State v. Burton

676 P.2d 975, 101 Wash. 2d 1, 1984 Wash. LEXIS 1464

Opinions

Stafford, J.

Petitioner, Robbie Burton, asks this court to reverse a Court of Appeals decision which held that his prior misdemeanor convictions for petit larceny and shoplifting were admissible to impeach his credibility pursuant to ER 609(a)(2). We reverse the Court of Appeals.

On February 25, 1981, the ARCO mini-mart in Union Gap, Washington was robbed at gunpoint. The cashier, Sherry Fryar, was the only clerk on duty and the sole eyewitness to the robbery. She testified that about 8:30 p.m. on February 25, a man came into the store, looked at some magazines, commented that he had "forgotten his money" and left. Approximately 30 minutes later, the man returned, pointed a gun at her and demanded that she give him the money in the cash register. She complied with his request. Fryar described the robber as approximately 5 feet 8 inches tall, with dishwater blond hair and an acne-scarred face. On April 9, 1981, Fryar selected Burton's photograph from a montage and identified him as the man who had robbed the mini-mart.

On April 24, 1981, Burton checked into the Tapadera Motor Inn in Union Gap, located immediately adjacent to the ARCO mini-mart. While checking into the motel, he was observed by Fryar, who worked full time as a maid at the motel in addition to her part-time job at the mini-mart. Upon recognizing Burton as the man she had identified from the photo montage, Fryar contacted the local police. Burton was subsequently arrested in his motel room and charged with the February 25 armed robbery of the mini-mart.

At trial, prior to presenting its case in chief, defense counsel made a motion in limine to preclude the State from impeaching Burton's testimony with evidence of his three prior misdemeanor convictions for petit larceny in 1975, shoplifting in 1976, and giving false information to a police officer in 1977. The trial court denied the motion and held that each of these crimes involved "dishonesty or false statement" within the context of ER 609(a)(2) and therefore were admissible for impeachment purposes.

Despite this ruling, Burton took the stand to testify regarding his alibi defense. He stated that he had spent the evening of February 25, 1981 at the home of his friends Jim and Kathy Layne of Yakima. He explained that his common law wife had left on February 4 for Minnesota and that since her departure he had spent most of his time at the Laynes' home. On cross examination, the State brought out Burton's prior convictions. The Laynes testified that although they could not state with absolute certainty that Burton had been with them during the evening of February 25, he had been visiting them almost every evening since his wife's departure and, thus, was very likely with them that evening as well.

The jury found Burton guilty of first degree robbery. The Court of Appeals affirmed, holding that Burton's misdemeanor convictions were all crimes involving dishonesty under ER 609(a)(2). We granted the petition for review to address this important issue.

In 1979, this court adopted ER 609, superseding former RCW 10.52.030.¹ See 91 Wn.2d 1149 (1978). ER 609 was taken word for word from the federal Rule of Evidence 609. See Fed. R. Evid. 609, 28 U.S.C. ER 609(a) provides:

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.

(Italics ours.) While ER 609(a)(1) grants discretionary authority to admit prior felony convictions, ER 609(a)(2) requires the admission of all prior convictions, felony or misdemeanor, which involve a crime of "dishonesty or false statement". Because Burton's three prior convictions were all misdemeanor convictions, they were admissible only if the crimes "involved dishonesty or false statement" under ER 609(a)(2). Thus the question before this court is whether petit larceny and shoplifting are crimes of "dishonesty".² For the reasons that follow we find that they are not.

Prior to 1979 we consistently recognized that a defendant's past convictions were relevant to his or her credibility as a witness. See State v. Ruzicka, 89 Wn.2d 217, 226, 570 P.2d 1208 (1977). Further, a trial judge had no discretion to refuse evidence of a prior conviction; admission was mandatory, regardless of whether the prior conviction was for a felony or misdemeanor offense. See former RCW 10.52.030, footnote 1 above; see also State v. Ruzicka, supra; State v. Robinson, 75 Wn.2d 230, 450 P.2d 180 (1969).

