Opinion
Court of Appeals No. A-10867 Trial Court No. 3AN-09-6442 CR No. 5920
02-13-2013
JASON G. ASHENFELTER SR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the District Court, Third Judicial District, Anchorage, Peter Ashman, Judge.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Bolger and Allard, Judges.
ALLARD, Judge.
Jason G. Ashenfelter Sr. was convicted of felony driving under the influence. On appeal, he argues that the superior court erred when it denied his motion for a new trial based on newly discovered evidence. For the reasons explained here, we affirm the judgment of the superior court.
AS 28.35.030(a)(1) - (2), (n).
Background
In June 2009, Ashenfelter was discovered unconscious behind the wheel of his vehicle; the keys were in the ignition and the motor was running. He remained unresponsive until Anchorage police officers attempted to unlock the car doors.
When Ashenfelter got out of the vehicle, he could not maintain his balance and had to lean on the vehicle to remain standing. He was disorientated, his speech was slurred and incoherent, and he had difficulty understanding questions. His eyes were bloodshot and he smelled of alcohol. Ashenfelter admitted to the police that he had been drinking and that he was too intoxicated to drive. He explained that he had been on his way home when he stopped at the gas station where the police found him. The police administered several field sobriety tests, which Ashenfelter failed. A DataMaster test later showed that his blood alcohol content was .119 percent.
The State charged Ashenfelter with felony driving under the influence under both the under-the-influence theory and the blood-alcohol-level theory. The jury convicted Ashenfelter under both theories through a general verdict form.
See 28.35.030(a)(1) - (2).
Ashenfelter's new trial motion
In July 2010, after Ashenfelter's conviction in this case, the State disclosed to the Alaska Public Defender Agency and the Office of Public Advocacy that from 2006 to the end of 2009 the State's crime lab had been using an erroneous mathematical formula when setting the target values of some of the Alco bottles used for the DataMasters throughout the state. The mathematical error affected some, but not all, of the Alco bottles prepared by the State's crime lab.
The Alco bottles are used in the self-check procedures that the DataMaster performs before and after testing a defendant's breath test to ensure that the instrument is properly calibrated and the test results are valid. This process requires the DataMaster to draw and test a sample of gas from an Alco bottle containing a known alcohol content (i.e., the bottle's "target value"). The Alco bottles are labeled with the correct target value and the person administering the test enters the labeled target value into the DataMaster in response to a series of questions from the DataMaster. As long as the DataMaster's analysis of the Alco bottle sample is the same as the value entered by the test administrator (or within the established working tolerance), the DataMaster determines that it is calibrated properly and the defendant's test then proceeds, the sample is taken, and the results analyzed.
Although the crime lab's mathematical error resulted in inaccurate target values for some Alco bottles, in most cases the inaccuracy was so small that it did not actually affect the DataMaster's self-check procedures. That is, in almost every case where an error occurred, the inaccurate target value was so close to the accurate target value that the DataMaster's self-check test would still have fallen within the DataMaster's working tolerance. Of the 2,465 DataMaster tests that used the mis-marked Alco bottles, the crime lab identified only two cases where the inaccurate target values made a difference in the self-check procedures and resulted in a DataMaster test proceeding that would have been terminated if the correct target value had been used.
When Ashenfelter learned of the crime lab's error, he filed a motion for a new trial on the basis of newly discovered evidence. Ashenfelter did not offer any direct evidence that his case involved an Alco bottle with an inaccurate target value nor did he claim that his case was one of the two cases that had been determined to have been directly affected by the error. Ashenfelter argued only that the crime lab's error meant that all DataMaster results were now suspect and that there was no way to know if the one used in his case "was calibrated correctly."
In response, the State argued that the crime lab's error was not relevant in this case because there was no indication that Ashenfelter's test was done with an Alco bottle with an inaccurate target value. The State further explained that the inaccurate target values on the Alco bottles had nothing to do with the "calibration" of the DataMasters and disagreed with Ashenfelter that the proper calibration of every DataMaster was now in question.
After oral argument, Superior Court Judge pro tem Peter G. Ashman denied the motion. He found that the new evidence was "material to such an attenuated degree that ... it is virtually irrelevant and in no way can the court conclude that the newly discovered evidence in this case would have led to a different result at trial."
Ashenfelter now appeals.
Discussion
When deciding a motion for new trial based on newly discovered evidence, the ultimate question for the judge is "whether the newly discovered evidence would likely produce a different verdict." To answer this question, it is the trial judge's duty "to assess the credibility of the newly discovered evidence and to decide the probable impact of that evidence based on [the judge's] view of its credibility." The trial court's denial of a new trial motion is within its sound discretion and will not be disturbed unless an abuse of discretion is shown. Denial of a motion for a new trial constitutes an abuse of discretion only when it is "clearly untenable or unreasonable."
Cathey v. State, 60 P.3d 192, 199 (Alaska App. 2002).
Gonzales v. State, 691 P.2d 285, 287 (Alaska App. 1984).
Id. at 286.
Id.
At the oral argument in the superior court, Judge Ashman pointed out that there was no evidence that the crime lab's error "bears on this case at all." There was nothing showing that the DataMaster in Ashenfelter's case used one of the affected bottles, let alone any evidence that Ashenfelter's case was one of the cases where the error made a difference in the outcome of the self-check procedures. Because there was no evidence showing that the crime lab's error affected Ashenfelter's case, Judge Ashman's denial of the motion for a new trial was not clearly untenable or unreasonable.
On appeal, Ashenfelter emphasizes that evidence of the crime lab's error could have been used more generally to show that the State's testing procedures and the DataMaster were not infallible. He asserts that had the jury heard this additional impeachment evidence, it might have reached a different verdict. We disagree.
This was not a situation where the State's case rested exclusively on the results of a chemical test. Here, as Judge Ashman noted, there was "substantial" evidence of Ashenfelter's intoxication. This separate evidence of Ashenfelter's intoxication, which included Ashenfelter's own admission that he was too intoxicated to drive, corroborated the general accuracy of the .119 DataMaster test result. Judge Ashman viewed the crime lab's error as "virtually irrelevant" to Ashenfelter's case not only because there was no evidence that the mislabeled bottles had been used in his case but also because Ashenfelter's .119 DataMaster result already provided for a large margin of error and was directly supported by other evidence of intoxication. We agree with Judge Ashman that whatever additional impeachment value the newly discovered evidence of the crime lab's error may have provided was highly unlikely to have altered the outcome of this trial. We conclude that Ashenfelter has failed to show that Judge Ashman abused his discretion in denying his motion for a new trial.
Cf. Mooney v. State, 167 P.3d 81, 90-91 (Alaska App. 2007) (distinguishing between newly discovered evidence that is merely "cumulative or impeaching" and newly discovered evidence, including impeachment evidence, that may undermine the government's case in a new and significant way and therefore may warrant a new trial).
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Conclusion
The judgment of the superior court is AFFIRMED.