State v. LeFever

• Decision Date: 01 November 1984
• Docket Number: No. 50176-9,50176-9
• Citation: 102 Wn.2d 777,690 P.2d 574
• Parties: The STATE of Washington, Respondent, v. Fred Dale LeFEVER, II, Petitioner.
• Court: Washington Supreme Court

Page 777

102 Wn.2d 777

690 P.2d 574

The STATE of Washington, Respondent, v. Fred Dale LeFEVER, II, Petitioner.

No. 50176-9.

Supreme Court of Washington En Banc.

Nov. 1, 1984.

Allen & Hansen, Richard Hansen, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, Deborah J. Phillips, Deputy County Pros., Seattle, for respondent.

DOLLIVER, Justice.

Defendant Fred Dale LeFever asks this court to reverse a decision of the Court of Appeals which affirmed his conviction of one count of first degree robbery and two counts of second degree robbery, a finding of his being a habitual criminal, and ruled his probation was properly revoked.

The charges against defendant arose out of three robberies at two Safeway stores in Seattle which occurred on September 5 and 7, and October 17, 1981. In each robbery the robber disguised himself by putting Band-Aids on his face, stuffing cotton up his nostrils, and wearing a fake beard and sideburns.

Defendant was arrested on October 20, 1981. His parole officer, James Kairoff was present. Defendant asked to speak with him. Although Kairoff told defendant he had no obligation to say anything, defendant chose to tell Kairoff he had a $125 a day heroin habit and that he had made arrangements to enroll in a drug rehabilitation program the next day. Defendant told Kairoff his wife was providing him with enough money to buy heroin during the 5-day waiting period prior to entry into the drug program. At the time, defendant was earning $1,400 per month and his wife's earnings totaled $320 per month.

At trial, the court ruled defendant's admissions of heroin addiction to Kairoff were not privileged, but were admissible to show motive to commit the robberies.

Before trial, the State moved to use prior convictions against defendant to prove identity. ER 404(b). This the trial court denied. Defendant's counsel then moved to exclude from evidence defendant's 1974 conviction of three counts of robbery for impeachment purposes. Counsel suggested defendant could instead be impeached with his 1971 forgery conviction or 1980 theft conviction, or that the 1974 convictions could be used without specifying their nature. This motion was also denied and the court ruled all prior convictions could be used for purposes of impeachment.

At trial, defendant attempted to introduce the testimony of Robert Boruchowitz, Director of the Public Defender's Office for King County. During an offer of proof, Boruchowitz testified he routinely attends lineups to advise suspects and interview witnesses and make written records of the relative certainty of witnesses' identifications. His notes for October 21, 1981 indicated some of the State witnesses' identifications of defendant in the lineup had been tentative. When questioned, however, Boruchowitz was unable to state the exact source of his information. This testimony was ruled inadmissible.

Defendant did not testify at trial. He was convicted of all three robberies. In his motion for a new trial, defendant submitted an affidavit which states he did not testify because of the danger of unfair prejudice he feared would result from cross examination regarding prior convictions. Additionally, he was concerned "the evidence of his heroin use created an issue which was not relevant to the charges against him and which unfairly influenced the jury to convict him." If allowed to testify, defendant would have alleged he began using heroin approximately 3 weeks before his arrest, his drug use had initially cost only $20 per day, he occasionally obtained heroin by selling drugs to others and he had used a $600 settlement for collision damage to his car to buy heroin. This testimony would support defendant's claim that the funds used to purchase heroin were from sources other than the proceeds of the robberies. The motion for new trial was denied.

Subsequently, defendant was charged with being a habitual criminal. Four prior convictions were alleged: (1) 1971 conviction for first degree forgery; (2) 1972 federal conviction for possession with intent to distribute heroin; (3) 1974 conviction for 3 counts of robbery; and (4) 1980 conviction for possession of stolen property in the second degree. Counsel for the defendant challenged the 1980 conviction which was then on appeal and argued the other three convictions could not be used because they were based on constitutionally invalid guilty pleas. The court initially granted the motion to dismiss the habitual criminal proceeding, finding the 1980 conviction could not be used because it was on appeal and the 1974 convictions to be based on constitutionally infirm guilty pleas.

