Robert Lee SHANE, Appellant, v. John W. RHINES, Appellee, 672 P.2d 895

OPINION PER CURIAM. This appeal arises out of an auto accident which occurred on the Kenai Spur Road in October 1978. At trial, Rhines, the defendant below, admitted that he had been drinking prior to the accident and that he was responsible for the collision. The jury awarded Shane, the plaintiff, $12,200 in compensatory damages, and judgment for that amount was entered in February 1980. The jury determined that Shane was not entitled to punitive damages.

In this appeal Shane challenges: (1) the trial court’s exclusion of evidence of Rhines’ past conviction for driving under the influence of alcohol; (2) the exclusion of Rhines’ insurance coverage as evidence of his financial condition; and (3) the trial court’s refusal to take judicial notice of or instruct the jury on AS 09.45.730 and 15 U.S.C. § 15 (1976) (amended 1980 and 1982). We affirm.

Rhines testified on direct examination that he “usually [didn’t] drive and drink.” Counsel for Shane sought, in response, to introduce evidence that Rhines had been convicted in the past for driving while under the influence of intoxicating liquor. The evidence was excluded by the trial court. On appeal, Shane argues that this evidence was admissible “to impeach the defendant on that statement ” (emphasis added). Rhines contends, on the other hand, that the introduction of such evidence is barred by Evidence Rules 609(

a) and (

b) and was therefore rightly excluded. We conclude that whether the admission of the evidence was sought for the purpose of impeaching the defendant’s veracity generally, or of contradicting the particular statement of the defendant, the trial court properly excluded the evidence. Evidence Rule 609(

a) provides that the credibility of a witness may be attacked by evidence of past convictions “only if the crime involved dishonesty or false statement.” As the commentary to the rule notes: Limiting admissibility to convictions involving crimes such as perjury, fraud, forgery, false statement, and other crimes in the nature of crimen falsi sharpens the inquiry and insures that pri- or convictions are not used as evidence of the general character of the witness ... but are used properly, i.e., to impeach credibility. Alaska R.Evid. 609 commentary at 171.

The crime of operating a motor vehicle while under the influence, although an offense of grave consequence, does not involve “the kind of dishonesty and unreliability which bear upon the veracity of persons perpetrating [that crime].” Lowell v. State, 574 P.2d 1281, 1284 (Alaska 1978); see Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967); Tucker v. Lower, 200 Kan. 1, 434 P.2d 320, 324 (Kan.1967). Also, the conviction sought to be admitted in this case was more than five years old. Evidence Rule 609(

b) makes evidence of a conviction inadmissible for the purpose of attacking the credibility of a witness “if a period of more than five years has elapsed since the date of the conviction.” Rule 609(

b) therefore barred admission of Rhines’ past conviction for the purpose of impeaching his credibility. Evidence inadmissible under Rule 609 may be introduced, however, to contradict a witness’s specific testimony as to a material issue, even though this may indirectly impeach the witness’s credibility. United States v.

Alvarez-Lopez, 559 F.2d 1155, 1158 (9th Cir.1977) (where witness denied on direct examination ever being arrested for a narcotics violation, evidence of past conviction for smuggling heroin admissible, despite inadmissibility under analogous Federal Rule of Evidence 609 as well as Federal Rule of Evidence 404(b)); 98 C.J.S. Witnesses § 639 (1951). Here, counsel for Shane sought to introduce evidence of Rhines’ past conviction in order to contradict Rhines’ statement, “I usually don’t drive and drink.” The admission or exclusion of contradictory evidence rests in the discretion of the trial court. United States v.

Batts, 573 F.2d 599, 603 (9th Cir.1978); 98 C.J.S. Witnesses § 639 (1951). Relevant evidence is always subject to exclusion if, in the discretion of the trial court, its probative value is outweighed by the danger of prejudice or confusion, or by considerations of undue delay. Johnson v. State, 636 P.2d 47, 67 (Alaska 1981); Alaska R.Evid. 403. The issue, therefore, is whether the trial court abused its discretion in excluding the proffered evidence.

