*1 verdict, a compel them to reach a jury to Fields by this
practice proscribed court State, It (Alaska 1971).2 procedure like
is conceivable that a prejudice at could
used the case bar in if undue
rights a criminal defendant by the jury on the
fluence were exerted er recognized
trial court. we have While properly objected not been
rors trial,3 this counsel at the defense presents objection
case not a lack procedure by the verdict participation but an active
reached defense of that decision
formulation appears on the no error
counsel. Because by the procedure followed
record and proper, must affirm.
court below was appellee on for the
As we have found issue, unnecessary to consid- it is
the main that another appellant’s
er assertion him place would greater offense jeopardy.
twice
Affirmed.
Joshaway Burl Davis DAVIS Joshua a/k/a Davis, Joshuaway Burl a/k/a Appellant, Alaska, Appellee.
STATE
Nos.
Supreme Court of Alaska.
July 28, 1972.
31(d)
poll,
Alaska R.Crim.P.
states as fol-
the
rence,
there is not unanimous concur-
may
jury
lows :
to retire
be directed
be dis-
for further deliberations
“When the verdict is returned and be-
charged.”
jury
fore it
is recorded
shall
polled
request
any party
47(b) ;
Hammonds
Alaska R.Crim.P.
upon
If, upon
the court’s own motion.
that at about noon the same he had seen standing two black men alongside a late model metallic blue Chevrolet sedan at the approached same location. He the shorter they two men and asked if needed *3 any help. black, He identified this man as mustachioed, wearing a black-brown macki- naw, and carrying Approxi- a crowbar. mately later, youth again minutes ob- served the two men and the automobile at the site. receiving report, Anchorage
After this can- Investigator George E. Weaver Police companies rental the automobile vassed Airway Rent- learned that area. He metallic blue A-Car had rented a 1969 Robert Wagstaff, H. Anchorage, for on Impala Joshuaway Chevrolet appellant. had returned February and that Davis Havelock, Atty. Gen., E. Juneau, John shortly February noon 16 to ex- after on Seaborn Buckalew, Jr., Atty., Dist. and J. The Rent-A-Car tend his rental contract. Charles M. Merriner, Atty., Asst. Dist. paid agent said that Davis had an additional Anchorage, appellee. for large and rolls from a roll bills two $50 quarters. OPINION Investigator then asked the child Weaver BONEY, Before J.,C. and CONNOR witness if he would come down ERWIN, JJ. Anchorage station in to look at some pictures. youth pictures The studied five BONEY, Chief seconds, Justice. approximately of black for men February On during Investigator which time Weaver the Polar Bar say in Anchorage was went about other and did not burglarized, business and a small safe weighing anything or in the in- any interest approximately show pounds spection. taken The then identified from the child back room. Joshu- he had away Davis as the man to whom Early following morning the Anchor- spoken and Andrew Leonard as the J. age Department Police received word from man he had seen near his home. Later Alaska that a had Troopers State safe picture agent selected the Rent-A-Car also along been a little-used side discovered among photographs. the five Highway, road off the 26 miles Glenn about Anchorage. Local residents had February Investigator On Weaver found the on in brush lying safe its side presented an before a district affidavit approximately 100 feet off the main road. judge requesting 'the issuance a warrant dial and and the The handle were broken the search both the residence open. bottom pried of the safe had been car Joshuaway Davis and the rented Troopers State indicated that possession. that his The affidavit recited discovery had reported been testify; competent the affiant Jess Straight, whose home was near the site of burglarized bar had been and the safe trial, the discovery. Straight’s stepson, At stolen; that the named child had observed youth probation burglary, on testified near at approxi- the two black his home men he, his stepfather, and his uncle first mately day; had noon same he p. viewed the safe at about 5:00 m. on and had spoken to the shorter man observed February boy wearing 16. The told that this man was brown and officers carrying ity” jacket proof rather than be the standard for type
black mackinaw probable crowbar; youth returned had cause.1 p. m. and approximately 5:00 to the area at review, Applying these standards safe; dust, fibers had observed af cannot with Davis that the had convinced affiant markings conclusory fidavit contained as from the burglarized safe was the one sertion that the Polar Bar been bur had Bar; investigation had Polar that further glarized. Investigator Weaver averred that a metallic blue Chevro- disclosed investigation own “revealed that Joshuaway let been rented to had safe above described was the one stolen 11; Airways Rent- February that both the from the Polar Bar.” a statement Such youthful agent witness at A-Car enabled the district to conclude with picture the scene had selected Joshu- out inferring undisclosed facts that the