Opinion
Court of Appeals No. A-11272 No. 6204
07-01-2015
MARK D. GILBERT, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Criminal 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 authority for any proposition of law. Trial Court No. 3AN-11-3892 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Warren W. Matthews, Judge. Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge KOSSLER.
A jury convicted Mark D. Gilbert of felony driving under the influence and driving with a revoked license.
At trial, Gilbert raised a hearsay objection to a police officer testifying that his decision to arrest Gilbert was based in part on statements made by other occupants of the car asserting that Gilbert had been driving. Pro tem Superior Court Judge Warren W. Matthews overruled the objection. The judge also denied Gilbert's later mistrial motion that was based in part on the same testimony of the officer.
On appeal, Gilbert renews his claim that the superior court improperly allowed the officer to testify to statements made by other people in the car. He argues that this testimony was hearsay and that the admission of the officer's testimony violated Gilbert's constitutional right of confrontation. Gilbert also claims the superior court should have granted his mistrial motion, and in addition claims that he should receive a new trial because of improper closing arguments by the prosecutor.
For the reasons explained in this decision, we reject Gilbert's claims and affirm his convictions.
Underlying facts
Al Levinsohn was driving home on Dimond Boulevard in Anchorage when he noticed a Dodge Stratus driving toward him in his lane at roughly fifty miles per hour. Levinsohn pulled off the road to avoid a head-on collision, called 911, and followed the Stratus to a nearby neighborhood. Levinsohn saw the Stratus park, and watched as a male passenger wearing shorts got out and moved into the driver's seat.
The Stratus resumed moving, and Levinsohn continued to follow it until it stopped at a gas station. Levinsohn parked about seventy-five yards away, and he watched the police arrive and contact a man getting out of the driver's side of the vehicle.
Anchorage Police Officer Josh Nolder, the first officer to arrive at the gas station, testified that a man (later identified as Gilbert) got out of the driver's side. Gilbert was swaying and stumbling, and his eyes were bloodshot and watery. Gilbert told Officer Nolder that he was intoxicated but had not been driving. Gilbert's brother Robert was in the front passenger seat, and two women were sitting in the back. However, the officer observed that Robert was "catatonic," and in fact emergency medical services had to be called to the scene to attend to him. The car keys were not in the ignition, and Gilbert did not have them on his person.
After administering field sobriety tests to Gilbert, Officer Nolder arrested him. A DataMaster breath test showed Gilbert's blood alcohol level to be .223 percent. During the breath test processing, the officer noticed that Gilbert was wearing shorts.
The State charged Gilbert with felony driving under the influence and driving with a revoked license, and Gilbert proceeded to trial on these charges. Gilbert's defense at trial was that he was not driving or operating the vehicle; rather, he had simply switched seats with his brother Robert after the car stopped at the gas station. The jury found Gilbert guilty of both charges.
The officer's testimony regarding the passengers' identification of Gilbert as the driver
During the direct examination of Officer Nolder, the prosecutor asked why his investigation had focused solely on Gilbert when the officer arrived at the gas station. Officer Nolder answered, "One, he was in the [driver's] seat when he got out of the car. Two, in talking to the females in the back, they said that Mark [Gilbert] drove."
When defense counsel objected to the officer's answer as hearsay, the trial court struck the answer and instructed the jury that the answer "shouldn't be considered by you in any way."
Later, during the cross-examination of the officer, defense counsel established: that the officer never saw the car moving with Gilbert in the driver's seat; that when the officer first contacted Gilbert (as Gilbert stepped out of the car), Gilbert had said that he was intoxicated but that he wasn't driving; that the officer did not see the keys in the ignition and that Gilbert did not have keys on him; and that Gilbert's brother was intoxicated and sitting in the front passenger seat. Defense counsel then asked the officer: "So then you made the decision to arrest Mr. Gilbert based upon ... his sitting behind the wheel without any keys in the ignition, correct?" The officer answered, "No. I made the decision based upon the other people in the car stating he drove."
Defense counsel moved to strike this answer, but the trial judge ruled that this answer was responsive to the question that defense counsel had asked. The judge offered to give a limiting instruction, and defense counsel accepted the offer. The judge directed the officer to answer the question again, and the officer stated that his investigation "into Mr. Gilbert was really a totality of the circumstances. He was in the seat when I pulled up[,] and the people in the vehicle that were conscious stated that Mr. Gilbert was the driver." The judge then instructed the jury:
[T]hese statements, in view of the [defense attorney's] question, can be considered for why the officer acted as he did, but they shouldn't be considered for the truth of the matter of the statements. That would be hearsay. So it's a fine line, but you're not to consider these assertions that are relayed by the officer for the truth of what the asserters said. I hope you understand that.