The general rule is that while evidence of prior convictions may be admitted to contradict the particular statements of an opposing witness, such evidence is not admissible to contradict a witness as to collateral matters. Jones v. State, 576 P.2d 997, 999-1000 (Alaska 1978); Davenport v. State, 519 P.2d 452, 455 (Alaska 1974); Freeman v. State, 486 P.2d 967, 979-80 (Alaska 1971); 98 C.J.S. Witnesses §§ 629, 633, 639 (1957). We stated in Davenport that “facts which are relevant to the issues of the case [are not collateral].” 519 P.2d at 455.

Here, the defendant had already conceded that he had been drinking during the night prior to and on the morning of the accident, and that the collision was his responsibility. Thus, the material issue of whether or not he was intoxicated at the time of the accident was resolved. Rhines’ statement as to his past conduct could only have pertained to the issue of his state of sobriety. Since the latter is established by Rhines’ concession, any questions as to his past conduct raised by the statement “I usually don’t drive and drink” become irrelevant.

We also acknowledged in Davenport that “facts independently provable to impeach or disqualify the witness, whether or not to contradict him,” are admissible as non-collateral issues. 519 P.2d at 455. Evidence of the past conviction was not independently admissible to impeach the defendant’s credibility, as we observed above in our discussion of Rule 609.

Because the testimony sought to be contradicted was irrelevant to any material facts at issue and the contradicting evidence was inadmissible on independent grounds, we rule that Rhines’ statement pertained to a collateral matter and should not have been subject to attack by contradicting evidence. Taking into account the potential for prejudice, it is clear that the trial court did not abuse its discretion in excluding the past conviction. The court’s ruling is affirmed.

Shane also contends that the trial court erroneously excluded evidence of Rhines’ insurance policy after permitting counsel for defendant to introduce evidence on Rhines’ financial condition. The purpose of introducing the insurance policy was to establish Rhines’ ability to pay punitive damages. For the reasons set forth below, we affirm the trial court’s ruling. At trial, Rhines introduced evidence that his take-home pay was about $1600 per month and that he owned a trailer, several unimproved lots, and a triplex with a total value of about $35,000.

This evidence was offered to show Rhines’ inability to absorb a punitive damages award. Shane did not object contemporaneously to the introduction of the evidence, but argues now that evidence of Rhines’ insurance should have been admitted in order to give the jury the complete view of Rhines’ financial situation. We disagree. The special verdict form submitted to the jury required the jury to answer two separate questions regarding punitive damages: whether Shane was entitled to punitive damages and the amount of those damages.

The jury responded “no” to the threshold question of whether Shane was entitled to punitive damages. Given the verdict that Rhines’ conduct was not so outrageous as to merit punishment, it follows that exclusion of evidence of liability insurance was, if error, merely harmless error. It is argued that lack of evidence of liability insurance may influence jurors in their decision whether to award punitive damages, as well as how much to award. We agree that evidence of liability insurance may well affect a jury’s decision whether to find a party liable, either for compensatory or punitive damages.

However, the danger that evidence of insurance will persuade a jury to alter its view on the threshold question of entitlement is precisely why Evidence Rule 411 requires exclusion of that evidence. Punitive damages are designed to punish the wrongdoer and to deter him and others from similar wrongdoing in the future. Sturm, Ruger & Co. v. Day, 594 P.2d 38, 47 (Alaska 1979), modified on rehearing on other grounds, 615 P.2d 621 (Alaska 1981), modified on further rehearing on other grounds, 627 P.2d 204 (Alaska 1981), cert. denied, 454 U.S. 894, 102 S.Ct. 391, 70 L.Ed.2d 209 (1981).