af- away among mus- Davis from the five personal fiant *4 knowledge had of the stolen blacks; shortly tachioed and that after noon hearsay safe. There is no informant con February as person on the identified nected with the actual commission of the Joshuaway his rental Davis had extended burglary. The scene of the crime was in agreement paid had an additional and $50 vestigated by an officer under direct the roll rolls large of bills and two supervision the police affiant. The work quarters. The affiant then stated his be- described the affidavit indicates the lief premises and the automobile police already had invested a substantial specified contained items of evidence as assumption number man hours on the well as “other of the crime. evidence” that a crime had been committed. The hearings Without further considerations or discovery of the broken safe itself in beyond affidavit, judge the the district dependently suggestive of a crime. premises issued search for the warrants Investigator Weaver’s are statements and the automobile. mere assertions of belief suspicions a crime They had been committed. I. facts and cumulatively circumstances which go far establishing toward the existence of Davis first that the affidavit of burglary, and providing toward the basis Investigator prob- provide Weaver did not for judge’s independent determination able cause the issuance of the warrants probable cause existed. they only conclusory because contain state- committed, ments that a crime been had and Moreover, in- portion of the a substantial given because the judge information district given to the formation was not the knowledge first-hand of the affiant. personal product work affiant. We cannot with either con- had inter- personally He that he averred tention. child, investiga- his and that own viewed youthful witness’ supportive evi- tion had corroborated determining whether exists, that Davis was question to be statement dence of a crime shortly after the a metallic Chevrolet issuing judge asked blue is whether the averred that both provided burglary. an further to make He sufficient evidence agent had selected independent the child and the rental probable cause finding of group of five photograph Davis’ the issuance of The United the warrants. wearing photographs of adult black males Supreme suggested has States Court quantity making “great mustaches. The nature appeal this determination supportive in the affidavit read- the is- evidence given findings deference” be present case from ily distinguish suing judge, that he not be “confined relies, upon which Davis Giordenello v. niggardly limitations,” “probabil- case (1969) Spinelli States, (cita 21 L.Ed.2d v. United tions States,2 vestigation. contain- United where affidavit officers determined only conclusory had de- ed statements. the man whom child witness youth scribed had rented a car which the Davis next contends that the information had The witness later also described. alleged obtained from the witnesses picture identified man whose hearsay, affidavit was and that police name the had obtained from another alleges reliability affidavit neither Similarly, the rental source. automobile informants, independently those nor cor- agent described man and identified required by roborates their statements as photograph. independent Each identifica- Aguilar v. Texas3 and v. United Jones strengthened tion the sense of States.4 making more re- each witness’ information upon hearsay While reliance does liable, enhancing probability that change cause, of probable standards information credible. it does add to the burden which be met must Also, hearsay by the affiant. The information must be present suspiciously case can be viewed less based personal on the observations of the because it not offer does information informant, about suspicions, beliefs, and not his se, per. a crime nor does it establish the hearsay.5 some form of double Absent existence of the crime. It is informative an allegation personal affirmative knowl- accusative; rather than supplemental rath affidavit, edge of the informant in the er than essential. The were inde supplied facts must be so detailed as to *5 pendently aware the commission of support an personal inference of knowl- Nothing hearsay crime. accused edge.6 addition, In the judge “must having Davis of committed that crime. informed of some of the underlying circum- The connection between the hearsay de stances . . . from which the [affiant] scriptions identifications, and and the fact concluded that the informant . . . was crime, of a is investiga the result the 'credible’ or his information ‘reliable’.”7 reasoning. tor’s deductive This reasoning reliability This might by be established clearly is set forth the affidavit for the demonstrating past reliability,8by independ- independent scrutiny of issuing judge. the ent incriminating by corroboration of facts police,9 through personal identity For these reasons we cannot find that the and person involvement of the giving the affidavit for the warrants was deficient. information.10 The search warrants obtained from case,
