Opinion
Court of Appeals No. A-10231.
March 30, 2011.
Appeal from the Superior Court, Fourth Judicial District, Randy M. Olsen, Fairbanks, Judge, Trial Court No. 4FA-07-409 CR.
Tracey Wollenberg, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Kevin L. Garner was convicted, in a jury trial conducted by Superior Court Judge Randy M. Olsen, of manslaughter and driving under the influence. Garner appeals his convictions.
AS 11.41.120(a)(1).
AS 28.35.030(a)(1).
Garner admits that, in the early morning hours of February 4, 2007, he was driving home after drinking. His car struck Catherine Ahsoak, and her body was dragged by his car to the residence where Garner was staying. Ahsoak was apparently passed out on the road when Garner hit her. He was unaware of her presence under his car until he was contacted by the police the next morning. Garner's main defense at trial was that he did not kill Ahsoak because she was already dead when he struck her. At trial, the State called a forensic pathologist, Dr. Stephen Erickson, who testified that, in his opinion, Ahsoak was alive when she was struck by Garner's car. In response, Garner called forensic pathologist Dr. Harry Bonnell who testified that, in his opinion, Ahsoak was already dead when Garner struck her. Garner's main contention on appeal is that Judge Olsen erred in a ruling that he made during the State's cross-examination of Dr. Bonnell. We conclude that the cross-examination was not reversible error. We therefore affirm.
Factual and procedural background
Around 11:00 on the morning of February 4, 2007, Ahsoak's body was discovered under Garner's car. Fairbanks Police responded to a 911 call and knocked on the door of the residence at which the car was parked. When Detective Christopher Nolan inquired about the car, Garner stated that it was his.
The evidence at trial revealed that the previous night, Garner had been out drinking with friends and had driven back to the residence at about 3:30 a.m. Detective Nolan testified that Garner stated that nothing unusual had happened while he was driving. When Nolan advised him that there was a body under his car, Garner did not believe him.
Detective Nolan and Sergeant Yamamoto administered field sobriety tests to Garner at about 11:00 a.m. Garner had a breathalyzer and a blood draw to test for alcohol content. The blood test indicated that he had a blood alcohol content of .09 percent at around noon. The breathalyzer test indicated a blood alcohol content of .06 percent at about 1:00 p.m. According to Nolan, Garner said he did not drink alcohol between the time he got back to the residence and the time the testing was conducted.
Police investigation determined that Garner's car hit Ahsoak near the intersection of 16th Avenue and Gillam Way, several blocks from the residence where Garner was staying. It appeared that Ahsoak was lying in the road when she was hit. She was last seen by her friend, Dwight Fletcher, on the night she died. He saw her leave a bar by herself between 11:00 p.m. and midnight. Fletcher testified that he thought it was around minus thirty degrees Fahrenheit that night. The next day, at the time of the accident report, it was six degrees.
Toxicology tests indicated that Ahsoak had a blood alcohol content of .229 when she died. She had about three to four times the recommended dose of Benadryl in her system. Hospital records showed that she had recently been prescribed a pain medication called Tramadol, but there was no evidence about whether or not the prescription was filled, and there were no tests performed to determine whether she had any Tramadol in her system when she died.
Garner was charged with manslaughter, failure to render assistance after an injury accident, and driving under the influence. A jury found him guilty of manslaughter and driving under the influence, and acquitted him of failure to render assistance.
AS 11.41.120(a)(1).
AS 28.35.060(c).
AS 28.35.030(a)(1).
The central issue in this case was whether Ahsoak was alive when Garner struck her. The State called Dr. Stephen Erickson, the forensic pathologist who performed the autopsy on Ahsoak's body. He indicated that, from the outset, his main concern was determining whether Ahsoak was alive or dead when Garner's car struck her. He concluded that Ahsoak was alive when Garner's car hit her. He concluded that Ahsoak was not killed by being struck by the car, but died as a result of the compression of the car on top of her. He agreed that Ahsoak had been highly intoxicated and that she had Benadryl in her system. He agreed that this placed her at high risk for hypothermia.
