Opinion
Court of Appeals No. A-11200 No. 6150
02-25-2015
DONALD L. VAUGHN JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and 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. 3PA-11-1692 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge. Appearances: David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge HANLEY.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Donald L. Vaughn Jr. was convicted of felony DUI and driving with a revoked license. He appeals his DUI conviction, contending that the trial court erred in refusing to grant a mistrial after mentioning the felony nature of the charge to the jury during the first stage of his bifurcated DUI trial. He also argues that the trial court erred in concluding that the calibration of the DataMaster used to administer his breath test was properly verified. For the reasons explained here, we reject Vaughn's arguments and affirm his convictions.
AS 28.35.030(a), (n).
AS 28.15.291.
The trial court did not abuse its discretion in denying Vaughn's motion for a mistrial after it inadvertently informed the jury that Vaughn's DUI charge was a felony
Vaughn's felony DUI trial was bifurcated, with the jury first having to decide whether Vaughn committed DUI and then, in the second part of the trial, addressing whether Vaughn had prior convictions that would make his DUI a felony under AS 28.35.030(n). During jury selection, the superior court read the charges. However, opening statements and presentation of the evidence did not begin until six days later. After hearing the parties' opening statements, a juror asked the court to re-read the charges. The parties agreed to the re-reading of the charges but asked the judge to remind the jurors that the charges were not evidence. The trial judge told the jurors,
One of you approached my clerk and asked that the charges be re-read. I don't mind doing that, but I'll have to give the entire cautionary instruction as I read that. So, as I re-read the charges against the defendant, so that you know what this case is about, remember that when I read it, it's a mere accusation against the defendant; it's not evidence of his
guilt, and you should not permit yourself to be influenced to any extent, however slight, against him because of the filing of the charges.The judge then read to the jury, "Count I, felony DUI. Oh, excuse me. Strike that. On or about June 29, 2011, ... ."
Immediately after reading the charges to the jury, the judge instructed the jurors:
As I said before, this charging document is not evidence against the defendant. At this trial, it is the job of the lawyer for the State to present evidence to prove the charges against the defendant. And according to the law, the defendant is presumed to be innocent of the charges ... unless the State can present enough evidence to prove the defendant guilty beyond a reasonable doubt.Realizing she had erred by informing the jury that Vaughn was charged with a felony-level DUI during the first phase of his bifurcated trial, the trial judge immediately asked the attorneys to approach the bench. The defense requested a mistrial, arguing that the court could not "un-ring the bell." The State argued that a mistrial was not warranted. The trial judge denied Vaughn's request for a mistrial but offered to give a curative instruction, although she acknowledged a curative instruction might highlight the issue even more. The defense agreed that a curative instruction would compound the problem and did not request one. The court proceeded with the trial.
On appeal, Vaughn argues that the trial court abused its discretion by denying his motion for a mistrial. The State concedes that the trial judge erred by informing the jury that Vaughn was charged with a felony DUI during the first phase of the bifurcated trial, but the State argues that the court's instructions to the jury (that the charge was not evidence and that the defendant was presumed innocent) were sufficient to cure the prejudice that arose.
Vaughn's argument rests on the assumption that the jurors knew that DUI is a felony in Alaska only if the defendant has two or more prior convictions within a defined time period. Vaughn reasons that if the jurors knew that Vaughn was charged with felony DUI, they would be aware that he had prior convictions for DUI or breath test refusal — information that could be unfairly prejudicial.
See AS 28.35.030(n).
As the State acknowledges, it was error for the trial court to inform the jury during the first phase of the bifurcated trial that Vaughn was charged with felony DUI. The question is whether, under the circumstances of this case, this error requires a reversal. The decision of whether the jury's exposure to prejudicial information requires a mistrial is committed to the trial judge's discretion. We will reverse the judge's decision only if we are convinced the judge acted unreasonably and abused that discretion.
Hewitt v. State, 188 P.3d 697, 699 (Alaska App. 2008) (citing Tritt v. State, 173 P.3d 1017, 1019 (Alaska App. 2008)).
Id. (citation omitted).
