Parish v. State

• Decision Date: 18 December 1970
• Docket Number: No. 1180,1180
• Citation: 477 P.2d 1005
• Parties: Roland John PARISH, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1005

477 P.2d 1005

Roland John PARISH, Appellant, v. STATE of Alaska, Appellee.

No. 1180.

Supreme Court of Alaska.

Dec. 18, 1970.

Dick L. Madson, Fairbanks, for appellant.

G. Kent Edwards, Atty. Gen., Juneau, Stephen Cooper, Dist. Atty., and Thomas F. Keever, Asst. Dist. Atty., Fairbanks, for appellee.

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR, and ERWIN, JJ.

OPINION

CONNOR, Justice.

Appellant was convicted, after a trial by jury in the district court, of the offense of taking a motor vehicle without the owner's consent contrary to AS 28.35.010. On appeal he contends that the trial court erred in permitting the prosecution to cross-examine him concerning previous offenses of which he had been convicted, and in failing to instruct or caution the jury about the purpose for which the previous criminal convictions could be considered.

At trial the prosecution's case consisted of the testimony of Sgt. Nearing, of the Fairbanks police department, who found appellant attempting to start the engine of a vehicle belonging to Jay Hodges. Nearing testified that appellant admitted to him that he had taken the car. Hodges testified that he had not given appellant permission to use the vehicle at any time. Appellant took the witness stand in his own defense. He testified that he had been intoxicated, that the car had been lent to him by three unidentified persons, and that he had no knowledge that the automobile was a stolen one when he drove it.

On cross-examination the prosecutor attempted to go into the previous criminal convictions of the accused; an objection was made by appellant's counsel, and a colloquy between court and counsel occurred thereafter. The prosecutor was then permitted to proceed with questioning appellant, who admitted that he had been convicted of larceny in 1958, driving an automobile without the owner's consent in 1959, and convicted of the latter offense again in 1960, twice in 1961, once in 1964, and once again in 1966.

Appellant recognizes that under both the previous decisions of this court and Civil Rule 43(g)(11)(b) it was permissible to elicit the testimony about previous criminal convictions for the purpose of impeaching his credibility. Scott v. State, 445 P.2d 39 (Alaska 1968); Gafford v. State, 440 P.2d 405 (Alaska 1968); Sidney v. State, 408 P.2d 858 (Alaska 1965); Anderson v. State, 384 P.2d 669 (Alaska 1963). ¹ He asks, however, that we adopt the view expressed in the dissenting opinion in Scott v. State, supra, and that we order a new trial.

Because District Court Criminal Rule 1(c) ² prohibited instructing the jury other than to define the nature of the offense charged and the statute or regulation involved, appellant argues that there is a substantial likelihood that the jury used the previous convictions as direct evidence of guilt and not merely as reflecting upon appellant's credibility. It is argued that the court should have relaxed District Court Criminal Rule 1(c), as permitted by Rule 53 of the Rules of Criminal Procedure, ³ and should have instructed the jury that the evidence of previous convictions should not be used as evidence of guilt.

The court, in admitting the evidence, was merely following the previous decisions and opinions of this court. The objection made by appellant's counsel to the introduction of the evidence was a general one. The initial grounds for the objection are not clear. It is quite possible that the trial judge was under the impression that the objection was to the form of the question. At a later point defense counsel objected 'to the introduction at all,' but did not otherwise apprise the court of the ground of the objection. Neither in the colloquy with the court, which followed the objection, nor at any later time did appellant's counsel ask that the jury be cautioned about the use of this evidence, although in final argument she did stress to the jury that it could be considered only as bearing upon the credibility of appellant. ⁴

In these circumstances we are not persuaded that error was committed by the trial court.

As pointed out by the dissenting opinion, there has been criticism of rules permitting broad impeachment by proof of previous criminal convictions. ⁵ But never to our knowledge has it been held that the application of such rules is a denial of due process of law.

