State v. Brown

assault, a negli- can be liable for under beverages alcoholic obviously it overserves an intoxicated theory, when gence patron).

Nonetheless, Appeals affirms the Court of majority minds cannot find decision, that reasonable that a holding overserving result of an obviously is a foreseeable stabbing a switchblade. Prosser's possessing guid- minor intoxicated possible repeating: gravity "As the harm ance bears increases, apparent likelihood of its occurrence need be duty generate precaution." less to correspondingly I Long, Keeton In and at 171. would reverse Prosser § for trial. remand En 53997-9. Banc. October 1989.] [No. Washington, Respondent,

The State of James Brown, Petitioner. Artis Washington Appellate Lenell Nussbaum Defender petitioner. Association, for Attorney, Cynthia Prosecuting Maleng, S.C. and

Norm Attorney, respondent. Appellate Gannett, Senior primary are whether issues Brachtenbach, J. prior properly theft con- misdemeanor admitted trial court 404(b), pursuant trial court and whether to ER victions felony prior and a ruled that the same convictions properly impeachment purposes theft conviction were admissible ER 609. pursuant relating this state's law changes

Our decision this case respects; change to ER in a number of each has been stare carefully. principles are mindful of weighed We decisis, prior altered decisional law. lightly and we have has, and the issues by legal Yet its factual status this case resolved, comprehensively the need to to be demonstrated admissibility prior convic- respecting reevaluate the law reevaluation, in such have and engaged tion evidence. We decisions, of this court's find it essential to overrule some whole or in part. two charged with counts of second

Defendant Brown was by deception theft of cash from degree theft. Both involved by a man who approached victims who were offered to sell equipment. In each televisions and video case the salvaged Seattle, location in gave victim the man to a certain drove merchandise, him and then cash to waited vain purchase the money. for him he left with to return after preclude trial, defendant moved the State Prior prior of three theft presenting from convictions. prior evidence of two sought present The State misde- 404(b) under ER to show a meanor convictions common plan by deception prove of thefts Brown's or scheme modus operandi use of the same in the identity upon based used in the misdemeanor crimes as thefts. charged use the two misdemeanor The State also wanted to convic- conviction as felony impeachment theft plus tions The trial court ruled that the prior evidence under ER 609. by could be used the State under misdemeanor convictions 404(b) prior felony and that both ER and ER con- State under ER 609. viction could be used described the thefts. The first count At trial the victims from a restaurant by deception $600 involved theft 14, 1984, he met September that on owner who testified purchase restaurant and agreed with outside the Brown him at sub- equipment televisions and video from salvaged He testified that Brown stantially prices. reduced further then left with the restau- left his car at the restaurant testified that rant owner's son-in-law. The son-in-law Seattle, him took Brown directed to a certain location cash, left, The restaurant owner and did not return. car, returned for the days testified that or 3 later Brown refused to release unless the which the restaurant owner reported The theft was money was returned. Brown left. owner nor his son-in-law police. the restaurant Neither However, photo montage. police identified Brown from a both him in court as the thief. identified by deception theft

The second count involved $400 17, 1984, couple renovating from a who were an December The wife testified that Brown apartment building. building and offered to approached apartment her equipment and video at greatly sell her televisions salvaged buy two TV's couple agreed and one prices. reduced Brown, drove to a cash VCR. The wife left with machine agreed upon, and then p.m. $400 about 6 to obtain by Brown. She specified location testified drove to a Seattle Brown, left, he and she the cash to waited for gave she Thereafter, flagged over for him to return. Brown an hour off and her started to drive directed her to down as she left, in Seattle. He again drive to other locations and did not return. wife, claimed he days

Two later he called was before, he had the "spaced and told her merchandise. out" approached couple Brown again On December this time the husband went with apartment building; at the the merchandise. He testified that Brown get Brown to Seattle, him locations demanded directed to several an $40, did not return. Both the additional and left and hus- testimony they reported had presented band and wife trip the wife's with Brown and police the theft to the after trip went with Brown on second the husband discover a method to lead to try to evidence or gather apprehension. Brown's

525 described the independently husband wife and Both the (Brown his neck scar on large having as police to the thief identified Brown scar), independently and each has such Brown Both identified montage. photo police from a the thief. court as misde- Brown's two the victims of called

The State of those circumstances thefts, described the who meanor incidents, that testified, separate as to Both victims thefts. salvaged sell them and offered to them approached Brown cash, they that drove for equipment and video televisions that Brown left specified, in Seattle he Brown to a location merchandise, and return with the did not with the cash and Each victim again. them approached that Brown later as the thief. Brown identified by trying first count establish defended

Brown thief, at the time of the that else was that someone from a boil on his foot and had a suffering was theft Brown only he wore one shoe when he and that limp, noticeable the car. Neither the res- get the restaurant was driven to described the thief as his son-in-law nor taurant owner count, shoe. As to the second missing a limp or having a A man for he alibi defense. whom an presented Brown that Brown worked for rolls testified carpet shifting worked him 7 He recalled p.m. p.m. until 17 from December said, employees he and his discussed date, because he a Christmas getting talked about Brown Christmas records of keep the times did not employer This tree. him, specifically any nor could he recall Brown worked him. A longtime friend of worked Brown other time that that on December she family testified his Brown and p.m. by Brown came about 7:30 candy and that making was stayed said he about her. She tree for with a Christmas and a tree lot were carpet place said hours. She also in Renton. her home walking distance within the State and the but after testify, Brown did chief, his counsel made an cases their presented defense testimony would have Brown's to what as proof offer of in limine. his motions granted court the trial been had Essentially, Brown would have denied the thefts and cor- testimony. roborated his witnesses' guilty

The found Brown not as to count but jury guilty 2, the theft of Appeals as to count Court of $400. Brown, conviction, affirmed Brown's 47 Wn. App. (1987), P.2d 693 other holding, among things, that erred in felony the trial court convic- Appeals held, tion was admissible. The Court of further however, was harmless under a error constitutional affirm, standard. We but employ harmless error different Appeals. the Court of reasoning than did the trial court erred Brown maintains admitting misdemeanor theft prior the two convictions under ER 404(b). the evidence was argues He that not relevant nor necessary a element necessary prove was it to of the crime prior the thefts were charged. merely He reasons that simi- crimes, and factually charged lar to the were not signature identity. sufficient establish crimes to a prove not admissible to witness'

While character or in conformity to he or she acted with show that that char acter, crimes, wrongs, other may evidence of acts be example, purposes, motive, admissible for other for to show intent, plan, opportunity, preparation, knowledge, identity, 404(b). or absence of mistake or accident. The trial for which the identify purpose court must the evidence is introduced, and determine sought to be whether the evi essential prove dence is relevant to an element of the crime Smith, State v. 772, 776, 106 Wn.2d charged. P.2d 951 Saltarelli, State (1986); 98 Wn.2d 655 P.2d 697 (1982); relevancy ER 402. The determination requires that the the evidence is purpose sought which to be intro duced is of to the outcome of the consequence action and that to make the the evidence tends existence of the iden Smith, 776; Saltarelli, probable. tified fact more at at 362- relevant, 63. If the court the information it finds must then the the weigh probative record value of the evidence Jackson, effect. State v. against its prejudicial 102 Wn.2d 694, 689 P.2d 76 Here, which to intro- purpose sought the the State identity the evidence was to establish the of the thief. duce case, to identity consequence In this the of the thief was of action in light proffered the outcome of the of Brown's 1 that man was the and his defense to count another thief 2. alibi defense to count to requirement

