Opinion
A-13520
04-13-2022
MITCHEL LEE JOSEPH, Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Trial Court No. 4TO-18-00068 CR Fourth Judicial District, Tok, Paul R. Lyle, Judge.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
ALLARD., JUDGE
Mitchel Lee Joseph was convicted of one count of refusal to submit to a breath test. He raises two issues on appeal.
AS 28.35.032(p).
First, Joseph argues that the advisement he received prior to his refusal was inaccurate and that his conviction for refusal to submit to a breath test must be reversed on that ground. Because Joseph did not challenge the advisement below, he must show plain error on appeal.
The State concedes that the advisement was inaccurate but argues that the appropriate remedy is a remand to determine whether the inaccurate advisement actually influenced Joseph's decision to refuse to submit to the breath test. For the reasons we explain, we accept the State's concession that the advisement was improper, and we remand this case for further proceedings.
Second, Joseph argues that the court violated his rights to confrontation and due process by prohibiting Joseph from cross-examining a witness about the accuracy of Joseph's prior judgments for driving under the influence. The judgments, however, were introduced as authenticated documents, and the State never claimed that the witness had independent knowledge of the origin of those documents or the dates of Joseph's prior offenses. Under these circumstances, we conclude that the superior court did not abuse its discretion in restricting Joseph's cross-examination.
Background facts
Joseph was arrested for driving under the influence after Alaska State Trooper Anthony Will and Village Public Safety Officer Sadie Warbelow discovered his vehicle on the side of the road. The vehicle was upright, but it had significant dents and appeared to the officers as if it had rolled. When the officers arrived on the scene, the vehicle was empty, but Joseph emerged from the woods a few minutes later, seemingly intoxicated. Joseph admitted the vehicle belonged to him. However, he claimed that he had picked up a hitchhiker and allowed the hitchhiker to drive the vehicle while Joseph drank alcohol in the passenger seat. According to Joseph, the hitchhiker crashed the vehicle and fled into the woods.
In his recorded statements to law enforcement, Joseph did not explicitly admit that he drank alcohol as a car passenger. However, the parties assumed at trial that this was his meaning. Because this is a reasonable assumption, we will also adopt this interpretation of Joseph's statements.
The officers arrested Joseph for driving under the influence and brought him to the trooper station, where they asked him to perform a breath test. Joseph immediately and repeatedly declined to perform a breath test. The trooper told Joseph that he could be charged with a misdemeanor if he refused. (As we explain later, this was incorrect. Because of Joseph's prior convictions for driving under the influence, he could be charged with a felony.) Joseph again declined to perform a breath test.
A few minutes later, the trooper read Joseph a formal advisement, which stated that "[f]ailure to provide a sufficient breath sample is a crime that will result in mandatory jail time, a mandatory fine, and the loss of your driving privileges." Joseph again declined to perform a breath test and continued to decline throughout the remainder of his interaction with the trooper.
Joseph was subsequently charged with felony driving under the influence and felony refusal to submit to a breath test based on his prior convictions. A jury ultimately acquitted Joseph of driving under the influence but convicted him of felony refusal to submit to a breath test. Joseph now appeals.
The State's concession that the trooper's advisement was inaccurate
Joseph argues on appeal that the trooper's statements violated his right to due process because the trooper told him that he could be prosecuted for a misdemeanor, but he was ultimately charged and convicted of felony refusal. Joseph did not challenge the trooper's statement in the trial court, so he must show plain error on appeal.
See Adams v. State, 261 P.3d 758, 764 (Alaska 2011) (requiring a showing of plain error when a party does not object below, defined as "an error that (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial").
The State concedes that the statement was improper under the Alaska Supreme Court's decision in Olson v. State But the State argues that the appropriate remedy is a remand for additional factual findings as to whether the trooper's improper statements influenced Joseph's decision to refuse a breath test.
Olson v. State, 260 P.3d 1056, 1061 (Alaska 2011).
When the State concedes error in a criminal case, the appellate court must "independently review the proceedings below to insure that the error confessed is supported by the record on appeal and has legal foundation."
Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
Here, the record supports the State's concession that the trooper's advisement to Joseph was inaccurate. Under AS 28.35.032, the police must inform arrestees that refusal to submit to a breath test is a "crime." The police have no obligation to inform an arrestee whether their refusal will be charged as a misdemeanor or a felony. However, if the police choose to give such additional information, "due process concerns can arise if the information understates the consequences of the offense." Thus, in Olson v. State, the Alaska Supreme Court held that "it would be fundamentally unfair to allow the State to assert one penalty, on which the arrestee's decision relies, and then later convict him of a charge that carries a greater penalty."
Olson, 260 P.3d at 1061.
Id.
