State v. Wickham

• Decision Date: 03 August 1990
• Docket Number: No. S-3233,S-3233
• Parties: STATE of Alaska, Petitioner, v. Phillip J. WICKHAM, Respondent.
• Court: Alaska Supreme Court

Page 1354

796 P.2d 1354

STATE of Alaska, Petitioner, v. Phillip J. WICKHAM, Respondent.

No. S-3233.

Supreme Court of Alaska.

Aug. 3, 1990.

Cynthia M. Hora, Asst. Atty. Gen., Office of Special Prosecution and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for petitioner.

Marcia E. Holland, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for respondent.

Before MATTHEWS, C.J., and BURKE and MOORE, JJ.

OPINION

MATTHEWS, Chief Justice.

Phillip J. Wickham was tried for manslaughter and third-degree assault. In an in limine ruling, the trial court decided that if Wickham testified the state could impeach him with evidence of prior convictions. Wickham chose not to testify and was convicted. On appeal, the court of appeals held that the ruling was reviewable even though Wickham did not testify, but reserved making a final disposition pending remand for further proceedings in the trial court.

We granted the state's petition for hearing to decide whether criminal defendants must testify to preserve for review a claim of improper impeachment by prior conviction. We hold that criminal defendants must testify to preserve this issue for review, but give our ruling only prospective application.

FACTS AND PROCEEDINGS

In September 1982, Wickham entered pleas of no contest to two counts of perjury for testimony given when being tried for driving while intoxicated and driving with a suspended license. In February 1983, he was given a suspended imposition of sentence and was placed on probation for three years. Wickham appealed, and sixteen months later the court of appeals affirmed the convictions.

In August 1986, Wickham was involved in a motor vehicle accident which killed the other driver and seriously injured a passenger in the other car. Wickham was indicted on manslaughter and third-degree assault charges. The state suggests that he was driving while intoxicated.

While awaiting trial, Wickham moved to set aside his 1983 perjury convictions, claiming that he had successfully completed his probation. The trial court denied the motion, finding that Wickham was still on probation. The court reasoned that Wickham's probationary period was automatically tolled under Appellate Rule 206(a)(3) for the sixteen-month period during which Wickham's appeal of the convictions was pending. ¹

Prior to Wickham's trial, the state filed a notice of intent to use the perjury convictions to impeach Wickham if he testified. Wickham opposed the notice and, at trial, the state reiterated its intent to impeach Wickham with the convictions if he took the stand.

At a hearing on the issue, defense counsel indicated that Wickham would testify at trial, but only if the prior convictions could not be used for impeachment. Through counsel, Wickham also made an offer of proof concerning his expected trial testimony. Apparently, Wickham would have told the jury that he was an epileptic; that he could not consume large quantities of alcoholic beverages; that on the day of the accident he drank only a small amount of alcoholic beverage; and that the accident was caused by an epileptic seizure.

The trial court ruled that, if Wickham testified, he could be impeached with his perjury convictions under Alaska Rule of Evidence 609. Wickham did not testify. The jury found him guilty of manslaughter and third-degree assault. The trial court then sentenced him as a second-felony offender.

Wickham filed two separate appeals. The first challenged the trial court's order denying his motion to set aside the perjury convictions, and the second challenged the trial court's Rule 609 ruling. The appeals were consolidated for decision by the court of appeals. See Wickham v. State, 770 P.2d 757 (Alaska App.1989).

The court of appeals held that the trial court erred in ruling that Wickham's probation was automatically stayed and in denying Wickham's motion to set aside the perjury convictions on that ground. Id. at 760, 764. Accordingly, the court remanded the case for a set-aside hearing and indicated that Wickham could renew the appeal should the trial court find that Wickham is The court of appeals next held that it could address the substance of Wickham's claim of improper impeachment. The state, relying on Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), argued that Wickham had not preserved the issue for review because he did not testify at trial. The court declined to follow the holding in Luce, and found that the record was adequate for review even though Wickham had not testified. Wickham, 770 P.2d at 760-63.

                not entitled to a set-aside.  Id. at 764-65.   If granted a set-aside, Wickham would be entitled to resentencing as a first-felony offender.  Id
                

