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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4590
Petitioner, ) Trial Court No. 4FA-S92-980CR
)
v. )
) O P
I N I O N
DAVID L. MCLAUGHLIN, )
)
Respondent. ) [No. 1316 - October 8, 1993]
________________________________)
Petition for Review from the Superior Court,
Fourth Judicial District, Fairbanks, Jay
Hodges, Judge.
Appearances: William H. Hawley, Assistant
Attorney General, Office of Special Prosecu-
tions and Appeals, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Petition
er. Arthur Lyle Robson, Robson Law Office,
Fairbanks, for Respondent. Marcia E.
Holland, Assistant Public Defender,
Fairbanks, and John B. Salemi, Public
Defender, Anchorage, as amicus curiae.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
COATS, Judge, dissenting.
INTRODUCTION
David L. McLaughlin was charged by the state with
misconduct involving weapons in the first degree in violation of
former AS 11.61.200(a)(1)1 -- possession of a concealable firearm
by a previously convicted felon. McLaughlin's case was scheduled
for a jury trial before Superior Court Judge Jay Hodges. At the
outset of trial, McLaughlin indicated his willingness to concede
that he had previously been convicted of a felony.
Since McLaughlin conceded the existence of a prior
conviction, Judge Hodges found no need for the jury to consider
whether McLaughlin was a previously convicted felon and ruled
that the jury would decide only whether McLaughlin knowingly
possessed a concealable firearm. Because McLaughlin's criminal
history appeared to have no bearing on any issue remaining in
dispute, the judge further concluded that evidence of
McLaughlin's prior convictions would be inadmissible unless it
became relevant to specific issues arising during the course of
trial. Over the state's objection, the judge ordered the
prosecution to refrain from mentioning or attempting to prove
McLaughlin's prior convictions unless the court first determined
them to be relevant to a specific disputed issue.
The state petitioned this court to review the superior
court's order; we granted the state's petition and directed the
parties to submit briefs on the merits.2
DISCUSSION
1. Issue Presented
Both in Alaska and elsewhere, courts have recognized
that evidence concerning the number and nature of a defendant's
prior convictions can pose a serious risk of prejudice when
introduced in a case in which a prior conviction is an element of
the offense charged. For this reason, appellate courts have
generally agreed that the trial court has broad discretion to
limit the amount of evidence allowed on the issue and to regulate
the form in which it is presented, particularly when the
defendant does not dispute the prior conviction's existence.3
The precise issue presented for review in this case is
somewhat different, however: whether the trial court in a felon-
in-possession prosecution may, in reliance on the defendant's
willingness to concede the existence of a prior felony
conviction, bar proof of the prior-conviction element entirely
and withdraw the issue from the jury.
On review, the state argues that the trial court lacked
authority to force the prosecution to accept McLaughlin's
concession of a prior conviction and to bar proof on this issue.
Although the state acknowledges that the disputed evidence was
not relevant on any issue other than the issue McLaughlin was
prepared to concede -- that McLaughlin had previously been
convicted of a felony -- the state contends that the court had no
discretion to rule as it did.
2. Standard of Review
As presented by the state, this claim involves a pure
question of law, which is subject to the de novo standard of
review. Landon v. Champion, 745 P.2d 1371, 1372 n.2 (Alaska
1987).
3. Analysis
No Alaska case has squarely decided the issue presented
in this case.4 Courts in other jurisdictions are not entirely
unanimous, but a vast majority, espousing the traditional view
that the government need not accept the accused's proposed
concession to an element of an offense,5 holds that a trial judge
cannot altogether bar the prosecution from introducing evidence
to prove a necessary element of its case, even when the element
is undisputed.6
The state urges us to follow the majority view and to
reverse the trial court's ruling in McLaughlin's case. The state
argues that the court had no authority to preclude the state from
proving a necessary element of the offense, that the court's
ruling amounted to an improper judicial amendment of the first-
degree weapons misconduct statute, and that it deprived the state
of its right to a jury trial. We need consider only the first of
these arguments.
