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THE COURT OF APPEALS OF THE STATE OF ALASKA
LEWIS JORDAN, )
) Court of Appeals No. A-5094
Appellant, ) Trial Court No. 3AN-S93-542CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1412 - May 19, 1995]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Karen L. Hunt,
Judge.
Appearances: Linda K. Wilson, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Eric A.
Johnson, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Lewis Jordan was tried by jury and convicted of
criminal mischief in the third degree. Superior Court Judge
Karen L. Hunt sentenced Jordan to serve three years in prison.
Jordan appeals, claiming that the superior court erred in
limiting his cross- examination of the police officer who
arrested him. Jordan also appeals his sentence, arguing that the
sentencing court improperly rejected two proposed mitigating
factors. We affirm.
On the night of January 22, 1993, Anchorage Police
Officer Elmo Hill was on patrol in Anchorage when he noticed an
oncoming Ford Escort driving at a suspiciously slow speed. Four
people were in the car, and Hill obtained a good look at the
driver as the Escort passed his own patrol car. Hill noticed
that the Escort's license tags were expired. He turned his car
around and followed. The Escort turned abruptly into an alley.
By the time Hill reached the alley, the Escort had stopped; its
driver and two of its three passengers had gotten out and were
running away, down the alley.
Hill radioed for assistance and contacted the Escort's
lone remaining passenger, Brian Buckle, who was in the backseat.
Other officers soon apprehended two of the Escort's three fleeing
occupants, Jordon and Johnny Caldwell. The other occupant
managed to escape. A registration check established that the
Escort had been stolen several days previously. Buckle and
Caldwell told the police that Jordan had been driving. Officer
Hill recognized Jordan as the man he had seen behind the wheel.
Based on Hill's identification of Jordan as the driver
of the stolen Escort, Jordan was arrested and charged with
criminal mischief in the third degree (joyriding), in violation
of AS 11.46.484(a)(2). Because Jordan had previously been
convicted of joyriding, he was subject to conviction for a felony
on the new charge. AS 11.46.484(c)(1).1
At trial, the state did not attempt to call Buckle or
Caldwell or to admit evidence of their out-of-court statements
identifying Jordan. In order to establish that Jordan had driven
the stolen Escort, the state relied exclusively on Hill's
testimony identifying Jordan as the driver.
Buckle's and Caldwell's out-of-court statements did
come up, however, during Jordan's cross-examination of Hill.
Prior to cross-examining Hill, Jordan asked the court to allow
him to question Hill about Buckle's and Caldwell's statements.
He offered to show that, before Hill made his own identification
of Jordan as the driver of the Escort, Hill had heard both men
say that Jordan had been driving. Jordan argued that this line
of inquiry would be relevant to challenge the reliability of
Hill's testimony identifying him as the driver, since it would
tend to show that Hill had simply accepted Buckle's and
Caldwell's statements and had not actually seen Jordan behind the
wheel of the car.
The state objected, arguing that Buckle's and
Caldwell's statements were hearsay. In response, Jordan assured
the court that the statements would not be hearsay because they
were not being offered for their substantive truth -- that is, to
show that Jordan had in fact been the driver -- but rather to
cast doubt on Hill's identification by suggesting an alternative
basis for Hill's decision to charge Jordan. Judge Hunt permitted
this line of inquiry, expressly accepting Jordan's assertion that
Buckle's and Caldwell's crime-scene statements were not being
offered for their substantive truth.
Jordan was less successful in a second aspect of his
defense strategy. In connection with his request to cross-
examine Hill concerning Buckle's and Caldwell's identification of
Jordan as the driver of the stolen Escort, Jordan sought to
question Hill about Buckle's and Caldwell's criminal records.
Both men had prior convictions for theft-related offenses.
Caldwell, in particular, had previously been convicted of
joyriding. Jordan argued that by establishing these prior
convictions through cross-examination of Hill, he could show that
Buckle and Caldwell both had a strong motive to fabricate their
claims against Jordan and that, for this reason, Hill should not
have relied upon those claims. Jordan further argued that the
prior convictions, especially Caldwell's joyriding conviction,
would show that Hill's investigation of the incident had been
sloppy and incomplete, since, if Hill had investigated the prior
criminal histories of all three men, he would have discovered
that Caldwell was a more likely suspect than Jordan.
