*1 resolution disagree with court’s I also contract be- question whether
of contained and Isaacson Christianson
tween judge trial majeure clause. The
a force express agreement was an
found that there date, delivery for a firm their contract and therefore conflict with
which was in majeure over the force precedence
took July of 16. in the offer
clause contained one fact4 and one
This determination with an aware- trial made
which the existed. He conflicting
ness that evidence
stated: contract questions
I could see resolved other could have been
formation Nevertheless, it seems
than I have. weighs heavily more
me that the evidence finding as to both the
in favor of and the contract
Christianson-Isaacson time was of the
Isaacson-Armco contract prom-
essence, delivery a firm date
ised, delivery part date was and that firm the considera- bargain contracts.
tion for the finding point is judge’s on this
The trial
not, view, my clearly erroneous5 and upheld.
therefore should OKSOKTARUK, Appellant,
Phillip Alaska, Appellee.
STATE
No.
Supreme Alaska. Court of
May 9, 1980. Reynolds Lee, Testimony Christianson and See, g., Placer e. Alaska Co. Company two Construction Christianson support contemporaneous find- memoranda delivery ing date. of a firm supra. 5. See note 4 *2 cold, sleep, and to and that he had done previous Kelly’s manager,
so on occasions. shortly who arrived on the scene after the arrests, proper- testified that he’d found no ty missing. disturbed or *3 subsequently pled burgla- guilty Mack Oksoktaruk, ry against at trial and testified testify presented not and no evi- who did that he the Mack testified de- dence. photo lab with fendant had entered the the The stealing of merchandise. se- intention the that he had curity guard told seen through papers, some rummaging Mack police the a recounted excuse of- officer by at the time of his fered Oksoktaruk permitted arrest. addition the state was burglary prior evidence of a introduce Tried before a by committed Oksoktaruk. guilty of jury, was found bur- Oksoktaruk sentenced glary dwelling,1 a and was two years imprisonment with sus- five pended. Defender, Share, Asst. Public Bri- Walter Defender, Shortell, Anchorage, an Public appeal challenges he the admission In this appellant.
for conviction, prior of his into evidence Gould, Joseph Atty., Asst. Dist. D. James jury instruc- prejudicial effect of several Balfe, Anchorage, Avrum M. Atty., Dist. tions, tape of a and the destruction record- Juneau, Gen., Gross, appellee. Atty. for ing the police. of confession to On Mack’s we specified of first error basis BOOCHEVER, CONNOR, Before required. concluded that a new trial is MATTHEWS, JJ., DI- BURKE and MOND, Senior Justice.
THE PRIOR BURGLARY
OPINION
by
witnesses called
The last three
testimony concerning burglary
a
gave
state
MATTHEWS, Justice.
Factory committed
Anchorage
of
Fur
11, 1977,
on
At 2:30 a. m.
November
The
by
January,
evi-
Oksoktaruk
entry
one-half hour after
approximately
and one
dence
that the defendant
showed
up win-
gained through a boarded
had been
of
a hole in the roof
accomplice had cut
dow,
Kelly’s
Mack was observed
Donald
store,
lifted furs out without actu-
and had
guard.
by
private security
Lab
a
Photo
prior
The
ally setting
premises.
on the
foot
summoned and Mack and
The
were
prove
by the state
burglary was offered
Oksoktaruk,
defendant,
were
Phillip
entered
Pho-
that when Oksoktaruk
and were ar-
hiding
premises
found
on
Lab, he
with the intent to steal
did so
allegedly
po-
told
rested. Oksoktaruk
a
under AS
required to
conviction
escape
he
the store to
sustain
lice that
had entered
property
kept,
provides:
ture or erection which
1. AS 11.20.100
felony
to commit a
intent to steal or
building
person
and enters a
A
who breaks
it,
upon
guilty
burglary,
conviction
curtilage
dwelling
a
house but
within the
peni-
punishable
imprisonment in the
it,
forming part
or who breaks and
a
tentiary
two
more than
not less than
nor
for
booth,
it,
building
part
a
or a
enters
years.
five
car,
boat,
tent,
vessel,
railway
or other struc-
11.20.100,2and the evidence was admitted
This court’s decisions have consist
purpose.
for that
ently been in accordance with the view
that, notwithstanding
many exceptions,
its
danger
informing
inherent in
regarding
prior
rule
evidence of
crimes
that a
has
defendant
committed a
is a “rule of exclusion of evidence and not
prior criminal act is self-evident:
it is all
one of admission .
