Adkinson v. State

RABINOWITZ, Chief Justice,

concurring, joined by BOOCHEVER, Justice.

I concur in the court’s resolution of the evidence of prior similar acts issue, but believe that the questioned evidence was also properly admissible for impeachment purposes.1

This court has expressed previously in dicta its approval of prosecutorial use of evidence which contradicts an accused’s testimony. In Freeman v. State, 486 P.2d 967 (Alaska 1971), a case involving the admissibility of an accused’s prior conviction, we acknowledged in a footnote that although the defendant may not be found to have opened the door to past acts of misconduct by putting his character in issue,

An altogether different situation arises where the accused, instead of generally contending that his character is inconsistent with the type of offense with which he is charged, affirmatively denies ever having been in trouble, or makes specific claims as to his conduct on certain occasions in the past. In such cases, evidence of misconduct by the accused has frequently been held admissible in order to directly contradict the specific claims of the accused. See, e. g., United States v. Bowe, 360 F.2d 1 (2d Cir. 1966); United States v. Beno, 324 F.2d 582, 588 (2d Cir. 1963); People v. Goff, 100 Cal.App.2d 166, 223 P.2d 27, 30 (1950); Molton v. People, 118 Colo. 147, 193 P.2d 271, 272-273 (1948); Folds v. State, 90 Ga.App. 849, 84 S.E.2d 584 (1954); State v. Hale, 21 Ohio App.2d 207, 256 N.E.2d 239 (1969); State v. Fiddler, 57 Wash.2d 815, 360 P.2d 155, 158 (1961).2

Id. at 976 n.23.

Once Adkinson took the stand and testified on direct examination3 that he would *536never point a gun at another person, the state could rebut that evidence as it did by offering the testimony of two witnesses who described two separate incidents in which Adkinson had pointed a gun at people. Such evidence was far from collateral.4

Adkinson’s credibility was central to the case — as in many cases when the accused takes the stand. Were the jury to retire with the impression that Adkinson had never pointed a gun at another person, the prosecution’s case would have been substantially weakened. Such a denial going to a crucial element of the crime is of sufficient importance to allow rebuttal.

Thus, I conclude impeachment is a sufficient independent basis to support introduction of this evidence.

. Louisell and Mueller, 3 Federal Evidence § 343 (1979); McCormick, Handbook of the Law of Evidence § 47 (2d ed. 1972).

. In Demmert v. State, 565 P.2d 155 (Alaska 1977), then Chief Justice Boochever remarked in a concurring opinion, joined by Justice Dimond, that the introduction of a prior similar act was permissible to impeach the defendant’s testimony that he had never committed such an act before.

The statement by Mr. Demmert that ‘I’d never do anything like that’ was made as a denial of the acts for which he was accused. It is reasonable to infer from this language that Demmert was indicating he would not do such an act in the future and that he had never done any such act in the past. It was therefore permissible for the District Attorney to impeach on the question of whether he had done such an act in the past to refute the implications of Demmert’s own statements.

Id. at 158.

.Since I am assuming arguendo that this evidence does not come in under the “lack of accident and mistake” exception of Alaska R.Evid. 404(b), the general rule excluding prior *536bad acts applies. In that circumstance, the evidence must have been brought out on direct examination to allow impeachment by contradiction.

[Wjith respect to evidence excludable under some specific provision in the Rules of Evidence, or some statutory or constitutional principle, a denial by the witness paves the way for contradiction through the use of such evidence only if the denial came out on direct examination of the witness. If it were otherwise, if excludable evidence were allowed to contradict the denial of a witness on cross-examination, the result would be to reduce the rule of exclusion to a hollow shell: Either the witness would concede the point on cross-examination, in which case the ex-cludable evidence would be effectively before the trier of fact, or he would deny the point on cross-examination, in which case too the excludable evidence would be received, this time to contradict. While the purpose would still be limited, at least in the latter instance, the party for whose benefit the exclusionary rule was designed would altogether lose the power to claim most of its protection.

Louisell and Mueller, 3 Federal Evidence § 343, at 500-01 (1979).

. The only limit placed on impeachment by contradiction is that the subject of the impeachment not be collateral. McCormick, Handbook of the Law of Evidence § 47 (2d ed. 1972); Lempert and Saltzburg, A Modem Approach to Evidence 312 (1977).