The state maintains that it is improper to preclude the
prosecution from proving an element of an offense and asserts
that, in the present case, "excluding all evidence that
[McLaughlin] has a prior conviction is unfair." In support of
this contention the state cites Wigmore for the proposition that
it should not be required to stipulate to a "colorless admission"
of an element of the offense, since such a stipulation would
unjustifiably deprive it "of the legitimate moral force of [its]
evidence." IX John H. Wigmore, Evidence 2591 (Chadbourn rev.
1981).
In our view, however, the crucial issue is not whether
the state has the right to present the "legitimate moral force of
its evidence" -- an unassailable proposition in the abstract --
but rather whether any "moral force" gained by proving
McLaughlin's prior convictions retains legitimacy given
McLaughlin's willingness to concede the point. This issue is a
close one; its resolution depends largely on whether it is viewed
as a narrow question of evidentiary relevance or a broader
question involving policies that are not strictly evidentiary.
From the narrow standpoint of evidentiary relevance --
the standpoint argued by McLaughlin here -- a strong case can be
made that the evidence of McLaughlin's prior convictions should
properly be excluded. The specific circumstances of some felon-
in-possession cases might give the state legitimate reasons to
introduce evidence of prior convictions even though the defendant
is willing to concede the prior-conviction element. In most
cases, however, once the defendant concedes the prior-conviction
element, evidence of prior convictions would have no evidentiary
relevance except to establish the defendant's general propensity
to commit crimes -- an impermissible, and therefore illegitimate,
purpose under Alaska Rule of Evidence 404(b)(1).
The present case provides a good illustration.
McLaughlin fully and unequivocally conceded that his prior felony
conviction precluded him from possessing a concealable firearm.
Given McLaughlin's concession, the trial court would be able to
inform the jury that McLaughlin has agreed that he was forbidden
by law from carrying a concealable firearm. The state did not
argue below and does not contend here that McLaughlin's prior
criminal record has any evidentiary relevance except as proof of
the element McLaughlin is prepared to concede. Moreover, the
trial court has expressly left the door open to reconsideration
should McLaughlin's prior convictions become relevant to any
disputed issue that might arise during the course of trial.
Under these circumstances, McLaughlin's prior crimes
are wholly superfluous from a purely evidentiary standpoint:
their only evidentiary relevance is on an issue that has been
conceded and therefore requires no further proof. Because of the
obvious danger of prejudice this evidence would create as
otherwise inadmissible proof of McLaughlin's general criminal
propensity, see Alaska Rule of Evidence 404(b)(1), the legitimacy
of its "moral force" may be properly questioned:
[W]hen the defense offers the prosecution a
full, unequivocal stipulation of an ultimate,
historical fact, there is an "utter absence
of a legitimate state interest" justifying
the rejection of the offer. The introduction
of evidence is a means to the end. The only
legitimate purpose for introducing evidence
is to prove the ultimate, historical
propositions disputed between the parties.
In a given case, a prosecutor may hope that
the admission of an item of prejudicial
evidence will affect the jury's determination
of factual issues in addition to the issue
the judge admits the evidence to prove.
However, if that hope is realized, the jury
will be misusing the evidence and perhaps
returning a wrongful verdict.7
The state's "legitimate moral force" argument
nevertheless looks beyond the narrow issue of evidentiary
relevance. The state raises a valid -- and, we think, ultimately
persuasive -- concern: it points out that McLaughlin's jury has a
legitimate right to be informed of all of the elements of the
crime charged and of the proof bearing on those elements so that
jurors will not be misled to think they are being asked to
convict McLaughlin for mere possession of a firearm.
The state argues that if the jury is left with the
inaccurate impression that McLaughlin is being prosecuted for
conduct that most jurors surely know to be permissible, the jury
may be tempted to nullify the law by returning a not guilty
verdict, even though convinced that McLaughlin possessed a
concealable firearm. As the state correctly points out, many
courts have cited this danger as justifying the rejection of
defense concessions in felon-in-possession cases.8
The prospect of nullification is certainly a legitimate
concern. Two courts have nonetheless concluded that the danger
of nullification can be avoided by appropriate jury instructions.
