State v. Thompson

• Decision Date: 30 July 1981
• Docket Number: No. 46999-7,46999-7
• Citation: 632 P.2d 50,95 Wn.2d 888
• Parties: STATE of Washington, Respondent, v. Mack Harris THOMPSON, Appellant.
• Court: Washington Supreme Court

Page 888

95 Wn.2d 888

632 P.2d 50

STATE of Washington, Respondent, v. Mack Harris THOMPSON, Appellant.

No. 46999-7.

Supreme Court of Washington, En Banc.

July 30, 1981.

Mark Leemon, Seattle-King County Public Defender, Seattle, for appellant.

Norman K. Maleng, King County Prosecutor, William Downing, Deputy Pros. Atty., Seattle, for respondent.

DIMMICK, Justice.

Appellant, Mack Harris Thompson was convicted of assault in the second degree while armed with a firearm. He asks this Court to overturn the conviction and order a new trial on the grounds that the trial court erroneously ruled that defendant's prior convictions could be used for impeachment purposes, excluded evidence of the complaining witness' prior misdemeanor convictions, excluded a statement made by a witness who died before trial, and improperly instructed the jury on the deadly weapon charge. After thoroughly reviewing the record, we find that appellant's claims are without merit, and thus affirm the trial court.

The incident in question arose out of a dispute between appellant and Glorese Gatlin, the complaining witness, over custody of their child. Although neither parent had formally obtained a custody order, the child lived with his mother at the home of her parents, the Stewarts. On the date of the incident, Thompson and his girlfriend, Christie Mustin, went to the Stewart home to pick up the child. Apparently there was a fiery confrontation between all parties culminating with the shooting of Gatlin.

The testimony at trial was conflicting as to how Gatlin was shot. There was testimony that Thompson had brought the gun into the Stewart home, pointed it at Gatlin, warned her not to call the police, and then deliberately shot her. There was also evidence to the effect that Gatlin was shot accidently as Mr. Stewart and Thompson fought for control of Stewart's gun. One witness testified that Stewart and Thompson each had a gun. Mr. and Mrs. Stewart and Gatlin all changed their stories at various times and the three stories were not completely consistent with each other. Appellant declined to testify, as his motion in limine to exclude evidence of his prior convictions for manslaughter in 1972 and for a 1978 violation of the Uniform Controlled Substances Act (VUCSA) was denied. His theory of self-defense was introduced through the cross-examination of witnesses and the jury was instructed as to that defense.

The jury found Thompson guilty of second degree assault, and also found by special verdict that the underlying felony was committed with a deadly weapon which was a firearm. He was sentenced to a maximum of 10 years in prison.

Appellant contends that the trial court erred in denying his motion in limine to prohibit the use of his two prior convictions, as the prejudicial effect of this evidence outweighed any probative value the evidence might have had.

The application of the Washington Rules of Evidence 609(a) permits the use of prior convictions to attack a witness' credibility only if the crime

(1) Was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.

This recently adopted rule (1979) was patterned after the Federal Rules of Evidence 609, and is more restrictive than previous Washington law. State v. Alexis, 95 Wash.2d 15, 621 P.2d 1269 (1980). ER 609 distinguishes between acts of deceit, fraud, and cheating, which impinge on one's reputation for honesty, and other felonious acts of violence which may, in fact, "result from a short temper, a combative nature, extreme provocation, or other causes, ... (and) have little or no direct bearing on honesty and veracity." Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967). See also United States v. Smith, 551 F.2d 348, 362 (D.C.Cir.1976). The former acts may be introduced into evidence for the purpose of attacking the credibility of the witness, whereas evidence of the latter convictions may be introduced only after a determination by the court that the probative value of admitting the prior conviction, as it relates to the credibility of the witness, outweighs the possible prejudicial effect on the witness. ER 609(a). In exercising its discretion, the trial court must decide based on individualized considerations, and not on "abstract beliefs about the relation of prior convictions to credibility." United States v. Bailey, 426 F.2d 1236, 1239 n.10 (D.C.Cir.1970).

In determining whether the probative value of the evidence outweighs any prejudicial effect, the courts have considered several factors, foremost of which

is a comparison of the importance that the jury hear the defendant's account of events with the importance that it know of his prior conviction. Luck v. United States, 348 F.2d 763 (D.C.Cir.1965); Brown v. United States, 370 F.2d 242 (D.C.Cir.1966).

