# Love v. State > Alaska Supreme Court · August 8, 1969 · 457 P.2d 622 URL: https://www.frixlaw.com/law-library/cases/9546394 ## Case - **Full name:** William F. LOVE, Appellant, v. STATE of Alaska, Appellee; Marvin E. KAPRON, Appellant, v. STATE of Alaska, Appellee; Jack SNYDER, Appellant, v. STATE of Alaska, Appellee - **Court:** Alaska Supreme Court - **Decided:** August 8, 1969 - **Citations:** 457 P.2d 622; 1969 Alas. LEXIS 194 - **Precedential status:** Published - **Opinion:** Dissent by Nesbett - **Judges:** Nesbett, Dimond, Rabinowitz, Boney, Connor - **Cited by:** 263 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9546394 ## How later opinions describe it (automated extraction) - holding that, for instances of non-constitutional error, the test for harmlessness is whether the appellate court "can fairly say that the error did not appreciably affect the jury's verdict" - holding that, in cases where non-constitutional error has occurred, the error does not require reversal if the appellate court can reasonably conclude that the error "did not appreciably affect the jury's verdict" - holding that the test for the harmlessness of non-constitutional error is whether the appellate court "can fairly say that the error did not appreciably affect the jury's verdict" - holding that a non-constitutional evidentiary error in a criminal trial is only harmless if the error did not have a substantial effect on the jury’s verdict - holding that non-constitutional error will not require reversal of a conviction unless the error "substantially” or "appreciably" affected the verdict ## Opinion text NESBETT, Chief Justice (dissenting). I must dissent. The majority’s decision is based on the belief that the experiment conducted in Red Bluff Bay by Fish and Game Agent Sharp was not under conditions substantially similar to those claimed to have been experienced by appellant and that therefore the evidence “had no probative value and could only mislead the jury.” In my opinion the conditions were substantially similar. In those respects in which the conditions were dissimilar the jury was advised so that the evidence could be evaluated. I believe that the effect of the admission of the evidence was to enlighten the jury rather than to mislead them. The boats involved were within five feet of the same length and within one to two feet of the same draft. Tidal conditions were approximately the .same except that at the time the experiment was conducted the tide was flooding into the bay in even *635 greater force than it could have been at the time appellant claims to have commenced his drift, according to Sharp’s estimate. The testimony as to wind conditions at the time appellant claims to have drifted was in conflict. 1 The credibility of the witnesses and the actual status of the wind on both occasions was a matter for resolution by the jury. It is conceded that at the time the experiment was conducted there was no fish net hanging from the boom on the boat and there was not a net full of fish extending into the water below the keel of the boat. At the time counsel for appellant objected to admission of the testimony of the experiment the district judge stated, in denying the motion: Of course, you are free to point out the inconsistencies of the circumstances. These different circumstances certainly can be pointed out to weight rather than admissibility. I certainly don’t want to confuse the jury, though I won’t exclude evidence simply because it requires them to exercise their mental processes. Counsel for appellant did exactly as the judge suggested. During the cross-examination of Agent Sharp the differences were emphasized in the answers given to questions posed by counsel for appellants. Agent Sharp readily admitted that the only effect of the experiment was to prove the existence of a surface current. Sharp did not testify that appellants could not have drifted into the bay. Appellant Love then took the witness stand, was qualified as an expert by his counsel, and testified that he had fished commercially for 20 years; that he had fished Red Bluff Bay for approximately 15 to 17 seasons; that there definitely was a constant surface current in Red Bluff Bay flowing outward even against an incoming tide, which current was caused by the river and waterfall at the head of the bay. Appellant described the arrangement whereby a portion of his net hung from the boom of his boat and his theory that it operated as a sail, as well as the large quantity of fish in that portion of the net which was in the water. Appellant was then asked by his counsel what effect the net on the boom and the fish in the net would have had on the direction of drift at the time he claimed to have been drifted into the closed area by the tidal current. Appellant specifically answered that the effect of those two factors was to cause him to drift inside the markers into the closed area and on toward the head of the bay. Appellant’s credentials as a mariner and fisherman in Red Bluff Bay were imposing and unimpeached, but it is obvious that the jury did not believe him. The facts in their totality were not complicated and had been evaluated by the appellant Love who was an expert. The case was tried before a jury drawn from the residents of a predominantly fishing community. Under these facts it seems unrealistic for this court to conclude that the evidence “had no probative value and could only mislead the jury.” In my opinion it had great probative value. Appellant’s defense was that he had made the set in legal waters but that his boat had been caused to drift into closed waters by the wind and the tide. *636 If evidence of the surface current had been excluded, the judge would have had to submit the case to the jury knowing full well that an important relevant fact was not before them, to wit: that contrary to what might be expected when a tidal current was moving into Red Bluff