State v. Newton

¶1(dissenting) — It does not comport with my concept of responsible rulemaking for this court to adopt a written court rule that plainly says one thing, and then, through the guise of "interpretation", to now change it to mean something altogether different. Therefore, I dissent.

¶2While I fully agree that the deputy prosecuting attorney's closing argument quoted at the outset of the majority opinion was improper, I am not entirely clear as to the purpose that quotation in the opinion is supposed to serve since no error was assigned to it. Nor was that argument even mentioned by the parties in their briefs or arguments herein, either in this court or the Court of Appeals. Certainly there is nothing in the evidentiary rule under discussion in this case which purports to justify such an argument. Accordingly, I will proceed to the evidentiary issue which was raised.

¶3The critical factual issue at trial was whether the defendant had the deceased priest's authority to use his credit card and sign his name for the substantial charges he made using that credit card. The defendant testified that he did have permission, hence his credibility was central to the case.

¶4Our evidence rule dealing with impeachment by evidence of conviction of crime provides simply and clearly:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross examination but only if the crime ... (2) involved dishonesty or false statement, regardless of the punishment.

¶5(Italics mine.) ER 609(a)(2).

¶6Following the language of this rule, the trial court con*83sidered the record as to the nature of the defendant's prior conviction in order to determine whether or not it involved "dishonesty or false statement". He found that it did, and therefore allowed its use for impeachment purposes.

¶7The Court of Appeals determined that this was entirely proper and affirmed.4 I agree.

¶8I perceive the issue here to be as follows: Did the tried court err by admitting into evidence at trial, for impeachment purposes under ER 609(a)(2), the defendant's prior conviction of third degree theft after first inquiring into the circumstances of the crime in order to determine whether or not the conviction involved "dishonesty or false statement" in fact?

¶9I would conclude: In determining whether a prior conviction is of a crime involving "dishonesty or false statement", so as to make it admissible for impeachment purposes under ER 609(a)(2), the trial court is not limited to considering the statutory elements of the crime, but may evaluate the defendant's actual conduct and the circumstances of the crime.5

¶10As noted, ER 609(a)(2) provides that a conviction of a crime is admissible to attack the credibility of a witness if the crime "involved dishonesty or false statement, regardless of the punishment". This rule allows the use of convictions for both felonies and misdemeanors, so long as the "dishonesty or false statement" test is met.6

¶11In State v. Thompson, 95 Wn.2d 888, 632 P.2d 50 (1981), this court decided that the scope of crimes involving "dis*84honesty or false statement" is narrower than it may first appear.7 In Thompson, it unanimously held that "ER 609 distinguishes between acts of deceit, fraud, and cheating, which impinge on one's reputation for honesty, and other felonious acts of violence which may, in fact, 'result from a short temper, a combative nature, extreme provocation, or other causes, [and] have little or no direct bearing on honesty and veracity."' (Italics ours.)8

¶12Then in State v. Burton, 101 Wn.2d 1, 676 P.2d 975 (1984), this court had before it a case which presented "the first opportunity for us to determine which crimes are crimes of 'dishonesty'".9 In this connection, the Burtonmajority observed:

In choosing to adopt the federal version of rule 609 verbatim, we indicated our acceptance of the interpretation given to that rule by federal courts.[10]

¶13After reviewing federal cases and scholarly commentary thereon, the court held:

Only prior conviction evidence which has a direct bearing on a defendant's ability to testify truthfully will be admissible to impeach a defendant's credibility as a witness. Therefore, the category of crimes involving "dishonesty" is defined to include only those crimes having elements in the nature of crimen falsi, the commission of which involves some element of deceit, fraud, untruthfulness or falsification bearing on the accused's propensity to testify truthfully.[11]

¶14The Burtonmajority concluded that the trial court had committed reversible error when it admitted, for impeachment purposes, the defendant's prior convictions for petit larceny and shoplifting.

¶15*85As Justice Carolyn R. Dimmick12 pointed out in her separate opinion in Burton(concurring in part, dissenting in part — and in which opinion the late Justice Hugh J. Rosel-lini also concurred), the Burtonmajority "suggests that prior convictions can be categorized as crimes of 'dishonesty or false statement' merely by looking at the name of the crime." (Italics mine.)13 The Burtonmajority opinion did not, however, deal with the merits of that proposition or directly rule thereon.

