Griggs v. State , 1972 Alas. LEXIS 206 ( 1972 )

OPINION

CONNOR, Justice.

The appellant, Marie Griggs, was convicted of larceny from the person and received a 4-year sentence with 2 years to serve and 2 years on probation. She raises three specifications of error in this appeal: a denial of due process of law in the state’s failure to transcribe the grand jury testimony; an abuse of discretion in the court’s admission of appellant’s prior misdemeanor convictions; and the imposition of an excessive sentence.

Appellant’s first claim of error is governed by our recent decision in Robinson v. State, 489 P.2d 1271 (Alaska 1971), where we held that failure to record grand jury proceedings does not offend due process of law.¹

Griggs next contends that the court abused its discretion in denying her motion, made before trial, for a protective order to prevent the admission into evidence of her previous misdemeanor convictions. Appellant claims that her prior convictions, which were similar to the crime charged in the present case,² had no bearing on her veracity and were likely to have a prejudicial influence on the jury.

Griggs was questioned on direct examination by the defense counsel concerning her previous misdemeanor convictions for prostitution and petty theft. The state did not question Griggs on these convictions during its cross-examination. Both the prosecution and defense counsel referred generally to the former convictions again during their summation arguments. However, neither counsel mentioned the nature of the prior convictions at that time. The prosecutor himself advised the jury that they should consider the previous convictions only to the extent they shed light on the defendant’s credibility. He told the jury that “under no circumstances” should they convict the defendant because of her previous convictions. The court also instructed the jury that the prior convictions could be used for purposes of impeaching credibility.

The fact that the most extensive testimony concerning Griggs’ former convictions was elicited by her own counsel should not prejudice appellant’s right to claim error in denial of- her motion to prevent admission of these prior convictions. This court noted in Gafford v. State, 440 P.2d 405, 413 (Alaska 1968), the tactic of the defense attorney in examining his own client concerning prior convictions in order to soften the evidentiary weight of such prior convictions when first revealed by the prosecution. When representing a client with a blemished record, defense counsel really has no choice at all. He either must preempt the prosecution by exposing his own client’s previous misdeeds or keep the defendant from taking the stand. Thus, defense counsel’s tactic in this case was a direct result of the trial judge’s failure to grant appellant’s motion for a protective order.

Under the Alaska Criminal Rules, the trial court has broad discretion whether to permit impeachment of a witness with proof of prior criminal convictions.³ We will not readily find an abuse of that discretion unless, “a prior conviction negates credibility only slightly, but ¹ creates a substantial chance of unfair prejudice. .”⁴ The question here is whether it is an abuse of discretion to allow the admission into evidence of prior convictions of a type similar to the crime with which a defendant is charged. This question of impeachment with similar convictions has been before us on two previous occasions. In Scott v. State, 445 P.2d 39 (Alaska 1968) and Parish v. State, 477 P.2d 1005 (Alaska 1970), we upheld the admission of prior convictions which were synonymous with the crime with which the defendant was charged.⁵ We see no reason to depart from those previous holdings in the present case. We do not regard the fact that the previous convictions in this case are similar to the crime with which the defendant was charged as creating unfair prejudice. Thus we decline to interfere with the trial court’s discretion in this area.⁶

It is significant that the prosecutor and the court, in its instructions, stressed to the jury that the previous convictions should be considered only for their bearing upon appellant’s veracity. Considering this, and the language of our impeachment rule, we do not find error in the court’s ruling.

Appellant’s final contention of error is that the sentence of two years incarceration followed by two years probation is excessive on the facts of this case. Specifically, appellant contends that the heavy sentence was a result of unfounded and prejudicial inferences derived from police contacts listed in her FBI “rap sheet” and her relationship with her former husband.

