State v. Gairns

Ringold, J.

(dissenting) — I agree with the majority that the statement made to the probation officer by the defendant was probative on an essential element of the crime charged and was admissible. My disagreement, however, relates to permitting the witness, Kirk McKiddy, to identify himself as a probation officer. McKiddy's testimony conveyed to the jury the fact that he was Gairns' probation officer and that the defendant had been previously convicted of a crime. The court's failure to take necessary precautions to prevent this compels the granting of a new trial. A recital of the proceedings leading up to McKiddy's testimony is necessary for a fuller understanding of this issue.

On the premise that Gairns would not testify, his counsel timely made motions for orders in limine. The motions asked the court to preclude any reference to: (a) any prior conviction of the defendant, (b) the fact that the defendant was in jail at the time of trial, and (c) any prior periods of incarceration of the defendant.

*164After defense counsel completed his argument for an order in limine, the deputy prosecuting attorney advised the court that he did not intend to make any references to the fact that the defendant was in jail. The prosecuting attorney also said: "I am not really concerned about his prior convictions in a sense of proving his convictions." The prosecutor urged the court, however, to allow him to place the defendant's probation officer, Kirk McKiddy, on the stand to testify that the defendant made certain statements to him in the King County jail.

The trial court ruled that the defendant's prior convictions were not to be admitted for the purpose of testing credibility. The court, however, stated that if the defense raised the issue of defendant's capacity to commit the crime, McKiddy's testimony would be admissible. Defendant's counsel pointed out that identification of the probation officer would bring in evidence of a prior conviction. The court told defense counsel that he would deem the defense to have "opened the door, by presenting the defense of intoxication." Defense counsel then urged the court to rule that McKiddy could not be identified in testimony before the jury as defendant's probation officer. He suggested that McKiddy merely identify himself as Mr. McKiddy. The court denied the request, stating: "It is necessary to show why he was there. ..."

Gairns did not testify on his own behalf. At the conclusion of defendant's case, counsel again made his motion to exclude McKiddy's testimony and also pointed out that to "allow Mr. McKiddy to be identified as a probation officer is to circumvent the rule against use of prior convictions when the defendant is not taking the stand."

The State called McKiddy in rebuttal. Over objections he was permitted to identify himself as an Adult Probation and Parole Officer for the State of Washington and to testify that he had conversed with the defendant on the tenth floor of the King County courthouse. Over objections and motions to strike, McKiddy was allowed to tell the jury *165that "[he had] my orders of arrest and detention — otherwise known as detainers." The prosecuting attorney then told the court: "He can strike the reference to that, I don't care about that." The court then stated: "All right." No corrective instruction was given to the jury to disregard the testimony and striking it, nor did the court give any cautionary instruction with respect to the limited purpose for which the Gairns statement to McKiddy was being offered.

If he testifies, evidence of a prior conviction of a defendant may be introduced pursuant to RCW 10.52.030 only as it may affect his credibility.

Exceptions exist permitting evidence of other crimes to be admitted whether a defendant testifies on his own behalf or not.

The majority concedes that the trial court erred in failing properly to circumscribe McKiddy's testimony to the statement which would negate Gairns' assertion that he was too drunk to have the requisite intent.

As a result of this error, the inference that Gairns had a prior conviction was a matter in evidence which the jury could consider. The door to testimony of defendant's prior conviction was not opened. McKiddy's identification could have been limited to that of "an officer." The majority searches the record and rules that the evidence of the defendant's guilt was so overwhelming that this error was not prejudicial, and therefore affirms.

I disagree with the majority; in my opinion the case authority in Washington impels a determination that the introduction of evidence of a prior conviction is prejudicial per se.

The Supreme Court in State v. Eder, 36 Wash. 482, 78 P. 1023 (1904) held at 483-84:

In all the appellate courts, at the present day, evidence that the defendant has been guilty of a separate and distinct crime from that for which he is being tried, when offered for the purpose of aiding the conviction of the defendant is held inadmissible, and reversible error when admitted over proper objection.

*166In State v. Devlin, 145 Wash. 44, 258 P. 826 (1927), the identification of the defendant as a participant in a robbery was at issue. In the course of redirect examination, with respect to a witness' identification of the defendant, he was asked where he had seen a picture of the defendant before he had identified him at the jail. In replying, the witness stated: "I saw it in the rogue's gallery." The court relying upon State v. Eder, supra, and State v. Ferrone, 96 Conn. 160, 113 A. 452 (1921) held that such redirect examination was improper, denied the defendant a fair trial and therefore reversed.

In a second appeal of the Ferrone case, 97 Conn. 258, 116 A. 336 (1922) a detective sergeant, over objections of the defendant, testified to a conversation with the accused at the time of his arrest:

"I said, 'I am going to take you to headquarters and verify the fact the picture of yours is there and you are wanted.' He said, 'No, I was never arrested in my life before.' I said, 'I'll have to take you over anyway.' . . . While waiting for a car, Moog, a fellow officer of Higgins, said to Ferrone: 'Why you just came out from doing seven years in Sing Sing.'"

The court said:

"Evidence tending to show the commission of other crimes on the part of the accused, or facts disclosing his bad character or repute, are not material or relevant to the charge against the accused and should never be permitted to be introduced, for its purpose can be none other than to prejudice the jury against the accused, and hence to deny him the fair trial which the law guarantees him of being proven guilty of the crime with which he stands charged by evidence which our law accepts. None of the conversation between Higgins and the accused was admissible. None of it related to the charge against the accused. It was obviously intended for the purpose of picturing the accused as a notorious criminal."

State v. Devlin, supra at 50.

The question was resolved in State v. Sayward, 63 Wn.2d 485, 490, 387 P.2d 746 (1963) where the court held:

*167We disagree with the broad statement made in Stump [State v. Stump, 16 Wn.2d 140, 132 P.2d 727 (1943)]. We hold that it is prejudicial error to allow evidence of a prior conviction of a similar offense to be introduced in a jury trial where the defendant has not taken the stand and where no other exception to the general rule is shown to exist. This evidence is highly prejudicial and easily tends to distract the jury from the primary charge before it because they may conclude that because he had once committed the offense, it is more likely that he had done so again. In our opinion, the procedure permitted in Stump should not be extended beyond that case or carried over to other situations. We need not now decide whether Stump should be overruled because in this case there is a vital distinction, i.e., appellant did not take the witness stand, and, consequently, evidence of the prior conviction could not have been admitted under RCW 10.52.030.

(Italics mine.)

Evidence of the probation officer's identification and of his statements referring to orders for arrest and detention was prejudicial per se and requires reversal of Gairns' conviction.

Reconsideration denied August 22, 1978.

Review denied by Supreme Court December 14, 1978.