In the instant both state the above affidavit were executed that same by ments the witnesses independently were day, 18, February Although 1970. by corroborated the preliminary in- single contends sentence that 480, 2. 1245, 357 U.S. (1964) ; Davis, 78 S.Ct. 2 L.Ed.2d United States v. 402 E.2d (1958). 1503 (7th 1968). 171 Cir. 108, 1509, 3. Aguilar 114-115, 378 U.S. 12 Texas, 108, 84 S.Ct. L.Ed.2d 7. v. 378 U.S. (1964). 723 1509, 1514, 723, 84 S.Ct. 12 L.Ed.2d 729 (citations (1964) See also 257, 725, 4. 362 U.S. 80 4 S.Ct. L.Ed.2d Harris, 573, United States v. 403 U.S. (1960). 697 2075, (1971). 91 29 L.Ed.2d S.Ct. 723 g., States, Spinelli 8. E. States, 410, Smith United 123 U.S. v. United 393 U.S. (1966). App.D.C. 202, 833, 416, 584, 637, F.2d 835 358 89 S.Ct. 21 L.Ed.2d (1969) ; Aguilar Texas, 108, 378 U.S. Spinelli States, 410, v. United 393 U.S. 113, 1509, 723, 84 S.Ct. 12 L.Ed.2d 637, 417-418, 584, 21 L.Ed.2d 89 S.Ct. (1964) ; Both, United States v. (7th 1967). F.2d 507 Cir. States, Pendergrast v. United 135 U.S. Spinelli 410, States, App.D.C. 20, 776, 785, v. United cert. U.S. F.2d denied, 89 S.Ct. 21 L.Ed.2d 396 U.S. (1969) Aguilar ; McCreary Texas, (1969) ; Sigler, L.Ed.2d 243 (8th S.Ct. L.Ed.2d 406 F.2d Cir. seized, faith, and particularly property there to be conducted bad search was general The thus fail as warrants. that claim. must support no time. at for some the door knocked officers language cannot that this they across no answered went When one au gives executing “blanket officer key the landlord. get a alley to thority” “subjective and leaves him a door, Davis they unlocking As were intensity scope determination” of They showed opened it from inside. the addi of the search. consider that warrants, began arrested their re language tion of the “other evidence” po- car towed search. The scope of affirms rather than broadens the a more order to conduct lice station the listed search authorized fibers thorough for safe insulation search particularized items. is no evidence evidence. There and other Texas,11 ’is Stanford v. cited" Davis/ officers testimony indicating readily distinguishable. case turned That conducting the authority their abused largely on first amendment considerations. search. case, In instant published no materials further, however, seized, argues repressed. been nor No ideas sufficiently particular posed. were first warrants amendment threats items justify Similarly, the seizure of all Rice States12 United automobile war- distinguishable which were involved. The instant case. absolutely rant no gave authorized seizure that case the warrant description property be seized. property as evidence certain described reviewing court it defective held in- larceny ... failing the most to describe “even matching found cluding fibers those general way” subject to seizure. items scene, matching that the crime debris in this found on the safe held as evidence Davis also warrants case, paint matching paint flecks Bell failed to meet the test announced safe, relating to tools and other evidence *6 where we held that: of- the commission described above of a may officer seize [A]n fenses. . not though property such crime even war- in the search described particularly premises The warrant authorized the sei- and discovered objects when rant zure of of- related reasonably seized property certain described as evidence searching of- question, fense in when grand crime of lar- has a seizure the time of the ficer at ceny . including . . a cruved [sic] drawing a connection basis for reasonable mackinaw, crowbar, handled a brown objects the observed between boots or shoes with safe insulation fibers for the furnished basis crime which therein, imbedded and other evidence of warrant, such discovery of and the search the commission of the crime above de- good of a made the course property is scribed. . the author- search conducted within faith search perimeters warrant.13 ized Noting that the warrants authorized items seized evidence,” seizure of “other A of the inventoried perusal Davis con- us tends that both case present convinces warrants fail to describe 11. 379 U.S. 14.The inventoried items from the two war- 13 L.Ed.2d S.Ct. suspected mari- one rants were: vial twenty-one currency; juana ; a dollars (1st 12. 24 F.2d Cir. receipt; cigarette hold- a car contract and (Alaska 1971) (foot- er; packet li- of checks and driver’s note blanks; of miscellaneous cense folder pair boots; identification; tan all within evidence seized was the limits said that they proceed would not unless ruling of our in Bell.15 All of items counsel present, agreed was Soli that the particularly lineup either requested used at trial were de- which had by been Leon- ard him, scribed in the warrants or were sufficient- could be held without and said he crime, evidence, ly related to the the listed would send someone from his office to ob- satisfy serve it. purpose of the search At no time did see Soil requirements the participants of Bell. lineup other than suspects, two Leonard and Davis.
