Sidney v. State
| Decision Date | 13 December 1965 |
| Docket Number | No. 565,565 |
| Citation | 408 P.2d 858 |
| Parties | Allen SIDNEY, Appellant, v. STATE of Alaska, Appellee, |
| Court | Alaska Supreme Court |
Joe P. Josephson, of Josephson & Strachan, Anchorage, for appellant.
John K. Brubaker, Dist. Atty., Anchorage, for appellee.
Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.
The gist of this appeal raises questions pertaining to the State's introduction into evidence of records of appellant's prior criminal convictions. We consider it necessary to initially refer in some detail to the trial proceedings so that the factual context leading up to the admission into evidence of the judgments of conviction will be more readily understood and our disposition of these issues clarified.
Appellant Allen Sidney was indicted for the crime of assault with a dangerous weapon allegedly committed August 17, 1964, by stabbing Johnson Scott with a knife in violation of AS 11.15.220. 1 After trial by jury appellant was found guilty of assault with a dangerous weapon and was sentenced to serve a five year term of imprisonment. 2 It is from this sentence that appellant appeals.
During the impanelling of the jury, trial counsel for appellant disclosed to the prospective jury panel that appellant had been previously convicted and incarcerated. The first disclosure occurred during counsel for appellant's voir dire examination of juror DeArmon. The juror was asked the following questions by appellant's counsel:
Will the fact that the defendant has been in the penitentiary and will tell you from the witness stand that he has, from this Court here years ago, would that have any tendency to prejudice you against him? Could you overlook that completely and try this case on his reputation and his character and the facts since that time? * * * I take it then that * * * none of you have spoken up, you would not be prejudice [sic] against him by reason of the fact that he did do a term in the penitentiary at McNeil Island from this very city of Anchorage here? If you found and believed that he had repented from that and was doing right, you would not hold that against him, would you?
Substantially the same type of interrogation took place during counsel for appellant's voir dire examination of two subsequent prospective jurors. 3
The next reference to appellant's criminal record occurred during his counsel's opening statement to the jury. At this point counsel said:
We will also show that my client here was a convict and served in the penitentiary. He will show that he became a member of the religious organization there in the penintentiary [sic].
After the prosecution had rested its case in chief, appellant elicited testimony from three defense witnesses as to his good reputation for truth and veracity. 4 Appellant then testified in his own behalf. During appellant's direct examination, the following took place:
Q And had you--Allen, had you prior to that time served a sentence in the penitentiary?
A Yes sir.
Q And what year did you receive that sentence?
A In 1958, sir. December 17th, yes.
A Yes sir.
Q And after you got out of the penitentiary did you come right back to Anchorage?
A Yes sir. 5
During the prosecution's cross-examination of appellant, copies of four judgments of conviction were introduced into evidence over appellant's objections. At no time prior to offering these judgments of conviction into evidence did counsel for the prosecution ask appellant any question as to his prior criminal record. 6 The four judgments of conviction indicate that appellant had been convicted of the crimes of robbery in 1958, of rape in 1957, of possession of an unregistered firearm in 1957, and of robbery in 1944. 7 To each of these four exhibits appellant's counsel objected on the grounds of lack of competency, relevancy, materiality, and foundation. 8
It is the introduction into evidence of these four judgments of conviction which appellant asserts as error. For reasons which will hereafter be explained, we have concluded that it was not error for the trial court to have ruled that the four exhibits were admissible.
Appellant's argument centers primarily on the provisions of Civ.R. 43(g)(11)[b]. This rule of procedure provides: 9
Impeachment of Adverse Party. A witness may be impeached by the party against whom he was called by contradictory evidence, or by evidence that his general reputation for truth is bad, or that his moral character is such as to render him unworthy of belief. He may not be impeached by evidence of particular wrongful acts, except that it may be shown by the examination of the witness or the record of a judgment that he has been convicted of a crime.
