State v. Land

• Decision Date: 20 May 1993
• Docket Number: No. 59259-4,59259-4
• Citation: 851 P.2d 678,121 Wn.2d 494
• Parties: The STATE of Washington, Respondent, v. Larry A. LAND, Appellant. En Banc
• Court: Washington Supreme Court

Page 494

121 Wn.2d 494

851 P.2d 678

The STATE of Washington, Respondent, v. Larry A. LAND, Appellant.

No. 59259-4.

Supreme Court of Washington,

En Banc.

May 20, 1993.

Washington Appellate Defender Ass'n, Suzanne Lee Elliott, Seattle, for appellant

David S. McEachran, Pros. Atty., and Daniel L. Gibson, Deputy Pros. Atty., Bellingham, for respondent.

DURHAM, Justice.

Appellant Larry A. Land appeals his conviction of one count of second degree rape of a child and one count of second degree child molestation. Land claims that the trial court erred in permitting rebuttal testimony by state witnesses concerning his poor reputation for veracity in the business community, and in refusing to allow the jury to view the scene of the crime. We affirm the conviction.

Larry Land was charged by information with one count of second degree rape of a child in violation of RCW 9A.44.076 and one count of second degree child molestation in violation of RCW 9A.44.086. The counts were based on his contact with T.T., a 13-year-old boy, on April 26 and 27, 1990. These contacts occurred on Land's sailboat which Land used as a residence. Land admitted that the boy visited him on several occasions, but denied any sexual contact.

The case turned largely on the relative credibility of T.T. and Land. Both sides called witnesses in an effort to impeach the reputation for veracity of the other side's witness. One of T.T.'s former schoolteachers, Peter Rasmussen, was called by the defense to question T.T.'s reputation for truthfulness within the school community. Jim Minshull and Gene Anderson, two former business acquaintances of Land, were called by the State on rebuttal to testify with respect to Land's bad reputation for truthfulness within the wooden box ("wood shook") manufacturing community. The defense objected to the evidence from Land's business acquaintances, claiming that under ER 608, evidence of one's reputation for truthfulness must be based on the community where a person lives, not where that person works. The trial The trial court also denied a defense motion to permit the jury to visit the boat where the events took place. The court ruled that the pictures, diagrams and testimony illustrating the layout of the boat were sufficient. The jury found Land guilty on both counts. We accepted certification from the Court of Appeals.

court overruled the defense objection and permitted the testimony.

REPUTATION EVIDENCE

Land contends that the trial court erred in permitting the State to present rebuttal testimony by two of Land's former business colleagues with respect to Land's reputation for veracity under ER 608. This rule of evidence provides that:

The credibility of a witness may be attacked or supported by evidence in the form of reputation, but subject to the limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise.

ER 608(a). Land relies primarily on State v. Swenson, 62 Wash.2d 259, 382 P.2d 614 (1963) for the proposition that testimony concerning a witness' reputation for veracity must be based on the witness' reputation in the community in which he or she resides, not where the witness works.

In Swenson, this court concluded that testimony regarding the defendant's reputation for veracity within the church was improper. Swenson, 62 Wash.2d at 282, 382 P.2d 614. Instead, evidence concerning the defendant's reputation should have been limited to that in the community where she resided. Swenson, at 282-83, 382 P.2d 614. The Swenson court did not explain the reasoning behind this conclusion, stating only that it was required by "the rather strict rules governing character evidence in this jurisdiction." Swenson, at 282, 382 P.2d 614.

The State argues that we should reject this language from Swenson and adopt a more functional definition of "community" parallel to that adopted by the federal courts in interpreting We also think there should be no restriction necessarily limited to the community in which the witness sought to be impeached lives, and that the realities of our modern, mobile, impersonal society should also recognize that a witness may have a reputation for truth and veracity in the community in which he works and may have impressed on others in that community his character for truthfulness or untruthfulness.

