Opinion
Court of Appeals No. A-11880 No. 6249
10-28-2015
CARL LAMBERT DECKER, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Appearances: Michael B. Logue, Denali Law Group, Anchorage, for the Appellant. Sarah E. Stanley, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, 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. Trial Court No. 3AN-12-10213 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Alex Swiderski, Judge. Appearances: Michael B. Logue, Denali Law Group, Anchorage, for the Appellant. Sarah E. Stanley, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. PER CURIAM.
The Municipality of Anchorage charged Carl Lambert Decker with operating under the influence (OUI). Under the Municipal Code, a person can commit OUI by operating a motor vehicle when the person's blood alcohol level exceeds the legal limit (the "blood alcohol theory") or by operating a motor vehicle when the person is under the influence of an impairing substance (the "impairment theory"). The charging document in this case did not specify the theory under which the Municipality was prosecuting Decker. But near the end of trial, the Municipal prosecutor clarified that she was proceeding under only the blood alcohol theory and specifically disavowed any reliance on the impairment theory.
Anchorage Municipal Code (AMC) 09.28.020.A.
AMC 09.28.020.B.2.
AMC 09.28.020.B.1.
Decker objected, arguing that he would be prejudiced if the court allowed the prosecution to proceed solely on the blood alcohol theory. Noting that Decker's opening statement had focused on the impairment theory, the trial court offered Decker a mistrial and the opportunity to retry the case with the knowledge that the blood alcohol theory was the Municipality's only theory. Decker's attorney refused the offer of a mistrial, citing the "undue burden" a new trial would place on his client, and agreed to proceed with the court's ruling.
Decker now appeals, asserting that the trial court erred in allowing the Municipality to disavow the impairment theory mid-trial. We conclude that any claim of error has been waived in this case. Contrary to Decker's claims on appeal, the prosecutor's disavowal of the impairment theory did not introduce a new element or new theory, nor did it materially change the type of evidence adduced at trial. Instead, as the trial court recognized, Decker's only real claim of prejudice was that he would have delivered a different opening argument or asked slightly different questions on cross-examination. Because accepting the trial court's offer of a mistrial would have cured any such prejudice, we find no error.
See Muller v. State, 478 P.2d 822, 828 (Alaska 1971) ("[T]o allow the appellants to prevail on appeal by maintaining a position diametrically opposed to that which they took at trial would be inimical to the integrity of the judicial process."); see also United States v. Hnang, 960 F.2d 1128, 1135 (2d. Cir. 1992) (defendant generally waives right to appeal error where, alerted to that error, he rejects trial court's offer of mistrial); United States v. Chica, 14 F.3d 1527, 1532 (11th Cir. 1994); Delgado v. United States, 403 F.3d 208, 209 (9th Cir. 1968).
Contrast Shorty v. State, 214 P.3d 374, 385 (Alaska App. 2009). --------
Accordingly, the district court's judgment is AFFIRMED.