Although evidence of insurance arguably is relevant to the appropriate measure of punitive damages, it is not relevant to the threshold question of whether a party’s conduct is so reprehensible that punishment is necessary or whether punitive damages will deter others from engaging in similar conduct. When examining a defendant’s conduct to determine whether punitive damages are appropriate, it should make no difference that the party is wealthy or impoverished, or insured rather than uninsured.

Either the conduct is reprehensible enough to warrant punitive damages, or it is not, and the existence or absence of liability insurance has no bearing on that issue. The trial court also refused Shane’s request that it take judicial notice of AS 09.45.730 and 15 U.S.C. § 15 (1976) (amended 1980 and 1982) and give an instruction on them, and refused to allow counsel to argue treble damages as an appropriate award for punitive damages. Shane contends that this was error. We disagree.

Alaska Statutes 09.45.730 prohibits trespass by cutting or injuring trees or shrubs, authorizing an award of treble damages in aggravated cases, and 15 U.S.C. § 15 (1976) (amended 1980 and 1982) authorized similar damages in suits arising from violations of the federal antitrust laws. The interests protected by these statutes, plainly, have nothing in common with those involved here; they can have no relevance even as examples of punitive damages formulas. On the other hand, their potential to mislead or confuse the jury is evident.

The decision whether to include a particular instruction rests with the discretion of the trial court. Tripp, Inc. v. Kenneth A. Murray Insurance, Inc., 600 P.2d 1361, 1368-69 (Alaska 1979). Counsel attempts to argue that the requested instructions were mandated by Evidence Rule 202(a). Rule 202(

a) requires the trial court to take judicial notice of the common law, the Constitution and public statutes of the United States and of this state, the Alaska Administrative Code, and all rules adopted by this court, even without request by a party. There is no requirement, however, that the jury be instructed on every matter of law to which judicial notice must be given. A primary function of jury instructions is to inform the jury of the law applicable to the facts before them. Tittle v. Hurlbutt, 53 Hawaii 526, 497 P.2d 1354, 1357 (Hawaii 1972).

The ends of justice would be poorly served, and much time and money wasted, by reading to the jury every state and federal statute, or by visiting upon it the law contained in a dozen jurisdictions. Instructions which tend"* to mislead, confuse, or divert the jury ought not be given. Millenson v. Department of Highways, 41 Colo.App. 460, 590 P.2d 979, 982 (Colo.App.1978). The trial court did not abuse its discretion by refusing to instruct the jury on statutes not applicable to the controversy. Nor did it err in refusing to permit counsel to argue to these statutes.

The trial court is vested with the discretion to control the scope and content of argument of counsel. P.J. Frank Realty, Inc. v. Heuvel, 284 Or. 301, 586 P.2d 1123, 1127 (Or.1978); Hunter v. Kenney, 11 N.M. 336, 422 P.2d 623, 625 (N.M.1967). It was not an abuse of discretion for the trial court to disallow counsel to argue to statutes having no bearing on the facts at hand and which might tend to distract or confuse the jury. The judgment is AFFIRMED. COMPTON, J., concurs. BURKE, C.J., with whom MATTHEWS, J., joins, dissents in part and concurs in part. .

Rhines’ remark came in the course of the following exchange: Q: Do you think if you hadn’t been drinking and driving, you maybe would have been able to avoid that accident? A: I’m pretty sure it was a contributing factor. I usually don’t drive and drink. I made a mistake, I think. Q: Okay. A: It was my responsibility. (Emphasis added.) . Many courts hold that collateral matters brought out on direct examination are subject to contradiction. See 98 C.J.S. Witnesses § 633, at 653 n. 6 (1957); C. McCormick, Law of Evidence § 47, at 98 (2d ed. 1972).

We think the better rule is that evidence which is offered to contradict a collateral matter is inadmissible, whether or not the matter was brought out on direct. See McCormick, supra, at 98 n. 48. . Arguably, Rhines’ history of driving while intoxicated on other occasions was admissible on the issue of his culpability, an essential consideration for the jury in determining Shane’s right to recover punitive damages. See Sturm Ruger & Co. v.

