State v. White

718 P.2d 841, 43 Wash. App. 580, 1986 Wash. App. LEXIS 2865
Court of Appeals of Washington·Decided May 5, 1986·No. 14409-0-I·Published·Cited by 13 cases

Opinions

Grosse, J.

—L. C.White appeals his conviction on two counts of possession of stolen property in the second degree. He claims that evidence was improperly admitted under ER 609(a)(1) and ER 404(b).

White and his companion Peggy Stroud were arrested in a car a few minutes after they had attempted to purchase food at a delicatessen with a stolen credit card. The delicatessen sales clerk became suspicious when Stroud's signature and spelling did not match those on the back of the credit card and requested the manager of the store check the card. White then grabbed the card from the manager and he and Stroud fled to their car. At the time of the [582]*582arrest the police did not find the stolen credit card which had been used in the attempted purchase. They did find a Union Oil credit card in another name (Wally Klingele) on Peggy Stroud, and in the pocket of White's jacket, they found a Texaco credit card in the same name as that on the card they had attempted to use at the delicatessen. Also in the jacket pocket they found a phony Washington State identification card with White's picture on it. The identification card was in yet another name. White was charged for possession of the Visa card which he grabbed from the clerk, and for possession of the Texaco card which was in his jacket pocket. Stroud pleaded guilty to forgery and was sentenced to prison.

Before trial, White moved to exclude admission of the Union Oil credit card and the false identification card with White's picture on it. The trial court denied the motion with respect to the Union Oil card based on the State's offer of proof that it would establish a concerted effort in the delicatessen transaction by White and Stroud, making Stroud's possession of another stolen credit card relevant as to motive and plan. The court denied the motion as to the phony identification card on the basis that it went to the proof of motive, knowledge, absence of mistake, and possibly to preparation and plan to commit the offense. The court also ruled over defense objections, both prior to and during trial, that White's 1981 possession of stolen property conviction and his 1980 forgery conviction would be admissible for impeachment purposes if White chose to testify in his defense. The trial court made these rulings after receiving a proffer of White's proposed testimony. White did not testify.

Admission of Prior Convictions

White refused to testify primarily because "his prior convictions would come in and infer similar offenses" according to his defense counsel. White's proposed testimony was that he was not aware of the stolen Texaco card in his pocket; that he was not aware Stroud possessed or [583]*583intended to use the stolen Visa card; and that he had no part in the delicatessen transaction other than to drive Stroud away. This offer of proof is inadequate to permit us to review the alleged error. State v. Pam, 98 Wn.2d 748, 763, 659 P.2d 454 (1983); State v. Koloske, 100 Wn.2d 889, 897, 676 P.2d 456 (1984).

A majority in Pam ruled that in order to preserve an alleged ER 609 error for review the defendant's offer of proof must meet two conditions. First, the offer must contain "a statement by the defendant that he or she would testify if the prior convictions were excluded" and second, the offer must contain a general outline of the proposed testimony. (Italics ours.) Pam, at 763. The plain meaning of this first requirement is that the defendant must present to the trial court an affirmative "but for" proposition: The defendant would testify "but for" the admission of the prior convictions. Only then can it be presumed that a ruling admitting the evidence of prior convictions would impinge upon the right of a defendant to testify in his or her behalf. See State v. Jones, 101 Wn.2d 113, 120, 677 P.2d 131 (1984).

Courts are cognizant of the possibility that defendants who do not wish to testify regardless of whether or not a prior conviction is admitted will use an ER 609 ruling as another basis for appealing a conviction. As a result the requirement of a proper offer of proof has been imposed to try to minimize this problem. See Koloske, at 897; State v. LeFever, 102 Wn.2d 777, 786, 690 P.2d 574 (1984). Accord, State v. Goodman, 42 Wn. App. 331, 342, 711 P.2d 1057 (1985).

Indeed, the United States Supreme Court has gone so far as to require a defendant actually testify and be impeached by a prior conviction in order to properly raise and preserve an ER 609 error for review. Luce v. United States, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984). The Court's reasoning is apposite: First, because ER 609(a)(1) requires a court to weigh the probative value of a prior conviction against the prejudicial effect, a reviewing court is handi[584]*584capped in any effort to rule on such "subtle evidentiary questions outside a factual context." Luce, at 41. Second, the possible harm flowing from a trial court's pretrial ruling permitting impeachment by prior conviction is wholly speculative since the actual testimony of the defendant could differ substantially from the offer of proof and the trial judge is free during the course of the trial to alter previous pretrial rulings on the issue. Also, the prosecution might well elect during the course of a trial not to attempt impeachment. Third, the determination of a defendant to testify seldom turns on a single factor such as the risk of impeachment. An offer of proof with a commitment to testify in the context of a motion to exclude impeachment evidence is risk free for the defendant. If he subsequently changes his mind there are no means to enforce the commitment. Fourth, any issue of harmless error can only be addressed in the context of an entire record in which the defendant testifies. A reviewing court cannot properly term "'harmless' an error that presumptively kept the defendant from testifying." Luce, at 42.

At the very least, Luce presents a strong argument for strict adherence to the requirements of State v. Pam, supra. In the instant matter White's counsel stated the threatened admission was the primary—but thus not the only—reason White would not testify. There being no assurance White would testify if the priors were excluded, we cannot presume the proposed admission prejudicial.

Prior to argument in this case, we requested counsel specifically address the issue of whether a prior conviction might properly be admitted simply as an unnamed felony in light of the decision in State v. Jones. Because of our holding above, adhering to the strict requirements of State v. Pam, resolution of this issue is not material to this case. Nevertheless, in view of the efforts of counsel focusing on this issue, we believe some comment is in order: Appellant contends that the admission of prior convictions simply as unnamed felonies is proper for the class of ER 609 cases wherein the prior conviction is for the same offense, or [585]*585where the crime for which the defendant is on trial is violent in nature.

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State v. White, 718 P.2d 841, 43 Wash. App. 580, 1986 Wash. App. LEXIS 2865 (Wash. Ct. App. 1986).

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State v. White
718 P.2d 841 (Court of Appeals of Washington, 1986)