State v. Newton

• Decision Date: 01 October 1987
• Docket Number: No. 52520-0,52520-0
• Citation: 743 P.2d 254,109 Wn.2d 69
• Parties: The STATE of Washington, Respondent, v. Donald J. NEWTON, Petitioner.
• Court: Washington Supreme Court

Page 69

109 Wn.2d 69

743 P.2d 254

The STATE of Washington, Respondent, v. Donald J. NEWTON, Petitioner.

No. 52520-0.

Supreme Court of Washington,

En Banc.

Oct. 1, 1987.

Stewart A. Johnston, Dept. of Assigned Counsel, Tacoma, for petitioner.

William H. Griffies, Pierce County Prosecutor, Chris Quinn-Brintnall, Sr. Deputy County Prosecutor, Tacoma, for respondent.

UTTER, Justice.

Donald Newton appeals his convictions in a jury trial for forgery and second degree possession of stolen property. Over defendant's objection, the trial court explored the underlying facts of a prior conviction to determine whether it was admissible as a crime involving "dishonesty or false statement" under ER 609(a)(2). The trial court then permitted the admission, for impeachment purposes, of Newton's prior conviction for third degree theft. We reverse and remand for a new trial.

Reference to prior crimes for impeachment purposes in a criminal trial has extraordinary potential for misleading and confusing a jury into believing it is being told that defendant is a "bad" person and therefore guilty of the crime charged. Accordingly, we construe the rule narrowly. This danger is illustrated by a statement made by the prosecutor in this case. In his closing argument, the prosecutor made the following statement:

No, Donald Newton probably didn't do everything that you would have done if you had been in his situation. But that doesn't mean a whole lot, because none of you would ever have been in his situation. He's a criminal, and you're not. It says something very profound about the difference between you, the jury, and Donald Newton. People who get in this kind of trouble are different from other kinds of people. They behave differently. Their response to many situations is not identical to the response of a law-abiding citizen. That's why they end up being criminals.

(Italics ours.) Verbatim Report of Proceedings, at 375-76.

The trial court's inquiry into the facts of a prior conviction for purposes of determining whether it may be admitted for impeachment purposes under ER 609(A)(2) shall be limited to the elements and date of the prior conviction, the type of crime, and the punishment imposed. This holding is in keeping with our traditional insistence that juries undertake their truthfinding function based on information directly relevant to the case at bar. Our legal tradition has long recognized the fundamental unfairness of convicting defendants because of their "bad character," and has required the State to prove defendants guilty of the crime with which they have been charged. Our holding today affirms and underscores these important concerns.

An understanding of the facts of this case is particularly necessary to appreciate the central role that the jury's assessment of Newton's credibility played in his conviction. Donald Newton was a friend of Father Eugene Kellenbenz. On March 21, 1982, Newton checked into a motor lodge in Tacoma, and presented a credit card bearing the name "Eugene Kellenbenz" to the desk clerk. When he checked out on April 5, 1982, Newton signed Kellenbenz' name to the charge form. Thereafter, Newton traveled with another person in Kellenbenz' car to Minnesota.

Kellenbenz was reported missing on March 20, 1982. On April 12, Tacoma police found his body in his apartment. The pathologist who conducted the autopsy concluded that Kellenbenz had been dead for some time, and that the death had been accidental. By early May, investigation of Kellenbenz' death led the police to Newton, who was by that time in Minnesota. After his return to Tacoma, Newton told the police that Kellenbenz had allowed him to take over payments on the car in repayment of a loan, and had given Newton permission to use the credit card for room and board on his trip to Minnesota.

At the outset of Newton's trial for forgery and possession of stolen property in the second degree, the defense moved in limine to prohibit the State from offering evidence of a prior conviction for third degree theft. The State wished to offer the evidence to impeach Newton if he chose to testify. The court ruled the prior conviction involved dishonesty, and was therefore admissible for impeachment purposes under ER 609(a)(2). The defense renewed its motion later in the trial. The trial judge deferred final ruling pending examination of the court file under which the theft conviction was entered. The judge later informed the attorneys, outside the jury's presence, that Newton's statement on plea of guilty specified that the property taken was a credit card. At that point, the trial judge confirmed his earlier tentative overruling of petitioner's motion to exclude evidence of the prior conviction. Newton admitted, under cross examination, that he had previously been convicted of theft in the third degree. The jury was not made aware of any of the underlying details of that conviction.