Dr. Harry Bonnell, a forensic pathologist, testified as a defense witness. Dr. Bonnell concluded that Ahsoak was already dead when Garner's car hit her. He stated that, had Ahsoak been alive when she was struck, he would have expected significantly more blood at the scene because Ahsoak's heart would have been pumping.
Dr. Bonnell took issue with several aspects of Dr. Erickson's toxicology report. One issue was Dr. Erickson's failure to draw a sample of eye fluid to test for alcohol content. According to Dr. Bonnell, this would have helped eliminate alcohol overdose as a cause of death because, in most alcohol overdoses, the eye fluid level of alcohol is higher than the blood level. If Ahsoak's eye fluid alcohol content was higher than her blood alcohol content, that would indicate that she had been more intoxicated at some point before her death.
Another issue involved the fact that Ahsoak had, two days prior to her death, been prescribed the pain reliever, Tramadol. Dr. Bonnell thought the autopsy should have included toxicology tests to determine whether Tramadol was present in Ahsoak's blood. Tramadol, like alcohol and Benadryl, is a sedative respiratory depressant, which leads to loss of coordination and balance.
Dr. Bonnell stated that he would have done several things differently from Dr. Erickson, but that his main concern was that Dr. Erickson had not conducted a microscopic examination of tissue samples from Ahsoak. He suggested that a microscopic examination would have allowed more accurate determination of whether her injuries occurred before or after death.
Dr. Bonnell concluded that Ahsoak's death was not caused by trauma or asphyxiation. He concluded that it was most likely that Ahsoak was already dead from hypothermia before she was run over.
On cross-examination, Dr. Bonnell stated that, whenever he did an autopsy, he performed microscopic examinations of slides of tissue samples. The prosecutor cross-examined Dr. Bonnell as follows:
Q: And [in this case] did you get all the information [that] the lab had that you needed for your opinion?
A: I got what was provided to me by defense counsel. I did not ask for anything, much less receive anything, directly from the lab.
Q: Did you ask for slides or to look at slides [of tissue samples]?
A: No.
Q: Are you here saying that there aren't any slides?
At this point, Garner's attorney objected. In a bench conference, he argued that the State was obligated to provide him with any and all autopsy slides as part of discovery, and he had not received any slides. The prosecutor stated that he did not know if there were any slides. Judge Olsen overruled the objection.
The prosecutor then questioned Dr. Bonnell about autopsy slides:
Q: To the extent — I'm trying to be nice about this, are you aware if there [were] any slides or not?
A: I don't remember there being any slides. I don't remember there being any report of any microscopic examination.
Q: Do you know, for a fact, that there are none . . . or you just don't have them?
A: I certainly don't have them, and I am unaware whether there are any or not.
On redirect examination, Dr. Bonnell testified that it was standard procedure to state in the autopsy report whether tissue samples had been taken and examined.
In its rebuttal case, the State presented Dr. Franc Fallico to testify as an expert in forensic pathology. He was the Chief Medical Examiner for the State of Alaska. He disagreed with Dr. Bonnell's conclusion that Ahsoak died from hypothermia. He testified that, "due to the circumstances of this death, hypothermia was not a factor as the cause of death." Why we conclude that the cross-examination about the slides was not reversible error
Garner argues that cross-examining Dr. Bonnell on the absence of autopsy slides was improper impeachment that should have been excluded. He argues that the prosecutor did not have a good-faith basis for believing that there were any slides. He contends that the prosecutor's questions unfairly undermined the defense expert's credibility, in a case where the expert's credibility was of paramount importance. He also claims that the questioning shifted the burden of discovery and proof to Garner, which "fundamentally affected the fairness" of his trial, contrary to his rights under the United States Constitution and the Alaska Constitution.
U.S. Const. amends. VI, XIV; Alaska Const. art. I, §§ 7, 11.
We agree with Garner that it would have been better if Judge Olsen had sustained his objection. The State concedes that "if slides were prepared by the State medical examiner's office as part of the autopsy, the State had an obligation to disclose them to the defense." Therefore, it appears that Dr. Bonnell and Garner were reasonable in concluding that, because the State had not provided any slides, no slides existed. The prosecutor should have been aware of this, and he should not have been allowed to imply that autopsy slides existed.