The California Supreme Court found the nullification argument
unpersuasive in People v. Hall, 616 P.2d 826 (Cal. 1980) (en
banc):
Instructions can be framed in such a manner
that the potentially prejudicial prior convic
tion is not mentioned to the jury yet the
jury can be informed that possession of a
concealable firearm is not criminal under all
circumstances.
Id. at 832 (footnote omitted).
Similarly, in State v. Davidson, 351 N.W.2d 8, 12
(Minn. 1984), the Minnesota Supreme Court stated:
In this case we believe that the potential
for unfair prejudice clearly outweighed the
relevance, if any, that the evidence had to
other issues. The court should have granted
the defendant's motion and should have
instructed the jury to the effect that
defendant had stipulated that under Minnesota
law he was not entitled to possess a pistol
and that therefore the jury should direct its
attention to the issue of whether or not the
state had established beyond a reasonable
doubt that he possessed the pistol, either
actually or constructively.
In our view, however, jury instructions cannot cure the
problem, and, in fact, might exacerbate it. As a purely
practical matter, we think it highly questionable whether any
useful purpose can be served by precluding proof of a prior
conviction and instructing the jury that the defendant was
prohibited by law, for some reason that cannot be disclosed, from
possessing a firearm.
For many jurors -- those with a modicum of awareness --
such an instruction would simply be tantamount to being told that
the defendant has previously been convicted of a felony.9 For
other jurors -- those with less awareness but a modicum of
imagination -- the instruction could be far worse, for it would
amount to little more than an open invitation for speculation.
The demons of imagination could hardly be lulled by bland
admonishments to refrain from speculating on the issue; once
awakened, those demons would be free to roam a landscape of
boundless dimension. Apart from distracting the jury from the
facts at issue, speculation of this sort would pose the far more
pernicious risk that jurors might decide guilt based on inaccu
rate assumptions about the reasons behind the prohibition against
the defendant's possession of a firearm.
Compared to the inevitable prospect of uncontrolled
jury speculation, the alternative of informing the jury of the
true elements of the charged crime and of the bare and unadorned
fact that the defendant has previously been convicted of a felony
seems to us the lesser evil. But even if we assume that specula
tion could be controlled through proper instruction, hiding the
true elements of the offense from the jury would cause a second,
more fundamental problem -- one touching on the role of the jury
in our criminal justice system.
As we have already pointed out, courts have
traditionally precluded criminal defendants from unilaterally
conceding elements of offenses.10 A different rule has applied in
civil cases: in the civil arena, a party-defendant is commonly
permitted to concede the existence of an element of the
plaintiff's claim; the concession removes the element from
dispute, obviates the need for its active litigation, and allows
submission of the case to the finder of fact -- be it judge or
jury -- without evidence on the issue.11 At least one commentator
has attempted to explain the disparate treatment of concessions
in civil and criminal cases as historical accident.12 We think
this explanation questionable.
Civil cases tend to pit private parties against one
another or against various government agencies on relatively
equal footing: in most disputes over property, money, domestic
affairs, or the like, what one party may demand or compel of
another -- procedurally or substantively -- the other may
generally compel or demand in return.
In contrast, criminal cases pit the individual against
the government on terms that are inherently unequal. When the
government charges an individual with a crime, the balance of
power is clearly in its favor, and the scope of the government's
power is enormous. The unique power of public prosecution
empowers the government to bring to bear against individuals the
full might of its authority as representative of the common good.
At stake is the individual defendant's liberty, not the respecti
ve legal rights of opposing litigants. Upon a formal charge of
wrongdoing, the government can compel the defendant's arrest and
detention pending trial; upon conviction, the defendant can be
incarcerated for prolonged periods of time. The defendant enjoys
no reciprocal right to demand the government's liberty when it
does not prevail.
