
    [No. 32318-8-III.
    Division Three.
    March 8, 2016.]
    The State of Washington, Respondent, v. William Patrick McBride, Appellant.
    
    
      
      David N. Gasch (of Gasch Law Office) (Laura M. Chuang, of counsel), for appellant.
    
      Denis P. Tracy, Prosecuting Attorney, and Daniel F. LeBeau, Deputy, for respondent.
   Siddoway, C.J.

¶1 Whitman County offered plea bargains to Kenneth Himes and Sheila Evans under which they would be charged with only two crimes for a rash of burglaries in which they were involved if they revealed the location of the stolen property. They were also required by their plea bargains to testify against the defendant, William McBride, whom they implicated in two of the crimes.

¶2 The trial against Mr. McBride pitted the credibility of the only defense witness—Mr. McBride’s girlfriend, Amy Baird—against the credibility of Mr. Himes and Ms. Evans. Mr. McBride contends on appeal that the trial court abused its discretion in allowing the State to impeach Ms. Baird with evidence about a prior conviction exceeding what is permitted by ER 609(a), and that he was prejudiced by prosecutorial vouching for state witnesses through testimony and argument, and by the prosecutor’s explicit statement, in closing argument, that Ms. Baird had lied. Insofar as his own lawyer should have objected to the misconduct and sought curative action by the court, Mr. McBride alleges ineffective assistance of counsel.

¶3 In the published portion of this opinion, we hold that ER 608(b) permits impeachment only by specific acts that have not resulted in conviction, while impeachment by way of criminal conviction is treated exclusively under ER 609. The trial court abused its discretion in admitting more conviction evidence against Ms. Baird than is permitted under ER 609.

¶4 In the unpublished portion of this opinion, we hold that the State engaged in prosecutorial misconduct and that Mr. McBride received ineffective assistance of counsel. Given the central importance of credibility to the State’s case, the errors, collectively, were not harmless. We reverse and remand for a new trial.

FACTS AND PROCEDURAL BACKGROUND

¶5 In November and December 2013, the Whitman County Sheriff’s Office received reports of a rash of burglaries in the northern part of the county. Among them were a report by Dominic Petrovich that two motorcycles were stolen out of his carport in Rosalia on the night of November 17 and a report by Fred Wagner in mid-December that his storage unit in Tekoa had been broken into and been “all but cleaned out.” Report of Proceedings (RP) at 41. A yellow CanAm four-wheeler and a Kubota utility vehicle were also taken at around the same time from Arlo Huber’s residence north of Tekoa.

¶6 Law enforcement initially had no leads as to who committed the burglaries and believed they had reached a dead end. But when Deputy Michael Jordan had occasion in late December to speak to Amy Baird, whom he was investigating in connection with an unrelated matter, he asked if she knew anything about the burglaries. Ms. Baird, the longtime girlfriend of William McBride, gave him the names of two individuals, Lance Garrett and Stan Lowley, who she claimed to have heard were involved in different thefts in the Tekoa area.

¶7 Police officers investigated Mr. Lowley’s property in Idaho, located just across the border from Tekoa, where Mr. Garrett was also living. While there, Deputy Jordan found two motorcycles, which he confirmed had the same vehicle identification numbers as those stolen from Mr. Petrovich. He also observed a yellow four-wheeler and a Kubota matching the description of the ones that had been taken from the residence of Mr. Huber. From their interview with Mr. Lowley and Mr. Garrett, the officers learned that Mr. Himes may have been involved in stealing the Kubota and the four-wheeler.

¶8 On December 28, Deputy Jordan arrested Mr. Himes in connection with the burglary of Mr. Huber. Although Mr. Himes initially refused to talk to police, the officers eventually offered to reduce the charges he would face from multiple burglaries to only two counts of second degree possession of stolen property if he agreed to give them a statement as to where the rest of the stolen property was located. Believing that Mr. Himes’s girlfriend, Sheila Evans, was involved, the State offered her a plea deal under which she would plead guilty to one count of burglary in the second degree and pay restitution. Both Mr. Himes and Ms. Evans had implicated Mr. McBride and were required to testify truthfully on that score at trial. Both agreed to the deals.

