State v. Wickham

indicating that McMullen entertained of his state-

serious doubts to the truth fact, given In of the

ments. the results review, good

internal McMullen had reason the truth of his statements. Giv-

to believe meetings

en McMullen’s with Beard where

Beard told him that he would continue to

pursue allegations, it not be un- was “ob-

reasonable believe that Beard with let it

sessed” the issue and “wouldn’t Finally, produced

die.” Beard no evidence

indicating July evaluation performance

of his most recent the time published inaccurate.

the article was

Therefore, superior correctly summary judgment McMullen

granted Beard’s defamation claims. case, light disposition of our it unnecessary for us consider the

is attorney’s award of fees to the

court’s superior judgment

state. court’s part, part,

AFFIRMED REVERSED proceedings

and REMANDED for further opinion. with

consistent Alaska, Petitioner,

STATE WICKHAM,

Phillip Respondent. J.

No. S-3233.

Supreme Court of Alaska.

Aug. Hora, Gen., M.

Cynthia Atty. Asst. Of- Appeals, Special fice of Prosecution and Douglas Atty. Anchorage, Baily, B. Juneau, Gen., petitioner. Holland, Marcia E. Asst. Public Defend- Fairbanks, er, Salemi, and John B. Public Defender, Anchorage, respondent. MATTHEWS, C.J., BURKE Before MOORE, JJ. period during OPINION the sixteen-month which appeal of Wickham’s the convictions was MATTHEWS, Chief Justice. pending.1 man- Phillip J. Wickham was tried for trial, to the state filed Prior Wickham’s a third-degree and In an slaughter assault. perjury intent to notice of use the convic- ruling, decided the trial court impeach tions to Wickham if he testified. if state could that Wickham testified the and, opposed trial, at Wickham the notice impeach him with evidence of convic- reiterated the state its intent testify chose and tions. Wickham with the if he Wickham convictions took appeal, the court of was convicted. On the stand. appeals the ruling held that was reviewable testify, though even Wickham did not but issue, hearing At a on defense coun- the making disposition pending a final reserved testify sel indicated that Wickham would at proceedings in the trial remand for further trial, only if the prior but convictions could court. Through used for impeachment. not be counsel, Wickham made an offer also of hear- granted the state's for concerning proof expected his trial testimo- ing whether criminal defendants to decide ny. Apparently, Wickham would have told preserve a claim must for review that he that jury epileptic; the was an he impeachment improper by prior of convic- quantities consume of large could not alco- hold that criminal defendants tion. We beverages; day of holic that on for re- must this issue only accident he drank a small amount view, prospective of give ruling only but our beverage; application. alcoholic and that the accident by epileptic caused an was seizure. AND PROCEEDINGS FACTS that, court if The trial ruled Wickham September In Wickham entered testified, impeached he could be with his pleas perjury of no contest two counts of Rule perjury convictions under Alaska testimony given for being for when tried 609. did not testify. Evidence Wickham driving driving while intoxicated and with a manslaughter him jury guilty The found In suspended February license. he third-degree The trial and assault. given suspended imposition a of sen- was second-felony him a of- then sentenced placed for probation tence and was on fender. years. appealed, three Wickham and six- later the af-