But the prosecutor's power does not go untempered. Our
political tradition holds individual liberty in high regard and
teaches the need for a healthy public skepticism toward
government power. The Bill of Rights and the United States
Constitution's elaborate system of checks and balances exemplify
these values. In the arena of criminal justice, our laws have
always recognized the imbalance of power between the government
and the individual. The right to indictment by a grand jury, the
guarantee of public trial, the privilege against self-
incrimination, the presumption of innocence, the burden of proof
beyond a reasonable doubt, the right of confrontation, and the
right to compulsory process are all procedural devices aimed at
holding disproportionate government power in check.
The right to a jury trial likewise plays an integral
part in this balance. The jury's historical role in our criminal
justice system is more than that of fact finder: the jury has
always served as the vehicle of community conscience in the
courtroom -- the mechanism by which public skepticism is brought
to bear against the power of the public prosecutor:
Our constitution guarantees the accused the
right of a trial by a jury of his peers,
primarily in order to ensure that the accused
is judged by prevailing community mores. As
Judge Learned Hand stated, the institution of
the jury "introduces a slack into the enforce
ment of law, tempering its rigor by the molli
fying influence of current ethical conven
tions."
United States v. Gilliam, 994 F.2d 97, 101 (2d Cir. 1993)(quoting
United States ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir.
1942)).
Essential to the jury's ability to fulfill its
traditional role is its full understanding of the cause at issue
-- the wrongdoing for which the accused has been held to answer.
In United States v. Gilliam, 994 F.2d at 102, the court rejected
the argument that a defendant in a felon-in-possession case
should have been allowed to withdraw the issue of prior felony
convictions from the jury by unilateral concession, finding "a
significant difference . . . between a rule formulated to limit
the admissibility of potentially prejudicial evidence and a rule
that eliminates an element of a crime legislated by Congress."
The Gilliam court traced the roots of this difference to the
jury's role as a representative of the community's conscience:
Without full knowledge of the nature of the
crime, the jury cannot speak for the people
or exert their authority. If an element of
the crime is conceded and stripped away from
the jury's consideration, the jurors become
no more than factfinders. The jury must know
why it is convicting or acquitting the
defendant, because that is simply how our
judicial system is designed to work.
Id. at 101. Cf. United States v. Barker, Nos. 93-30121 & 93-
30128, 1993 WL 304414, at *2-3 (9th Cir. Aug. 13, 1993).
The issue is one transcending a jury's ability to
determine guilt or innocence in any individual case. It
implicates the public's trust in our system of criminal justice.
If those in the inner sanctum of the criminal justice system --
the judge, the prosecutor, and defense counsel -- cloister to
themselves the true nature of a criminal prosecution, jurors will
inevitably sense manipulation: that they are participants in a
game of justice whose rules are beyond their trust. The system's
distrust of jurors will eventually mirror back upon the court in
the form of public suspicion. Citizens called upon to serve as
jurors will bring with them, not a healthy skepticism toward the
prosecutor's power, but a subversive distrust of the legal
process itself.13
The statutory definition of the crime charged in any
given case is relevant information for the jury. This holds true
regardless of which elements of the crime are actually disputed,
for without knowing the true nature of the charges, the jury is
deprived of context for its consideration of the issues actually
in dispute.14 When there is legitimate cause to make the defen
dant's prior conviction of a felony a necessary element of a
crime -- and no one disputes this proposition as to the crime of
being a felon- in-possession of a concealable firearm -- then
there is surely legitimate reason to apprise the jury of this
element, and to allow its proof.
Our system regularly entrusts juries with unpleasant,
often shocking, evidence; we regularly trust that juries will use
this evidence for its proper purpose, without being swayed by its
potential to cause prejudice to the accused. There is nothing
improper or undesirable in this, provided that the evidence is
actually necessary. In our view, informing the jury of the
elements of an offense is necessary, and the admission of
evidence necessary to prove those elements is neither improper
nor undesirable. We find little basis to distrust the jury's
ability to make proper use of necessary evidence, even when that
evidence reveals previous wrongdoing by the accused.15
CONCLUSION
We conclude that the superior court erred in barring
the state from presenting evidence to prove McLaughlin's previous
conviction of a felony.
