State v. Rivers, No. 63412-2

CourtUnited States State Supreme Court of Washington
Writing for the CourtGUY; DURHAM; MADSEN; JOHNSON; SANDERS
Citation129 Wn.2d 697,921 P.2d 495
PartiesThe STATE of Washington, Respondent, v. Paul RIVERS, Appellant.
Decision Date24 October 1996
Docket NumberNo. 63412-2

Page 697

129 Wn.2d 697
921 P.2d 495
The STATE of Washington, Respondent,
v.
Paul RIVERS, Appellant.
No. 63412-2.
Supreme Court of Washington,
En Banc.
Argued Jan. 16, 1996.
Decided Aug. 8, 1996.
Reconsideration Denied Oct. 24, 1996.

[921 P.2d 496]

Page 700

Washington Appellate Project, Richard Tassano, Seattle, for appellant.

Norm Maleng, King County Prosecutor, Robin Fox, Deputy, Seattle, for respondent.

Page 701

GUY, Justice.

Defendant Paul Rivers challenges both his underlying conviction for second degree robbery and the constitutionality of the Persistent Offender Accountability Act, the statute under which he was sentenced to life imprisonment without possibility of parole. We affirm the conviction and the sentence.

Facts

On December 20, 1993, less than three weeks after Washington's Persistent Offender Accountability Act went into effect, Defendant[921 P.2d 497] Paul Rivers was arrested for the robbery of an espresso bar employee in the University District of Seattle.

The victim of the robbery, Josef Slobodzian, testified that in December 1993, he worked at a walk-up espresso bar in Seattle's University District. On the evening of December 20, 1993, Mr. Slobodzian closed the espresso bar about 9 p.m. He counted the cash and put it and a bank deposit slip into a bank bag. Mr. Slobodzian set the bank bag on the outside counter of the espresso bar while he brought the tables and chairs inside. He testified that he saw a man wearing a tan trench coat walk by and that he looked out to make sure the bank bag was still on the counter.

Mr. Slobodzian then took the bank bag, containing approximately $340, and began walking toward the bank. While he was stopped for a traffic light at an intersection, the man in the tan trench coat approached him, chatted for a moment and then said, "I have a gun, give me the bank bag." The two men struggled over the bag for a short time before the robber grabbed the bag and ran. Mr. Slobodzian chased the robber until he turned into an alley where the robber then turned and said, "I'll blow your head off. It is not worth your life." The man had his hand in his left pocket and was pointing something at him that Mr. Slobodzian believed to be a gun. Mr. Slobodzian abandoned his chase and called the police.

Page 702

A description of the robber was broadcast over the police radio and was heard by two officers who had talked with Defendant Rivers and his girlfriend earlier that day about a different matter. The officers stated that at the time of the earlier contact Defendant Rivers had been wearing a tan trench coat and that he otherwise matched the description of the robber. The officers drove near the house where the Defendant had been staying. They saw the Defendant's girlfriend walk across the alley, put something into a garbage can and walk quickly back to the house. The officers retrieved the espresso bar's bank bag from the garbage can. The bag had been slit open and contained no cash but still contained the deposit slip.

The officers then went to the Defendant's house where they found Defendant Rivers hiding underneath a mattress in a bedroom. The Defendant and the bank bag were separately brought outside to where Mr. Slobodzian was located. Both the bag and the Defendant were identified at that time by Mr. Slobodzian.

Defendant Rivers was arrested. He had $254.31 in cash on his person. The Defendant first told a police officer that his girlfriend had given him the money and that he did not know where she got it. He later claimed the money came from a check that he had cashed. At trial the Defendant testified that he took the money from the espresso bar when Mr. Slobodzian was not looking. No gun was found.

He was charged on December 23, 1993, with robbery in the second degree. On February 7, 1994, the State filed a "Notice of Intent to File Persistent Offender Allegation."

Defendant Rivers was the only witness to testify for the defense about the circumstances of the robbery. He testified that he had been staying with a friend in the house where he was arrested, across the street from the espresso bar. He said his friend went to the espresso bar frequently and that he himself had gone there and had talked with Mr. Slobodzian more than once. He testified that he had heard from a friend that Mr. Slobodzian wanted some

Page 703

marijuana and that he attempted to sell marijuana to Mr. Slobodzian. He testified that Mr. Slobodzian told him that he was short on money but could pay him in a couple of days. The Defendant said he believed Mr. Slobodzian owned the espresso shop, so he sold Mr. Slobodzian marijuana on credit. He testified that he asked Mr. Slobodzian for the money due, but Mr. Slobodzian kept putting him off.

