State v. Russell

• Decision Date: 19 January 2001
• Docket Number: No. 23560-9-II.,23560-9-II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Roy Wayne RUSSELL, Jr., Appellant.

16 P.3d 664

104 Wash.App. 422

STATE of Washington, Respondent, v. Roy Wayne RUSSELL, Jr., Appellant.

No. 23560-9-II.

Court of Appeals of Washington, Division 2.

January 19, 2001.

Suzan L. Clark (Court Appointed), Vancouver, for Appellant.

Michael C. Kinnie, Clark County Deputy Pros. Atty., for Respondent.

MORGAN, J.

Roy Russell appeals a conviction for first degree arson and a sentence of life without the possibility of parole. Attacking his conviction, he claims that he was impeached with certain prior convictions in violation of ER 609(b). Attacking his sentence, he claims that he was improperly classified as a persistent offender. For the reasons that follow, we affirm the conviction, vacate the sentence, and remand for resentencing.

Roy Russell dated Elizabeth Alsteen from 1993 to 1997. He lived at her apartment off and on, but was not living there at the time of the events giving rise to this case. Alsteen's neighbors included Shane Core and Shirley Twombly.

On July 1, 1997, Russell was visiting at Alsteen's apartment. He became upset because Core had assembled a bed for her. She called the police and asked Russell not to contact her again.

Between July 1 and July 8, Russell called Alsteen several times. He also drove his car in the vicinity of her apartment. She obtained a restraining order but did not have it served. She repeatedly asked the police to intercede.

During the evening of July 8, Alsteen and Core were at the Halftime Tavern, a neighborhood establishment perhaps six or seven minutes by car from their apartments. Russell came in, wearing a "dusty rose" long-sleeve shirt and tan pants. When Alsteen asked him to leave her alone, he grabbed her and said, "Why are you doing this to me? No matter where you are, I'm going to be watching you[.]"¹ Bouncers subdued him with pepper spray.

During this altercation, someone called 911. The call was received at 7:49 P.M., and officers arrived at the tavern at 7:54 P.M. Alsteen and Core were still there, but Russell had gone. Alsteen and Core remained at the tavern for another hour or so.

About 8:00 P.M., Twombly saw Russell go up the stairs to Alsteen's apartment. She had seen him four or five times before, and she recognized him as Alsteen's ex-boyfriend. He was wearing a "long-sleeved," "dark pinkish shirt and brown or tan slacks."² A minute or two later, she heard a loud "bang" and saw him leave. A minute or two after that, she saw smoke "billowing" from the apartment. She immediately called 911-the time was now 8:11 P.M.—and it immediately dispatched emergency personnel. Firefighters arrived to find the apartment's front door open and its interior in flames.

Officer McNicholas was the first police officer at the scene. He spoke with Twombly, who seemed excited and upset. She related that she had seen Alsteen's ex-boyfriend "go up the stairs, heard a bang noise, a crashing noise, saw the subject then come down the stairs shortly thereafter, and then she noticed smoke almost immediately[.]"³ She also described the boyfriend as wearing a "pinkish shirt ... and tan pants."⁴

Before 9:00 P.M., an associate of Russell's, Brad Anderson, saw Russell walking along the street near Russell's residence. He offered Russell a ride, and Russell got in. As they drove, Russell related that he "went to [Alsteen's] apartment and lit something on fire well, he ran up the stairs, kicked the door in, lit something on fire and left it on the couch."⁵ Anderson suggested that Russell turn himself in, and they drove to a police station.

On July 11, 1997, the State charged Russell with arson in the first degree. It also alleged that Russell was a persistent offender, and thus subject to a sentence of life without possibility of parole.⁶

On October 15, 1997, the State gave notice that if Russell testified as a witness at trial, it would seek to impeach him with three prior convictions. It listed those convictions as follows:

Robbery, a Class 4 Felony. Pima County, Arizona. Sentencing date 6/6/80 (offense date 5/22/79).

Theft, a Class 3 Felony. Pima County, Arizona. Sentencing date 11/5/82 (offense date 5/10/82).

Attempted Perjury, a Class 5 Felony. Pima County, Arizona. Sentencing date 9/27/84 (offense date 9/14/83).[⁷]

On March 16, 1998, the trial court heard argument on Russell's motion in limine to bar the State's proposed use of his convictions. The colloquy between court and prosecutor was as follows:

[PROSECUTOR]: The State anticipates that if the defendant were to testify, Your Honor, we would bring in certified copies of the prior convictions if he denies the convictions, or if he admits the convictions, I would just go with that.

