State v. Rivers , 129 Wash. 2d 697 ( 1996 )

Guy, J.

— Defendant Paul Rivers challenges both his underlying conviction for second degree robbery and the constitutionality of the Persistent Offender Accountability Act, the statute under which he was sentenced to life imprisonment without possibility of parole. We affirm the conviction and the sentence.

Facts

On December 20, 1993, less than three weeks after Washington’s Persistent Offender Accountability Act went into effect, Defendant Paul Rivers was arrested for the robbery of an espresso bar employee in the University District of Seattle.

The victim of the robbery, Josef Slobodzian, testified that in December 1993, he worked at a walk-up espresso bar in Seattle’s University District. On the evening of December 20, 1993, Mr. Slobodzian closed the espresso bar about 9 p.m. He counted the cash and put it and a hank deposit slip into a bank bag. Mr. Slobodzian set the bank bag on the outside counter of the espresso bar while he brought the tables and chairs inside. He testified that he saw a man wearing a tan trench coat walk by and that he looked out to make sure the bank bag was still on the counter.

Mr. Slobodzian then took the bank bag, containing approximately $340, and began walking toward the bank. While he was stopped for a traffic light at an intersection, the man in the tan trench coat approached him, chatted for a moment and then said, "I have a gun, give me the bank bag.” The two men struggled over the bag for a short time before the robber grabbed the bag and ran. Mr. Slobodzian chased the robber until he turned into an alley where the robber then turned and said, 'Til blow your head off. It is not worth your life.” The man had his hand in his left pocket and was pointing something at him that Mr. Slobodzian believed to be a gun. Mr. Slobodzian abandoned his chase and called the police.

A description of the robber was broadcast over the police radio and was heard by two officers who had talked with Defendant Rivers and his girlfriend earlier that day about a different matter. The officers stated that at the time of the earlier contact Defendant Rivers had been wearing a tan trench coat and that he otherwise matched the description of the robber. The officers drove near the house where the Defendant had been staying. They saw the Defendant’s girlfriend walk across the alley, put something into a garbage can and walk quickly back to the house. The officers retrieved the espresso bar’s bank bag from the garbage can. The bag had been slit open and contained no cash but still contained the deposit slip.

The officers then went to the Defendant’s house where they found Defendant Rivers hiding underneath a mattress in a bedroom. The Defendant and the bank bag were separately brought outside to where Mr. Slobodzian was located. Both the bag and the Defendant were identified at that time by Mr. Slobodzian.

Defendant Rivers was arrested. He had $254.31 in cash on his person. The Defendant first told a police officer that his girlfriend had given him the money and that he did not know where she got it. He later claimed the money came from a check that he had cashed. At trial the Defendant testified that he took the money from the espresso bar when Mr. Slobodzian was not looking. No gun was found.

He was charged on December 23, 1993, with robbery in the second degree. On February 7, 1994, the State filed a "Notice of Intent to File Persistent Offender Allegation.”

Defendant Rivers was the only witness to testify for the defense about the circumstances of the robbery. He testified that he had been staying with a friend in the house where he was arrested, across the street from the espresso bar. He said his friend went to the espresso bar frequently and that he himself had gone there and had talked with Mr. Slobodzian more than once. He testified that he had heard from a friend that Mr. Slobodzian wanted some marijuana and that he attempted to sell marijuana to Mr. Slobodzian. He testified that Mr. Slobodzian told him that he was short on money but could pay him in a couple of days. The Defendant said he believed Mr. Slobodzian owned the espresso shop, so he sold Mr. Slobodzian marijuana on credit. He testified that he asked Mr. Slobodzian for the money due, but Mr. Slobodzian kept putting him off.

Defendant Rivers testified that he went to the espresso bar on the evening of December 20, 1993, and that Mr. Slobodzian again told him that he did not have the money that was owed to the Defendant. The Defendant said he had seen Mr. Slobodzian place the money sack on the counter right by the door and when Mr. Slobodzian had his back turned, the Defendant took the bank bag, put it under his coat, and said good-bye. About 20 minutes later, the police came to his home and arrested him.

At trial the State was permitted to use three prior felony convictions in its attempt to impeach the Defendant’s testimony. The State also was allowed to question the Defendant about a statement made by his lawyer during opening statements. Further, the State was permitted to ask one of its witnesses, a police officer, whether the person shown in exhibit 6, a booking photograph dated December 21, 1993, was the Defendant. These three actions are challenged on appeal.

The jury returned a verdict of guilty on the robbery charge.

