State v. Koloske

• Decision Date: 26 January 1984
• Docket Number: Nos. 49746-0,49748-6,s. 49746-0
• Citation: 100 Wn.2d 889,676 P.2d 456
• Parties: STATE of Washington, Respondent, v. Scott Alan KOLOSKE, Petitioner. STATE of Washington, Respondent, v. Joey Patrick AUSTIN, Petitioner.
• Court: Washington Supreme Court

Page 889

100 Wn.2d 889

676 P.2d 456

STATE of Washington, Respondent, v. Scott Alan KOLOSKE, Petitioner.

STATE of Washington, Respondent, v. Joey Patrick AUSTIN, Petitioner.

Nos. 49746-0, 49748-6.

Supreme Court of Washington En Banc.

Jan. 26, 1984.

Washington Appellate Defender, Nancy L. Talner, Seattle, for petitioner Koloske.

Eastside Defender Assoc., Will Roarty, Seattle, for petitioner Austin.

Norman K. Maleng, King County Pros., Robert C. Ryan, Deborah Phillips, Deputy Pros. Attys., Seattle, for respondent.

Appelwick, Trickey & Sluiter, Michael J. Trickey, Seattle, for petitioner Austin.

DIMMICK, Justice.

Both petitioners in these consolidated cases challenge their convictions, alleging trial court error in making rulings under ER 609. ¹ Petitioner Austin also claims that the trial court erred in denying his new trial motion based on newly discovered evidence. The Court of Appeals, 34 Wash.App. 882, 667 P.2d 635; 34 Wash.App. 625, 662 P.2d 872, affirmed the convictions. While we disagree with certain of the Court of Appeals pronouncements in these cases, we dismiss petitioner Koloske's petition for review and affirm petitioner Austin's conviction for the reasons discussed below.

I State v. Koloske

Koloske was convicted in April, 1981, of first degree theft in a jury trial. At trial, following the State's case, Koloske moved in limine to prohibit admission of his 1975 prior grand larceny conviction for impeachment purposes. The trial court denied his motion at that point, but indicated that a final determination would be made after Koloske had testified. Although the issue was again raised, with objection, during Koloske's cross-examination, the record contains no ruling on the objection or the admissibility of the prior conviction. The record only indicates that an unrecorded sidebar conference was held.

In affirming his conviction on appeal, the Court of Appeals, Division One, held that the admissibility of the prior conviction for impeachment purposes should have been determined at the pretrial omnibus hearing. Koloske alleges error on several theories.

We do not reach his allegations, and dismiss the petition on an unrelated ground. Before oral argument in these cases, the State moved to dismiss Koloske's petition because his whereabouts were unknown. Affidavits indicate that Koloske has failed to contact his probation officer since August, 1983; that he failed to appear for arraignment on other charges; that warrants are outstanding for his arrest.

The State contends that State v. Mosley, 84 Wash.2d 608, 528 P.2d 986 (1974) and State v. Nason, 20 Wash.App. 433, 579 P.2d 366 (1978) compel dismissal of Koloske's petition. In State v. Mosley, supra, we ordered dismissal of a petition for review because defendant had escaped from custody and had not been apprehended. Similarly, in State v. Nason, supra, the Court of Appeals affirmed the defendant's conviction on appeal without considering the merits when defendant was still at large at the end of a court ordered grace period.

Koloske's counsel argues that because a defendant has a constitutional right to an appeal in this state, Const. art. 1, § 22, ² an appeal cannot be dismissed unless the State proves a knowing and voluntary waiver of the right. See e.g., In re Hanson, 94 Wash.2d 798, 620 P.2d 95 (1980). In Koloske's case, however, he has already completed his appeal by obtaining review as a matter of right in the Court of Appeals. See RAP 2.1(a)(1). He is now seeking, in this court, discretionary review of the Court of Appeals decision. Our refusal to proceed with discretionary review in the absence of defendant does not raise the constitutional issue.

Counsel further argues that dismissal of the petition constitutes extra punishment, in addition to penalties for escape. But, as pointed out in State v. Mosley, supra, a decision on the merits gives defendant the option of submitting to this court's order. If a favorable decision is entered, defendant has every incentive to appear. In the event of an unfavorable decision, defendant is unlikely to submit to the court's authority. Thus, proceeding with the petition allows defendant to dictate the terms of his surrender.

We find State v. Mosley, supra, controlling. No compelling reason has been shown to reconsider its rule. Koloske's petition for review is dismissed upon the filing of this opinion if he has not delivered himself to the relevant authorities by the date of filing.