As to that the evidence tend the fact more probable, make the existence identified intro prior sought crime is be have said that where identity, method establishing for the the purpose duced "must the other crime employed charged crime and unique proof be so that mere that an accused committed high he probability one of them creates that also commit Smith, Lau charged." (quoting ted the act at 777 reano, 745, 764, (1984)). Here, charged each of the misdemeanor thefts and the prior approached the victim with an offer of sal crimes thief or video at vaged equipment savings, televisions substantial Seattle, part to drive a certain directed victim from mer (ostensibly purchase took cash the victim chandise), not return the vic waiting, left the victim did location, at that to or tim returned contacted later. We victim short time conclude these similari satisfy method requirement employed ties be charged crimes and crimes so distinctive created a proof that Brown committed the crimes probability charged that he committed the crimes. high it orally jury trial instructed the before just court testimony prior from the victims of the misdemeanor heard the that was not to be considered thefts the evidence per- a proof the of that the defendant was purpose for jury person predis- that with a son of bad character or he was trial; the he to commit the crimes for which was on position only the could he considered court instructed that evidence tends to determining of whether it purpose the limited of or scheme as an essential element plan a common prove In Proceedings, jury of at 227. Report crime charged. the the similarly jury, instruction 15 court instructed add- the however, ing, that the jury could consider the evidence for the limited of purpose determining whether lack acci- scheme, tended "to prove plan common or of dent or mistake of an essential element the crime [as] ours.) (Italics charged." Papers, Clerk's at 54. The record is unclear, the language adding but lack of accident or mis- take may have arisen because the prosecutor argued response to defendant's motion for of the severance two counts that it was his understanding that the defense would be alibi raising an defense to both counts and would be him, it was arguing that that there must be some mis- take; prosecutor State argued the should be allowed to mistake, accident, show that there was no no that defendant type used the same swindle time. each When the trial prior court thereafter ruled that misdemeanors were 404(b), under admissible the court reasoned in part that testimony would be support argu- ment against absence of "that accident mistake com- parable type offenses involve other would victims than those involved the immediate two charged." offenses Report Proceedings, at 76. There is indication no who jury drafted the written instruction. 404(b)

We contemplates believe admission of convictions lack of purpose showing acci dent or cases the prior mistake where tend to convictions disprove a claim that underlying defendant's the conduct the charged crime occurred as result of accident or mis take. There was no claim here Brown deceived victims into him giving purchase cash to TV's or salvaged video equipment as result of an accident or mistake. Jury instruction was erroneous insofar as it suggested to the jury it could consider the misdemeanor convic tions for the mistake. purpose lack of accident or None theless, except Brown did not to instruction 15 nor has he issue aspect admissibility raised as an this under ER 404(b). fact, In Brown in his brief "the absence states of mistake in favor of mooted the common scheme cautionary by the court's later plan ruling shown [as] 32. In his Appellant, RP 227." of at instruction Brief [at] that argument clear Brown's is petition for review it is not crimes sufficient prior signature crimes were identity. given the instruction was Although establish it, incorrect, Brown not decline challenged has be revers- decide whether the instruction would otherwise its We conclude that the trial court did abuse ible error. misdemeanor theft con- by admitting prior discretion 404(b). to ER pursuant victions if appears prior

Brown to concede that misde ER properly meanor convictions were admitted under 404(b), proper impeach use these crimes was for then of 609(a). Review, Petition at 13. ment under ER for purposes Laureano, prior at "when a conviction We said ER under has been admitted as substantive evidence 404(b), a of that same conviction is admissible as matter 609(a)." impeachment purposes Upon course under ER reflection, we conclude that this statement is incorrect. We 404(b), if is ER have said that evidence admitted under purpose trial should which explain jury court admitted, cautionary is give the evidence and should to be for no instruction that the evidence is considered Goebel, Saltarelli, at State (citing other purpose. 367, 378-79, (1950)); see WPIC 5.30. Wn.2d 218 P.2d 300 where crimes is admitted under Similarly, prior witness' credi purpose impeaching for the is the conviction bility, given instruction should be an and, only credibility, on the issue the witness' admissible may impeached, not be where the defendant witness 4.64; See WPIC on the issue WPIC guilt. considered Passafero, State v. 5.05; 5.06; 79 Wn.2d WPIC cf. (same (1971) issue; adoption decided before Summers, 244, 246-47, 437 609); (same). (1968) potentially Due prejudicial to the

P.2d 907 evidence, limiting instruc these nature of conviction Therefore, where evidence importance. critical tions are of of a defendant's conviction is admitted for a substan- 404(b) purpose tive under ER and the evidence is also ruled impeachment admissible for purposes, jury should be given limiting instructions as to each purpose for which it may consider the evidence. premise,

From this specific the requirements 609, of ER and our cases 609, ER interpreting it follows that 404(b) all convictions admissible under ER are also auto matically admissible under ER 609. Former ER prov ides:1 purpose For the attacking witness, of credibility the of a evi- dence that he has been convicted of a crime shall be admitted if examination but by elicited from him public during or established record cross (1) only if punishable by the crime was death imprisonment year or in excess of 1 under the law under which convicted, he was and the court probative determines that the value of admitting this evidence outweighs prejudicial its effect defendant, (2) to the statement, or involved dishonesty or false

regardless punishment. Where prior conviction was not punishable by death or imprisonment 1 year, excess of and was not a crime dishonesty statement, involving or false it is not admissible under ER 609 regardless admissibility of its under ER 404(b). The always State is therefore not entitled to an instruction may the conviction evidence be considered by jury purpose the for the weighing of the defendant's credibility merely because the evidence is admissible under 404(b). ER "Simply because a defendant has committed a crime in the past does not mean the defendant will lie when 1, 1988, September provide: 1The rule was amended effective (a) purpose attacking credibility General Rule. For the of a wit- case, ness a criminal or civil evidence that the witness has been convicted of by public a crime shall be if admitted elicited from the witness or established (1) during only punish- record examination of the witness but if the crime was imprisonment year able death or in excess 1of under the law under which convicted, probative the witness was and the court determines value admitting outweighs prejudice party against this evidence to the whom (2) offered, statement, dishonesty regard- the evidence is involved or false punishment. less of the impact dated Order June 1988. The amendments do not affect the of our deci- sion here. 677 P.2d Jones, State testifying." credibility, key to the believabil- (1984). A defendant's matter from a different testimony, quite ity of his 404(b). ER admitted under evidence is purposes for which may be crime prior is instructed jury Where a credibility as the defendant's question on the considered assumption the reasonable identity, as on the issue well on that weight even place greater will jury is that to con- instructed if the were jury than it would conviction Therefore, identity purposes. only evidence sider the requirements meet ER 609's crime does not where 404(b), admissibility under independently evi- particularly prejudicial exposed could be defendant undue under may weight ascribe jury to which the dence 404(b) is auto- under ER any crime admissible rule that under ER 609. matically admissible 609(a)(1) judge trial to bal- course, requires

Of effect before prejudicial against probative ance in imprisonment death or punishable crimes admitting dishonesty or false 1 do not involve year which excess 404(b) the trial court statement, requires ER also effect. On the prejudicial value probative against balance already hand, engaged trial court has because the one 404(b) the evidence is purposes and balancing for ER this chief, it seems case substantively the State's admitted would result to the defendant prejudice little additional as purposes impeachment the evidence for admitting from 266-67, 253, 716 App. Burgess, 43 Wn. well. See (1986). Moreover, denied, review P.2d procedure balancing in the to be considered major factor 609(a)(1) importance the comparison of is a under the of events with account the defendant's jury hearing the State convictions. prior it know of his importance that (1980). A defendant 15, 19, P.2d 1269 Alexis, Wn.2d may elect of convictions evidence impeachment with faced ER 609 has been upon which this is one basis testify; not to 20-21, Burton, 101 Wn.2d See State v. criticized. the (Brachtenbach, J., Where (1984) dissenting).

P.2d 975 404(b) already evidence has been admitted for ER pur- however, poses, there is little additional effect on the to defendant's decision which would result from the admitted for being impeachment purposes. hand, applies by only On the other ER 609 its terms purpose attacking convictions admissible "[f]or credibility balancing procedure of a witness". Unlike the for 404(b), purpose evidence offered for a under ER the bal- ancing process purposes for ER 609 must be made with this principle mind.

Therefore, prior we conclude that once a conviction has 404(b), been ruled admissible under ER the trial court should consider this fact when it in the engages balancing 609(a)(1). procedure required part under ER As of the comparison importance jury court's of the hear importance defendant's account of events with the conviction, Alexis, 19; Jones, at jury prior know of the at jury the trial court should consider the fact that conviction, already admissibility its prior has learned unlikely defend- impeachment purposes is to affect the stand, may ant's decision to take the and therefore there be prior little from prejudice resulting additional impeachment under ER purposes conviction admissible 609(a)(1). Burgess, See at 266-67.

