*1 but proper- assertion that eminent appropriate- relies domain cases is more ty ly subject testimony owner to should be able recover for “in- expert measur- fringement upon pleasure the individual ed an objective damages. or standard of personal pleasure.” Further, properly Such a he asserts course followed here- argues this is an action for waste in. damages distinction between for superior The judgment of the court is opposed waste damages trespass as for affirmed. is axiomatic.16 BOOCHEVER, participating. J., legal
Our review the authori purported ties casts extreme doubt on the distinction the rule damages between trespass.
for and for waste No dis such legal tinction is made authorities in damages formulating a for rule under cir Appellant, GRIGGS, Marie cumstances similar to the case at bar. The only difference between the two doctrines Alaska, Appellee. party charged
is that if the with destruc- STATE rightfully possession tion of is the trees No. 1400. waste, property guilty if not he is Supreme of Alaska. Court trespass.17 he has rule of committed March 1972. damages, however, is the same in either no error in in
case. thus find admission the ex given struction or pert testimony appraiser. of the real estate
Finally, appellant’s assertion recovery infringe that he for is entitled to upon pleasure prop ment his individual as erty law18 owner is at odds both logic. standard would make Such upon damages basically turn award plaintiff’s personal testimony as to his
feelings damages rather than on actual property. to the property owner While permitted testify as to the market val land,19 ue of his it clear that the amount damage property trespass as 16.Appellant mony Thompson, Appellant how 1.8, Torts case of ilar, tion cases. The two rules are Of. certain (Sackman, Harper being 4A damage at improper, § Nichols, any severance they identical & also Real 3d rev. ed. (1956) ; characterizes at 66 basis James, to the are both based on but we are unable to as- argues damage Eminent Domain Property (4th damages to those The Law of W. remaining this ed. instruction 1971) Prosser, § 1853 assertion. Of. this is some- given expert condemna- quite property. recovery Torts Law § (1961). C. Mc- 14.21 given testi- 4 G. sim- § 17. We Torts apellant point assertion Law of Torts at C. 1Of. Cormick, (La.App.1969). [2] See Foster McCormick, (1935). (Sackman, freely § (1935). Harper Nichols, 1.8 great has made Law of cite Beard, at 27 concede § depth Law of & 3d rev. Eminent legal James, at 66 (1956) W. Damages 221 So.2d consideration somewhat authority Damages ed. (4th Domain ; § ed. failure of difficult. Law of Prosser, for his 1971) § of his § 19.4 at ; *2 Wagstaff,
Meredith A. De- Asst. Public fender, Defender, Soil, Herbert D. Public Anchorage, appellant. Atty.,
Robert Eastaugh, Asst. Dist. Sea- Buckalew, born Jr., Atty., Dist. Anchor- J. age, Havelock, Gen., Atty. Juneau, E. John appellee. BONEY, J., Before C. RABINO- WITZ, ERWIN, CONNOR and JJ.
OPINION
CONNOR, Justice. appellant, Griggs, Marie larceny person victed of and re- 4-year years ceived a with 2 sentence probation. serve and 2 raises on She specifications appeal: three error in this process a denial of due law in the grand jury state’s to transcribe the failure testimony; in the an abuse of discretion appellant’s prior court’s mis- admission of convictions; imposition demeanor of an excessive sentence.
Appellant’s first claim of error
governed
in Robin
by our recent decision
son v.
Griggs next contends that the court mo- denying her abused its discretion in tion, trial, protective or- made before for a prevent der to the admission into previous her misdemeanor convictions. convictions, Appellant claims that her were similar to the crime case,2 present bearing her had no recently grand jury hearing issued Order No. effec affect the and does not 31, 1971, amending disposition tive October Alaska of this case. grand governing jury pro R.Crim.P. 6 ceedings. requires Appellant’s prior amended Rule 6 convictions were proceedings grand petty larceny that all prostitution. before the The cir- surrounding larceny be recorded. The amendment was cumstances appellant’s effect at case, the time of the victim as described veracity likely prejudi- record, really were to have a blemished defense counsel cial jury. influence on the has no choice at all. He either must preempt prosecution by exposing questioned on direct previous own client’s misdeeds or keep examination defense counsel con Thus, defendant from taking the stand. cerning misdemeanor convic *3 defense counsel’s tactic this case awas prostitution tions petty theft. The and direct result judge’s of the trial to failure question state did not con Griggs on these grant appellant’s protective motion for a during victions its cross-examination. order. prosecution Both the and defense counsel Rules, Under the Alaska Criminal the generally referred to the former convic trial court has broad discretion whether again tions during argu their summation permit impeachment of a witness with However, ments. neither counsel men proof of prior criminal convictions.3 We prior tioned the nature of the convictions will readily not find an dis- abuse that prosecutor at that time. himself ad unless, cretion prior negates “a conviction jury they vised the that should consider credibility only slightly, but creates a previous only the convictions to the extent substantial chance of unfair prejudice. they light shed on the defendant’s credibili .”4 The question here is whether it ty. He cir jury told the that “under no is an abuse of discretion to allow the ad- they cumstances” should convict the de mission into prior evidence of convictions previous fendant because of her convic type of a similar to the with which a crime tions. court also instructed the defendant charged. question This prior that the convictions could used for impeachment with similar convictions has purposes impeaching credibility. been previous before us on two occasions. The fact that the most extensive testimo- Scott v.
ny concerning Griggs’
former convictions
and Parish
P.2d 1005
by
was
not
elicited
her own counsel should
1970),
upheld
we
the admission of
prior
prejudice appellant’s right
error in
synonymous
to claim
convictions which were
prevent
denial of-
with the
her motion
admission
crime with
the
defendant
charged.5
depart
of these
This court not-
see
convictions.