Bay, there was in fact a strong outflowing surface current sufficient in strength to move a 50 foot boat with a 4 foot draft 700 yards against the incoming tide in 19 minutes. It is difficult to believe that any conscientious trial judge would have excluded the evidence under these circumstances. In developing and stating the rule which should govern the admissibility of experimental evidence the majority opinion relies on Tuite v. Union Pacific Stages, Inc. 2 However, the opinion does not at any point state the rule in its entirety as laid down in Tuite. Instead it states various negative aspects of the rule. The quote from Leonard v. Southern Pacific Co., 21 Or. 555 , 28 P. 887 (1892) taken from the decision in Tuite, does state that the admission of such testimony is within the discretion of the court. However, the opinion goes on with such quotes as: “But in any event the conditions must appear to be substantially the same” and “It is not within the discretion of the court to admit evidence about experiments, unless the conditions are substantially alike.” Again on page 15 of the opinion it is stated: “But the judge cannot use his discretion to decide that despite a plain lack of substantial similarity in conditions he will, nevertheless, admit the evidence.” And again on page 15, “the foundation for admissibility should be scrutinized closely to determine whether the conditions surrounding the experiment were substantially similar to those of the alleged occurrence.” Nowhere in the opinion does the court state the rule which is announced in Tuite and on which the majority opinion is based, to wit: But the determination of the question whether such evidence as to' similarity of conditions is sufficient to warrant the admission of the evidence as to the results of the experiment must necessarily remain a matter of judicial discretion, which determination will never he disturbed on appeal unless it is manifest that there has been an abuse of discretion. (Emphasis supplied). I believe the opinion, in purporting to lay down a rule for the future guidance of the courts and bar of Alaska,- should have stated the rule in its affirmative aspect in its entirety and then have applied it to- the facts. If this had been done the opinion would have been required to specifically state wherein it had found that the trial court had “abused its discretion” in admitting the testimony instead of concluding only that it had “committed error.” The majority opinion, on page 18, in finalizing its views against admission of the evidence, has manufactured a presumption and employed faulty logic. The opinion states : In the present case the evidence of the experiment was materially relevant only to rebut the appellants’ testimony which stated that certain natural elements combined to cause them to drift into the closed area of the bay. Concededly the evidence was material and relevant. This is exactly the reason the trial judge said that he was admitting it. The opinion goes on to say: This gave the prosecution an additional benefit because it could argue, under the maxim falsus in uno, .falsus in omnibus, that the testimony of appellants should be disbelieved in its entirety. In my opinion the majority has gone to impermissible lengths in an attempt to bolster its holding. The record does not contain the closing arguments of counsel and there is nothing in the record otherwise which would indicate that such an argument was intended to be made or was made. However, upon a close reading of the sentence it is quite apparent that the weight of the presumption, if it can be called that, *637 is nowhere to be found. The .sentence begins, "This”, apparently referring to the previous sentence and its conclusion that the evidence had only limited material relevancy, “gave the prosecution an additional benefit”. “Gave”, would infer that the prosecution actually realized or received a benefit. Construed in its entirety this portion of the sentence seems to say that the limited relevancy of the evidence “gave” the prosecution an “additional” .benefit, There is no logical relationship between the two thoughts up to this point, nor are any other benefits perceivable to which the “additional” benefit could be “additional”. But the sentence goes on to inform that the “additional” benefit may not actually have been received, but only that it "could" have been realized if the prosecution had argued to the jury the maxim that a witness who has testified falsely in one respect may have testified falsely in all respects. The latter conclusion creates more difficulty. The sentence says in effect that the limited material relevancy of the evidence “could” have given the prosecution an “additional” benefit if it had argued to the jury that a witness false in his testimony in one respect may have been false in all respects. The witness referred to would have to be the appellant Love who testified that the set was made outside the closed area and that his boat drifted into the closed area because of the effect of the tide and wind. The testimony of Agent Sharp was that under the conditions of his experiment his boat drifted out of the bay. He readily admitted that he had no net on the boom or fish in a net in the water; and admitted that a net on the boom would act as a sail if there was any wind at all; he did not testify that appellant could not have drifted as he claimed and in response to a question by appellant’s counsel admitted that his experiment merely established that there was a surface current. If Sharp’s testimony had been rejected the jury would have only appellant’s testimony that he drifted into the closed area because of the wind and tide. Sharp’s testimony did not contradict appellant’s, it merely established an additional condition for the jury to consider: that at the time and place there was a strong surface current countering the incoming tidal current. The appellant Love