The following morning, defense counsel moved for a mistrial, claiming that Gilbert was prejudiced by the "cumulative effect" of Officer Nolder's repeated testimony as to the statements of the other passengers that Gilbert was driving. The trial judge denied this motion, noting that he had instructed the jury to disregard the officer's initial testimony about what the passengers said, and that he had instructed the jury to not consider the statements for their truth when the officer reiterated them on cross-examination.
Gilbert's contentions on appeal regarding the officer's testimony and why we reject them
As mentioned, Gilbert raises three claims regarding Officer Nolder's testimony that the two female passengers in the back seat told him that Gilbert was the driver. First, he claims that the superior court should have stricken Officer Nolder's cross-examination testimony that he had arrested Gilbert based on the statements of the women that Gilbert was the driver. He also argues, for the first time on appeal, that this testimony was testimonial hearsay that violated his Sixth Amendment right of confrontation. Third, he contends that the superior court committed error when it did not grant his mistrial motion. Gilbert asserted in this motion that it was unfairly prejudicial for the jury to hear multiple times through the officer's testimony that others in the car had said that he was the driver of the vehicle.
The first time that Officer Nolder testified that the car's passengers had told him that Gilbert was the driver, defense counsel raised a hearsay objection, and the superior court struck the officer's answer and instructed the jurors to not consider it in any way.
Officer Nolder later reiterated that the passengers had identified Gilbert as the driver, but this was in response to defense counsel's questions on cross-examination suggesting that there was a limited basis upon which Officer Nolder made the decision to arrest Gilbert for driving under the influence.
Normally, an officer's explanation about why the officer made an arrest is not particularly relevant. But here, when defense counsel asked the officer to concede that his decision to arrest Gilbert was based wholly on circumstantial evidence, the officer's answer — that other people in the car had stated that Gilbert drove — was relevant and proper. The superior court instructed the jury concerning the limited non-hearsay purpose for which the statement was admitted.
Cf. Avery v. State, 514 P.2d 637, 644-45 (Alaska 1973) (explaining that when an out-of-court statement furnishes specific details of the charged crime, the relevance of the statement for the non-hearsay purpose of explaining the course of the police investigation is generally outweighed by the potential that the jury will rely on the statement for its truth).
See Stumpf v. State, 749 P.2d 880, 893 (Alaska App. 1988) (upholding the admission of an out-of-court statement through a police officer's testimony for the non-hearsay purpose of explaining the police investigation after the defendant had attacked the adequacy of the investigation); see also Brandon v. State, 839 P.2d 400, 408 (Alaska App. 1988) (same).
And because the evidence was properly admitted for a non-hearsay purpose, its admission did not violate Gilbert's Sixth Amendment right of confrontation.
Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 1369 n.9 (2004) ("The [Confrontation] Clause ... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."), quoted in Estes v. State, 249 P.3d 313, 316 (Alaska App. 2011); Christian v. State, 276 P.3d 479, 488 (Alaska App. 2012) (same).
As mentioned above, Gilbert also claims the superior court erred when it did not grant his motion for mistrial that was based on the jury repeatedly hearing the officer's testimony about the passengers' identification of Gilbert as the driver. The first time the jury heard the statement, the superior court correctly struck the testimony and instructed the jurors they were not to consider the statement "in any way." The second time, the superior court correctly admitted the statement and explicitly instructed the jury on the limited purpose for which the statement could be considered. We find no error in the superior court's denial of Gilbert's motion for mistrial.
See Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005) (appellate court reviews the denial of a request for mistrial for abuse of discretion); Nelson v. State, 68 P.3d 402, 406 (Alaska App. 2003) (only where appellate court is convinced the trial court's exercise of discretion is "clearly untenable or unreasonable" is it an abuse of discretion).
The prosecutor's closing argument
At the close of the trial, the prosecutor began his closing argument by stating, "So what this case is really about is community standards and ... ." Defense counsel immediately objected on the ground of "prejudices of general DUI policy, community policy," but the trial judge overruled the objection, stating he had not heard anything inappropriate.
In the closing argument that followed, the prosecutor reminded the jury that Levinsohn's recorded 911 call had been played for them; the prosecutor stated that he thought that the recording was "a pretty fair and accurate description" and "pretty accurate description" of what Levinsohn was seeing and what had happened. He also characterized Levinsohn as "an independent, unbiased witness" and asserted that Levinsohn's testimony and other evidence established that Gilbert was driving the car. The prosecutor further asserted that "to think that there was some switch [of drivers] at the gas station is probably not reasonable."