Defendant Rivers testified that he went to the espresso bar on the evening of December 20, 1993, and that Mr. Slobodzian again told him that he did not have the money that was owed to the Defendant. The Defendant said he had seen Mr. Slobodzian place the money sack on the counter right by the door and when Mr. Slobodzian had his back turned, the Defendant took the bank bag, put it [921 P.2d 498] under his coat, and said goodbye. About 20 minutes later, the police came to his home and arrested him.

At trial the State was permitted to use three prior felony convictions in its attempt to impeach the Defendant's testimony. The State also was allowed to question the Defendant about a statement made by his lawyer during opening statements. Further, the State was permitted to ask one of its witnesses, a police officer, whether the person shown in exhibit 6, a booking photograph dated December 21, 1993, was the Defendant. These three actions are challenged on appeal.

The jury returned a verdict of guilty on the robbery charge.

A second jury found Defendant Rivers to have three convictions of "most serious offenses." This finding is not challenged on appeal. The trial judge then sentenced the Defendant to life imprisonment without possibility of parole, under the terms of the Persistent Offender Accountability Act. Laws of 1994, ch. 1 (Initiative 593, approved November 2, 1993), amending the Sentencing Reform Act of 1981, RCW 9.94A.

Defendant Rivers appealed his conviction and his sentence. We ordered this case transferred to this court

Page 704

for argument and set it as a companion case with State v. Manussier, 129 Wash.2d 652, 921 P.2d 473 (1996), and State v. Thorne, 129 Wash.2d 736, 921 P.2d 514 (1996).

Issues

1. Did the trial court err in permitting the State to use a prior assault conviction to impeach the credibility of the Defendant?

2. Did the trial court err in permitting the State to cross examine the Defendant on statements made by defense counsel during opening statement?

3. Did the trial court err in admitting a photograph taken of the Defendant at the time he was arrested on the predicate crime?

4. Did application of the Persistent Offender Accountability Act in this case violate the federal and state constitutional rights of the Defendant?

Decision

Prior Convictions. The trial court permitted the use of three prior convictions in the State's attempt to impeach Defendant Rivers' testimony. The Defendant's prior convictions were a 1985 conviction for attempted robbery in the second degree, a 1987 conviction for robbery in the second degree, and a 1990 conviction for second degree assault. Because of the closeness in nature to the predicate charge, the trial court ruled that the State could offer the prior convictions only as unnamed felonies. 1

Evidence of prior convictions may be admissible for the purpose of attacking the credibility of a witness, including a defendant in a criminal case, under ER 609. Rulings made under ER 609 are reviewed under an abuse

Page 705

of discretion standard. State v. King, 75 Wash.App. 899, 910 n. 5, 878 P.2d 466 (1994), review denied, 125 Wash.2d 1021, 890 P.2d 463 (1995).

ER 609(a) states:

For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.

Two of Defendant Rivers' prior crimes, robbery and attempted robbery, involved dishonesty and therefore were per se admissible for impeachment purposes under ER 609(a)(2). State v. Ray, 116 Wash.2d [921 P.2d 499] 531, 545, 806 P.2d 1220 (1991) (crimes of theft involve dishonesty and are per se admissible); State v. Schroeder, 67 Wash.App. 110, 115, 834 P.2d 105 (1992).

It is only the admission of the 1990 conviction for assault that is claimed to have constituted error in this case. Defendant Rivers claims the trial court abused its discretion in failing to consider, on the record, the factors which favored admission or exclusion of the prior conviction.

In State v. Alexis, 95 Wash.2d 15, 19, 621 P.2d 1269 (1980) this court held that a trial court exercising its discretion under ER 609(a)(1) must not only weigh the prejudicial effect of the prior conviction against the probative value of the evidence but must additionally consider and weigh the following factors:

(1) the length of the defendant's criminal record; (2) remoteness of the prior conviction; (3) nature of the prior crime; (4) the age and circumstances of the defendant; (5) centrality of the credibility issue; and (6) the impeachment value of the prior crime.

Page 706

In exercising its discretion, the trial court is required to follow the balancing procedure in a meaningful way. Further, the trial court must articulate, for...