The superior court's order is REVERSED.
COATS, Judge, dissenting.
I dissent from the court's decision that Judge Hodges
did not have discretion to remove from the jury's consideration
evidence that McLaughlin had previously been convicted of a
felony. McLaughlin fully and unequivocally conceded his prior
conviction. The state has never contended that the evidence of
McLaughlin's prior felony conviction was relevant for any purpose
other than as proof of an element of the offense which McLaughlin
has conceded. Furthermore, Judge Hodges expressly left open
reconsideration of admitting the evidence of McLaughlin's prior
conviction if this evidence proved relevant to an issue that
became disputed during the trial. Under these circumstances,
McLaughlin's prior felony conviction had no evidentiary
relevance.
On the other hand, if the state presents evidence to
the jury of McLaughlin's felony conviction, the risk that the
jury would be unfairly prejudiced against McLaughlin is
substantial. See Oxereok v. State, 611 P.2d 913 (Alaska 1980).
If we look at this issue as strictly an evidentiary matter, it
seems clear that Judge Hodges could properly determine that the
evidence of McLaughlin's prior conviction had little probative
value and that admission of the evidence had a substantial danger
of unfair prejudice to McLaughlin. A.R.E. 403. The majority
concedes the evidentiary point. However, the majority is
persuaded by the state's argument that the jury has a right to be
informed of all of the elements of the crime charged, so that the
jurors will not be misled into thinking that they are being asked
to convict McLaughlin for mere possession of a firearm. The
state argues that if the jury is left with the inaccurate
impression that McLaughlin is being prosecuted for conduct that
most jurors will know is permissible, the jury may be tempted to
nullify the law by returning a not guilty verdict even though
convinced that McLaughlin possessed a concealable firearm.
It is not necessary to allow the state to prove every
element of every offense with which a defendant is charged. The
majority opinion recognizes this by pointing out that the
decision in this case does not apply to offenses such as we
discussed in Morgan v. State, 661 P.2d 1102, 1103-04 (Alaska App.
1983). Morgan was charged with bootlegging -- unlicensed sale of
alcohol in a local option area. Morgan had previously been
convicted of this offense. Under the bootlegging statute, Morgan
was subject to conviction for a class C felony if the state
proved two elements: 1) that Morgan committed the crime of
bootlegging, and 2) that he had previously been convicted of this
offense.
Assuming that Morgan was willing to concede the
existence of the prior conviction, and the prior conviction had
no other evidentiary relevance other than to establish the second
element of the offense, there seems to be little reason to inform
the jury of this prior offense if the defendant is willing to
stipulate. Evidence of the prior conviction for the similar
offense would have a substantial danger of unfair prejudice to
the defendant. It would therefore be proper for the trial judge
to determine that the defendant's trial should focus only on the
matter in dispute: whether the defendant committed the crime of
bootlegging.
It seems to me that similar analysis applies in the
present case. The fact of McLaughlin's prior conviction is not
in dispute. It is therefore irrelevant. Proof of the prior
conviction poses a substantial danger of unfair prejudice. The
only distinction is the fact that in the felony bootlegging
example, bootlegging is a crime and possession of a concealable
weapon is not. The state therefore fears jury nullification.
However, the Supreme Court of Minnesota and the Supreme Court of
California have found the nullification argument to be
unpersuasive. State v. Davidson, 351 N.W.2d 8 (Minn. 1984);
People v. Hall, 616 P.2d 826 (Cal. 1980).16 In Hall, the court
stated:
Instructions can be framed in such a
manner that the potentially prejudicial prior
conviction is not mentioned to the jury yet
the jury can be informed that possession of a
concealable firearm is not criminal under all
circumstances.