Olson went on to hold, however, that due process only requires suppression of a defendant's refusal (and dismissal of the charge) if the defendant proves that the improper advisement influenced their decision to refuse a breath test. In other words, an inaccurate advisement does not, standing alone, justify dismissal of a refusal charge. Instead, a defendant must request an evidentiary hearing in order to show that the inaccurate advisement actually influenced their decision to refuse a breath test.
Id. at 1064.
In the current case, no such request was made, and the improper advisement was never brought to the trial judge's attention. There is also very little in the current record that would support a finding that the improper advisement influenced Joseph. On the contrary, the recording of the interaction indicates that Joseph repeatedly refused to submit to the breath test for reasons unrelated to the trooper's advisement and that he did so before and after the trooper's inaccurate statement that he would be subject to misdemeanor charges if he refused.
Given this record, we question whether plain error occurred. To establish plain error, a defendant must show, inter alia, that an error actually occurred and that the error was obvious. An obvious error is an error that would have been apparent to any competent judge or lawyer.
Adams v. State, 261 P.3d 758, 773 (Alaska 2011).
Id.
Here, it is obvious that the trooper's statement raised due process concerns under Olson. But it is not clear that the trooper's statement requires suppression of the refusal and dismissal of the charge. Joseph never claimed that the trooper's misadvisement influenced his decision to refuse a breath test, and the current record does not clearly establish that fact. Nor, as a general matter, would it be appropriate to remand for further factual findings on this type of record. Indeed, a remand for further factual findings is essentially an acknowledgment that it is not obvious from the record that the trooper's misadvisement influenced Joseph's decision to refuse the breath test. The proper appellate disposition in such circumstances would typically be not to remand for further factual findings, but to reject the defendant's claim of plain error and require the defendant to raise the issue in a separate post-conviction relief application.
However, we are cognizant of the fact that Joseph would likely be entitled to an evidentiary hearing if he raised this issue in a post-conviction relief application. Moreover, if he were able to prove at that evidentiary hearing that his decision to refuse the breath test was influenced by the trooper's misadvisement, then he would be entitled to post-conviction relief. Given this, it appears that it would be far more efficient to resolve this issue now instead of forcing the parties to litigate the issue through an application for post-conviction relief. We therefore view the State's concession that a remand for an evidentiary hearing should occur as a request for us to exercise our judicial discretion to ensure that an evidentiary hearing happens at this time, rather than later. Because the interests of judicial economy are best served by this course of action, we will accept the State's concession and remand this case to the superior court for an evidentiary hearing to determine whether Joseph's decision to refuse the breath test was actually influenced by the trooper's misadvisement.
Why we reject Joseph's claim that the superior court erroneously restricted his cross-examination of Trooper Will
Joseph raises one additional claim on appeal. To convict Joseph of felony refusal, the State was required to prove that Joseph had previously been convicted of driving under the influence or refusal to submit to a breath test two or more times in the ten years preceding his offense. The State therefore introduced two authenticated judgments of Joseph's prior convictions. The judgments were admitted into evidence without objection and were published to the jury through the testimony of Trooper Will. Trooper Will read the judgments to the jury, but he did not testify that he had any special knowledge about the judgments or the facts that led to them.
AS 28.35.032(p).
On cross-examination, Joseph's defense attorney sought to ask Trooper Will if he had any personal knowledge about Joseph's prior convictions and whether he was involved in preparing the judgments. The State objected on relevance grounds, and the superior court sustained the State's objection.
On appeal, Joseph argues that the superior court impermissibly restricted his cross-examination of Trooper Will, in violation of his rights to confrontation and due process. We disagree. Trial courts have "wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, ... or interrogation that is repetitive or only marginally relevant." We therefore generally review a trial court's ruling regarding the limits of cross-examination for abuse of discretion.
Wood v. State, 837 P.2d 743, 746-47 (Alaska App. 1992) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
See Cleveland v. State, 258 P.3d 878, 884 (Alaska App. 2011) (citing Wyatt v. State, 981 P.2d 109, 112 (Alaska 1999)).
Here, the State never claimed that Trooper Will had special knowledge of the underlying facts surrounding Joseph's prior convictions; he was simply the vehicle through which the State published the authenticated records to the jury. Under these circumstances, defense counsel's proposed line of questioning was of minimal, if any, relevance, and had the potential to confuse the issues and waste time. We therefore conclude that the superior court did not abuse its discretion in limiting this line of inquiry.
Conclusion
We REMAND for further proceedings consistent with this decision. The superior court shall hold an evidentiary hearing and transmit its findings and decision to this Court within 120 days of this opinion. This deadline may be extended by the superior court for good cause and notification to this Court. We retain jurisdiction.