Opinion
Court of Appeals No. A-11519 Trial Court No. 3AN-12-8948 CR No. 6015
01-15-2014
JIMMY SWEATT, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Max D. Holmquist, Gorton & Logue, Anchorage, for the Appellant. Seneca A. Theno, Chief Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, 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, Anchorage, Jo-Ann Chung, Judge.
Appearances: Max D. Holmquist, Gorton & Logue, Anchorage, for the Appellant. Seneca A. Theno, Chief Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge .
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge MANNHEIMER.
Jimmy Sweatt appeals his conviction for operating a vehicle under the influence of marijuana. He argues that the district court committed error in two evidentiary rulings at his trial: first, by allowing the officer who arrested Sweatt to testify that, after transporting him to jail, she found a baggie of marijuana hidden under the back seat of her patrol car; and second, by allowing a person without medical training (here, a forensic toxicologist) to testify as an expert witness regarding the effects of marijuana on the human body.
Anchorage Municipal Code 9.28.020.B.1.
For the reasons explained here, we reject both of Sweatt's claims of error, and we affirm his conviction.
Underlying facts
Around 1:30 a.m. on the morning of August 28, 2012, an Anchorage police officer-in-training, July Lam, was on patrol with her training officer when she noticed a car being driven about ten miles an hour below the speed limit in a 35-mile-per-hour zone.
As Lam continued to observe this car, she saw it drift halfway into the adjacent lane. The car then came to a red light and stopped with its blinker on, indicating a turn right. But the car did not make a right turn on red, even though there was no traffic; instead, the driver waited for the light to turn green. Then, when the light turned green, the driver made a wide turn into the wrong lane.
At this point, Officer Lam activated her overhead lights and initiated a traffic stop. The vehicle pulled over to the left-hand side of the road. The driver — Jimmy Sweatt — got out of the car, and Lam had to tell him twice to get back into the car before he complied.
When Lam approached Sweatt, she noticed a strong odor of marijuana coming from him and from the vehicle. Sweatt had bloodshot eyes, and he moved slowly when Lam asked him for his license. Sweatt denied consuming any drugs or alcohol.
After Sweatt performed poorly on field sobriety tests, Lam concluded he was under the influence of marijuana, and she arrested him. At the Anchorage jail, Sweatt submitted to a breath test; this test detected no alcohol.
Sweatt told the officer who administered the breath test that he had been at a party where people were using marijuana, but he denied using any drugs himself. He told the officer that he was simply fatigued.
After Sweatt took the breath test, Lam obtained a search warrant to test Sweatt's blood. That blood test, administered at about 4:15 a.m., showed the presence of THC (the active component of marijuana) at a level of 7.2 nanograms per milliliter. The test also showed the presence of carboxy-THC (an inactive metabolite of THC) at a level of 110 nanograms per milliliter.
(The body converts THC into carboxy-THC in order to eliminate it. The level of THC in a person's blood will drop below detectible levels within a matter of hours after the person uses marijuana, while the level of carboxy-THC in a person's blood may remain detectable for weeks.)
Lam took Sweatt to the Anchorage jail. After she dropped him off at the jail, she checked the back seat of her patrol car; she found a plastic bag containing flakes and small buds of marijuana stuffed under the seat, near where Sweatt had been sitting. At Sweatt's trial, Lam testified that she routinely checked under the back seat of her patrol car at the beginning of each shift, and after each time she transported an arrestee. Lam testified that Sweatt was her first transport of that shift.
Sweatt was charged with operating a motor vehicle under the influence of marijuana. At his trial, a forensic toxicologist, Justin Knoy, testified concerning the effects of THC on the human body. Knoy testified that THC affects, among other things, an individual's spatial orientation: "[O]ftentimes, what you see when a [driver] is affected by marijuana is weaving within their lane, going past the fog line, past the center line, weaving back and forth as they're trying to maintain [their] lane position." Knoy also stated that ingestion of THC can cause unsteadiness, slowness in comprehension, slowed movements, and bloodshot eyes.
Knoy testified that the effects of THC vary among individuals, and he therefore could not say whether Sweatt was impaired by marijuana based simply on the result of his blood test. However, Knoy did say that he would not expect a person to have such high levels of THC in their blood stream if (as Sweatt claimed) the person had only been exposed to second-hand marijuana smoke.
After hearing this evidence, a jury convicted Sweatt of operating a motor vehicle under the influence.
Lam's testimony concerning her discovery of the bag of marijuana under the back seat of her patrol car
At trial, Sweatt's defense attorney asked the district court to prohibit Officer Lam from testifying that she discovered a plastic bag containing marijuana under the back seat of the patrol car, just after she transported Sweatt to the Anchorage jail. The attorney argued that there was insufficient foundation for this testimony because Lam did not personally observe Sweatt place the bag under the seat, and thus there was at least some reason to believe that the bag had not been placed there by Sweatt. The attorney also argued that Lam's testimony on this subject would be more prejudicial than probative.
The trial judge was initially prepared to exclude this testimony, because Lam could not remember if she transported anyone else in her patrol car that night prior to transporting Sweatt. But after Lam checked her records and confirmed that Sweatt was her first arrest of that shift, the trial judge concluded that the evidence was admissible.
Sweatt now argues that this decision was error. He claims that the challenged testimony was barred by Evidence Rule 602 because Lam had no "personal knowledge" that it was Sweatt who hid the bag of marijuana under the seat.
Evidence Rule 602 declares a witness is not allowed to give lay testimony (i.e., non-expert testimony) about a matter "unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." But Officer Lam was indeed testifying about matters within her personal knowledge: her routine of checking the back seat of her patrol car at the beginning of each shift and each time she transported a prisoner; the specific check that she performed after transporting Sweatt; and her discovery of the bag of marijuana.
