Opinion
No. 57299-7-I.
November 20, 2006.
Appeal from a judgment of the Superior Court for King County, No. 93-1-04159-1, Douglass A. North, J., entered November 9, 2005.
Counsel for Appellant(s), Andrew Peter Zinner, Nielsen, Broman Koch, PLLC, Seattle, WA.
Counsel for Respondent(s), Kristin Virginia Richardson, King Co Pros Office, Seattle, WA.
Affirmed by unpublished per curiam opinion.
Shawn Cooper was convicted of Murder in the Second Degree for his role in the 1993 death of Virgil Wenger. The State's key witness had a 1990 conviction for false reporting. In pretrial proceedings, Cooper sought admission of evidence of the conviction for impeachment purposes. The trial court found that the 15 year old conviction was inadmissible under ER 609(b). Cooper appeals claiming the court abused its discretion by failing to balance the probative value of the evidence against its prejudicial effect prior to ruling on admissibility. We affirm.
FACTS
In January 1993, the police found 74 year old Virgil Wenger dead in his home with blood spatter, blood soaked clothing and bloody tissues all around him. Wenger suffered multiple blunt impact injuries to his face and head, several severe facial fractures, a broken rib, evidence of blunt trauma to other parts of his body, and "defensive" wounds on his hands. He also had cuts and stab wounds on his leg, arms and hands. These injuries were found "consistent with the use of a frying pan, pruning shears, a piece of wood or the side of a hammer as a weapon." Evidence of hemorrhages in his neck muscles and petechial hemorrhages in his eyes showed he had been strangled. He was found seated against the door with his chin on his chest causing speculation that he could not breathe or lift his head to clear his airway causing positional asphyxia.
Cooper was charged with Murder in the Second Degree asserting both intentional murder and felony murder with an assault predicate. During this trial, LaDonna White served as a key witness for the State. She testified that Wenger usually kept $1,000 to $1,300 hidden in several locations in his home. The prosecution then used this testimony to link the ransacked appearance of the home and the absence of any money to the theory that Cooper had beaten Wenger in order to obtain the cash. Cooper used White's 1990 false reporting conviction as impeachment evidence. Despite the attempt to impeach White's credibility, the jury found him guilty without indication of unanimity on each of two alternatives.
Although the conviction was upheld on appeal, Cooper eventually received relief under a Personal Restraint Petition pursuant to In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002) and In re Personal Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004). The conviction was vacated. In 2005, the State charged Cooper again for intentional Murder in the Second Degree, but not for felony murder. Once again, the State relied heavily on White's testimony to prove intent. Cooper wanted to use the 1990 conviction to impeach her credibility despite the prohibition against convictions older than 10 years found in ER 609(b). The defense argued that the 10 years should be measured only until the date of the original trial. The trial court disagreed and ruled the conviction inadmissible. The jury found Cooper guilty and he was sentenced to a standard range of 225 months.
DISCUSSION
We review a trial court's decision on the admissibility of evidence for abuse of discretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999) cert. denied, 528 U.S. 922 (1999). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Absent an abuse of discretion, we will not disturb on appeal a trial court's rulings on the admissibility of evidence. Hume v. American Disposal Co., 124 Wn.2d 656, 666, 880 P.2d 988 (1994).
Evidence Rule 609 governs the admission of convictions for the purpose of impeachment. The rule imposes a time limitation upon the use of convictions.
(b) Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
ER 609(b).
Cooper argues the trial court abused its discretion by failing to balance the probative value of the 1990 conviction against its prejudicial value on the record. To support this claim, he relies on State v. Russell, 104 Wn. App. 422, 16 P.3d 664 (2001), where Division Two of this court held that "ER 609(b) required the trial court to balance probative value against unfair prejudice, and that ER 609(b) required the trial court to balance on the record." Russell, 104 Wn. App at 433. The court further stated that, "[a] trial court is always required to balance on the record when a conviction is more than 10 years old, regardless of whether the conviction involves dishonesty or false statement." Russell, 104 Wn. App at 434. The "always" requirement clearly refers to both dishonesty and false statements, but it is unclear whether it was also intended to apply to both admitting or excluding the evidence.
In Russell, the trial court found the old conviction admissible, while the trial court in the case at hand found the old conviction inadmissible. The State argues that balancing probative value and prejudicial effect is not required when the evidence is greater than 10 years old and the trial court determines it is inadmissible. Since the Washington rule was taken verbatim from Federal Rule of Evidence 609(b), we look to federal case law for assistance in its interpretation. See, e.g., State v. Burton, 101 Wn.2d 1, 6, 676 P.2d 975 (1984) overruled on other grounds; State v. Smith, 97 Wn.2d 856, 859, 651 P.2d 207 (1982); Harding v. Will, 81 Wn.2d 132, 135, 500 P.2d 91 (1972).
Federal Rule of Evidence 609(b) has been interpreted to require balancing upon admission of a stale conviction, but not upon exclusion. The Fifth Circuit adopted this construction of the federal version.
We read Rule 609(b) to say that the probative value of a conviction over ten years old is outweighed by its prejudicial effect. The general rule is inadmissibility. It is only when the court admits evidence of a conviction over ten years old that the court must engage in a balancing test on the record.
United States v. Estes, 994 F.2d 147, 149 (5th Cir. 1993). "[T]his balancing-requirement applies only when over-age convictions are admitted; in other words, it is not required when they are excluded." United States v. Avants, 367 F.3d 433, 448 (5th Cir. 2004). Because this court has not addressed the balancing test with regard to exclusion of the evidence, the interpretation of the federal rule is informative and persuasive.
The plain text of the rule also supports this interpretation because it reads that stale conviction evidence is inadmissible "unless the court determines . . . that the probative value of the conviction . . . substantially outweighs its prejudicial effect." ER 609(b). A court cannot admit evidence without the balancing test, but the rule makes no mention of a need to balance prior to excluding evidence.
Like its federal counterpart, ER 609(b) intentionally creates a bias toward exclusion because the probative value of a conviction with respect to credibility diminishes as time passes. Russell, 104 Wn. App. at 426. These convictions are presumed irrelevant to credibility, absent a showing that the persuasive value substantially outweighs the prejudice. State v. Jones, 117 Wn. App. 221, 233, 70 P.3d 171 (2003). The trial court's failure to balance the probative value against the prejudicial nature of the evidence on the record when excluding the use of a conviction older than 10 years was not error.
We affirm.