teen months court of separate appeals. Wickham filed two the convictions. firmed challenged trial court’s The first order denying perjury his motion to aside the set was involved August Wickham convictions, challenged second vehicle killed the a motor accident which ruling. Rule trial court’s seriously injured passen- driver and other were consolidated decision ger ear. indict- in the other Wickham was See Wickham appeals. manslaughter third-degree ed as- on (Alaska App.1989). P.2d 757 he charges. suggests sault The state that driving while intoxicated. held that the trial The court trial, proba- awaiting moved to court erred that Wickham’s While convictions, automatically stayed deny- his 1983 set aside tion was per- successfully complet- aside the claiming ing he had Wickham’s motion to set that Id. ground. probation. jury ed trial court denied that motion, finding Accordingly, still on the court remanded Wickham was 764. hearing and indi- probation. The court reasoned that Wick- the case for set-aside appeal period automatical- cated that Wickham could renew probationary ham’s 206(a)(3) ly Appellate the trial court find that Wickham is tolled under Rule should 206(a)(3) provides stayed Appellate if an is .taken.” "[a]n Rule probation placing shall order the defendant on n to a set-aside. Id. at 764-65. DISCUSSION not entitled set-aside, granted If Wickham would be adopt urges The state this court to resentencing first-felony as a entitled to States, holding of Luce v. United offender. Id. 105 S.Ct. 83 L.Ed.2d 443 U.S. (1984): preserve “to raise and for review The court of next held that it improper impeachment claim of with a the could the substance of Wickham’s address conviction, testify.” must prior a defendant state, impeachment. The improper claim of at 105 S.Ct. at 83 L.Ed.2d at Id. States, relying on Luce v. United U.S. 448. (1984), 38, 105 83 L.Ed.2d 443 S.Ct. argued preserved had not that Wickham Luce, a defendant in a federal crimi- he did not the issue for review because prevent nal trial moved in limine to use of testify at trial. The court declined to fol him if prior a conviction to he Luce, holding in and found that the low the the mo- testified. The district court denied adequate for review even record was tion, finding the admissible un- conviction though had not testified. Wick 609(a).4 The der Federal Rule of Evidence ham, 770 P.2d at 760-63. did not and was convict- argued he that the in li- ed. On claim, the substance of Wickham’s On ruling discretion. mine was an abuse of decided that the trial The circuit court of held that the ruling court did not abuse its discretion the de- was nonreviewable because prior proba- convictions were more testify. fendant did not prejudicial, and of them tive than thus use In a unanimous decision United impeachment permissible under for affirmed, Supreme Court thus re- However, States 609(a) (c).2 at 763. Id. quiring criminal to testi- federal defendants court could not decide whether resort to improp- fy preserve for review a claim of precluded by Rule the convictions was impeachment prior er with a conviction. (1) 609(d).3 question The turned on wheth- gave two reasons for its Id. Court within, comes and is thus er a conviction conclusion, from one both of which derive under, 609(d) rendered once inadmissible reviewing basic concern: “A court is handi- and, so, (2) if the convic- set aside whether capped effort to rule on subtle evi- trial tion must be set aside at the time of dentiary questions outside a factual con- 609(d). come within Id. at 763-65. The at text.” Id. 105 S.Ct. requested briefing additional of these First, at 447. the Court reasoned L.Ed.2d jurisdiction pending re- issues and retained 609(a) weigh- requires Rule because hearing. mand for a set-aside Id. ing probative of the value of conviction court, sought review in this state effect, appellate against prejudicial its an contending that a criminal defendant must handicapped making an court is abuse right at trial to discretion determination absent record ruling permitting the appeal a trial court disclosing precise nature of the defen- “the impeachment for use of testimony.” dant’s Id. The Court added granted purposes. proof the state’s is no solution be- that an offer of testimony “trial hearing. cause the defendant’s 609(a) (c) showing per- quired a substantial of rehabilitation or 2. Alaska Rules of Evidence by prior impeachment if the on innocence.” mit conviction was based statement,” dishonesty crime "involved or false 609(a) permits 4.Federal Rule of Evidence im- prejudicial. probative and is more than “(1) peachment by conviction if the crime 609(d) imprisonment prohibits punishable death or in excess Alaska Rule of Evidence im- "(1) year peachment by prior and the conviction if The con- of one ... court determines admitting subject pardon, probative evidence of a annu- value of viction has been defendant, rehabilitation, [sic], prejudicial outweighs other effect to the ment certificate of or statement, (2) (2) dishonesty procedure, procedure equivalent un- or involved or false granted regardless punishment.” re- of the der which the same was or issued reasons, could, independent power promulgate differ any number of has an Id., proffer.” procedure n. 5. state criminal under ar from rules of IV, section 15 of ticle the Alaska Constitu Second, if explained the Court that even Williams, tion. 315- ruling proved to be court’s in limine a trial (Alaska 1984). However, per we find it incorrect, appellate handicapped an court is suasive that Luce was a unanimous deci making the determina- harmless error majority sion and that a of state courts tion. The Court stated: addressing adopted the issue the Luce any error in the