It is true that, in her testimony, Lam also offered a conclusion based on this circumstantial evidence: she asserted that the bag of marijuana could only have come from Sweatt. But Evidence Rule 701 expressly allows a non-expert witness to offer conclusions of this sort if the conclusions are "rationally based on the [witness's] perception" and if the conclusions are "helpful to a clear understanding of the witness's testimony[,] or the determination of a fact in issue."
Here, Lam had personal knowledge of all the circumstances that led her to conclude that Sweatt was the person who put the bag of marijuana under the back seat of her patrol car. She could therefore testify about the conclusion she drew from these circumstances. It was up to the jury to decide if her testimony was credible, and/or if the conclusion she drew was reasonable.
Sweatt also argues that Lam's testimony should have been excluded under Evidence Rule 403, as being more prejudicial than probative. Specifically, Sweatt argues that there was no need for the State to introduce evidence that Sweatt possessed marijuana at the time of his arrest, because his recent use of marijuana was already established by the result of his blood test. Sweatt further argues that the jury would be unfairly prejudiced against him by evidence that he hid a bag of marijuana under the seat of the patrol car.
The trial judge ruled that Lam's testimony on this point was not more prejudicial than probative — because the testimony was not likely to inflame the jury, and because it was relevant circumstantial evidence to support the State's claim that Sweatt had recently used marijuana.
The judge's reasoning was borne out later — when, during closing argument, Sweatt's attorney disputed the State's assertion that Sweatt was impaired by marijuana. The defense attorney argued — based on Knoy's testimony about the variation in the effects of THC — that the presence of THC in Sweatt's blood was not convincing proof that he was impaired. Thus, evidence that Sweatt possessed a bag containing marijuana at the time of the traffic stop was relevant to a material issue: the issue of whether Sweatt had been actively ingesting marijuana at or near the time of his driving, or whether (as he claimed) he had simply been at a party where other people were smoking marijuana.
We therefore conclude that the trial judge's ruling under Evidence Rule 403 was not an abuse of discretion. Accordingly, the district court properly admitted this testimony.
Knoy's testimony concerning the physiological effects of THC
Sweatt next argues that the district court should not have allowed Justin Knoy, the forensic toxicologist, to testify as an expert witness for the State regarding the effects of marijuana on the human body. Specifically, Sweatt argues that this type of testimony requires medical knowledge, and that Knoy had insufficient educational or work experience in the medical field to testify on this topic.
Under Alaska law, anyone with specialized knowledge acquired through experience, training, or education can offer expert testimony, so long as that testimony is relevant and will help the trier of fact understand the evidence or determine the facts in issue. See Evidence Rule 702(a). The law does not require such witnesses to have any specific training or formal education.
Marron v. Stromstad, 123 P.3d 992, 1002-03 (Alaska 2005).
Knoy testified that he was a forensic toxicologist — which he described as "a scientist who analyzes biological samples for the presence of alcohol, drugs, and poisons." Knoy testified that he holds a bachelor of science degree in biology, with a minor in chemistry, as well as a master's degree in forensic chemistry. He further testified that he had received training "not only on the instrument[s] that [are used] in the laboratory to detect alcohol and drugs, but also on the pharmacology of these substances ... [;] how they're absorbed in the body, distributed throughout it, metabolized, and eliminated — and, while in the body, what type of effect they have on a person." Knoy also testified that he had received specialized training through the National Highway Traffic Safety Administration on "the various different drug categories and what types of physical effects would be associated with these drugs, as well as ... how different driving abilities are affected by different drugs." He also said that he had read numerous articles on these subjects.
Sweatt does not dispute any of the foregoing, but he argues that Knoy should not have been allowed to testify as an expert because he had no medical training. Sweatt contends that only a person with medical training would be qualified to testify regarding the effect of marijuana on the human body.
Sweatt's contention is not self-evident. In Ravin v. State, our supreme court observed that the short-term physiological effects of marijuana "are relatively undisputed." And in this case, Knoy only testified about the effects of marijuana on people generally — he did not offer any opinion about the likely effect on Sweatt.
537 P.2d 494, 506 (Alaska 1975).
Moreover, when this issue was litigated in the district court, Sweatt offered no evidence to support his claim that only people with medical training are qualified to offer an opinion about the physiological effects of marijuana, and that no other training is adequate.
Given this record, we find that the supreme court's decision in Handley v. State, 615 P.2d 627 (Alaska 1980), is instructive.
In Handley, the supreme court rejected the State's argument that a proposed defense expert lacked the qualifications to testify about the effects of alcoholic blackout. According to the State, the witness was not qualified because he was not a licensed clinical psychologist, and because he was not otherwise qualified by training or experience. But the supreme court noted that "[t]here is no requirement [under Alaska law] that a witness possess a particular license or academic degree in order to qualify as an expert". The supreme court ruled that the witness — who was educated in psychology and sociology, and who had lengthy experience in the treatment of alcoholism — had sufficient training and experience with alcohol abuse and its effect on individuals to testify as an expert on the topic of alcoholic blackout.
Handley, 615 P.2d at 629.
Id., at 630-31; see also Hagen Insurance, Inc. v. Roller, 139 P.3d 1216, 1224 (Alaska 2006).
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For these reasons, we conclude that the trial judge did not abuse her discretion when she concluded that Knoy had sufficient training to offer an expert opinion regarding the effects of THC on the human body, and that Knoy's testimony would be helpful to the jury in assessing whether Sweatt's behavior on the night in question was consistent with that of a person under the influence of marijuana.
Conclusion
The judgement of the district court is AFFIRMED.