounds for reversal because the defendant had admitted the convictions on direct. The Burgett rule was also applied in Haislip v. Morris, 84 Wash.2d 106, 524 P.2d 405 (1974) and State v. Montague, 10 Wash.App. 911, 521 P.2d 64 (1974).

The above cases all involved the constitutionality of the use of a prior conviction of a Defendant. In the instant case, the issue arose when the defendant attempted to impeach a Prosecution witness by the use of an unconstitutionally obtained conviction. We see no reason for there to be a different rule for a witness than for a defendant in this situation. The use at trial of a prior conviction of either a defendant or a witness is limited to affecting the weight of his testimony. RCW 10.52.030. It is permissible for this purpose under the theory that the jury is entitled to be made aware of the fact of a witness's conviction because one convicted of a crime may be deemed by the jury to be less credible. However, this permission is based upon the assumption that the witness was rightly adjudged to have committed the crime. It can surely be said that as a rule, the fact that an individual was not represented by counsel in a criminal prosecution decreases the reliability of the conviction. The Supreme Court made this very point in United States v. Tucker, 404 U.S. 447, n. 5, 92 S.Ct. 592, where the court stated:

It is worth pointing out, however, that to make the contrary assumption, i.e., that the prosecutions would have turned out exactly the same even if the respondent had had the assistance of counsel, would be to reject the reasoning upon which the Gideon decision was based: . . .

The court went on to quote from Gideon to the effect that one who does not have counsel because of his poverty is denied a fair trial, and that counsel is a necessity, not a luxury.

The unreliability of unconstitutionally obtained convictions was pointed out again in Loper v. Beto, supra, 405 U.S. 483, 92 S.Ct. 1019, where the court stated:

We have said that the principle established in Gideon goes to 'the very integrity of the fact-finding process' in criminal trials, and that a conviction obtained after a trial in which the defendant was denied the assistance of a lawyer 'lacked reliability.' Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (614) and n. 20.

As indicated in these cases, the unreliability of convictions obtained in violation of Sixth Amendment rights is one of the reasons for the prohibition of their use in subsequent proceedings. It should be obvious that the unreliability of an unconstitutional conviction is exactly the same whether the one unconstitutionally convicted becomes a defendant or a witness in a subsequent case. Thus, the limitation on the use of such prior convictions should be the same for both defendants and witnesses.

Moreover, the purpose of the Burgett rule is to prevent an erosion of the principles of Gideon. Burgett v. Texas, supra, 389 U.S. at 115, 88 S.Ct. 258. That constitutional principle was presumptively violated when Clarence was convicted of the assault and battery charge in May, 1972, because he was not represented by counsel, and the record does not show that he had validly waived counsel. Waiver of counsel may not be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); State v. Alexander, 10 Wash.App. 942, 521 P.2d 57 (1974). Were we to sanction the use of this conviction for impeachment purposes in this proceeding, we would be perpetuating the error committed in the earlier prosecution and putting the judicial stamp of approval on a violation of constitutional rights. The constitutional error is no less grave or the subsequent proceedings any less tainted because it is a witness and not a defendant that is being impeached with the prior unconstitutional conviction.

One further problem, not dealt with by the parties on appeal, is whether the Burgett rule applies to prior misdemeanor convictions. We have little trouble resolving this issue in light of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). There the Supreme Court held that the Sixth Amendment guarantees the right to counsel can be imposed before imprisonment whether the offense be categorized as petty, misdemeanor or felony. Argersinger was made retroactive in Berry v. Cincinnati, 414 U.S. 29, 94 S.Ct. 193, ...