Judge Hunt declined to allow Jordan's proposed inquiry
into Buckle's and Caldwell's prior convictions. The judge
reasoned that Buckle's and Caldwell's credibility was irrelevant,
since their out-of-court identifications were not being offered
for their substantive truth. Judge Hunt further reasoned that
admission of the prior convictions to suggest that Buckle or
Caldwell might have been driving the Escort would amount to an
impermissible use of the prior convictions as propensity
evidence.
In accordance with the court's rulings, Jordan
questioned Hill about Caldwell's and Buckle's out-of-court
statements. Hill acknowledged that both men had identified
Jordan as the driver of the Escort before Hill made his own
identification. On redirect examination, however, Hill insisted
that the driver was Jordan.2 Jordan later attempted to call
Caldwell as a witness. Caldwell asserted his privilege against
self-incrimination and declined to take the stand. However,
Jordan did call Harry Woods, Jr., an acquaintance of Caldwell,
who testified that Caldwell had admitted stealing the car and had
left Woods' house driving it earlier on the day of Jordan's
arrest.
On appeal, Jordan claims that the trial court erred in
precluding him from cross-examining Hill concerning the prior
convictions. Focusing primarily on Caldwell, Jordan argues, as
he did below, that this line of inquiry was admissible "to prove
Caldwell's motive to fabricate and his identity as the driver."
Jordan maintains that the trial court's preclusion of this
evidence violated his constitutional right to confrontation.
Jordan's argument is largely governed by Alaska Rule of
Evidence 806, which provides, in relevant part:
Attacking and Supporting
Credibility of Declarant.
When a hearsay statement, or a
statement defined in Rule 801(d)(2)(C), (D),
or (E) [admissions by a party-opponent], has
been admitted in evidence, the credibility of
the declarant may be attacked, and if
attacked may be supported, by any evidence
which would be admissible for those purposes
if declarant had testified as a witness. . .
.
The effect of this rule is to treat the declarant of an
out-of-court statement the same as a live witness for purposes of
impeachment, but only if the declarant's statement is admitted
for the truth of the matter asserted therein:
If a hearsay statement is
introduced into evidence because it qualifies
as an exception to the hearsay rule, it is
being introduced for its truth. This makes
the credibility of the hearsay declarant
important. Thus, Rule 806 provides that the
credibility of the hearsay declarant can be
attacked and supported just as if the
declarant is on the stand testifying. In
other words, the ways in which a witness can
be impeached and rehabilitated are also the
ways in which a hearsay declarant can be
impeached and rehabilitated.
If a declarant's statement is not
being offered for its truth, then it is not
hearsay, and impeachment of the declarant is
not permitted under Rule 806. This makes
sense, because if the statement is not
offered for its truth, there is no concern
about the credibility of the declarant, and
so there is no need for evidence on that
subject.
3 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual,
at 1674 (6th ed. 1994)(footnote omitted) (commenting on identical
language of Federal Rule of Evidence 806). [Hereinafter
Saltzburg.]
In deciding the present case, we assume evidence of
Buckle's and Caldwell's prior convictions would have tended to
establish that both men had a motive to falsely accuse Jordan,
thereby impeaching the credibility of their statements
identifying Jordan as the driver of the Escort.3 Likewise, we
assume that Buckle and Caldwell both had past convictions for
crimes of dishonesty that would have served to impeach their
general credibility had they testified. See A.R.E. 609(a).4 Yet
neither Caldwell nor Buckle was in any sense a witness at
Jordan's trial -- either through personal testimony or through
the admission of a hearsay statement.
As Jordan acknowledged below and still acknowledges on
appeal, Buckle's and Caldwell's out-of-court statements were not
offered as hearsay -- that is, for their truth -- but rather as
nonhearsay. There was thus "no concern about the credibility of"
these declarants, and "no need for evidence on [the] subject."
