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State v. Herbert

January 21, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
YUSEF HERBERT, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-06961-2. Date filed: 05/08/95. Judge signing: Hon. Stephen G. Scott.

PER CURIAM. A jury found Yusef Herbert guilty of possession of cocaine with intent to distribute. At trial, the State impeached defense witness Devlon Heckert with three prior convictions.

Before witness Heckert took the stand, the defendant objected to the use of Heckert's prior convictions. The trial court ruled that Heckert's conviction for first degree theft was admissible under ER 609(a)(2) as a crime of dishonesty. The court further ruled that his prior convictions for (1) delivery of a substance in lieu of a controlled substance, and (2) failure to report to work release were admissible under ER 609(a)(1) after finding that their probative value outweighed their prejudicial effect. On appeal, Heckert argues only that admission of the failure to report conviction was error.

The decision whether to admit a prior conviction for impeachment purposes is within the discretion of the trial court and is reviewed for abuse of discretion. State v. Alexis, 95 Wash. 2d 15, 19, 621 P.2d 1269 (1980).

At the root of Herbert's argument is the trial court's failure to weigh the Alexis factors. Though the trial court weighed the factors on the record when it decided to admit Herbert's prior convictions, and though it weighed on the record at least one factor--remoteness of time--with regard to Heckert's priors, Herbert argues, and the State does not disagree, that it was error not to weigh on the record all the Alexis factors with regard to the failure to report conviction. Indeed, the Supreme Court has recently repeated that it is "mandatory" that the trial court weigh the Alexis factors on the record and that failure to do so is an abuse of discretion, and thus error. State v. Rivers, 129 Wash. 2d 697, 706, 921 P.2d 495 (1996).

This court has stated in the past that in the interest of judicial economy it may independently perform the Alexis balancing where possible to avoid reversing or remand. See, e.g., State v. Bond, 52 Wash. App. 326, 333, 759 P.2d 1220 (1988). But this court has more recently admonished that such appellate review is an "inappropriate substitute" for the trial court's consideration of the Alexis factors and that Bond and other cases did not contemplate that this court substitute its analysis of the Alexis factors "as a matter of course". State v. Gomez, 75 Wash. App. 648, 656 n. 11, 880 P.2d 65 (1994).

This court need not independently weigh the Alexis factors in this case. Because a violation of ER 609 is not constitutional error, State v. Ray, 116 Wash. 2d 531, 546, 806 P.2d 1220 (1991), any error is reversible only if the outcome of the trial would have been materially different. State v. Cunningham, 93 Wash. 2d 823, 831, 613 P.2d 1139 (1980).

In this case, the complained of conviction was only one of three prior convictions admitted. Where it is already shown that a defendant had two prior convictions, admission of the third has de minimis marginal impact on the jury's view of the witness' credibility. Similarly, the impeached witness was not the defendant. Heckert's third conviction has only a minor impact on the "guilt by association" factor that Herbert argues prejudices him.

Herbert claims on appeal that "Mr. Heckert was the only witness to corroborate Mr. Herbert's assertion that he had not been selling drugs on the street that night." Heckert testified that when he saw the defendant that night, he did not see him dealing drugs. This testimony is of little consequence since Heckert testified that he was not with the defendant the entire night. The officer who arrested the defendant, who knew Heckert,

testified that he did not see him at the time of Herbert's arrest. Any prejudice to Herbert is so slight that we can not discern its effect.

Affirmed.

19970121 ...


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