. .” See United
likely that a
too
determinative inference of
Burkhart,
States
458 F.2d
present guilt will be drawn from the fact of
prior
If
crimes were found ad-
act,
prior
diluting
requirement
thus
missible
prove
whenever offered to
a fact
present guilt
proved beyond
a rea
prosecution’s
classified as material to the
result,
though
sonable doubt.3 As a
even
case,
underlying policy
“the
propensity
protecting
crime
show a
on
crimes,
of a
to commit
the accused
prejudice
unfair
.
question
which in turn is relevant to the
evaporate through the interstices of
[would]
*4
present guilt,
presumption
it is a
in our law the
Cleary,
classification.” E.
McCormick
prejudicial
introducing
that the
effect of
a
190,
(2d
1972).
on Evidence
at 453
ed.
§
prior
outweighs
probative
crime
what
value
may
Thus,
regard
propensity.
State,
exist with
in
No
Eubanks v.
516
by
balancing permitted;
prior
726,731
case
case
(Alaska 1973),
a
prose
when the
may
crime
propens
be admitted to show
cution introduced details of the defendant’s
ity.4
prior conviction for burglary to demon
strate that on the occasion in issue the
prior
When a
act is
prove
relevant to
innocently pawning
was not
mer
fact, however,
a material
recog
we have
claimed,
reversed,
chandise
he
as
had
we
nized that in
probative
certain instances its
holding that “such details are relevant for
may
greater
value
than its value in
purpose
.
showing the req-
proving propensity,
outweigh
then
uisite guilty knowledge,” only
prior
“[i]f
prejudicial
its
impact.5 In such cases the
nearly
crimes are
identical to the crime at
competing
trial court must balance the
int
issue,
performed in an unusual or
[and are]
erests.6 In
this case the trial
found
distinctive fashion
.
. .” 516 P.2d at
issue,
that intent was a contested
that the
State,
535,
731.
Gould v.
579 P.2d
539
prior
state needed the relevance of the
bur
(Alaska 1978),we reversed a conviction be-
glary
light
in
of the “reasonable doubt”
cause the
any
state had failed to show
by
going
created
the other evidence
to in
tent,
“affirmative link” between the defendant’s
prejudicial impact
and that the
of the
alleged
addiction to heroin and
prior burglary
robbery,
not be
his
would
such that the
jurors’
State,
579
passions
would be
P.2d at 539.7 And in Freeman
aroused
v.
967,
(Alaska 1971),
the defendant. We are in substantial
486 P.2d
disa
979
we held
greement with this assessment.
that at least where a defendant does not
supra.
person
2. See note 1
in order to show that he acted in
conformity therewith.
States,
469,
3. See Michelson v. United
335 U.S.
475-76,
213, 218-219,
168,
69 S.Ct.
93 L.Ed.
See,
State,
154,
g.,
e.
Frink v.
597 P.2d
169
Burkhart,
(1948);
173-74
United States v.
458
(Alaska 1979). The second sentence of Evi-
201,
1972);
Wright
F.2d
204
22 C.
404(b),
4,
supra
provides
dence Rule
note
Graham,
and K.
Federal Practice and Proce-
evidence of other crimes
5239,
Comment,
(1978);
dure
at 436-38
§
Other
however,
may,
pur-
be admissible for other
Balancing
Evidence at
Crimes
Trial: Of
poses,
proof motive, opportunity,
such as
Matters,
763,
(1961).
Other
70 Yale L.J.
764
intent, preparation, plan, knowledge, identity,
State,
535,
(Alaska
4. See
Gould v.
579 P.2d
538
absence of mistake or accident.
State,
726,
1978); Eubanks v.
516 P.2d
729
Frink, supra
(Alaska
6. See
404(b)
at 169.
Rule
of both the Alaska
1,
(effective August
1979) and Federal Rules of
provides
part:
Evidence
7. Eubanks
had resolved the identical
issue
crimes, wrongs,
similar fashion.
12. Holland the
far less subtle
error was
since
you
the witness
to
is for
determine.
your duty, you
the
can,
was told:
it is
if
“Now
wilfully
A witness
false in one
his
of
testimony
to reconcile the
of all the wit-
testimony may
parts.
be distrusted in other
spoken
nesses so that all
shall
witnesses
discrepancies
testimony
But
in
a witness’
truth.” 526
the
F.2d at 285.
testimony
wit-
between his
and that of other
nesses,
any,
if
were
does not
there
necessari-
nothing option
In Holland
the all or
was
ly mean that the witness should be discredit-
explicit,
mandatory language
more
used:
but no
was
ed.
