*1 May 23, 42834. En 1974.] Banc. [No. Virginia Respondent, Sue of Washington, State Petitioners. al.,
Renneberg et F. James Gavin (of Gavin, Robinson, Kendrick, Redman & Mays), for petitioners. Prosecuting Attorney,
Lincoln E. and Adam Shropshire, Moore, for respondent. Deputy, LaVanway charged Virginia was Sue
Brachtenbagh, grand larceny. codefendant, Mil- with and convicted of Her they LaVanway, ton after were V. whom she married charged charged convicted these with and crimes, *2 aiding larceny. Appeals abetting grand of The Court of granted affirmed the convictions review. and we employed a restaurant The defendant had wife been discharged employmеnt. In the had but been from that early evening the 1970, of the defendants visited June paycheck. restaurant to defendants obtain her final The. of the restaurant and went to the rest rooms in the rear the used then to defendant wife returned the front where register. telephone De next to the cash which was located he door where fendant husband stood near the restaurant kept moving paced forth, back and looked about according em around, to the The restaurant witnesses. ployee only operating register cash the one the who' was register indicating register evening bеll, that heard opened, register. being He and.went toward the cash facing register, de cash then the saw defendant wife reported em A witness to the fendants left the restaurant. young register ployee had woman at the that his son seen a tally money An in her hand. immediate with a stack of bills approximately shortage, register of disclosed a $250. testimony following arises from the elic- The first issue prosecutor: ited LaVanway, year
Q. that in of this Mrs. is it true June you drug? using a narcotic were addicted to were July LaVanway, Q. 14th, A. Yes. Mrs. you is it true that program onto a to a narcotic
went methadone сure addiction or use? A. Yes. admissibility question appears of this testi- that the
It
mony
started.
before the trial
in chambers
was discussed
although.it
record, the
not clear from
Apparently,
is
to
addiction would
as
indicated
court
Only after defendant
case.
state’s
inadmissible
be
character,
to
as
her
and testified
stand
took the
wife
testimony. Admissi-
allow this
the court
did
later,
described
bility
prior drug
considered
can be
addiction
distinctly
grounds.
it
First,
on at
different
least two
an
that it is
second,
to
relates
the witness’
char
to contradict
misconduct,
act of
admissible
unrelated
dif
immense
that there
acter
It is obvious
evidence.
practical
two theories
effect
ference between
credibility,
admissibility.
it will
If it
attack
is admissible
re
while,
it is
testifies
come
a defendant
whenever
only
countering
it will
evidence,
stricted to
character
put
or her
against
his
that defendant who chooses
used
admissibility relating to
into evidence. As
Wig
authority.
credibility,
3A J.
there
See
is division
(J.
1970);
§
Evidence
rev.
A.L.R.2d
more,
934 Chadbourn
situation
We note
we are not confronted with
the influ
where
that the
was under
contended
witness
drugs
he testifies
ence
at the time of the events which
*3
1971),
(Alas.
in
or that
State,
as Doe v.
The by but felt our decision in v. authorities bound Lankford Tombari, 412, 627, 19 A.L.R.2d 35 Wn.2d 213 P.2d holding (1950), a terse concluded use wherein society’s veracity. or addiction is relevant view today deep drug usage consequent its concern by many addic most, condemnation average necessarily prejudicial tion is the minds juror. proof Additionally there the court con before veracity. necting If addiction to a lack of such medical proof might scientific were it well be admissible as made, credibility. proof relevance relevant to such its Absent veracity preju is an factor while its unknown knowledge. Tom v. dice within common Lankford accordingly bari is limited our herein. decision view ground However, the alternate and more restrictive admissibility here. The dictates of character voluntarily put defendant wife her character before the jury. experience, She testified to her work that she had college, attended that she had been a in the candidate Miss pageant, párticipated Yakima glee that she had club, in a pep drill team, club and was the of a treasurer science club. Implicit testimony picture painting such is the of a of a person unlikely grand larceny. most to commit While the clearly put character of defendant husband was not so into sufficiently subject evidence, was introduced the de- questions fendant husbánd to the same as recited above which were asked of the wife. There was toas occupation professional photographer, his as a toas his physical day question, dress on the as to his somewhat (cid:127) lengthy engagement subsequent marriage to the de- vividly pictured, fendant wife whose character had been so working garden toas his in his at home and toas plannеd family day attendance at a barbecue on the alleged complete tapes- crime. The state was entitled to try with his admitted addiction. consistently court
This
has
followed the rule stated in
State
Emmanuel,
1,
v.