Saltzburg at 1674. See also United States v. Martinez, 979 F.2d
1424, 1429 (10th Cir. 1992); United States v. Price, 792 F.2d
994, 996-97 (11th Cir. 1986).5
Jordan alternatively argues that, even if the disputed
prior-convictions evidence was not admissible under A.R.E. 806 to
impeach Buckle and Caldwell, he remained free to introduce it in
order to establish that one of the two might have driven the
Escort. More specifically, Jordan asserts that Caldwell's prior
joyriding conviction makes it likely that Caldwell was the driver
of the Escort, and Jordan argues that Caldwell's prior conviction
should have been admitted to establish this likelihood.
Under A.R.E. 404(b), however, evidence of a person's
prior misconduct is inadmissible unless it is probative of some
disputed fact other than the person's general propensity to
engage in similar misconduct.6 And even if relevant for a
purpose other than propensity, such evidence is subject to
exclusion under A.R.E. 403 if its potential for prejudice
outweighs its legitimate probative value.7 Jordan recognizes the
usual rule excluding prior-misconduct evidence as proof of
current misconduct, but he argues that the usual rule of
exclusion should be relaxed when the accused seeks to introduce
evidence of prior misconduct against a witness.
Jordan is correct in his assertion that prior-
misconduct evidence should be more liberally admitted when it is
offered against a witness instead of the accused. See Garner v.
State, 711 P.2d 1191, 1195 n.3 (Alaska App. 1986); United States
v. McClure, 546 F.2d 670, 673 (5th Cir. 1977); State v. Conlogue,
474 A.2d 167, 172-73 (Me. 1984). This relaxed standard, however,
reflects the change in the A.R.E. 403 balance of probative value
and prejudicial impact that usually occurs when prior-misconduct
evidence relates to a witness instead of the accused. To reach
the relaxed A.R.E. 403 balancing analysis, the accused must first
establish, under A.R.E. 404(b), that the proffered evidence
relates to some issue other than propensity. United States v.
Cohen, 888 F.2d 770, 776 (11th Cir. 1989).
Here, Jordan asserts that evidence of Caldwell's prior
convictions, especially the joyriding conviction, is relevant to
two issues other than propensity: to Caldwell's motive to
fabricate and his identity as the driver of the Escort. As we
have already indicated, Caldwell's motive to fabricate is
relevant to no disputed issue because Caldwell did not testify
and his out-of-court statement was not admitted for its truth.
Caldwell's prior joyriding conviction would be relevant to
establish his identity as the driver only if the circumstances of
the previous case were so similar to the current case as to
disclose a unique modus operandi. See Adams v. State, 704 P.2d
794, 798 (Alaska App. 1985). Absent circumstantial similarities
sufficiently unique to constitute a "signature crime," a prior
conviction for a similar offense tends to establish identity only
through the impermissible inference of propensity: "[M]uch more
is demanded than the mere repeated commission of crimes of the
same class, such as burglaries or thefts." Vaugh C. Ball et al.,
McCormick on Evidence 190, at 449 (Edward W. Cleary ed. & 2d
ed. 1972)(footnotes omitted), quoted in Adams, 704 P.2d at 798
n.5. The bare evidence of Caldwell's prior joyriding conviction
-- all that Jordan offered in this case -- was not relevant to
the issue of identity apart from its tendency to prove
propensity. For this reason, Judge Hunt properly excluded it.
Jordan additionally appeals his sentence. Jordan's
offense was a class C felony and, as such, was punishable by a
maximum of five years' imprisonment. AS 11.46.484(c); AS
12.55.125(e). Jordan had two prior felony convictions and was
therefore subject to a presumptive term of three years in prison.
AS 12.55.125(e)(2). Judge Hunt found one aggravating factor
(that Jordan was on probation at the time of this offense, AS
12.55.155-(c)(20)), rejected two mitigating factors proposed by
Jordan, and imposed the presumptive sentence.