Day, 594 P.2d 38, 46 (Alaska 1979), modified on rehearing on other grounds, 615 P.2d 621 (Alaska 1981), modified on further rehearing on other grounds, 627 P.2d 204 (Alaska 1981), cert. denied, 454 U.S. 894, 102 S.Ct. 391, 70 L.Ed.2d 209 (1981), quoting Bridges v.

Alaska Housing Authority, 375 P.2d 696, 702 (Alaska 1962) (“[I]n order to recover punitive or exemplary damages, the plaintiff must prove that the wrongdoer’s conduct was ‘outrageous, such as acts done with malice or bad motives or a reckless indifference to the interests of another.’ ”) Shane, however, does not make this argument, and we decline to consider it sua sponte. . Even were the testimony not collateral to the material issue it was properly excluded for an alternate reason.

Evidence is admissible to contradict a witness’s specific testimony but the evidence against Rhines does not necessarily contradict his testimony. Rhines’ statement was, “I usually don’t drive and drink.” Evidence of a prior conviction does not prove that Rhines usually does drive and drink. The contradiction is less certain than in United States v. Alvarez-Lopez, 559 F.2d at 1158, where evidence of a past conviction contradicted the witness’s denial of any previous arrest.

Unless the contradiction is clear and obvious, the evidence should be excluded as too prejudicial. .The Special Verdict form read in part: Question No. 7: If you find that defendant John W. Rhines is liable for any compensatory damages, do you find that the plaintiff is entitled to recover punitive damages from defendant Rhines under the instructions which you have been given? Answer “yes” or “no.” Answer: No. Question No. 8: What is the total amount of punitive damages, if any, you find against defendant John W. Rhines? Answer: SNone. .

Rule 411 provides, in part, that “[ejvidence that a person was or was not insured against liability is not admissible on the issue whether he acted negligently or otherwise wrongfully ” (emphasis supplied). As the commentary to this rule explains: More importantly, perhaps, the rule is designed to prevent a jury from deciding a close case on an improper basis — i.e., whether or not a party is insured.

There is a danger that insurance evidence might skew the decision-making process of the jury by making it regret a possibly wrong decision against an uninsured person much more than a similar decision under identical facts against a person whose insurance status is unknown, or by making the jury regret any erroneous decision against an insured party less than it would an erroneous decision against a person whose insurance status is unknown. This is not to suggest that a jury will intentionally make a mistake.

It suggests only that in close cases someone must bear the risk of error, that the presence of absence of insurance is not regarded as an appropriate guide for allocating the risk, and that it is possible that a jury will misuse insurance evidence. .

AS 09.45.730 provides: A person who cuts down, girdles, or otherwise injures or carries off a tree, timber, or shrub on the land of another person or on the street or highway in front of a person’s house, or of a village, town, or city lot, or cultivated grounds, or on the commons or public grounds of a village, town, or city, or on the street or highway in front of them, without lawful authority, is liable to the owner of that land, or to the village, town, or city for treble the amount of damages which may be assessed in a civil action.

However, if the trespass was casual or involuntary, or the defendant had probable cause to believe that the land on which the trespass was committed was his own or that of the person in whose service or by whose direction the act was done, or where the timber was taken from unenclosed woodland for the purpose of repairing a public highway or bridge upon the land or adjoining it, only actual damages may be recovered. . 15 U.S.C. § 15 (Amended September 12, 1980, Pub.L. 96-349, § 4(a)(1), 94 Stat. 1156; Dec. 29, 1982, Pub.L. 97-393, 96 Stat. 1964) provided: Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee. .

Any error by the trial court in refusing to take judicial notice of the proffered statutes, if it was error, was harmless, since it remained in the discretion of the trial court to forbid counsel from arguing the statutes, and to refuse to give an instruction on them.