The prosecutor concluded his closing argument in the following manner:
I think what's important, ladies and gentlemen, to keep in mind is that this is justice. The system works. We have a system for this. We have — 911 serves its purpose. When a motorist sees somebody who they think may be a danger to other motorists or the citizens of the community, they call 911 and they report it. In this case, Mr. Levinsohn did what he's, you know, supposed to do, what he thought was the right thing to do. He calls 911 to prevent anyone from being injured by the white, you know, Dodge Stratus that is swerving and driving erratically. And then the officers did what they were supposed to do. And I think everybody can agree, it's a pretty fast response time. The officers arrive on scene rather quickly. They do a great investigation and they produce evidence.Defense counsel then objected and asserted that the prosecutor was vouching for the witnesses and telling the jury that "if you vote not guilty, then the system isn't working." But defense counsel agreed with the trial judge that the argument would be permissible if it was prefaced with "the evidence shows." The prosecutor then ended his argument with:
Ladies and gentlemen, I think what the evidence shows in this case is that this is the system as it was intended to work and I'd ask you to return guilty verdicts on both counts in this case.
Gilbert's contentions on appeal regarding the prosecutor's closing argument and why we reject them
As mentioned earlier, Gilbert argues the prosecutor committed reversible error in his closing argument.
First, Gilbert claims that the prosecutor improperly expressed his personal beliefs as to the credibility of the witnesses and the strength of the evidence. Gilbert bases his claim on the prosecutor's use of the phrase "I think" when discussing the evidence during the closing argument and the prosecutor's characterization of Levinsohn as an unbiased witness. Gilbert also bases his claim on the prosecutor's assertion that the defense theory of the case — a switch of drivers at the gas station — was "probably not reasonable," as well as the prosecutor's later assertions that Gilbert was the driver and was guilty of driving under the influence.
We review closing argument comments in context and in light of the evidentiary record. "An assertion of personal opinion or belief in the credibility or culpability of a party is an ethical breach if made by either attorney." On the other hand, counsel in closing argument may properly discuss the evidence and reasonable inferences from the evidence and a prosecutor may comment on the lack of evidence to support the defendant's version of events. We have reviewed the prosecutor's comments in context and conclude that they were permissible comments on the evidence or inferences to be drawn from the evidence, and that the jury would have understood the prosecutor to be arguing that, based on the evidence, Gilbert should be found guilty. We do not find error, let alone plain error (given that the comments on which Gilbert bases his claims were not objected to).
Darling v. State, 520 P.2d 793, 794 (Alaska 1974).
Potts v. State, 712 P.2d 385, 392 (Alaska App. 1985).
Lewis v. State, 862 P.2d 181, 189 (Alaska App. 1993); Simpson v. State, 796 P.2d 840, 842 (Alaska App. 1990).
See, e.g., State v. Robinson, 722 P.2d 1379, 1387 (Wash. App. 1986) (explaining that although a prosecutor cannot offer personal opinions about the credibility of witnesses and the guilt of the defendant, error does not occur until it is clear the prosecutor is not arguing an inference from the evidence, but is instead expressing his or her personal opinion).
Gilbert also asserts that it was error for the prosecutor to conclude his closing argument by describing Levinsohn and the police officers as doing what they were "supposed to do" and then asserting "this is the system as it was intended to work." Gilbert contends that the prosecutor's argument encouraged the jury to decide the case from an emotional perspective of having "a car on the wrong side of the road coming straight at them" and to vote guilty to validate "the public safety system."
It is improper for a prosecutor through the closing argument to inject issues broader than the accused's guilt or innocence under the law. And a closing argument that asserts the jury's "job" is to reach a guilty verdict — or that the jury would not be doing its job if it acquitted — is also improper to the extent it suggests that the jury has a duty to convict the defendant, apart from its duty to evaluate the government's case based on the evidence.
Patterson v. State, 747 P.3d 535, 538 (Alaska App. 1987) (citing former American Bar Association Standard 3-5.8(d)).
Noel v. State, 754 P.2d 280, 283 (Alaska App. 1988); United States v. Young, 470 U.S. 1, 17-19, 105 S.Ct. 1038, 1047-48 (1985).
The challenged portion of the prosecutor's closing argument constitutes only a few sentences of the argument. The bulk of the argument consists of the prosecutor discussing the trial evidence and how that evidence met the elements of the charged offenses. During this discussion, the prosecutor repeatedly referenced the State's burden of proof. Viewing the closing argument and the trial as a whole, the challenged portion, even if improper, did not appreciably affect the verdicts.
See Patterson, 747 P.2d at 541.
Conclusion
We AFFIRM the judgment of the superior court.