State v. McBride, 32318–8–III.
| Citation | 370 P.3d 982,192 Wash.App. 859 |
| Decision Date | 08 March 2016 |
| Docket Number | No. 32318–8–III.,32318–8–III. |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. William Patrick McBRIDE, Appellant. |
David N. Gasch, Gasch Law Office, Laura Michelle Chuang, Of Counsel Nichols Law Firm PLLC, Spokane, WA, for Appellant.
Daniel F. Lebeau, Attorney at Law, Colfax, WA, for Respondent.
OPINION PUBLISHED IN PART
SIDDOWAY
, C.J.
¶ 1 Whitman County offered plea bargains to Kenneth Himes and Sheila Evans under which they would be charged with only two crimes for a rash of burglaries in which they were involved if they revealed the location of the stolen property. They were also required by their plea bargain to testify against the defendant, William McBride, whom they implicated in two of the crimes.
¶ 2 The trial against Mr. McBride pitted the credibility of the only defense witness— Mr. McBride's girlfriend, Amy Baird—against the credibility of Mr. Himes and Ms. Evans. Mr. McBride contends on appeal that the trial court abused its discretion in allowing the State to impeach Ms. Baird with evidence about a prior conviction exceeding what is permitted by ER 609(a)
, and that he was prejudiced by prosecutorial vouching for State witnesses through testimony and argument, and by the prosecutor's explicit statement, in closing argument, that Ms. Baird had lied. Insofar as his own lawyer should have objected to the misconduct and sought curative action by the court, Mr. McBride alleges ineffective assistance of counsel.
¶ 3 In the published portion of this opinion, we hold that ER 608(b)
permits impeachment only by specific acts that have not resulted in conviction, while impeachment by way of criminal conviction is treated exclusively under ER 609. The trial court abused its discretion in admitting more conviction evidence against Ms. Baird than is permitted under ER 609.
¶ 4 In the unpublished portion of this opinion, we hold that the State engaged in prosecutorial misconduct and that Mr. McBride received ineffective assistance of counsel. Given the central importance of credibility to the State's case, the errors, collectively, were not harmless. We reverse and remand for a new trial.1
FACTS AND PROCEDURAL BACKGROUND
¶ 5 In November and December 2013, the Whitman County Sheriff's Office received reports of a rash of burglaries in the northern part of the county. Among them were a report by Dominic Petrovich that two motorcycles were stolen out of his carport in Rosalia on the night of November 17 and a report by Fred Wagner in mid-December that his storage unit in Tekoa had been broken into and been "all but cleaned out." Report of Proceedings (RP) at 41. A yellow CanAm four-wheeler and a Kubota utility vehicle were also taken at around the same time from Arlo Huber's residence north of Tekoa.
¶ 6 Law enforcement initially had no leads as to who committed the burglaries, and believed they had reached a dead end. But when Deputy Michael Jordan had occasion in late December to speak to Amy Baird, who he was investigating in connection with an unrelated matter, he asked if she knew anything about the burglaries. Ms. Baird, the longtime girlfriend of William McBride, gave him the names of two individuals, Lance Garrett and Stan Lowley, whom she claimed to have heard were involved in different thefts in the Tekoa area.
¶ 7 Police officers investigated Mr. Lowley's property in Idaho, located just across the border from Tekoa, where Mr. Garrett was also living. While there, Deputy Jordan found two motorcycles, which he confirmed had the same vehicle identification numbers as those stolen from Mr. Petrovich. He also observed a yellow four-wheeler and a Kubota matching the description of the ones that had been taken from the residence of Mr. Huber. From their interview with Mr. Lowley and Mr. Garrett, the officers learned that Mr. Himes may have been involved in stealing the Kubota and the four-wheeler.
¶ 8 On December 28, Deputy Jordan arrested Mr. Himes in connection with the burglary of Mr. Huber. Although Mr. Himes initially refused to talk to police, the officers eventually offered to reduce the charges he would face from multiple burglaries to only two counts of second degree possession of stolen property if he agreed to give them a statement as to where the rest of the stolen property was located. Believing that Mr. Himes's girlfriend Sheila Evans was involved, the State offered her a plea deal under which she would plead guilty to one count of burglary in the second degree and pay restitution. Both Mr. Himes and Ms. Evans had implicated Mr. McBride and were required to testify truthfully on that score at trial. Both agreed to the deals.
