Opinion
Court of Appeals No. A-10637 Trial Court No. 3PA-08-3653 Cr No. 5834
04-25-2012
ORVILLE D. NEWHALL, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Jarom B. Bangerter, Assistant District Attorney, Palmer, and John J. Burns, 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.
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Palmer, John W. Wolfe, Judge.
Appearances: Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Jarom B. Bangerter, Assistant District Attorney, Palmer, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MANNHEIMER, Judge.
Orville D. Newhall was arrested for driving under the influence after he engaged in behavior which strongly suggested that he was impaired. A witness who observed Newhall at a gas station reported that Newhall was stumbling, and that he was so physically impaired that he could not pay for his purchases at the gas station store. The cashier had to take Newhall's wallet, remove his debit card, and run the card through the store's card reader. Among his purchases, Newhall made a pre-payment for gasoline, but then he left the gas station without pumping any gasoline into his car—even though he had parked his car adjacent to the gas pump.
The witness followed Newhall as he drove away from the gas station, and he reported that Newhall was "all over the road" and was driving on the shoulder. Newhall's driving was so erratic that the witness decided to call the police to report Newhall as a drunk driver. When a police officer arrived and questioned Newhall, the officer could not detect any odor of alcohol, but the officer soon concluded that Newhall was under the influence of something. His pupils were "very constricted", he spoke very slowly, and his speech was so thick and hard to understand that the officer constantly had to ask Newhall to repeat what he had said. The officer arrested Newhall for driving under the influence.
Following his arrest, Newhall submitted to a breath test, and this test showed that there was absolutely no alcohol in Newhall's blood. Because of this test result, the police decided to draw a sample of Newhall's blood. An analysis of this blood sample showed the presence of several controlled substances: hydrocodone, morphine, benzoylecgonine, cocaine, codeine, alprazolam (sold under the trade name "Xanax"), and diazepam (sold under the trade name "Valium"), as well as diazepam's metabolite, nordiazepam.
These last two substances (Valium and nordiazepam) were present in "therapeutic" levels — that is, present in levels that one would expect if Newhall was actively taking Valium. The other drugs were present in small or "trace" levels.
As we explain in this opinion, Newhall's jury heard testimony from a laboratory analyst that Newhall's blood contained all eight of these substances, and that two of these substances — the Valium and the nordiazepam — were present in "therapeutic" levels. But when the analyst began to explain that the remaining six substances were present in only trace amounts, Newhall's attorney interposed a confrontation clause objection to the analyst's testimony, based on the fact that the analyst had not personally performed the testing for these other six substances.
The trial judge sustained the defense attorney's objection, and the judge instructed the jurors to disregard the testimony concerning the results of any drug testing not personally performed by the analyst-witness — in other words, the test results for all the substances other than the Valium and nordiazepam.
In this appeal, Newhall argues that the trial judge should have excluded all evidence pertaining to the presence of these six trace-amount drugs. Newhall contends that these six drugs were present in such small amounts that they could not possibly have contributed to his impairment, and thus the fact that he had these drugs in his bloodstream was more prejudicial than probative — irrelevant to the crime charged, and highly suggestive that Newhall was taking drugs illicitly.
In the alternative, Newhall argues that even if the evidence pertaining to these six drugs was relevant, this evidence was nevertheless misleading and unfairly prejudicial, because the jury was not allowed to consider the fact that these six drugs were present in only trace amounts — thus allowing the jury to speculate about the quantity and potential effect of these drugs.
Newhall's first argument — that the six drugs were present in such small quantities that they could not possibly have contributed to his impairment — hinges on two factual assumptions.
The first assumption is that none of these drugs could possibly have affected Newhall's thinking and/or physical coordination if the concentration of each drug in Newhall's blood was less than a therapeutic level.
When Newhall asked the trial judge—District Court Judge John W. Wolfe — to exclude all evidence of these drugs, Judge Wolfe recognized that Newhall's argument hinged on this assumption, and he asked Newhall's attorney whether the attorney had any facts to support the proposition that small amounts of these drugs would have no effect on Newhall's thinking and physical coordination. When Newhall's attorney conceded that he had no factual backing for this proposition, Judge Wolfe denied the defense motion.
The judge noted that some substances can affect a person even when the substance is present in the person's body in very small levels. For this reason, Judge Wolfe explained, he was not going to simply assume, in the absence of expert testimony or other scholarly input, that small amounts of the six drugs at issue here would have absolutely no effect on Newhall.
The second assumption underlying Newhall's argument is that, if a small amount of one of these six drugs, taken individually, would have no effect on Newhall, then small amounts of all six drugs, taken in combination, would likewise have no effect on Newhall. This assumption is simply illogical — and Judge Wolfe recognized that it was.
For these reasons, we uphold Judge Wolfe's denial of Newhall's motion to exclude all evidence of these six drugs.
This leaves Newhall's argument that even if the evidence pertaining to these six drugs was relevant, the evidence was nevertheless misleading because the jury was never told that these drugs were present in Newhall's blood in only small concentrations. But it was Newhall who asked the trial judge to block the jury from hearing this clarifying information.
At trial, the State presented the testimony of toxicologist Amanda Black, who performed the preliminary screening of Newhall's blood. This preliminary screening revealed the presence of three different classes of controlled substances in Newhall's blood. Ms. Black also performed the more specific tests which showed that Newhall's blood contained therapeutic levels of two substances: Valium, and its metabolite, nordiazepam. However, other laboratory analysts performed the testing which identified the additional six drugs in Newhall's blood (hydrocodone, morphine, benzoylecgonine, cocaine, codeine, and Xanax), and which showed that these drugs were only present in small levels. (The level of Xanax was less than .02 mg/L; the five other drugs were present at levels of .01 mg/L or less.)
When the State proposed to have Black testify about the results of the testing performed by the other analysts, Newhall's attorney raised a confrontation clause objection based on the United States Supreme Court's decision in Meléndez-Díaz v. Massachusetts. Judge Wolfe sustained Newhall's objection — thus barring the State from presenting the very information that Newhall now claims was crucial to the jury's understanding of the blood analysis.
557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).
As we have already explained, after Judge Wolfe sustained Newhall's confrontation clause objection, the judge instructed the jurors to disregard all information pertaining to the results of any drug testing that Ms. Black did not perform personally. Newhall's attorney did not object to this jury instruction — even though this instruction prohibited the jury from considering the testimony already given by Black, in which she indicated that the other six drugs were present in only trace amounts.
Given these circumstances, we conclude that Newhall waived any argument that the blood analysis evidence was unfairly misleading without this information.
Moreover, even if Newhall were entitled to raise this issue as a claim of plain error, we would find no plain error here. First, the defense attorney obviously made a tactical decision to raise a confrontation clause objection and ask Judge Wolfe to bar the State from introducing evidence of the other laboratory analysts' test results. Second, the evidence of Newhall's impairment was overwhelming.
The judgement of the district court is AFFIRMED.