A second jury found Defendant Rivers to have three convictions of "most serious offenses.” This finding is not challenged on appeal. The trial judge then sentenced the Defendant to life imprisonment without possibility of parole, under the terms of the Persistent Offender Accountability Act. Laws of 1994, ch. 1 (Initiative 593, approved November 2, 1993), amending the Sentencing Reform Act of 1981, ROW 9.94A.

Defendant Rivers appealed his conviction and his sentence. We ordered this case transferred to this court for argument and set it as a companion case with State v. Manussier, 129 Wn.2d. 652, and State v. Thorne, 129 Wn.2d 736.

Issues

1. Did the trial court err in permitting the State to use a prior assault conviction to impeach the credibility of the Defendant?

2. Did the trial court err in permitting the State to cross examine the Defendant on statements made by defense counsel during opening statement?

3. Did the trial court err in admitting a photograph taken of the Defendant at the time he was arrested on the predicate crime?

4. Did application of the Persistent Offender Accountability Act in this case violate the federal and state constitutional rights of the Defendant?

Decision

Prior Convictions. The trial court permitted the use of three prior convictions in the State’s attempt to impeach Defendant Rivers’ testimony. The Defendant’s prior convictions were a 1985 conviction for attempted robbery in the second degree, a 1987 conviction for robbery in the second degree, and a 1990 conviction for second degree assault. Because of the closeness in nature to the predicate charge, the trial court ruled that the State could offer the prior convictions only as unnamed felonies.¹

Evidence of prior convictions may be admissible for the purpose of attacking the credibility of a witness, including a defendant in a criminal case, under ER 609. Rulings made under ER 609 are reviewed under an abuse of discretion standard. State v. King, 75 Wn. App. 899, 910 n.5, 878 P.2d 466 (1994), review denied, 125 Wn.2d 1021 (1995).

ER 609(a) states:

For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.

Two of Defendant Rivers’ prior crimes, robbery and attempted robbery, involved dishonesty and therefore were per se admissible for impeachment purposes under ER 609(a)(2). State v. Ray, 116 Wn.2d 531, 545, 806 P.2d 1220 (1991) (crimes of theft involve dishonesty and are per se admissible); State v. Schroeder, 67 Wn. App. 110, 115, 834 P.2d 105 (1992).

It is only the admission of the 1990 conviction for assault that is claimed to have constituted error in this case. Defendant Rivers claims the trial court abused its discretion in failing to consider, on the record, the factors which favored admission or exclusion of the prior conviction.

In State v. Alexis, 95 Wn.2d 15, 19, 621 P.2d 1269 (1980) this court held that a trial court exercising its discretion under ER 609(a)(1) must not only weigh the prejudicial effect of the prior conviction against the probative value of the evidence but must additionally consider and weigh the following factors:

(1) the length of the defendant’s criminal record; (2) remoteness of the prior conviction; (3) nature of the prior crime; (4) the age and circumstances of the defendant; (5) centrality of the credibility issue; and (6) the impeachment value of the prior crime.

In exercising its discretion, the trial court is required to follow the balancing procedure in a meaningful way. Further, the trial court must articulate, for the record, the factors which favor admission or exclusion of prior conviction evidence under ER 609(a)(1). State v. Jones, 101 Wn.2d 113, 122, 677 P.2d 131 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988), adhered to on reh’g, 113 Wn.2d 520, 782 P.2d 1013, 80 A.L.R.4th 989, corrected, 787 P.2d 906 (1989); State v. Gomez, 75 Wn. App. 648, 651, 880 P.2d 65 (1994).

The responsibility of the trial court to state the factors considered under the Alexis test for the record is mandatory. Jones, 101 Wn.2d at 122; Gomez, 75 Wn. App. at 651. Failure to engage in this process on the record is an abuse of discretion. Jones, at 122-23. Admission of a felony as "unnamed” is not a substitute for the balancing process required under Alexis. Gomez, 75 Wn. App. at 655.

Although the trial court was aware of Defendant Rivers’ prior criminal history, and the nature and dates of prior convictions, the court did not complete the required analysis of the Alexis factors on the record. Its failure to do so constituted an abuse of discretion. Jones, 101 Wn.2d at 122-23; Gomez, 75 Wn. App. at 656 n.11.

An erroneous ruling under ER 609(a) is reviewed under the nonconstitutional harmless error standard. Ray, 116 Wn.2d at 546. Thus an erroneous ER 609 ruling is not reversible error unless the court determines that " 'within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.’ ” Ray, 116 Wn.2d at 546 (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)); Gomez, 75 Wn. App. at 657.

