Eubanks v. State

516 P.2d 726
CourtAlaska Supreme Court
DecidedDecember 3, 1973
Docket1938
StatusPublished
Cited by36 cases

This text of 516 P.2d 726 (Eubanks v. State) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eubanks v. State, 516 P.2d 726 (Ala. 1973).

Opinion

516 P.2d 726 (1973)

Ricky EUBANKS, Appellant,
v.
STATE of Alaska, Appellee.

No. 1938.

Supreme Court of Alaska.

December 3, 1973.

*727 Lawrence J. Kulik, Asst. Public Defender, Herbert D. Soll, Public Defender, Anchorage, for appellant.

Stephen G. Dunning, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, John E. Havelock, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C.J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

CONNOR, Justice.

After trial by jury, Ricky Eubanks was found guilty of grand larceny. His appeal from the judgment of conviction turns on the admission of certain testimony into evidence.

During the day of April 18, 1972, fifteen-year old Diane Brotzman was at her parents' home in Anchorage, Alaska, with her boyfriend, Michael. Her parents were both at work. She had apparently been having some difficulty with her parents, and Michael had been having trouble with the juvenile authorities. He had been considering leaving the Anchorage area and wanted Diane to accompany him. Shortly before noon, Michael called a friend, nineteen-year old Ricky Eubanks, for a ride home. Eubanks was at his home with his friend Jim Arnell; as there was little gasoline in Eubanks' car, they rode to Diane's home in Arnell's car.

After their arrival, a Panasonic portable television set and two rifles were removed from the Brotzman home and deposited in Arnell's car. The items were then taken *728 downtown to be pawned. Eubanks and Arnell apparently handled the pawnshop transactions, after which Diane took her friends out to lunch and filled Arnell's car with gasoline. She did not return home for a week even though she took no extra clothing or toiletry articles. When Mr. Brotzman arrived home and discovered the items to be missing, he filed a complaint which led to Eubanks' indictment under AS 11.20.140.[1]

The primary issue at trial was whether Eubanks knew he was committing larceny. He admitted participation in the transactions and relied on a claim of lack of guilty knowledge. Diane, as witness for the state, testified that she had assured Eubanks the articles were hers, and that he thought he was merely assisting her in disposing of her own property. Ricky put forth testimony which in all salient aspects coincided with Diane's. Her testimony upon impeachment and that of a police officer revealed that she had once told a different story about the events of that day.

Appellant advances two contentions upon appeal: (1) that it was error to admit, over objection, testimony about the use of the pawning proceeds, which disclosed a separate offense, and (2) that it was error to allow the prosecution, over objection, to introduce the details of appellant's prior conviction.

As the state's first witness, Diane stated that she had asked Eubanks and Arnell to pawn some of her things because she needed money. The prosecuting attorney began to question her about why she needed money and then abandoned the inquiry before she answered.[2]

He later directed her attention to a prior conversation with Trooper Shook and, over objection, elicited that she told the officer the money was used to purchase heroin. Trooper Shook later verified, again over objection, this conversation, but gave a different account of who actually bought the drugs.[3]

The state is allowed to impeach the credibility of its own witness through prior inconsistent statements,[4] and need not show surprise or damage to its case.[5] The requirements for the proper foundation for impeachment purposes are found in Civil Rule 43(g)(11) [c]:

"A witness may be impeached by evidence that he has made at other times statements inconsistent with his present testimony. The statements must first be related to him, with the circumstances of times, places, and persons present, and the witness shall be asked whether he has made such statements and, if so, shall be allowed to explain them."

*729 Those requirements were not met with regard to the impeachment of Diane Brotzman. Her statements were not inconsistent. Her earlier statement to Trooper Shook, that the money was used to purchase heroin, in no way contradicts her statement at trial that she wanted some money. The prosecution, however, went even further and introduced the officer who gave a different account of Diane's statement. In Beavers v. State, 492 P.2d 88, 92 (Alaska 1971), we held that faced with a denial of prior inconsistent statements, the state is justified in calling the person to whom the statement was made. Here, there was no denial; Diane was not confronted with her inconsistent statement nor was she given an opportunity to admit, deny or explain the prior statement. Both the testimony of Diane upon cross-examination by the state and of Trooper Shook, describing the earlier conversation about the use of the proceeds, is inadmissible for failing to meet the requirements of the rules governing impeachment and the proper foundation for such impeachment.[6]

Appellee contends that the heroin testimony is admissible, regardless of its impeachment value, on the basis that it is relevant to the material issue of Eubanks' motive and state of mind at the time of the transactions. Unless evidence revealing the commission of an offense for which the accused is not charged is relevant to a material fact in the case at trial, it is not admissible. Watson v. State, 387 P.2d 289, 293 (Alaska 1963). Even when such evidence is relevant, the probative value must outweigh its prejudicial impact. Howard v. State, 496 P.2d 657, 661 (Alaska 1972); Gafford v. State, 440 P.2d 405, 408 (Alaska 1968), cert. denied 393 U.S. 1120, 89 S.Ct. 996, 22 L.Ed.2d 125 (1969). The prejudicial effect of associating the defendant with heroin is great; the probative value of the association in the context of this case, is, at best, minimal. Drug use or addiction has been received to circumstantially prove motive when the crime charged involved the theft of narcotics. State v. Howell, 474 P.2d 778 (Ore.App. 1970); Riley v. State, 168 Tex.Cr.R. 417, 328 S.W.2d 306 (1959); People v. Rodis, 145 Cal. App.2d 44, 301 P.2d 886 (1956). In this state, evidence of prior narcotics transactions has been admitted on the issue of motive for homicide when the accused's prior drug dealings with the deceased were tinged with acrimony and anger. Gafford v. State, supra, at 408.

An examination of the record of this case reveals only that Eubanks may have committed a separate offense. The state did not connect the use of the proceeds to any other evidence or introduce additional evidence which related to or formed a part of the chain of inferences needed to find that Eubanks had a guilty intent and knew that he was committing a larceny. It was not clear whether Eubanks actually bought or used the drugs in question. At no time was it indicated that he was an addict in need of drugs, that he used drugs often, or that drugs had been discussed prior to the events of that day.

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Bluebook (online)
516 P.2d 726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eubanks-v-state-alaska-1973.