State Of Washington, V. James Jerome Kennedy ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 84553-5-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
JAMES JEROME KENNEDY,
Appellant.
BIRK, J. — James Kennedy appeals his conviction, arguing the trial court
erroneously excluded evidence of the complaining witness’s prior misdemeanor
convictions in violation of ER 609 and his right to present a defense. Because we
conclude that any error did not materially affect the outcome, we affirm.
I
On March 1, 2019, Tracy Jones was in a trailer that belonged to his
neighbor, Kim Roper, when Kennedy entered and started talking about a bicycle
that Jones had purchased from Kennedy. Jones had previously agreed to buy a
bicycle from Kennedy for $100. The terms of the agreement are disputed.
According to Jones, the two agreed on “a deal where it was $100, and I would give
him $50 up front, you known, and hang on to the bike. And then when I verified
that it was a real, you know, bike, then I’d pay him the other $50 and the deal would
be done.” Jones testified that if the bicycle turned out to be a “knockoff,” he would
return the bicycle, and Kennedy would give back the $50. Jones later concluded
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the bicycle was not genuine, and testified he told Kennedy he wished to rescind
the transaction.
According to Kennedy, “It was $100 for a bicycle that I gave [Jones]. And
he gave me $50 down and was going to give me $50 at the end of the week. That
was it. There was no—nothing talked about, any calling the manufacturer ever or
anything like that.” Kennedy testified Jones came up with excuses when asked
about the remaining balance. Kennedy testified he asked Jones to return the
bicycle so he could sell it to somebody else, and give Jones back his $50.
However, Jones would not give the bicycle back until Kennedy returned his $50.
Roper testified that in the trailer, Kennedy and Jones “were disagreeing
about a price on [the bicycle] or something. One wanted the money back, and they
were just, they were disagreeing with each other, and the conversation started to
get a little bit heated.” Roper testified that Jones was sitting in the back corner of
the trailer during the conversation, when Kennedy “just kind of jumped on [Jones]
and started hitting him. And he had something small in his hand.” Roper saw
Kennedy hit Jones in the head using the same hand that was holding the object
about two or three times. Kennedy and Jones “wrestled around that way for a little
bit, and managed to get to their feet, and tumbled out the door pretty much
together.”
Jones testified Kennedy entered Roper’s trailer and asked him where the
bicycle was, to which Jones replied asking where his $50 was. Jones stated that
he looked up and saw “a pipe sliding out of the coat into [Kennedy’s] hand. And
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then he hit me with it. And I just buried my face in between my knees and put my
hands over like this . . . . And he just kept hitting me.” Jones testified Kennedy hit
him with the pipe 20 to 30 times before Jones was able to push the door open and
crawl between Kennedy’s legs out the door. There was one step in the entryway
to Roper’s trailer that Jones “kind of crawled and rolled out of it.” Jones testified
he ran towards his fifth wheel and called 911. Jones sustained right zygomatic
arch fractures and scalp bruising.
Kennedy testified that inside Roper’s trailer, he asked Jones “for the $50.
And then we got in a tussle, and he went out the door. And I walked out the door,
he swung at me with the jack handle, and then he took off toward his trailer.”
Kennedy stated he did not recall hitting Jones, but stated the two engaged in a
mutual “wrestling match.” The State charged Kennedy with second degree assault
with a deadly weapon.
The State filed a pretrial motion to exclude evidence of any witness’s “prior
bad acts” without an offer of proof. Kennedy provided the State three certified prior
convictions for Jones: a third degree theft conviction, and two fourth degree assault
convictions. At argument, Kennedy stated Jones had two additional third degree
theft convictions for which Kennedy’s counsel did not have the judgment and
sentences, and represented that the convictions were included in the State’s prior
discovery responses. The State responded expressing uncertainty about which
cases Kennedy was referring to and requested the case numbers to look up the
two missing theft convictions. The State argued Kennedy needed the judgment
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and sentence for the convictions to be able to impeach Jones. Kennedy stated
“unless the State’s disputing the convictions that it gave me about their witnesses
and their legitimacy, I do think that I can bring those up as [ER] 609 convictions
without having the particular Judgment and Sentences.” The State argued that
without the judgment and sentence, “should [Jones] deny having those two theft in
the third degree convictions, [Kennedy] has to accept that.” The trial court ruled,
I will allow for the parties to introduce one prior theft in the third
degree conviction for purposes of [ER] 609, but I’m not going to allow
multiple prior convictions for a misdemeanor theft charge to show
dishonesty to a testifying witness.
