*1 reasons, For similar neither are we effect and concluded that the evidence compulsory convinced the defendant’s admitted, should accompanied by if process18 and due claim that he was de instruction, limiting given, that was later “ prived ‘might that have led of evidence allowing the jury only to consider it a reasonable doubt jury to entertain determining whether the ac- ” Catlett, guilt.’ about defendant’s wilfully specific cused acted and with the omitted). (citation Though the P.2d at 557 light intent to steal. In of the other evi- might the live have con tone of statement case, dence in the I say am unable to that minimally argu to Oksoktaruk’s tributed reaching the court erred in that conclusion. Mack jury ment to the that concocted a himself, story to save was in that
formed on several occasions
Mack had
strong
cooperating
self-interest
Braham v.
state. See
1977),
denied,
cert.
436 U.S.
98 S.Ct.
Nonetheless, it is
and the state
concedes,that the routine
destruction of
Rodney ADKINSON, Appellant,
James
tape recording
spirit
violated the
of Crimi
16(b)(l)(i)
(iii),
require
nal Rules
and
Alaska, Appellee.
STATE of
prosecution
produce any
“recorded
by a
statements” made
co-defendant or
No. 3506.
anyone
knowledge.
with relevant
See Cat
lett,
Braham,
Supreme
Court Alaska.
such and our courts should
critically given examine excuses for de
struction.
The conviction is REVERSED.
RABINOWITZ, J., participating.
BURKE, Justice, dissenting part.
I believe the evidence of Oksoktaruk’s prior burglary
commissionof a was admissi- Kelly’s
ble to show that he entered Photo steal, given
Lab with the intent Thus, burglary.
details of the earlier I
disagree majority’s with the conclusion that superior court committed reversible er-
ror when it the state allowed to introduce carefully weighed evidence. The court probative against prejudicial value its tape gation, during promise by police recorder was turned off his interro- tains a to note Mack’s replied only cooperation. this occurred portion Mack stated that this having difficulty understanding when he was the candidly transcription reflects the “deal” he questions being put to him. Mack also police. discussed with the pred- admitted that his confession was large part hope
icated in that he would V, respectively; 18. U.S.Const. amends. VI and lighter cooperated. receive a sentence if he Const, I, 7, respectively. Alaska §§ art. transcription tape recording con-
gent homicide under AS 11.15.080.2 Both charges from an incident oc- arose 10, 1976, on October when Steven curred brother, friend, Butts, David, and a Jim Leonard, returning to were their truck af- overnight camping along trip ter an *3 They Knik River. had cut across Adkin- land, they approached son’s and as his cab- in, Adkinson, a shotgun, armed with walked they to out meet them. He told them land, trespassing were on his and that he wanted to After a brief them turn around. exchange Butts and verbal between Steven Adkinson, gun discharged, strik- Adkinson’s killing ing range at close and him. Butts jury, which Adkinson was tried before a manslaughter of guilty verdicts of returned negligent and not of homicide. years court sentenced Adkinson ten im- prisonment possibility parole with the of parole left to the discretion of the authori- ties. appeal, raises five issues:
On (1) admitting Did the trial err in court evidence of similar acts? (2) admitting Did the trial court err in regarding evidence the boundaries to Ad- kinson’s homestead? (3) possibly there ex- Was destruction of Petersen, Anchorage, appel- A. Lee for culpatory investigating of- by the lant. right violated to due ficer which Adkinson’s Mannheimer, Gen., Atty. An- David Asst. process? Gen., Gross,
chorage, Atty. M. Ju- Avrum (4) refusing Did the trial err in court neau, appellee. for for grant motion a new trial? Adkinson’s RABINOWITZ, J., Before and CON- (5) imposed on Adkin- Was the sentence BOOCHEVER, NOR, BURKE and MAT- son excessive? THEWS, JJ. find We the trial court did err on of these issues and affirm the conviction.
OPINION I MATTHEWS, Justice. PRIOR SIMILAR ACTS EVIDENCE OF charged in a two-
James Adkinson
trial, prosecution
count indictment with the offenses of man-
At
and defense witness-
how
negli-
differing
slaughter under AS 11.15.0401 and
es offered
accounts
provides:
provides:
AS
1. AS
11.15.080
11.15.040
Every killing
being by
Except
provided
of human
the cul-
of this
§§
as
10-30
another,
killing
person
unlawfully
pable negligence
chapter,
who
anoth-
when
kills
degree,
guilty manslaughter,
punisha-
or
is
is not murder
the first
second
or
er is
and
excusable, manslaugh-
by imprisonment
penitentiary
justifiable
is not
is
in the
ble
ter,
year
punishable accordingly.