On the substance of Wickham's claim, the court of appeals decided that the trial court did not abuse its discretion in ruling that the prior convictions were more probative than prejudicial, and thus use of them for impeachment was permissible under 609(a) and (c). ² Id. at 763. However, the court could not decide whether resort to the convictions was precluded by Rule 609(d). ³ The question turned on (1) whether a conviction comes within, and is thus rendered inadmissible under, 609(d) once set aside and, if so, (2) whether the conviction must be set aside at the time of trial to come within 609(d). Id. at 763-65. The court requested additional briefing of these issues and retained jurisdiction pending remand for a set-aside hearing. Id.

The state sought review in this court, contending that a criminal defendant must testify at trial to preserve his right to appeal a trial court ruling permitting the use of prior convictions for impeachment purposes. We granted the state's petition for hearing.

DISCUSSION

The state urges this court to adopt the holding of Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984): "to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." Id. at 43, 105 S.Ct. at 464, 83 L.Ed.2d at 448.

In Luce, a defendant in a federal criminal trial moved in limine to prevent use of a prior conviction to impeach him if he testified. The district court denied the motion, finding the conviction admissible under Federal Rule of Evidence 609(a). ⁴ The defendant did not testify and was convicted. On appeal he argued that the in limine ruling was an abuse of discretion. The circuit court of appeals held that the ruling was nonreviewable because the defendant did not testify.

In a unanimous decision the United States Supreme Court affirmed, thus requiring federal criminal defendants to testify to preserve for review a claim of improper impeachment with a prior conviction. Id. The Court gave two reasons for its conclusion, both of which derive from one basic concern: "A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context." Id. at 41, 105 S.Ct. at 463, 83 L.Ed.2d at 447. First, the Court reasoned that because Rule 609(a) requires a weighing of the probative value of a conviction against its prejudicial effect, an appellate court is handicapped in making an abuse of discretion determination absent a record disclosing "the precise nature of the defendant's testimony." Id. The Court added that an offer of proof is no solution because the defendant's "trial testimony could, for any number of reasons, differ from the proffer." Id., n. 5.

Second, the Court explained that even if a trial court's in limine ruling proved to be incorrect, an appellate court is handicapped in making the harmless error determination. The Court stated:

[A]lmost any error would result in the windfall of automatic reversal; the appellate court could not logically term "harmless" an error that presumptively kept the defendant from testifying. Requiring that a defendant testify in order to preserve Rule 609(a) claims, will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to "plant" reversible error in the event of conviction.

Id. at 42, 105 S.Ct. at 463-64, 83 L.Ed.2d at 448. The Court also identified the following factors which make the harm allegedly flowing from an erroneous in limine ruling "wholly speculative":

(1) The ruling is subject to change should the defendant testify;

(2) The reviewing court cannot be certain that the prosecution would have used the prior conviction to impeach unless the defendant testifies; and

(3) The reviewing court cannot be certain that the defendant's decision not to testify resulted from the adverse in limine motion.

Id. at 41-42, 105 S.Ct. at 463, 83 L.Ed.2d at 447-448.

Since the Luce rule was adopted pursuant to the Supreme Court's advisory power, it is not binding on the states. People v. Collins, 42 Cal.3d 378, 228 Cal.Rptr. 899, 722 P.2d 173, 177 (1986). Indeed, this court has an independent power to promulgate rules of state criminal procedure under article IV, section 15 of the Alaska Constitution. State v. Williams, 681 P.2d 313, 315-19 (Alaska 1984). However, we find it persuasive that Luce was a unanimous decision and that a majority of state courts addressing the issue have adopted the Luce rule. ⁵ Moreover, we believe that the justifications underlying the Luce rule apply with equal force to Alaska criminal practice. Therefore, we adopt the Luce rule as a rule of state criminal procedure.

Wickham argues for a more flexible rule, which would permit appellate review so long as there is no "factual vacuum" in the trial court record. We recognize that, in some cases, the correctness of the trial court's ruling can be readily determined without the need for a concrete record. For example, in Wickham's case, his prior convictions for perjury have a rather obvious bearing on a character trait for untruthfulness. Moreover, because...