State v. Watkins

• Decision Date: 10 June 1991
• Docket Number: No. 25317-4-I,25317-4-I
• Citation: 61 Wn.App. 552,811 P.2d 953
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Curtis Alan WATKINS, Appellant, and Sidney Allen Hurt, Defendant.

Page 552

61 Wn.App. 552

811 P.2d 953

STATE of Washington, Respondent, v. Curtis Alan WATKINS, Appellant and Sidney Allen Hurt, Defendant.

No. 25317-4-I.

Court of Appeals of Washington Division 1.

June 10, 1991.

Washington Appellate Defender, Paris Kallas, Seattle, for appellant

Seth Dawson, Snohomish County Pros. Atty., S. Aaron Fine, Everett, for respondent.

AGID, Judge.

Curtis Watkins appeals a judgment and sentence for second degree assault. He contends that he was denied a fair trial when the trial court allowed evidence of his prior second degree burglary conviction to be admitted for impeachment purposes. In a pro se supplemental brief Watkins also alleges ineffective assistance of counsel and prosecutorial misconduct. We affirm.

In the early morning hours of April 12, 1988, Watkins became involved in an altercation between his friend, Sidney Hurt, and Steven Cejka. Watkins entered into the fray when he threw a beer bottle at Cejka. The bottle hit Cejka in the head, causing a 1-inch laceration. Watkins then joined with Hurt in his continuing fight with Cejka.

Everett Police Officer Duane Wantland happened to drive by the fight scene while conducting a routine patrol. He observed Cejka lying in the street in a "fetal-type position trying to cover up his head and chest area." Officer Wantland also saw Watkins repeatedly strike Cejka in the head with his fist while Hurt kicked Cejka in the chest. Cejka was subsequently diagnosed as having suffered a concussion and a broken nose, as well as the head laceration.

The State charged Watkins with committing second degree assault in violation of former RCW 9A.36.020(1)(b)

                and (c). 1  At his jury trial Watkins admitted throwing a beer bottle at Cejka and fighting with him.   He alleged, however, that he had acted in Hurt's defense.   The jury rejected Watkins' defense-of-others claim and found him guilty as charged. 2
                

APPLICATION OF ER 609(a)(2)

At issue in this appeal is the trial court's ruling that Watkins' prior second degree burglary conviction was a crime of dishonesty admissible for impeachment purposes under ER 609(a)(2). The court made its ruling in accord with State v. Brown, 111 Wash.2d 124, 154-56, 761 P.2d 588 (1988) (Brown I ), which held that crimes involving the taking of property are crimes of dishonesty for purposes of ER 609(a)(2). After the ruling at issue here, the Supreme Court reconsidered Brown I. On reconsideration, only four justices adhered to that holding. State v. Brown, 113 Wash.2d 520, 545-54, 782 P.2d 1013, 787 P.2d 906, 80 A.L.R.4th 989 (1989) (Brown II ). Consequently, the Brown opinions did not affect the prior rule that a crime of theft is not per se admissible under ER 609(a)(2). State v. Burton, 101 Wash.2d 1, 10, 676 P.2d 975 (1984) (holding that crimes of theft in general are inadmissible under ER 609(a)(2)); see generally State v. McLean, 58 Wash.App. 422, 424, 793 P.2d 459 (1990) (noting limited precedential effect of Brown II).

After oral argument in the instant case, the Supreme Court did effectively overrule Burton. In State v. Ray, 116 Wash.2d 531, 806 P.2d 1220 (1991), a clear majority of the court held that "crimes of theft involve dishonesty and are per se admissible for impeachment purposes under ER 609(a)(2)." 116 Wash.2d at 545, 806 P.2d 1220. This holding does not end In our opinion, burglary presents a different ER 609(a)(2) analytical problem than does theft, because burglary does not necessarily involve the taking of property element that influenced the Ray court to hold that the crime of theft involves dishonesty. See 116 Wash.2d at 545-46, 806 P.2d 1220. A person commits second degree burglary if, "with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building". RCW 9A.52.030. The State is not required to prove what crime the defendant intended to commit in order to secure a conviction. State v. Bergeron, 105 Wash.2d 1, 16, 711 P.2d 1000 (1985). Thus, while a judgment entered on a second degree burglary conviction may well stem from an unlawful entry coupled with a completed theft or the intent to commit theft, it may also stem from an unlawful entry coupled with an intent to commit malicious mischief, arson, a sexual offense or other crime which does not involve theft. On its face a second degree burglary conviction is, therefore, inherently ambiguous as to the defendant's criminal intent. This ambiguity often cannot be resolved in a subsequent proceeding in which the burglary conviction is offered under ER 609(a)(2) because, in order to determine admissibility of a prior conviction under this rule, a trial court cannot look beyond "the elements and date of the prior conviction, the type of crime, and the punishment imposed." ⁴ State v. Newton, 109 Wash.2d 69, 71, 743 P.2d 254 (1987).

                our analysis, however.   While Ray clarifies the question of whether a theft conviction is per se admissible under ER 609(a)(2), it is of little assistance in determining whether a second degree burglary conviction is also per se admissible under the provision. 3
                

These considerations persuade us that, even after Ray, not all second degree burglary convictions are per se admissible under ER 609(a)(2). Since the record before the trial court did not indicate whether Watkins' prior burglary conviction involved theft, the court improperly admitted the conviction under this subsection of the rule. Nevertheless, we affirm Watkins' judgment and sentence because we are convinced that the trial court's ER 609(a)(2) error was harmless.