Where the conviction is to be admitted sought 609(a)(2), however, trial obliged under ER court dishonesty admissibility involving its as a crime determine independently or false statement of its decision admit 404(b). evidence under ER the conviction admissibility issue under ER We turn to the 609(a)(1) above, theft convictions. As set forth punishable by allows for convictions death admitting in if the trial court deter- imprisonment year excess of effect. ER probative outweighs prejudicial mines that value 609(a)(2) purposes admitting impeachment allows for statement, dishonesty involved or false convictions which Therefore, if a conviction punishment. regardless by ER it is covered dishonesty involved or false statement 609(a)(2) by imprison- if it was death or punishable even 609(a)(2) year. significantly in ER differs ment excess of 609(a)(1) because, if the conviction offered from ER 609(a)(2), scope within the of ER impeachment purposes is automatically impeachment purposes; admissible for it is in balancing probative engage the trial court does not Jones, supra State v. at effect. against prejudicial value contrast, consistently recognize we have refused to By 117. purposes any per admissibility impeachment se rule for Jones, See, e.g., supra State v. 609(a)(1). 119; at under ER Alexis, supra. State v. way simply This refusal another required under the saying balancing procedure directly par- one related to the meaningful rule must be a ticular circumstances of the case. in ER question relating ruling

The initial to the properly preserved alleged this case is whether Brown has convictions ruling error the trial court Pam, In State v. 748, 763, P.2d admissible. 98 Wn.2d (1983) (Utter, J., result), concurring majority he or she this court held that a defendant must state that if would convictions were excluded and his or her testi proof outlining must make an offer of what in mony requirement would be. We reiterated this Koloske, 889, 897, (1984), objectives requiring listed a number of which an offer First, promote. tend to a trial court would find proof would proof necessary to the court's evaluation of the offer of before a testimony of the defendant's to a case significance Koloske, be made. at admissibility on could proper ruling course, necessarily only relates to a this objective 897. Of 609(a)(1). ER As we have admissibility under question dishonesty involving for crimes explained, prior convictions automatically admissible under false statement are 609(a)(2) engage balancing and the trial court does effect against prejudicial value probative of the defendant's It follows that the nature admissibility. to the determination testimony is irrelevant proposed 609(a)(2). admit under meet,

The second an objective proof offer of tends to we noted, is to limit use a defendant of ruling an as one more ground appeal case of conviction even Koloske, where the defendant has no intention of testifying. Next, at 897. requiring the defendant to the submit antici- pated testimony allows the trial judge pos- to consider the sibility that portray the defendant will himself or herself as an innocent among thieves should the trial court rule the prior Koloske, conviction evidence inadmissible. at 897. Finally, testify, where the defendant elects not to the offer of proof appellate Koloske, becomes essential to review. at 897.

Then, LeFever, 777, 786, in State v. 102 Wn.2d 690 P.2d (1984), made, proof we held that the offer of if must be the defendant elects not to testify, at the time the trial court makes its ER 609 We ruling. reasoned that the court can then the properly importance evaluate of the defend- ant's testimony properly balance value probative admitting prior conviction evidence against prejudi- its LeFever, Moreover, cial effect. at 786. requiring the offer of proof to be made at the time the trial court makes its said, ruling, enables the trial court comply with Jones, requirement we set forth 113, 122, (1984), the court state for the record the factors admission or favoring exclusion of LeFever, however, evidence. at 786. Again, requirement in LeFever proof the offer of be made when the trial court supported by makes its ER 609 is the reasons ruling in LeFever given only prior felony the case of a convic- tion not involving dishonesty or false statement. Where the relevant is prior dishonesty conviction for a crime involving statement, or false engage court does not the balanc- process testimony and the nature of the defendant's ing However, irrelevant. the offer still proof serves assure rul- proper appellate impact review of an erroneous 609(a)(2); ing admitting prior conviction evidence under ER appellate court has some for determining then basis harmless. whether error was address, time,

We the first the United States Supreme States, Court decision in Luce v. United 469 U.S. L. There, Ed. 2d 105 S. Ct. 460 during trial, the defendant moved for preclude the gov- ernment impeaching from him with a conviction. The defendant made no commitment if the motion were granted, nor did he make a proffer to the court as to testimony what his might be. The District Court ruled that conviction fell within the category permissible 609(a), under Fed. R. Evid. and then reasoned that the nature and scope of the testimony defendant's could affect the specific court's evidentiary The rulings. court therefore in denied the limine motion. The defendant testify; did not jury the guilty returned verdicts. The Court Appeals, Circuit, of Sixth affirmed.

The Supreme Court took the case to in split resolve a the federal courts over whether a in testify defendant must order preserve to in alleged error rulings admissibility on prior conviction evidence. The Court held that to raise and preserve for review the claim of improper impeachment conviction, with a prior a Luce, defendant must at testify. 43. The Court recited a number of reasons its supporting " First, holding. the Court reasoned that reviewing court [a] is in handicapped any effort to evidentiary rule on subtle questions outside Luce, a factual context." 41. at The Court noted that especially this is true where the trial court must engage probative balancing prior value of the conviction against its prejudicial effect to the defendant 609(a)(1). under ER The precise nature of the defendant's testimony, which is needed perform to this is balancing, unknowable where the testify. defendant does not Court said requiring a proffer defendant to make a testimony does not resolve problem, the as a defendant's testimony could differ proffer any from the number of Luce, reasons. at n.5.

Moreover, reasoned, "[a]ny possible Court harm flowing from a district court's in limine ruling permitting a impeachment by prior wholly speculative." conviction is Luce, at 41. The as the case ruling subject change is to unfolds, testimony may differ from because defendant's may which the or the proffered judge defendant Luce, 41- at change during limine later trial. Further, testify, where the defendant does not 42. way govern-

reviewing knowing court has no whether impeached fact have the defendant with ment would Luce, example, at 42. For if the conviction evidence. prior against strong, is means defendant other case available, are evi- impeachment and the conviction inadmissible, may elect arguably prosecutor dence Luce, at 42. to use the conviction to impeach. not Next, defendant's the Court reasoned that because a on testify whether seldom turns resolution decision factor, reviewing court assume that defend- one cannot testify ruling. from an adverse decision resulted ant's Luce, at 42. 609(a) rule

Finally, rulings the Court noted that if any appeal, were almost motions limine reviewable on reversal; in the would result windfall of automatic error appellate term 'harmless' an logically "the court could not testify- from presumptively kept defendant error Luce, requiring at 42. The observed that Court ing." error in rule preserve alleged defendant the record reviewing enable a court to examine rulings will impact any erroneous a whole determine as use discourage impeachment, and will tend defendant's "plant" reversible error should the defendant of motions Luce, 42. convicted. at be course, in not, of decision

We are bound to follow the Luce, A as federal courts are. few courts have declined Whitehead, 104 Luce State v. N.J. accept holding. (1986); Contreras, 108 A.D.2d 353, People 517 A.2d v. 373 McClure, (1985); Or. 627, 485 261 State v. 298 N.Y.S.2d Richardson, 336, (1984); Commonwealth v. 692 P.2d 579 (1985). two 564, Pa. At least Super. 347 500 A.2d 1200 yet they adopt will have declined to decide whether courts States, A.2d 760 holding. the Luce Askew v. United 540

537 (D.C. 1988); Commonwealth v. Cordeiro,_Mass._, 519 Lamb, State v. (1988); 633, N.E.2d 1328 321 N.C. 365 cf. (1988) (court declines to decide whether Luce S.E.2d 600 608(b)). applies context of rule majority however, courts considering question, adopted have Luce Means, State v. (S.D. 1985); holding. 363 N.W.2d 565 State v. Gentry, 747 P.2d 1032 (Utah 1987); State v. Moffett, 729 (Tenn. appeal 1986), S.W.2d 679 App. Crim. denied, State, 9, 1987; (Fla. Jimenez v. Feb. 480 So. 2d 705 Harrell, State v. 1985); Dist. App. 255, Ct. 199 Conn. 506 State, (1986); Richardson v. A.2d 1041 733 S.W.2d 947 (Tex. grounds, vacated on other 1987), Ct. App. 761 S.W.2d State, Benavides v. (1988); (Tex. 19 763 S.W.2d 587 Ct. petition 1988), filed, review State v. App. 27, 1989; Feb. Glenn, v. 384, 285 S.C. People (1985); 330 S.E.2d 285 Brewer, (Colo. Allie, State v. 720 P.2d 1985); 596 Ct. App. 320, (1985) 147 Ariz. 710 P.2d 430 (prior Arizona law was Luce); People Collins, v. consistent with 378, 42 Cal. 3d 722 173, Garza, State v. P.2d 228 Cal. Rptr. (1986); 899 109 40, (Ct. v. Rush- Idaho People App. 1985); Bey, 17, 152 Ill. App. denied, 1193, 3d appeal 503 N.E.2d People Redman, v. (1987); 511 N.E.2d 435 141 Ill. App. 3d denied, 691, 958, appeal 490 N.E.2d (1986); People June 3 v. Finley, 431 Reed v. (1988); Mich. 431 N.W.2d 19 Commonwealth,_Va. App__, 366 S.E.2d 274

