Opinion
Court of Appeals No. A-11062 Trial Court No. 4BE-11-283 CR No. 6049
04-23-2014
NOEL DANIELS Sr., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Hannah E. King, Assistant Public Defender (opening brief), under contract with the Public Defender Agency (reply brief), and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ben Wohlfeil, Assistant District Attorney, Bethel, 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.
MEMORANDUM OPINION
Appeal from the District Court, Fourth Judicial District, Bethel, Dennis P. Cummings, Judge.
Appearances: Hannah E. King, Assistant Public Defender (opening brief), under contract with the Public Defender Agency (reply brief), and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ben Wohlfeil, Assistant District Attorney, Bethel, and Michael C. Geraghty, Attorney General, Juneau, 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 ALLARD.
Noel Daniels Sr. was convicted of misdemeanor driving under the influence. On appeal, he claims that the district court erred when it denied his request for a jury instruction on the affirmative defense of necessity and when it allowed three police officers to testify that, under the facts of this case, they would also have arrested Daniels for driving under the influence.
For the reasons explained in this decision, we conclude that Daniels was not entitled to a jury instruction on the necessity defense because he had an obvious legal alternative to violating the law. Although we agree that the district court erred by allowing the police officers to offer their opinions that they, too, would have arrested Daniels under the circumstances, we conclude the error was harmless. Therefore, we affirm Daniels's conviction.
Facts and proceedings
On March 17, 2011, a citizen contacted the Akiak Village Public Safety Office to report that a truck was stuck in the snow in his front yard. Tribal Police Officer Ronald Ivanoff and Village Public Safety Officer Christopher Alexie responded to the report.
Upon their arrival, they saw a pickup truck lodged in the snow with its engine running. Two men were asleep in the truck — Noel Daniels Sr. and Daniel Alexie. The officers videotaped the scene as they approached the truck and contacted the two men inside. Daniels was in the driver's seat, and Alexie was in the passenger's seat. Daniels had a strong odor of alcohol, bloodshot and watery eyes, and difficulty maintaining his balance when he got out of the truck.
The officers arrested Daniels and transported him to the Bethel Police Station. At the police station, a breath test was administered, showing that Daniels's blood alcohol content was .132 percent. The State charged him with driving under the influence.
AS 28.35.030(a).
At trial, Alexie testified that Daniels had not driven the truck into deep snow; a man named "John" had. Alexie testified that he and Daniels had met John earlier in the day on their way to ice-fishing. Alexie stated that John shared his whiskey with Daniels and Alexie, and then John drove them to Akiak in Daniels's truck. When questioned about the fact that the truck appeared to have only two seats, Alexie explained that there was an uncomfortable fold-out seat in the area behind the driver's and passenger's seats.
Alexie further testified that when John was driving in Akiak, he ran the truck into deep snow. The truck became stuck, and John fled. Alexie said he stayed inside the truck for warmth because it was cold that night. He did not know how long it was before the police found them. Other witnesses testified that it was around midnight when the officers found the two men in the truck, and that the temperature outside was five to ten degrees below zero.
Based on this testimony, Daniels requested that the court instruct the jury on the affirmative defense of necessity. District Court Judge Dennis P. Cummings denied the request on various grounds, including the fact that Daniels could have sought aid from nearby houses that were within "twenty-five to thirty feet" of the truck.
In his closing arguments, Daniels's attorney asserted that John, not Daniels, had driven the truck into the snow and that Daniels had gotten into the driver's seat after John fled, but that he had fallen asleep, unaware that the engine was still running. In rebuttal, the prosecutor primarily argued that Alexie's testimony about John was not credible. He also argued that Daniels had to have been aware that the engine was still running when he fell asleep in the driver's seat because otherwise the heater would not have been on.
The jury convicted Daniels of driving under the influence. He now appeals.
Did the trial court err in refusing to give the jury a necessity instruction?
On appeal, Daniels argues that he was entitled to a necessity defense in this case because, viewing the facts in the light most favorable to him, he "operated" the truck — i.e., moved to the driver's seat and remained there while the engine was running — only to avoid serious injury from the cold. Daniels further asserts that the trial court's reasons for denying Daniels's requested necessity instruction were based on various mistaken assumptions about the law, including that the defendant had to testify or admit all of the elements of the offense in order to obtain a necessity instruction.
To receive a necessity instruction, "it is not necessary that the defendant testify or even offer direct evidence in his own behalf." Seibold v. State, 959 P.2d 780, 782-83 (Alaska App. 1998) (quoting Willett v. State, 836 P.2d 955, 958 (Alaska App. 1992)).
We agree with Daniels that many of the trial court's stated reasons for denying the necessity defense were erroneous. However, we conclude that these errors were harmless because the trial court's main rationale for denying the instruction was correct.
Under Alaska law, necessity is an affirmative defense that a defendant must prove by a preponderance of the evidence. The defendant must show: (1) the act charged was done to prevent a significant evil; (2) there was no adequate alternative; and (3) the harm caused was not disproportionate to the harm avoided.
AS 11.81.320 (defining the affirmative defense of necessity); AS 11.81.900(b)(2) (defining "affirmative defense"); see also McGee v. State, 162 P.3d 1251, 1252 (Alaska 2007); Degler v. State, 741 P.2d 659, 661 (Alaska App. 1987).
