STATE of Alaska, Petitioner, v. Peter ANDREWS, Sr., and George R. Koenig, Respondents. STATE of Alaska, Petitioner, v. Harry N. COFFEY, Respondent.
Nos. S-1172, S-1192
Supreme Court of Alaska
Aug. 8, 1986.
723 P.2d 85
Fourth, “[i]f judicial self restraint is ever desirable, it is when a probative versus prejudice analysis of a trial court is reviewed by an appellate tribunal.” U.S. v. Long, 574 F.2d 761, 767 (3d Cir.1978), cert. denied, 439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.2d 657 (1978). As the Long court stated:
[I]t is manifest that the draftsmen intended that the trial judge be given a very substantial discretion in “balancing” probative value on the one hand and “unfair prejudice” on the other, and that he should not be reversed simply because an appellate court believes that it would have decided the matter otherwise because of a differing view of the highly subjective factors of (a) the probative value, or (b) the prejudice presented by the evidence.... The trial judge, not the appellate judge, is in the best position to assess the extent of the prejudice caused a party by a piece of evidence. The appellate judge works with a cold record, whereas the trial judge is there in the courtroom.
The trial judge in this case was in the court room and could directly observe the witnesses and closely assess the possible prejudicial effect the evidence would have on the jury. Accordingly, a great deal of discretion should be allowed the trial court in the probative versus prejudicial balancing analysis.
Given the evidence in the record and previous case law on the issue we cannot say the trial court‘s reasons for admitting the evidence were clearly untenable or unreasonable or that it abused its discretion in allowing Johnson to be impeached by reference to a prior conviction for a crime involving dishonesty.
As noted, the rationale used by the court of appeals was that telling the jury that Johnson has a prior conviction for a crime involving dishonesty had the potential to create in the jurors’ minds an incorrect belief that the prior crime was of a much more serious nature than that presently involved. No objection raising this point was made at the trial level. If such an objection had been made, the trial court could well have agreed and modified the instruction so that the jurors were told that the prior crime was not more serious. However, in the absence of an objection, the instruction as given is reviewable only under the plain error standard. The requirements of that standard, that the mistake be obvious and that it create a high likelihood of injustice, Miller v. Sears, 636 P.2d 1183 (Alaska 1981), have not, for the reasons previously stated, been met.
The judgment of the court of appeals is REVERSED and the trial court‘s ruling is AFFIRMED.
Cynthia M. Hora, Asst. Atty. Gen., Anchorage and Harold M. Brown, Atty. Gen., Juneau, for petitioner.
John M. Murtagh, Anchorage, for respondent Andrews.
Laurel J. Peterson, Laurel J. Peterson, P.C., Anchorage, for respondent Koenig.
A. Michael Zahare, Bradbury, Bliss, & Riordan, Inc., Anchorage, for respondent Coffey.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
OPINION
PER CURIAM.
RABINOWITZ, Chief Justice, with whom COMPTON, Justice, joins, concurring.
The majority adopts the court of appeals’ decision in State v. Andrews, 707 P.2d 900 (Alaska App.1985) which holds that concurrent sentences may be given if any of the six subparagraphs of
Except as provided in (g) of this section, if the defendant has been convicted of two or more crimes, sentences of imprisonment shall run consecutively.
If the defendant has been convicted of two or more crimes before the judgment on either has been entered, any sentences of imprisonment may run concurrently if
(1) the crimes violate similar societal interests;
(2) the crimes are part of a single, continuous criminal episode;
(3) there was not a substantial change in the objective of the criminal episode, including a change in the parties to the crime, the property or type of property rights offended, or the persons offended;
(4) the crimes were not committed while the defendant attempted to escape or avoid detection or apprehension after the commission of another crime;
(5) the sentence is not for a violation of
AS 11.41.100 -11.41.470 ; or(6) the sentence is not for a violation of
AS 11.41.500 -11.41.530 that results in physical injury or serious physical injury as those terms are defined inAS 11.81.900 .
