Scott v. State

• Decision Date: 16 September 1968
• Docket Number: No. 915,915
• Citation: 445 P.2d 39
• Parties: Nadine SCOTT, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 39

445 P.2d 39

Nadine SCOTT, Appellant, v. STATE of Alaska, Appellee.

No. 915.

Supreme Court of Alaska.

Sept. 16, 1968.

Peter LaBate, Anchorage, for appellant.

Douglas B. Baily, Dist. Atty., Russell J. Gallagher, Asst. Dist. Atty., Anchorage, for appellee.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

NESBETT, Chief Justice.

Appellant was convicted in the district court of the charge of soliciting for the purpose of prostitution in violation of state statute. ¹ During the trial, the state, in order to impeach appellant and her witness, offered evidence of their prior convictions, for soliciting prostitution in violation of an Anchorage city ordinance. Objections to the admission of evidence of the convictions were made on the ground that violations of municipal ordinances are not 'crimes' within the meaning of Civil Rule 43(g)(11)(b) ² and Civil Rule 43(h)(7) ³ which permit impeachment of a witness by evidence that he has been convicted of a crime. Appellant's objections were overruled.

The point was appealed to the superior court which affirmed appellant's conviction, whereupon appeal was taken to this court.

Appellant relies on authorities which have held that a conviction for violation of a municipal ordinance may not be shown to impeach a witness on the ground that only convictions for violations of the law of the land or of the state are admissible for impeachment purposes. ⁴ Appellant also relies on relatively recent Oregon authorities holding that a violation of a municipal ordinance is not a 'crime' ⁵ within the meaning of Oregon law providing that it may be shown, for purposes of impeachment, that a witness has been convicted of a crime. ⁶ Appellant points out that Oregon's definition of a crime ⁷ is so similar to Alaska's definition ⁸ that Oregon authorities should be controlling.

We are unable to agree with appellant. As early as 1906, in Ball v. United States, ⁹ it was established that under Sections 669 and 675 of Carter's Codes of Alaska, which were taken from the laws of Oregon and which are identical in all pertinent respects with Civil Rules 43(g)(11)(b) and 43(h)(7), that proof of a witness' prior conviction of a misdemeanor was admissible for purpose of impeachment. There a judgment of conviction of the witness in the United States District Court in the Northern District of California of the misdemeanor of using the United States mails to defraud was held to have been properly admitted into evidence by an Alaska court. In so holding, the court relied upon a decision of the Supreme Court of Oregon. ¹⁰ The court in Ball pointed out that the only reason that a defendant who took the stand in his own defense in Oregon could not be asked whether he had been convicted of a crime was because of an Oregon statute which expressly restricted cross-examination of the defendant to the testimony he had given on direct examination. The court specifically pointed out that no such restriction applied under Alaska law.

In Anderson v. State ¹¹ this court followed Ball v. United States and construed Civil Rules 43(g)(11)(b) and 43(h)(7) as permitting proof of a previous conviction of a misdemeanor. In Sidney v. State ¹² this court said:

Under the wording of Civ.R. 43 and the Anderson case, no limitation exists as to the type of crimes that can be used to impeach a defendant-witness.

Our dissenting colleague doubts that appellant was given a fair trial because evidence was admitted that both she and her witness had been four times previously convicted of the crime of soliciting prostitution, which was the same crime for which appellant was being tried, and that the trial judge did not clearly instruct the jury that this evidence was admitted only to impeach credibility and was not to be considered as evidence of guilt. Our colleague believes that there is a strong likelihood that evidence of the prior convictions was considered by the jury as evidence of guilt of the crime for which appellant was on trial and would order a new trial.

The majority does not share these doubts. Appellant herself apparently has no such doubt for she has made no point of the possibility that the jury may have improperly considered the evidence of prior convictions. The record contains nothing which would suggest a 'strong likelihood' that the jury misapplied the evidence. The trial judge did explain to the jury that the evidence was being admitted only to test credibility and was 'not to be considered as evidence against her in this particular case.' The trial judge did not again instruct the jury to this effect at the close of the case because district judges are not permitted to instruct juries. ¹³ The district judge, therefore, did all that he could permissibly do to clarify the only purpose of the evidence.