42 Wn.2d
14,
testifying past good as to his own behavior, he specific cross-examined as to acts of misconduct unre- charged. Armstrong, lated to the crime State v. 29 Wash. 57, 392; 69 Pac. State Melvern, 7, v. 32 Wash. 489; Pac. State Hollister, 4, v. 249; Wash. 288 Pac. State (2d) Kelly, Johnson, 401, 180 Wash. 40 P. 159; State v. (2d) 187Wash. 60P. 50. prior
The court instructed the that evidence of *4 only bearing misconduct towas be considered as on credi bility wеight given and to be to the witness’ testi mony. proposed by That instruction was the defendants. The record discloses that the defendants felt the instruction necessary impact to lessen the was evidence. Defend propose propose instruction, to had a choice one ants relating to character. relating one or urged as error. now be and cannot made choice was instruc- assigns to the court’s error husband Defendant abetting follows: aiding was as which tion on every person in the concerned You are instructed directly larceny, or indi- grand he whether commission constituting aids or or rectly abets in the the offense the acts commits larceny. grand guilty of commission, is among who are several of one individual the act Thus, larceny, grand participate in present at the scene and principal, whether a all, acts of each would be the away property or or carried took, stole, each of them by pres- person his or abettor to be an aider not. For a ready ready to render assist- assist, ence, he must be per- necessary, or must assist ance should it become presence. petrator of the сrime his aid and abet that to You are further instructed purpose spoken, done, for the or acts consist of words counseling, assisting encouraging, commanding constitute an aider or or of of a crime the commission inducing To its commission. or that the aider it is essential abettor, person intent or abettor should share the criminal or party who committed the offense. proposed included instruction which
The defendant doing language: or act, overt “There must be some directly indirectly contributing saying something, to a or to a criminal act is insuffi- act, criminal and mere assent cient.” Peasley, 80 Wash.
Defendant relies on State v.
an instruction
might considered indirectly rectly in the commission aided and abetted *5 finding separate requiring A instruction, crime. the unnecessary; act, of given, under overt the as instruction, since abetting aiding details what acts and signify constitute statute; which acts themselves some doing saying something form of overt act in the that directly indirectly either to the criminal contributes offense. App.
Accord, State v. Palmer,
152,
1 Wn.
Judgments of conviction are affirmed. C.J.,
Hale, and Hunter, Hamilton, Stafford, Wright, JJ., concur. (concurring part) signed Hale, C.J. in have —I opinion except part
court’s
concur
all of it
that
purports
predict
overruling
which
to
future
Lankford
v. Tombari,
412,
35 Wn.2d
213 P.2d
If of case, however, the facts can be said to neces- sarily prece- evoke a discussion of the v. Tombari Lankford requiring dent, that it in either be followed overruled order to a case, reach decision in the instant I would adhere my judgment, because, in it declares the better Lankford require expert drug rule. To addiction does allowing affect one’s evidence of it cre- truthfulness before genuine germane a ates collateral issue of fact not to the opinion experts on trial, issues and substitutes the jury. prеrogative the commonsense It is the court’s admissibility jury’s to rule and the weight effect; decide its the court rules as a matter of jury law and the as a matter of fact. Now the court decides process fact, converts an issue of into an issue of a law frequently, produce I think, which will ludicrous results. cases, courthouse, evidence, some in the same because testimony, expert rendered admissible while will be differently across the hall the same issue will be resolved of fact and the identical evidence rendered a matter inadmissible. opinion proof This in court’s ad- Lankford mattеr
diction is admissible as a of law left propo- weight, any, given decide what be it. That should authoritatively I sition, think, rationale, rests a sound supported. (Chadbourn § 934 rev. 3A J. Evidence 1970), correctly: principle states the
Any powers, impairment of the testimonial diseased arising ought consid- to be source, from whatever also ered: Accordingly, morphine in habit, or other be received. effect, have had such
(Footnote omitted.) allowing proof factor to addiction as a rule weighed assessing has the test of in withstood Supreme example, Idaho, time. For Court 1916,the widely passed directly upon opinion, a the issue when cited pros- dying put declaration was in evidence a murder English victim, ecution. The unfamiliar with Chinese *7 language, dying in Chinese. It had made the declaration through inter- an was held admissible when introduced competency preter. credibility of the wit- To test the declaration, the defendant asked ness who had related you that are an habitual cross-examination, “Isn’t it a fact objection opium?” of The sustained an to user trial court Supreme appeal, question. the however, On defendant’s holding of the fact reversed, that evidence Court Idаho opium user admissible that was witness credibility, competency saying: to his relevant that users it will be admitted habitual We believe opium narcotics, like become notorious liars. or other hold that to the habitual use do mean we . . . But morphine, narcotics, like which in- and other cocaine of evitably destroy memory impair mind, to tend may witness, for be shown character and moral weight affecting or the that purpose his testimony. given to his be
743
P. 233
258-60, Idaho
Loon,
State v.