A few other courts the Luce approved have reasoning Whitehead, different contexts. People v. 116 Ill. 2d 508 N.E.2d 687 (involving admissibility during of statements psychiatric purposes examination for discrediting denied, cert. if testified), defendant he 108 S. Ct. 307 State, v. (in Vaupel (1987); 1985) P.2d (Wyo. 1248 609(b)). context of rule Appeals The Alaska Court of Page State, to favor Luce v. appeared P.2d (Alaska but later held the Luce rule 1986), App. inap Ct. plicable where the record was adequate otherwise State, Wickham address trial ruling. court's 770 P.2d (Alaska 1989). App. Finally, Ct. as the Minnesota Court Ford, n.1 Appeals observed 381 N.W.2d (1986) (Minn. denied, in a case Mar. 27 App.), Ct. review Luce the Minne- was handed down decided 7 months after issue Supreme Court reviewed rule sota State that testify and found by a defendant who failed to raised admitting court not abuse its discretion the trial did State purposes. evidence for prior impeachment conviction Graham, did not court N.W.2d Luce. address considering question the of the majority

While courts Luce, of num- adopted have we do not that suggest weight Luce adopt will bers is determinative as whether we However, survey of court rule. our state decisions accepted widely that the Luce rule is a issue serves show involving a number of difficult concerns resolving means rule rulings. review of our led to

When we consider the reasons which in Pam and proof offer of adoption requirement Luce, it is reasoning Koloske and them compare already approved have apparent essentially we Thus, States Luce. we share with the United reasoning ability Court concerns about the trial court's Supreme convic probative admitting value of meaningfully balance impeachment purposes under tion 609(a)(1) defendant; assur against effect to the prejudicial another "plant" the defendant does not error as ing review; ground appellate meaningful providing and Moreover, appellate review. agree record for from offer testimony may any defendant's actual differ Further, errone impact of an proof. any assessment of necessarily prior ous conviction evidence is admitting speculative where the defendant does concerns evidence is not introduced the State. These adopting favor of the Luce rule. weigh holding the Luce adopting We also consider whether unacceptably infringe upon rights the defendant's would with, treatment goal judicial be inconsistent of fair expressed In criminal defendants. our cases we have concern the impact rulings admitting with convic- purposes upon tion a defend- impeachment Jones, State v. right testify ant's in own defense. to his Const, Const, supra 1, 124; 6; at U.S. art. 22 amend. § (amend. 10). prejudicial of such evi- inherently nature may significant dence have a effect on the defendant's deci- sion However, to have never admission of testify. we found constitute an conviction evidence under 609 to even procedure unconstitutional where error occurred. Instead, have applied a constitutional harmless error standard to an erroneous conviction admitting prior evidence, light in of the constitutional of the significance ruling on the testify defendant's to right prejudicial Jones, supra such evidence. See State v. 125; nature of at Harris, 148, (1984). 157, Wn.2d 685 P.2d In Luce Court the petitioners' argument addressed based on cases Fifth to involving challenges Amendment state rulings court to dissuade operating defendants from said testifying, and that the Court not hold that "did a federal preliminary ruling question court's on a not reach- ing constitutional dimensions—such as a decision under 609(a)—is v. Rule Luce United on appeal." reviewable States, supra at Luce in 42-43. It is evident that the Court perceived holding no bar to its based Fifth upon Amend- concerns, nor, ment implicitly, upon Sixth Amendment agree concerns. is We that there no constitutional bar to the Luce rule. Luce

Moreover, even may affect though the rule a testify defendant's in or decision to that he she will be 609(a) unable to in rule appeal alleged raise error a rul- testifies, believe, ing unless he or she we do not even this assuming concern is the determinative one for the case, particular defendant in a defendant requiring overly to testify make the choice whether to is burdensome. Supreme As the States Court has United said: process, system, legal The criminal the rest is like replete requiring judg- "the of difficult making with situations may Although ments" as to which course to follow. defendant dimensions, to follow constitutional right, have even of chooses, does not he the Constitution whichever course requiring him to choose. The threshold always token forbid to impairs an question appreciable involved. compelling whether the election rights any policies extent behind omitted.) (Citation 402 U.S. California, McGautha L. Ed. 2d S. Ct. 1454 take the requiring do think that the defendant We is mea- alleged stand rule error preserve order to make surably from the defendant compelling different testify if first as to whether place the decision admitted; the defendant might conviction evidence be may exercising right his or her have to choose between possibility or own face the his her behalf and may be a While this being impeached, remaining silent. choice, necessarily every inherent it is one difficult admitted prior may conviction evidence be instance where 609(a) 609(a). ER under Fed. R. Evid. underpinnings as its conclude the Luce rule has

We in adoption this state. agree justify reasons which we its in Therefore, alleged in error preserve hold that order to we impeach- for admitting prior a conviction evidence ruling 609(a), take the a defendant must purposes ment under applies rulings under both testify. holding stand and Our of 609(a)(1) (2); desirability in and the latter case the any error record for review to determine whether complete trial although Luce rule the is harmless error favors the testimony to balance court does not need the defendant's effect to prejudicial probative against value in order to make its decision whether defendant holding our we neces- prior By admit conviction evidence. Koloske, Pam, LeFever to the extent sarily overrule and of a defendant they timely proof established that offer preserve rulings error trial court properly alleged could impeach- for admissibility of conviction evidence on purposes. ment Therefore, if we

Here, testify. apply Brown did case, propriety reach the of Luce rule this need not trial ruling court's Brown's theft con- admitting victions. the Luce apply

Other courts have declined to rule of cases tried before the rule was As a adopted. question application, example, retroactive the United States Luce applies Appeals, Circuit, Court of held Ninth has Givens, States v. United prospectively only. 767 F.2d denied, cert. (9th Cir.), reaching 474 U.S. In conclusion, applied this the court three factors set forth Huson, Chevron Oil Co. 106-07, 404 U.S. L. 2d Ed. (1971): 92 S. Ct. 349 (1) (2) law, principle whether the decision new establishes a of application whether pur- retroactive will further or retard the (3) poses of the question, rule in applying and whether the new produce inequitable decision will substantial results. Givens, at 578. that, The Ninth Circuit reasoned as to Luce established a new factors, and first third principle which, if law applied retroactively, would "wreak a sub inequity stantial by precluding from chal [the defendant] lenging admissibility proof his prior convictions." Givens, at 578. was This the case particularly because Luce Circuit Ninth had an established procedure prior to requiring the to do things preserve defendant two a rule (1) ruling appeal: establish the record he or she would in take if fact the stand and (2) evidence, the prior excluded conviction outline testimony nature his or her proposed sufficiently so that the trial court reviewing and the court could in the engage balancing required by the rule. defendant had com with these plied requirements. The court determined that (that Chevron although the purpose second factor the Luce be holding by "providing would furthered the trial with testimony ruling") court concrete on which base its Luce rule, first application favored retroactive Givens, A outweighed third factors that at and factor. 578.2 by distinguished court an Eleventh remanded 2The Circuit case the United Luce, DiMatteo, v. Supreme light United States 1361 States Court 716 F.2d remanded, 1101, (11th 1983), 767, vacated and 83 L. S. Cir. 469 U.S. Ed. 2d 105 542 Luce rule have also adopting of state courts

number See, State v. Har- e.g., the rule prospectively only. applied (1986); Collins, rell, v. 255, People Conn. 506 A.2d 1041 199 378, 173, (1986); Rptr. 722 P.2d 228 Cal. 899 42 Cal. 3d (Utah 1987). Gentry, v. P.2d 1032 State 747 Circuit, Appeals, Court of Third how- The United States United ever, retroactively. has held that Luce applies (3d 1985). Dunbar, The Third v. 767 F.2d 72 Cir. States reaching its applied the same Chevron factors Circuit Key to the applied as the Ninth Circuit Givens. decision had its it not Third Circuit's decision was conclusion testify previously that a defendant need not held precisely error, split on the federal courts had preserve in order prin- Luce not a new and therefore did state question, nor suffer a substantial of law did defendant ciple and in that he had the hardship opportunity Dunbar, at 74- existing not been law. relying could have 75. 529, Rhoads, 535, 681 P.2d