II. A college student-investigator attended next contends that he was denied lineup for the Public Defender Agency. right during lineup to counsel identi- He working had been for the Public De- fication, evidence of which was admitted Agency fender for about two months. He at trial. further contends that his major was a sociology at Alaska Methodist thereby in-court identification was tainted. University prior legal and had no training. Soli testified that he instructed At the student approximately February 10:00a. m. on 19, 1970, things in the kinds of to watch during Assistant Attorney District Rich- lineup. certain that ard R. Felton While these contacted instruc- Herbert D. Soil given tions Leonard, were respect Public Agency Defender to inform again him Soil testified that could lineup that a he not recall would be held that morn- ing. he was even aware that Davis was Agency While Public Defender going participate lineup. Leonard, was representing both Davis and suspect, assigned was Soil specific no finding made suspect. either He filling was in at the on the question of whether Davis rep- was time and claimed at trial that his recollec- lineup. resented counsel during the He tion transpired of what hazy was because of merely determined his limited involvement in the cases. spite that in S.U. Wade versus
There is conflict in the testimony court rights the defendant’s preju- were not concerning diced, whether representing Soil was lineup as held both Davis during lineup, proper; Leonard the evidence was shown that or whether representing Soli, he was only proper, it Leon- although Mr. ard. According testimony, only to Soil’s representing there, either defendant was requested Leonard had although the lineup. While he have on recollection be- confirming brought that Davis had been lieve that he there be- [sic] into pre-lineup Leonard, defendant, Leonard, interview with cause of the *7 testified repeatedly Soli that he could Mr. Felton not that indicated he was aware recall being ever aware that of Davis was both defendants and there was noth- going to participate lineup. ing in the actual to lineup proper. show the wasn’t I—I’m not following S.U. versus Wade the Because had some difficulty technically fully but think the I Su- finding blacks mustachioed wit- the preme Court of the United States has nesses Davis, to view with Leonard and receded somewhat from very strict lineup delayed until about noon. position. prior Soil had a engagement and was compelled to leave before ruling We cannot sub- jects could be judge rights assembled. When Felton trial afforded a sus- stocking; bag pieces iron; knotted silk a of a white one tire and three of card- pair substance; trousers; of a brown board. pair light trousers; pairs of tan two of decide, 15. We not need those items coveralls;
brown
a Colt
.45 automatic
burglary trial,
at
used
whether or
clip;
revolver with no serial number or
holding
represents
up-
not
of
Bell
plaid overcoat;
bags
four
of vacuum
(cid:127) per
permissible
limit on
seizures.
debris;
piece
rope;
cleaner
bags
of
four
paint samples ;
mats;
three floor
then
a number of factors
v. Wade16 can be Wade court
lists
by
States
pect
United
easily.
companion
applying
to be considered in
this test.21
In the
discounted so
California,17
right
case,
the same
Gilbert v.
determining
In
whether or not the court-
lineup identifications
to
at
counsel
independent
room identification was
through the
to the states
applicable
made
lineup,
must
we
mindful
the distinc-
be
fourteenth amendment.