                Fed.R.Evid. 608. 1  For example, in one federal case, the court held that the realities of our modern world necessitate a functional approach to reputation evidence
                

United States v. Mandel, 591 F.2d 1347, 1370, overruled in part on other grounds on rehearing, 602 F.2d 653 (4th Cir.1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980). A number of state and federal courts have adopted this functional understanding of "community" for purposes of rule 608. See, e.g., Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1552 (10th Cir.1988) (relevant community may include business community); United States v. Oliver, 492 F.2d 943, 946 (8th Cir.1974) (rule "must be applied in a realistic and practical manner"); State v. McEachern, 283 N.C. 57, 67, 194 S.E.2d 787 (1973) (reputation may be derived from any community or society in which the person has a well-known or established reputation).

We find the State's argument persuasive. The rule adhered to in Swenson was developed at a time prior to the industrial revolution when most people lived and worked in small towns or rural villages. This rule was based on the rationale that it was best to restrict evidence concerning a person's reputation to that group of people who knew the witness best. See generally 1 Charles T. McCormick, Evidence § 43 (John W. Strong ed., 4th ed. 1992); 5 John H. Wigmore, Evidence § 1616 (1974). Given the tremendous changes in demographic patterns since the industrial revolution, however, it is doubtful that limiting reputation evidence to the community where one lives still serves the In fact, a rule that limits reputation evidence to the community where one lives may undermine the very purposes behind ER 608. This rule of evidence is designed to facilitate testimony from those who know a witness' reputation for truthfulness so that the trier of fact can properly evaluate witness credibility. See 5A Karl B. Tegland, Wash. Prac., Evidence § 230(1), at 197 (3d ed. 1989). Such a purpose would be thwarted by limiting the prospective pool of character evidence to a neighbor who has only a passing acquaintance with the witness, while excluding testimony from the workplace associates who may know the witness well. As noted by McCormick:

                purposes behind the rule.   People often live and work in separate communities.   Mobility between communities has also increased, limiting the depth and duration of one's contacts to a residential community
                

"[Limiting reputation evidence to the community where one resides] would not be appropriate in this country today, where a person may be little known in the suburb or city neighborhood where he lives, but well known in another locality where he spends his workdays or in several localities where he does business from time to time. Thus, today it is generally agreed that proof may be made not only of the reputation of the witness where he lives, but also of his repute, as long as it is "general" and established, in any substantial community of people among whom he is well known, such as the group with whom he works, does business or goes to school."

(Footnotes omitted.) 1 McCormick, supra, at 159.

Land argues, however, that allowing reputation evidence from the business community might be unfairly prejudicial where the community is small and competitive. In such a situation, business associates might have a motive to disparage Land's reputation for truthfulness. Although this argument may have some validity, the same argument could be made regarding the community where one lives. In either case the remedy is simple: the motivation and bias of a reputation witness is always subject to cross examination. In the current case, the defense did uncover potential bias during cross examination and the jury heard this evidence.

Land next argues that the prosecution failed to establish the existence of a valid community from which a reputation for veracity might be drawn. He contends that the testimony from his business associates--Jim Minshull and Gene Anderson--was based exclusively on their personal opinions of Land's reputation for truthfulness. Under ER 608(a), reputation evidence based solely on personal opinion is disallowed. ER 608 comment.

A party seeking to admit evidence bears the burden of establishing a foundation for that evidence. To establish a valid community, the party seeking to admit the reputation evidence must show that the community is both neutral and general. State v. Lord, 117 Wash.2d 829, 874, 822 P.2d 177 (1991), cert. denied, --- U.S. ----, 113 S.Ct. 164, 121 L.Ed.2d 112 (1992). Some relevant factors might include the frequency of contact between members of the community, the amount of time a person is known in the community, the role a person plays in the community, and the number of people in the community. The decision as to whether the foundation for a valid community has been established rests within the proper discretion of the trial court. See Davis v. Globe Mach. Mfg. Co., 102 Wash.2d 68, 76-77, 684 P.2d 692 (1984). A trial court abuses its discretion when it acts in a manner that is manifestly unreasonable or based on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

A review of the record indicates that the prosecution established a sufficient foundation for the reputation evidence. Although the wood shook industry is small, foundation evidence elicited during the direct examination...