more
and is
not less than one
nor
than
years.
shooting
companions
evidence,
Butts’ two
occurred.
it was character
ror because
upset
prohibited by
testified that Adkinson was
as he which is
Alaska Rule of Evi-
them,
approached
although they
and that
404(b)3 except
dence
specific
certain
conciliatory,
belligerent,
were
Adkinson was
cases which do not
here. He
apply
contends
around,
waving
eventually,
his
and
the introduction of the evidence was
Butts,
he was within
when
inches of Steven
portraying
him as a
pointing
gun directly
at him moments
person with
predisposition
to commit this
it discharged.
before
Adkinson took the
sort of crime.
point-
stand in his own
defense
denied
beyond dispute
It
that where evi
ing
at Butts. Both Adkinson and
acts is relevant
dence
other crimes or
his wife testified that
character,
prove
one’s
to show that
pointed to the side of Butts. Adkinson
he acted in
occasion
agitated, “building
testified that Butts was
character,
it is not
conformity with that
up
frenzy,”
attempted
himself
into a
*4
This is because of the
admissible.4
unfair
hands,
grab
from Adkinson’s
impact
such evidence tends to have.
It
thereby pulling it towards himself when it
give
persuasive
that the
rise to a
inference
discharged.
guilty
charged
of the crime
defendant
is
The Adkinsons also testified that Adkin-
person.
a
When this
because he is
bad
very
son was
weapons,
careful in the use of
occurs,
effectively
has
defendant
been
would never
person,
at another
right
against
par
to defend
denied his
rebuttal,
and had never
so.
done
On
charged.5
ticular crime with which he is
prosecution
testimony
offered the
of two
However,
it
separate
equally
witnesses who described two
inci-
is
well-estab
dents when Adkinson
at sus-
lished that
where the evidence of
pected trespassers on his land. Adkinson
crimes or acts is relevant to a material fact
objected to the admission of this evidence
trial,
in the case at
it does not fall within
grounds
prejudice,
of irrelevance and
but
prohibition.6
This court has admitted
against
the trial court ruled
him.
crimes, wrongs,
evidence of other
or acts
motive,7
where it
prove
has been offered to
appeal
Adkinson’s first claim on
is that
9
purported
intent,8
the admission
pri-
identity
of evidence of
or
stage”
has “set the
for
similar
trespassers
being
acts towards
was er-
the crime
tried.10
404(b) provides:
danger
The
is enhanced where the other acts
3. Alaska R.Evid.
criminal offenses for which the
crimes,
also constitute
wrongs,
Other
or acts. Evidence
charged,
then he
defendant was
crimes, wrongs,
other
or acts is not admissi-
convicted because of those offenses rather than
person
prove
ble to
the character of a
because he is
of the one with which he is
conformity
he
order to show that
acted
charged.
however,
may,
It
be admissible
therewith.
motive,
purposes,
proof
for other
opportunity,
such as
State,
404(b);
6. Alaska R.Evid.
Frink v.
597
intent,
preparation, plan, knowl-
154,
State,
(Alaska 1979);
P.2d
169
Eubanks v.
identity,
edge,
acci-
or absence of mistake or
726,
(Alaska 1973).
516 P.2d
729
dent.
also,
404(b).
Oksoktaruk
See
4. Alaska R.Evid.
170;
State,
Gafford
Frink v.
ed
611
contends that even if
in Oksoktaruk v.
The
(Alaska 1980)
admissible,
and Eubanks v.
516
evidence was
the trial court
726,
(Alaska 1973),
pri-
failing
give
limiting
Adkinson’s
erred in
instruc-
2246,
(Citations omitted).
pro-
(1978);
Alaska R.Evid. 403
II stead boundaries evidence would be harm- less.18 EVIDENCE OF ADKINSON’S
HOMESTEAD BOUNDARIES Ill presented
Extensive
concerning
trial
the formal boundaries of
OF POSSIBLY
DESTRUCTION
theory
The state’s
Adkinson’s homestead.
EXCULPATORY EVIDENCE
introducing
evidence was that the
this
Lewis,
questionable, Adkinson
Trooper Gary
boundaries were
one of
State
this,
aware
and thus also aware that
at the scene of
the first officers to arrive
perhaps
companions
were not
Butts and
shooting,
possession of Adkinson’s
took
trespassers
property.
on his
in fact
trial,
shotgun. At
he testified that he han
purport
would
thrust of such a conclusion
dled the
before it was sent for
question the reasonable
edly be to call into
analysis
fingerprint expert,
to a
John
of Adkinson’s reaction to the victim’s
ness
gun,
of the
Upon
Sauve.
examination
be relevant to the
presence, which would
only Trooper
prints,
Lewis’
Sauve found
negligent homicide count.
near the end of the barrel.