In State v. 841 Wn.2d Jones, (1984), supra in State v. we held that our decision (that state the reasons for a trial court for the record evidence) consti- admitting prior conviction excluding or past apply not a clear break with the which would tuted filed. We to cases tried before the decision was retroactively the Court of to Jones trial courts and noted in State upon relied our statement Appeals justifiably had (1981), 893, 888, Thompson, v. Wn.2d state, record, any reasons for on the the trial court need In evidence. reach- admitting excluding prior conviction decision, analysis set applied retroactivity we ing our in United States Supreme United States Court forth Johnson, L. 2d 102 S. Ct. 2579 457 U.S. Ed. beyond Fourth (1982), adopted expanded which Pam, Wn.2d 659 P.2d cases in Amendment (1985), rely did not on the law of the Ct. 769 on the basis that there the defendant Givens, purposes appeal. making 578. his at circuit record in longer Johnson no law We note that is the federal courts, the Court Supreme recently because United States held, newly at least insofar as declared constitutional rules concerned, are "a new for the rule conduct criminal prosecutions applied cases, is to be to all state retroactively final, federal, yet direct review or not with no pending cases which the new rule exception for constitutes past." Kentucky, 'clear break' the v. with 479 U.S. Griffith (1987). Ed. 93 L. 2d 107 S. Ct. 708 The Court however, in Griffith, retroactivity analysis noted governed by civil cases continues to the be standard Oil, n.8, in Chevron Griffith, announced at 322 which is the analysis 3-factor used Ninth Third the and Circuits in course, deciding apply retroactively. whether Luce Of Givens Dunbar were and decided before and there- Griffith effect, fore if any, did not address what holding Griffith would in this area. have itself involved retroactivity Griffith of a new constitutional rule procedure of criminal beneficial defendant, to the replete with references to treating similarly situated defendants the same and providing all yet defendants whose cases are final with the same "lucky benefit as the individual whose case was chosen as (Cita- occasion for the new announcing principle ..." omitted.) tions Griffith, at 327. is thus unclear as to whether holding its applies

Griffith in cases where a new rule works the disadvantage of the Moreover, defendant. specifically involved a new Griffith rule, constitutional as had Johnson. At one least court has applicability limited to rules of constitutional Griffith's (3d Owens, Diggs dimension. 1987), F.2d 439 Cir. denied, cert. L. Ed. 2d 488 retroactivity

While we have extended analysis federal cases Fourth cases, other than and Fifth Amendment we decline to apply holding add, here. We hasten to Griffith's however, one, strictly issue is not here speaking, retroactivity, instead the question but involves whether apply this, Luce rule in the case which we adopt that rule. Ninth Circuit

Nonetheless, analysis by believe in that circuit when persuasive. Givens is As was true down, law this at the time Luce was handed state required his clearly only trial that he state inten- Brown's ruling admitting but for the convic- tion to proof. Having he make a sufficient offer of tions and that requirements a defendant precisely established which type alleged to this error for satisfy preserve had to review, the will not the rules after fact appellate change we the defendant from that review. We conclude preclude to testify preserve that a defendant must to holding, that our 609(a) admitting prior in ER convic- rulings errors alleged evidence, apply prospectively will from the date this tion opinion is filed. turn, then, whether, law, prop- Brown under

We ER for appellate the issues review. erly preserved testify Brown's intention to but for counsel stated Brown's only proof, made an offer of but did so after ruling, the State's cases chief. presentation of the and the defense's Thus, one, ruling pretrial was a however. trial court's his his did not state intention to and make Brown As proof ruling. at the time the trial court made its offer of if evidence explained, the conviction was we have 609(a)(1), of proof under ER Brown's offer was admitted 777, 786, LeFever, 102 690 P.2d timely. State Wn.2d not the the time made trial court ruling, At it its probative value have been unable to balance would defendant, to the nor prejudicial effect against evidence for admission or for the record the reasons it state could hand, prior conviction evi- If, on the other exclusion. 609(a)(2), then the offer of under dence was admissible preserve a record properly be made time proof had to review, necessarily at the but appellate purposes pretrial ruling. court made its time the trial confusion as to basis discloses some The record the court could not have Although ruling. trial court's under ER convictions prior misdemeanor admitted 609(a)(1), proba have considered the appears the court preju convictions against tive value of all three admitting three The court said that all dicial effect to defendant. this consideration to honesty, offenses involved and related The court credibility the "dominant" issue of the case. probative stated that value of the conviction potential to the defendant. None outweighed prejudice theless, which of the the court did not state for the record purposes balancing factors defined for of the previously exclusion, see process favored admission and which favored Alexis, State v. (1980); 621 P.2d 1269 Wn.2d Jones, State v. 113, 121-22, (1984), P.2d 131 as required ruling admitting prior for a conviction evidence 609(a)(1), Jones, under ER at 122. event,

In any we hold that all three theft convictions were automatically admissible as crimes dishon- involving Burton, 609(a)(2). esty under We overrule (1984) Wn.2d and cases it following which pursuant held that crimes of theft are not admissible to ER 609(a)(2). that, holding Our both establishes under these facts, proof preserve Brown's offer of sufficient was review, propriety appellate and at the same time resolves the of the propriety ruling.

In Burton we addressed for the first time the nature of falling 609(a)(2), crimes within ER and whether theft encompassed crimes were crimes involv- within the rule as dishonesty. We in ing language concluded that because the 609(a)(2), our rule was taken verbatim from Fed. R. Evid. it proper history was to look at the of the legislative federal rule and federal case developed law since the federal rule's in order to adoption construe our rule. We also said that generated theft crimes "have deal of confusion and great controversy because the in its common 'dishonesty' term lie, defraud, disposition connotes a cheat or meaning Burton, (citing at 8 arguably encompassing crimes of theft." Note, An the Phrase or False Analysis "Dishonesty of 609, Statement" as in 427, Used Rule Okla. L. Rev. 430 (1979)).

In 609(a)(2), relied on a defi- interpreting heavily we phrase nition of the false statement" as used "dishonesty or 609(a)(2) in in Judiciary Fed. R. found the Senate Evid. Committee which Report explained meaning phrase very narrowly as perjury, perjury crimes such or false state- as subornation ment, fraud, pretense, any or false or criminal embezzlement offense, falsi the other in the nature of crimen commission untruthfulness, which fication element of deceit or falsi- involves some bearing propensity truth- accused's

fully. Sess., 1277, Cong., reprinted S. No. in Rep. 93d 2d 7051, Except insig- U.S. Code & Ad. News 7061. Cong. order, in is the same defini- changes language nificant this phrase by tion accorded the the House-Senate Conference Sess., Rep. Cong., Committee. 93d 2d H.R. Conf. No. in & Ad. 7103. reprinted Cong. 1974 U.S. Code News crimen explained We then that at law the term common falsi does falsi referred infamous and that crimen crimes larceny. simple We concluded petit not include the crime dishonesty only those crimes which that crimes of "include crimen which contain in the nature of elements falsi directly propensity truthfulness." bear on a defendant's Burton, majority of the circuits at 7. observed We Appeals Court of hold that theft the United States R. admissible under Fed. automatically are not crimes 609(a)(2). "misdemeanor crimes of theft We held that Evid. 609(a)(2) unless there are inadmissible under general (such as unlawful issu- some element of fraud deceit 9A.56.060)." Burton, 10. checks, RCW at of bank ance law Burton is incon- Initially, on federal our reliance Newton, in State later approach with our sistent is, correctly as That P.2d 254 Wn.2d circuits of the United Burton, majority noted convic- have held that theft Appeals Court of States admissible, often on the automatically relying are tions Report construing Committee Conference House-Senate

547 609(a)(2) narrowly.3 majority these circuits also rule may inquire hold, however, that the trial court into the underlying of a in order to determine facts conviction involving dishonesty whether it was a crime or false in statement.4 While Burton we followed the federal inter 609(a)(2)

pretation construing identically in of rule our 609(a)(2), similarly worded ER we did not follow the fed inquiry underlying eral view that into the facts of the crime in was allowable to determine whether the theft crime dishonesty Instead, fact involved or false statement. supra, determining Newton, we held that dishonesty purposes whether a crime involves of ER 609(a)(2), underly may inquire the trial court not into the ing facts and circumstances of the crime. fundamentally, heavy upon

More our reliance in Burton legislative history upon federal and federal law decisional misguided. sought was When we to resolve the "confusion controversy" as to whether theft crimes are within ER 609(a)(2) by examining sight law, federal we lost of basic principles generally employ construing rules we have authored. principle

