Appeal from Superior Court of King County. Docket No: 94-1-04141-6. Date filed: 10/31/94. Judge signing: Hon. Carmen Otero.
Authored by Susan R. Agid. Concurring: Faye C. Kennedy, C. Kenneth Grosse
The opinion of the court was delivered by: Agid
AGID, J. -- Michael E. Green appeals his conviction for delivery of a substance in lieu of a controlled substance (a VUCSA burn) to an undercover officer and argues that the trial court erred in admitting his prior VUCSA burn conviction under ER 609(a)(1). We conclude the trial court did not abuse its discretion in weighing the relevant factors and affirm.
On the evening of June 27, 1994, Officer Steven Dosch was working as an undercover narcotics buyer in a "buy-bust" operation conducted by Seattle police near the Pike Place Market. At about 8 p.m., Green approached Officer Dosch as he stood on the southeast corner of First and Pike. Green pulled a package of cigarettes from his pocket and asked the officer whether he wanted to buy some "real cheap." Officer Dosch answered that he was not looking for cigarettes. When Green asked him what he was looking for, Officer Dosch responded "some rock," i.e., rock cocaine. Green said he could get some and told the officer to follow him. As they began walking north on First, Officer Dosch told Green he had "two 20's." In response, Green assured him that he had "a $40 rock." At the corner of First and Pine, Green rummaged through his backpack and pulled out a bindle of white powder, telling the officer that he did not have any "rock" but that he had some "flake." As the two men crossed First, Green handed the bindle to Officer Dosch, who gave him two pre-recorded $20 bills. Officer Dosch then signaled the police observation team and left the area.
Sergeant Ronald Wilson, a member of the arrest team, was the first to reach Green. Sergeant Wilson told Green he was under arrest but did not specify why. Green nevertheless responded, "I didn't do no VUCSA." Police found the two $20 bills Officer Dosch gave Green in Green's bag. The bindle Green had given Officer Dosch in return was tested. It contained no cocaine but rather a mixture of aspirin and caffeine.
Green was charged by information with delivering a substance in lieu of a controlled substance, in violation of RCW 69.50.401(c). At trial, the State sought to admit his five prior convictions, including two for burglary and one each for theft, grand larceny, and another VUCSA burn. Because the State had failed to give sufficient notice of its intent to use any of the convictions other than the prior VUCSA burn conviction, the court excluded the others on that basis. *fn1 The court admitted the prior VUCSA burn conviction as an unnamed felony and agreed to give the jury a limiting instruction regarding the purposes for which it could consider that conviction. The jury found Green guilty and he appeals.
ER 609(a) provides that evidence of prior convictions may be admitted in limited circumstances to attack the credibility of a witness:
For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.
The trial court admitted Green's prior VUCSA burn conviction under ER 609(a)(1). *fn2 The factors to be considered in weighing the probative value of a prior conviction against the prejudice to the party against whom it is admitted are: (1) the length of the defendant's criminal record; (2) the remoteness of the prior conviction; (3) the nature of the prior crime; (4) the age and circumstances of the defendant; (5) the centrality of the credibility issue; and (6) the impeachment value of the prior crime. State v. Rivers, 129 Wash. 2d 697, 705, 921 P.2d 495, P.2d (1996); State v. Jones, 101 Wash. 2d 113, 122, 677 P.2d 131 (1984), overruled on other grounds by State v. Brown, 111 Wash. 2d 124, 761 P.2d 588, adhered to on reh'g, 113 Wash. 2d 520, 728 P.2d 1013, 787 P.2d 906, 80 A.L.R.4th 989 (1989); State v. Alexis, 95 Wash. 2d 15, 19, 621 P.2d 1269 (1980). To ensure a meaningful balancing, the trial court must state the factors that favor admission or exclusion on the record. Rivers, 129 Wash. 2d at 706; Jones, 101 Wash. 2d at 123; State v. Millante, 80 Wash. App. 237, 245, 908 P.2d 374 (1995), review denied, 129 Wash. 2d 1012, 917 P.2d 130 (1996). The decision to admit prior convictions under ER 609(a)(1) lies within the sound discretion of the trial court. Rivers, 129 Wash. 2d at 704-05.
The trial court admitted Green's prior conviction under ER 609(a)(1) after weighing the Alexis factors as follows:
The one issue before the Court is the one offense, which occurred in 1990, [the VUCSA burn].
Using the Alexis factors, first, the length of the defendant's criminal history, this Court finds that he does have a long criminal ...