State v. Alexis, supra 95 Wash.2d at 19, 621 P.2d 1269.

Turning to the question at hand, appellant first contends that the admission of the VUCSA conviction should have been excluded because it is both highly prejudicial and of no probative value with respect to his credibility. Although the VUCSA conviction is a felony not directly related to truth and veracity, ER 609 clearly recognizes that these types of felonies may have probative value as to credibility, as demonstrated by the fact that a trial court has the authority to admit these convictions into evidence. See State v. Brouillette, 286 N.W.2d 702, 708 n.9 (Minn.1979). The Court of Appeals for the Second Circuit has upheld a trial court's decision permitting a conviction for drug trafficking to be introduced into evidence for impeachment purposes as it was probative of a lack of veracity. United States v. Ortiz, 553 F.2d 782 (2d Cir.1977). In so ruling, the Court of Appeals stated that:

(T)he District Judge in his discretion was entitled to recognize that a narcotics trafficker lives a life of secrecy and dissembling in the course of that activity, being prepared to say whatever is required by the demands of the moment, whether the truth or a lie.

Ortiz, at 784. Similarly, in the instant case the trial court judge was entitled to find that the VUCSA conviction was probative. The potential prejudicial effect of this evidence may be cured by a limiting instruction such as was given in this case for a witness. ¹ See State v. Summers, 73 Wash.2d 244, 246-47, 437 P.2d 907 (1968).

Appellant also challenges the correctness of admitting the 1972 voluntary manslaughter conviction. He contends that this conviction is inadmissible because of its similarity with the offense of second degree assault while armed with a firearm for which appellant was being tried.

The decision whether to admit prior convictions for impeachment purposes is clearly within the discretion of the trial court, State v. Alexis, supra, and shall not be disturbed absent a clear showing of abuse. See United States v. Field, 625 F.2d 862 (9th Cir.1980); United States v. Cook, 608 F.2d 1175 (9th Cir.1979), cert. denied 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980); United States v. Hayes, 553 F.2d 824 (2d Cir. 1977).

Other jurisdictions permit, under identical rules of evidence, use of similar convictions for impeachment purposes, and we see no reason to take issue with these holdings. See e. g., United States v. Ortiz, supra (in a distribution of cocaine trial, allowed prior narcotics conviction); State v. Soule, 121 Ariz. 505, 591 P.2d 993 (1979) (in second degree murder trial, allowed prior assault with a deadly weapon, aggravated assault and grand larceny convictions); State v. Brouillette, supra (in criminal sexual conduct in the fourth degree trial, upheld the admissibility of prior conviction for criminal sexual conduct in the third degree); State v. Day, 94 N.M. 753, 617 P.2d 142, cert. denied --- U.S. ----, 101 S.Ct. 163, 66 L.Ed.2d 77 (1980) (in an aggravated burglary trial, allowed prior robbery conviction). The Ninth Circuit in Cook upheld the admissibility of prior robbery convictions in a bank robbery trial.

One of the factors some courts consider in determining whether to admit evidence of substantially similar convictions, is the availability of evidence of dissimilar convictions for impeachment purposes. Since this trial, defendant's VUCSA conviction was reversed by this Court in State v. Thompson, 93 Wash.2d 838, 613 P.2d 525 (1980), so that comparison would no longer be available.

After thoroughly reviewing the record and relevant case law, we find no such abuse of discretion. The trial court allowed both sides to speak on the motion in limine. After hearing arguments, the court ruled the VUCSA conviction admissible, and took the matter of the manslaughter conviction under advisement. At the next morning's session of trial, the court also ruled the manslaughter conviction admissible. It is not necessary that the trial judge state his or her reasons for so ruling. United States v. Field, supra at 872, n.6; United States v. Mahone, 537 F.2d 922 (7th Cir.1976). In the future, however, it would be helpful for the trial judge to articulate the reasons. United States v. Mahler, 579 F.2d 730, 734 (2d Cir.1978), cert. denied 439 U.S. 991, 99 S.Ct. 592, 58 L.Ed.2d 666 (1978). In this case, the trial court, in ruling, did state that the probative value outweighed the prejudicial effect and that it would be probative of credibility only and the jury would be so instructed.

In the alternative, appellant contends that the admission of his manslaughter conviction for impeachment purposes constitutes constitutional error as the conviction was based on a guilty plea which allegedly violated the standards for guilty pleas established in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Boykin, the...