COURT: And those convictions are?

....

[PROSECUTOR]: Specifically a robbery Class 4 felony from Pima County, Arizona. The sentencing date was 6-6 of 1980; offense date was 5-22 of 1979.

Originally started out as an armed robbery. Doesn't indicate what—just that indicated robbery, Class 4 felony, is the conviction.

Second one is a theft, which is a Class 3 felony out of Pima County, Arizona. The sentencing date was November 5 of 1982; the offense date was May 10th of 1982. They just indicate that it's a felony conviction for theft.

The third conviction that we would impeach with is attempted perjury, which is a Class 5 felony in Pima County, Arizona. Sentencing date was September 27 of 1984. The offense date was September 14th of 1983. "I served two years of prison for attempted perjury."

The other conviction deals with kidnapping. I would not anticipate getting into that[.]

....

COURT: Well, let me ask you, Mr. [Prosecutor]... are you indicating that you wish these admitted under 6.09 [sic]?

....

[PROSECUTOR]: For impeachment if he takes the stand, Your Honor, crimes of moral turpitude and dishonesty.

COURT: And the concern as relates to the ten years?

[PROSECUTOR]: That's why we filed the notice, Your Honor.

COURT: Kidnapping will not be allowed. Robbery, theft and perjury if the defendant takes the stand will in fact be allowed.[⁸]

Thus, the trial court admitted the offered convictions without balancing probative value against unfair prejudice.

On May 19, 1998, Russell asked the trial court to reconsider the admissibility of his prior convictions. He supported his request with a written memorandum that cited and discussed ER 609(b). The trial court declined to revisit the matter until trial.

On the first morning of trial, June 1, 1998, Russell again asked the trial court to reconsider the admissibility of his prior convictions. The trial court adhered to its earlier ruling.

During trial, the State's witnesses testified essentially as described above. Russell testified that he and Alsteen had lived together, but that they were not living together in early July 1997. He acknowledged that Shirley Twombly "lived in the apartment below" Alsteen's, and that for the year or so he had lived with Alsteen, he had seen Twombly "maybe once or twice a week when I'd get off work[.]"⁹ He said that around July 1, he became angry at Alsteen because of Core. After that, "[t]hings got outta hand[;]" "I kept interfering when I shouldn't have interfered[;]" and "9-1-1 has been called on me numerous times."¹⁰ During the late afternoon of July 8, he had "a few drinks, about three beers" at a bar called Bob's.¹¹ On his way home, he saw Alsteen's truck outside the Halftime. He went in, contacted her, and an altercation ensued. Bouncers took him outside and sprayed him with mace. He became angry and stated, "I am gonna get even with all of you."¹² Aware that the police had been called, he went to his business and took a shower, which lasted for "probably a good thirty minutes[.]"¹³ After dressing—in clothes different from those he had worn at the Halftime—he walked to a nearby bowling alley, but left again when he heard the police asking for him. He was walking back to his business when Anderson stopped and picked him up. He and Anderson agreed he should turn himself in for the altercation at the Halftime, but not for any arson. Indeed, he was unaware of any arson, and he never told Anderson that he had set fire to Alsteen's apartment. On cross-examination, he was impeached with the three convictions listed above. The jury convicted.

At sentencing, the State showed that Russell had a 1980 Arizona conviction for robbery and a 1982 conviction for kidnapping. It argued that the robbery was his first "strike"; the kidnapping his second; the current arson his third; and thus that he was subject to a sentence of life without possibility of parole under the Persistent Offender Accountability Act (commonly referred to as the "three strikes" law). Russell did not challenge the kidnapping, but he did challenge the robbery. Overruling his challenge, the trial court found he was a persistent offender and imposed a sentence of life without possibility of parole.

I.

Russell argues in his pro se brief that the trial court erred by not balancing probative value against unfair prejudice before it admitted, for impeachment purposes, his 1980 robbery conviction, his 1982 theft conviction, and his 1984 attempted perjury conviction. We consider (a) whether the trial court erred and (b) whether the error was harmless.

A.

ER 609 governs the impeachment use of convictions. It provides in part:

General Rule. 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.

Time Limit. Evidence of a

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