Fong
F.2d
McKenna, 74
&
v.
Accord, Chicago
Ry.
N.W.
Co., Nat’l Ins.
v. Thurston
1934);
Cir.
Wilson
(8th
Ark. 929,
Accordingly, I before us Tombari, now supra, Lankford collaterally it wоuld not either gratuitously repudiate directly. J., concurs with C.J.
Hamilton, Hale, blush, may it seem J. first (dissenting) —At Finley, this court majority opinion places basic thesis on the of evidence which authority line with modern law for charac- excludes evidence as to addiction drug usage accur- ter But this would not be an impeachment purposes. for reasons majority ate characterization opinion indicated hereinafter.1
The indicates that exclusion evidence majority and as to rea- to testimonial is warranted relating capacity states con- society’s deep sons exсlusion view “[i]n and its condemna- drug usage consequent cern today with importance be is of the utmost understood this case 1It admissibility relating of character involves drug addiction; moreover, to former the state makes contention that usage extracted from the admission of former the defendants was prove question separate of motive is a offered to motive. ground admissibility, independent and, therefore, of evidence is an alytically impeachment. generally See 1-2 unrelated 117-19, (3d 1940). 385-87, Evidence 391-92 ed. It seems §§ knowledge common that narcotic addiction lead an аddict to resort Clearly support criminal activities the habit. motive and a introduced to establish a causal link between habit robbery case, consequential properly admissible. the instant however, there was no contention that the defendants’ use of narcotic *8 robbery. expressed drugs dissenting the If the views herein motivated may drug-related prevail, upon retrial, were to the state establish a robbery. case, presently posited, motive for the The record in this as suggestion compul of a narcotic reveals the defendants acted out admissibility upon Thereforе, sion to feed their habit. of such evidence ground properly independent is not this criminal motive before the court. by many
tion addiction is most, necessarily average juror.” prejudicial in the minds (Italics mine.) majority juncture, I Had the halted at this myself general agreement would find on issue. How- majority position ever, the retreats from the indicated and proceeds concededly prejudi- to condone admission curiously enough ground cial moral evidence, on the impeachment. regarding character Such a fine distinction the law of evidence in find solace such a sensitive area acceptance attempted quarters. dis- some But the simply tinction is careful anal- too unrealistic to withstand ysis. positive negative, all First, evidence, character or designed accomplish the same result —to establish generally relative See C. Mc- witness. Cleary 1972); (2d § Cormick, The Law Evidence 41 ed. E. (J. 1970). §§ 3AJ. Evidence 920-22 Chadbourn rev. any upon Hence, when evidence is offered which bears say supposed witness, character of a to the is, effect, jury, gentlemen, evidence, of this “ladies the basis you give greater [or are to less] credence to the lеgitimate legal purpose of charac- witness.” The give proper perspec- ter evidence is to fact a the triers of upon testimony. Thus, tive a trustworthiness of witness’ impeaching supportive evidence, character either of a credibility.2 general nature, must relate to the trait of Secondly, impeachment may be broken down capac- upon types: (1) impeachment that of based into two ground. ity, (2) upon impeachment The for- a moral category is lack- where witness mer to instances relates insanity, capacity ing intoxication, due to in tеstimonial expert testi- In the or other infirmities. absence disease contrary, majority mony would not allow to the drug usage bearing of evidence of former introduction truthtelling, capacity upon nor I. the witness’ upon category based a embraces The second evidentiary descriptive Actually, for an assault more term accurately descriptively might termed be more witness’ character “credibility impeachment.” *9 lack of moral character which could affect the witness’ credibility example, being litigated. Thus, in the matter may prosecutrix rape impeached prior a in a case be a history prostitution. generally Wigmore, supra 