would result [A]lmost Moreover, justi we rule.5 believe that reversal; ap- windfall of automatic underlying apply fications logically could term pellate court equal prac to with force Alaska criminal presumptively an error “harmless” that Therefore, adopt tice. we the Luce rule as testifying. Re- kept the defendant from procedure. state a rule of criminal testify in order quiring that a defendant 609(a) claims, will en- to Rule rule, argues for a more flexible reviewing determine the able the court to permit so appellate which would review may any impeachment impact erroneous no in the long as there is “factual vacuum” light had in record as have that, recognize record. trial court whole; discourage it will also tend to cases, the trial some correctness of the solely “plant” making such motions ruling can readily court’s be determined error in event of convic- reversible without the need for a concrete record. tion. case, example, prior his For Wickham’s 42, 463-64, 105 S.Ct. at 83 L.Ed.2d at Id. at perjury a rather obvi- have also the follow- 448. The Court identified bearing un- on character trait for ous allegedly harm ing factors which make the Moreover, this truthfulness. because rul- flowing from an erroneous in limine statement, specifically crime involves false speculative”: ing “wholly be more to consider it jurors would inclined (1) change ruling subject The purpose impeachment. limited for the testify; should Thus, Rule applicability of Alaska (2) reviewing certain court cannot be (c) 609(a) “readily and could be answered” prosecution used would have the need by the court of without prior conviction to unless might a trial as for as detailed court record testifies; the defendant necessary other cases. See Wick- (3) reviewing certain court cannot be ham, at 770 P.2d the defendant’s decision not However, are so not all Rule 609 issues testify resulted the adverse in from prior con- notably, clear cut. Most motion. limine more similar viction becomes 463, 41-42, at 105 S.Ct. at 83 L.Ed.2d Id. at offense, potential prejudice charged 447-448. Rule 609 increasingly creates an difficult adopted pursu Since Cleary, Evi- E. on issue. See McCormick power, Supreme advisory ant to the Court’s (3d 1984). dence, 43 at 99 ed. § binding People v. on the states. it is 899, importantly, problems if the Collins, 378, Cal.Rptr. More even 42 Cal.3d 228 173, 177(1986). Indeed, the rul- reviewing the correctness of with 722 P.2d 866, 124, 691, Brown, Redman, Ill.App.3d Ill.Dec. 490 761 141 95 State v. 111 Wash.2d 5. See Commonwealth, 588, (1988); Allie, 958, (1986); 6 Reed v. 147 Ariz. P.2d 599 State v. N.E.2d 964 65, 274, (1988); People State, Va.App. 430, 320, (1985); 366 S.E.2d 277 Vaupel v. 437 710 P.2d 19, 506, Finley, Mich. N.W.2d 23-25 Garza, v. 431 431 1248, (Wy.1985); v. 1250 State 708 P.2d 947, (1988); v. S.W.2d 956 Richardson 733 40, 944, (1985); State v. P.2d Idaho 704 949 109 1032, Gentry, (Tex.App.1987); State v. 747 P.2d 384, 285, (1985) Glenn, S.E.2d 286 285 S.C. 330 Harrell, (Utah 1987); State 199 Conn. v. 1036 565, Means, curiam); N.W.2d (per State v. 363 1041, 255, (1986); People 1046 A.2d & n. 11 506 Whitehead, 1985). (S.D. 104 But see State v. 569 378, 899, Collins, Cal.Rptr. 722 42 Cal.3d (1986); State A.2d 374-77 N.J. Moffett, 177-79 P.2d (1984). McClure, 298 Or. (Tenn.Cr.App.1986); People v. S.W.2d overcome, ing there can be remain unavoid- the state have introduced evidence surrounding the able uncertainties harm- of his convictions. It also over- less error determination. As the United evidence, possibility looks the that other stated, Supreme “[a]ny possi- States Court defense, perhaps damaging to Wickham’s flowing harm ble from a court’s in [trial] may presented have upon been cross-exam- ruling permitting impeachment by of, to, ination or in testimony. rebuttal his prior speculative.” wholly conviction is epileptic After Wickham testified Luce, U.S. at S.Ct. condition drinking, and moderate the state L.Ed. at 447. may showing have elicited evidence Wickham’s also illustrates case Wickham was advised not to drink point. The court of held that the alcohol, so, or not drink when he drove. If trial court did its not abuse discretion the state supported theory could have ruling that the use of Wickham’s con- recklessness, having shown a conscious dis- 609(a) permissible victions under Rule regard of the risks associated with drink- (c), may but that such use have been ing driving epileptic in an condition. 609(d). precluded under Because the court epilepsy might Or Wickham’s claim of jurisdiction retained and reserved by demonstrating been undercut that it had 609(d)issue, question the Rule the of harm- diagnosed by never physi- been or treated However, less error was not reached. if cian. eventually decided that Rule not, not, 609(d) perhaps We need and could precluded cat- resort to the convictions by impeachment, alogue all of the avenues it would have had to ad- for cross-exami- error, question dress the of harmless and it nation and rebuttal the available to state incomplete would have had to do so with an point once Wickham testified. The here is record. simply by that the factual vacuum caused testimony the absence of the defendant’s standard, Under the harmless error unacceptable speculation creates an level of must decide whether the making when the harmless error determi- prior admission of the conviction had an Therefore, nation. we hold that a defen- jury’s substantial effect on the verdict. testify dant must for review a State, (Alaska P.2d Clifton 1988); State, improper impeachment by prior claim of Frankson v. (Alaska However, App.1982). 228 n. 5 conviction.6 against testifying, Wickham’s decision and however, prior say,

thus the absence of evidence of This is not to his convictions, inquiry has rendered this whol- applies Luce rule to this case. Because our ly speculative. rule, arguably decision establishes a new contrary prior Alaska, to a rule in we can argues per- that the court can give only elect prospective application. it analysis by reviewing form this the record Three are deciding factors considered when guilt determining for indicia of and apply retroactively whether to a new rule proffered extent to which Wickham’s testi- (1) prospectively: purpose or to be mony would overcome this inference. This by rule; (2) served the new the extent of that, argument assumes were it not for rule; (3) reliance on old the effect impeachment, threatened Wickham would testified; justice on the administration of of a testimony have that his would retro proof; application have mirrored the offer of active of the new rule. Wickham, ever, Although argued by recog- we has not been held to be puts pressure right nize that this rule added on the violative of the federal constitutional self-incrimination, testify potentially preju- against perceive defendant to before a and we no jury; being forego ap- diced the alternative conflict with the Alaska Constitution. also ruling may peal point predic- apparent of an in limine which be erro- out that the defendant’s McClure, is, extent, by neous. See State v. 298 Or. ament to at least some ameliorated Collins, People availability P.2d 582-83 of a for review of the in Cal.Rptr. appeals. Ap- Cal.3d P.2d in the court of See J., (1986) (Broussard, dissenting). pellate 186-87 How- Rule 402. pro (Alaska 1979) (cita- complied with Ninth Circuit Glass, P.2d Luce). omitted). since overruled tions cedures create the Luce rule is to purpose cases Similarly, other defendants whose of a appellate review a concrete record already may tried have altered been admissibility ruling on the trial court’s they had known that Luce their trial tactics im- prior convictions for the defendant’s Thus, negative the law. would become purpose would be fur- peachment. This justice is effect on the administration of of the Luce rule to by application thered Glass, Compare potentially substantial. case; did not since Wickham (new prohibition against 596 P.2d at 14-15 trial, factual there exists no concrete his monitoring electronic of con- warrantless error is- deciding the harmless context prospective applica- versations limited to sue. tion, applica- part, because retroactive prosecution tion undermine the However, think that considerations we currently legal system). cases third factors out to the second and related therefore, Therefore, factor, adopted today will be the rule weigh the first applied prospective application.7 not be to Wick- We re- given only Luce rule should claims that he ham. Wickham proceedings consistent relied mand for with (Alaska App. 725 P.2d 1082 Page v. opinion.