“If, however, you
unable to
are
reconcile
giving
We therefore do
intimate that the
testimony, you
reject
the
ny
then
the testimo-
necessarily
misleading paragraph
the
would
you
of such witness or
witnesses as
such
have constituted reversible error. See Menard
mistaken,
give
believe to be
and
untrue or
cre-
1978).
(Alaska
you
worthy
to
dence
the evidence
think most
belief.”
inventor of facts Q. given on the the statement was [A]s this, of distrust re- then element night question, was it accurate moved, object of the statute respect your with to what observa- accomplished. [Emphasis added.] tions and intent were? objection to the last sentence is that it The I so. A. believe corroborated, that, impression if creates the problems of consti We discern no be be- accomplice’s testimony an should in this of the tran tutional dimension use merely as lieved rather than not distrusted deprived was not scription. Oksoktaruk ambiguity would be a matter of law. This wit right his be confronted “to “If it does cured if the last sentence stated: tape against him . . . nesses this, object accom- then of the statute is recording was not used him itself plished, credibility of the accom- any way. making both the Since plice’s testimony evaluated should be it statement and the assertion that was testimony as of other same manner at were testimony consistent with the trial witnesses.”15 testimony, through live established Mack’s
DESTRUCTION OF EVIDENCE was diminution in Oksoktaruk’s there no opportunity to cross-examine source to the sev- Donald Mack confessed State, 592 Loveless v. that evidence. See were eral hours after he Oksoktaruk 1206,1211-12 1979); (Alaska Catlett v. taped, arrested. The confession transcribed, tape was then *7 tape was simply no indication in Moreover there state, destroyed. According to this was with which transcription the record that the procedure. The was not routine confession any trial, was deviated provided the defendant jury did the an exhibit at nor made actually from the statement way material any of its It was not hear contents. police.17 on the made to the Mack’s recollection used refresh together two instructions We find the net effect believed that taken 15. The trial ambigu confusing, 21(a) 21(b) however. no instructions created 21(a) provided: ity. Instruction Const, VI; 1, art. amend. Alaska U.S.Const. testimony of accom- It is law that the an II. § plice ought This to be viewed with distrust. arbitrarily you may disre- does not mean that gard hearing omnibus in this 17. Mack testified at the testimony, you give should such but case, a co-defendant at which time he was still weight you find it to be it to which fully pled guilty, acknowl- had and edged implicated examining and cau- entitled after it with care volunteering in which he the statement light in the tion and in the of all the evidence He both himself and Oksoktaruk. case. questioned about the several times 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 to consider it for the a reasonable doubt jury to entertain purpose 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. 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 ment to the concocted a himself, story to save was in
formed on several occasions Mack had strong cooperating self-interest Braham v. state. See
631,
1977),
denied,
cert.
436 U.S.
(1978).
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
which
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. C.
BURKE, Justice, dissenting part.
I believe the evidence of Oksoktaruk’s prior burglary
commissionof a was admissi-
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 *8 probative prejudicial
its value its tape gation, during promise by recorder was turned off his interro- tains a to note Mack’s replied 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 on the 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- notes it a creates that by the Fifth tion been articulated prosecution’s prove guilt beyond burden First, providing jury Circuit.11 will be reasonable doubt reduced. See reconcile, conflicting possible, should if tes- State, Howard v. 583 P.2d 831-32 timony, subtly perpetuates the instruction (Alaska 1978); Menard presumption disapproved specifically this court in Galauska A certainly attempt trial court (Alaska 1975), namely that “a jurors guidance furnish with respect with presumed speak the truth.” witness evaluating testimony, inconsistent Second, that, jury instructing the when con- this case the bulk instruction 21 did so testimonies, fronted with irreconcilable it para- clear and fair fashion.14 The last give credence” to that version of “should belief,” instruction, however, reasonably graph events “worthier of im- unneces- plies version that one must be sarily which drew conclusions would be best believed, but that one version must be be- left to the in its role as the ultimate completely rejected all others lieved given and should not be credibility, completely.13 applied When to the conflict should there trial. be a second instant case between Mack’s testimo- ny Oksoktaruk entered challenges also Oksoktaruk instruc steal, the intent and the officer’s 21(b), tion which stated: testimony that told him Oksoktaruk that he provides Alaska fol- Statute 12.45.020 as cold, get wanted to from the lows: problem takes on a dimension. serious For A conviction not be shall had on guilty to find the testimony accomplice of an unless it is required beyond to believe a reasonable by other corroborated evidence which steal; doubt Oksoktaruk intended to