Opinion
Court of Appeals No. A-10272.
March 24, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Donald D. Hopwood, Judge, Trial Court No. 3AN-07-7647 Cr.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Amy M. Williams, Assistant Attorney General, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Karen Ann Sewell appeals her convictions for felony driving under the influence and felony breath test refusal. Sewell contends that the evidence presented at her trial was legally insufficient to support the jury's finding that she drove or operated a motor vehicle. Sewell also contends that the trial judge improperly allowed the State to introduce evidence suggesting that Sewell had a prior history of driving offenses.
AS 28.35.030(n) and AS 28.35.032(p), respectively.
For the reasons explained in this opinion, we conclude that the evidence was sufficient to support the conclusion that Sewell drove or operated the motor vehicle, but we also conclude that the State should not have been allowed to introduce the challenged evidence. We therefore reverse Sewell's convictions, but (because the evidence is sufficient to support the jury's verdicts) the State is authorized to re-try Sewell for these offenses.
Why we conclude that the evidence is sufficient to support a finding that Sewell was operating a motor vehicle
Sewell challenges the sufficiency of the evidence to support a finding that she was operating a motor vehicle. When an appellate court evaluates a claim that the evidence is insufficient to support a lower court's verdict, we must assess the evidence (and the inferences that can reasonably be drawn from the evidence) in the light most favorable to supporting the jury's verdict. For this reason, the following recitation of facts represents the evidence in the light most favorable to the jury's verdict.
See, e.g., Newsom v. State, 199 P.3d 1181, 1188 (Alaska A pp. 2009).
Around 3:00 in the morning on July 15, 2007, the Anchorage police received a 911 call reporting that two vehicles — a Lincoln Navigator and a Honda Accord — were being driven recklessly. The man who phoned in this report, Johnny Rogers, later testified at Sewell's trial that a woman with blond hair, wearing a white shirt, was driving the Navigator.
Officer Samuel Flack responded to the 911 call; he found the Navigator and the Accord sitting in the driveway of a home located on 24th Avenue. When Flack approached the Navigator, Sewell was sitting in the driver's seat and her boyfriend was in the passenger seat. Sewell had blond hair, and she was wearing a light blue shirt or jacket.
Flack believed that the keys were in the ignition when he first approached the Navigator. He could not be sure, because the steering column blocked his view of the ignition, and he did not feel safe leaning into the vehicle until he assured himself that neither Sewell nor her boyfriend posed a threat. However, when Sewell opened the door of the Navigator, the door buzzer sounded — indicating that the keys were indeed in the ignition.
Sewell repeatedly told Flack that she had not been driving, and that the car keys were not in the ignition. And when Flack approached the Navigator a second time (after returning to his patrol vehicle to check the status of Sewell's driver's license), he ascertained that, as Sewell said, the keys were not in the ignition. However, during Flack's questioning of Sewell, she stated that her boyfriend had taken the keys from her (at some unspecified time) — thus impliedly conceding that she had possessed the keys earlier.
Moreover, Flack observed that the driver' s seat of the Navigator was pulled pretty far forward. The position of the driver's seat was consistent with a smaller person (such as Sewell) driving the vehicle, as opposed to Sewell's boyfriend, who was significantly taller.
This evidence, and the inferences that can reasonably be drawn from it, is sufficient to support a reasonable conclusion that Sewell had been driving the vehicle just before Flack arrived on the scene, and that Sewell remained in physical control of the vehicle for some amount of time after Flack arrived (at least until her boyfriend took control of the keys). We therefore conclude that the jury's verdict is supported by the evidence.
Why we conclude that the State should not have been allowed to introduce evidence suggesting that Sewell had a prior history of driving offenses
Sewell's remaining issue on appeal involves an evidentiary ruling made by the trial judge during the defense cross-examination of Officer Flack.
After Flack made his initial contact with Sewell, he went back to his patrol vehicle to check on the status of Sewell's license. While he was performing this computer check in his patrol car, Flack learned that Sewell had two prior convictions for felony DUI. In conversation with another officer who had arrived at the scene, Flack said (based on his discovery of Sewell's prior record) something to the effect that Sewell was "going down" — apparently, for driving under the influence yet again.
When the defense attorney cross-examined Flack at Sewell's trial, the defense attorney elicited the fact that Flack made this comment (the comment that Sewell was "going down") before he completed his DUI investigation — in particular, before Flack asked Sewell to perform field sobriety tests. The unspoken implication of the defense attorney's questions was that Flack had already decided to charge Sewell with DUI before he knew all the facts.
When the defense attorney finished the cross-examination, the prosecutor asked for a short recess to allow the State to seek a ruling on the permissible scope of the State's redirect examination on this point. The prosecutor argued that the State should be allowed to elicit Flack's reason for making this comment — that is, elicit the fact that Sewell had prior convictions for felony DUI — because, "taken out of context, [Flack's comment] sounds bad, . . . [as if] he was already making up his mind [to arrest Sewell for driving under the influence]".
Sewell's attorney argued that Flack's comment was relevant because it showed the officer's bias when he conducted the field sobriety tests, when he evaluated Sewell's performance on these tests, when he concluded that Sewell was lying when she declared that she had not been driving the car, and when he made his ultimate decision to arrest Sewell for DUI. The defense attorney further contended that the probative force of this evidence — i.e., the inference that Flack might have pre-judged the case before the investigation was complete — remained the same, regardless of the reasons for Flack's bias.
