State v. Tharp
637 P.2d 961, 96 Wash. 2d 591, 1981 Wash. LEXIS 1364 (1981)
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Rule of Law:
Before admitting evidence of a defendant's prior crimes or bad acts to prove motive under ER 404(b), a trial court must conduct an on-the-record balancing test to determine whether the evidence's probative value is substantially outweighed by its danger of unfair prejudice. A failure to conduct this balancing is an error, but it may be deemed harmless if the outcome of the trial would not have been materially affected had the error not occurred.
Facts:
- Jo Elliott Tharp was on a temporary furlough from the Department of Institutions for a prior auto theft conviction.
- On March 30, 1978, a series of crimes occurred in Bellingham, including a car prowl where a key ring was stolen, a residential burglary where an automatic pistol and other items were taken, and the theft of a pickup truck.
- The stolen pickup truck was later found abandoned near the home of William Ray Bond.
- Around 11 p.m. that night, Chad Bond's car was stolen from the family residence.
- William Ray Bond pursued his son's stolen car and confronted the thief. Witnesses heard loud voices, sounds of a struggle, and then two gunshots.
- William Ray Bond was found dead at the scene, having been shot twice with the same pistol stolen earlier in the residential burglary.
- Later that night or early the next morning, another car belonging to Ms. Hanson was stolen from her Bellingham home.
- Several days later, police in Montana arrested Tharp while he was driving the stolen Hanson vehicle.
- At the time of his arrest, Tharp was in possession of the automatic pistol used to kill Bond and other items taken during the Bellingham crime spree.
Procedural Posture:
- Jo Elliott Tharp was charged with second-degree murder and tried before a jury in a Washington state trial court.
- Over defense objections, the trial court admitted evidence of Tharp's prior auto theft conviction and his prison furlough status.
- The jury returned a verdict of guilty, and the trial court entered a judgment on the verdict.
- Tharp (appellant) appealed the conviction to the Court of Appeals of Washington, Division One.
- The Court of Appeals affirmed the conviction, finding that any evidentiary errors were harmless.
- Tharp (petitioner/appellant) petitioned the Supreme Court of Washington for discretionary review, which was granted.
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Issue:
Does a trial court commit reversible error by admitting evidence of a non-testifying defendant's prior conviction and prison furlough status to prove motive, without explicitly weighing the evidence's probative value against its potential for unfair prejudice on the record?
Opinions:
Majority - Hicks, J.
Yes, it is an error for a trial court to admit such evidence without conducting the required balancing test on the record, but in this case, the error was harmless and does not require reversal. The State's theory that Tharp's furlough status provided a strong motive to kill was tenuous. Under ER 404(b) and ER 403, evidence of prior bad acts, even if offered for a permissible purpose like motive, requires the trial court to consciously weigh its probative value against the danger of unfair prejudice. The trial court failed to do this, instead simply accepting the State's argument. However, this error is not prejudicial because the remaining, properly admitted evidence—including Tharp's possession of the murder weapon and other stolen items—was so overwhelming that, within reasonable probabilities, the outcome of the trial would not have been different had the evidence been excluded.
Analysis:
This decision reinforces the procedural safeguard that trial courts must perform an explicit, on-the-record balancing of probative value against prejudicial effect before admitting evidence of prior bad acts under ER 404(b). It clarifies that merely identifying a permissible, non-propensity purpose like 'motive' is insufficient; the court must actively exercise its discretion. However, the case also demonstrates the robustness of the harmless error doctrine in the context of non-constitutional evidentiary errors. It establishes that even a clear abuse of discretion in admitting prejudicial evidence will not lead to a new trial if the untainted evidence of guilt is overwhelming, thereby prioritizing judicial economy over the correction of every trial court error.
