State v. Murray ( 1975 )

Finley, J.

This appeal arises from defendant’s criminal prosecution and his conviction by jury of second-degree assault. The issue is the propriety of the prosecution’s use of a prior conviction for the purpose of impeaching the defendant who testified in his own behalf. The defendant’s conviction was reversed by the Court of Appeals because, at trial, the prosecution used a conviction for impeachment which subsequently was reversed on Fourth Amendment grounds. We reverse the Court of Appeals.

The pertinent facts are as follows: In January 1972, defendant Murray was convicted of the crime of grand larceny. He was sentenced in March 1972, and the conviction was appealed in April 1972. In May 1972, defendant Murray was tried by jury for the alleged assault which is the subject matter of the instant appeal. Defendant Murray testified on his own behalf. The State thereupon cross-examined defendant regarding a prior conviction of grand larceny. This was done ostensibly for the purpose of impeaching his credibility. Defendant’s counsel objected but was overruled. Defendant was subsequently convicted of second-degree assault and he appealed.

Nearly one year after the assault conviction, the prior conviction of grand larceny was reversed by the Court of Appeals on grounds that certain evidence had been illegally seized in violation of the Fourth Amendment. State v. Murray, 8 Wn. App. 944, 509 P.2d 1003 (1973), aff’d, 84 Wn.2d 527, 527 P.2d 1303 (1974).

The sole issue raised by the State’s petition for review is whether the use of a prior conviction for purposes of impeaching a defendant’s testimony constitutes reversible error where that prior conviction is subsequently reversed on Fourth Amendment grounds.

Initially, however, it should be made clear what this case does and does not involve. We are concerned herein only with the use, for purposes of impeachment, of a presumptively valid prior conviction which is pending appeal. As to a prior conviction which already has been reversed at the time of trial, we have held it cannot be used for purposes of impeachment. State v. Hill, 83 Wn.2d 558, 520 P.2d 618 (1974).

The seminal case on the usage of constitutionally infirm prior convictions is Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967), which held that a prior conviction obtained in violation of the Sixth Amendment right to counsel cannot be used to establish guilt or to enhance guilt under a recidivist statute. Subsequently, Loper v. Beto, 405 U.S. 473, 31 L. Ed. 2d 374, 92 S. Ct. 1014 (1972), held that a prior conviction obtained in violation of the Sixth Amendment right to counsel cannot be used for purposes of impeachment in a subsequent trial.

The essence of the present appeal is whether the rationale and holding of Loper v. Beto, supra (involving convictions reversed on Sixth Amendment grounds) should be extended to proscribe the use of a prior conviction for impeachment purposes when it is subsequently reversed because of constitutional invalidity under the Fourth Amendment.

The Court of Appeals relied upon the case of Beto v. Stacks, 408 F.2d 313 (5th Cir. 1969), for the proposition that no valid distinction can be drawn between the use of a prior conviction that is subsequently determined to be constitutionally infirm because of a lack of counsel and the use of a prior conviction that is subsequently determined to be constitutionally infirm because of an illegal search and seizure. Thus, the Court of Appeals concluded that if a prior conviction is subsequently invalidated on constitutional grounds, then the earlier use of that prior conviction for impeachment purposes would constitute reversible error and necessitate a new trial unless it could be said that the use of the prior conviction was harmless error. We cannot agree with the reasoning of the Court of Appeals nor can we agree with Beto v. Stacks, supra, the decision upon which the Court of Appeals relied. Rather, we consider United States v. Penta, 475 F.2d 92 (1st Cir. 1973), cert. denied, 414 U.S. 870, 38 L. Ed. 2d 88, 94 S. Ct. 89 (1973), to be the better reasoned decision and dispositive of the present appeal. In Penta, the court rejected the analysis of Beto v. Stacks, supra, and concluded that a distinction should be made between using, for purposes of impeachment, (a) convictions that are subsequently adjudicated to be constitutionally defective under the Fourth Amendment and (b) .using convictions that are subsequently adjudicated to be constitutionally defective under the Sixth Amendment because of a denial of the right to. counsel. We agree with this analysis or determination and feel its exposition • in Penta .is controlling.