Id. at 832 (footnote omitted).17
The trial court can instruct the jury that McLaughlin
was charged with possessing a concealable firearm when the law
prohibited him from doing so, that he expressly agreed that the
law prohibited him from possessing a concealable firearm at the
time of the alleged offense, and that the jury is required to
accept this agreement without speculating about the reasons that
it is unlawful for McLaughlin to possess a concealable firearm.
The state seems to contend that such an instruction would not
cure the potential prejudice that might arise from the jury not
knowing the reason why McLaughlin could not possess a firearm.
However, the state has consistently argued in felon-in-possession
cases and in other cases where prejudicial material has been
presented to a jury, that limiting instructions adequately
protect defendants against prejudice arising from proof of a
prior conviction. We have frequently accepted the position that
the trial judge can determine that a curative instruction will
limit the risk of unfair prejudice which results from potentially
prejudicial material. See Weitz v. State, 794 P.2d 952, 956
(Alaska App. 1990); Roth v. State, 626 P.2d 583 (Alaska App.
1981).
Similarly, we should accept the position that we can
expect a trial jury to follow a trial court's instruction, which
explains to the jury that the defendant has agreed that he is
prevented by law from possessing a concealable firearm and which
instructs the jury to focus on the relevant inquiry: whether the
defendant possessed a concealable firearm as charged in the
indictment. I recognize that this procedure does not eliminate
the risk that a jury which is informed of the defendant's prior
conviction may acquit the defendant because it does not
understand the nature of his offense. However, there is at least
an equal danger that a jury may be unfairly prejudiced against a
defendant when it learns he has previously been convicted of a
felony. I would allow a trial judge to balance these
considerations. It seems to me that allowing the trial judge
discretion in this matter would result in fairer trials in felon-
in-possession cases.
A procedure which allows a defendant to stipulate that
he has previously been convicted of a felony, thus removing this
evidence from the jury's consideration, has significant
advantages where the defendant is charged with more than just the
felon-in- possession charge. For instance, where the defendant
is charged with committing a robbery with a firearm and is also
charged with felon-in-possession, the trial court faces a
dilemma. See Wortham v. State, 689 P.2d 1133 (Alaska App. 1984).
If the court is required to allow the state to inform the jury of
the defendant's prior felony conviction on the felon-in-
possession charge, the defendant faces the danger of having the
jury prejudiced by this evidence. The defendant would have a
strong argument that the court must sever the two charges,
resulting in two trials. Allowing the defendant to stipulate to
the existence of the prior felony conviction, thus removing the
evidence of the prior felony conviction from the jury's
consideration, limits this prejudice and could allow the state to
proceed against the defendant in one trial.
Jurors are human beings. As human beings, they have
passions and prejudices. The law has recognized this, and
frequently acts to screen jurors from facts which tend to arouse
passion or prejudice, and make it harder for jurors to reach a
fair verdict. The law has allowed the trial judge to exercise
discretion to weigh the probative value of evidence against the
danger that the evidence might arouse unfair passion or
prejudice. The law has recognized that limiting the evidence at
trial to relevant evidence makes it easier for a jury to render a
fair and impartial decision. The law has recognized when a jury
learns that a defendant has previously been convicted of a felony
offense, the jury may be prejudiced against a defendant. Where
the trial judge determines that evidence of a prior felony
conviction in a felon-in-possession case does not have any
probative value and that there is substantial danger that the
evidence of the prior felony conviction may unfairly prejudice
the jury, I see no reason to require the judge to allow the state
to present this evidence. It seems to me that the solution which
Judge Hodges proposed in this situation is sensible. I would
accordingly affirm Judge Hodges' decision.
I therefore DISSENT from the majority's decision.