The court of appeals summarized the difficulties in interpreting
The first three subparagraphs, (1)-(3), identify three situations in which concurrent sentences have been traditionally imposed. The problem arises because the last three subparagraphs, (4)-(6), are phrased in the negative and appear to describe situations in which the legislature may not have wished concurrent sentences, yet the drafter placed all six subparagraphs in the disjunctive. This grammatical structure suggests that each subparagraph should be considered an independent basis for permitting concurrent sentences. Read in this literal fashion, however, the statute would per-
mit imposition of concurrent sentences in almost every case, since the conduct need only satisfy one of the six subparagraphs, and three of them are in the negative.
Andrews, 707 P.2d at 905-906 (citations omitted).
The court of appeals concluded that reading all six paragraphs disjunctively did not obviously violate legislative intent and was one of several “reasonable interpretations” of the statute. Id. at 908. The court of appeals therefore resolved the statute‘s ambiguity by adopting this interpretation as the one most favorable to the defendant. Id.
I agree that the statute is subject to several reasonable interpretations and that the rule of lenity should be applied by construing the statute strictly against the state. However, the construction adopted by the court of appeals and the majority is not a reasonable interpretation of the statute since it cannot be squared with legislative intent.
The one aspect of the legislative intent that can be confidently ascertained is that the statute was designed to require trial courts to give consecutive sentences as a general rule, subject to certain exceptions.
The intent of these sections are [sic] to specify circumstances when consecutive sentences are required by law and to specify the general rule that consecutive sentences are required unless the court has the discretion to impose concurrent sentences under subsection (g).
3 House Journal Supp. No. 64, at 19 (1982).
Paragraph (g) is drafted in a way such that it is difficult to determine exactly how the legislature wished the six subparagraphs to interact and to be applied. It is clear, however, that the legislature intended the subparagraphs to function as exceptions to a general rule. The majority‘s interpretation cannot be what the legislature intended, because to read the six subparagraphs entirely in the disjunctive causes the exceptions to completely eliminate the general rule.
Under the majority‘s interpretation the exception applies and concurrent sentences may be given so long as defendant‘s crimes were not committed while he was attempting to escape.
While normally phrases separated by “or” should be read disjunctively, courts will not give a statute that interpretation if
The question remains how paragraph (g) should be construed. The state argues that concurrent sentences may be given if defendant‘s crimes fall within subparagraph (1)-(3) unless they fall within the situations described in subparagraphs (4)-(6). In other words the state maintains that subparagraphs (4)-(6) act as a limitation on and override subparagraphs (1)-(3), such that a defendant who commits crimes such as sexual offenses, assault, or homicide, or who commits crimes while escaping, must always receive consecutive sentences.3
The above interpretation is consistent with the general legislative intent that consecutive sentences be required subject to certain exceptions. I would not, however, adopt this interpretation. The statute can be interpreted in more than one way that is consistent with the general legislative intent. At the same time the wording of the statute does not make clear the specific legislative intent as to the interaction of the exceptions. In such a situation the rule of lenity should apply and the statute should be construed strictly against the state. Dunn v. United States, 442 U.S. 100, 112-113 (1979); Moore, 613 F.2d at 1043.4
Therefore, I would construe the statute to mean that concurrent sentences may not be given if the crimes fall within subparagraphs (4)-(6), unless one of the criteria set out in subparagraphs (1)-(3) are met.5 In other words subparagraphs (1)-(3) override subparagraphs (4)-(6). Such an interpretation satisfies the rule of lenity, while at the same time it is consistent with the general legislative intent. Under this interpretation there will be instances when consecutive sentences will be required—i.e. when defendant‘s conduct does not fall within subparagraphs (1)-(3).6
I concur in the result the majority reaches because the defendants’ crimes involved similar societal interests. Subparagraph (g)(1) therefore is satisfied and concurrent sentences may be given.