3A See majority appears §§ a 920-30.The to hold that evidence of experience may former habit or be admitted good evidence of character.3 The moral counter defense component apparently the “alternative and more restric- ground impeachment” of character ad- tive under which type purportedly mission this evidence is subsumed. Finally, there from is evidence which be excluded permissible impeachment highly prej- character because its outweighs рrobative nature Thus, udicial its value. evi- dence of misconduct or criminal convictions is often ex- prosecutor’s impeachment cluded from the of character if unduly prejudice jury. admission of such evidence would Wigmore, supra; supra, §§ McCormick, 3A J. C. See 42-43. hereinafter, elaborated For reasons evidence of former play not addiction should be considered or allowed impeachment. role in moral character a Such evidence policy grounds highly be excluded due to its should prejudicial nature. analyzing intricacies of the law evidence, com-
plex
distracting
cannot be allowed to
nuances
become
object
misleading. Again,
impeach-
the sole
of character
eyes
ment is to weaken the
of the
in the
witness
Virginia LaVanway
is true in
3While it
the instant case that
offered
biographical
data,
some
however
in the case of codefendant Milton
LaVanway,
majority
appear
to deem essential
identification
information,
name, address,
profession coupled
such as
with de
day
crime,
fendant’s version
his activities on the
to constitute
good
position
an offer of
character. Thе lack of merit
in this
is self-
requires
generally
Wigmore,
evident and
no refutation. See
3A J.
Evi
(J.
1970).
dence ch. 32
note, obviously,
Chadbourn rev.
an additional
As
any
right
such rule would “chill” the defendant’s constitutional
to take
1,
22;
witness
stand in his own behalf.
Const.
See
art.
RCW
§
10.52.040;
Hill,
State v.
83 Wn.2d
747
Effinger,
Effinger
205,
supra;
48 Nev.
Fong
v.
Loon,
v.
State
(1925).
Stille,
&
Wharton
also
See
The 1930), (4th 1929), (W.D. 788 Cir. 45 F.2d aff'd, Va. authority re progenitor which the modern line jects itself, inelucta addiction, the contention Kelly scholarly opinion, bly yields In a untruthfulness. suggestion Wigmore would, however, follow court impair possible expert establish the and allow through drug of a faculties use. witness’ ment testimony bearing expert decision of when to allow veracity squarely the New truth or faced Appeals People Williams, 18, York Court 6 N.Y.2d 188, denied, 920, 159 N.E.2d cert. L. Ed. 2d U.S. York Williams, Ct. 266 the New court S. *11 surveyed the current in a well-reasoned medical literature decision and concluded: only long
[I]t is after that we and serious deliberation expert testimony hold addicts inadmissible that narcotics type unworthy as a same witness are belief convincing showing the absence of a clear to the full Judge satisfaction the Trial that such is the consensus opinion. reliability of medical and scientific The of such a clearly jury may thesis must before a be established be subjected to its influence. People supra v. Williams, at 26. Kelly synthesizing reasoning
Thus, salient majority courts, Williams I concur better testimony expert relating rule is to allow to the effects drug usage impairment when it involves the of the witness’ faculties.4 suggested McCormick, substantially approach The in C. 4This is Cleary 1972). (2d E. at ed. “[A]s Evidence §
Law of Credibility Impeachment Character Of Or On Moral Grounds majority, contrary weight to the modem author- ity, drug usage however, would allow of former impeach the defendant’s character where there has been good a minimal offer of character evidence the defеnse. capacity component, This, course, does relate to the component impeachment, but moral i.e., to the character mendacity. the witness’ truthfulness or 3ASee supra §§ at 920-30. majority, proven I think,
