Superior Court County: King. Superior Court Cause No: 94-1-07469-1. Date filed in Superior Court: February 28, 1995. Superior Court Judge Signing: Donald Haley.
Petition for Review Denied January 7, 1997,
Written by: Judge Ann L. Ellington, Concurred by: Judge Mary K. Becker, Concurred separately by: Judge Faye C. Kennedy
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- Benjamin Wilson was caught in a police "buy-bust" operation and convicted of delivering a controlled substance. His appeal requires us to determine whether the court improperly admitted two prior felonies. We find that admission of the priors was error, but was harmless in light of Wilson's implausible testimony and the State's overwhelming evidence. Wilson also argues that the cocaine was improperly admitted, alleging evidence tampering and a break in the chain of custody. We find no error here. The conviction is affirmed.
Prior to the charge underlying this appeal, Wilson had three felony convictions: one for second degree theft and two violations of the Uniform Controlled Substances Act, one for possession and one for delivery. Wilson moved to exclude the VUCSA convictions, arguing that their prejudicial effect outweighed their impeachment value. Given that Wilson was being tried for delivery of a controlled substance, the court first noted that it was highly improbable that the defendant could receive a fair trial if the VUCSA convictions were admitted as named felonies. The State conceded this point, but argued that they should be admitted unnamed because they were "indicative of Mr. Wilson's propensity to not tell the truth [because they provided him] with a reason not to tell the truth."
The court expressed some skepticism as to whether a prior conviction bears on credibility. The court felt constrained by ER 609 to engage in a prejudice versus probative balancing process, however, which it began by looking at the nature of the disputed facts. The State asserted that Wilson participated in an illegal drug sale. Wilson denied any participation. The court noted that the three felony convictions provided Wilson with a "great incentive" to fabricate because of their bearing on his presumptive sentence range, acknowledged that the defendant would be prejudiced by their admission, but ruled that the convictions' probative value outweighed the prejudice "because of the critical nature of credibility in this case". Following the court's ruling, Wilson admitted to the three felonies and a misdemeanor theft conviction on direct examination.
At trial, Officer Kenneth Saucier testified that D.M., a juvenile, brought Saucier in contact with Wilson. Saucier gave Wilson a prerecorded $10 bill in exchange for some crack cocaine. After the buy, D.M. followed Saucier, asking him to share. Saucier then broke off a small piece of the cocaine and handed it to D.M.
Officer Andrew Hall testified that he arrested Wilson shortly after receiving a radio broadcast that reported the sale. When Hall apprehended Wilson, Wilson had apparently just given a store clerk the prerecorded $10 bill. Wilson testified that a man named Roland Theard sold the cocaine and paid the store clerk with the marked bill. According to Wilson, Theard then saw the officer approaching and fled the scene--leaving Wilson to accept the change. Wilson also testified that he was an addict and would not have sold the cocaine, but would have used it himself. On rebuttal, Officer Michelle Hackett testified that Theard was in jail at the time of Wilson's arrest.
The first issue is whether the court erred in admitting Wilson's VUCSA convictions as impeachment evidence under ER 609. The rule authorizes the automatic admission of crimes of dishonesty if they occurred within the last ten years. ER 609(a)(2). The rule also authorizes admission of felony convictions that are not crimes of dishonesty when the court determines that the convictions are more probative of truthfulness than prejudicial to the testifying witness. ER 609(a)(1).
A trial court's decision to admit ER 609(a)(1) felonies, and whether to admit them as named or unnamed, rests with the discretion of the trial court. E.g., State v. King, 75 Wash. App. 899, 909-10, 878 P.2d 466 (1994), rev. denied, 125 Wash. 2d 1021, 890 P.2d 463 (1995). Exercise of this discretion must be guided by the required balancing process. See State v. Alexis, 95 Wash. 2d 15, 19, 621 P.2d 1269 (1980), *fn1 State v. Jones, 101 Wash. 2d 113, 121-22, 677 P.2d 131 (1984), overruled on other grounds, State v. Brown, 113 Wash. 2d 520, 782 P.2d 1013 (1989). *fn2 The court abuses its discretion by not balancing the factors on the record, Jones, 101 Wash. 2d at 122, or by admitting an unnamed felony to circumvent the balancing process, King, 75 Wash. App. at 909; State v. Gomez, 75 Wash. App. 648, 655-56, 880 P.2d 65 (1994). Few offenses not involving crimes of dishonesty or false statements are probative of veracity, and the State bears the burden of proving otherwise. Jones, 101 Wash. 2d at 120. Consequently, the court must consider whether the State has demonstrated that the specific nature of the felony has probative value. King, 75 Wash. App. at 907, 910. Furthermore, the conviction should only be admitted where other impeachment evidence--such as per se priors and eyewitness testimony--is not sufficient. State v. Millante, 80 Wash. App. 237, 246 n.3, 908 P.2d 374 (1995), rev. denied, 129 Wash. 2d 1012, 917 P.2d 130 (1996). And, when in doubt, the court should err on the side of exclusion. Jones, 101 Wash. 2d at 113, 121 (quoting U.S. v. Cook, 608 F.2d 1175, 1187 (9th Cir. 1979), cert. denied, 444 U.S. 1034, 100 S. Ct. 706, 62 L. Ed. 2d 670 (1980)).
We believe that the prior convictions should have been excluded here. At the outset, the court erred by accepting the prosecutor's suggestion that the obvious prejudice of identical priors should be mitigated by "unnaming" them before engaging in the balancing process. See Gomez, 75 Wash. App. at 655-56; King, 75 Wash. App. at 909. Nor did the required balancing occur thereafter; only a single factor--centrality of credibility--was analyzed on the record.
This factor, moreover, will often not be determinative of admissibility because it favors both admission and exclusion. See King, 75 Wash. App. at 910; Jones, 101 Wash. 2d at 121. Here, we believe that the factor is neutral. Wilson was the only defense witness; no other witness could provide exculpatory evidence, so his testimony was indeed crucial to the defense case. But that the jury not ...