First, course, is the that federal case law interpreting binding upon the federal rule is this court. Simply because our rule is identical to the federal rule does 3See, e.g., Linskey Hecker, (1st v. States v. 1985); United 753 F.2d 199 Cir. Hayes, denied, (2d Cir.) (dicta), cert. (1977); Gov 553 F.2d 827 434 U.S. 867 Toto, Ashley, (3d ernment V.I. v. 1976); United States v. 529 F.2d 278 Cir. 569 Carden, (5th Cir.) (also, retracting States v. United language F.2d 975 529 F.2d denied, (5th Cir.), cert. (1976), suggesting 429 U.S. 848 conviction denied, cert. petit larceny 609(a)(2)), (1978); is admissible under rule 439 U.S. 853 Yeo, Ortega, (8th United States v. United States v. 1984); 739 F.2d 385 Cir. Glenn, (9th (9th 1977); United States v. 1982); F.2d Cir. 667 F.2d 1269 Cir. Seamster, Smith, (10th United States v. States v. 1978); United 568 F.2d Cir. (D.C. 1976). 551 F.2d 348 Cir. Grandmont, (1st 4United States v. 1982); United States v. 680 F.2d 867 Cir. Hayes, supra; Toto, supra (absent Government v.V.I. "special circumstances" Yeo, falsi); United States v. petit larceny conviction of is not a crime of crimen supra; Glenn, supra; Seamster, supra; United States v. States United United Smith, supra. States v. fashion, require interpret not rule in same nor us our the authority require could it us to do This is the final so. court concerned, this rules is interpretation insofar as State's and we free to the than do interpret differently are rules the federal as as we do run afoul federal long courts v. For Orwick prohibitions. example, constitutional Seattle, (1984), P.2d Wn.2d 692 793 we unani- 103 federal R.’ Civ. mously rejected interpreting case law Fed. 12(b)(6) P. we determined that case law was where that Further, analytically when we unpersuasive unsound. 609(a)(2), did not adopted thereby adopt we federal Comment, See legislative history. (this

(1978) explains substantially is comment our rule rule, the same as the federal and is more restrictive than law, prior but the comment is silent as to fed- Washington history and contains we legislative eral no indication that law). committed court follow federal this Second, grave have reservations about whether the 609(a)(2) restrictive of rule federal courts' construction admissibility theft per exclude se convictions noted, As the analytically sound. we have federal courts definition accorded great weight phrase place "dishonesty in federal legislative or false statement" found relying history. upon congressional We think definition, courts have overlooked reports' committee rule The rule is stated in the dis- itself. language Yet, or statement." even where "dishonesty false junctive, inquiry underlying into the have allowed federal courts it whether involves dis- crime to determine of a theft facts statement, they per- have often stated the or honesty false "by the offense was committed as whether inquiry missible See, e.g., States v. United means." or deceitful fraudulent (D.C. 1976); v. Cir. United States Smith, 551 F.2d (1st 1982); United States Cir. Grandmont, F.2d 867 1982). (9th appears It these Glenn, Cir. 667 F.2d false conviction involved whether focus on courts and that statement, misrepresentation, kind of i.e., some they "dishonesty" accord the term little independent sig Indeed, fact, in express recognition nificance. of this Oregon Legislative Assembly deleted the term "dishonesty" adopting when first its version of rule 609. Commentary 609, quoted Evidence Rule in J. & Oregon Weinstein M. ¶ (1987).5 Berger, 609[12], Evidence at 609-177 This lack of "dishonesty" by focus on the term the federal courts is emphasis consistent with the those place courts on the con gressional reports' phrase conference definition of the dis honesty false statement. concentrating

Rather than on federal interpretation rule, we will federal examine the meaning of ER 609(a)(2) without federal case law and using federal legisla- In history starting point. vein, tive as a a similar while we rules, have examined the evidence statutes and case of law their other states to assess law respecting admissibility of prior impeachment conviction evidence for purposes, we are the substantial mindful of differences the applicable A examples: rules from state to state. few Alabama allows admission of crimes involving turpitude, moral Ala. (1975, Code 12-21-162 1986 repl., Supp. 1988); Colorado § prior felonies, allows admission of Colo. Rev. Stat. 13-90- § (1987 1988); 101 & North Supp. Carolina allows admission punishable by days' crimes more than 60 confinement, 8C, (1986); N.C. ch. rule Gen. Stat. 609 Michigan's rule expressly allows admission of crimes containing an element (West theft, Michigan 1989); R. Evid. 609 and Montana admission does not allow conviction evidence for impeachment purposes, R. Montana Evid. 609

Nonetheless, we note that a number of states with rules similar to ours have concluded that theft crimes involve See, dishonesty e.g., or false statement. State Page, v. 449 (Fla. 1984) (theft, robbery, So. 2d 813 and related crimes 609, 5Oregon (1987), Rule of Evidence codified at Or. Rev. Stat. 40.355 was § by Rights," proposed by petition Bill amended the "Crime Victims' initiative by 4, 1986, 4, and enacted the voters on November effective December 1986. The impeachment purposes rule now includes as admissible crimes which "involved dishonesty." false statement or 550 State dishonesty); per involving

are se admissible as crimes dishonesty), 753, 142 (robbery v. 617 P.2d involves Day, 94 N.M. (1980); Melen denied, t. 449 U.S. 860 cer 1977) (Ct. drez, 259, App. N.M. 572 P.2d 1267 91 statement); State dishonesty or false involves (shoplifting (1986) 110, Tolliver, App. 3d 514 N.E.2d 922 v. 33 Ohio (theft statement); See dishonesty or false offense involves (Okla. 1982) (rob State, App. P.2d 563 Crim. gars v. 655 statement); v. dishonesty Kennedy or false involves bery 1982) (Okla. larceny Crim. State, App. (petit 971 640 P.2d Gallant, statement); State v. dishonesty or false involves (1988) (second degree theft 152, P.2d 920 307 Or. 764 dishonesty); Commonwealth involving shoplifting is a crime (1987) (court 410, judi A.2d 1326 Randall, 528 v. 515 Pa. 609(a)(2); dishonesty burglary involves rule cially adopts Bells, v. statement); Super. 373 Pa. Commonwealth false (theft (1988) dishonesty); State v. involves 57, A.2d 297 540 1981) (Tenn. (shoplifting involves Butler, S.W.2d 6 626 statement) (Tennessee adopted dishonesty or false (Tenn. 1976)). S.W.2d 385 (b) Morgan, v. in State (1984), State, Ark. 680 S.W.2d 906 In v. Webster larceny concluded that grand Court Supreme Arkansas State, However, in Pollard v. later dishonesty. involves (1988), n.2 court Ark. S.W.2d admissibility prior larceny convic to address declined 609(a)(2) ultimately ground it under rule tions correctly admitted the convictions court held that the trial (Utah 609(a)(1). Cintron, In State under rule that, Supreme Court held under 1984), the Utah State in then rule theft rule 609 language identical viability ques of that was dishonesty. holding The involves held that Appeals Court of which the Utah tioned underlying examination of the requires new rule a can be made as to whether determination facts before a 12 Wight, State v. 765 P.2d dishonesty. involves theft crime 1988). (Utah App. Ct. rules similar to having of courts

Additionally, a number dishonesty or involving convictions ours, except

551 per are not se admissible but rather admis false statement have also con upon balancing procedure, sibility depends dishonesty or false theft crimes involve cluded that (Alaska State, See, e.g., Lowell v. statement. 1978) larceny dishonesty involves or false state (grand Ill. ment); People Spates, v. 2d 395 N.E.2d 563 (misdemeanor (1979) dishonesty theft involves or false (Iowa Ruan, statement); App. State v. 419 N.W.2d 734 Ct. 1987) degree to commit third theft involves (conspiracy (Iowa Willard, 1984) v. N.W.2d State dishonesty); (under rule, essentially but with same preceding statute felonies, felony theft is a limited to involv language albeit statement). dishonesty or false ing faced with a rule the same as ours

A number of courts or held, have to the contrary, similar to ours theft rule dishonesty See, or false statement. crimes do not involve Williams, e.g., State v. Neb. 326 N.W.2d 678 (1982) (in something ordinary absence of other than larceny is not crimen falsi and not a crime petit stealing, statement); Eugene, dishonesty or false involving (N.D. 1983) (possession of stolen property 340 N.W.2d 18 (Minn. Darveaux, State 318 N.W.2d burglary); 1982) (misdemeanor but see State v. shoplifting); Stanifer, 1986) (Minn. (robbery App. Ct. is a crime 382 N.W.2d 213 dishonesty). involving other states' case law we do not

