Opinion
No. 56962-7-I.
November 6, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-03603-4, Palmer Robinson, J., entered August 30, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Cheryl D Aza, Expat-CAPE, Po Box 4381, Houston, TX 77210-4381.
Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Nancy P Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Sean Patrick O' Donnell, King Co Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Affirmed by unpublished per curiam opinion.
Derrick Thomas claims that he was denied a fair trial when the trial court excluded the assault victim's juvenile adjudication. He contends that the jury would have been better able to evaluate the victim's credibility if her juvenile record had been admitted. Juvenile delinquency records may not be used for general impeachment purposes without any special reasons favoring admission. The trial court did not abuse its discretion in excluding the victim's juvenile record from evidence. In a statement of additional grounds, Thomas argues that the trial court erroneously excluded exculpatory evidence. Finding no error, we affirm.
FACTS
On June 7, 2004, at about 3 PM, Kameela Passmore was outside the welfare office on South Graham Street in Seattle. While she waited for her husband to come pick her up, a man that she identified as Derrick Thomas, Jr., her husband's cousin, approached her and slapped her with an open hand across the face. Mrs. Passmore was the sole witness to testify to this event.
Mrs. Passmore's husband, Floyd Passmore, and her sister, Khadijah Kahn, returned to the welfare office to pick Mrs. Passmore up. Mr. Passmore testified that he saw his cousin, Mr. Thomas, in the welfare office parking lot. Mr. Passmore testified that Mr. Thomas said "I slapped your bitch." Mr. Passmore also testified that he saw his wife exit the welfare office, crying hysterically. Khadijah Kahn testified that she saw Mr. Thomas in the welfare office parking lot. She claimed that he assaulted her as well. She further testified that she found her sister, Mrs. Passmore, inside the office. Ms. Kahn testified that Mrs. Passmore was scared and upset.
Complaining of pain and ringing in her ear, Mrs. Passmore was examined at Swedish Hospital the evening of the day of the assault. Several days later at another clinic, her primary care physician diagnosed her with a perforated eardrum, the result of a significant amount of force being applied to her head.
Mr. Thomas denied assaulting Mrs. Passmore, or that he was present at the time of the assault. Instead, he claimed that he was at Harborview Hospital, picking up a check from the Woman, Infant and Children program (W.I.C.). Mr. Thomas called Maurice Jackson, aka "Six Four," to testify. Six Four was an acquaintance of both Mr. Thomas and Mr. Passmore. Six Four was present the day of the assault, and testified that Mr. Thomas was not Mrs. Passmore's assailant.
Mr. Thomas' alibi evidence consisted of check stubs from the W.I.C. program at Harborview, issued on the day of the assault. The check stubs did not show the time of day they were issued. A W.I.C. program employee testified that the checks were from the W.I.C. program, but that she did not have access to any information that actually recorded the time that they were issued. Only information systems employees of the Department of Social and Health Services (DSHS) in Olympia had access to the time that checks were issued. The trial court concluded that the W.I.C. employee was unable to lay the foundation required for the time log to meet the business records exception. The trial court admitted the check stubs, but did not admit the DSHS log of issued checks.
Prior to trial, Mr. Thomas sought a ruling that he be allowed to impeach Mrs. Passmore with a juvenile adjudication for third degree theft. The adjudication was from nine years ago, when Mrs. Passmore was 15 or 16 years old. Mr. Thomas argued that since his defense was alibi, Mrs. Passmore's credibility would be the dispositive issue in the case. The trial court did not admit Mrs. Passmore's prior juvenile adjudication for impeachment purposes, stating,
I think there's a presumption that a juvenile adjudication is not admissible in this case. The theft would be she was either 15 or 16, depending on facts that I think probably none of us know in terms of the month of her birth and the month of the offense or adjudication at the time. It hasn't been ten years so that 609(b) doesn't come into play, but it's been pretty close; and I think ten years for a juvenile is longer than ten years for an adult in terms of the reasons, if that makes any sense, for that time period in the rule; and I am not satisfied that the evidence is necessary for a fair determination of the issue of guilt or innocence.