But the has too It much. has conceded there is no established link between proclivity truthtelling. addiction and the witness’ Nor jurisprudence suggested does there exist in established ground “alternative and more restrictive of character im- peachment” grounds all on moral is neces- sarily directed and limited to or not whether the witness is telling Wigmore, supra §§ the truth. 3A J. at Mc- 920-23; C. supra §§ Cormiсk, at In bar, 41-42. the case moral at charac- drug usage ter evidence of former has relevance question credibility, of the witness’ and thus has no proper impeachment. function in I must conclude, therefore, that evidence of former usage accompanying opprobrium with the correlative social proven relationship capacity evinces has no to a witness’ truthtelling. Unscientifically moral inclination for estab- place lished admissions of this nature before the evi- inevitably dence of unrelated misconduct which will tend many addiction to attached, which more social odium has been decisions impeach, allow it to be shown to even without evidence that it did in particular although truth-telling, apparently courts, case affect more particular showing absent a veracity, of effect on the witness’s respect drugs exclude it. to both addictions [to alcohol] excluding arguments. courts seem to have the better of the It can scarcely enough agreement contended that there is scientific *12 judicial warrant usually notice that addiction in and of itself affects credibility. Certainly pregnant prejudice. hand, it is On the other increasing recognition among non-legal there is an authorities that yarious personality may be linked with instances and other in addiction credibility.” (Footnotes omitted.) upon do bear which defects
749 jurors. the in the of I would eyes to defendant prejudice of for the exclude all such evidence purposes (1) unless: establishes a expert impeachment, capacity effect a witness’ for probable upon truthtelling, accord, State, (Alas. 487 P.2d v. 1971); People Fields 831 or; Ortega, Rptr. (2) Cal. 3d 83 Cal. App. is credi- some relevance the witness’ involving established bility in being the matter litigated. Abetting Aiding
The Crime
And
Of
Milton
in
Copetitioner
LaVanway
jury
error
assigns
offense,
struction No.
the elements of the
or
delineating
charge
he
aiding
abetting.5
instruction to which
objects is
con
substantially based
RCW 9.01.030. He
upon
tends
the bare
No.
jury
instruction
language
to convey
failed
the
that an overt act is re
requirement
aas
the
quired
necessary element of
offense
aiding
abetting
grand larceny. Thus, contends the
the
petitioner,
jury was
in
able
its
Mil
bring
only
verdict based
presence
ton’s
at the restaurant. To remedy
deficiency,
counsel for the defense offered
its
instruction
proposed
26No. whiсh is
in
couched
the
of our decision in
language
5Jury instruction
10No.
every person
“You are instructed that
concerned in the commission
grand lareency,
directly
indirectly
whether he
or
acts
commits the
constituting
commission,
guilty
offense
or aids or
abets
grand larceny.
“Thus,
among
present
the act of one individual
several who are
at
grand
participate
larceny,
the scene and
the acts of each
all,
principal,
took, stole,
as a
whether each of them
or carried
away
property
person
or
not. For
be an
or
his
aider
abettor
presence,
ready
ready
assist,
he must be
to render assistance
necessary,
perpetrator
become
or must assist
crime
his
presence.
“You are further
instructed that
to aid and
consist of
abet
spoken,
done,
purpose
assisting
words
or acts
counseling, encouraging,
commanding
commission of a crime or of
or
inducing its
abettor,
commission. To constitute an aider or
it is essential
aider
person
or abettor should share the criminal
intent of the
party
who committed the offense.”
proposed jury
provided by
6Defendant’s
instruction No. 2. “It
every person
gross
felony,
statute
concerned in the
of a
commission
misdemeanor,
directly
he
whether
commits the act
misdemeanor
*13
(1914),
clearly
Peasley,
99, 141P. 316
v.
Wash.
State
requirement of
overt act.
an
As stated
forth the
sets
App. 373, 379,
Catterall,
I remand this expressed dissent. views JJ., Utter, Finley, concur with Rosellini commission, constituting offense, or in the or aids abets every directly indirectly person absent; present or or who whether counsels, encourages, procures commands, hires, or otherwise induces gross misdemeanor, felony, misdemeanor or is a another to commit principal. doing saying act, must overt some- There be some indirectly contributing thing, directly act, a criminal and mere assent to criminal act is insufficient.”