¶9 Deputy Jordan learned from his interview of Mr. Himes that Mr. Himes was central to most of the recent burglaries, if not the ringleader. Mr. Himes and Ms. Evans told police that they, along with Mr. McBride, had broken into Mr. Wagner’s storage unit. Mr. Himes also told police that he had stolen Mr. Petrovich’s motorcycles from Rosalia on December 18, with some help from Mr. McBride and another individual named Donnie Rower. Mr. Himes said he stole the smaller motorcycle by himself before going back to his place in Oakesdale in order to have Mr. McBride and Mr. Rower help him load the larger motorcycle into a trailer.

¶10 Mr. McBride was charged with second degree burglary based on his alleged involvement in the Tekoa storage unit theft. He was charged with theft of a motor vehicle, as either an accomplice or a principal, based on his alleged participation in stealing Mr. Petrovich’s larger motorcycle.

¶11 At trial, the State’s principal witnesses were Mr. Himes and Ms. Evans. Although Mr. McBride did not testify at trial, Ms. Baird testified for the defense. We reserve most of our discussion of the evidence and argument at trial to the unpublished portion of this opinion, where it is relevant to the State’s argument that any error was harmless.

¶12 Relevant to the ER 608/609 issue, the State cross-examined Ms. Baird at trial about an occasion in 2013 when Mr. McBride lied to police about his name and Ms. Baird had gone along with the misrepresentation, resulting in her conviction for making a false statement to a police officer. The prosecutor inquired about the facts underlying the charge rather than the conviction itself. A defense objection that questioning about details of the crime exceeded what was permitted by ER 609 was overruled. The prosecutor’s continued questioning revealed not only the details of Ms. Baird’s deceptive conduct on that occasion, but Mr. McBride’s as well.

¶13 The jury found Mr. McBride guilty as charged. He was sentenced to 68 months in connection with the burglary and 43 months for the motor vehicle theft. He appeals.

ANALYSIS

¶14 Mr. McBride first claims that the trial court abused its discretion by allowing the prosecutor to elicit details from Ms. Baird about a prior misdemeanor conviction for making a false statement to a police officer in 2013. According to Mr. McBride, the line of questioning exceeded the permissible scope of ER 609(a). The State now argues that it was offering the evidence under ER 608(b). We begin with the trial record and then turn to evidence that may be admitted under the two rules.

¶15 On cross-examination, the prosecutor asked Ms. Baird if she “only ever tell [s] the truth,” to which she responded, “I do my level best.” RP at 234. He then asked her whether she tells the truth to law enforcement and if she would ever he for Mr. McBride. After Ms. Baird responded that she would never lie for Mr. McBride when it comes to stealing, the prosecutor asked her if she would “lie about his name.” Id. Ms. Baird acknowledged that she would, and that she had in fact done so:

[PROSECUTOR]: You lied about his name in September of 2013—
[MS. BAIRD]: Yes, I did—
[PROSECUTOR]: —five months ago. Why?
[MS. BAIRD]: I didn’t necessarily—What I said was that William McBride was a big boy, he could stated [sic]—his name. I wasn’t going to give information otherwise.
[PROSECUTOR]: You didn’t tell the police he was someone else?
[MS. BAIRD]: Huh-huh.
[PROSECUTOR]: You didn’t tell them he was Dan McBride?
[MS. BAIRD]: No. I mentioned Dan. I didn’t say Dan McBride. I didn’t say that was his name. I said, “Ask him, he’s a big boy, he can (inaudible).”