So the one prior conviction, the parties can choose which one
they would want. Usually it would be the most recent that they can
prove up, but we would get sidetracked if we go into a history of, you
know, somebody’s been convicted of three or four different theft in
the third degrees in the last ten years.
That’s not informative to the jury, in my opinion. I think it’s
cumulative. Showing that a person has been convicted once
satisfies the requirement and the ability to impeach, at least for this
kind of case, on this kind of issue.
So that’s for all witnesses on both sides. So if there are
multiple theft convictions for a particular witness, I would ask the
parties to decide which one they can prove or they are comfortable
with or that they agree to use and one will be allowed.
Kennedy objected and noted he may have further briefing. At trial, both Jones and
Kennedy testified they had a prior misdemeanor theft conviction.
The jury acquitted Kennedy of second degree assault and the deadly
weapon enhancement, and convicted Kennedy of third degree assault. The trial
court sentenced Kennedy to 80 hours of community service. Kennedy appeals.
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II
Kennedy argues the trial court erroneously excluded evidence of Jones’s
prior misdemeanor theft convictions in violation of ER 609. We conclude that any
error was harmless.
We review evidentiary rulings for an abuse of discretion. State v. King, 75
Wn. App. 899, 910 n.5, 878 P.2d 466 (1994). A trial court abuses its discretion “if
its decision is manifestly unreasonable or based on untenable grounds or
untenable reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d
1362 (1997). Evidence of prior convictions may be admissible to attack the
credibility of a witness, including a defendant in a criminal case, under ER 609.
State v. Rivers, 129 Wn.2d 697, 704-05, 921 P.2d 495 (1996). 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.
“[C]rimes of theft involve dishonesty and are per se admissible for impeachment
purposes under ER 609(a)(2). State v. Ray, 116 Wn.2d 531, 545, 806 P.2d 1220(1991), abrogated on other grounds by State v. Crossguns, 199 Wn.2d 282, 505
P.3d 529 (2022).
The State argues the trial court was within its discretion to limit questioning
to one misdemeanor theft conviction because Kennedy lacked documentation of
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No. 84553-5-I/6
the convictions. However, ER 609(a) states a prior conviction shall be admitted
either if “elicited from a witness” or “established by public record during
examination of the witness.” In Ray, the court overruled its treatment of theft
crimes in State v. Burton, 101 Wn.2d 1, 676 P.2d 975 (1984), in which, Ray
explained, the trial court “admitted evidence of defendant’s prior convictions for
petit larceny and shoplifting.” Ray, 116 Wn.2d at 544. Ray approved the reasoning
of the lead opinion in State v. Brown, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d
906 (1989). Ray, 116 Wn.2d at 544-45. That opinion concluded, “all three theft
convictions were automatically admissible as crimes involving dishonesty.” Brown,
113 Wn.2d at 545. Even though Kennedy would not have been able to prove the
admissible prior theft convictions if Jones denied them, the trial court denied
Kennedy the opportunity to elicit the convictions from Jones through cross-
examination. However, any error in disallowing this cross-examination was
harmless.
An erroneous ruling under ER 609(a) is reviewed under the
nonconstitutional harmless error standard. Rivers, 129 Wn.2d at 706. A ruling
under ER 609 is not reversible error “ ‘unless, within reasonable probabilities, had
the error not occurred, the outcome of the trial would have been materially
affected.’ ” State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (quoting
State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). Here, there is
not a reasonable probability that the outcome of the trial would have been different
absent the error.
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Even if two additional prior theft convictions of Jones had been before the
jury, the outcome of the trial would have been the same based on the other
evidence before the jury. Jones testified Kennedy hit him with a pipe numerous
times before he was able to exit the trailer. Roper identified Kennedy as the
aggressor, testifying Kennedy “just kind of jumped on [Jones] and started hitting
him. And he had something small in his hand.” Roper testified he saw Kennedy
hit Jones in the head using the same hand that was holding the object about two
or three times. Jones’s injuries, right zygomatic arch fractures and scalp bruising,
were consistent with Roper’s and Jones’s testimony. The outcome of the trial was
not materially affected by excluding the additional ER 609(a) impeachment
evidence, and therefore any error in its exclusion was harmless.