_______________________________
1. As originally enacted, AS 11.61.200 defined the offense
of misconduct involving weapons in the first degree; the offense
was a class C felony. Former AS 11.61.200(f). As such, it was
the most serious form of misconduct involving weapons then
existing. After McLaughlin was charged, the legislature amended
AS 11.61. by adding two new and more serious forms of misconduct
involving weapons, one a class A felony that was designated as
misconduct involving weapons in the first degree (AS 11.61.190)
and the other a class B felony that was designated as misconduct
involving weapons in the second degree (AS 11.61.195). These
additions required AS 11.61.200 to be amended and redesignated as
misconduct involving weapons in the third degree. In its amended
and redesignated form, AS 11.61.200(a)(1) continues to make the
conduct charged in McLaughlin's case -- being a felon in
possession of a concealable firearm -- punishable as a class C
felony.
2. See Alaska Appellate Rules 402 and 403. This court
also requested the Alaska Public Defender Agency to submit an
amicus curiae brief addressing the merits of the issue raised by
the state.
3. See Mead v. State, 445 P.2d 229, 233-34 (Alaska 1968);
Weitz v. State, 794 P.2d 952, 956-57 (Alaska App. 1990); Elerson
v. State, 732 P.2d 192, 195 (Alaska App. 1987); United States v.
Dockery, 955 F.2d 50, 54 (D.C. Cir. 1992). United States v.
Collamore, 868 F.2d 24, 28-30 (1st Cir. 1989).
4. A number of decisions of this court and the Alaska
Supreme Court have commented in passing on this issue or on
similar issues arising in analogous situations, but no case has
squarely decided it. See, e.g., Mead v. State, 445 P.2d 229, 233-
34 (Alaska 1968); Weitz v. State, 794 P.2d 952, 956-57 (Alaska
App. 1990); Elerson v. State, 732 P.2d 192, 195 (Alaska App.
1987); Azzarella v. State, 703 P.2d 1182, 1188 (Alaska App.
1985); Wortham v. State, 689 P.2d 1133, 1138-39 n.4 (Alaska App.
1984); Morgan v. State, 661 P.2d 1102, 1104 n.4 (Alaska App.
1983).
5. For a discussion of the traditional view on this issue,
see generally Edward J. Imwinkelried, The Right to "Plead Out"
Issues and Block the Admission of Prejudicial Evidence: the
Differential Treatment of Civil Litigants and the Criminal
Accused as a Denial of Equal Protection, 40 Emory L. J. 341, 353-
56 (1991) (hereinafter "Imwinkelried").
6. Compare United States v. Collamore, 868 F.2d 24, 29
(1st Cir. 1989), and United States v. Williams, 612 F.2d 735, 739-
40 (3d. Cir. 1979), with State v. Davidson, 351 N.W.2d 8, 10
(Minn. 1984).
7. Imwinkelried, supra note 4, at 376-77 (footnotes
omitted; quoting Marshall v. Lonberger, 459 U.S. 422, 447
(1983)(Blackmun, J., dissenting)).
8. See, e.g., United States v. Collamore, 868 F.2d at 28
("Doubt as to the criminality of [the defendant's] conduct may
influence the jury when it considers the possession element.");
People v. Piper, 162 Cal. Rptr. 833, 837 (Cal. App. 1980)
("Possession of a concealable weapon is not per se illegal; if
the jury is not allowed to see the whole picture, jurors may be
baffled at being asked to determine guilt on a finding of
possession where they may be well aware that mere possession is
not an offense.").
9. The point is well illustrated by the recent decision of
the Minnesota Court of Appeals in State v. Carnahan, 482 N.W.2d
793, 795 (Minn. App. 1992). In Carnahan, the court of appeals
specifically declined to extend the Minnesota Supreme Court's
holding in State v. Davidson, 351 N.W.2d 8 (Minn. 1984), to the
case of a defendant charged with driving after license revocation
who had offered to stipulate that his license had been revoked.
Carnahan, 482 N.W.2d at 795. The court reasoned that an instruc
tion similar to the one suggested in Davidson would be futile in
a driving after license revocation case:
[T]elling the jury the defendant admitted he
was not entitled to drive . . . suggests
nothing different than evidence on a revoked
license; revocation or its equivalent are
necessarily implied by the instruction. No
such problem was involved in Davidson, since
the Davidson instruction that the defendant
could not legally possess a pistol did not
imply a prior conviction.
