Opinion
No. 61790-7-I.
April 20, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 08-1-00165-7, Ellen J. Fair, J., entered June 2, 2008.
Affirmed by unpublished opinion per Dwyer, A.C.J., concurred in by Appelwick and Leach, JJ.
UNPUBLISHED OPINION
Donald Grabner appeals his conviction for attempted residential burglary. A witness observed him at close range behaving suspiciously on the front porch of a residence, the entrance of which later evinced damage consistent with an attempted break-in. At trial, Grabner sought to impeach the witness's testimony by introducing evidence of the witness's 11-year-old juvenile theft conviction, but could not articulate any motive that the witness might have to testify untruthfully in this case. The trial court excluded the evidence of the juvenile conviction. Because the trial court properly exercised its discretion in doing so, and because the exclusion of the evidence did not violate Grabner's right to confront his accuser, we affirm.
I
On the evening of May 12, 2007, Marlee Gilman and Kyle Wallace were at home when Gilman, after earlier seeing two men acting suspiciously nearby, heard a loud noise — like wood snapping — coming from the neighboring unit in Gilman's and Wallace's duplex apartment building. Gilman informed Wallace that she believed that someone was "breaking in," and asked Wallace to investigate. Wallace walked outside and immediately saw a man facing the door of the neighboring apartment, fumbling with the sleeves of his jacket and fidgeting. Wallace confronted the man, asking him what he was doing, and the man quickly walked away. He was immediately joined by another man who came from around the back of the building.
After hurriedly walking a short distance and whispering with one another, the two men split up. Wallace elected to follow the man he had confronted, but the man soon arrived at a truck, got inside, and drove away. Wallace waited in the vicinity for a few minutes until police officers arrived, at which point Wallace described the incident to the police and walked home. He then called his neighbor and left a message informing her that there had been a problem at her apartment. When she returned home, she found that her front door knob had been crushed, the door frame bent, and the door lock of her back gate broken.
Nothing more happened in relation to the incident until, about two months later, the police contacted Wallace and Gilman and requested that they visit the police station. A police officer then separately showed them photomontages. Each witness indicated that a photograph of Grabner depicted one of the men that the witnesses had seen around the duplex.
The State charged Grabner with one count of attempted residential burglary. Prior to trial, Grabner moved to introduce Wallace's 11-year-old juvenile theft conviction in order to impeach his testimony. The State objected. Grabner's counsel responded that the conviction should be admitted because "the Court may, in a criminal case, allow it to attack the credibility of an adult that is testifying." The trial court then inquired of Grabner's attorney:
Well, as I read the rules, we start with the proposition that generally, a juvenile adjudication is not admissible. . . . So I guess my question would be what argument are you making that specifically this old juvenile adjudication would have probative effect with respect to Mr. [Wallace's] credibility?
Citing inconsistencies in Gilman's and Wallace's statements to the police, Grabner's counsel stated, "I think it's going to be really relevant in this matter to Mr. Grabner's case to show that Mr. Wallace, his credibility is going to be really important in this case if the jury is going to weigh his testimony against Ms. Gilman's." The trial court responded:
Although it sort of sounds like it may be more of an issue of memory than actual credibility. I mean, in other words, is there any indication that Mr. Wallace has any motive to fabricate in this case or any motive to recall something one way or the other?
Grabner's counsel responded, "I have no evidence on that, Your Honor."
The trial court then sustained the State's objection and excluded all evidence of the juvenile conviction from trial. Grabner was convicted by a jury and sentenced to a standard-range term of incarceration.
II
Grabner contends for the first time on appeal that the exclusion of Wallace's juvenile conviction deprived him of his right to confront his accuser as guaranteed by the Sixth Amendment of the United States Constitution and article I, section 22 of the Washington State Constitution. We have repeatedly rejected this argument under essentially identical circumstances, and so reject it here.
An alleged error may be raised for the first time on appeal if it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3).
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.
ER 609(d)'s general prohibition on the admission of juvenile convictions is bolstered by ER 609(b)'s similar rule that convictions more than 10 years old are "not admissible" unless "the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."
When the testimony at issue is that of a prosecution witness, however, these general exclusionary principles are in tension with the accused's constitutional trial rights. That is, the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Similarly, article I, section 22 provides that "[i]n criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face." It is well established that these parallel constitutional provisions mean "more than being allowed to confront the witness physically. `Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.'" Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) (quoting Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965)); see also State v. Martinez, 38 Wn. App. 421, 423, 685 P.2d 650 (1984). It is also well established that the evidentiary prohibition on the introduction of stale convictions for impeachment purposes must give way to this constitutional necessity when the use of convictions for impeachment purposes is necessary to provide for "the effective cross-examination for bias of an adverse witness." Davis, 415 U.S. at 320 (emphasis added).