In his testimony at trial, Newton admitted using the credit card and car, but insisted that Kellenbenz, as a personal friend, had given him permission to do so. Newton testified he had previously loaned Kellenbenz $1,650. Later, Newton needed to go to Minnesota for business and medical reasons, but had little money. Newton said that Kellenbenz could not repay the loan at that time, so he gave Newton his credit card to use for trip expenses and allowed him to drive his car. According to the State, Newton entered Kellenbenz' apartment, discovered his dead body, and removed his belongings, including the credit card. The State argued that Newton wished to acquire money and a new identity, and so absconded with Kellenbenz' credit card and car. At trial, the single major fact at issue was whether Newton had received permission from Father Kellenbenz to use his credit card, or whether the priest was already dead at the time Newton took the card and so could not have given his permission. The jury's assessment of Newton's credibility was absolutely essential to their verdict. At the close of the trial, the jury found Newton guilty on both counts.

The defense raised the issue of the admission of the prior conviction again in its motion for a new trial, relying on a then recent case, State v. Zibell, 32 Wash.App. 158, 646 P.2d 154, rev. denied, 97 Wash.2d 1039 (1982). In that case, Division One of the Court of Appeals, by a two to one majority, adopted a narrow definition of crimes involving "dishonesty or false statement" under ER 609(a)(2), and held that a conviction for third degree possession of stolen property is not such a crime. The trial court denied the motion and expressly rejected the reasoning in Zibell by adopting the rule of the dissenting opinion.

I

As noted by Justice Brachtenbach in his dissent in State v. Burton, 101 Wash.2d 1, 676 P.2d 975 (1984) ¹, there are basically two ways in which prior conviction evidence may unfairly prejudice a criminal defendant's right to a fair trial. 3 J. Weinstein & M. Berger, Evidence p 609, at 609-54 (1982). The jury may assume, first, that the person with a criminal record has a "bad" general character, and deserves to be sent to prison whether or not they in fact committed the crime in question. Second, the jury may perceive the prior convictions as proof of the defendant's criminal propensities, making it more likely the defendant committed the crime charged. Burton, at 18-19, 676 P.2d 975 (Brachtenbach, J., dissenting). Statistical studies show that, even with limiting instructions, juries are far more likely to convict defendants with criminal records than defendants without records. H. Kalven and H. Zeisel, The American Jury 161 (1966). State v. Lindsey, 27 Wash.2d 186, 177 P.2d 387, aff'd on rehearing, 27 Wash.2d 186, 181 P.2d 830 (1947). Commentators have criticized the assumption that juries are able to segregate the evidence according to its permissible uses. For example, jury test results cited in a study conducted by the University of Chicago disclosed that jurors have an

almost universal inability and/or unwillingness either to understand or follow the court's instruction on the use of defendant's prior criminal record for impeachment purposes. The jurors almost universally used defendant's record to conclude that he was a bad man and hence was more likely than not guilty of the crime for which he was then standing trial.

Note, Other Crimes Evidence at Trial: Of Balancing and Other Matters, 70 Yale L.J. 763, 777 (1961) (quoting from letter from Dale W. Broeder, Associate Professor, the University of Nebraska College of Law, who conducted intensive jury interviews, to Yale Law Journal, dated March 14, 1960, on file in the Yale Law Library.) These considerations often have a strong negative impact upon a defendant's decision to exercise the constitutional right to take the stand and testify in one's own defense. Note, To Take the Stand or Not To Take the Stand: The Dilemma of the Defendant With a Criminal Record, 4 Colum.J.L. & Soc.Probs. 215 (1968).

These are the same considerations underlying the propensity rule of ER 404(b), which prohibits the admission of other crimes, wrongs, or acts to prove the character of a person to show that he or she acted in conformity therewith. The defendant has the right, under ER 105, to have the judge instruct the jury that prior misconduct may not be used to show conformity. We observed, however, in a unanimous opinion following Burton, that "[i]t is difficult for the jury to erase the notion that a person who has once committed a crime is more likely to do so again." State v. Jones, 101 Wash.2d 113, 120, 677 P.2d 131 (1984). ²

As a practical matter, prosecutors are aware of the utility of such evidence in securing convictions, and the temptations to introduce such evidence in hope of achieving the prohibited prejudicial effect are undoubtedly great. Ladd,Credibility Tests--Current Trends, 89 U.Pa.L.Rev. 166, 190 (1941). At Newton's trial, the prosecutor appears to...