We hold here that the error was harmless. Had the evidence of the third felony not been before the jury, the outcome of the trial would, in all likelihood, have been the same, i.e., conviction for second degree robbery. First, the testimony offered on behalf of the State showed consistent statements were made by the victim over a period of time with respect to the circumstances of the crime, and several inconsistent statements regarding the incident were made by the Defendant. Second, the Defendant claimed to have talked with the victim a number of times before the date of the crime charged and to have arranged a drug transaction for him through a third person, but the Defendant offered no corroborating testimony even about the occasional legal contacts. Third, the Defendant’s own testimony showed a criminal history. He admitted that he stole the money from the victim but denied taking it by force. He stated that he hid from police just prior to his arrest because he believed he had outstanding warrants issued against him. He testified that he had had contact with the police on two other occasions the week of the crime charged, and he testified that he had sold drugs on a number of occasions. Fourth, the State had a per se right to impeach the Defendant’s testimony with the prior convictions for robbery and attempted robbery, but the trial court tempered the prejudicial effect of those crimes by restricting the evidence to "unnamed” felonies. Fifth, the trial court instructed the jury that evidence of prior convictions was not evidence of the Defendant’s guilt and could be considered only in deciding what weight or credibility should be given to the Defendant’s testimony.

Based on the other evidence before the jury, we are able to conclude within a reasonable probability that the outcome of the trial was not materially affected by the erroneous admission of evidence that the Defendant was convicted of a third unnamed felony. Therefore, the error was harmless.

Cross Examination of Defendant. Defendant Rivers claims the trial court abused its discretion by permitting irrelevant evidence to be admitted during cross examination of the Defendant. The Defendant argues that the State should not have been allowed to cross-examine him about statements made by his counsel during the opening statement.

During the opening statement, defense counsel made the following statement:

Back on December 20th, this man here, Paul Rivers, didn’t rob anybody— not Joseph Slobodzian or anyone.

In identifying Mr. Rivers, you will find that what the officers did was take Mr. Slobodzian to a house, show him the bank bag which had been taken, said essentially we found the bank bag in the house, bring Mr. Rivers out in handcuffs, the only African American there, the only guy not in a police uniform, brought him out in front of the house, shined a spotlight on him, said Mr. Slobodzian, do you see anybody who can be a suspect.

Now, every lawyer dreams of getting a case like this, based on a shaky ID ... .

Clerk’s Papers at 364-65.

During cross examination, the following occurred:

Q. [By Prosecutor] Now, you were sitting through opening statement; is that correct?

A. [By Defendant Rivers] I was.

Q. And you heard your attorney make some reference to the jurors that identity was an issue in this case; is that correct?

[Defense Counsel]: I object to that, Your Honor.

THE COURT: Overruled.

Q. [By Prosecutor] That identity was an issue in this case; is that correct?

A. That’s correct.

Q. But identity is not the issue in this case, is it?

A. Just as I told you in my statement, the investigation.

Q. You were the person that took the money?

A. Yes, from the espresso.

Report of Proceedings at 410-11.

Defendant Rivers argues that this cross examination was improper because statements made by counsel are not evidence and that a defendant’s interpretation of those arguments is irrelevant and inadmissible.

The State counters that where contradictory or inconsistent statements are made by a defendant (through counsel) in opening argument and in a defendant’s testimony, the statements are admissible for impeachment or to discredit the defendant’s case. See State v. Dault, 19 Wn. App. 709, 718-19, 578 P.2d 43 (1978) (attorney’s statement at an omnibus hearing regarding the general nature of the defense to the crime charged was admissible on cross examination of defendant to discredit and impeach defendant’s testimony).

All relevant evidence is admissible; evidence which is not relevant is not admissible. ER 402. Evidentiary rulings on admissibility under ER 402, as well as under ER 611 (governing cross examination), are reviewed for abuse of discretion. Radford v. City of Hoquiam, 54 Wn. App. 351, 354, 773 P.2d 861 (1989); State v. Young, 89 Wn.2d 613, 628, 574 P.2d 1171, cert. denied, 439 U.S. 870 (1978).

Relevant evidence

means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

ER 401.

Defendant Rivers was present when his attorney, in opening statement, explained to the jury that this was a case of mistaken identity. See Dault, 19 Wn. App. at 718. The admission by Defendant Rivers that he took the money from the espresso bar contradicts his counsel’s statement. The trial court did not abuse its discretion in allowing cross examination of the Defendant about his counsel’s opening statement under the facts of this case. The examination was relevant to the extent that it would assist the jury by clarifying the nature of the defense to the crime charged.