¶16Since this court in Burtonsaw fit to accept the interpretation of ER 609 adopted by the majority of federal courts and follow their "restrictive approach to admissibility of evidence under ER 609(a)(2)",14 I perceive no valid reason for not also adopting the corollary of that view which is followed by the vast majority of federal courts and which the Court of Appeals followed in this case. As the District of Columbia Circuit Court observed in an en banc decision, " [a] ll circuits that have considered the question, including our own, have held that the prosecution may adduce specific facts to bring a prior conviction within Rule 609-(a)(2).” (Italics mine.)15 Accordingly, I would not restrict trial courts to considering merely the statutory elements of prior offenses offered for impeachment purposes under ER 609(a)(2), but would allow them to evaluate the actual circumstances of the crime in deciding whether or not the crime of which the witness was convicted involved "dishonesty or false statement".

¶17The majority says that the federal courts disagree on how to interpret ER 609(a)(2), and cites two cases as support for its interpretation. These are United States v. Lewis, 626 *86F.2d 640 (D.C. Cir. 1980) and Tussel v. Witco Chem. Corp., 555 F. Supp. 979 (W.D. Pa. 1983). I strenuously question that. The District of Columbia Circuit Court dismissed Lewisin 1983 after describing the other circuits' agreement with my interpretation of ER 609(a)(2) as set forth above.16 In United States v. Lipscomb, 702 F.2d 1049 (D.C. Cir. 1983), the court noted that the Lewisinterpretation of the rule was no more than dictum.17 The Tusselreliance on Lewisas "the most recent decision on this issue" is no longer valid and Tusselis thus no more than a federal trial court decision which relied on a case which no longer has any precedential value.18 Accordingly, Tusselhas no real precedential value either.

¶18I fully agree with the analysis in the comprehensive Court of Appeals majority opinion in this case written by Judge Reed:19

The commission of credit card theft and the use of that stolen card involve dishonesty. See United States v. Crawford, 613 F.2d 1045, 1052 (D.C. Cir. 1979). The underlying circumstances of Newton's prior conviction for third degree theft reveal that Newton stole a credit card and assumed a false identity as the card's owner in order to obtain either goods or services through the owner's credit. With the facts of the conviction before him and with no definite authority precluding his use of these underlying facts, the trial judge acted properly in admitting Newton's prior conviction following his determination that the crime involved dishonesty.

Although State v. Burton [101 Wn.2d 1, 676 P.2d 975 (1984)] may suggest that the trial court can consider only the statutory elements of the crime underlying the impeaching conviction, it does not clearly so hold. Indeed, justification for the trial court's actions in admitting Newton's prior conviction can be found in Burton.

¶19*87The Burtonmajority emphasized that, in adopting verbatim the federal version of ER 609, our Supreme Court "indicated our acceptance of the interpretation given to that rule by federal courts." Burton, 101 Wn.2d at 9; see Comment, ER 609, 91 Wn.2d 1150 (1978). An overwhelming majority of the federal circuits have permitted the type of inquiry that was conducted by the trial court here. Burton, 101 Wn.2d at 8. See United States v. Lipscomb, 702 F.2d 1049, 1064 (D.C. Cir. 1983); United States v. Grandmont, 680 F.2d 867, 871 (1st Cir. 1982); United States v. Hayes, 553 F.2d 824, 827-28 (2d Cir.), cert. denied, 434 U.S. 867, 54 L. Ed. 2d 143, 98 S. Ct. 204 (1977); Government of V.I. v. Toto, 529 F.2d 278, 281 (3d Cir. 1976); United States v. Cunningham, 638 F.2d 696, 699 (4th Cir. 1981); United States v. Barnes, 622 F.2d 107, 110 (5th Cir. 1980); United States v. Papia, 560 F.2d 827, 847 (7th Cir. 1977); United States v. Yeo, 739 F.2d 385, 388 (8th Cir. 1984); United States v. Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982); United States v. Whitman, 665 F.2d 313, 320 (10th Cir. 1981).

As stated in United States v. Hayes, 553 F.2d at 827: If the title of an offense leaves room for doubt, a prosecutor desiring to take advantage of automatic admission of a conviction under [609(a)(2)] must demonstrate to the court "that a particular prior conviction rested on facts warranting the dishonesty or false statement description." United States v. Smith, [551 F.2d 348, 364 n.28 (1976)].

¶20Also, as stated in United States v. Papia, 560 F.2d at 847:

Even the courts that reject the view that stealing, without more, involves "dishonesty" that bears on a witness's veracity recognize that modern theft statutes may encompass criminal conduct that does fall within the ambit of Rule 609(a)(2), for a theft conviction may well be based on fraudulent or deceitful conduct that would previously have been prosecuted as larceny by trick, embezzlement, or the taking of money or property by false pretenses, etc. Accordingly, these courts have adopted the rule that, when the statutory offense of which the witness was convicted does not require proof of fraud or deceit as an essential element of the crime, the prior conviction may yet be admitted under Rule 609(a)(2) if the proponent of the evidence bears *88the burden of showing that the conviction "rested on facts warranting the dishonesty or false statement description." United States v. Hayes, 553 F.2d 824, 827 (2d Cir. 1977), quoting United States v. Smith, 551 F.2d 348, 364 n.28 (D.C. Cir. 1976); accord Government of Virgin Islands v. Toto, 529 F.2d 278, 281 n.3 (3d Cir. 1976).