Jordan claims that Judge Hunt erred in rejecting his
two proposed mitigating factors: that his conduct in the current
case was among the least serious included in the definition of
third-degree criminal mischief (AS 12.55.155(d)(9)) and that the
harm caused by his prior and current offenses is consistently
minor and inconsistent with the imposition of a substantial
period of imprisonment (AS 12.55.155(d)(13)). As the proponent
of these factors, Jordan bore the burden of proving them by clear
and convincing evidence. AS 12.55.155(f); Mancini v. State, 841
P.2d 184, 188 (Alaska App. 1992). The sentencing court's
acceptance or rejection of aggravating or mitigating factors will
be upheld unless clearly erroneous. Lepley v. State, 807 P.2d
1095, 1099 (Alaska App. 1991).
In arguing that his current offense is among the least
serious in its class, Jordan points out that he was convicted
only of driving a stolen car, not of stealing it, and that
Officer Hill only saw Jordan driving it for a few seconds.
Jordan also points out that the car was not damaged. By
definition, however, joyriding involves only temporary taking,
driving, or towing of a stolen vehicle. Moreover, the fact that
Hill observed Jordan only briefly hardly constitutes clear and
convincing evidence of how long Jordan had actually been driving.
Nor does the undamaged condition of the car amount to clear and
convincing evidence that it would have remained undamaged had
Jordan not been apprehended. In any event, if Jordan had damaged
the car, he would have been guilty of committing an additional
offense. In rejecting this proposed mitigating factor, Judge
Hunt found that Jordan's conduct was neither the most aggravated
nor the most mitigated joyriding; the judge found it to be "[a]
typical offense by a typical offender." This finding is not
clearly erroneous.
Jordan's second proposed factor, as spelled out in
AS 12.55.155(d)(13), calls for a two-pronged determination:
first, the court must determine on a case-by-case basis that the
defendant's present and prior crimes are consistently minor;
second, the court must find that the past and present crimes,
taken as a whole, are inconsistent with a substantial term of
imprisonment. See Mancini, 841 P.2d at 188. Because the first
prong of factor (d)(13) focuses on the seriousness of Jordan's
current and past crimes, requiring a finding of minor harm for
each offense, our conclusion that his current offense is not
among the least serious in its class precludes finding that the
mitigating factor has been established. Cf. Simpson v. State,
796 P.2d 840, 843 (Alaska App. 1990). Moreover, Judge Hunt was
not clearly erroneous in finding that Jordan's prior felonies
were not unusually mitigated.8
Jordan fares no better under the second prong of
mitigating factor (d)(13), which focuses on the seriousness of
Jordan's criminal history as a whole. In addition to his two
prior felony convictions, Jordan, who was twenty-two years old
when he committed the current offense, has been convicted of
seven misdemeanors, including shoplifting, failure to appear,
criminal mischief, criminal trespass, and disorderly conduct.
Since being placed on supervised probation following his first
felony conviction in 1989, Jordan has repeatedly violated the
conditions of his probation. Viewing Jordan's criminal history
as a whole, Judge Hunt could properly find that the totality of
the harm caused by Jordan's past and current crimes was not
inconsistent with a substantial term of imprisonment. We find no
clear error in the rejection of factor (d)(13).
Having independently reviewed the entire sentencing
record, we conclude that the sentence imposed below is not
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
The conviction and sentence are AFFIRMED.
_______________________________
1. AS 11.46.484 provides, in relevant part:
Criminal mischief in the third degree. (a) A
person commits the crime of criminal mischief in the
third degree if, having no right to do so or any
reasonable ground to believe the person has such a
right
. . . .
(2) the person drives, tows away, or takes the
propelled vehicle of another[.]
. . . .
(c) A person convicted under (a)(2) of this
section is guilty of a class C felony if, within the
preceding seven years, the person was convicted under
(1) the provisions of (a)(2) of this section[.]
2. At the outset of trial, the state offered to have Hill
testify that he had had previous encounters with Jordan and
therefore immediately recognized Jordan when he saw him driving
the Escort. Judge Hunt barred this testimony as more prejudicial
than probative. After the court ruled that Jordan would be
allowed to impeach Hill's identification by inquiring into Buckle
and Caldwell's out-of-court statements, the state renewed its
request that Hill be allowed to clarify his basis for identifying
Jordan. The trial court declined to reconsider its original
ruling. The state does not dispute this ruling on appeal.