We have, however, repeatedly rejected precisely the argument that Grabner now advances — i.e., that the Confrontation Clause requires trial courts to admit the stale convictions of prosecution witnesses for general impeachment purposes, in the absence of any evidence whatsoever that the witness might be biased or have a motive to fabricate testimony. E.g., Martinez, 38 Wn. App. at 424-25 (stale felony conviction excluded under ER 609(b)); see also State v. Jones, 117 Wn. App. 221, 224, 70 P.3d 171 (2003); State v. Gerard, 36 Wn. App. 7, 11-12, 671 P.2d 286 (1983) (juvenile conviction excluded under ER 609(d)). We have done so based expressly on our conclusion that, under a Hudlow balancing analysis, a defendant's confrontation right to generally impugn a witness's reputation for truthfulness based on stale, minimally probative prior convictions is far outweighed by the State's interest "in insuring that witnesses are not discouraged from coming forward with evidence of a crime out of fear of having a prior conviction brought forward." Martinez, 38 Wn. App. at 424. We have also expressly held, in the context of a Confrontation Clause challenge legally indistinguishable from this one, that when a prosecution witness's "juvenile adjudications are sought to be admitted solely for general impeachment the trial court has broad discretion on admissibility." Gerard, 36 Wn. App. at 11.
State v. Hudlow, 99 Wn.2d 1, 659 P.2d 514 (1983).
Here, the conviction that Grabner sought to introduce was a juvenile adjudication and was also more than 10 years old. The presumption under both ER 609(b) and (d) is that the conviction was inadmissible absent some showing that its probative value "substantially outweighs its prejudicial effect," or that its "admission in evidence is necessary for a fair determination of the issue of guilt or innocence." Grabner's counsel admitted that there was "no evidence" that Wallace had any motivation to be untruthful when testifying. In other words, the sole purpose for which Grabner sought to introduce Wallace's stale juvenile conviction was to generally impugn Wallace's ability to testify truthfully. Here, as in Jones, "there is no indication in the record of any specific facts or circumstances by which the trial court could determine that the evidence was nevertheless relevant" to the witness's "credibility . . . at all, let alone that its probative value outweighed its prejudicial effect." 117 Wn. App. at 233.
Here, also as in Jones, "[i]n the course of determining whether the alleged constitutional error was `manifest,'" and thus can be raised for the first time on appeal, "we have concluded that there was no constitutional error. Thus, further analysis is unnecessary." 117 Wn. App. at 234.
Grabner's confrontation rights were not violated. There was no error.
III
Grabner next contends that, even if the trial court did not violate the Constitution by excluding evidence of Wallace's 11-year-old juvenile conviction pursuant to ER 609, it abused its discretion by doing so. This argument is unavailing. "Because under the more stringent constitutional test we conclude that the State's interest outweighs the defendant's, it follows that the court did not abuse its discretion under the rule." Martinez, 38 Wn. App. at 425.
IV
Grabner also asserts various additional grounds for reversal of his conviction in a pro se pleading. None have merit.
Grabner first asserts that he received unconstitutionally ineffective assistance of counsel because his attorney would not call certain witnesses to testify on his behalf, and because his attorney failed to sufficiently investigate his case. "A defendant is denied effective assistance of counsel if the complained-of attorney conduct (1) falls below a minimum objective standard of reasonable attorney conduct, and (2) there is a probability that the outcome would be different but for the attorney's conduct." State v. Benn, 120 Wn.2d 631, 663, 845 P.2d 289 (1993) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Here, Grabner fails to identify the witnesses that his attorney declined to put forward, or how their testimony would have made it more probable that he would have been acquitted. He also fails to identify any specific circumstances that his lawyer should have investigated more fully. Thus, we conclude that this contention is without merit.
Grabner also contends that he was wrongly given an exceptional sentence. He was not. He was given a standard-range sentence.
The remainder of Grabner's pleading appears to consist of explanations for, and purported refutations of, various portions of trial testimony that, cumulatively, convinced the jury that he was guilty of attempting to burglarize the home of Wallace's and Gilman's neighbor. These arguments were more properly directed at the jury. To the extent that we can construe them as a contention by Grabner that there was insufficient evidence to convict him, we disagree.
Affirmed.
WE CONCUR: