Self Preservation Instinct: Washington Court Finds Luce Doctrine Applies To Rule 404(b) Evidence

In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. But what about if the trial court determines that character evidence will be admissible in the event that a defendant testifies at trial and raises a certain defense. Does the defendant need to so testify to preserve that issue for appeal? According to the recent opinion of the Court of Appeals of Washington, Division 2, in State v. Phillips, 2011 WL 396479 (Wash.App. Div.2 2011), the answer is "yes."

In Phillips, Kimberly Phillips was charged with eight counts of first degree theft. Before trial,

the State filed an ER 404(b) motion to admit evidence of Phillips's past forgery and theft crimes against elderly and vulnerable victims in the 1980s. The trial court ruled that although Phillips's past convictions would not be admissible for impeachment, they were admissible to rebut the material assertion that the victims consented to give her the money. The trial court ruled that this evidence was admissible under ER 404(b).

Thereafter, Phillips did not testify at trial and did not raise the defense that the victims consented to give her money, and the State did not introduce evidence of her prior convictions. After she convicted, Phillips appealed, claiming, inter alia, that the trial court erred in deeming her prior convictions admissible in the event that she testified. The Court of Appeals disagreed, finding that

Division I of this court addressed a similar question in State v. Mezquia....There, the trial court ruled that evidence of the defendant's prior acts would be admissible under ER404(b), but only if the defendant raised the issue of identity....The defendant decided not to call the witness who would raise the issue, and the ER 404(b) evidence was never admitted....The Mezquia court held that because the defendant failed to put on the witness and the ER 404(b) evidence was not admitted, the defendant had not preserved the issue for appeal....

The Mezquia court analogized the situation to Luce....In Luce, the Court decided that a defendant must testify to preserve an objection to the admissibility of evidence under FED.R.EVID. 609(a)....The Court held that a defendant's testimony was necessary to create a sufficient record on appeal, reasoning that without the defendant's testimony, a reviewing court cannot say whether the State would have actually offered the offending evidence and cannot decide how prejudicial that evidence would have been....The Court held that this rule would discourage defendants from attempting to "plant" reversible error in the proceedings.... 

The court then found that this reasoning applied to the case before it, concluding that

Here, as in Mezquia, the trial court ruled that ER 404(b) evidence was admissible only if the defendant put on a particular defense....Because Phillips did not testify, we cannot predict exactly what would have been admitted at trial. Additionally, whether the convictions would have been used for an invalid ER 404(b) purpose is speculative. And allowing Phillips to challenge the admissibility of her convictions under ER 404(b)  without testifying would arguably allow her to plant an error in her trial as the Supreme Court warned against in Luce....We adopt Mezquia and hold that because Phillips has not preserved this issue for appeal, we will not consider it.

-CM