“independent
tion between the
source”
exception
right
to
to the Wade-Gilbert
However,
need
decide whether
counsel,
“totality
and the
of circumstances”
during
represented by counsel
Davis was
applied in
test
the same court
Stovall
which
the court-
we find that
lineup
because
lineups.
pre-Wade-Gilbert
v. Denno
to
from source
room identification derived
independent
lineup, and that
of that
compelled
feel
to
a clear
draw
at
lineup identification
approaches
introduction of the
between
two
be
distinction
appears
trial
harmless error.
cause in this case the trial
applied “totality
of circumstances”
Supreme
said
In Wade the
Court
approach,23 and
a number of other
because
identification
cannot
the courtroom
jurisdictions have
the “distinc
obfuscated
excluded
by
protection
tion
offered
between the
giving
without first
the Government
right
counsel and the total
Wade-Gilbert
opportunity
clear
establish
ity-of-circumstances
criteria
convincing
in-court
proc
violation of
the courts measure a
due
upon observa-
were based
identifications
ess in identification confrontations.”24
line-
suspect
than the
tions
a line
evaluating evidence used at
up identification.18
counsel,
up
merely
con
without
we are
cerned with
fundamental
fairness
same as that
applied
The test
is the
to be
lineup.
are also concerned with
:19
Wong
States
announced in
Sun v. United
“
present
to be
in order
need for counsel
which instant
‘the evidence to
whether
prepare
to evaluate
circumstances and
come at
objection is made has been
sufficiently
provide
at trial
argument
exploitation
illegality
or instead
the defendant with his sixth amendment
sufficiently distinguishable to be
by means
”20
right
identifying
to confront
witnesses.25
primary
purged
taint.’
prior
lineup,
failure
1926,
218,
defendant
18 L.Ed.
388 U.S.
87 S.Ct.
identify
prior
on a
defendant
(1967).
2d 1149
lapse
occasion,
of time between
and the
1951,
17. 388
18 L.Ed.
U.S.
87 S.Ct.
lineup
alleged
identifica-
act and the
(1967).
2d 1178
It
relevant
consider
tion.
also
despite
218, 240,
1926, 1939,
which,
the absence
facts
those
U.S.
87 S.Ct.
concerning
(1967).
counsel,
are disclosed
L.Ed.2d
lineup.
conduct
19. 371
L.Ed.2d
U.S.
S.Ct.
at
at
388 U.S.
(1963).
(footnote
at 1165
L.Ed.2d
Wade,
United States v.
U.S.
293, 302,
L.
IS
S.Ct.
U.S.
1165, quot-
1033 sub- focuses on the error test which did not make Wade- the Court The fact that they stantiality of the error.*29 effects suggests that the retroactive Gilbert However, recognized at the time we also change prior identifica envisioned a had Supreme Court protections. that the United States requirements and While tion Chapman rejected substantiality a test in it con said that would the Court Stovall involving cases sur v. California30 for all totality of circumstances sider the protections. Such identification,*26 Court federal constitutional rounding the same the hold today; in order to and the case before us that the circumstances said Wade any use of the line of at harmless in the lineup was one error conduct of the evidence, ap up declare we “must be able to considered least factors to be seven beyond rea a belief that it harmless origin was plying independent test.*27 the 31 sonable doubt.” the in the instant case note We case, the identification youthful opportunity In the instant prior witness had prosecution’s to the and talk with Davis at Glenn was crucial observe location, However, already deter- Highway he identified case. we have lineup, inde- picture prior mined that the identification was en- lapse time significant youth’s no pendently that there was established lineup road, pho- alleged and the later act between counter on the Moreover, lineup would it does such that tographic identification identification. placed influenced significantly refreshed and appear prosecution not further identification. emphasis lineup his courtroom identification much on discrepancy lineup is no between note that there picture at trial. While description by the child and pre-lineup youth the witness by the on identified youth had appearance The stand, of Davis. as picture never introduced erroneously person hand, identified own Davis’ evidence. On prior he failed lineup, dwell, nor had jury, of the did front counsel identify any prior Davis on occasion. youth’s courtroom point of whether coupled earlier identifications the line- independent of identification negative persuade absence of such factors Finally, up identification.