Appellant contends that the 'customary mode of proof' contemplated by Civ.R. 43(g)(11)[b] required the prosecution to first ask him 'whether he had ever been convicted of a crime' and that the trial court's failure to adhere to this mode of proof requires reversal by this court. 10 This is the first occasion that we have been asked to answer this precise question.
Under the common law it was established that evidence of prior convictions was inadmissible to show guilt of the defendant. An exception to this general rule occurred when the defendant voluntarily submitted himself as witness. He then became subject to impeachment. 11 At common law it was also held that proof of an official record, such as a judgment of conviction, had to be established by a certified copy in preference to receiving testimony from a witness as to its contents. 12 Dean McCormick states that this rule of the common law:
[W]as applied in England to proof of records of conviction, so as to preclude the cross-examiner from asking about convictions. This practice still lingers in a few states, but the inconvenence of such a requirement, and the obvious reliability of the answer of a witness acknowledging his own conviction, have led most jurisdictions, by either statute or decision, to permit the proof to be made either by production of the record or a copy, or by the oral statement of the convicted witness himself. 13
In our jurisdiction Civ.R. 43(g)(11)[b] permits impeachment of a defendant-witness by evidence of prior convictions of crime to be adduced either by examination of the defendant-witness or by the record of conviction. 14 We hold that under the provisions of Civ.R. 43(g)(11)[b] it was not error for the lower court to have admitted the judgments of conviction into evidence without first requiring the prosecution to ask appellant whether or not he had been convicted of a crime.
We further hold that the judgments of conviction were also admissible under that portion of Civ.R. 43(g)(11)[b] which provides:
A witness may be impeached by the party against whom he was called by contradictory evidence, * * *.
Under this aspect of Civ.R. 43, the judgments of conviction (other than the 1958 robbery conviction) were admissible to contradict the inference arising from appellant's testimony on direct examination, to the effect that he had only been convicted on one prior occasion. 15
Appellant also urges that the lower court erred in allowing the judgments of conviction to be received into evidence because of the prosecution's failure to comply with Civ.R. 44(b)(2)'s conditions precedent for the admission of official records. Crim.R. 26(e) provides:
Proof of Records. An official or business record or an entry therein or the lack of such a record or entry may be proved in the same manner as in civil actions.
The admission of official records in civil actions is governed in part by Civ.R. 44(b)(2) which reads:
Conditions of Admitting Official Records. Any writing admissible under subdivision (1) shall be received only if the party offering such writing has delivered a copy of it or so much thereof of as may relate to the controversy, to each adverse party a reasonable time before trial, unless the court finds that such adverse party has not been unfairly surprised by the failure to deliver such copy.
We find no merit in appellant's argument that the four judgments of conviction were erroneously received into evidence due to the prosecution's failure to comply with the requirements of Civ.R. 44(b)(2). We mentioned earlier the grounds upon which appellant objected to the introduction of these exhibits at the trial. 16 Examination of the record reveals that appellant did not, at any time during the trial, object to the admissibility of the judgments of conviction on Civ.R. 44 grounds. We have previously held that we will not consider on appeal any objection which was not raised at the trial level. 17 Furthermore, we find nothing in the record to indicate that appellant was 'unfairly surprised' by any failure on the prosecution's part to deliver to defendant copies of the judgments of conviction a reasonable time before trial.
Appellant further contends that the admission of the judgments of conviction was so prejudicial as to require the setting aside of his conviction. What we have said in regard to appellant's first two contentions is applicable here and controlling. The chief thrust of appellant's argument at this point is that the impact upon the jury flowing from this documentary evidence of appellant's prior criminal convictions was prejudicially greater than what would have occurred if the trial court had initially limited the prosecution under Civ.R. 43 to an examination of appellant while on the witness stand. 18 In addition to our holdings in regard to appellant's first two contentions, we note that the record shows from the very inception of the trial appellant's counsel disclosed to the jury that appellant had been convicted and had served time in the penitentiary. 19 The record also indicates that this information was brought to the jury's attention by appellant's counsel (in substantially the same form) on three additional occasions. 20 And, as indicated previously, appellant on direct...
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