We
no reason to
previous
ed in
holdings
Gafford
those
case.
do
regard
defense at-
We
that
tactic of the
fact
torney in
convictions in
examining his own client con-
this case are simi-
lar to
cerning prior
convictions in order to soften
crime with which the defendant
charged
evidentiary
creating
prejudice.
unfair
weight of such
Thus we decline to
trial
by
prose-
victions when
interfere with the
first revealed
court’s discretion in
a
this area.6
representing
cution. When
a client with
suggest
Spaulding
arresting officer,
4.
P 2d
the ac-
prostitute.
tions of a
first solic-
larceny.
then
ited the victim of the
She
upheld
the court
the admission
In Scott
sought
by toying
him
with the
to distract
prostitution
to im-
zipper on his trousers as she reached for
veracity
peach the
of a defendant
his wallet.
prostitution
In Parish
with a
offense.
again
with a defend-
the court was
faced
43(g)
(11)
(b),
3.Alaska
Civ.R.
Alaska
veracity
by
impeached
ant whose
provides
26(a),
in relevant
R.Crim.P.
synonymous with the
victions which were
part:
charged,
joyriding.
that
offense
ease
impeached by
may] not be
witness
“[A
U.S.App.
States,
wrongful
acts,
particular
In Gordon v. United
evidence of
(1967),
may
except
cited
the ex-
383 F.2d
it
be shown
D.C.
Spaulding
approval
at
v. State
witness or the record
amination of the
(Alaska 1971),
judgment
been con-
of a
that he has
judge’s actions
the trial
court noted
victed of a crime.”
where we
(Alaska 1971),
202-203
prosecutor
that the
significant
It is
weight
undue
place
not to
urged the court
instructions,
court,
stressed
its
unexplained
upon
sentencing process
should
previous convictions
jury that the
“rap
on a defendant’s
police contacts
upon
bearing
only
their
considered
this occasion
sheet.”8
would take
Considering this,
veracity.
appellant’s
subse-
holding
reiterate our
rule, we
in Waters
language
impeachment
of our
to re-
free
quent
is not
cases that
state
ruling.
not find
in the court’s
do
error
contacts
prior police
fer to a defendant’s
of error
Appellant’s final contention
An undue
process.
sentencing
during the
incarcera-
sentence
two
police contacts
emphasis placed on
ex-
years probation is
tion followed
two
necessary to remand
may make it
Specifi-
of this
cessive on the facts
case.
hearing.
sentencing
for a new
heavy
cally, appellant contends
*4
case, although it
and
was
present
a result
unfounded
In
sentence was
of
police
prior contacts
Griggs’
prejudicial inferences derived
to mention
error
er
“rap sheet” and
concluded
in
FBI
we have
police,
contacts listed
her
with the
Griggs had admitted
husband.
relationship
her former
her
with
ror was harmless.
con
numerous
during the course of trial
in the cir
concluded that
We have
addition it was
police.
In
with the
tacts
Griggs’ sen
cumstances of this case Marie
her seven
court to consider
proper for the
proper
of the sentence
took
account
tence
rendering sentence.
when
prior convictions
Chaney,
in
v.
criteria we announced
State
it con
had before
already
court
Since the
with
1970), and was
(Alaska
441
477 P.2d
en
Griggs’
siderable
in a “zone of reasonableness”.7
in
police, the additional
counters with the
had had
Griggs
The state mentioned
police contacts
concerning her
formation
law,
seven
numerous contacts with
sentencing
must
hearing
introduced at the
proba-
in
which resulted
convictions.
harmless.
deemed
be
more
report was
officer in his oral
tion
Mrs.
references to
Concerning the
specific. He told the court
husband,
very re
noted
we
Griggs’ former
“rap
on her
police
had 38
listed
contacts
State,
106
P.2d
492
cently in Robinson v.
objec-
defense counsel’s
sheet”.
Over
consider
will not
1971), that we
(Alaska
tion,
briefly
a 1964
state
discussed
ab
report in the
presentence
errors in a
theft,
police
grand
al-
tact
defendant.
objection
sence of an
charge
though it
unclear whether this
find
thus we
objection was made and
No
in-
is most
resulted in a conviction. What
any error waived.
however,
assumption
teresting,
stated
is the
Affirmed.
attorney that
prosecuting
of the
he
anything on a defendant’s
free to discuss
RABINOWITZ,
(dissenting).
Justice
“rap
sentencing hearing.
sheet” at the
agree
majority’s
I cannot
with the
sentencing
place prior
This
took
clusion that
the trial court’s denial
State,
our
in
483 P.2d
decision
v.
Waters
Griggs’
protective
motion for a
order
admitting
in
defendant’s
State,
evidence of a
7. See also Robinson v.
484 P.2d
prior
(Alaska 1971) ;
convictions
State,
686
Waters
v.
only
1971)
for an abuse
;
“would be reviewable
(Alaska
P.2d
483
199
Gilmore v.
discretion,
ex-
(Alaska
1971)
that once the
State,
and