State v. Ruzicka

• Decision Date: 03 November 1977
• Docket Number: No. 44738,44738
• Citation: 89 Wn.2d 217,570 P.2d 1208
• Parties: STATE of Washington, Respondent, v. James Edward RUZICKA, Appellant.
• Court: Washington Supreme Court

Page 217

89 Wn.2d 217

570 P.2d 1208

STATE of Washington, Respondent, v. James Edward RUZICKA, Appellant.

No. 44738.

Supreme Court of Washington, En Banc.

Nov. 3, 1977.

King, King & Davidson, Robert T. Czeisler, Kirkland, for appellant.

Christopher T. Bayley, Pros. Atty., Ronald H. Clark, Deputy Pros. Atty., Jonathan Noll, Deputy Pros. Atty., Seattle, for respondent.

HAMILTON, Associate Justice.

Defendant (appellant) was convicted by a jury of two counts of first-degree murder. The only issues on appeal concern the interpretation and constitutionality of RCW 10.52.030, which allows the parties in a criminal trial to impeach any witness, including the defendant if he should take the stand, by introducing the witness' prior convictions. ¹

Prior to his trial, defendant made a motion in limine requesting the court to prohibit the prosecutor from cross-examining the defendant regarding his prior convictions. At the hearing on the motion, defendant's counsel argued that RCW 10.52.030 gives the court discretion to exclude evidence of a defendant's prior convictions if the court determines the possible prejudicial effect upon a jury in admitting these prior convictions outweighs their probative value regarding the defendant's credibility. Defendant's counsel argued that in the present case the possible prejudicial effects of defendant Ruzicka's prior convictions upon the jury required the court to exclude introduction of these convictions by the prosecutor. ² When asked to comment on State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971), a case in which the Hawaii Supreme Court found a similar statute unconstitutional as imposing a penalty on a defendant's right to testify, defendant's counsel stated that Santiago was a far-reaching decision, but the trial court did not need to go that far in excluding evidence of the defendant's prior convictions in the present case. Defense counsel limited his argument to the issue of whether the trial court had discretion under RCW 10.52.030 to admit or exclude prior convictions. The court ruled it lacked discretion and denied defendant's motion.

At trial, defendant called two witnesses but did not take the stand himself. No offer of proof was made regarding what the defendant's testimony would have covered if he had taken the stand. As stated earlier, the defendant was convicted of two counts of first-degree murder.

Defendant makes two contentions on appeal which he asserts are grounds for granting him a new trial. First, he contends we should interpret RCW 10.52.030 as giving the trial court discretion to exclude evidence of a defendant's prior convictions when the trial court concludes the possible prejudicial effect upon the jury in admitting these prior convictions outweighs their probative value regarding the defendant's credibility. Second, he contends that if we find RCW 10.52.030 does not give the trial court such discretion, then RCW 10.52.030 is unconstitutional because it denies a criminal defendant due process and equal protection of the laws, deprives the defendant of an impartial jury, and abridges a defendant's right to testify on his own behalf.

Before reaching these primary issues, we deem it necessary to discuss two procedural matters. First, we are concerned that defendant did not present the constitutional arguments to the trial court for its consideration. Generally, a question raised for the first time on appeal will not be considered. However, because the constitutional issues raised here present a question of whether the defendant's constitutional rights guaranteeing him a fair trial (which include all of the constitutional issues raised by defendant) were violated by the trial court's ruling that it lacked discretion, we find the constitutional arguments raised by defendant to be properly before us. See State v. Peterson, 73 Wash.2d 303, 438 P.2d 183 (1968); State v. Luoma, 14 Wash.App. 705, 544 P.2d 770 (1976), rev'd on other grounds, 88 Wash.2d 28, 558 P.2d 756 (1977); RAP 2.5(a).