This is a problem because the jury would not be aware of standard discovery procedures in criminal cases. There was therefore a risk that, unless the jury was informed about the rules of discovery, the jury might falsely conclude that Dr. Bonnell was negligent in not investigating whether there were slides — since he had testified how important it was to make slides of tissue samples and examine them in performing a proper autopsy. The cross-examination about autopsy slides should not have been allowed.
But Garner had remedies in the trial court for this error. As we previously stated, on redirect examination, Dr. Bonnell testified that it was standard procedure for an autopsy report to refer to any microscopic examinations performed or existing slides of tissue samples created as part of the autopsy. When Dr. Fallico testified on rebuttal, Garner could have examined him about the fact that, if any microscopic examinations had been performed or slides of tissue samples created as part of the autopsy, it would have been standard procedure to refer to them in the report, and that it was reasonable for Dr. Bonnell to rely on the fact that, because he had not received any slides, none existed. Garner could also have asked Judge Olsen to take judicial notice of standard discovery procedures. So even if we assume that the State's cross-examination created a danger that the jury might be misled, Garner was able to correct any misimpression that the jury might have had.
We acknowledge Garner's contention that Dr. Bonnell's testimony was critical to his case, and therefore anything that unfairly undermined Dr. Bonnell's testimony was problematic. But if the State's cross-examination of Dr. Bonnell about the slides might have created the possibility of temporarily confusing the jury, that confusion was easily remedied. And the importance of the State's cross-examination on this point appears minimal in light of how the case was ultimately argued. The main thrust of the State's attack on Dr. Bonnell's testimony was Dr. Fallico's rebuttal testimony. Dr. Bonnell testified that Ahsoak died from hypothermia. But he conceded that he had limited expertise about hypothermia at extremely cold temperatures. He suggested that the parties consult Dr. Fallico.
The State called Dr. Fallico in rebuttal. He testified that Ahsoak had not died from hypothermia. In its argument to the jury, the State relied on Dr. Bonnell's concession about Dr. Fallico's expertise in hypothermia and emphasized Dr. Fallico's testimony to attack Dr. Bonnell's conclusions.
We conclude that, to the extent that Judge Olsen erred in allowing the State's cross-examination about the slides, the error was harmless. Why we conclude that admitting a photograph of a road sign covering found in Garner's trunk was harmless error
See Love v. State, 457 P.2d 622, 631-32 (Alaska 1969) (erroneous admission of evidence is harmless if the error did not appreciably affect the jury's verdict).
At trial, the State sought to introduce the photograph of what was apparently a road sign covering which the police found in the trunk of Garner's car. The sign or poster read: "Alcohol .08 limit effective Jan 1, 1999." The State contended that the sign covering was relevant to show that Garner was aware of the risk he was creating by driving under the influence. Garner argued that the sign was not relevant and that it was prejudicial because the evidence unfairly suggested that he had stolen a road sign. Judge Olsen allowed the evidence.
Detective Lawrence Meredith testified that the picture of the trunk of Garner's car depicted "the top of a road sign that says alcohol .08 limit effective January 1st, 1999." The prosecutor asked, "Was that actually a sign itself or a covering for a sign?" Detective Meredith responded:
A: No, it looked like to me it was like, the covering for a sign. Kind of like the whole front of a sign had been kind of ripped off. It was that reflective covering on like a road sign.
Q: Or acquired before it'd been put on?
A: Or acquired before it'd been put on, yes sir.
After Detective Meredith testified, there was no further mention of this evidence.
It appears to us that the evidence had very little relevance, if any, to show Garner's awareness of the risk of driving under the influence. And there was some risk that the jury could conclude that Garner might have acted improperly. We conclude that Judge Olsen erred in admitting this evidence. But it appears to us that admission of this evidence was totally inconsequential. Garner admitted that he was driving under the influence. The issue in the case was whether Garner caused Catherine Ahsoak's death. The evidence of the sign had nothing to do with this issue. We conclude that admission of this evidence was harmless error. Conclusion
See Love, 457 P.2d at 631-32.
For the reasons explained in this opinion, we AFFIRM Garner's convictions for manslaughter and driving under the influence.
Garner has also challenged his sentence. We have asked the parties to submit supplemental briefing on that question, and we will address that portion of Garner's appeal in a separate opinion.