Booking Photograph. During the course of the trial, and after opening statements, the Defendant moved to exclude exhibit 6, which is a booking photograph taken of Defendant Rivers on December 21, 1993, after he was arrested. The Defendant argued that the photograph was irrelevant and unduly prejudicial and thus inadmissible under ER 402 and ER 403.

As stated above, ER 401 defines relevant evidence as evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Relevant evidence is admissible, ER 402, but may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. ER 403. A trial judge has wide discretion in balancing the probative value of evidence against its potentially prejudicial impact. State v. Coe, 101 Wn.2d 772, 782, 684 P.2d 668 (1984).

Defendant Rivers objected to the admission of the photograph, arguing it was irrelevant because identity was not an issue at trial. With respect to relevancy, the trial court stated:

You did indicate in your opening statement that there was some kind of suggestive identification of the defendant by the victim in this case, or the alleged victim. And in this respect, the hairstyle of the defendant is a little bit different than that which he is presently exhibiting ....

In this respect, identification in some way is going to be an issue, as such. Your opening statement indicated that he was spotlighted by the police and the victim made an identification. He was the only black man in the area. So identification is, in a sense, an issue to some degree. And in that respect, it is probative.

Report of Proceedings at 275.

The trial court also found that the exhibit was not unfairly prejudicial. The court stated:

This is a booking photo, is my understanding.

This indicates date of photo, 12/21/93, the day after this incident. At this point he must have been arrested.

I don’t think that that is prejudicial, the fact that he has been arrested and the fact that they have [a] regular booking procedure.

Report of Proceedings at 273.

Based on the trial court’s ruling, the State asked one of the arresting officers if he could identify exhibit 6. The testimony regarding the exhibit is the following:

[Witness:] That’s Mr. Rivers, the photograph of him.

[Prosecutor:] And is that an accurate depiction of Mr. Rivers on December the 20th?

[Witness:] Yes.

Report of Proceedings at 330.

Although defense counsel argued to the court, outside the presence of the jury, that identity was not an issue in the case, counsel’s remark in the opening statement that "every lawyer dreams of getting a case like this, based on a shaky ID” put the issue of proper identification before the jury.

Additionally, admission of the photograph was not unfairly prejudicial. The photograph was taken following the Defendant’s arrest for the crime for which he was being tried and showed the date of the arrest. In State v. Newton, 42 Wn. App. 718, 726-27, 714 P.2d 684 (1986), rev’d on other grounds, 109 Wn.2d 69, 743 P.2d 254 (1987), a case relied on by the Defendant, the Court of Appeals held that a "mug shot” generally discloses the fact of an arrest and thus can be prejudicial. In Newton a "mug shot” from a prior crime was introduced into evidence to show the process of identifying the defendant. The Court of Appeals held that the prejudicial effect of the photograph in that case was minimal, and thus not reversible error, because the jury eventually learned of the defendant’s prior convictions. Newton, 42 Wn. App. at 727.

Because Defendant Rivers raised the issue of identity during opening statements, the photograph of the Defendant on the day of the crime was relevant as it tended to show that the victim’s description to police matched the man arrested shortly after the robbery. The admission of the photo was not prejudicial because the jury knew the Defendant was arrested for the crime on which he was being tried, and the jury would reasonably have been aware that a booking procedure, including photographing the Defendant, would have existed.

There was no error in the admission of the photograph.

Constitutionality of Persistent Offender Accountability Act. Defendant Rivers challenges the constitutionality of the Persistent Offender Accountability Act, the law under which he was sentenced.

In the companion case, State v. Thorne, we upheld the constitutionality of this act. The issues raised by Defendant Rivers with respect to any violation of equal protection, due process, separation of powers, and article II, sections 19 and 37 of this state’s constitution are answered in Thorne.

Like defendant Thorne, Defendant Rivers argues his sentence violates the Eighth Amendment to the United States Constitution and article I, section 14 of this state’s constitution. The Eighth Amendment to the United States Constitution bars cruel and unusual punishment. Article I, section 14 of this state’s constitution bars cruel punishment.

In State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980), and in State v. Thorne, this court held the state constitutional provision barring cruel punishment is more protective than the Eighth Amendment. Because we hold that the sentence imposed upon Defendant Rivers under the Persistent Offender Accountability Act does not violate the more protective state constitutional guarantee against cruel punishment, we do not additionally examine the Defendant’s claim under the Eighth Amendment.