The rationale in Burgett v. Texas, supra, and Loper v. Beto, supra, for disallowing the use of prior convictions obtained in violation of the Sixth Amendment right to counsel was that the right to counsel goes to the very integrity of the fact-finding process. As such, the prior convictions therein were inherently unreliable and it was for this reason that they could not be used to establish guilt, or enhance punishment.

However, deterrence of illegal and improper police behavior and not preservation of reliability in the fact-finding process seems to be the basis for reversing convictions obtained in violation of the Fourth Amendment. Elkins v. United States, 364 U.S. 206, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960); Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933 (1961). Moreover, the use of evidence obtained in violation of the Fourth Amendment has a totally different impact upon the truth or fact-finding process than does the deprivation of counsel. Such evidence loses no probative value simply because it was obtained in violation of the Fourth Amendment, and thus its use certainly does not impair the truth or fact-finding process. If anything, such evidence actually should enhance the truth or fact-finding process and render the conviction more trustworthy.

Since a prior conviction that is subsequently invalidated on Fourth Amendment grounds is not inherently unreliable, we perceive no bar to its use for purposes of impeachment at the time the appeal thereof is still pending. Compare, however, State v. Hill, supra.

The only apparent reason to reverse the defendant’s conviction and to grant a new trial would be upon the rationale that the exclusionary rule and the fruit of the poisonous tree doctrine should make it reversible error to use any prior conviction that is later invalidated on Fourth Amendment grounds. See generally Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). However, two analogous Supreme Court decisions — discussed below —convince us that the exclusionary rule should not operate in such a fashion.

First, in Walder v. United States, 347 U.S. 62, 98 L. Ed. 503, 74 S. Ct. 354 (1954), the Supreme Court allowed the admission of evidence which had been seized in violation of the Fourth Amendment in a prior unrelated action. It was held permissible to admit such evidence to impeach a defendant who testified falsely on direct examination as to matters collateral to the trial at which the evidence was to be admitted.

Second, and more precisely on point, in Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971), the Supreme Court allowed into evidence an uncoerced confession that apparently was trustworthy but which was obtained in violation of the defendant’s Fifth Amendment Miranda rights. The confession had not been introduced in the case in chief, but was used only for purposes of impeaching the defendant once he took the stand. The court concluded that sufficient deterrence of any improper police behavior flowed from proscribing admission of the confession in the State’s case in chief, and that the exclusionary ride need not be extended to prohibit the use of such confessions for purposes of impeaching the defendant’s testimony.

It is true that the illegally obtained confession in Harris and the illegally obtained physical evidence in Walder were used to directly contradict specific false statements made by the defendant on direct examination and not simply to attack the defendant’s general credibility as was done in the instant case. This factor, however, does not seem to us significant and it was not the basis for the holdings in Harris v. New York, supra, and Walder v. United States, supra. To the contrary, the controlling rationale of the court in these cases was that the aid to the jury in assessing the defendant’s credibility should not be sacrificed “because of the speculative possibility that impermissible police conduct will be encouraged thereby.” Harris v. New York, supra at 225.

Likewise, we think it implausible and speculative to suppose that there will be any added deterrent effect to improper police behavior by reversing convictions where a prior conviction that is later invalidated on Fourth Amendment grounds has been utilized to impeach a defendant’s credibility. See United States v. Penta, supra.

Therefore, we hold that a prior conviction which is pending appeal may be introduced to impeach a defendant’s credibility in a criminal prosecution and the subsequent invalidation of that prior conviction on Fourth Amendment grounds does not mandate a new trial in the criminal prosecution at which the prior conviction was used for impeachment purposes.

For the foregoing reasons, the judgment of the Court of Appeals should be reversed and the judgment of the Superior Court should be reinstated. It is so ordered.

Stafford, C.J., and Hunter, Hamilton, Wright, and Brachtenbach, JJ., concur.