*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 employment. 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 bell, 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 cure 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. 487 P.2d 47 testifying such witness is under the influence at the time of Reyes, 257, 408 as in State v. 99 P.2d 400 Ariz. Appeals recognized in Court of the division

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 planned 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, 253 P.2d 386 that: puts prior [I]f a defendant his conduct into issue

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 weight 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 crime 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 141 P. 316 which held erroneous aiding which that assent alone constitute said abetting. alone is not It is true that assent to the crime correctly required aiding abetting, but the instruction merely passive specific assent, and intent, criminal actually assisting being ready his assist state presence. Redden, The correct rule is set out State (1967): 147, 150,426P.2d 854 Wn.2d properly that the defendant instructed [T]he principal it found that di- he

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. 459 P.2d 812 App. State v. Catterall, 373, Wn. P.2d 1167 (1971), also defendant, cited is not inconsistent with our holding. merely physical presence It confirms that and as- aiding sent alone are sufficient to constitute and abet- ting. remaining assignments dealing largely of error within matters the discretion court trial are without merit.

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 19 A.L.R.2d 462 proof a case which held addiction is credibility. admitting relevant to The rule such evidence ways, cuts both and it is available both defense and prosecution pros- I and think should be retained. When compelled rely ecution the force of circumstances to guilt, of narcotic addicts establish permitted the defendant all fairness to show assessing credibility. the addiction a factor in as tampering with the v. Tombari rule, Lankford court, I long- think, makes four it First, errors: overrules a precedent established it when need not do so order reach an predicts otherwise decision; second, sound it question future actions on a court of law not now suggests proof it; third, before it addiction only be rendered relevant and admissible the court will field into the halt the collateral excursion trial and take a try general psychology issue of of medicine departs veracity; fourth, addiction it affects one’s long-established technique of han- from the common-law dling appeals prophesy will, this court in order to *6 directly point categorically hold inad- in issue, when the is drug trial missible evidence of a collateral addiction unless drug proof implies that in a future case of held, and it preponder- addiction must be excluded unless evidence particular drug that addicts are ates in the case on trial instant inclined to falsehood. the court ruled in the When proof drug rele- case that of addiction became defendant’s voluntarily put vant and admissible because her char- she acter in that should have the end of the matter. issue, been Tombari, of the ramification of Its discussion Lankford unnecessary supra, to a in case and both was decision this probably wrong point will lead to a conclusion when the again. examined

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. prerogative 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 matter

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 Idaho 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, 475 S.W.2d 881 (1972). alone. well enough I think we should leave

Accordingly, I before us Tombari, now supra, Lankford collaterally it would 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 exclusion 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 addict 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 Therefore, 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 legitimate 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 testimonial 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 probative 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. The 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 520 P.2d 618 8 J. Cf. (McNaughton 1971). Evidence purposes § rev. For notwithstanding dissent, assume, facts, I will that the defendants truly question. put have their character into purpose jury. of character It is not evidentiary wide-ranging assault witness to allow is a the witness to convince an effort unworthy acceptable social mores. That as to nonconformist correctly assassination, ploy termed character comply impeachment. for- Thus, to oft character impeachment, proper gotten goals *10 of evi- limited to the admission and be constrained must credibility. clearly upon bears dence which Credibility Upon Impeachment Of Character Or Based Capacity Of Lack The Witness’ capacity majority confuses to me the It seems components which, as of character moral subcategories necessarily are subsumed noted, of credibility impeachment. problem of a witness’ As to the authority. split chronological capacity, of of there is lack evi exclude would admit and others would Some courts upon drug usage impeach based inca of dence supra pacity. Wigmore, §§ cases at 931-40.See also See 3A J. supra § Annot., n.1; at 934 52 in collected 3A 1973); Supps. (1957, 16 1967, Comment, S. 848 A.L.R.2d (1943). separating the courts The schism Calif. L. Rev. 333 prevailing product attitude, at societal well be a many drug concerning of Thus, addiction. trial, the time of early position of com a matter took the as courts opium knowledge ... “[t]he habitual use mon utterly deprave use and render the victim of its known to unworthy Concannon, 327, 25 Wash. of belief.” State v. him (1901). approach Another characterized 335, 65 P. 534 theory expression Wigmore in finds its as the “dream state” Fong 258, 158 P. 233 Loon, 248, State v. 29 Idaho lying from fact that the “The habit of comes doubtless part pass greater of their lives users of those narcotics distinguish world, an unreal and thus become unable images facts, and realities.” between illusions between opinion early Many their courts based lying upon contempo pathological necessarily led usage authority. e.g., ostensibly competent See, medical rary and

747 Effinger, Effinger 205, supra; 48 Nev. Fong v. Loon, v. State (1925). Stille, & Wharton also See 239 P. 801 615, 228 P. 1905). (5th Jurisprudence However, time § ed. 1111 Medical mendacity truthtelling change, healing arts longer consequence addiction is an inevitable generally Testimonial Reliabil- Note, See truism. a medical ity (1960); Note, Drug Rev. 259 Addicts, 35 N.Y.U.L. L. Rev. 742. 1966Utah Maryland Kelly 45Co., Cas. F.2d v. case of landmark

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 defense. 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 §§ Cormick, 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. which 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, 486 P.2d 1167 5 Wn. v. State physical presence (1971), and assent to the commis- “mere enough to constitute one aider or crime sion principal commiting I the crime.” If abettor language interpolate of our unanimous decision recent 851, 857, 514 Walker, Wn.2d P.2d in State Peasley controlling at time of and La- trial, law the was Vanway’s jury proposed which forth instruction set jury. given Peasley holding Hence, have been incorporating proper rejection a instruction the law error. statement case for a new trial consistent with

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.”