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187 practice notes
  • State v. Stenson, No. 61965-4
    • United States
    • United States State Supreme Court of Washington
    • July 24, 1997
    ...discretion in balancing the probative value of evidence against its potentially prejudicial impact. State v. Rivers, 129 Wash.2d 697, 710, 921 P.2d 495 (1996). Evidence of a defendant's motive is relevant in a homicide prosecution. E.g., State v. Osborne, 18 Wash.App. 318, 325, 569 P.2d 117......
  • State v. Moretti, No. 95263-9
    • United States
    • United States State Supreme Court of Washington
    • August 15, 2019
    ...126 (2008) (plurality opinion); State v. Manussier, 129 Wash.2d 652, 667, 921 P.2d 473 (1996) ; State v. Rivers , 129 Wash.2d 697, 715, 921 P.2d 495 (1996) ; Thorne, 129 Wash.2d at 772-73, 921 P.2d 514 ; see also State v. Davis, 133 Wash.2d 187, 190, 943 P.2d 283 (1997) (agreeing that the o......
  • State v. Bassett, No. 47251-1-II
    • United States
    • Court of Appeals of Washington
    • April 25, 2017
    ...same jurisdiction.’ " State v. Witherspoon , 180 Wash.2d 875, 887, 329 P.3d 888 (2014) (quoting State v. Rivers , 129 Wash.2d 697, 713, 921 P.2d 495 (1996) ).3. ADOPTING THE CATEGORICAL ANALYSIS ¶36 As in Iowa, Washington has recognized the two general classifications of cruel and unusual s......
  • State v. Bassett, No. 94556-0
    • United States
    • United States State Supreme Court of Washington
    • October 18, 2018
    ...875, 887, 329 P.3d 888 (2014) ; State v. Manussier, 129 Wash.2d 652, 674, 921 P.2d 473 (1996) ; State v. Rivers, 129 Wash.2d 697, 712, 921 P.2d 495 (1996) ; State v. Thorne, 129 Wash.2d 736, 772-73, 921 P.2d 514 (1996), abrogated on other grounds by Blakely v. Washington, 542 U.S. 296, 124 ......
  • Request a trial to view additional results
186 cases
  • State v. Stenson, No. 61965-4
    • United States
    • United States State Supreme Court of Washington
    • July 24, 1997
    ...discretion in balancing the probative value of evidence against its potentially prejudicial impact. State v. Rivers, 129 Wash.2d 697, 710, 921 P.2d 495 (1996). Evidence of a defendant's motive is relevant in a homicide prosecution. E.g., State v. Osborne, 18 Wash.App. 318, 325, 569 P.2d 117......
  • State v. Moretti, No. 95263-9
    • United States
    • United States State Supreme Court of Washington
    • August 15, 2019
    ...126 (2008) (plurality opinion); State v. Manussier, 129 Wash.2d 652, 667, 921 P.2d 473 (1996) ; State v. Rivers , 129 Wash.2d 697, 715, 921 P.2d 495 (1996) ; Thorne, 129 Wash.2d at 772-73, 921 P.2d 514 ; see also State v. Davis, 133 Wash.2d 187, 190, 943 P.2d 283 (1997) (agreeing that the o......
  • State v. Bassett, No. 47251-1-II
    • United States
    • Court of Appeals of Washington
    • April 25, 2017
    ...same jurisdiction.’ " State v. Witherspoon , 180 Wash.2d 875, 887, 329 P.3d 888 (2014) (quoting State v. Rivers , 129 Wash.2d 697, 713, 921 P.2d 495 (1996) ).3. ADOPTING THE CATEGORICAL ANALYSIS ¶36 As in Iowa, Washington has recognized the two general classifications of cruel and unusual s......
  • State v. Bassett, No. 94556-0
    • United States
    • United States State Supreme Court of Washington
    • October 18, 2018
    ...875, 887, 329 P.3d 888 (2014) ; State v. Manussier, 129 Wash.2d 652, 674, 921 P.2d 473 (1996) ; State v. Rivers, 129 Wash.2d 697, 712, 921 P.2d 495 (1996) ; State v. Thorne, 129 Wash.2d 736, 772-73, 921 P.2d 514 (1996), abrogated on other grounds by Blakely v. Washington, 542 U.S. 296, 124 ......
  • Request a trial to view additional results
1 books & journal articles
  • Cruel and Unusual Non-Capital Punishments
    • United States
    • American Criminal Law Review Nbr. 58-4, October 2021
    • October 1, 2021
    ...v. Thompson, 143 P.3d 321, 326 (Wash. Ct. App. 2006); State v. Magers, 189 P.3d 126, 136 (Wash. 2008) (en banc); State v. Rivers, 921 P.2d 495, 503 (Wash. 1996) (en banc); State v. Thorne, 921 P.2d 514, 533 (Wash. 1996) (en banc); State v. Manussier, 921 P.2d 473, 489 (Wash. 1996) (en banc)......

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