testified that there was a constant surface countercurrent and then explained why, because of additional factors, his boat nevertheless drifted into the bay. Appellant’s testimony was not claimed to be false. In view of his extensive experience as a fisherman and guide in Red Bluff Bay the jury undoubtedly gave it detailed consideration. This process of weighing the overall testimony and finding the ultimate facts goes on in every contested case and Sharp’s testimony gave the prosecution no particular provocation to argue the maxim. The only interpretation that I can give to the above thoughts is that the majority feels that the defense should have been permitted the full benefit of the defense it claimed plus all inferences to be drawn from the fact of an incoming tide, but that permitting the prosecution to show that there was a countercurrent would give it an additional benefit, if it chose to argue the maxim, and thereby somehow impeach the appellant’s entire testimony. The next sentence, stating: “But neither the experiment nor the testimony about it accounted for the critical, missing elements” ignores appellant Love’s testimony which emphasized the actual effect the net as a sail and the fish in the net had on his boat. My conclusions are that the majority’s reasoning is inaccurate in that it infers, with no basis whatever in the record, that the prosecution somehow improperly benefited in its argument; that the reasoning is faulty because limited material relevancy could have nothing to do with the imaginary benefit in any case; that labelling the imaginary benefit as “additional” to other benefits, which are nowhere shown to exist, and thereby interpreting the maxim as being applicable under the facts before us appears to be illusory bootstrap reasoning and entirely without weight. In view of the issues eventually submitted to the jury, all preoccupation with *638 the question of the admissibility of evidence of a counter tidal current appears to be academic. The testimony of stakeout witness Jones was that appellant’s boat came to the head of Red Bluff Bay and stopped about 25 yards from the stakeout camp which was concealed; that a man got in the seine skiff, started the motor, and made a circle. The time was immediately after 8:30 p. m. The witness testified that the point at which the skiff made the circle was approximately 2,000 yards or one mile inside closed waters. Stakeout witness Nord testified that at about 9 p. m. appellant’s boat came near the point where he and his partner Jones were observing and made the circle which was testified to be the set which caught some 8,700 fish approximately one mile inside the closed area. Appellant Love, Sr. testified that the set was made between 8:30 and 9 p. m., probably at the turn of the tide at 8:42 p. m., at a point outside the closed area which was 2,000 yards from where the eyewitness testimony of the stakeout witnesses Nord and Jones placed the making of the set. Appellant’s testimony was that his boat drifted into the closed area and approximately one mile into the bay to the point where his vessel was boarded by the stakeout witness Jones who placed him under arrest. There was, therefore, no dispute as to the time that the set was made. There was sharp conflict in the testimony as to where the set was made. What was missing in appellant’s testimony was any explanation of how his boat could have drifted one mile, without the passage of appreciable time. The jury obviously did not believe appellant Love’s version. The jury’s disbelief of appellant Love cannot, in my opinion, be attributed in any sense to his impeachment by the admission of testimony of a counter tidal current. The question presented to the jury was clear cut: “Did appellants make the set outside Red Bluff Bay as they claimed, or was it made directly in front of the stakeout camp as the state’s two stakeout witnesses claimed?” Since the main issue as presented to the jury did not require an analysis of Sharp’s testimony as against that of appellant Love, I am unable to concur with the majority when it states: We cannot fairly say that the experimental evidence did not appreciably affect the jury’s verdict against appellants. The admission of the evidence was prejudicial error. Finally, I do not agree with the majority opinion’s statement of the test to be employed in determining whether error is harmless error. I think that the introduction of the doctrine of Kotteakos v. United States creates uncertainty and confusion in this area of the law. The new test is represented as paralleling the test previously adopted by this court in Daniels v. State, 3 but as I read it a new and different and quite vague test has been substituted for what was a reasonably explicit standard. I would affirm the judgment below. . The testimony of appellant Snyder, a veteran of 47 fishing seasons, was that the wind “blew in all directions.” This appellant did not state that the wind blew the fishing boat toward the closed area. The testimony of appellant Love was that the winds were not too bad outside the bay, where it is claimed the set was made, but “they were gusts blowing in toward the head of the bay” in the narrow pass which was considerably inside the markers into the closed area. The stakeout witness Nord testified that there was a breeze but no wind blowing. Stakeout witness Jones testified that there were gusts and a rain squall after he had boarded the fishing boat but no wind earlier in the evening. The testimony of Fish and Game Agent Sharp was that the wind was gusting five to six miles an hour toward the head of the bay when the experiment was performed. Bill Love, Jr., age 15, and the witness Kapron, testified that the wind was blowing into the bay in strong gusts. . 204 Or. 565 , 284 P.2d 33 (1955). . 388 P.2d 813 (Alaska 1964). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9546394. Public record. Not legal advice.