Opinion
Court of Appeals No. A-10379.
March 17, 2010.
Appeal from the District Court, Third Judicial District, Anchorage, Alex Swiderski, Judge, Trial Court No. 3AN-08-7360 CR.
Michael B. Logue, Gorton, Logue, and Graper, Anchorage, for the Appellant. Hanley Rebecca Smith, Assistant Municipal Prosecutor, and Dennis A.
Wheeler, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Sean Cominsky was convicted of resisting or interfering with a police officer for disobeying "lawful orders" to produce his driver's license and proof of insurance during a traffic stop. Cominsky argues that the district court erroneously instructed the jury on the meaning of "lawful orders." He argues that the court should have instructed the jury in the manner he proposed. For the reasons discussed below, we reject Cominsky's claims and affirm his conviction.
Anchorage Municipal Code (AMC) 8.30.010.A.6.
Facts and proceedings
Shortly after midnight on July 4, 2008, Anchorage Police Officer Dwayne Jones was driving his patrol car on Muldoon Road when he noticed a vehicle exit a parking lot and drive on the sidewalk. The vehicle crossed Muldoon Road and entered the parking lot of a bar. Because the Anchorage Municipal Code prohibits driving on the sidewalk, and because Officer Jones was concerned the driver might be intoxicated, he initiated a traffic stop.
AM C 9.36.035 ("No person may operate a motor vehicle upon any public right-of-way other than a roadway as defined in section 9.04.010.").
The driver, Cominsky, was out of his vehicle by the time Jones contacted him. For officer safety reasons, Jones twice asked Cominsky to get back in his vehicle. Cominsky refused. Jones then asked Cominsky to produce his driver's license, registration, and proof of insurance. Cominsky again refused, telling Jones he was on private property and had no duty to provide those documents. Jones repeated his request two more times, to no avail.
Apparently attracted by the commotion, patrons of the nearby bar came out to the parking lot and began to question Officer Jones. Jones believed the situation was potentially dangerous so he called for police backup. When the backup officers arrived, they handled the bar patrons and Jones arrested Cominsky for resisting or interfering with a police officer.
At his trial on that charge, Cominsky testified that he refused to provide his driver's license, registration, and proof of insurance because he felt that he was not violating any laws. He said he refused to get back in his vehicle because the vehicle had already been "secured." Cominsky testified that Officer Jones never warned him that he would be arrested if he failed to comply with his orders. Cominsky said he would have provided his license, registration, and proof of insurance if he had known he was subject to arrest.
The jury convicted Cominsky, and he appeals.
Did the court erroneously instruct the jury?
Under the Anchorage Municipal Code, a person is guilty of resisting or interfering with a peace officer when "[t]he person intentionally, recklessly or knowingly disobeys the lawful orders of any public officer."
AMC 8.30.010.A.6.
Officer Jones asked Cominsky several times to produce his driver's license, registration, and proof of insurance, and Cominsky refused to do so. Under the Anchorage code, motorists are required to produce a driver's license and proof of insurance at the request of a police officer. (Motorists are also required to have the vehicle registration in the vehicle while driving, but there is no express requirement that the motorist produce that registration for inspection.) District Court Judge Alex Swiderski therefore instructed the jury that
AMC 9.12.030.A and AMC 9.28.030.B, respectively.
AMC 9.52.020.
An order to produce an operator's license or proof of insurance is a lawful order when that order is reasonably related to a legitimate police investigation.
Cominsky argues that this instruction was erroneous because it left the jury to guess at what "lawful orders" he was charged with disobeying. We find no merit to this claim. Judge Swiderski instructed the jury that an order to produce a driver's license or proof of insurance is a "lawful order" as long as the order is reasonably related to a legitimate police investigation. The jury was not told to consider whether any other order by Officer Jones constituted a "lawful order."
Even assuming Judge Swiderski's instruction left the door open for the jury to convict Cominsky of resisting or interfering with a police officer for his other conduct — that is, for not getting back in his vehicle or producing his vehicle registration when Officer Jones asked him to — any ambiguity in the instruction was removed by the parties' closing arguments. The only conduct the prosecutor discussed in closing was Cominsky's failure to produce his driver's license and proof of insurance. Cominsky likewise told the jury that the lawful orders at issue were Officer Jones's orders that Cominsky produce his driver's license and proof of insurance. Cominsky further asserted (and the prosecutor did not dispute) that the Municipality had failed to establish that asking him to get back in his vehicle was a lawful order.