Finally, the defense attorney pointed out the obvious: that the jurors' ability to fairly decide the case might be prejudiced if the State was allowed to introduce evidence that Sewell had two prior convictions for felony DUI.
The trial judge concluded that the State's proposed testimony was relevant because it tended to rebut the inference that Officer Flack was biased at all: The Court: [In his voir dire testimony, Officer Flack] explained [that he] made the comment because of [Sewell's] priors. [Because of] the priors, he was going to investigate aggressively, and with the priors, . . . there were going to be some pretty substantial consequences if [Sewell] were convicted of another DUI. . . . Now, . . . doesn't that explain whether he is biased at all? [If the jury believes that testimony], isn't that an explanation of whether he is biased at all?
Based on this analysis, the trial judge ruled that the prosecutor would be permitted to elicit testimony concerning Officer Flack's reasons for making the comment. However, the trial judge concluded that it would be unfairly prejudicial to allow Flack to mention Sewell's prior offenses, so the judge ruled that Flack would be allowed to say only that, based on what he discovered during the computer check, he knew that there would be "substantial consequences" if Sewell was convicted of DUI in this case.
Following this ruling, the jury returned to the courtroom and Officer Flack gave the following testimony:
Prosecutor: Officer Flack, . . . we heard some testimony about how you said something to the effect of "She's going down," but we didn't hear what prompted that comment. Could you please tell the jury a little bit more about that situation?
Officer Flack: Sure. And I am happy to have this opportunity to explain that comment. First of all, I certainly would have said it differently, had I to do it over again. That's not particularly how I wanted to say it. But what I meant by that comment — and that comment was . . . an immediate response to some specific information I received regarding this case — information which indicated to me that the consequences of a DUI [conviction] for [this] defendant would be serious, and [which] prompted me to want to aggressively investigate this DUI in this particular case.
So the comment [meant] . . . "I'm going to investigate this aggressively", in terms of investigating the DUI itself . . . for the defendant in this case.
On appeal, Sewell renews her argument that Flack should not have been allowed to give this testimony. We agree.
Flack's comment that Sewell was "going down" suggested that the officer had already made up his mind about the proper conclusion of his DUI investigation, even before he conducted the field sobriety tests.
Moreover, as Flack himself conceded during his voir dire testimony, his reason for making this comment had nothing to do with anything he had observed or learned about the particular episode involved in this case. In other words, Flack's comment was not based on the strength of the facts he had discovered during his investigation of this case up to that point. Rather, his comment was prompted by his discovery of extraneous information — the fact that Sewell had prior convictions for felony DUI.
Because Flack's comment ( i.e., his potential pre-judgement of the case) was not based on the facts he had already uncovered during his investigation of the case, it was ultimately irrelevant whether Flack had good reasons, bad reasons, or no reasons at all for pre-judging the case. The relevant issue was whether the officer's bias might have affected his later handling of the investigation, his later perceptions of the situation, and the decisions he made leading up to Sewell's arrest. Flack's pre-judgement of the case might conceivably have influenced the way in which he conducted the field sobriety tests, or might have influenced his evaluation of Sewell's performance on those tests. Flack's pre-judgement of the case might also conceivably have influenced his decision to disbelieve Sewell's protests that she had not been driving.
These things would be true regardless of Flack's reasons (or lack of reasons) for pre-judging the situation. More particularly, these potential biasing effects would be present even if Flack's knowledge of Sewell's past DUI convictions gave him good reason to suspect that Sewell was driving under the influence again.
A portion of Flack's challenged testimony was properly admissible: it was proper to allow Flack to testify that, when he made the comment about Sewell "going down", he did not mean that he had reached any firm conclusion about the proper resolution of the DUI investigation, but only that he intended to investigate the case aggressively. Regardless of whether the jurors might have found this explanation convincing, the State was entitled to offer it.
But it was improper to let Flack explain why he decided that Sewell's case should be investigated aggressively — because that explanation did not rest on the results of the DUI investigation up to that point, but rather on extraneous information about Sewell's criminal record.
It is true that the trial judge attempted to ameliorate the prejudicial impact of this information by forbidding Flack from referring directly to Sewell's prior convictions. But even Flack's circumlocutions were sufficient to prejudice the jury's consideration of this case.
Flack testified that his comment about Sewell "going down" was "an immediate response to some specific information [that Flack] received regarding this case" — information which indicated to Flack "that the consequences of a DUI [conviction] for [Sewell] would be serious". This information, Flack testified, prompted him "to want to aggressively investigate this DUI . . . for the defendant in this case."
Even though Flack never mentioned "prior convictions", the obvious inference to be drawn from this testimony was that Flack claimed to be in possession of information (beyond the evidence presented at Sewell's trial) showing that Sewell was either a repeat offender or an atypically dangerous offender. It was error to allow Flack to give this testimony.
Moreover, given the significant dispute in this case as to whether Sewell operated the vehicle, we believe that this error may have appreciably affected the jury's verdict. We must therefore reverse Sewell's convictions. Conclusion
See Love v. State, 457 P.2d 622, 634 (Alaska 1969) (the test for harmless error is whether the appellate court "can fairly say that the error did not appreciably affect the jury's verdict").
The judgement of the superior court is REVERSED. Sewell is entitled to a new trial.