1986), believing that he need not right the trial preserve his COMPTON, Justice, with whom impeached ruling that he could be court’s RABINOWITZ, Justice, dissenting. joins, Page, convictions. with implied procedures appeals of rule, the court adopting In preserve could actually testifying of short was a persuasive the fact that “Luce finds adopted appeal. The court the issue for majority and that a of unanimous decision “reasoning,” holding, of Luce. addressing the issue state courts suggested at 1086. The court also See id. rule.” At note 5 and adopted the Luce proof serve as a that an offer of could Federal Rule of Evi- accompanying text. finding in of a record weighing favor factor of all the states 609 and the rules dence at n. 4. Because adequate for review. Id. having adopted the by the court as cited clearly suggested that a Page decision however, rule, Alas- are broader than Luce testify preserve need not ka Rule of Evidence 609.1 issue, jus Page reliance on Wickham’s permits impeachment rule The Federal Givens, 767 States v. tified. See United Alaska by the same convictions Cir.1985)(retroactive (9th ap F.2d 578 “impeachment on as well as permits, rule “wreak a substan plication of Luce would conviction, if the of other by foreclosing review where the basis inequity” tial (conviction may credibility”); 609 adopting Mich.R.Evid. the Luce rule have Several states See, e.g., dishonesty only prospective application. or false given involved it be shown if crime Brown, statement; 761 P.2d 588 v. 111 Wash.2d State an element of the crime contained (Utah Gentry, v. 747 P.2d 1032 theft, State probative felony, than and is more Harrell, 1987); 506 A.2d 199 Conn. (similar to Fed. prejudicial); Tex.R.Cr.Evid. Collins, (1986); People 42 Cal.3d (Law. 609); § S.C.Code Ann. 19-11-60 R.Evid. (1986). Cal.Rptr. 722 P.2d 173 609); 1976) (broader Co-op. Fed.R.Evid. than (1987) (sim- § Laws Ann. 19-14-12 S.D.Codified (similar 4; also Ariz.R.Evid. 609 1. See At n. see 609); (pre- Tenn.R.Evid. ilar to Fed.R.Evid. (West 609); § Cal.Evid.Code to Fed.R.Evid. 609, post-1989 de- to Fed.R.Evid. 1990 similar 1989) (felony admissible with limit- convictions testify issue need not fendant exceptions); § Conn.Gen.Stat.Ann. 52-145 ed (similar Fed.R. appeal); Utah R.Evid. 609 1989) ("A (West person’s conviction of crime ... (1983) (fel- 609); Va.Code Ann. 19.2-269 § Evid. affecting purpose may of (similar be shown for may in ony be shown "conviction or credibility”); to Fed. Idaho R.Evid. 609 credit”); Wash.R. [witness's] evidence to affect 609); 155-1 § Ill.Ann.Stat. ch. 38 R.Evid. 609); (similar Wyo.R. ("conviction to Fed.R.Evid. may Evid. 609 (Smith-Hurd Supp.1989) 609). (similar to Fed.R.Evid. affecting purpose Evid. [witness's] for the of shown punishable by imprison- important crime was death or incep- dress this issue. Since its year jurisdic- ment excess of one in the appeals tion in the court of has had tion in which the witness was convicted original appellate jurisdiction for all crimi- probative prejudicial.” is more than Alas- prosecutions superior nal commenced the 609(a). Commentary ka Evidence Rules experience court. AS 22.07.010-020. The admissibility The Alaska rule “to limits gained by appeals through involving perju- such as crimes special jurisdiction, compelling is a reason fraud, statement, ry, forgery, false and why grant high degree we should of crimen other crimes the nature falsi deference to it on issues such as the one sharpens inquiry.” As Id. [and thus] presented by petition. result, inadequacies the factual associat- Taking appeals’ into account the court of rulings ed with Rule 609 in limine in fed- matter, expertise subject with the and the practice likely eral are less to occur position fact that it is in a better then we to practice. Alaska adequate determine whether a record is addition, resolution of this issue permit meaningful review of a Rule 609 in adoption unnecessary Luce ruling, ap- we should defer to its perspective judicial economy. from the proach brought to the issue. If the issue is the federal circuit courts have been While review, discretionary Appel- before us for presented frequently with the issue of late Rule we can determine then pre- whether a defendant must appeals whether the court of abused its improper serve for review a claim of im- discretion. conviction,3 peachment with a represents case the first time our court of The court of stated: squarely has been faced with the poses present case few of the uncer- issue. tainties discussed in and Page. Luce Indeed, in the two eases where Luce has Wickham’s counsel made it clear that State, implicated, Page been Wickham’s decision to would de- (Alaska App.1986),4 and Wickham v. pend on the court’s on the eviden- (Alaska App.1989), 770 P.2d 757 tiary issue. Wickham’s counsel also court of has demonstrated an abili- reasonably proof made a detailed offer of ty distinguish to cases where the between proposed testimony. as Wickham’s adequate permit factual record was not circumstances, Under the the trial court review, 1088-87, P.2d at Page, 725 adequate had information to enable it to adequate. cases where record was probative balance the value of the im- Wickham, 770 P.2d at 761. peachment against potential evidence yet prejudice for to Wickham’s case. The significant body We have to build a jurisprudence regarding weight record leaves little room for of doubt given introduced decisions of the court of state would have evidence expertise significant- perjury on issues where its is of Wickham’s convictions had he ly implicated. It is in cases such as this testified. The trial court indicated that given opportunity that we are to ad- the convictions would be admissible to 2, 985, (5th denied, Cir.1980), 2. See At nn. 3. cert. 449 U.S. 101 403, (1980); S.Ct. 66 L.Ed.2d 248 United States See, Kuecker, e.g., United v. F.2d 3. States 740 Cook, (9th Cir.1979), v. 608 F.2d 1175 cert. de Luce, (7th Cir.1984); United States 713 706, nied, 444 U.S. 100 S.Ct. 62 L.Ed.2d (6th Cir.1983), F.2d 1236 469 U.S. aff'd Cavender, (1980); United States v. F.2d (1984); S.Ct. 83 L.Ed.2d 443 United States 1989). (4th Cir. (D.C.Cir.1983); Lipscomb, 702 F.2d 1049 Unit Cir.1982), Halbert, (10th ed States v. 668 F.2d 489 Page, 4.In court of found the Luce denied, rt. U.S. 102 S.Ct. ce reasoning persuasive in its review of an in li- (1982); Kiendra, 72 L.Ed.2d 453 United States v. mine which would have allowed im- (1st Cir.1981); 663 F.2d 349 United States v. Cir.1980), Provenzano, peachment (3rd with the defendant's convic- 620 F.2d 985 rt. ce 404(b). denied, Page, tion under Alaska Evidence Rule 449 U.S. 101 S.Ct. 66 L.Ed.2d Toney, United States v. 615 F.2d 277 725 P.2d at 1086. Wickham, regardless the sub- testimony. We conclude of his stance right to not forfeit his did