By sug- this recitation of our rule rely interpreting on these decisions gest that we in the first instance on federal law. rely we any more than phrase "dishonesty however. thing apparent, One by state interpreted is often courts to false statement" that the federal crimes, despite the fact courts theft include phrase as consistently interpret including do not fairly such crimes. begin We with the event,

In we return to basics. any are in a that, as the author of the rule we while principle conveyed by sought to be interpret meaning position they had been rule, though our rules as approach 552 and the words Legislature give their ordi

drafted Cy., Heinemann Whitman 796, 105 Wn.2d nary meaning. Schillberg State ex rel. v. Everett (1986); 802, Court, 794, 797, 585 Dist. Justice 90 Wn.2d P.2d 1177 (1978). implies practice the act or The term "dishonest" of Web lie, deceiving, of and cheating, stealing. or telling Dictionary New International (1981). Third 650 ster's and are stealing, clearly involve encom Crimes of theft Moreover, the term dishonest. we with agree within passed statement when Burger's Chief Justice with the former Appeals that Circuit Court of United States common "[i]n deceit, fraud, experience cheating, acts or-steal human universally regarded as conduct which . . . are reflects ing, Gordon v. honesty and integrity." a man's adversely on (D.C. 936, States, 383 F.2d cert. 1967), 940 United Cir. denied, L. 2d Ed. 88 S. Ct. 1421 390 U.S. Coe, in State v. 772, 775, that We note on Burton (1984), concluding we relied that P.2d 668 609(a)(2), and, under ER not admissible shoplifting was v. Ortega, States United F.2d quoted so doing, 1977): (9th respect "An property absence Cir. propensity of a toward . . . not an indicium testimonial is adoption our of this believe view ill dishonesty." We taking property positively dishonest. advised. The act us, matter, upon weighing this It sense to dis- makes no they theft on the basis involve the crimes of tinguish perceive We no reason property. taking of another's propensity may to lie be person's demon- believe that a by past but not acts of by past lying acts of dishon- strated impeachment purpose The sole evidence is est conduct. respect with to the defendant's credi- enlighten jury Jones, 101 Wn.2d at a witness. 118. This bility as by allowing admissibility is met convic- purpose dishonesty, of the fact that evidencing regardless tions property. of another's purpose taking conduct had as its theft, taking property by another's We conclude by robbery dishonesty involves shoplifting, including impeachment crimes se admissible for per these are 609(a)(2). that assault- agree under ER While we purposes usually dishonesty involve but instead ive crimes do not fact, from may, in 'result involve "acts of violence which nature, provocation, or temper, short a combative extreme no causes, bearing little or direct hon- other have [and] v. 888, 891, Thompson, State veracity'", 95 Wn.2d esty and (1981) States, Gordon v. United (quoting 632 P.2d 50 supra 940), robbery we se per at include as admissible 609(a)(2) not it is an assaultive purely under ER because crime, taking property. also involves the larcenous of but Burton, v. State in in mind 101 Wn.2d

We bear (1984), expressed court concern that 676 P.2d 975 this we crime, in dishonesty any for if inhering not as most view 609(a)(1) rendered We did, superfluous. ER would be have least, here; at assaultive felonies other not so than done 609(a)(2), within usually not fall ER robbery would but 609(a)(1). ER under instead must be considered Burton found Further, major support a reason a 609(a)(2) of ER was that a narrow construction defendant evidence is faced with a faced with conviction "Hob- testify any either refuse lose benefit son's choice": story her is his or side as presenting defendant's effect of the right, testify prejudice and risk the inherent or Burton, 9; prior conviction evidence. at E. associated with on Evidence (3d Cleary, McCormick at 99-100 ed. § the Stand Not To Take To Take Note, 1984); a Stand: The Dilemma With Criminal Defendant (1968). Record, 4 Colum. J.L. & Probs. Soc. How- may defendant, this be for ever, requir- hard as choice as inconsistent with the choices criminal ing such Further, this process, opinion. we discussed elsewhere as principle that a defendant sight we do not lose has impeachment, pur- and that no free of right 609(a)(2) permit admission of pose is to Society the witness. has credibility an affecting credibility of defendants evaluating interest here credibility and in affecting convictions their with criminal preventing past present- a defendant with a criminal from ing among himself or herself as an "innocent See thieves." (1984). Koloske, State 889, 897, v. 100 Wn.2d 676 P.2d 456 ruling admitting We find no error the trial court's Normally, theft convictions. this conclusion would analysis end However, our of the issue. the Court of Appeals erroneously concluded below that the trial court felony conviction; ruled admissible the theft the Court of Appeals applied then the constitutional harmless error Jones, standard which we set forth in State v. 101 Wn.2d 113, 124-25, 677 P.2d Our review of this case 609(a) aspect has included a careful review of this of ER rulings. Upon reconsideration, we hold that the harmless 609(a) rulings error standard for erroneous should be harmless error same nonconstitutional standard which 404(b) apply rulings. Thus, we rulings ERto erroneous ER "unless, are not reversible error within reasonable probabilities, occurred, had the error not the outcome of (Citations materially the trial would have been affected." omitted.) Smith, 772, 780, State (1986). holdings in We Jones overrule and State v. (1984), adopting 148, Harris, P.2d 584 a harmless error standard for constitutional erroneous ER 609(a)(1) (2) rulings. and adoption

Our of a nonconstitutional error standard 609(a) rulings recognition from our results that while a testify may by pos- be defendant's decision sibility affected by prior impeachment conviction, as we of have said right a defendant has no constitutional free of impeachment. applying Further, such constitutional 609(a) rulings apply- error standard to ER harmless while ing harmless error a nonconstitutional standard to ER 404(b) rulings could result the anomalous situation erroneously where the same conviction is admitted 404(b) erroneously under ER and ruled admissible under 609(a)—the first error would be reviewable under a standard, harmless error nonconstitutional while the second error would be reviewable under constitutional harmless ques- Moreover, addressing while not error standard. the United apply, harmless error standard tion of what 609(a) ruling that a rule in Luce said Supreme Court States dimensions". reaching constitutional question is "a States, 83 L. Ed. 2d 469 U.S. Luce v. United 105 S. Ct. 460 issue. He claims remaining Brown's

Finally, we turn to the State could use by ruling erred that the trial court officer parole made to his statements he certain pre- to trial to Brown moved impeachment purposes. testimony. the officer's At presenting from clude the State matter, testified that Brown the officer on this hearing and asked after his arrest to dis- called him one afternoon parole The officer met Brown an family cuss matters. family and discussed Brown's jail at interview room him. the officer noted that it was a matters with When beaten or killed Brown had not been because miracle that involvements, of criminal Brown laughed his succession you things' "'I tell some words to that and said could at 54. The officer Proceedings, laughed effect." Report at Report Proceedings, 54. Brown and said "Go ahead." "'Oh, you'll probably said the effect use this something to Proceedings, at 54. The officer tes- against Report me.'" think anyone that he didn't was tified that he told Brown M.O., then, in the his officer's particularly interested words, "pulled how he had these scams off Brown described Proceedings, at 55. Report ..." past. if Brown took the stand and court ruled trial in conduct such engaging examination as denied on direct related, State could call had the offi- parole officer made Brown to him. The statements cer and elicit the ground a final on the court declined to make impeach- be admitted for statements would whether testimony depend on Brown's ment would purposes the court was informed that Thereafter direct examination. the officer was parole the stand and Brown would not take dismissed. of his argues

Brown that because he was not advised Arizona, v. rights pursuant constitutional to Miranda 694, 1602, L. U.S. Ed. 2d 86 S. Ct. A.L.R.3d 974 (1966), by ruling the trial court erred the statements impeach were admissible to him. stated in Although poorly review, petition his in his argued Brown brief to voluntary. Appeals Court of that his statements were the discussion Brown initiated with Assuming interrogation," was the officer's parole officer "custodial required his as rights failure to inform Brown of State's introduction of preclude Miranda did not impeachment purposes provided evidence for the state York, Harris v. New voluntary. ments were otherwise (1971); State U.S. 28 L. Ed. 2d 91 S. Ct. 643 570, 575, Hubbard, Brown's are inadmissible because argument the statements he rights was not advised of his constitutional is without to parole jail merit. called the officer come to the Brown said he family matters. He thereafter could tell the discuss The parole things." officer's statements officer "some ahead," anyone and that he did not believe "go Brown to in M.O. were not enough would be interested Brown's coercive. render the interview

In make a final on the in motion declining limine, correctly trial court reasoned that whether depended admissible on the nature evidence would be testimony Brown's actual on direct examination. The court did the circumstances under which generally describe We find no error. evidence would be admissible.