RP at 234-35. Defense counsel objected to the prosecutor’s line of questioning on the grounds that it went beyond what is permitted by ER 609. The court excused the jury, and outside the presence of the jury, Mr. McBride’s lawyer argued, “I think what [the prosecutor] would like to do is go down all of the specifics—but I think the evidence rule contemplates just the fact of the conviction.” RP at 235.

¶16 The prosecutor argued the State should be able to question Ms. Baird regarding the details surrounding the conviction because it was not impeaching her with it and “she’s obviously testifying to [it] freely and remembers it well.” RP at 236. He did not say that he was offering the evidence under ER 608(b) or identify a rule other than ER 609 on which he relied. The court overruled the objection, noting that it “sounded [like] proper impeachment to me—as the evidence of a conviction. So I’ll overrule the objection.” RP at 237.

¶17 The jury returned, and the prosecutor resumed questioning Ms. Baird about the circumstances of her offense:

[PROSECUTOR]: Talking about an incident five months ago, where you lied to police and got convicted for it, regarding William McBride. You were present with William and somebody else in Kennewick, Washington, in September of 2013?
[MS. BAIRD]: Yes.
[PROSECUTOR]: Okay. And you were contacted by law enforcement there.
[MS. BAIRD]: Yeah.
[PROSECUTOR]: And while there, did. the defendant give a false name to the officers?
[MS. BAIRD]: Yes.
[PROSECUTOR]: Okay. Did he give the name of his brother Daniel?
[MS. BAIRD]: Yes.
[PROSECUTOR]: And when you were asked by the officers, you said you had known Daniel a very long time, didn’t you?
[MS. BAIRD]: I have.
[PROSECUTOR]: Okay. You’ve also known William a really long time, haven’t you?
[MS. BAIRD]: I have.
[PROSECUTOR]: You didn’t tell them that Daniel was really William McBride.
[MS. BAIRD]: I didn’t.

RP at 237-38 (emphasis added).

¶18 ER 608 and 609 both address evidence that may and may not be admitted for the purposes of attacking a witness’s credibility. 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.

¶19 Mr. McBride does not dispute that Ms. Baird’s 2013 misdemeanor conviction for false statement was admissible under ER 609(a), but argues that the cross-examination exceeded what is permitted under the rule. “Cross examination on prior convictions under ER 609(a) is limited to facts contained in the record of the prior conviction: the fact of conviction, the type of crime, and the punishment imposed.” State v. Coe, 101 Wn.2d 772, 776, 684 P.2d 668 (1984); State v. Copeland, 130 Wn.2d 244, 284, 922 P.2d 1304 (1996). This is because “[c]ross examination exceeding these bounds is irrelevant and likely to be unduly prejudicial, hence inadmissible.” Coe, 101 Wn.2d at 776. As the court explained in State v. Coles, 28 Wn. App. 563, 573, 625 P.2d 713 (1981), “The details of the acts leading to the prior convictions are not admissible” under ER 609 because “the only purpose of such information in a subsequent trial on an unrelated offense is to bring irrelevant evidence before the jury to insinuate that conviction of the prior offense somehow is proof of defendant’s guilt in the present action.”

¶20 The State did not mention ER 608(b) in offering the evidence in the trial court but argues on appeal that it is an independent and sufficient basis on which it could cross-examine Ms. Baird about the conduct for which she was convicted. ER 608(b) provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The State argues that unlike ER 609, cross-examination under ER 608(b) is not limited to the fact of the conviction, the type of crime, and the punishment.

¶21 What the State does not address is whether ER 608(b) and ER 609 are intended to be mutually exclusive, with ER 608(b) applying only to conduct for which there has been no conviction. An ambiguity arises depending on whether the word “they” at the beginning of the second sentence of ER 608(b)—identifying the things that can be inquired into on cross-examination—means “[s]pecific instances of conduct ... for the purposes of attacking . . . credibility” or means, instead, “[s]pecific instances of conduct ... for the purposes of attacking . . . credibility other than conviction of crime as provided in rule 609.” (Emphasis added.)