At trial, Mr. Thomas testified that he was not at the welfare office parking lot on June 7, 2004, and that he did not see any of the other parties on that day. He described a disagreement that Mrs. Passmore and Ms. Kahn had had with his mother and aunt. He testified that he was upset because he felt that Mrs. Passmore and Ms. Kahn had been disrespectful towards his mother and aunt. However, he maintained his defense that he was at Harborview at the time of the assault, and was not Mrs. Passmore's assailant.
On July 21, 2005, a jury convicted Mr. Thomas of one count of assault in the second degree on Mrs. Passmore. He was acquitted of a fourth degree assault charge on Ms. Kahn.
ANALYSIS
Mr. Thomas argues that he was denied due process by erroneous evidentiary rulings. He argues that he was not given a fair trial because the jury was not able to fully evaluate Mrs. Passmore's credibility without full knowledge of her juvenile adjudication. The State argues that in the absence of any indication of special reasons favoring admissibility, the general rule is that juvenile adjudications are inadmissible for general impeachment purposes. The State also argues that Thomas' trial counsel's cross-examination of Mrs. Passmore was "unfettered," and did not create unfairness at the trial.
1. Use of Juvenile Adjudication
Evidence Rule (ER) 609(d) provides:
Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a finding of guilt in a juvenile offense proceeding of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
We review the decision to admit or exclude the evidence for abuse of discretion, as long as the trial court's interpretation of the rule is correct. See State v. Nelson, 131 Wn. App. 108, 115, 125 P.3d 1008 (2006). Theft is an offense that would be admissible to attack the credibility of an adult. State v. Brown, 113 Wn.2d 520, 552-53, 782 P.2d 1013, 787 P.2d 906 (1989). However, "[w]hen juvenile adjudications are sought to be admitted solely for general impeachment the trial court has broad discretion on admissibility." State v. Gerard, 36 Wn. App. 7, 11, 671 P.2d 286 (1983) (citing State v. Temple, 5 Wn. App. 1, 4, 485 P.2d 93 (1971). In Gerard, the defendant sought admission of a juvenile witness' prior record. Defense counsel argued that the witness' record would be admissible in an adult proceeding, but did not make an offer of proof, nor gave any information on what the actual convictions were or his intended use of them. Gerard, 36 Wn. App. at 10-11.
Assuming that the witness' juvenile record was intended to impeach the witness' general credibility and not to show particular bias or motive in testifying, the court concluded that
[i]n the absence of any indication of special reasons favoring admissibility, the general rule is that the adjudications are inadmissible. Gerard did not give any reasons for admissibility beyond general impeachment of the witness' credibility. The evidence of a prior conviction would be of dubious value to a defendant in a bench trial. The burden was on Gerard to present reasons other than impeachment to demonstrate that the evidence was "necessary for a fair determination." The trial court did not abuse its discretion.
Gerard, 36 Wn. App. at 12 (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 20, 482 P.2d 775 (1971)).
Here, while Mrs. Passmore is no longer a juvenile (as was the witness in Gerard), and Mr. Thomas was tried in front of a jury (rather than a bench trial), the rule from Gerard still applies. Mr. Thomas bears the burden of demonstrating that the adjudication was necessary for a fair determination of his guilt or innocence. However, he did not indicate any special reasons favoring admissibility, other than general impeachment of Mrs. Passmore. The only offer of proof concerned the timing of Mrs. Passmore's juvenile adjudication. The record does not contain a copy of the adjudication.
Because Mr. Thomas sought to admit Mrs. Passmore's juvenile adjudication only for general impeachment purposes, the trial court has broad discretion on admissibility. The trial court reviewed ER 609(d) and Mr. Thomas' offer of evidence, and concluded it was "not satisfied that the evidence is necessary for a fair determination of the issue of guilt or innocence." The trial court did not abuse its discretion in reaching this conclusion. We find no error in excluding Mrs. Passmore's juvenile adjudication from evidence.
