Opinion
Court of Appeals No. A-11342 Trial Court No. 3KO-11-359 CR No. 6010
12-18-2013
JASON W. BRENNICK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan S. Bair, Assistant Public Advocate, Appeals & Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Stephen B. Wallace, District Attorney, Kodiak, 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 authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Kodiak, Steve W. Cole, Judge.
Appearances: Dan S. Bair, Assistant Public Advocate, Appeals & Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Stephen B. Wallace, District Attorney, Kodiak, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge .
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge MANNHEIMER.
Jason W. Brennick appeals his convictions for driving under the influence, reckless endangerment, and sixth-degree controlled substances misconduct. These charges arose from an incident in which Brennick drove his pickup truck at speeds approaching 100 miles per hour, and then crashed his motor vehicle into a utility pole near the entrance to the Kodiak airport.
AS 28.35.030(a), AS 11.41.250, and AS 11.71.060(a)(1), respectively.
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Brennick contends that his trial was unfair because the trial judge allowed the State to present an expert witness from the State Crime Laboratory during its rebuttal case. According to Brennick, this witness's testimony was not proper rebuttal to the defense case, and thus the trial judge should not have allowed the State to present this witness.
For the reasons explained in this opinion, we conclude that the trial judge did not abuse his discretion when he decided to let the State present this expert witness in rebuttal. We therefore affirm Brennick's convictions.
Underlying facts
Two United States Coast Guard military police officers saw a pickup truck going 98 miles per hour in a 45-mile-per-hour zone. The truck was driving in the wrong lane, headed directly at the officers' vehicle, but then the driver corrected course, back into the proper lane. The officers turned around and followed the truck until it smashed into a utility pole near the entrance to the Kodiak airport. At this point, the officers summoned a state trooper.
There were two occupants in the truck, and Brennick appeared to be the driver. One of the Coast Guard police officers later testified (at Brennick's trial) that he saw both occupants inside the truck when he reached the scene, and that he watched Brennick emerge from the driver's side of the truck. The other Coast Guard police officer testified that he did not see Brennick get out of the truck, but the officer did see who got out of the passenger side — and it was the other occupant.
The state trooper who responded to the scene testified that Brennick seemed to be impaired. Brennick told the trooper that he had consumed two drinks before driving. The trooper also testified that Brennick's passenger appeared to be coaching Brennick to say that he (that is, the passenger) had been driving the truck — and that, following this coaching, Brennick then denied driving.
An ensuing breath test showed that Brennick's blood alcohol level was .151 percent.
Brennick testified at trial and denied being the driver. (Brennick asserted that the other occupant of the vehicle had been driving.)
Brennick conceded that, at the scene, he told the trooper that he had been driving, but he asserted that he misspoke — that he was speaking confusedly, due to the collision and the fact that he was "slightly inebriated".
Brennick also conceded that he had consumed more than the two drinks he told the trooper about. He admitted that he had "double" that amount — and perhaps as many as five drinks. However, Brennick asserted that even though he had consumed this amount of alcohol, he was only slightly inebriated, and his memory of this incident was "good".
After Brennick testified (and the defense rested its case), the prosecutor indicated that he wished to call an expert witness during the State's rebuttal case: Colleen O'Bryant, an employee of the State Crime Laboratory. The prosecutor told the court that O'Bryant would testify about "alcohol physiology", and how the breath test worked. According to the prosecutor, O'Bryant was prepared to testify that, given the time frame and given Brennick's breath test result, Brennick likely consumed ten or eleven drinks, not the five that he claimed.
Brennick's attorney objected to this proposed testimony, arguing that it was irrelevant because Brennick's defense was not lack of intoxication, but rather a mistake concerning the identity of the driver. The defense attorney also argued that, to the extent Brennick's level of intoxication was relevant, the prosecutor should have pursued this subject during the State's case-in-chief, and during his cross-examination of Brennick.
In response to the defense attorney's assertion that Brennick's amount of alcohol consumption was irrelevant, the trial judge noted that Brennick had already conceded (in his testimony) that he did not tell the truth to the state trooper about how much alcohol he had consumed. The judge suggested that the prosecutor was entitled to show that Brennick was still not being honest on that subject in his trial testimony. Ultimately, the trial judge allowed the prosecutor to present O'Bryant's testimony.
O'Bryant testified about how the DataMaster breath test machine works, and about the physiology of alcohol absorption and elimination. O'Bryant concluded, given the circumstances of the case and given the breath test result, that Brennick must have consumed ten or eleven standard servings of alcohol — so if Brennick had only five drinks (as he testified), then each of those drinks must have contained two or more servings of alcohol.
After the State presented this rebuttal testimony, the trial judge gave Brennick's attorney the opportunity to present surrebuttal testimony, but the defense attorney declined.
Why we uphold the trial judge's ruling
On appeal, Brennick renews his argument that O'Bryant's testimony was irrelevant, and not proper rebuttal, because Brennick's defense at trial was identity, not lack of intoxication.
But Brennick testified at trial that he only consumed five drinks, that he was only slightly intoxicated, and that he had a good recall of the events being litigated. O'Bryant's testimony tended to show that Brennick consumed at least twice as much alcohol as he admitted in his testimony. If the jury found O'Bryant's testimony to be credible, then the jury could reasonably conclude that this higher amount of alcohol consumption cast doubt on Brennick's assertions that he was only a little intoxicated, and that he had an accurate memory of what happened that night. The jury could also reasonably conclude that O'Bryant's testimony tended to show that Brennick was still not willing to admit the whole truth about his actions that night.
In Carson v. State, 736 P.2d 356, 362 (Alaska App. 1987), this Court held that the State was properly allowed to present evidence concerning the defendant's level of intoxication during its rebuttal case, after the defendant admitted (during the defense case) that he had consumed alcohol, but denied being influenced by it.
Brennick's case presents an analogous situation. We therefore conclude that the trial judge did not abuse his discretion when he allowed the prosecutor to present the challenged testimony during the State's rebuttal case.
Conclusion
The judgement of the district court is AFFIRMED.