State v. Zibell

646 P.2d 154, 32 Wash. App. 158, 1982 Wash. App. LEXIS 2920

• Court: Court of Appeals of Washington
• Decided: June 7, 1982
• Docket: 8983-8-I
• Status: Published

Opinions

James, J.

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 Wn.2d 217, 570 P.2d 1208 (1977), and subsequent to the adoption of ER 609. State v. Anderson, 31 Wn. 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 Wn.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 Wn.2d 230, 450 P.2d 180 (1969); State v. Martz, 8 Wn. 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 at 18-19. 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 International 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 Wn.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 Wn. 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 Fed. R. Evid. 609(a), 28 U.S.C. 283, and " [t]his rule is substantially the same as Federal Rule 609 . . .", Comment, ER 609, 91 Wn.2d 1117, 1150 (1978), quoted in State v. Alexis, supra at 16, 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, 93d 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, 93d 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 to 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 Assocs., Inc., 13 Wn. 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, 54 L. Ed. 2d 143, 98 S. Ct. 204 (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 696, 698 (4th Cir. 1981) (conviction for "worthless checks," without further specificity, not admissible under rule 609(a)(2)); United States v. Ashley, 569 F.2d 975 (5th Cir.), cert. denied, 439 U.S. 853, 58 L. Ed. 2d 159, 99 S. Ct. 163 (1978) (shoplifting conviction not admissible under rule 609(a)(2)); United States v. Ortega, 561 F.2d 803 (9th Cir. 1977) (shoplifting conviction not admissible under rule 609(a)(2)); United States v. Field, 625 F.2d 862, 872 (9th Cir. 1980) (conviction for receiving stolen property "suggests a lack of veracity . . ., though not so clearly as do those crimes falling within rule 609(a)(2)''); United States v. Seamster, 568 F.2d 188 (10th Cir. 1978) (burglary convictions not admissible under rule 609(a)(2)).

We hold that crimes of "dishonesty or false statement" admissible under ER 609(a)(2) are limited to a "'narrow subset of crimes' — those that bear directly upon the accused's propensity to testify truthfully", United States v. Fearwell, supra at 777. As we recognized in State v. Moore, 29 Wn. App. 354, 628 P.2d 522 (1981), robbery is not such an offense. Likewise, Zibell's conviction for third degree possession of stolen property is not directly probative of whether he would or would not testify truthfully. We conclude this conviction is not one which "bear[s] directly upon the accused's propensity to testify truthfully" and it was therefore inadmissible.

The trial judge also admitted, for impeachment purposes, a defense witness' prior conviction for third degree possession of stolen property. The limitations of ER 609(a) apply to impeachment of any "witness"; thus, admission of this evidence was also error.

In reaching our conclusion, we are not unmindful of the state court decisions supporting the proposition that theft or possession of stolen property is "dishonest" within a broad definition of "dishonesty." To the extent these decisions do not arise under a state version of the federal rule or involve felonies admissible under subsection (a)(1), they are not helpful to analysis of the issue before us. See Lowell v. State, 574 P.2d 1281 (Alaska 1978); Geisleman v. State, 410 N.E.2d 1293 (Ind. 1980); State v. Webb, 309 N.W.2d 404 (Iowa 1981); State v. Ybarra, 102 Idaho 573, 634 P.2d 435 (1981); State v. Thomas, 220 Kan. 104, 551 P.2d 873 (1976); Commonwealth v. Woods, 275 Pa. Super. 392, 418 A.2d 1346 (1980).

With respect to the "extremely narrow" circumstances under which ER 609(a)(2) would come into play, we observe first, that Congress was doubtless aware of federal statutes which classify some of the designated crimes as felonies,² and, second, that misdemeanors of "dishonesty and false statement," as that term is interpreted under Federal Rule of Evidence 609, are not so few in number that ER 609(a)(2) is rendered meaningless.³

In view of our disposition of the case, we do not address Zibell's remaining assignments of error. The judgment is reversed and the case remanded for trial consistent with this opinion.

Ringold, J., concurs.

1 RCW 9A.44.080(1) provides:

"A person over sixteen years of age is guilty of statutory rape in the second degree when such person engages in sexual intercourse with another person, not married to the perpetrator, who is eleven years of age or older but less than fourteen years old."

2 18 U.S.C. § 201 (bribery); 18 U.S.C. § 1621 (perjury); 18 U.S.C. § 1622 (subornation of perjury); 18 U.S.C. §§ 641 et seq. (embezzlement of items valued at over $100); 18 U.S.C. § 1001 (false statement).

3 RCW 9A.72.040 (false swearing); RCW 9A.60.040 (criminal impersonation); RCW 9.45.040 (fraud on innkeeper); RCW 9.45.100 (fraud in assignment for benefit of creditors); RCW 9.45.120 (using false weights and measures); RCW 9.45.150 (fraudulent concealment of foreign matter in merchandise); and RCW 9A.56-.060(5) (fraudulent issuance of checks or drafts) are among the offenses which fall within the scope of the congressional committee reports.