2. Cross-Examination
"It is a basic and essential rule that '[t]he extent of the cross-examination of a witness upon collateral matters which tend to affect the weight to be given the witness' testimony, rests within the sound discretion of the trial court." State v. Temple, 5 Wn. App. 1, 4, 485 P.2d 93 (1971) (citing State v. Goddard 56 Wn.2d 33, 37, 351 P.2d 159 (1960).
Mr. Thomas' counsel had the opportunity to question Mrs. Passmore about the incident, and asked detailed questions about how it occurred, her reaction, and her actions after the assault. The State did not make any objections during this questioning. The fact that the trial court properly excluded the victim's juvenile adjudication did not result in an improper curtailment of Mr. Thomas' cross-examination of the victim. The trial court did not abuse its discretion.
3. Exclusion of the Check Log
"RAP 10.10 permits an appellant in a review of a criminal case to file a pro se statement of additional grounds for review to identify and discuss those matters that he believes have not been adequately addressed by counsel." State v. Freeman, 118 Wn. App. 365, 379, 76 P.3d 732 (2003). Exercising that right, Mr. Thomas argues that trial court erred because it disallowed a computer-generated time log that indicated the time that checks had been issued from Harborview's W.I.C. program. He contends that the time log places him at Harborview, not the welfare office parking lot, at the time of the alleged assault. After testimony from an employee of Harborview that the time log was not generated at Harborview, but instead generated in Olympia, the trial court concluded that it was "not satisfied that the foundation ha[d] been laid to admit it as a business record" and excluded it from evidence.
We review the decision to admit or exclude the evidence for abuse of discretion, as long as the trial court's interpretation of the rule is correct. State v. Nelson, 131 Wn. App. at 115. Evidence is unobjectionable as hearsay if it qualifies as a business record. In order to qualify as a business record, evidence must first be identified and authenticated, i.e. the proponent must demonstrate that the record in question is a record of the business entity in question. State v. DeVries, 149 Wn.2d 842, 72 P.3d 748 (2003). Identification by an employee who has personal knowledge of the recording of the information is generally sufficient. State v. Meyer, 37 Wn.2d 759, 226 P.2d 204 (1951). As to computer records, the proponent must show that the computing equipment used is standard, that the entries were made at or near the time of the happening of the event and were made in the regular course of business, that the business relies on the records, and that the evidence is trustworthy. Seattle v. Heath, 10 Wn. App. 949, 520 P.2d 1392 (1974); State v. Kane, 23 Wn. App. 107, 594 P.2d 1357 (1979); State v. Smith, 16 Wn. App. 425, 558 P.2d 265 (1976). In the absence of these foundation requirements, information retrieved from a computer is objectionable as hearsay. See State v. Walker, 16 Wn. App. 637, 557 P.2d 1330 (1976).
RCW 5.45.020. Business records as evidence. A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
The record indicates that Mr. Thomas' counsel questioned the Harborview employee about her knowledge of the computer-generated time log. She testified that she does not, when issuing the W.I.C. checks, record or even see the time that they are issued. She did not have personal knowledge about how the time was recorded. She could not say that the time log was made at or near the time that the check was issued. When questioned as to whether Harborview would rely on this information if there was ever an issue of time on the checks, she testified, "I think so. I'm sure there is an understanding between the state and Harborview." DSHS employees who generated the time log were not available to testify to determine whether the process or system of recording the time log is reliable and generates accurate information. Based on the above, the trial court correctly concluded that an adequate foundation had not been laid to meet the requirements of the business records exception. Excluding the time log as hearsay was not an abuse of discretion.
We conclude that no errors were committed with respect to evidentiary ruling, therefore the claimed due process denial based on erroneous evidentiary rulings fails. We affirm.
BECKER and ELLINGTON, JJ., concur.