II State v. Austin

Austin was convicted of first degree robbery in April, 1981. The victim, who identified Austin, was the ticket taker at a high school basketball game. She had been employed there several years, had known Austin when he was a student, and continued to see him when he attended the school's basketball games as an alumnus. Austin's defense was an alibi.

Prior to trial, Austin moved in limine to preclude the State from using his prior 1977 second degree robbery conviction for impeachment purposes under ER 609. He argued that his alibi testimony would be crucial to the case and that informing the jury of a conviction for an identical crime would be overwhelmingly prejudicial. The trial judge denied the motion, suggesting that robbery was a crime of dishonesty, automatically admissible under ER 609(a)(2). He also found, however, that the jury's need to evaluate Austin's credibility outweighed the prejudice inherent in use of the conviction.

At trial, Austin did not take the stand. His alibi defense was presented through other witnesses. No further reference was made to the defense motion or Austin's desire to testify.

Following his conviction, Austin moved for a new trial on the basis of CrR 7.6(a), alleging newly discovered evidence. Prior to trial, defense counsel had been informed that another person, Michael Harris, was possibly implicated in the robbery. A police report, obtained by counsel after trial, confirmed that Harris had been arrested on the night of the robbery near the scene, and a gun had been seized from his car. The trial court denied the new trial motion.

In considering his appeal, the Court of Appeals, Division One, found that Austin had not preserved the ER 609 issue for appeal. First, the court held that no error could be assigned to the denial of Austin's motion in limine because such a ruling is necessarily advisory and tentative. The court suggested that error is committed only when the evidence is improperly admitted, over objection, at trial. Second, the court found that if the defendant decides not to take the stand because of the ruling, an offer of proof of the defendant's expected testimony, submitted to the trial judge, is required to demonstrate that the ruling resulted in prejudice.

The Court of Appeals also rejected Austin's claim of error in the denial of a new trial motion because of newly discovered evidence.

A

There is considerable judicial disagreement regarding the proper procedure for raising an ER 609 issue and preserving it for appeal. Compare United States v. Cook, 608 F.2d 1175 (9th Cir.1979), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980) with United States v. Lipscomb, 702 F.2d 1049 (D.C.Cir.1983). See generally Spencer, The Motion in Limine: Pretrial Tool to Exclude Prejudicial Evidence, 56 Conn.Bar J. 325, 333 (1982); Annot., 54 A.L.R.Fed. 694 (1981). Our own jurisdiction has not approached the problem in any consistent manner, as the Court of Appeals opinions in these two cases indicate.

When defendant has prior convictions and anticipates that he or she will need to testify at trial, counsel will want the admissibility of the prior convictions for impeachment purposes determined outside the jury's presence. The problem for defense counsel is how and when to raise the issue. The matter is no less complex for the trial judge who must decide when it is appropriate to make the ruling.

The facts before us illustrate the complexity. Both petitioners moved in limine under ER 609 to have prior convictions excluded from evidence for impeachment purposes. In Koloske, the Court of Appeals suggested that any error in a ruling under ER 609 would be automatically preserved for appellate review only if the issue was settled before trial at the omnibus hearing. In Austin, the Court of Appeals held that denial of the pretrial motion in limine was not reviewable because a pretrial ruling is necessarily tentative and advisory. Error, the court stated, could only be predicated upon the improper admission, over objection, of the evidence at trial. Because Austin did not take the stand following the ruling, the issue was not raised again at trial, thus precluding appellate review.

The Austin decision conflicts with opinions of this court which indicate that rulings on motions in limine are not necessarily tentative and advisory. See e.g., State v. Evans, 96 Wash.2d 119, 634 P.2d 845, 649 P.2d 633 (1981). Unless the trial court indicates that further objections at trial are required when making its ruling, the party losing the pretrial motion is deemed to have a standing objection. State v. Evans, supra; Fenimore v. Donald M. Drake Constr. Co., 87 Wash.2d 85, 549 P.2d 483 (1976).

We find no merit in distinguishing between various forums for pretrial rulings. Whether the ruling is made at a pretrial hearing, omnibus hearing, or during trial, the crucial issue is whether the trial court has expressed a final decision upon which the parties are entitled to rely. ³ See State v. Latham, 100 Wash.2d 59, 667 P.2d 56 (1983).

Numerous authorities suggest that disposing of ER 609 issues prior to trial is the preferred procedure. United States v. Cook, supra; Commonwealth v. Diaz, 383 Mass. 73, 417 N.E.2d 950 (1981). See generally Weinstein, Evidence § 609 (1982). But cf. United States v. Cobb, 588 F.2d 607 (8th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979) (trial court should be afforded the opportunity to rule...