us that identification was the courtroom the identifi- any of comment on made no independent lineup. cation evidence. independence of the iden- on the Based conclude that the use of We also insignificant tification evidence lineup was harmless error. trial, we lineup played part the State,*28 adopted In Love v. a harmless swayed by substantially scrutiny trial, subject ment was at to effective In Roberts v. deprived right P.2d at 63Í. error.” 457 the accused is 1969), 340, (Alaska State, 342 P.2d 458 is an es- of cross-examination which the error as whether right was stated safeguard test to his con- sential jury’s de- “appreciably affect[ed] him. the witnesses front guilt.” appellant’s 1936, termination 235, at 18 L. 388 at 87 S.Ct. U.S. at 1162. E'd.2d 18, 824, U.Ed.2d S.Ct. 17 30. 386 87 U.S. 1967, 302, at at 87 S.Ct. 26. 388 U.S. L.Ed.2d at 1206. California, Chapman U.S. L. at 87 S.Ct. L.Ed.2d supra See note 21 Ed.2d at 1165. State, Bargas (1967) ; accord, P.2d listing particular to be factors 1971) Spaulding (Alaska ; 130, 133 considered. 1971) ; (Alaska State, P.2d P.2d P.2d Fresneda City Rubey 1969) ; (Alaska of Fair stated that test to be the same as (Alaska banks, 477-478 adopted *9 in that Kotteakos United State, 1969) ; P.2d States, Thessen 1969). (Alaska judg- (1946), “that L.Ed.2d jury is no that exposure There direct evidence Davis little
convinced any possession time of lineup of was over- was at the fact safe. had to hand, viewing evi- the evidence by the other identification On shadowed state,” dence, probable estab- “most favorable circum- had no effect and possession quite is prosecution’s case before stantial evidence of lishing the Hence, persuasive. to declare that seen at site of jury. we able hand, beyond doubt that safe crowbar in the broken with a we believe reasonable of error. and the in the trunk his car any error was harmless fibers were the same which substance insulated III. an appeal the stolen safe. this were If posses- charge and conviction erred contends that the court next stolen no goods, sion of we would have of denying judgment his motion for difficulty concluding this case “illus- prosecution’s acquittal at the end of the high certainty degree trates of which no evi- case. He there was through can achieved circumstantial connecting crimes of dence him to the evidence,”33 and that because fair-minded larceny; he burglary and that at best judgment men of could differ reasonable placed discovery at the scene of the later question on the the facts guilt, of should seen safe; of and he never be submitted to jury. motion possession safe. Davis’ in this But case it is not sufficient at trial was based the contention possession infer in order to convict. alone possession circumstantial of mere charged defendant is larceny is go or to sus- jury insufficient to the burglary. exercising The fair-minded men larceny. tain of burglary a conviction judgment reasonable infer must the crimes is settled court that when It well larceny burglary of from the infer- sufficiency of appellant challenges an Hence, possession. ence of this is a case judg- supporting the evidence a verdict requires pyramiding which of in- an ment ference of upon theft an inference of possession. past we have cautioned must take the of evi- view “building upon inference inference dence and the inferences therefrom most present adequate without data” would to the favorable state. he determines If very grave danger of a criminal conviction of that fair minded men in the exercise speculation.34 founded on The facts of judgment reasonable could differ on the require analy- case cautious the instant question guilt has been es- whether sis. doubt, beyond tablished a reasonable must then he submit case The evidence possession the safe
jury.32 case, though circumstantial, the instant comparable persuasiveness any In order fair- determine whether minded men in the direct exercise of reasonable evidence short of defendant judgment question being caught could differ on the with the safe in Be- hand. guilt, necessary path per- it is cause the evidence trace so suasive, reasoning pres- which man fair-minded must cannot conclude traverse to arrive ent double level in- the conclusion of case demands that guilt larceny beyond adequate ference “without data” present danger reasonable doubt. would conviction State, State, (Alas- 32.Bush P.2d Jordan P.2d 1964) (footnote 1971). Accord, (Alaska ka State, (Alas- Jordan v. 481 P.2d State, 369 P.2d 882-883 1971) ; State, ka Allen v. (Alaska (Alaska ; 1966) see Tarnef v. 116-117
1035 require grant- to possession hold sufficient Thus we of speculation. founded acquittal. of required ing judgment his motion for of only inference significant that the inference of jury agree with Davis. cannot larceny possession. upon v. language State specifically rejected he relies which is that what Wigmore suggests that fair- conclude v. State.39 We inference minimally permit to an required Jordan judg exercising reasonable minded men pos is that the from possession of theft had ment could conclude that Davis fairly exclusive, unexplained, and session be necessary exclusivity of control. commission of in time to the close of majority jurisdictions crime.35 The hold, therefore, judge that the trial follow this rule have held grant motion refusing not err in to did possession of questions whether judgment acquittal. for of sufficiently sufficiently exclu recent and IV. guilt justify
sive
an inference of
Thus, ac
questions
jury.36
of
for the
fact
judge
urges
Davis next
trial
sufficiency
cording to
our standard
permitting
in not
the defendant
erred
evidence,
rule on
should
concerning
witness
cross-examine the child
of law
question
exclusivity
as matter
Recog-
prior
the nature of his
record.