Vaughn's trial for felony DUI was bifurcated. As this Court has noted, the purpose of bifurcating a felony DUI trial is not to hide the fact that a defendant is on trial for a felony, but rather to prevent the jury from hearing evidence of his prior convictions for the same crime before deciding whether he committed the current alleged act. Inappropriate disclosure of a defendant's prior convictions is reversible error when that information seriously prejudices the jury's consideration of the case.
See Ostlund v. State, 51 P.3d 938, 941-42 (Alaska App. 2002); see also Kinneen v. State, 2004 WL 2914978, *4 (Alaska App. Dec. 15, 2004) (unpublished).
See Ostlund, 51 P.3d at 942.
But in this case, the jury was only told that Vaughn was charged with a felony DUI. As we have previously observed, "there will be times when, despite the efforts of the judge and the attorneys, one or more trial jurors will deduce that the defendant is on trial for a felony simply from the fact that the trial is taking place in the superior court and the jury consists of twelve members." In Vaughn's case, the jury was not directly informed that Vaughn had previously been arrested for, or convicted of, DUI.
Cassou v. State, 2009 WL 564685, *2 (Alaska App. March 4, 2009) (unpublished).
Additionally, the jurors were instructed, both before and after the trial judge mentioned the felony nature of Vaughn's charge, that the charging document was not evidence against Vaughn. And, immediately after the court inadvertently informed the jury that Vaughn was charged with felony DUI, the court instructed the jurors that it was the State's burden to present evidence to prove the charges against Vaughn. Next, the court instructed the jury that Vaughn was presumed to be innocent of the charges against him unless the State met its burden of proving him guilty beyond a reasonable doubt.
For these reasons, we conclude that the trial court did not abuse its discretion in denying Vaughn's motion for a mistrial. However, as this issue has now arisen several times in different cases, we take the opportunity to caution superior court judges to adopt preventative procedures so they do not inadvertently disclose to juries the felony nature of a defendant's DUI charge during the first stage of a bifurcated trial.
See, e.g., Hewitt v. State, 188 P.3d 697, 699-700 (Alaska App. 2008); Laschober v. State, 2014 WL 700 5586, *4-6 (Alaska App. Dec. 10, 2014) (unpublished).
Automatic verification of calibration of the DataMaster
Vaughn raises several arguments based on the premise that the verifications of calibration performed on the DataMaster in his case were invalid because the verifications were performed automatically by the DataMaster itself and not by a person. Vaughn argues that this type of automatic verification violates 13 Alaska Administrative Code (AAC) 63.100(c), which states, in pertinent part, that "[t]he verification of calibration must be performed by the scientific director or by a qualified person designated by the scientific director."
To provide some background for this issue, Alaska law requires the State to regularly verify the calibration of breath test instruments. According to a witness from the State Crime Laboratory, the breath test instrument used in the State of Alaska for a number years was the DataMaster CDM. To verify the calibration of the DataMaster CDM, a breath test supervisor would conduct several tests on the instrument and submit a report to the laboratory, where it would be reviewed by the director of the breath test program. But the State started using a new breath test instrument, the DataMaster DMT. These new instruments are programed to automatically run verification testing on a regular basis, and the results are transmitted to the laboratory, where a person reviews the verification results.
Although Vaughn objected to the admission of the verification of calibration reports on the ground that their admission violated his right to cross-examination, he did not object to their admission on the basis that the verification of the DataMaster's calibration did not comply with 13 AAC 63.100(c). Thus, he failed to preserve this issue.
Additionally, the Alaska Supreme Court, in Dennis v. State, Department of Administration, Division of Motor Vehicles, recently rejected a claim that the automated verification of calibration procedure does not meet the requirements set out in 13 AAC 63.100(c).
320 P.3d 1150, 1151-52 (Alaska 2014).
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Vaughn argues on appeal that Dennis was wrongly decided and asserts that he will request the supreme court to overturn its decision. But as Vaughn recognizes, this Court has no authority to disturb the supreme court's decision. And Vaughn has not convinced us that his case is distinguishable from Dennis in any meaningful way.
Conclusion
We AFFIRM the judgment of the superior court.