We have concluded that in the circumstances of this case Marie Griggs’ sentence took proper account of the sentence criteria we announced in State v. Chaney, 477 P.2d 441 (Alaska 1970), and was within a “zone of reasonableness”.⁷

The state mentioned that Griggs had had numerous contacts with the law, seven of which resulted in convictions. The probation officer in his oral report was more specific. He told the court that Griggs had 38 police contacts listed on her “rap sheet”. Over the defense counsel’s objection, the state briefly discussed a 1964 contact with the police for grand theft, although it was unclear whether this charge resulted in a conviction. What is most interesting, however, is the stated assumption of the prosecuting attorney that he was free to discuss anything on a defendant’s “rap sheet” at the sentencing hearing.

This sentencing took place prior to our decision in Waters v. State, 483 P.2d 199, 202-203 (Alaska 1971), where we urged the court not to place undue weight in the sentencing process upon unexplained police contacts on a defendant’s “rap sheet.”⁸ We would take this occasion to reiterate our holding in Waters and subsequent cases that the state is not free to refer to a defendant’s prior police contacts during the sentencing process. An undue emphasis placed on prior police contacts may make it necessary to remand a case for a new sentencing hearing.

In the present case, although it was error to mention Griggs’ prior contacts with the police, we have concluded the error was harmless. Griggs had admitted during the course of trial to numerous contacts with the police. In addition it was proper for the court to consider her seven prior convictions when rendering sentence. Since the court already had before it considerable evidence of Griggs’ previous encounters with the police, the additional information concerning her police contacts introduced at the sentencing hearing must be deemed harmless.

Concerning the references to Mrs. Griggs’ former husband, we noted very recently in Robinson v. State, 492 P.2d 106 (Alaska 1971), that we will not consider errors in a presentence report in the absence of an objection by the defendant. No objection was made and thus we find any error waived.

Affirmed.

1 . We recently issued Order No. 146, effective October 31, 1971, amending Alaska R.Crim.P. 6 governing grand jury proceedings. The amended Rule 6 requires that all proceedings before the grand jury be recorded. The amendment was not in effect at the time of appellant’s grand jury hearing and does not affect the disposition of this case.

2 . Appellant’s prior convictions were for petty larceny and prostitution. The circumstances surrounding the larceny in the present case, as described by the victim and the arresting officer, suggest the actions of a prostitute. Griggs first solicited the victim of the larceny. She then sought to distract him by toying with the zipper on his trousers as she reached for his wallet.

3 .Alaska Civ.R. 43(g) (11) (b), Alaska R.Crim.P. 26(a), provides in relevant part:

“[A witness may] not be impeached by evidence of particular wrongful acts, except that it may be shown by the examination of the witness or the record of a judgment that he has been convicted of a crime.”

4 . Spaulding v. State, 481 P 2d 389, 393 (Alaska 1971).

5 . In Scott the court upheld the admission of prior convictions for prostitution to impeach the veracity of a defendant charged with a prostitution offense. In Parish the court was again faced with a defendant whose veracity was impeached by convictions which were synonymous with the offense charged, in that ease joyriding.

. In Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 939 (1967), cited with approval in Spaulding v. State at 481 P.2d 389, 393 (Alaska 1971), the court noted that the trial judge’s actions in admitting evidence of a defendant’s prior convictions

“would be reviewable only for an abuse of discretion, and that once the exercise of discretion appeared, the trial court’s action be ‘accorded a respect appropriately reflective of the inescapable remoteness of appellate review.’ This is a recognition that the cold record on appeal cannot present all facets and elements which the trial judge must weigh in striking the balance.” (footnotes omitted).

7 . See also Robinson v. State, 484 P.2d 686 (Alaska 1971); Waters v. State, 483 P.2d 199 (Alaska 1971); Gilmore v. State, 479 P.2d 301 (Alaska 1971); Nicholas v. State, 477 P.2d 447 (Alaska 1970).

8 . See also Robinson v. State, 484 P.2d 686, 690 (Alaska 1971); Peterson v. State, 487 P.2d 682, 683 n. 1 (Alaska 1971); Robinson v. State, 492 P.2d 106 (Alaska 1971).