The overwhelming weight of authority is that a witness' credibility may be impeached by evidence that he has been convicted of a crime. In the case before us the complaining witness testified that appellant had offered to engage in sexual intercourse for hire. Appellant's testimony was directly contradictory. The outcome of the case would necessarily turn on credibility and the state was entitled to impeach appellant's veracity, if it could, by the evidence in question.

Ordering a new trial would be futile. District court judges are still not permitted to instruct juries and Civil Rules 43(g)(11)(b) and 43(h)(7) are still in effect.

Finding no error, it is ordered that the judgment of the superior court affirming the judgment of the district court be affirmed.

RABINOWITZ, Justice (dissenting).

In my opinion application of two unsatisfactory rules of procedure deprived appellant of the opportunity of receiving a fair trial. Pertinent here, in addition to Civil Rule 43(g)(11)(b) which permits a witness to be impeached by showing his prior conviction of a crime, is District Court Criminal Rule 1(c). This latter rule governs trial procedures in the district court and provides in part that:

The trial shall be conducted as are trials in criminal cases in the superior court, except that the court shall not instruct the jury other than to define the nature of the offense charged and the statute or regulation upon which the complaint is based.

In the case at bar the district court permitted appellant and appellant's only defense witness to be impeached by evidence of their four prior convictions of the same type of crime for which appellant was on trial. ¹ Examination of the record discloses that the trial judge never clearly or specifically instructed the jury as to the permissible or impermissible uses of such evidence. During the prosecution's cross-examination of appellant the district judge did make the following comments in ruling upon counsel for appellant's objection to the admission into evidence of appellant's two prior city convictions:

Well, I think the City statutes defines temporary misdemeanors and felonies and the only crimes in the State. And the Motion is denied. The purpose, of course in asking a question whether a person has been convicted is to press upon their credibility as a witness not to be considered as evidence against her in this particular case, as to her credibility.

Other than these somewhat obscure comments made in response to counsel's objection to this impeaching evidence, the record demonstrates that the trial judge made no additional reference to this evidence. More specifically, the court did not give any instruction to the jury at a subsequent point in the trial when appellant's objection to the impeachment-by-evidence-of-prior-conviction of her witness, Dorothy Porter, was overruled. Nor did the court, in its charge to the jury, allude to the purpose for which evidence of this character is permitted to be heard and used by the jury.

In commenting upon the general theory concerning the use of prior convictions to impeach the credibility of witnesses, Justice Holmes stated:

(W)hen it is proved that a witness has been convicted of a crime, the only ground for disbelieving him which such proof affords is the general readiness to do evil which the conviction may be supposed to show. It is from that general disposition alone that the jury is asked to infer a readiness to lie in the particular case, and thence that he has lied in fact. The evidence has no tendency to prove that he was mistaken, but only that he has perjured himself and it reaches that conclusion solely through the general proposition that he is of bad character and unworthy of credit. ²

In may view the recent decisions of this court reflect, to a certain degree, dissatisfaction with Civil Rule 43(g)(11)(b)'s provision for the admissibility into evidence of the witness' prior conviction of crime for impeachment purposes. In Gafford v. State, ³ it was said that:

We recognize that because defendants are subject to impeachment through proof of prior convictions, as a matter of strategy, defense counsel often have the defendant himself reveal his prior convictions in order to lessen the prejudicial impact such evidence may carry with it when used by the prosecution for impeachment purposes. ⁴

In Gafford we then went on to hold that:

(T)he prosecution's inquiry should be limited to the name of the crime, time and place of conviction, and the sentence imposed. It is our belief that this rule will minimize the 'prejudice and distraction' from the issues which may flow from our general impeachment rule. ⁵

Prior to Gafford, this court in Sidney v. State decided against appellant's contention that under Civil Rule 43(g)(11)(b) impeachment should be limited solely to crimes involving dishonesty or false statement. There we held that 'no limitation exists as to the type of crimes that can be used to impeach a defendant-witness.' ⁶ Additionally, and in response to the argument which was advanced by appellant in Sidney, we referred counsel and the bar in general to Supreme Court Rule 53 which provides...