State v. Zibell

• Decision Date: 07 June 1982
• Docket Number: No. 8983-8-I,8983-8-I
• Citation: 32 Wn.App. 158,646 P.2d 154
• Parties: STATE of Washington, Respondent, v. William Sherman ZIBELL, Appellant.
• Court: Washington Court of Appeals

Page 158

32 Wn.App. 158

646 P.2d 154

STATE of Washington, Respondent, v. William Sherman ZIBELL, Appellant.

No. 8983-8-I.

Court of Appeals of Washington, Division 1.

June 7, 1982.

Robert C. Boruchowitz, Janet Ainsworth, Seattle-King County Public Defender, Seattle (Court-appointed), for appellant.

Norman K. Maleng, King County Pros. Atty., Deanna Fuller, Deputy Pros. Atty., Seattle, for respondent.

JAMES, Judge.

Willie Zibell appeals his conviction for statutory rape in the second degree. ¹ We reverse.

A girl, aged 12 at the time of the incident, testified that she agreed to "go out" with Zibell, then aged 18, on the evening of November 18, 1979. She remained with Zibell until the following evening, and on that afternoon engaged in consensual sexual intercourse with Zibell. Zibell admitted having intercourse but defense witnesses testified that the incident occurred on September 15, a few days before his 18th birthday. Zibell's defense was that he believed the girl to be 16, based on statements to that effect allegedly made by her.

During trial, Zibell moved to exclude evidence of his prior conviction for third degree possession of stolen property. The trial judge denied the motion, and the following colloquy took place:

(Counsel:) ... I also want to make a record, ... if I call the defendant to testify, because of trial tactics, I want to be the one to ask him if he has ever been convicted of a crime, and the only reason I am going to do that is simply because of the Court's ruling. Otherwise, of course, I would never ask the question. I want that to be clear, in the event I do.

THE COURT: I understand.

Defense counsel thereafter elicited, upon direct examination, Zibell's testimony that he had been convicted of third degree possession of stolen property.

Zibell contends the trial judge erred by denying his motion to exclude evidence of this prior conviction for possession of stolen property. We agree.

ER 609(a) is controlling:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but 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.

A conviction for possession of or receiving stolen property is admissible under ER 609(a)(1) if its probative value exceeds its prejudicial effect. United States v. Field, 625 F.2d 862 (9th Cir. 1980); People v. McFarland, 108 Cal.App.3d 211, 166 Cal.Rptr. 429 (1980). But third degree possession of stolen property is a gross misdemeanor, RCW 9A.56.170(2), and as such is not punishable by imprisonment in excess of 1 year, RCW 9A.20.020(2). Consequently such a conviction is admissible only if it constitutes a crime of "dishonesty or false statement."

The relevancy of a witness' past disregard for the law to his credibility as a witness has been recognized in Washington appellate decisions prior to, e.g., State v. Ruzicka, 89 Wash.2d 217, 570 P.2d 1208 (1977), and subsequent to the adoption of ER 609. State v. Anderson, 31 Wash.App. 352, 641 P.2d 728 (1982). But before ER 609, trial judges were required to admit evidence of prior convictions. State v. Alexis, 95 Wash.2d 15, 621 P.2d 1269 (1980). No distinction was made based upon the type of crime or its classification as a felony or misdemeanor. RCW 10.52.030, superseded by ER 609; State v. Robinson, 75 Wash.2d 230, 450 P.2d 180 (1969); State v. Martz, 8 Wash.App. 192, 504 P.2d 1174 (1973).

ER 609 represents a restriction upon the admissibility of prior convictions, as compared to prior Washington law. Under ER 609(a)(2), evidence of crimes involving dishonesty or false statement must be admitted when offered; the trial judge has no discretion. Under ER 609(a)(1), evidence of other crimes which constitute felonies under Washington law, see RCW 9A.20.020, is admissible within the sound discretion of the trial judge. State v. Alexis, supra.