Affirmed. C.J., JJ., and concur. Durham,

Callow, Andersen result)—I in agree with the (concurring J. Utter, opinion affirming result Justice Brachtenbach's however, Court of I cannot with the Appeals. agree, opinion. Brachtenbach's approach overruling Justice of seven recent cases is opinion Justice Brachtenbach's

557 fol by reached when the same ends could be necessary not v. See State analysis Appeals. of the Court lowing the (1987). 565, With one Brown, App. 47 736 P.2d 693 Wn. analysis.6 adopt I would this exception, by would overrule opinion Justice Brachtenbach 748, (1983); State v. Pam, 659 P.2d 454 v. 98 Wn.2d State (1984); v. State Koloske, 889, 676 P.2d 456 Wn.2d 100 (1984), 777, P.2d which hold LeFever, 690 574 Wn.2d 102 in order proof a offer of timely must make that a defendant motion in limine denial of a appeal contest on the to 609(a)(2). under evidence excluding impeachment States, 38, Instead, Luce 469 83 L. v. United U.S. following (1984), Justice 443, opinion by Ed. 2d 105 S. Ct. 460 would have the criminal defendant take the Brachtenbach in impeaching stand and to the front subjected be being appeal of a able to the issue. jury before problem requirement, There is this one not a serious today's United States Court by Supreme addressed nor by the fifth amend- opinion Justice Brachtenbach. Under Const, 1, ment to United States Constitution and art. § 9, right criminal have the not to at their testify defendants 357, Hawley, own trial. Seattle v. 124 P.2d Cf. (1942) (no 961 inference to be drawn from defendant's fail- By testify). forcing testify ure to a criminal defendant to objections ruling order to an limine preserve Further, if to remain silent is affected. appeal, right his introduced, wrongly evidence was then preju- must jury choose between trial before a defendant [a] against improper him as result of diced impeaching a admission convictions, appeal which will or an before court hear his claim below was erroneous. 173, 187, Collins, Cal. 3d P.2d People (1986) (Broussard, J., concurring and Rptr. 228 Cal. Appeals over treatment of one issue: that of 6I differ with the Court underlying looking involving facts theft to determine admissibil- of crimes 609(a)(2). analysis contrary developed ity I to our rule under believe this 77-78, Newton, Wn.2d A dissenting). then, constitutional right, becomes manipu- by lated new demands of trial tactics. problem

This does not occur when the defendant is able preserve his objection for appeal by an offer of proof. It true, may pointed by be as out Supreme Court in Luce, that an offer of proof may differ in content from actual tes timony subject Luce, to cross examination. at 41 n.5. That problem can be remedied methods other than forcing defendant before a jury when he would choose to A remain silent. defendant could make an extended offer of could, proof or as suggested by three members of the Cali Court, Supreme fornia in camera after the prosecu tion Collins, closed its case. See 722 P.2d at 187 (Broussard, J., concurring and dissenting). As the opinion by out, Justice Brachtenbach points itself we are not com pelled to federal precedent follow on the rules of evidence. Opinion Brachtenbach, by 547-48; Justice at Orwick v. cf. Seattle, 249, (1984). 103 Wn.2d 692 P.2d 793 Other states See, have Luce. e.g., chosen not to follow People v. Con treras, 627, (1985); 108 A.D.2d 485 N.Y.S.2d 261 State v. McClure, 336, 579, 298 Or. 692 P.2d 584 n.4 I would adopt rather a rule which serves the policy interest identi fied by opinion by Justice yet Brachtenbach pro and tects the rights of the defendant.

I also take issue with the opinion by Justice Brach rejection tenbach over its of the rule in State v. Burton, 101 1, (1984), Wn.2d 676 P.2d 975 as well as the rule adopted by country's a of this majority federal courts. See opinion by Brachtenbach, Justice at 547 footnote 3. The opinion by Justice Brachtenbach concludes instead that all crimes theft are involving per se dishonest and automatically 609(a)(2). admissible under ER Instead of following the federal legislative history behind ER opinion Justice engages Brachtenbach its own "plain language" interpretation Thus, of the rule. this new construction of ER 609 is not based on the reports of those who drafted it but passages from dictionary Webster's and the intu ition of Justice Brachtenbach's opinion. By so doing, distinc- would make no by Justice Brachtenbach opinion 609(a)(2)— credibility-driven purposes of tion—for and the one steals a loaf of bread person who between Further, by savings. their his victims out of who swindles robbery, burglary, of crimes such as the admission allowing se standard theft, kidnapping per under perhaps effec- 609(a)(2), by Justice Brachtenbach opinion 609(a)(1). test tively balancing emasculates the and I differ about by Justice Brachtenbach opinion "dishonesty" in this context. of the word the connotations I it term is not think best unambiguous, Because this it. That his- history federal behind legislative refer to the admissible the offenses intended to be tory indicates See deception. active involving under the rule are those (1987); Newton, 69, 77-78, State Wn.2d Burton, State v. 101 Wn.2d at 1-2. opinion

I issue with Justice Brachtenbach's also take Jones, P.2d its overruling (1984), to the extent that case establishes constitutional standard for the erroneous admission of evi- harmless error past dence under ER 609. The admission of convictions impeachment purposes impact upon has an defendant's A well as testify. right testify—as decision to defendant's state to remain silent—is of federal as well as right his Const, Const, 5; See magnitude. U.S. amend. constitutional 9, 22. these Any ruling having rights art. an effect on §§ proportions. opinion of constitutional The consequently is by result proper Brachtenbach reasons its is by Justice testify has no free of right that a defendant stating Brachtenbach, Justice at 554-55. impeachment. Opinion by true, the statement in Justice Brachtenbach's While this is pres- fully acknowledge puts its rule opinion does silent, testify decision to or to remain sure on a defendant's rights. constitutional affecting thus further declares by Justice Brachtenbach opinion

The recognizing behind a constitutional logic there is no a nonconsti- maintaining for ER 609 while error standard to the ER 404. There is an answer standard for tutional in puzzle opinion. directly Justice Brachtenbach's ER 609 during testimony, affects defendant his while ER 404 does Therefore, pressure not. the former on the puts rights not, it testify and to remain silent. Because the latter does is to retain two standards these rules. logical two Brachtenbach,

I agree opinion by do with the Justice however, Laureano, overruling in State the pre- Insofar as that case allows sumptive past admission of convictions under ER 609 after 404(b), under ER has in place earlier admission it no our body of evidence law. above, then, opinion

On the I concur basis of the with the in reasoning. Justice Brachtenbach its result but not its Smith, JJ., Utter, Dolliver concur with J. result)—

Pearson, in the I (concurring J. with agree the concurrence to the extent it takes issue with the con in opinion clusion Justice Brachtenbach's that all crimes In per reaching theft are se dishonest. such a involving conclusion, opinion by implicitly Justice Brachtenbach 609(a)(2). ignores purpose behind ER That rule allows past only pur the admission of evidence of crimes for the pose impeaching credibility. the defendant's As the con issue, notes, veracity currence when the defendant's per opinion may se rule Justice Brachtenbach's fail wholly purpose impeachment, to serve the theoretical eyes while ensuring prejudice jury. with this of the concur-

Despite my agreement portion rence, I separately am constrained to write to note the error appealability it contains the issue of the of an regarding 609(a)(2) concurrence ruling. argues erroneous ER actually defendant take the stand before requiring appeal violates Fifth Amendment being able to That is not the case. guaranties. "forcing"

The concurrence frames the issue as one In preserve point defendant order to error. only fact, is admissible impeachment takes the stand. actually instance defendant where an testify, wish Thus, does not where defendant simply in limine does affect improper opinion Brachtenbach's does The rule Justice defendant. with decision than confront this defendant nothing more is, ultimately reach; every criminal defendant must testify. whether to I result. explanations, concur

With these J., J. Dore, Pearson, with concurs modification, denied March

After further reconsideration 1, 1990. 31, 1989.] 55569-9. En Banc. October

[No. Department Company, Inc., Rho v. The Respondent, Petitioner. Revenue,

Case Details

Case Name: State v. Brown

Court Name: Washington Supreme Court

Date Published: Mar 1, 1990

Citation: 787 P.2d 906

Docket Number: 53997-9

Court Abbreviation: Wash.