Opinion
A-13811 0365
04-10-2024
ROBERT E. DRULEY, Appellant, v. STATE OF ALASKA, Appellee.
Marjorie A. Mock, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Madeline M. Magnuson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Third Judicial District, Trial Court No. 3PA-19-01841 CR Palmer, Shawn D. Traini, Judge.
Marjorie A. Mock, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Madeline M. Magnuson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
SUMMARY DISPOSITION
Robert E. Druley was convicted, following a bench trial, of driving under the influence of alcohol. The brief facts of the case are as follows:
AS 28.35.030(a)(2). We note that Druley was charged and tried under both theories of driving under the influence set out in AS 28.35.030, but the written verdict only addresses (and finds him guilty) under subsection (a)(2) (the breath test theory). The judgment states that Druley was convicted under subsection (a)(1) (the impairment theory). Neither party has noted this issue in their briefs.
In July 2019, a trooper responded to a report of a disturbance between a man and a woman near Mile 196 on the Parks Highway. The trooper noticed a woman walking south along the highway and a man several hundred yards north, running toward the woman. The trooper then drove an additional one and one-half to two miles north and observed a pickup truck whose engine was running, driver's side window was broken, and passenger's side door was ajar. The trooper circled back to the man he had previously seen and identified him as Robert Druley, the registered owner of the pickup truck. Druley exhibited signs of intoxication and performed poorly on field sobriety tests, and a later breath test showed that Druley had a blood alcohol content of .276 percent.
The trooper also spoke with the woman, Tina Tischer. Tischer smelled of alcohol, but she denied drinking or driving the truck. Tischer told the trooper that there had been moonshine in the vehicle that spilled on her.
Druley was charged with, and later convicted by the court of, driving under the influence.
On appeal, Druley raises one claim. He argues that the district court improperly precluded him from cross-examining Tischer as to whether she was on conditions of release in an unrelated criminal case at the time of the incident in this case.
During cross-examination of Tischer, defense counsel asked Tischer a series of questions designed to impeach her statement to the trooper that she had not been drinking. Defense counsel asked Tischer whether she remembered admitting to a defense investigator after the incident that she had been drinking alcohol on the day of the incident. Tischer acknowledged that she probably told the investigator that she had drank beer, but then equivocated as to what she drank. Defense counsel then asked her whether she was "on PED requirements" - i.e., conditions of release that required supervision by the Department of Corrections' Pretrial Enforcement Division (PED).
Although counsel's question was phrased in the present tense, the context of the questioning, together with Druley's statement of the issue presented on appeal, makes clear that Druley was referring to whether Tischer was on PED conditions at the time of the offense and not during trial.
The State objected. In response, defense counsel stated that "given that she's on PED conditions[,] she can be impeached based on that because she had lied to the police officers." The district court sustained the State's objection, ruling that, while defense counsel was free to impeach Tischer with the conversation she had with the defense investigator, "whether she's on PED is [not] relevant or admissible as to this."
Druley now argues that the court improperly limited his attorney's crossexamination. We acknowledge that a "trial court must be particularly solicitous toward cross-examination that is intended to reveal bias, prejudice, or motive to testify falsely." But Druley's rationale for introducing the fact that Tischer was on conditions of release was vague and unclear. To the extent defense counsel was trying to show that Tischer would have had a motive to lie about her drinking, we note that the attorney provided no details as to what conditions Tischer was subject to - for example, whether she had a condition precluding her from drinking alcohol.
Wood v. State, 837 P.2d 743, 745 (Alaska App. 1992).
Prior to trial, Druley's attorney filed a "Notice of Intent to Rely on 404(b) Evidence"i.e., a "notice of intent to rely on Ms. Tina Tischer's felony case." The notice stated that Tischer was charged in a case "from 2018," but Druley did not provide any detail about the nature of the charge, whether the charge remained pending or had been resolved, or whether Druley had been under conditions of release. And when the court inquired about the notice at a subsequent pretrial hearing, the attorney was unclear about the purpose of the filing, saying only that she filed it "as like a heads-up" in case she "chose to bring it up" under Evidence Rule 404 or as impeachment. The attorney did not refer to the notice at the time of cross-examination, or at any later point, and never sought to question Tischer about the charge itself or whether it caused her to be biased in her testimony.
But even assuming that the district court should have permitted Druley to ask Tischer whether she was on conditions of release at the time she was contacted by law enforcement, this information was ultimately presented through the testimony of the investigating trooper. On cross-examination, the trooper testified that, when he ran Tischer's license upon initial contact with her, he learned that she was on "conditions of release." The State did not object to this testimony, and the court did not place any limitation on Druley's ability to rely on it in closing argument. Thus, any error by the court in limiting Druley's cross-examination of Tischer was harmless beyond a reasonable doubt.
See, e.g., Wood, 837 P.2d at 746-49.
See Williams v. State, 480 P.3d 95, 102-03 (Alaska App. 2021) (upholding a trial court's restriction on a defendant's cross-examination of a witness because the jury "otherwise receive[d] information adequate to allow it to evaluate the bias and motives of" that witness) (quoting Stumpf v. State, 749 P.2d 880, 901 (Alaska App. 1988))); Mustafoski v. State, 954 P.2d 1042, 1047 (Alaska App. 1998) (upholding the trial court's limitation of cross-examination where the jury received sufficient information for the defendant to argue his theory of bias).
Druley argues that the error is not harmless because he was deprived of the opportunity to further develop the record. But defense counsel never presented an offer of proof as to what additional evidence would be developed, nor did she even tell the court that she had additional evidence to present. Under these circumstances, we find no reversible error.
Cf. Jones v. State, 576 P.2d 997, 1001 (Alaska 1978) (recognizing that a party seeking admission of evidence has the duty "to make clear to the trial court the reason why [the party] deems the evidence contained in the offer of proof admissible, so that the court may make an informed ruling").
For these reasons, the judgment of the district court is AFFIRMED.