Id.
The reasoning of the Minnesota Court of Appeals seems
convincing insofar as it concerns the probable effects of a
Davidson-type instruction in the case of a defendant charged with
driving after revocation. Far less plausible, however, is the
Carnahan court's conclusion that felon-in-possession cases
present "no such problem." Perhaps the Carnahan court's
conclusory and unconvincing attempt to distinguish between
license revocation and felon-in-possession cases can be explained
in pragmatic terms: reluctant to follow Davidson, the Minnesota
Court of Appeals was obviously constrained to find some colorable
ground to distinguish the Minnesota Supreme Court's decision.
In any event, the distinction drawn in Carnahan is
hardly more than colorable; we fail to discern any realistic
difference between the probable effects of a Davidson-type
instruction in the context of felon-in-possession and driving
after revocation cases.
10. See Imwinkelried, supra note 4, at 353-56.
11. See id. at 347-53.
12. As Imwinkelried says on this score:
It is an historical accident that even today
an accused cannot specifically admit the truth of
an historical allegation in the accusatory
pleading. At early common law, the criminal
courts set their face against special admissions
for reasons which no longer obtain. Judicial
inertia appears to be the primary explanation for
the continued insistence that an accused who
chooses to contest guilt resort to the
"invariable" general not guilty plea.
Id. at 356.
13. Witness the experience of California, where the
decision of the California Supreme Court in People v. Hall, 616
P.2d 826, 833 (Cal. 1980) (en banc), which approved unilateral
concessions of prior convictions in felon-in-possession cases,
was abrogated two years later by a public initiative amending
California's constitution to require the jury to be informed in
open court of any prior felony whose existence is an element of
the offense charged. See Cal. Const. art. I, 28 subd. (f);
People v. Bouzas, 807 P.2d 1076 (Cal. 1991) (describing the
manner in which People v. Hall was abrogated). See also People
v. Valentine, 720 P.2d 913, 916 (Cal. 1986).
14. Cf. Dulier v. State, 511 P.2d 1058, 1061 (Alaska 1973);
McKee v. State, 488 P.2d 1039, 1042-43 (Alaska 1971).
15. Of course, as we have already indicated, the trial
court is vested with broad discretion to regulate the scope of
prior crimes evidence and the form in which it will be admitted,
in order to avoid unnecessary prejudice. When the existence of a
qualifying prior felony conviction is unequivocally conceded in a
felon-in-possession case, evidence of that fact, unembellished,
will normally be all that is necessary to allow the state to
prove this element of the offense.
We further note that our decision addresses only the
specific circumstances of this case, in which the charged offense
consists of conduct that is ordinarily lawful, which is rendered
unlawful only because of the defendant's prior conviction of a
felony. By contrast, other types of crimes that include the
existence of a prior felony conviction as an element deal with
conduct that is already independently unlawful; in such cases,
the prior-conviction element serves only to enhance the
seriousness of the offense. See, e.g., Morgan v. State, 661 P.2d
1102, 1103-04 (Alaska App. 1983)(unlicensed sale of alcohol in a
local option area, normally a class A misdemeanor, becomes a
class C felony when the defendant has previously been convicted
of a similar offense).
In this latter type of case, failing to inform the jury
of the prior-conviction element arguably entails few of the
problems presented in the former type of case; consequently, a
strong argument might be made for a significantly broader range
of trial court discretion. See Azzarella v. State, 703 P.2d
1182, 1188 (Alaska App. 1985). The facts of this case do not
require us to decide the issue.
16. The California Supreme Court's decision in People v.
Hall, was abrogated by a public initiative amending California's
Constitution. See footnote 13, page 15 of majority opinion.
17. The court in Hall went on to suggest an appropriate
instruction. Hall, 616 P.2d at 832 n.7.