A subsequent motion by the State for reconsideration was granted, the court stating it had "granted the motion to dismiss on the mistaken interpretation of fact that there were only four convictions before the Court whereas there apparently were five, the instant one and four previous." Moreover, in the previous hearing, the court had not ruled on the 1971 and 1972 convictions. The court went on to find the 1971 and 1972 convictions constitutionally valid and defendant guilty of being a habitual criminal.

Thereafter, defendant was given notice of a probation revocation hearing based on his robbery convictions in 1982 and his habitual criminal status. In June 1982 an order was entered revoking defendant's probation on his 1980 conviction for possession of stolen property. During oral argument, the parties agreed this decision was based solely upon defendant's convictions of robbery and of being a habitual criminal and not his addiction to heroin.

The Court of Appeals affirmed all lower court proceedings, State v. LeFever, 35 Wash.App. 729, 669 P.2d 1251 (1983). We granted defendant's petition for review.

I

Defendant argues it was error to admit evidence of his heroin addiction as proof of motive for the robberies. He believes this evidence was impermissible under ER 404(a) as it was used to show his character "for the purpose of proving that he acted in conformity therewith ..." Additionally, defendant contends any probative value of this evidence was substantially outweighed by the danger of undue prejudice. ER 403. The State argues the heroin addiction evidence was significant to show defendant's financial need to support his habit which was relevant to explain his motive and therefore admissible under ER 404(b). Moreover, the State asserts the trial court carefully balanced the probative as opposed to the prejudicial effect of the evidence and thereafter properly admitted the evidence.

The admissibility of evidence of an illegal drug addiction to prove motive is governed by ER 404(b).

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive ...

This rule must not be read in a vacuum but in conjunction with ER 401 through 403. State v. Saltarelli, 98 Wash.2d 358, 361-62, 655 P.2d 697 (1982). Thus, motive evidence is admissible only if it is relevant, making the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ER 401, 402. If relevant, then the probative value of the evidence must be balanced against its prejudicial effect. ER 403. Regardless of whether the evidence is relevant or probative, in no case may evidence be admitted to prove the character of the accused in order to show that he acted in conformity therewith. ER 404(b); State v. Saltarelli, supra at 362, 655 P.2d 697.

The Court of Appeals found defendant's addiction was highly probative of motive--there was conclusive evidence of a costly habit, he did not have sufficient legitimate income to finance his addiction, and the physical and mental suffering associated with heroin addiction provided a compelling impetus to resort to illegal means. 35 Wn.App. at 733, 655 P.2d 697. Although noting evidence of drug use may have some prejudicial effect, the Court of Appeals ruled the trial court cautiously treated any prejudicial effects and did not abuse its discretion in admitting evidence.

Other courts faced with this issue have split over the admissibility of evidence of a defendant's drug addiction. Annot., Admissibility of Evidence of Accused's Drug Addiction or Use to Show Motive for Theft of Property Other Than Drugs, 2 A.L.R.4th 1298 (1980). The two cases most factually similar to this appeal are People v. Cardenas, 31 Cal.3d 897, 647 P.2d 569, 184 Cal.Rptr. 165 (1982) and Gould v. State, 579 P.2d 535 (Alaska 1978). Those cases and this appeal both involve convictions based upon inconsistent eyewitness testimony.

In Cardenas, defendant was convicted of attempted murder and robbery and assault with a deadly weapon. The prosecution's case, however, was not overwhelming. 31 Cal.3d at 907, 647 P.2d 569, 184 Cal.Rptr. 165. First, the witnesses' estimates of the assailant's height (5 feet 7 inches to 5 feet 9 inches) did not approximate the height listed for defendant when booked (5 feet 2 inches). Second, two witnesses indicated he was clean shaven, while a third thought he wore a moustache and beard. Third, not a single witness was able to identify the defendant consistently in mug shots and a pretrial lineup. 31 Cal.3d at 908, 647 P.2d 569, 184 Cal.Rptr. 165. The court was bothered by the closeness of the case and the fact defendant's heroin addiction was mentioned eight separate times. 31 Cal.3d at 909, 647 P.2d 569, 184 Cal.Rptr. 165. In reversing the conviction the court recognized:

The impact of narcotics addiction evidence "upon a jury of laymen [is] catastrophic.... It cannot be doubted that the public generally is influenced with the seriousness of the narcotics problem ... and has been taught to loathe those who have anything to do with illegal narcotics ..."

31 Cal.3d at 907, 647...