Authored by Ann L. Ellington. Concurring: William W. Baker. Faye C. Kennedy.
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- Jack Achttien appeals his convictions for second and third degree statutory rape of SL. Achttien argues that the court erred by excluding extrinsic evidence of an alleged prior false rape accusation and an alleged statement by SL regarding payment for SL's testimony. The evidence rulings were correct; extrinsic evidence of prior conduct is not permitted by ER 608, and SL was not afforded an opportunity to explain her alleged statement as required by ER 613(b). Achttien alternatively argues that counsel's failure to secure introduction of this evidence constitutes ineffective assistance. This claim fails because counsel's conduct could represent valid tactical decisions and because Achttien cannot show prejudice in any event. In his pro se brief, Achttien seeks reversal for prosecutorial misconduct and for exclusion of evidence from a medical treatise. These claims are without merit. The convictions are affirmed. Facts/Background In 1984, Achttien was charged with second and third degree statutory rape of SL. Achttien and his wife Barbara fled the state and changed their names. The FBI apprehended Achttien approximately ten years later.
At trial, SL testified that Achttien penetrated her vaginally on several occasions, beginning when she was 13 years old. The defense tried to discredit SL, theorizing that her use of Ritalin may have impaired her ability to recall events. In voir dire, SL's prescribing physician, Dr. Suchert, testified that Ritalin could cause agitation, but would not cause someone to hallucinate a rape. Defense counsel moved to admit information regarding Ritalin from a medical reference book. The court refused, but allowed for the possibility of expert testimony. Achttien never revisited this issue.
The defense also attempted to discredit SL by arguing that she had been paid for her testimony. Defense counsel asked SL whether Irene Achttien promised payment for testimony that would convict Achttien:
Q: When charges were pending against Jack, Irene offered you a substantial sum of money if you would maintain your testimony favorable to the State, didn't she?
A: That is very incorrect.
Q: She offered you no money whatsoever?
A: I had not gotten one penny[.]
The defense then attempted to offer testimony from Barbara that SL had said that Irene offered her money. The court excluded that evidence on grounds of double-hearsay and failure to lay a proper foundation, reasoning that counsel should have asked SL whether she told Barbara that Irene had made this offer. Defense counsel did not call SL back to the stand to lay the foundation for this impeachment.
Achttien also sought to admit evidence from an individual who would testify that SL had falsely accused him of rape. Defense counsel did not cross-examine SL regarding such an accusation. The court excluded the evidence on hearsay and relevance grounds, reasoning that introduction of the false accusation issue would "insert another case in the middle of [this] case[.]"
In closing, the State argued that Achttien's flight was evidence of guilt. The jury convicted Achttien as charged. ER 608 - Prior Rape Accusation Achttien argues that he was entitled to use extrinsic evidence of a prior rape accusation to impeach SL. *fn1 However, ER 608 limits such impeachment to cross-examination of the complaining witness; extrinsic evidence is not permitted. *fn2 A trial court's ruling on admissibility of evidence is reviewed for abuse of discretion. State v. Mendez, 29 Wash. App. 610, 611-12, 630 P.2d 476 (1981) (ER 608, no error in excluding alleged false rape accusation in an assault case where the complaining witness was not cross-examined); see also State v. Benn, 120 Wash. 2d 631, 651, 845 P.2d 289, cert. denied, 510 U.S. 944, 114 S. Ct. 382, 126 L. Ed. 2d 331 (1993) (ER 608); State v. Majors, Wash. App., 919 P.2d 1258, 1996 WL 420344, * 3 (ER 802, 803); State v. Luvene, 127 Wash. 2d 690, 706-07, 903 P.2d 960 (1995) (ER 401, 403).
Here, defense counsel made no attempt to cross-examine SL on the alleged accusation. Thus, the court properly excluded the evidence as hearsay. See ER 802. Achttien's claim that this exclusion deprived him of his confrontation rights is not well-taken, since he never even pursued his opportunity to cross-examine SL. Moreover, only the individual claiming to have been accused heard the accusation; the ...