In State v. Alexis, 95 Wn.2d 15, 621 P.2d 1269 (1980), we recognized the significant changes brought about by the adoption of ER 609. Unlike prior Washington law, ER 609(a) requires that the trial court look to the nature of the prior conviction before determining its admissibility. Under ER 609(a)(2), crimes which involve "dishonesty or false statement" must be admitted, whether felony or misdemeanor. The trial court has no discretion. Evidence of prior felony convictions which do not involve dishonesty or false statement, however, are admissible under ER 609(a)(1), but only if the trial court first determines that the probative value of the evidence outweighs its prejudicial effect. State v. Alexis, supra.

Although this case presents the first opportunity for us to determine which crimes are crimes of "dishonesty", Division One of the Court of Appeals recently held in a well reasoned opinion that the misdemeanor crime of receiving stolen property is not a crime involving dishonesty within the meaning of ER 609(a)(2). State v. Zibell, 32 Wn. App. 158, 646 P.2d 154, review denied, 97 Wn.2d 1039 (1982). We further note that Division One has also determined that felony robbery is not a crime involving dishonesty under ER 609(a)(2). State v. Moore, 29 Wn. App. 354, 628 P.2d 522, review denied, 96 Wn.2d 1003 (1981) (Moore I); State v. Moore, 33 Wn. App. 55, 651 P.2d 765 (1982) (Moore II). But see State v. Anderson, 31 Wn. App. 352, 359-60, 641 P.2d 728 (1982); State v. Turner, 35 Wn. App. 192, 665 P.2d 923 (1983).³

The Court of Appeals in the instant case adopted a broad definition of dishonesty, expressly rejecting the approach taken by Diyision One in Zibell and Moore I and II. Rather, the Court of Appeals, Division Three, adopted the view that stealing is an act of deceit which impinges upon one's reputation for honesty. "To steal is dishonest. We need not trace federal legislative history to construe 'dishonesty'." State v. Burton, 33 Wn. App. 417, 420, 655 P.2d 259 (1982).

We do not agree with the Court of Appeals overly broad definition of the word "dishonesty"; it is inconsistent both with our intent in adopting ER 609(a)(2) and with the vast majority of federal case law interpreting Fed. R. Evid. 609(a)(2), 28 U.S.C.A. 609. Contrary to the Court of Appeals, we find the word "dishonesty" must be defined in the context of the rule. Because the language of ER 609(a)(2) is taken verbatim from its federal counterpart, see Comment, ER 609, 91 Wn.2d 1150 (1978) and Fed. R. Evid. 609, we find that it is proper to look to the legislative history surrounding the adoption of the federal rule as well as the federal case law developed since its adoption to define the category of crimes included under ER 609(a)(2).

The Senate Judiciary Committee Report explained the intended meaning of the phrase as follows:

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.

(Italics ours.) S. Rep. No. 1277, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad. News 7051, 7061. See also Comment, Fed. R. Evid. 609(a). This is essentially the same definition as that given by the House-Senate Conference Committee. H.R. Conf. Rep. No. 1597, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad. News 7098, 7103.

At common law, the term "crimen falsi" referred to "crimes of infamy". State v. Payne, 6 Wash. 563, 34 P. 317 (1893).

[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, at 730 (rev. 1979). Accord, Black's Law Dictionary 446-47 (4th rev. ed. 1968). We have previously held that "crimen falsi” does not include the offense of simple petit larceny. State v. Payne, supra. We adhere to this definition and find that crimes of "dishonesty" include only those crimes which contain elements in the nature of crimen falsi and which bear directly on a defendant's propensity for truthfulness.

The purpose of allowing impeachment by prior conviction evidence is to shed light on the defendant's credibility as a witness. Therefore, prior convictions admitted for impeachment purposes must have some relevance to the defendant's ability to tell the truth. United States v. Smith, 551 F.2d 348 (D.C. Cir. 1976). See also Note, Impeachment Under Rule 609(a): Suggestions for Confining and Guiding Trial Court Discretion, 71 Nw. U. L. Rev. 634 (1976). Simply because a defendant has committed a crime in the past does not mean the defendant will lie when testifying. We therefore reject any suggestion that lying is an integral facet of the criminal personality, and thus all prior convictions should be admissible.