¶21Further justification for interpreting ER 609(a)(2) to allow this type of inquiry is found in the very language of the rule. The rule could have provided, but does not, that only those crimes having certain statutory elements are admissible. Rather, the rule permits admission of a prior conviction for a crime that "involved dishonesty or false statement..." (Italics ours.)

¶22Consideration of the actual conduct involved in the commission of the crime underlying the conviction clearly is consistent with Burton's statement that " [t]he purpose of allowing impeachment by prior conviction evidence is to shed light on the defendant's credibility as a witness. Therefore, prior convictions admitted for impeachment purposes must have some relevance to the defendant's ability to tell the truth.” Burton, 101 Wn.2d at 7. If the underlying circumstances of the crime demonstrate a disregard for truthfulness, then admission of evidence of that conviction fulfills the purpose of ER 609(a)(2).

¶23We conclude, therefore, that the trial court did not err in admitting evidence of Newton's prior conviction for third degree theft under ER 609(a)(2), after inquiring into the circumstances of that conviction.

¶24(Footnote omitted.) This analysis and ruling are correct and I would follow them.

¶25I am well aware that some text writers subscribe to a contrary view. For example, Judge Weinstein and Professor Berger, in their well regarded text Weinstein's Evidence, indicate that the statutory definition of the crime should be determinative for ER 609(a)(2) purposes. They reason that "convenience" requires this.20 With due respect for their expertise, I do not perceive how making preliminary factual determinations of this kind substantially differs from making the myriad of other preliminary factual determinations *89which are a trial judge's lot in modern criminal trial practice in this state.21 Such factual determinations on preliminary matters are now relatively routine.

¶26Nor do I feel there is any profit to be gained from a case by case analysis concerning the extent of the factual inquiry allowed in each of the reported decisions on this subject. That is because in this situation, as in so very many other trial matters, we should rely on the discretion of the trial court to decide when it should inquire into such background facts and circumstances and how extensive an inquiry to allow.22

¶27I do not question either the sincerity or the intensity of the majority's feeling on this issue. With all due respect, however, the majority's arguments against using a witness' prior record of convictions of crimes to impeach the witness at trial are no more than arguments in favor of changing our court rule. A well established, workable and frequently used process exists for that precise purpose, wherein the Bar and everyone else concerned may be heard in connection therewith. The present Evidence Rules went through such a process before they were adopted, and changes to those rules should go through the same process.

¶28Implicit in the majority's decision and reasoning is the notion that since this court adopted the evidence rule in question, and since we have the undoubted right to interpret it and other rules of court, we thus have the right to construe such rules to mean whatever a majority of this court "considers best”. When this argument was previously made, it was rejected out of hand by this court. As State v. McIntyre, 92 Wn.2d 620, 622-23, 600 P.2d 1009 (1979) made eminently clear in this regard:

This case involves only the application and interpretation of a rule adopted by this court. In oral argument counsel implied that this court, as the author of the rule, *90need not adhere to the principles of statutory construction. We disagree. To ignore those principles would contravene the rule recently announced in State ex rel. Schillberg v. Everett Dist. Justice Ct., 90 Wn.2d 794, 585 P.2d 1177 (1978), where we said at page 797:

As the author of these rules, this court, of course, is in a position to reveal the actual meaning which was sought to be conveyed. However, we approach them as though they had been drafted by the legislature, and give the words their ordinary meaning, reading the language as a whole and seeking to give effect to all of it.

One of the rules of statutory construction is that language which is clear upon its face does not require or permit any construction. We have said several times: "Where there is no ambiguity in a statute, there is nothing for this court to interpret." State v. Roth, 78 Wn.2d 711, 714, 479 P.2d 55 (1971); State ex rel. Hagan v. Chinook Hotel, Inc., 65 Wn.2d 573, 578, 399 P.2d 8 (1965); In re Estate of Baker, 49 Wn.2d 609, 610, 304 P.2d 1051 (1956).

¶29There is no ambiguity in ER 609(a)(2) to interpret. This court has no more business reading words into this court rule that are not there, or modifying it by construction, than we have of interpreting an unambiguous statute.23

¶30I dissent from the majority opinion for the foregoing reasons. I would affirm the Court of Appeals and the defendant's conviction.

¶31Brachtenbach, Callow, and Durham, JJ., concur with Andersen, J.