Adkinson contends
Trooper Lewis’
Adkinson contends that
serving
highly prejudicial,
irrelevant and
handling
shotgun destroyed any fin-
portray the defendant as “a
primarily to
might
gun.
have been on the
gerprints that
person
greedy and vexatious
who acted
it is the central claim of his defense
Since
bad faith.”
pulled it
grabbed
that Butts
*6
discharged,
towards himself before it
Ad-
Although
difficulty
we have
under-
of Butts’
presence
kinson contends that the
evidence, and
standing the relevance of this
“absolutely
was
fingerprints
gun
on the
so much time at trial
it is unfortunate that
guilt
of his
or inno-
crucial to the
dispute over the home-
was consumed in the
cence,”
alleged destruc-
boundaries,
and that the state’s
believe that it
stead
we do not
exculpatory evidence denied him
jury’s ver-
tion of this
appreciable
an
effect on the
had
guilty
process
due
of law.19
jury
dict. The
found Adkinson not
ess,
47(b).
backpacks’
for the
contents
have con-
16. Alaska R.Crim.P.
weapons
tained
or other evidence that would
provides
part:
in
17. Alaska R.Evid.
boys’ credibility
affected the
at trial. Ad-
have
ditionally,
as to
When evidence which is admissible
pack
he claims that the size of Butts’
party
but not admissi-
one
or for one
ability
pertinent
to the witnesses’
to ob-
pur-
party
as to another
or for another
ble
incident. We find no merit to these
serve the
admitted,
court, upon request,
pose is
the
produced
arguments.
pack was
at trial
Butts’
proper scope
to its
shall restrict the evidence
examine,
jury to
and we cannot see that
[Emphasis
jury accordingly.
the
and instruct
pack were relevant to
the contents of the
added].
disputed
in Nich-
the
issues. What we said
of
also,
Frink v.
597 P.2d at
See
1977)
535 expressed new This previously A motion for a trial based on court has falls newly claim discovered evidence of its approval prosecutorial dicta use of discretion the trial within the sound evidence an which contradicts accused’s tes- judge appeal will be disturbed on State, timony. 486 In Freeman v. P.2d 967 Johnson if there is an abuse of discretion. (Alaska 1971), involving the a case admissi- 762, (Alaska State, 1972).23 v. P.2d 765 501 bility conviction, prior an accused’s we trial judge’s We conclude that the decision acknowledged that although in a footnote discretion.24 not an abuse of to the not be found have defendant opened past the acts of door misconduct
V
issue,
by putting
his character
SENTENCE
An
situation
altogether different
arises
The trial court sentenced Adkinson
accused,
generally
where
instead of
possibil
with
years imprisonment
to ten
is
contending that his character
inconsist
ity
parole left to the discretion of the
type
ent with
of offense
ap
final
parole
board. Adkinson’s
on
affirmatively
he is
denies ever
charged,
peal
is that this sentence
excessive.
trouble,
specific
having
or makes
been in
sentence,
In
the trial court con
imposing
as
on certain
claims
to his conduct
occa
sanction would be nec
cluded that a severe
cases,
past.
sions in
In such
evidence
goals
essary
give
effect
of criminal
by
the accused has fre
misconduct
Chaney,
sanctions as articulated
State v.
quently
admissible in
been held
order
1970).
(Alaska
cient of this evidence.
tion fact, point circumstance, deny he would the applies. the the trier or In that bad acts cross-examination, brought on the been out direct on case too have evidence must by impeachment received, contra- allow this examination to would excludable evidence diction. the would time to contradict. While instance, limited, [Wjith respect to evidence excludable under in the latter still be least specific provision exclusionary in the Rules of Evi- party some dence, whose benefit statutory constitutional or some designed altogether lose rule was power would by paves principle, the witness a denial protection. to claim most of through way the use of for contradiction Mueller, § Louisell and 3 Federal Evidence only if denial came out on such evidence (1979). at 500-01 If it witness. were direct examination otherwise, al- if excludable evidence were placed impeachment limit on on the denial of witness lowed cross-examination, contradict subject of is that contradiction would be to re- result impeachment not be collateral. a hollow shell: the rule of exclusion to duce (2d ed. of Evidence § Handbook Law Either the witness would concede Ap- Saltzburg, 1972); Lempert A Modem cross-examination, in which case the ex- proach Evidence effectively would be before cludable evidence