PROPRIETY OF REVIEW

Before undertaking our harmless error analysis, we first address the State's alternative arguments in favor of affirming the judgment against Watkins. ⁵ It is the State's position that even if an ER 609(a)(2) error occurred, reversal is not required because Watkins did not preserve the error for review. ⁶ We address this contention in order to put to rest the State's theories on this issue.

The State first argues that the invited error doctrine precludes review of the trial court's ruling. The State contends that the doctrine applies because Watkins did not wait for the State to elicit his testimony about the prior conviction during cross examination, but instead gave direct testimony that he once pled guilty to a burglary charge. Watkins had previously explained to the court that, due to its ruling that his prior conviction was admissible, he We reject the State's contention that this is a case in which the invited error doctrine is properly invoked. Its contention ignores the purpose of the invited error doctrine, which is to prohibit a party from setting up an error at trial and then complaining of it on appeal. State v. Pam, 101 Wash.2d 507, 511, 680 P.2d 762 (1984). This purpose would not be served by a rule that denies review to a party who introduces evidence in an effort to mitigate prejudice resulting from an adverse ruling. In this situation, the party did not "set up" the error complained of on appeal. See State v. Whelchel, 115 Wash.2d 708, 727-28, 801 P.2d 948 (1990) (not invited error for defendant to refer in opening remarks to evidence expected to be admitted at trial under an erroneous pretrial ruling). ⁷ We also note that Washington appellate courts ordinarily reach the merits of a challenge to a trial court's decision to allow evidence of a defendant's prior convictions, even when the defendant introduced evidence of his or her convictions on direct. See, e.g., State v. Fowler, 114 Wash.2d 59, 785 P.2d 808 (1990); State v. Jones, 101 Wash.2d 113, 677 P.2d 131 (1984); State v. Begin, 59 Wash.App. 755, 801 P.2d 269 (1990); State v. Bond, 52 Wash.App. 326, 759 P.2d 1220 (1988); State v. Zibell, 32 Wash.App. 158, 646 P.2d 154, review denied, 97 Wash.2d 1039 (1982).

would testify about the conviction on direct in order "to minimize any potential prejudice".

The four cases on which the State relies as support for its invited error claim do not require a different result. Two of those cases, State v. Kaiser, 34 Wash.App. 559, 663 P.2d 839, review denied, 100 Wash.2d 1004 (1983), and State v. Renfro, 96 Wash.2d 902, 639 P.2d 737, cert. denied, 459 U.S. 842, 103 S.Ct. 94, 74 L.Ed.2d 86 (1982), are distinguishable in that they do not The State also argues that review of the court's ruling is precluded on the ground that Watkins did not make an offer of proof to the trial court about the content of his proposed testimony. It relies on State v. Koloske, 100 Wash.2d 889, 897, 676 P.2d 456 (1984), and State v. LeFever, 102 Wash.2d 777, 786, 690 P.2d 574 (1984). The State's reliance is misplaced, however, as the offer of proof requirement found in those cases only applied when the defendant did not testify at trial: ⁸

                involve situations in which a defendant introduced evidence in order to mitigate prejudice resulting from a prior court ruling.   Another is distinguishable because it concerned impeachment of a witness, rather than a defendant.  State v. Harvey, 34 Wash.App. 737, 664 P.2d 1281, review denied, 100 Wash.2d 1008 (1983).   Finally, the State relies on the following statement in State v. Wilson, 29 Wash.App. 895, 899, 626 P.2d 998, review denied, 96 Wash.2d 1022 (1981):  "[W]hen the defendant testified to his conviction on direct, the error, if any, was self-invited and is precluded from review."  (Citations omitted.)   This statement is dicta unsupported by legal analysis, and thus has no precedential or persuasive value
                

if [a] defendant elects not to testify following a ruling under ER 609, defendant must ensure that the record includes a declaration of his intention to testify and an adequate offer of proof, either oral or written, to preserve any error for appellate review.

(Emphasis added.) Koloske, 100 Wash.2d at 897, 676 P.2d 456 (quoted in LeFever, 102 Wash.2d at 785, 690 P.2d 574). ⁹

HARMLESS ERROR

We now consider the effect of the trial court's evidentiary error. The State...