Greenwood v. State, 237 P.3d 1018, 1022 (Alaska 2010).
To obtain an instruction on necessity, a defendant is required only to produce "some evidence" for each of the three essential elements of the defense. "Some evidence" is evidence that, when viewed in the light most favorable to the defendant, would allow a reasonable juror to find in the defendant's favor on each element of the defense. The requirement can be satisfied by a weakness in the State's case, by impeachment of the State's witnesses, or from circumstantial evidence. The burden is not a heavy one — as long as the defendant points to some evidence to support each element of the defense, "any weakness or implausibility in that evidence is irrelevant," and the existence of a necessity is "a matter for the jury, not for the court."
Id.
Id.
Id. at 1025.
Id. at 1022; see also Seibold, 959 P.2d at 782 (noting that "a strong argument can be made that a trial judge should err on the side of giving instructions on a proposed defense" in order to prevent needless appellate issues and to prevent the jury from considering "its own understanding of what [the proposed] defense is in the absence of an instruction from the court") (internal citations omitted).
In Greenwood v. State, the Alaska Supreme Court recently underscored the general principle that the jury, rather than the court, should determine the validity of a defendant's necessity defense. But the Greenwood Court also recognized that instances exist where the court can reject the defendant's necessity defense as a matter of law because there are "clear legal alternatives to violating the law." That is, there are some instances where the trial court can determine, as a matter of law, that no reasonable juror could conclude that the defendant could have reasonably believed that there was no adequate legal alternative to his illegal actions.
Greenwood, 237 P.3d at 1022, 1024.
See id. at 1024-25 ("[C]ourts may refuse to instruct the jury on the necessity defense when the defendant has 'clear legal alternatives to violating the law.' When a defendant testifies to her beliefs at the time of acting, the question for the judge is whether a 'clear legal alternative' existed such that the defendant is unable as a matter of law to meet her burden of presenting some evidence that she reasonably believed that there were no adequate alternatives to her unlawful action.") (quoting Seibold v. State, 959 P.2d 780, 783 (Alaska App. 1998)).
Here, the trial court's primary reason for refusing to instruct the jury on a necessity defense was his finding that there was a clear legal alternative to Daniels moving to the driver's seat and remaining there with the engine running — namely, he could have sought assistance from the nearby houses. In his reply brief, Daniels asserts that it is unclear how close these houses were, and argues that it is possible that Daniels was not aware of their existence. But the factual record on this issue is quite clear. The video recording of the scene, which is in the trial record and was played for the jury, shows that Daniels's truck is directly in the front yard of a house; indeed the video shows the house looming over the truck. This evidence corroborates the village patrol safety officer's testimony that the truck was stuck in the snow "right by the house" and the trial court's own finding that the house was less than 30 feet away.
Given these circumstances, we affirm the district court's decision to deny Daniels's request to instruct the jury on his proposed necessity defense.
Why we conclude it was error, albeit harmless error, to permit various police officers to testify that they, too, would have arrested Daniels for driving under the influence given these same circumstances
At trial, the prosecutor called a state trooper and two Bethel police officers to testify regarding different aspects of Daniels's breath test. During his direct examination of each of these witnesses, the prosecutor showed the witness a photograph of Daniels and Alexie sitting in the truck at the time of their arrest. The prosecutor then asked each officer a version of the following question:
This is a picture of a person sitting in a truck. Assume that the person sitting in the driver's seat is intoxicated and assume that the truck's engine is running. Would you arrest that person for DUI?Daniels objected to these questions on various grounds, including relevancy. Despite these objections, the district court allowed the officers' to testify that they, too, would have arrested the driver for driving under the influence in these circumstances.
On appeal, Daniels claims it was error to allow this testimony. We agree. Whether other police officers would have arrested the defendant under the same circumstances was not relevant to any issue the jury had to decide. Indeed, it is not clear what purpose the prosecutor intended these questions to serve. Notably, the prosecutor never offered any theory of relevancy to the trial court, and the State does not offer a theory on appeal.
Daniels argues that the testimony was highly prejudicial because it repeatedly emphasized the legality of his arrest. Daniels further argues that the jury likely viewed the testimony as proof that the officers personally believed Daniels was guilty of the underlying offense.
We disagree. The jury was aware that Daniels was on trial with a presumption of innocence even though he had been arrested for driving under the influence. The trial court properly instructed the jury on the presumption of innocence and the State's burden of proof beyond a reasonable doubt at trial. Therefore, even though the jury was not provided with a precise distinction between having probable cause to arrest and proof beyond a reasonable doubt to convict, the jury was aware that an arrest, even if valid, is irrelevant to the defendant's guilt. We perceive no reason to believe the jury did not faithfully follow the judge's instructions in this case.
See Lawson v. State, 264 P.3d 590, 597 (Alaska App. 2011); Knix v. State, 922 P.2d 913, 923 (Alaska App. 1996).
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We therefore conclude that although the trial court erred in permitting the officers to answer the prosecutor's irrelevant hypotheticals, the error was harmless given the overall circumstances of this particular case.
Conclusion
We AFFIRM the judgment of the district court.