This court has repeatedly held that the arguments of the parties can cure flaws or omissions in the jury instructions. In this case, any arguable omission in the court's instruction was cured by the parties' arguments to the jury that the only "lawful orders" at issue were Jones's orders that Cominsky produce his license and proof of insurance.
Buckwalter v. State, 23 P.3d 81, 87 (Alaska App. 2001) (citing Braun v. State, 911 P.2d 1075, 1081 (Alaska App. 1996); Norris v. State, 857 P.2d 349, 355 (Alaska App. 1993); O'Brannon v. State, 812 P.2d 222, 229 (Alaska App. 1991)).
Cominsky's next claim is that the instruction gave the jury no guidance on how to distinguish between a lawful and unlawful order. But as just discussed, the jury was told that the only orders at issue were the orders that Cominsky produce a driver's license and proof of insurance. The jury was told that those orders were lawful if they were reasonably related to a legitimate police investigation. The court's instruction and the parties' arguments thus clearly informed the jury which orders were at issue and what finding was required to establish that those orders were lawful.
Cominsky also argues, for the first time on appeal, that the instruction gave the jury no guidance on the difference between an order and a request. There was no need to instruct the jury on the meanings of those terms. Generally, trial courts need not define words that have a commonplace meaning. An order is defined as "a command, direction, or instruction, usually backed by authority." Cominsky has not shown how this term might have been susceptible to a different interpretation in his case. We therefore find no plain error. Did the court err in refusing to give Cominsky's proposed instructions?
Dunn v. State, 426 P.2d 993, 995 (Alaska 1967).
Webster's New World College Dictionary at 953 (3d ed. 1997).
See Heaps v. State, 30 P.3d 109, 113-14 (Alaska App. 2001).
Cominsky next argues that the court erred in refusing to give the alternative instructions he proposed. Cominsky asked Judge Swiderski to instruct the jury that:
Defendant's alleged conduct in refusing to comply with an officer's order must constitute more than a mere annoyance or harassment. The refusal must substantially interfere with the officer's ability to respond to an emergency situation.
This instruction was based on language in our unpublished decision in Lake v. Anchorage. In Lake, the police were dispatched to an apartment on reports that a screaming and possibly suicidal woman was locked in the apartment with children and that a man was locked outside. When the officers arrived on the scene they found the defendant, Lake, outside the apartment and Lake was upset, intoxicated, and anxious to get back in the apartment. Lake tried to follow the police up the stairs into the apartment and the police ordered him downstairs at least three or four times. Finally the officers warned Lake that he would be arrested if he did not go down the stairs, and when Lake continued to disregard the order, they arrested him. Like Cominsky, Lake was charged under the Anchorage code with resisting or interfering with a peace officer by disobeying lawful police orders.
Alaska App. Memorandum Opinion and Judgment No. 5358 (July 9, 2008), 2008 WL 2697771.
Id. at 2, 2008 WL 2697771 at *1.
Id.
Id.
Id. at 2-3, 2008 WL 2697771 at *1.
Id. at 1, 3, 2008 WL 2697771 at *1.
Lake challenged his conviction, arguing that there was insufficient evidence that the police gave him "lawful orders." We rejected that claim, observing that the police were in a potentially hazardous situation, that Lake's behavior risked escalating the situation, and that Lake was warned that he would be arrested if he did not comply with the officers' orders. We noted in conclusion that Lake's conduct was "more than a mere annoyance or harassment: Lake's refusal to follow the orders substantially interfered with the officers' ability to respond to the emergency calls." Based on Lake, Cominsky asked Judge Swiderski to instruct the jurors that they could not convict him unless they found that his refusal to comply with Jones's orders was "more than a mere annoyance or harassment" and that his conduct "substantially interfere[d] with the officer's ability to respond to an emergency situation."
Id. at 7-8, 2008 WL 2697771 at *3-4.