The overwhelming majority of federal circuit court cases decided after the 1975 adoption of Fed. R. Evid. 609 have adopted a similar narrow interpretation of subsection (a)(2). The majority of these cases involve crimes in the nature of theft, such as simple larceny, burglary, and shoplifting. These particular crimes have generated a great deal of confusion and controversy because the term "dishonesty" in its common meaning connotes a disposition to lie, cheat or defraud, arguably encompassing crimes of theft. See Note, An Analysis of the Phrase "Dishonesty or False Statement" as Used in Rule 609, 32 Okla. L. Rev. 427, 430 (1979). The matter is further complicated by noting that some crimes of theft, such as embezzlement, involve an element of deceit or untruthfulness and thus are admissible under ER 609(a)(2).

With the District of Columbia Circuit Court of Appeals leading the way in 1976, the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth and Tenth Circuits have all expressly held that Fed. R. Evid. 609(a)(2) encompasses only those crimes which include an element of deceit, untruthfulness or false statement; thus excluding general crimes of theft. See United States v. Smith, 551 F.2d 348 (D.C. Cir. 1976); United States v. Grandmont, 680 F.2d 867 (1st Cir. 1982); United States v. Hawley, 554 F.2d 50 (2d Cir. 1977); Government of V.I. v. Toto, 529 F.2d 278 (3d Cir. 1976); United States v. Cunningham, 638 F.2d 696 (4th Cir. 1981); United States v. Ashley, 569 F.2d 975 (5th Cir. 1978); United States v. Mahone, 537 F.2d 922 (7th Cir. 1976) (in dictum only); United States v. Hastings, 577 F.2d 38 (8th Cir. 1978); United States v. Dixon, 547 F.2d 1079 (9th Cir. 1976); United States v. Seamster, 568 F.2d 188 (10th Cir. 1978). Some of the federal courts have specifically found petit larceny and shoplifting inadmissible under Fed. R. Evid. 609(a)(2). See United States v. Fearwell, 595 F.2d 771 (D.C. Cir. 1978) (attempted petit larceny inadmissible); United States v. Ashley, supra (shoplifting conviction inadmissible); United States v. Ortega, 561 F.2d 803 (9th Cir. 1977) (shoplifting inadmissible). The Sixth and Eleventh Circuits have not yet defined the category of crimes admissible under ER 609(a)(2).

We find the view of the overwhelming majority of federal courts to be the proper position. In choosing to adopt the federal version of rule 609 verbatim, we indicated our acceptance of the interpretation given to that rule by federal courts. See Comment, ER 609, 91 Wn.2d 1150 (1978). Moreover, if "dishonesty" were defined broadly to include most any crime, then ER 609(a)(1) becomes superfluous. Most felony and misdemeanor crimes would become automatically admissible under ER 609(a)(2), thereby eliminating the need for discretionary authority under ER 609(a)(1). This interpretation would strain the intent of Congress and of this court in adopting ER 609. See State v. Zibell, supra; United States v. Smith, supra.

The admission of prior conviction evidence by its very nature is highly prejudicial because of its inherent implication that "once a criminal, always a criminal." Moreover, the admission of prior conviction evidence adversely affects a defendant's right to testify in his own defense. This right is of constitutional importance. U.S. Const. amend. 6; Const. art. 1, § 22. See State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). A jury has the need to know a defendant's side of the story. The lack of discretion under ER 609(a)(2) presents a defendant witness with a Hobson's choice: either refuse to testify and risk the effect of not presenting one's side of the story or testify and risk the effect of the inherent prejudice associated with prior conviction evidence. See Note, To Take the Stand or Not To Take the Stand: The Dilemma of the Defendant With a Criminal Record, 4 Colum. J.L. & Soc. Probs. 215, 218 (1968). See also Spector, Rule 609: A Last Plea for Its Withdrawal, 32 Okla. L. Rev. 334 (1979). For these reasons, we prefer to adopt a restrictive approach to admissibility of evidence under ER 609(a)(2). Only prior conviction evidence which has a direct bearing on a defendant's ability to testify truthfully will be admissible to impeach a defendant's credibility as a witness. Therefore, the category of crimes involving "dishonesty" is defined to include only those crimes having elements in the nature of crimen falsi, the commission of which involves some element of deceit, fraud, untruthfulness or falsification bearing on the accused's propensity to testify truthfully.