¶22 Federal courts have addressed this issue in cases applying the parallel federal rules. In a decision representative of the weight of federal authority, United States v. Osazuwa, 564 F.3d 1169, 1175 (9th Cir. 2009), the court held that “[Fed. R. Evid.] 608(b) permits impeachment only by specific acts that have not resulted in a criminal conviction,” while “[e]vidence relating to impeachment by way of criminal conviction is treated exclusively under [Fed. R. Evid.] 609.” (Emphasis added.)

¶23 In arriving at this conclusion, the Osazuwa court began by noting that “the interplay between [Fed. R. Evid.] 608 and 609 is complex.” 564 F.3d at 1173. It then turned to the text of [Fed. R. Evid.] 608, which the court concluded was subject to two reasonable interpretations:

Defendant argues that [Fed. R. Evid.] 608 exempts from its coverage a witness’ prior criminal convictions and instead delegates to [Fed. R. Evid.] 609 any questions relating to such convictions. The government advances a different construction of [Fed. R. Evid.] 608, arguing that the rule is concerned solely with the admissibility of extrinsic evidence. In the government’s view, [Fed. R. Evid.] 608 provides only that, while specific instances of the conduct of a witness may not be proved by extrinsic evidence, extrinsic evidence is admissible to prove criminal convictions.

Id. Because the court found that both constructions were plausible and the rule was therefore ambiguous, it turned to the legislative history surrounding the rule’s adoption, explaining that the advisory notes upon adoption of the rule provide:

“[Plarticular instances of conduct, though not the subject of criminal conviction, may be inquired into on cross-examination” and "[c]onviction of crime as a technique of impeachment is treated in detail in [Fed. R. Evid.] 609, and. here is merely recognized. as an exception to the general rule excluding evidence of specific incidents for impeachment purposes.” Fed.R.Evid. 608 advisory committee’s notes (1972) (emphases added). Those comments suggest that evidence relating to convictions falls within the exclusive purview of [Fed. R. Evid.] 609.

Id. at 1174 (alterations in original). The court pointed out that the Eighth, Fifth, and Tenth Circuit Courts of Appeals had also adopted the defendant’s construction. Id. (citing United States v. Lightfoot, 483 F.3d 876 (8th Cir. 2007); United States v. Parker, 133 F.3d 322 (5th Cir. 1998); Mason v. Texaco, Inc., 948 F.2d 1546 (10th Cir. 1991)).

¶24 The Ninth Circuit also recognized “the unfairness that would result if evidence relating to a conviction is prohibited by [Fed. R. Evid.] 609 but admitted through the ‘back door’ of [Fed. R. Evid.] 608.” Id. (citing Donald H. Zeigler, Harmonizing Rules 609 and 608(b) of the Federal Rules of Evidence, 2003 Utah L. Rev. 635, 677 (“Because the misconduct that forms the basis of the impeachment is exactly the same, it plainly seems unfair to forbid impeachment under [Fed. R. Evid.] 609(a)(1) but allow the defendant to be questioned about the underlying acts under [Fed. R. Evid.] 608(b).”)). It further explained that

[u]nder the government’s interpretation, a bad act resulting in a conviction would be, in a sense, counted twice—once by presenting the bad act itself and once by presenting the conviction that flowed from it. The risk of unfair prejudice or undue emphasis is the reason why [Fed. R. Evid.] 609 and its related case law carefully guide the admission of prior convictions and their underlying facts.

Id. at 1174-75.

¶25 It is well settled that while federal case law interpreting a federal rule that is equivalent to a Washington rule may be persuasive, it is not binding. State v. Brown, 113 Wn.2d 520, 547-48, 782 P.2d 1013 (1989); see also State v. O’Dell, 70 Wn. App. 560, 565, 854 P.2d 1096 (1993). Washington courts “approach our rules as though they had been drafted by the Legislature and give the words their ordinary meaning.” Brown, 113 Wn.2d at 551-52. But federal case law applying Fed. R. Evid. 608(b) is instructive given that the federal rule and our own are substantially the same. See State v. Wilson, 60 Wn. App. 887, 892, 808 P.2d 754 (1991) (looking to federal case law as persuasive authority in interpreting ER 608(b) because “[t]his rule is identical to Fed. R. Evid. 608(b)”).