¶ 9 Deputy Jordan learned from his interview of Mr. Himes that Mr. Himes was central to most of the recent burglaries, if not the ringleader. Mr. Himes and Ms. Evans told police that they, along with Mr. McBride, had broken into Mr. Wagner's storage unit. Mr. Himes also told police that he had stolen Mr. Petrovich's motorcycles from Rosalia on December 18, with some help from Mr. McBride and another individual named Donnie Rower. Mr. Himes said he stole the smaller motorcycle by himself before going back to his place in Oakesdale in order to have Mr. McBride and Mr. Rower help him load the larger motorcycle into a trailer.
¶ 10 Mr. McBride was charged with second degree burglary based on his alleged involvement in the Tekoa storage unit theft. He was charged with theft of a motor vehicle, as either an accomplice or a principal, based on his alleged participation in stealing Mr. Petrovich's larger motorcycle.
¶ 11 At trial, the State's principal witnesses were Mr. Himes and Ms. Evans. Although Mr. McBride did not testify at trial, Ms. Baird testified for the defense. We reserve most of our discussion of the evidence and argument at trial to the unpublished portion of this opinion, where it is relevant to the State's argument that any error was harmless.
¶ 12 Relevant to the ER 608/609 issue, the State cross-examined Ms. Baird at trial about an occasion in 2013 when Mr. McBride lied to police about his name and Ms. Baird had gone along with the misrepresentation, resulting in her conviction for making a false statement to a police officer.2 The prosecutor inquired about the facts underlying the charge rather than the conviction itself. A defense objection that questioning about details of the crime exceeded what was permitted by ER 609
was overruled. The prosecutor's continued questioning revealed not only the details of Ms. Baird's deceptive conduct on that occasion, but Mr. McBride's as well.
¶ 13 The jury found Mr. McBride guilty as charged. He was sentenced to 68 months in connection with the burglary and 43 months for the motor vehicle theft. He appeals.
ANALYSIS
¶ 14 Mr. McBride first claims that the trial court abused its discretion by allowing the prosecutor to elicit details from Ms. Baird about a prior misdemeanor conviction for making a false statement to a police officer in 2013. According to Mr. McBride, the line of questioning exceeded the permissible scope of ER 609(a)
. The State now argues that it was offering the evidence under ER 608(b). We begin with the trial record and then turn to evidence that may be admitted under the two rules.
¶ 15 On cross-examination, the prosecutor asked Ms. Baird if she "only ever tell[s] the truth," to which she responded, "I do my level best." RP at 234. He then asked her whether she tells the truth to law enforcement, and if she would ever lie for Mr. McBride. After Ms. Baird responded that she would never lie for Mr. McBride when it comes to stealing, the prosecutor asked her if she would "lie about his name." Id. Ms. Baird acknowledged that she would, and that she had in fact done so:
RP at 234–35. Defense counsel objected to the prosecutor's line of questioning on the grounds that it went beyond what is permitted by ER 609
. The court excused the jury, and outside the presence of the jury, Mr. McBride's lawyer argued, "I think what [the prosecutor] would like to do is go down all of the specifics—but I think the evidence rule contemplates just the fact of the conviction." RP at 235.
¶ 16 The prosecutor argued the State should be able to question Ms. Baird regarding the details surrounding the conviction because it was not impeaching her with it and "she's obviously testifying to [it] freely and remembers it well." RP at 236. He did not say that he was offering the evidence under ER 608(b)
or identify a rule other than ER 609 on which he relied. The court overruled the objection, noting that it RP at 237.
¶ 17 The jury returned, and the prosecutor resumed questioning Ms. Baird about the circumstances of her offense:
To continue reading
Request your trial
- State v. McDonald
-
State v. Mortensen
... ... federal rule, we can look to federal cases as persuasive ... authority. State v. McBride, 192 Wn.App. 859, 870, ... 370 P.3d 982 (2016) ... The ... Ninth Circuit addressed this issue in United States v ... ...
- State v. Mortensen