The second matter with which we are concerned is whether the record is sufficient for a finding that defendant was prejudiced by the trial court's denial of his motion in limine. The record does not disclose whether the defendant failed to take the stand because he did not wish to have his prior convictions revealed to the jury or because of some other reason, e. g., he may not have desired to subject himself to the cross-examination of the prosecuting attorney regarding his involvement in the crimes for which he was convicted. We do note that defense counsel did ask for a ruling on his motion in limine prior to trial for the purpose of advising his client whether or not to testify, but the record does not reflect that defendant's counsel advised defendant not to take the stand solely on the basis of the trial court's ruling, nor does the record show that the defendant's failure to take the stand directly resulted from the trial court's denial of his motion. However, because of our disposition of this appeal, we do not believe this failure to fully preserve the issue is fatal. For the purposes of this appeal though, we will make certain assumptions. We will assume that if the defendant had testified, the prosecutor would have cross-examined him regarding his prior convictions for impeachment purposes only, and the trial court would have given instructions to the jury charging it to consider the defendant's prior convictions on the issue of the defendant's credibility only.

Defendant first argues that RCW 10.52.030 vests the trial court with discretion to exclude evidence of his prior convictions because that statute states that a witness' "conviction may be proved for the purpose of affecting the weight of his testimony . . . " (Italics ours.) By using the word "may", defendant argues, the legislature intended to confer discretion on the trial court to exclude evidence of a defendant's prior convictions if the trial court finds the possible prejudicial effects upon the jury in admitting the defendant's prior convictions outweigh their probative value in testing the defendant's credibility.

Our prior interpretations of RCW 10.52.030 have not found it to confer such discretion on the trial court. In State v. Bezemer, 169 Wash. 559, 14 P.2d 460 (1932), the prosecutor cross-examined the defendant regarding the defendant's prior conviction for kidnapping. The kidnapping conviction had occurred some 22 years prior to the defendant's testimony. On appeal, the defendant challenged the prosecutor's use of this prior conviction on the grounds it was too remote in point of time to aid the jury in determining the defendant's credibility. We pointed out that RCW 10.52.030 (then Rem. Comp. Stat., § 2290) contained no restriction as to the remoteness of the conviction sought to be used to impeach the defendant and held such cross-examination permissible. In State v. Smithers, 67 Wash.2d 666, 409 P.2d 463 (1965), the prosecutor cross-examined the defendant regarding his prior convictions for crimes similar to the ones for which he was standing trial. On appeal, defendant argued that the trial court erred in permitting the state to question him regarding the nature of these crimes, since this testimony unduly prejudiced him in the eyes of the jury. In affirming the trial court, we noted that RCW 10.52.030 does not distinguish between what convictions may and may not be proved. We held that a witness' credibility can be impeached by proof of a prior conviction, even when that prior conviction was for a crime similar to the one for which the witness was standing trial. It has been consistently held that RCW 10.52.030 does not contain any exceptions. State v. Robinson, 75 Wash.2d 230, 450 P.2d 180 (1969); accord, State v. Bergen, 13 Wash.App. 974, 538 P.2d 533 (1975); State v. Johnson, 1 Wash.App. 553, 463 P.2d 205 (1969).

Other courts have followed defendant's argument and have interpreted similar statutes as giving the trial court discretion to exclude evidence of a defendant's prior conviction. See, e. g., Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965); State v. Martin, 217 N.W.2d 536 (Iowa 1974); People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). The interpretation of the federal court of appeals in Luck is fairly indicative of the reasons given by these courts for adopting an interpretation giving the trial court discretion.

Section 305 is not written in mandatory terms. 6 It says, in effect, that the conviction "may," as opposed to "shall," be admitted; and we think the choice of words in this instance is significant. The trial court is not required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense. The statute, in our view, leaves room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case.

Luck v. United States, supra, 121 U.S.App.D.C. at 156, 348 F.2d at 767-68. We do not agree with such an interpretation.

In our view the legislature's use of the word "may" in RCW 10.52.030 confers discretion on the parties whether to cross-examine a witness regarding that witness' prior convictions. In this respect we adopt the reasoning of the New Jersey Supreme Court in interpreting its statute ³ in State v. Hawthorne, 49 N.J. 130, 134-35, 228 A.2d 682, 684 (1967):

In our judgment both the history of the statute and the context in which the word "may" appears refute the idea that the Legislature intended to invest the courts with discretion to admit or exclude evidence of a defendant's previous convictions of crime. It must be remembered that in earlier days Hawthorne's convictions would have disqualified him as a witness. Then the Legislature decided total disqualification was too harsh a sanction to add to the punishment prescribed and imposed upon the convict for his crime. In furtherance of that decision it directed that the convicted person...