But "(i)n exercising its discretion through the balancing procedure prescribed by ER 609, the trial court ... should have in mind that the only purpose of impeaching evidence is to aid the jury in evaluating a witness' credibility ..." State v. Alexis, supra 95 Wash.2d at 18-19, 621 P.2d 1269. To be admissible under either subsection of ER 609(a), the prior conviction must be relevant to the defendant's credibility; that is, his capacity to give honest and truthful testimony. Thus, offenses whose probative value relating to credibility could reasonably be said to exceed their prejudicial effect must have some "dishonest" character as that term is popularly understood: "characterized by lack of truth, honesty, probity, or trustworthiness or by an inclination to mislead, lie, cheat, or defraud." Webster's Third New Int'l Dictionary 650 (3d ed. 1969). To treat all such crimes as crimes of "dishonesty" within the meaning of ER 609(a)(2) robs subsection (2) of the distinct meaning which the drafters of the rule obviously intended it to have, leaving it only as a means of assuring the admissibility of most misdemeanors all of which are excluded by ER 609(a)(1). Further, subsection (a)(2) does not afford the trial judge any discretion. State v. Alexis, supra; State v. Thompson, 95 Wash.2d 888, 632 P.2d 50 (1981). If all crimes somehow relating to "dishonesty" must be admitted, then ER 609 represents no discernible change from the unrestricted admission rule of prior law. This has not hitherto been considered the effect of the adoption of ER 609. See State v. Alexis, supra; State v. Jobe, 30 Wash.App. 331, 633 P.2d 1349 (1981).

If a broad definition of "dishonesty" is employed to determine whether possession of stolen property and comparable offenses such as theft constitute crimes of "dishonesty," "(a)t first blush, the question seems easily resolved." United States v. Papia, 560 F.2d 827, 845 (7th Cir. 1977). But our reading of ER 609(a)(2), in the context of the entire rule and in light of the rule's purpose, persuades us that the meaning of "dishonesty" as used in the rule cannot be derived solely from "first blush" impressions.

Because the language of ER 609(a) is identical to Federal Rule of Evidence 609(a), 28 U.S.C. p. 283, and "(t)his rule is substantially the same as Federal Rule 609 ...", Comment, ER 609, 91 Wash.2d 1117, 1150 (1978), quoted in State v. Alexis, supra 95 Wash.2d at 16, 621 P.2d 1269, it is appropriate to look to the legislative history of Federal Rule 609(a) and federal case law thereunder to delineate the scope of crimes involving "dishonesty or false statement."

The Senate Judiciary Committee Report defines crimes of "dishonesty or false statement":

By that phrase, the committee means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit or falsification bearing on the accused's propensity to testify truthfully.

S.Rep.No.1277, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News, 7051, 7061. The House-Senate Conference Report defines crimes of "dishonesty or false statement" in a like manner:

By the phrase "dishonesty (or) false statement" the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.

Conf.Rep.No.1597, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 7098, 7103. See generally 3 J. Weinstein & M. Berger, Evidence, Rule 609, at 609-2-609-54 (1981). Possession of stolen property is not one of the specified crimes.

The remaining category, "crimen falsi," refers to the so-called "crimes of infamy." State v. Payne, 6 Wash. 563, 34 P. 317 (1893); Willey v. Hilltop Associates, Inc., 13 Wash.App. 336, 535 P.2d 850 (1975). At common law, persons convicted of "crimes of infamy" were regarded as so untrustworthy that their testimony was excluded at trial. 2 J. Wigmore, Evidence § 519 (rev. 1979); State v. Jobe, supra.

(P)ersons are rendered infamous ... by having been convicted of forgery, perjury, subornation of perjury, suppression of testimony by bribery, or conspiracy to procure the absence of a witness, or other conspiracy, to accuse one of a crime, and barratry. And from these decisions it may be deduced, that the "crimen falsi" of the Common Law not only involves the charge of falsehood, but also is one which may injuriously affect the administration of justice, by the introduction of falsehood and fraud.

(Footnotes omitted.) 2 J. Wigmore, Evidence § 520 (rev. 1979). Accord, Black's Law Dictionary 446-47 (4th rev. ed. 1968). "Crimen falsi" do not include the offense of petit larceny. State v. Payne, supra. We perceive that possession of stolen property also falls outside the parameters of "crimen falsi."

Federal decisions have limited the convictions admissible under Federal Rule 609(a)(2) to a " 'narrow subset of crimes'-those that bear directly upon the accused's propensity to testify truthfully." United States v. Fearwell, 595 F.2d 771, 777 (D.C.Cir.1978) (attempted petit larceny conviction not admissible under rule 609(a)(2)). Accord, United States v. Hayes, 553 F.2d 824 (2d Cir.), cert. denied, 434 U.S. 867, 98 S.Ct. 204, 54 L.Ed.2d 143 (1977) (conviction for importing narcotics not admissible under rule 609(a)(2) absent showing importation involved false oral or written statements); United States v. Cunningham, 638 F.2d...