# Davis v. State > Alaska Supreme Court · July 28, 1972 · 499 P.2d 1025 URL: https://www.frixlaw.com/law-library/cases/9625698 ## Case - **Full name:** Joshaway DAVIS A/K/A Joshua Burl Davis A/K/A Joshuaway Burl Davis, Appellant, v. STATE of Alaska, Appellee - **Court:** Alaska Supreme Court - **Decided:** July 28, 1972 - **Citations:** 499 P.2d 1025; 1972 Alas. LEXIS 279 - **Precedential status:** Published - **Opinion:** Concurring in part by Rabinowitz - **Judges:** Rabinowitz, Boney, Connor, Erwin, Boochever - **Cited by:** 55 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by Davis v. Alaska, 415 U.S. 308 (1974). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9625698 ## Opinion text RABINOWITZ, Justice (dissenting in part, concurring in part). I concur in the court’s holding that Davis’ conviction of the crime of felon in possession should be affirmed. On the other hand, I cannot agree that Davis’ convictions of the crimes of burglary not in a dwelling and grand larceny can be upheld. For my view, the trial court erred in granting the prosecution’s motion for a protective order which had the impact of precluding Davis’ counsel from effectively cross-examining a key juvenile witness for the government. Given Davis’ constitutional rights, under both the Alaska and Federal Constitutions, to confront adverse witnesses against him and the quality of the prosecution’s totally circumstantial case against Davis, the trial court’s erroneous curtailment of cross-examination of this crucial juvenile witness cannot be characterized as harmless error under either the Love v. State, 457 P.2d 622 (Alaska 1969), or Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), differing standards for determination of harmless error. In the case at bar, counsel for Davis sought to show on cross-examination that at the time of trial the state’s juvenile witness was still under probation supervision for the crime of burglary. Counsel for Davis wanted to elicit this fact for the purpose of showing the witness’s bias as well as his motive in giving testimony for the prosecution. In regard to the cross-examination of a witness as to his bias or motive, in RLR v. State, 487 P.2d 27, 44 (Alaska 1971), we said that: “[G]reat liberality should be given defense counsel in cross-examination of a prosecution witness with respect to his motive for testifying.” Cross-examination to show bias because of expectation *1039 of immunity from prosecution is one of the safeguards essential to a fair trial, and undue limitation on such cross-examination is reversible error without any need for a showing of prejudice, (footnotes omitted) 1 In the case at bar, the majority believes that Davis’ constitutional right of confrontation was satisfied because his counsel “alluded both to possible ulterior motives of the child and to the possibility that the child’s identification arose from apprehension.” In my view, this falls far short of the confrontation rights guaranteed Davis. Vague speculations concerning ulterior motives and the possibility that the juvenile witness’s identification of Davis arose from apprehension are hardly adequate substitutes for bringing home to the jury the fact that the juvenile witness was on probation for burglary at the time he testified. The right of confrontation required that Davis be permitted to show that the witness was on probation for burglary and also encompassed the right to inquire into the circumstances of the witness’s relations with the police. I find the majority’s reliance upon Rule 23, Alaska Rules of Children’s Procedure, inapposite here. The accused’s fundamental right to confront adverse witnesses against him outweighs any interest in protecting a juvenile witness from disclosure of his prior adjudication of delinquency and from disclosure of the disposition order. 2 In light of this court’s stated preference for liberality of cross-examination of a prosecution witness with respect to his motive or bias in testifying, I reach the conclusion that in the case at bar Davis’ rights of confrontation were improperly curtailed. 3 I therefore conclude that Davis must be given a new trial as to the separate offenses of burglary not in a dwelling and grand larceny. . See also Doe v. State, 487 P.2d 47, 58 (Alaska 1971) where we said that the right of liberal cross-examination of a witness as to his bias is well established. In Whitton v. State, 479 P.2d 302, 317 (Alaska 1970), in recognizing that reasonable latitude must be allowed in the cross-examination of a witness, we said that “when the primary objective of cross-examination is to establish bias, the fact that it may also be shown that the witness committed wrongful acts does not violate Civil Rule 43(g) (11) [b].” . Rule 23, Alaska Rules of Children’s Procedure, provides: No adjudication, order, or disposition of a juvenile ease shall be admissible in a court not acting in the exercise of juvenile jurisdiction except for use in a presentencing procedure in a criminal case where the superior court, in its discretion, determines that such use is appropriate. Rule 23, Alaska Rules of Children’s Procedure, is more expansive than its statutory counterpart, AS 47.10.080(g), which in part provides: The commitment and placement of a child and evidence given in the court are not admissible as evidence against the minor in a subsequent case or proceeding in any other court .... As we said in RLR v. State, 487 P.2d 27, 37 (Alaska 1971), “These social policy considerations [dictating anonymity in children’s proceedings] are based on empirical propositions which may be false and have not been tested.” (footnote omitted) .I am in agreement with Professor Wig-more’s view: It would be a blunder of policy to construe these statutes [AS 47.10.080(g) and similar statutes] as forbidding the use of such proceedings to affect the credibility of a juvenile when appearing as a witness in another court. IIIA J. Wigmore, Evidence § 980, at 834 (rev. ed. 1970). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9625698. Public record. Not legal advice.