Opinion
No. 29694-2-II.
Filed: June 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No: 02-1-00760-1. Judgment or order under review. Date filed: 11/27/2002. Judge signing: Hon. Robert L Harris.
Counsel for Appellant(s), A. Alexander Hamalian, Attorney at Law, 510 SW 3rd Ave Ste 400, Portland, OR 97204-2509.
Counsel for Respondent(s), Richard Alan Melnick, Attorney at Law, 1013 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
Alexander Tishchenko appeals his convictions for first degree burglary and four counts of theft of a firearm. We affirm.
On October 3, 2001, Chris Cortez, Daniel Olson, Alex Tishchenko, and Mike Chertovskoy were at the Value Motel in Hazel Dell. They needed money for drugs, so they decided to break into the home of Olson's parents and steal guns. Olson did not live at his parents' home, nor did he have permission to enter it.
With Tishchenko driving, the four went to where Olson's parents lived. Tishchenko parked a block away and waited in the car while two or three of the others intruded into the house and stole four rifles, a PlayStation, and some jewelry. Tishchenko then drove all four to a secluded location where they hid the guns. They returned to the Value Motel, where Olson soon made a deal to sell the guns, and Tishchenko and Chertovskoy retrieved the guns from where they were hidden.
Olson's parents discovered the burglary that afternoon. They notified the police, who soon searched a room at the Value Motel. They recovered the guns and the PlayStation.
On April 18, 2002, Tishchenko was charged with first degree burglary, four counts of theft of a firearm, second degree unlawful possession of a firearm, two counts of third degree assault, and resisting arrest.
Cortez was a witness at trial. He testified `that [Tishchenko] was present during the planning of the burglary and that [Tishchenko] drove to the [Olsons'] house.'
Br. of Appellant at 4-5.
Olson was also a witness at trial. Although he had said before trial that Tishchenko had been present while they were planning the burglary, he testified at trial as follows:
[Prosecutor]: Now, before you got a ride with Alex, there was a discussion wasn't there about going over to your father's house to steal some guns?
[Olson]: There was a discussion, but not with Alex. . . .
Q: But Alex knew why you were going over to the house, didn't he?
A: I don't think he did, no.
2 Report of Proceedings (RP) at 186-87.
Over Tishchenko's objection, the court then permitted the following:
[Prosecutor]: However, let's go back to the 3rd of October when Alex Tishchenko drove you to your father's house. He knew you were going to undertake a burglary, didn't he?
[Olson]: I'm not sure if he knew. He was not involved in any of the discussions . . . over this burglary.
Q: Do you recall when you were interviewed on October 21st being asked, Okay, he knew what was going on, I take it? Do you remember being asked that?
A: I don't remember being asked that, but I remember being asked questions. Not that certain question.
Q: Do you remember in response saying, Yeah, he knew we were going to do a burglary.
[Defense Counsel]: Well, objection to an out of Court statement. It is hearsay.
THE COURT: All right.
[Prosecutor]: It's impeachment, Your Honor.
THE COURT: This cannot be used as substantive evidence, but only for impeachment purposes. So the jury cannot use the remark as establishing the truth of the matter.
. . .
Q: Do you recall saying that yeah, he knew were going to do a burglary?
A: I don't remember saying that.
Q: You don't remember saying that?
[Defense Counsel]: Same [objection].
THE COURT: Same ruling.
2 RP at 192-93.
To prove the pre-trial statement that Olson said he could not remember, the State later called Detective Marshall Henderson. Henderson related that in a pre-trial interview, Olson had `listed the names of the people that were present during the planning as Michael Chertovskoy, Alex Tishchenko, Chris Cortez, and himself.'
2 RP at 225.
On November 19, 2002, a jury found Tishchenko guilty of first degree burglary and four counts of theft of a firearm. A few days later, he filed this appeal.
The parties agree, and we do also, that Olson's out-of-court statements would have been inadmissible hearsay if offered to prove the truth of the matter asserted. The State, however, offered his out-of-court statements not to show they were true, but only to show they differed from his in-court statements. Its hope was to cast doubt on Olson's credibility, thus persuading the jury to rely on Cortez's testimony that Tishchenko had known that he was aiding a burglary. Insofar as his out-of-court statements were relevant merely because they differed from his in-court statements, they were relevant without regard to their truth.
ER 801(c); ER 802.
State v. Williams, 79 Wn. App. 21, 26, 902 P.2d 1258 (1995).
Williams, 79 Wn. App. at 26.
A person may be impeached only when his or her credibility is a fact of consequence to the action. Olson testified in trial that he participated in the discussions that preceded the burglary; that Tishchenko was not present; and that he, Olson, did not think Tishchenko knew why he was driving the others to the Olsons' house. His in-trial testimony was important to both parties, for it tended to show that Tishchenko did not knowingly aid or encourage the burglary.
State v. Allen S., 98 Wn. App. 452, 464-65, 989 P.2d 1222 (1999), review denied, 140 Wn.2d 1022 (2000).
See RCW 9A.08.020.
Because of his in-trial testimony, his credibility was a fact of consequence to the action, and the State was entitled to impeach him.
State v. Hancock, 109 Wn.2d 760, 762-67, 748 P.2d 611 (1988) (allowing impeachment after witness gave `important evidence'); State v. Lavaris, 106 Wn.2d 340, 346, 721 P.2d 515 (1986) (allowing impeachment after witness gave testimony that was `essential in many areas of the State's case'). We do not overlook that the State may not call a witness for the primary purpose of putting otherwise inadmissible evidence before the jury. Hancock, 109 Wn.2d at 763; Lavaris, 106 Wn.2d at 345. The record here, however, does not show that the State did that.
Once a person's credibility is in issue, a party may put his prior oral or written statement before the jury insofar as it is inconsistent with his trial testimony. If his prior statement was oral, he may be asked to relate it and, especially if he declines to admit making it, a third party may be asked to relate it. If his prior statement was written, it may be authenticated and the pertinent parts read aloud. As far as this record shows, these rules were followed here, both with respect to questioning Tishchenko and, after Tishchenko would not admit making the statement, calling Henderson to relate it.
State v. Miles, 73 Wn.2d 67, 71, 436 P.2d 198 (1968) (`Where a party seeks to impeach an adverse witness, the rule is that the mere failure of the witness to recollect, when asked the preliminary question, does not preclude the impeacher from offering it.'); Webb v. City of Seattle, 22 Wn.2d 596, 610-11, 157 P.2d 312 (1945) (discussing impeachment by oral and written statements); State v. Johnson, 90 Wn. App. 54, 70, 950 P.2d 981 (1998) (under ER 613(b), foundation not always required before extrinsic evidence is produced).
Webb, 22 Wn.2d at 610-11.
And to the extent the record does not show that these rules were followed here, Tishchenko did not voice an objection that was specific enough to apprise the trial court of the problem.
Tishchenko seems to believe that the State offered Henderson's testimony for its truth, and thus that Henderson's testimony about Olson's prior statement was admissible only if Olson's prior statement fell within a hearsay exception. In our view, however, Henderson related Olson's prior inconsistent statement to show that it was different from Olson's in-court testimony, not to show that it was true.
Any remaining arguments are meritless or need not be reached.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and QUINN-BRINTNALL, C.J., Concur.