¶26 While it appears that many states have adopted the federal approach, at least seven—the states of Kentucky, Idaho, California, Colorado, Connecticut, Montana, and Nevada—have held that their parallel rules can be used even where the specific conduct results in a criminal conviction. But in each of these jurisdictions, the state counterpart to Fed. R. Evid. 609 differs from the federal rule in a significant way: it permits use of a prior conviction to show a witness’s untruthfulness only if the prior conviction was a felony, and does not allow proof that the witness was convicted of a misdemeanor, even if the crime involved dishonesty. As the Kentucky Supreme Court observed in Allen, “the inability to inquire in any way about misdemeanor convictions reflecting on dishonesty illustrates a substantial hole in the present [Ky. R. Evid.] 608-609 regime”Allen v. Commonwealth, 395 S.W.3d 451, 463 (Ky. 2013). The court explained that under this system, “bar[ring] any evidence of misdemeanor conduct that led to a conviction—even when it conclusively proves dishonest conduct—[undermines] the ability to effectively cross-examine a witness.” Id. at 464.

¶27 Notwithstanding this federal authority, the State suggests that our Supreme Court found both ER 608(b) and ER 609 applicable to prior crimes resulting in conviction in State v. Clark, 143 Wn.2d 731, 767, 24 P.3d 1006 (2001). In that case, the trial court had refused to allow the defense to impeach a state witness under ER 608(b) with conduct underlying his prior convictions where the witness had already been impeached under ER 609 with the convictions themselves. On appeal, the defendant claimed the conduct was further evidence of the witness’s truthfulness and would have assisted the jury in assessing his credibility. The Supreme Court held that the trial court did not abuse its discretion in excluding the impeachment evidence, explaining that “[flailing to allow cross-examination of a state’s witness under ER 608(b) is an abuse of discretion if the witness is crucial and the alleged misconduct constitutes the only available impeachment.” Id. at 766. Since the credibility of the witness in Clark had already been challenged by admitting the convictions, “the misconduct underlying some of those convictions would not be any more probative.” Id. at 767. Elsewhere, however, the Supreme Court did state that the trial judge “could have let prior misconduct in under ER 608(b) but chose not to.” Id.

¶28 The State is correct in arguing that Clark treats both rules as potentially applying to a conviction—but no one made the argument in Clark that, fairly read and considering historical intent, the rules are mutually exclusive. Accordingly, the court’s language implying that ER 608(b) could be a basis for cross-examining a witness about conduct underlying a conviction is dicta.

¶29 In this case, the ability to impeach Ms. Baird about her conviction for false statement with the limited information admissible under ER 609(a) would have satisfied the State’s legitimate interest in pointing out this prior instance of dishonesty. By cross-examining Ms. Baird about the circumstances of the crime, the State was able to tar Mr. McBride as well: it succeeded in bringing to the jury’s attention the fact that Mr. McBride also lied about his name to an officer.

¶30 Notwithstanding the dicta in Clark, we adopt the reasoning of the Ninth Circuit in Osazuwa and hold that a witness may not be questioned regarding facts leading to a prior conviction under ER 608(b), since doing so would constitute an end-run around ER 609(a)’s prohibition on presenting collateral evidence. ER 609’s relative restrictiveness can be explained as based on the fact that proof a witness has been convicted of a felony or a crime of dishonesty has an immediate, clear, and indisputable negative import. Cross-examination under ER 608(b), by contrast, amounts to an implicit accusation that a witness may deny or explain away. See Osazuwa, 564 F.3d at 1174 (“evidence of a prior conviction for dishonest acts can be far more prejudicial to a defendant than evidence of dishonest acts that have not been held to violate the law”).