Id. at 8, 2008 WL 2697771 at *4.
A court is not required to approve an instruction on the defendant's theory of the case if the instruction incorrectly states the law. Judge Swiderski concluded that Lake did not apply to the circumstances of this case. He reasoned that the police orders in Lake were justified by the emergency situation, whereas in this case Officer Jones had a legal right by ordinance to demand that Cominsky produce his driver's license and proof of insurance.
Jackson v. American Equity Ins. Co., 90 P.3d 136, 142 (Alaska 2004); see also Snyder v. State, 930 P.2d 1274, 1280 (Alaska 1996) ("Whether or not a requested jury instruction should be given lies in the discretion of the trial court.").
We agree that Lake is distinguishable on this basis. In Lake, there was no ordinance making it unlawful for the defendant to follow the officers up the stairs to his apartment. The police were only authorized to order Lake down the stairs because his conduct risked escalating a potentially hazardous situation.
By contrast, the Anchorage Municipal Code requires motorists to have a driver's license "at all times when operating a motor vehicle" and to "display the license upon demand" by a police officer. "Display" is defined as "the manual surrender of a license certificate into the hands of the demanding officer for his inspection." The municipal code further provides that motorists "shall have proof of motor vehicle liability insurance at all times when driving a motor vehicle" and "shall present the proof for inspection upon the demand of a police officer." Officer Jones was thus authorized by law to demand Cominsky's driver's license and proof of insurance in the context of a lawful traffic stop. Judge Swiderski therefore properly refused to instruct the jury in the manner Cominsky proposed.
AMC 9.12.030.A.
AMC 9.12.030.B.
AMC 9.28.030.B. Motorists are not subject to conviction if they later prove that they had liability insurance at the time of the arrest or citation. Id.
See also Brown v. State, 182 P.3d 624, 629 (Alaska App. 2008) (citing 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.3(c) at 378 (4th ed. 2004) (noting that a "routine" traffic stop generally encompasses a request for the motorist's driver's license, registration, and proof of insurance and a computer check to verify the validity of these documents); Clark v. Anchorage, 112 P.3d 676, 678 n. 3 (Alaska App. 2005) (citing Chang v. State, 608 S.E.2d 283, 285 (Ga. Ct. App. 2004) ("[I]t does not unreasonably expand the scope or duration of a valid traffic stop for an officer to prolong the stop to immediately investigate and determine if the driver is entitled to continue to operate the vehicle by checking the status of the driver's license, insurance, and vehicle registration[.]") (citation omitted)).
Cominsky also asked the court to instruct the jury that: "Prior to being arrested for resisting an officer, a defendant must be warned that his refusal to comply with the order will submit him to being arrested." This language was also based on Lake; in upholding Lake's conviction for disobeying a lawful police order, we noted that Lake had been warned that he would be arrested if he did not comply. We did not specify in Lake whether we would have upheld Lake's conviction if he had not been warned. The facts of Cominsky's case do not require us to address that issue because, again, the Anchorage ordinances put Cominsky on constructive notice that the police had a legal right to demand his driver's license and proof of insurance during a lawful traffic stop and that he could be convicted of resisting or interfering with a police officer if he did not comply with those lawful orders. Conclusion
We AFFIRM Cominsky's conviction.
I write separately to emphasize the narrow nature of our decision.
Although the title of Anchorage Municipal Ordinance 08.30.010 — "Resisting or interfering with [a] peace officer" — suggests that the ordinance applies only to orders given by police officers, the ordinance in fact makes it a crime to either knowingly or recklessly disobey any "lawful order" issued by any "public officer". An ordinance of this breadth could pose constitutional problems if, for instance, a reasonable person in the defendant's position would not understand the official to be issuing an order, or would reasonably believe that the official had no valid reason, or no authority, to issue such an order.
But the facts of Cominsky's case do not require us to pursue these matters further. Cominsky knowingly disobeyed two direct orders issued by a police officer investigating a traffic violation, and these orders were clearly lawful because the officer was doing no more than calling on Cominsky to comply with the obligations independently imposed by two other municipal ordinances: to produce his driver's license, and to produce proof of vehicle insurance.