III
Kennedy argues the exclusion of Jones’s prior convictions violated
Kennedy’s constitutional right to present a defense. We disagree.
In determining whether a trial court erred in excluding evidence in violation
of a defendant's Sixth Amendment right to present a defense, we engage in a “two-
step review process.” State v. Arndt, 194 Wn.2d 784, 797, 453 P.3d 696 (2019).
This court first reviews “the trial court’s individual evidentiary rulings for an abuse
of discretion.” Id. at 797-98. Where a “ ‘trial court abused its discretion in making
an evidentiary ruling, and the ruling was prejudicial to the defendant,’ ” our inquiry
ends. State v. Jennings, 199 Wn.2d 53, 59, 502 P.3d 1255 (2022) (quoting with
approval State v. Jennings, 14 Wn. App. 2d 779, 800-01, 474 P.3d 599 (2020),
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No. 84553-5-I/8
(Melnick, J., concurring), affirmed in part, 199 Wn.2d 53)). However, where “ ‘the
abuse of discretion constituted harmless error,’ ” id. at 59 (quoting Jennings, 14
Wn. App. 2d at 800-01 (2020)), or where a court’s evidentiary rulings do not
constitute abuse of discretion, we then “consider[] de novo whether the exclusion
of evidence violated the defendant’s constitutional right to present a defense,” id.
at 58.
A criminal defendant’s right to present a defense is guaranteed by both the
federal and state constitutions. U.S. CONST. amend. VI; W ASH. CONST. art. I, § 22.
However, the Constitution permits judges to “ ‘exclude evidence that is
repetitive . . . , only marginally relevant or poses an undue risk of harassment,
prejudice, [or] confusion of the issues.’ ” Holmes v. South Carolina, 547 U.S. 319,
326-27, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (alterations in original) (internal
quotation marks omitted) (quoting Crane v. Kentucky, 476 U.S. 683, 689-90, 106
S. Ct. 2142, 90 L. Ed. 2d 636 (1986)). There is “a distinction between evidence
that merely bolsters credibility and evidence that is necessary to present a
defense.” Jennings, 199 Wn.2d at 66-67. If the evidence is relevant, we must
weigh the defendant’s right to produce relevant evidence against the State’s
interest in limiting the prejudicial effects of that evidence to determine if excluding
the evidence violates the defendant’s constitutional rights. State v. Hudlow, 99
Wn.2d 1, 16, 659 P.2d 514 (1983); State v. Orn, 197 Wn.2d 343, 353, 482 P.3d
913 (2021).
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As stated above, any error in the exclusion of the convictions was harmless.
In State v. Young, 27 Wn. App. 2d 461, 473, 532 P.3d 629 (2023), this court
declined to apply the constitutional harmless error standard, stating, “It cannot be
the case that any defendant who identifies an erroneous exclusion of relevant
evidence that is harmless under the nonconstitutional standard can—by doing no
more than asserting a constitutional claim—impose on the State the heightened
burden of proving constitutional error.” Instead, the court applied a materiality
standard to determine whether a violation of the right to present a defense
occurred. Id. at 474-75. The court stated,
“The proper standard of materiality must reflect our overriding
concern with the justice of the finding of guilt . . . . This means that
the omission must be evaluated in the context of the entire record. If
there is no reasonable doubt about guilt whether or not the additional
evidence is considered, there is no justification for a new trial. On
the other hand, if the verdict is already of questionable validity,
additional evidence of relatively minor importance might be sufficient
to create a reasonable doubt.”
Young, 27 Wn. App. 2d at 474 (quoting United States v. Valenzuela-Bernal, 458
U.S. 858, 868, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982)). In Young, the court
found there was no reasonable likelihood that Young’s testimony to a self-serving
opinion that he was driving safely would have changed the outcome, where the
defense was able to present and argue the facts on which Young’s opinion was
based. Id. at 478.
Here too, there is no reasonable likelihood that admitting additional prior
convictions would have changed the outcome. Kennedy was able to present
evidence of one of Jones’s prior theft convictions. Any error in excluding the
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No. 84553-5-I/10
additional theft convictions did not affect Kennedy’s ability to argue that Jones was
physically aggressive and that Kenney acted in self-defense.
III
Because we do not conclude that Kennedy waived his objection to the
court’s exclusion of two prior theft convictions of Jones, it is not necessary to reach
his argument that waiver would constitute ineffective assistance of counsel.
Affirmed.
WE CONCUR:
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