Byrd v. State , 1980 Alas. LEXIS 662 ( 1980 )

CONNOR, Justice,

concurring.

I would simply sustain the exclusion of the offered evidence on the ground that it was unexcepted hearsay. Even assuming the propriety of proving specific instances of violence on the part of the victim, the evidence offered was defective. Although the report came from the file of a juvenile proceeding concerning the victim, it was not admissible under the official documents exception to the hearsay rule because it was not based on first hand knowledge and did not amount to a judicial ascertainment of the facts related therein. Nor was the one who prepared the report called as a witness. The assertions in the report are, therefore, unverified. Moreover, the proffered page from the probation report probably constitutes double hearsay since the report, itself an out of court statement, was based on statements made out of court. Consequently, even if the probation report was an “official document” so as to be admissible under that exception, the report was still properly excluded unless an exception exists for the underlying hearsay. No such exception occurs to me.¹

We may affirm the exclusion of evidence, even though we do so on a basis not relied upon by the trial court. Rutherford v. State, 605 P.2d 16, 21 n.12 (Alaska 1979); City of Nome v. Ailak, 570 P.2d 162, 173 (Alaska 1977); Sloan v. Atlantic Richfield Co., 541 P.2d 717, 722 n.6 (Alaska 1975). Because the evidence offered here was plainly hearsay, its exclusion was not error. There is no need to determine whether the ground relied upon by the trial court was correct.

1 . Apart from the hearsay question, it is not clear from the report that Fawcett engaged in the kind of violence which would be relevant as to whether he was the aggressor in the encounter with Byrd. According to the report it was Fawcett’s companion who used a gun to terrorize the victim of a burglary, not Fawcett.