Such cases as Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965), Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), and United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968), relied upon in the dissent, leave the matter within the sound discretion of the trial court. ⁶ Furthermore, the court in Gordon v. United States, supra, speaking through Judge (now Chief Justice) Burger, held that an abuse of discretion cannot be claimed by one who failed to invoke that discretion by presenting to the trial court sufficient reasons for withholding past convictions from the jury, in the face of a statute which makes the convictions admissible. This fits precisely the case before us, where only a general objection was made by counsel to the reception of this evidence.

When the question is viewed within the context of trial court discretion, an abuse of that discretion would not be of constitutional dimension. It would be merely an evidentiary question, and the error committed, if any, would be only an ordinary criminal trial error.

The latest expression of the United States Supreme Court on the general subject of the use of previous convictions as evidence in criminal cases is Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). That case dealt with a state recidivist statute under which the previous criminal convictions of the defendant were put in evidence together with evidence of guilt of the primary charge. A majority of the court, speaking through Harlan, J., held that such a procedure did not violate due process of law. It might be fairer to have a two-stage procedure, under which primary guilt would first be established. Then in a separate proceeding the previous criminal convictions could be shown. However, the Supreme Court held that the selection of such procedures is peculiarly within the province of the states and is not governed by that standard of fundamental fairness which is guaranteed by the due process clause. In a dissenting opinion Chief Justice Warren stated that in his view the particular recidivist procedures employed were a violation of due process, but he was careful to say that a state has a legitimate purpose in using evidence of previous criminal convictions for impeachment purposes. Thus it is well settled that the rule allowing impeachment by previous criminal convictions is a matter which does not give rise to a constitutional claim. ⁷

If the use of the previous convictions in the case at bar were held violative of some broad notion of due process, the question would then be what content or meaning would be left in the existing rule. Many possible rules could be employed in place of the one which now obtains in Alaska. For example, impeachment by this method could be limited to crimen falsi (with attendant definitional problems); impeachment might be allowed only if the accused puts his good character in evidence; previous convictions might be excluded if the crimes are similar to the one for which the defendant is being tried; distinctions could be made between misdemeanors, or certain types of them, and felonies; or all impeachment by showing previous convictions could simply be abolished. It would be necessary to consider the extent to which distinctions should be drawn between impeachment of criminal defendants and mere witnesses. An alternative is to leave the matter of impeachment by prior convictions to the trial judge. Still another approach is to use a test of remoteness, not allowing impeachment by convictions occurring earlier than some definite point in time.

Yet these are the very matters which should be studied with care before making any change in the existing rule. No doubt the rule can be improved after careful study and reflection. But simply to overthrow our own rule at this time on unprecedented due process grounds would leave a standardless void. This we choose not to do.

Affirmed.

BONEY, Chief Justice (dissenting).

I cannot accept the result reached by the majority opinion; nor can I agree with the manner in which that result was reached.

Roland John Parish was tried before a jury in the district court on the misdemeanor charge of driving a motor vehicle without the owner's consent, more commonly called 'joyriding'. At trial, Parish took the stand in his own defense. The prosecution was allowed, over the objections of defense counsel, ¹ to cross-examine Parish concerning his criminal record. This inquiry revealed that Parish had one previous conviction of larceny and six previous convictions of joyriding, the same crime with which he was charged. Although the evidence of prior convictions was ostensibly introduced for the sole purpose of impeaching Parish's credibility as a witness, ² at no time did the trial court instruct the jury accordingly. Similarly, the court failed to inform the jury that the evidence of a prior criminal record could not properly be used to establish guilt.

The rules in Alaska governing the impeachment of witnesses by evidence of prior convictions are exceedingly broad, ³ and thus it is to be expected that their application will, on occasion, foster injustice. I believe that this is one of those occasions. More specifically, it is my view that the trial court, by applying our impeachment rules to allow unrestricted use of prior convictions, effectively deprived Parish of the fair and impartial trial guaranteed to him by the United States and Alaska Constitutions. ⁴ The evidence of prior convictions here was permissible only on the issue of Parish's credibility. Yet it is apparent that Parish's jury might easily...