¶31 A trial court’s discretionary decisions regarding the admissibility of prior convictions under ER 609 will be reversed only “where the record reflects a clear abuse of discretion.” State v. Anderson, 31 Wn. App. 352, 354, 641 P.2d 728 (1982). In exercising its discretion whether to admit evidence, a trial court abuses its discretion if its decision is contrary to law. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). The trial court abused its discretion in overruling the defense objection.

¶32 The State argues that the trial court’s error was harmless. We need not examine whether it was, since we find other reversible error as well as cumulative error, which we discuss hereafter.

¶33 Reversed and remanded.

¶34 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with RCW 2.06.040, the rules governing unpublished decisions.

Fearing and Lawrence-Berrey, JJ., concur. 
      
       Given our disposition of the case, we do not address Mr. McBride’s argument that the trial court erred by imposing a deoxyribonucleic acid (DNA) collection fee or issues raised in his statement of additional grounds. In connection with the challenge to the court’s imposition of a $100 DNA collection fee, we point out this court’s recent decision in State v. Thornton, 188 Wn. App. 371, 353 P.3d 642 (2015).
     
      
       Knowingly making an untrue statement to a public servant is proscribed by RCW 9A.76.020, and “is clearly a crime which involves a false statement and is admissible under ER 609(a)(2).’’ State v. Burton, 33 Wn. App. 417, 420, 655 P.2d 259 (1982), rev’d on other grounds, 101 Wn.2d 1, 676 P.2d 975 (1984), overruled on other grounds by State v. Ray, 116 Wn.2d 531, 543-45, 806 P.2d 1220 (1991).
     
      
       Fed. R. Evid. 608(b) states:
      (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
      (1) the witness; or
      (2) another witness whose character the witness being cross-examined has testified about.
     
      
      
         See, e.g., State v. Stricklin, 290 Neb. 542, 561, 861 N.W.2d 367 (2015) (“[Neb. Evid. R.] 608(2) permits questioning during cross-examination only on specific instances of conduct not resulting in a criminal conviction.’’).
     
      
      
         See Allen v. Commonwealth, 395 S.W.3d 451, 463-64 (Ky. 2013) (“Nothing in the language of [Ky. R. Evid.] 608 suggests that so long as a proponent does not attempt to prove the conduct involved in a misdemeanor conviction by extrinsic evidence, simple inquiry about that conduct should be unacceptable.”); see also State v. Bergerud, 155 Idaho 705, 711, 316 P.3d 117 (Ct. App. 2013); People v. Chatman, 38 Cal. 4th 344, 133 P.3d 534, 556, 42 Cal. Rptr. 3d 621 (2006); People v. Drake, 748 P.2d 1237, 1246 (Colo. 1988); State v. Hall, 120 Conn. App. 191, 991 A.2d 598, 604 (2010); State v. Martin, 279 Mont. 185, 926 P.2d 1380, 1389 (1996); Butler v. State, 120 Nev. 879, 102 P.3d 71, 80 (2004).
     
      
      
        See Allen, 395 S.W.3d at 463-64 (“Unlike the federal rule, [Ky. R. Evid.] 609 does not allow proof that the witness was convicted of a non-felony (usually a misdemeanor) involving dishonesty or reflecting on character for dishonesty.”); Bergerud, 155 Idaho at 711 (noting that the federal rule “differs in a significant way from [Idaho R. Evid.] 609,” which “permits use of a prior conviction to show a witness’s untruthfulness only if the prior conviction was a felony”); see also Cal. Evid. Code § 788; Colo. Rev. Stat. § 13-90-101; Conn. Evid. Code § 6-7; Idaho R. Evid. 609(a); Ky. R. Evid. 609(a); Nev. Rev. Stat. § 50.095; Mont. R. Evid. 609; Olson v. Little, 604 F. App’x 387, 397 n.5 (6th Cir. 2015).
     