that Wickham admissibility of his testify at electing not

trial.

Wickham, (footnotes omit- 770 P.2d at

ted). the court of my opinion

It determining

did not abuse its discretion adequate “is in this case

that the record Id. 761. review.”

permit meaningful result, for I dismiss

As a granted.5 improvidently

hearing BURTON, Appellant, L.

Michael FIRE AND

STATE FARM CASUALTY

COMPANY, Appellee. Sims, Stephen Stephen M. Law Offices No. S-3224. Sims, appellant. Anchorage, M. Supreme Court Alaska. Waggoner, Paul W. Law Offices Paul Aug. Anchorage, appellee. Waggoner, C.J., MATTHEWS,

Before BURKE, RABINOWITZ, COMPTON and MOORE, JJ.

OPINION MOORE, Justice. Burton, of a

Michael the owner motor by State policy issued vehicle insurance (“State Casualty Co. Farm Fire Farm”), seriously riding injured while insured vehicle. passenger as a in his against Burton Farm claims settled in excess vehicle and the driver of Burton’s limit of Burton’s lia- per occurrence sought pay- then bility coverage. Burton his underin- injuries under ment for his coverage. State Farm sured motor vehicle this case. view of to determine which criterion 5. I find it difficult justifies discretionary re- Appellate Rule 304

Case Details

Case Name: State v. Wickham

Court Name: Alaska Supreme Court

Date Published: Aug 3, 1990

Citation: 796 P.2d 1354

Docket Number: S-3233

Court Abbreviation: Alaska