Fain enunciated four factors to be considered in analyzing claims of cruel punishment. Those factors are: (1) the nature of the offense, (2) the legislative purpose behind the statute, (3) the punishment the defendant would have received in other jurisdictions, and (4) the punishment meted out for other offenses in the same jurisdiction. Fain, 94 Wn.2d at 397.

We considered these factors in Thorne and held that the Persistent Offender Accountability Act, as applied in that case, was not violative of article I, section 14. Thorne, 129 Wn.2d at 772-777. After applying the Fain factors to Defendant Rivers’ case, we reach the same conclusion.

The offense committed by Defendant Rivers is a "most serious offense” under the statute. RCW 9.94A.030(23). The nature of the crime of robbery includes the threat of violence against another person.² The crime committed by Defendant Rivers involved a threat of violence toward another person and therefore is a far more serious offense than the second degree theft committed by the defendant in Fain.

The second factor which must be considered under Fain is the purpose behind the sentencing statute. We considered this factor in Thorne and held that the purposes of the persistent offender law include deterrence of criminals who commit three "most serious offenses” and the segregation of those criminals from the rest of society. Thorne, 129 Wn.2d at 775.

The third Fain factor we consider is the punishment the Defendant would have received in other jurisdictions. Washington’s so-called "three strikes” law is similar to state and federal legislation throughout much of the United States. See Peter J. Benekos & Alida V. Merlo, Three Strikes and You’re Out!: The Political Sentencing Game, 59 Fed. Probation 3 (Mar. 1995); Thomas R. Goots, Comment, "A Thug in Prison Cannot Shoot Your Sister”: Ohio Appears Ready to Resurrect the Habitual Criminal Statute—Will it Withstand an Eighth Amendment Challenge?, 28 Akron L. Rev. 253 (1995); Mark W. Owens, California’s Three Strikes Law: Desperate Times Require Desperate Measures—But Will It Work?, 26 Pac. L.J. 881 (1995). It is likely Defendant Rivers would have received a similar, harsh sentence for his third serious offense under the majority of jurisdictions in this country. The penalties vary, but many include life sentences for three-time offenders. This court has held that the distinction between life sentences with and without parole is not significant. In re Grisby, 121 Wn.2d 419, 427, 853 P.2d 901 (1993).

The final Fain factor requires an analysis of the punishment Defendant Rivers might receive for other offenses in this jurisdiction. Under the Persistent Offender Accountability Act, all defendants who are convicted of a third "most serious offense” receive sentences of life imprisonment without possibility of parole. The offenses which are the basis for the convictions and sentence in this appeal are serious, violent offenses, which the people of this state have determined call for serious punishment. This court has previously held that a life sentence imposed upon a defendant who, after being convicted of robbery, was determined to be a habitual criminal was not cruel and unusual punishment. State v. Lee, 87 Wn.2d 932, 558 P.2d 236 (1976). The Lee court, at 937, held:

Appellant’s sentence does not constitute cruel and unusual punishment. The life sentence contained in RCW 9.92.090 is not cumulative punishment for prior crimes. The repetition of criminal conduct aggravates the guilt of the last conviction and justifies a heavier penalty for the crime. Appellant’s prior convictions were for robbery, two burglaries in the second degree, and assault in the second degree. He received the life sentence for the second robbery conviction. His punishment is not disproportionate to the underlying offense.

(Citations omitted). See also Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (holding a sentence of life imprisonment without possibility of parole for the crime of possessing cocaine did not violate the Eighth Amendment); Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980) (sentence of life imprisonment for three minor theft felonies did not constitute cruel and unusual punishment).

Based on a consideration of the Fain factors, we hold that the sentence of life imprisonment without possibility of parole is not grossly disproportionate to the offense committed in this case.

Affirmed.

Durham, C.J., and Dolliver, Smith, Alexander, and Talmadge, JJ., concur.

1 rhe practice of admitting prior convictions as generic or unnamed felonies has been approved by the appellate courts of this state as a device that can lessen the prejudicial impact of the evidence. See State v. Gomez, 75 Wn. App. 648, 655, 880 P.2d 65 (1994).

2 RCW 9A.56.190 defines robbery as follows:

A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.

A person is guilty of robbery in the second degree, a class B felony, "if he commits robbery,” RCW 9A.56.210, i.e., he commits robbery without inflicting bodily injury, or without being armed with a deadly weapon or displaying what appears to be a deadly weapon. RCW 9A.56.200 (robbery in the first degree).