evidence that
when the
on im-
nizing
majority
of cases
persuasive that
is so
was not exclusive
by juvenile
record
peachment of a witness
exercising reasonable
fair-minded men
him,40
appellant
wishes
with that con
judgment could not differ
claims not to be
distinguish
case. He
clusion.
impeaching
youth,
but
interested
bias, prejudice or
rather
show
desires to
upon
primarily
Davis relies
n motive
in that
under
the witness was
State,37
all the
held that where
where we
himself
pressure
suspicion
to shift
circumstantial,
it is
guilt
evidence of
to another.
upon
evi-
produce
state
incumbent
every
excluding
re
dence
circumstances
court
In Whitton
State41
guilt.38
hypothesis but that of
permit
reasonable
fused to
cross-examination
showing
the evidence
mo
witness to determine whether he was
the safe was
presence,
at the site
state
ex
testify
where
tivated to
for the
an
discovered,
role
pectation
immunity
of another man whose
for his own criminal
de-
positively
never
primary
criminal act was
held
acts. We
that “when the
exclusivity
upon
termined
cast doubt
to estab
objective of cross-examination is
Wigmore,
2513, at
IX J.
Evidence
law
§
not
even where
record
be elicited
(3d
1940).
concerning
permits
ed.
cross-examination
;
impeachment)
“acts of misconduct”
(/.,
Downing,
36. B.
State v.
Or.
Wilson, Wash.App.
State
(1949).
generally,
See
(1970)
(juvenile
inad-
record
P.2d 413
Wigmore,
§
Evidence
at 422
IX J.
“crime” as
rules
missible because
(3d
1940).
ed.
required
impeachment).
See
Wigmore,
generally,
in IIIA J.
1962).
eases cited
(Alaska
37.
I concur
the court’s
testifying.”
motive for
Cross-examina-
Davis’
felon in
conviction
the crime of
of
expectation
tion to show bias
because
should be affirmed. On
synonymously
‘posses-
with
Knowledge
posses-
are not used
prerequisite
is a
.
.
. One
.
.
. exer-
sion,
custody. Egner
sion.’
control or
over,
in his
what
is not
cise control
Notes
notes Procedure, Alaska Rules Children’s majority bar, the believes In the case at inapposite The accused’s fundament here. right of con- that Davis’ constitutional witnesses right al confront adverse coun- satisfied because his frontation was pro outweighs him interest mo- possible sel “alluded both ulterior juvenile tecting a witness from disclosure possibility tives child and prior adjudication delinquency of his that the child’s identification arose disposition ord and from disclosure of the view, far apprehension.” my In this falls light er.2 prefer of this court’s stated rights guaran- short of the confrontation liberality ence of cross-examination concerning Vague speculations teed Davis. prosecution respect witness possibility ulterior motives testifying, motive or bias I reach juvenile of Davis witness’s identification Davis’ conclusion that the case at bar apprehension hardly ade- arose rights improperly were confrontation quate bringing substitutes for home to I curtailed.3 therefore conclude