3. We note, however, that regardless of whether Buckle or
Caldwell had previously been convicted, both already had an
obvious motive to fabricate since they, too, had been in the
stolen Escort when it was stopped, and since both presumably
wanted to avoid prosecution. Under the circumstances, it would
be arguable that even Caldwell's prior joyriding conviction,
which subjected him to prosecution for a felony as opposed to a
misdemeanor, would have added little to his obvious motive to
avoid any criminal charge at all.
4. Alaska Rule of Evidence 609(a) provides:
(a) General Rule. For the purpose
of attacking the credibility of a witness,
evidence that the witness has been convicted
of a crime is only admissible if the crime
involved dishonesty or false statement.
5. Since Hill never purported to base his identification
on the statements of Buckle or Caldwell, the potential
unreliability of their allegations had no bearing on Hill's own
credibility. Jordan does not claim that evidence of Buckle's or
Caldwell's prior convictions would in any way have been relevant
to show motive, bias, or prejudice on Officer Hill's part. If,
as the basis for his identification of Jordan, Officer Hill had
adopted Buckle's and Caldwell's statements naming Jordan as the
driver of the Escort, then impeachment of Buckle and Caldwell
might have been permissible under A.R.E. 806. See, e.g., United
States v. Moody, 903 F.2d 321, 328-30 (5th Cir. 1990); Price, 792
F.2d at 997. However, Hill disclaimed any reliance on these
statements.
In his reply brief, Jordan does point out that the
trial court gave no limiting instruction prohibiting the jury
from considering the out-of-court identifications for their
truth. Had the state offered these statements into evidence
against Jordan, the lack of a limiting instruction might be
significant. Cf. United States v. Burton, 937 F.2d 324, 328 (7th
Cir. 1991). But here, Jordan in effect introduced the statements
against himself and, in so doing, affirmatively argued they were
admissible as nonhearsay. As both the proponent of the
statements and the party who ostensibly stood to be damaged if
the statements were considered for their truth, Jordan was
clearly in the best position to insist on a proper limiting
instruction. His failure to do so cannot serve as a predicate
for him to argue that the statements were available as
substantive evidence and were therefore subject to impeachment.
As pointed out by Saltzburg, supra at 1677, "Courts have held
that a party cannot introduce an adverse hearsay statement, and
then invoke Rule 806 to `impeach' the hearsay declarant with
evidence that would not otherwise be admissible[.]" See also
United States v. Finley, 708 F. Supp. 906, 910-11 (N.D. Ill.
1989).
6. A.R.E. 404(b)(1) provides:
Evidence of other crimes, wrongs,
or acts is not admissible if the sole purpose
for offering the evidence is to prove the
character of a person in order to show tht
[sic] the person acted in conformity
therewith. It is, however, admissible for
other purposes, including, but not limited
to, proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or
absence of mistake or accident.
7. A.R.E. 403 provides:
Although relevant, evidence may be
excluded if its probative value is outweighed
by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by
considerations of undue delay, waste of time,
or needless presentation of cumulative
evidence.
8. Jordan's first felony conviction was for criminal
mischief in the third degree. The offense involved the theft of
a motor vehicle by Jordan and Caldwell. The owner of the vehicle
pursued the two men; when he overtook them, Caldwell threw a rock
at the owner, causing him to sustain a substantial injury to his
hand. Judge Hunt recognized that, although Jordan did not
personally cause the injury, the injury was nonetheless a
foreseeable consequence of the theft and could properly be
considered as part of the harm caused by Jordan's misconduct.
Jordan's second felony conviction was for misconduct involving a
weapon in the third degree (felon in possession). Jordan was
stopped and arrested on a warrant for violating the conditions of
his probation; he was found to be in possession of a .22 caliber
pistol. Although the pistol was unloaded, Jordan was also in
possession of .22 caliber bullets. He subsequently acknowledged
that, at the time of his arrest, he was consuming approximately
$700 in cocaine on a daily basis and was stealing to obtain money
to support his habit.