While in a broad sense theft is always dishonest, crimes of theft in general do not contain the requisite element of untruthfulness and thus, misdemeanor crimes of theft in general are inadmissible under ER 609(a)(2) unless there is some element of fraud or deceit (such as unlawful issuance of bank checks, RCW 9A.56.060). The trial court therefore erred in admitting Burton's prior convictions for petit larceny⁴ and shoplifting.⁵

At trial, the State relied heavily on the eyewitness testimony of Sherry Fryar. Burton's alibi defense was his only rebuttal to the State's evidence. Therefore, Burton's credibility as a witness was very much at issue. Prior to the admission of the prior conviction evidence, the jury had only Fryar's word against Burton's. With the impeachment of Burton's testimony by the use of his prior misdemeanor convictions, the balance was tipped in favor of the State. We cannot determine what effect this had on the jury's verdict, nor can we consider the error harmless under either the constitutional standard of State v. Evans, 96 Wn.2d 1, 633 P.2d 83 (1981) or the nonconstitutional standard of State v. Cunningham, 93 Wn.2d 823, 613 P.2d 1139 (1980).

We therefore reverse the Court of Appeals and remand for a new trial.

Williams, C.J., and Utter, Dolliver, Dore, and Pearson, JJ., concur.

1 RCW 10.52.030. "Convict as witness. Every person convicted of a crime shall be a competent witness in any civil or criminal proceeding, but his conviction may be proved for the purpose of affecting the weight of his testimony, either by the record thereof, or a copy of such record duly authenticated by the legal custodian thereof, or by other competent evidence, or by his cross-examination, upon which he shall answer any proper question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer thereto.”

2 We note that petitioner apparently does not dispute that a conviction for giving false information to a police officer under RCW 9A.76.020 is a crime involving dishonesty or false statement under ER 609(a)(2). In his petition for review, however, petitioner notes that he was never actually convicted of the crime as the case was dismissed prior to conviction. If, in fact, petitioner was never convicted, then clearly this misdemeanor charge is inadmissible for impeachment purposes under ER 609(a)(2). If, however, petitioner was actually convicted, then as a crime which involves "false statement" in the form of lying, the prior conviction would be admissible under ER 609(a)(2).

3 We note a different panel of the Court of Appeals, Division One, recently held that despite their holding in State v. Zibell, 32 Wn. App. 158, 164, 646 P.2d 154 (1982), robbery is a crime of "dishonesty" within the meaning of ER 609(a)(2). State v. Turner, 35 Wn. App. 192, 665 P.2d 923 (1983). To support its holding, the Court of Appeals cites several state court decisions which have found crimes of theft admissible as crimes involving "dishonesty". We note, however, that of these states, Alaska, Kansas and Illinois have adopted versions of rule 609(a) that differ significantly from Fed. R. Evid. 609(a). We further note that the only federal authority cited, United States v. Bianco, 419 F. Supp. 507 (E.D. Pa. 1976), aff'd, 547 F.2d 1164 (3d Cir. 1977), relied solely on cases decided prior to the adoption oí the federal Rules of Evidence. The overwhelming weight of federal authority as set forth in our opinion clearly supports a narrow definition of the term "dishonesty" as used in Fed. R. Evid. 609(a)(2) and the identical language of ER 609(a)(2). Thus, we must conclude that Zibell is the better view.

4 See former RCW 9.54.090 (repealed 1976).

5 See former RCW 9.78.010 (repealed 1976).