Opinion
Court of Appeals No. A-9435.
May 6, 2009.
Appeal from the District Court, First Judicial District, Juneau, Larry R. Weeks, Judge, Trial Court No. 3JU-05-671 CR.
Appearances: Larry C. Hooton, pro se, Juneau. David L. Brower, Assistant Attorney General, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Larry C. Hooton was convicted of one count of driving while under the influence and one count of fourth-degree weapons misconduct for having a firearm in the cab of his pickup truck while he was impaired by alcohol. He argues that the district court should have suppressed the evidence against him because the police had no reasonable suspicion to stop him for driving while under the influence. But the record supports the district court's findings that a police officer saw Hooton staggering and swaying in the parking lot of a bar and, a short time later, observed road workers yelling at him for driving his pickup truck through traffic cones and over a freshly painted crosswalk. There was therefore reasonable suspicion to stop Hooton for driving under the influence of alcohol.
AS 28.35.030(a)(1).
AS 11.61.210(a)(1).
Hooton also complains that the district court prevented him from challenging his breath test result "relative to the testing of different non-typical subjects." But the trial judge allowed Hooton to argue that his breath test result was unreliable because he was a "non-typical subject" — that is, because he was sixty-seven years old and on blood-thinning medication. Hooton was not entitled to argue that the DataMaster breath test machine has an inherent margin of error.
Hooton argues that his field sobriety tests were inaccurate and that the officer who administered them was biased. But Hooton was able to raise these contentions in the trial court, and there was sufficient evidence for the jury to convict him, even without these field-sobriety test results.
Finally, Hooton raises several other claims for the first time on appeal. We find no plain error relating to these claims.
Facts and proceedings
Shortly before midnight on May 30, 2005, Juneau Police Officer Keith Mickelsen was parked outside of a restaurant and bar called the Squire's Rest when he noticed a man, later identified as Hooton, getting in and out of the driver's side of a pickup truck, apparently securing items in the truck. Mickelsen noticed that Hooton was staggering, swaying, and having a hard time maintaining his balance. After a while, Hooton and the man he was with walked to the back of the pickup truck and stood there. Mickelsen guessed they were waiting for a cab, so he left and drove to the restaurant's lower parking lot.
Officer Mickelsen heard yelling about ten minutes later. When he looked to his left, he saw some road workers who had blocked off part of the street with traffic cones because they were painting the crosswalk. The workers were yelling at Hooton, who was in the driver's seat of his pickup truck conversing with them. Hooton's head was sticking out of the driver's side window, and Mickelsen recognized him as the same man he had seen staggering in the parking lot earlier. After Hooton drove off, Mickelsen asked the road workers what had happened. One of the workers told Mickelsen that Hooton had disregarded the traffic cones and driven over the freshly painted crosswalk.
Officer Mickelsen caught up with Hooton about a mile and a half down the road, near the Juneau ferry terminal. Mickelsen pulled Hooton over and asked him what had happened with the road crew. Hooton said he "didn't know what the hell they were doing." He said he drove around the cones and then stopped to talk with the workers, who told him to go ahead. Mickelsen noticed that Hooton smelled of alcohol and that his eyes were bloodshot and watery. He asked Hooton if he had been drinking, and Hooton said he had one beer.
After administering field-sobriety tests, Mickelsen arrested Hooton for driving while under the influence and transported him to the police station for a breath test. That test, administered about an hour and a half after Hooton was stopped, showed a blood alcohol level of .101 percent. Hooton apparently then exercised his right to an independent chemical test and had a blood sample taken.
After Officer Mickelsen arrested Hooton, he asked Hooton if he needed anything out of his vehicle, and Hooton said he needed to lock up a handgun that was in a backpack behind the driver's seat. Officer Mickelsen secured the handgun, removed the loaded magazine, and took it to the police department.
Based on this conduct, Hooton was charged with driving while under the influence and fourth-degree weapons misconduct (possession of a firearm while impaired). One week before his trial, Hooton moved to suppress the evidence and requested an evidentiary hearing. He argued that Officer Mickelsen had no reasonable suspicion to stop him. Superior Court Judge Larry R. Weeks, sitting in the district court, denied the motion and the request for an evidentiary hearing, but ruled that Hooton could renew the motion at trial. Hooton did renew the motion, but Judge Weeks ruled that Mickelsen had reasonable suspicion to stop Hooton for driving while under the influence. The jury convicted Hooton of both charges.
Investigatory stop claim
On appeal, Hooton renews his claim that Officer Mickelsen did not have reasonable suspicion to stop him for driving while under the influence. "[A] police officer may make an investigatory stop if the officer has `reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred.'" In particular a police officer may conduct a stop when he has "reasonable suspicion that a driver is operating a vehicle while intoxicated." On appeal, we accept the trial court's factual findings unless they are clearly erroneous, but review de novo whether those facts justified the stop.
Hartman v. State, 152 P.3d 1118, 1122 (Alaska 2007) (quoting Coleman v. State, 553 P.2d 40, 46 (Alaska 1976)).
Id. (footnotes omitted) (emphasis omitted) (quoting Saltz v. State Dep't of Admin., 126 P.3d 133, 136 (Alaska 2005)).
Beauvois v. State, 837 P.2d 1118, 1120-21 (Alaska App. 1992); State v. Garcia, 752 P.2d 478, 480 (Alaska App. 1988).
After hearing the trial evidence, Judge Weeks ruled:
[A] person coming out of a bar at 11:45 at night, [who]'s staggering and having trouble standing up, getting in a car and driving through a place where the people were working and yelling at him, creates a reasonable suspicion that they're driving while under the influence.
The record supports Judge Weeks's factual findings and his conclusion that Officer Mickelsen had reasonable suspicion to stop Hooton. Mickelsen testified that he saw Hooton shortly before midnight in the parking lot of a bar and restaurant getting in and out of the driver's side of a pickup truck. Hooton staggered, swayed, and had difficulty keeping his balance. About ten minutes later, Officer Mickelsen saw Hooton driving the pickup and heard road workers yelling at him. When Officer Mickelsen asked the road crew what happened, he was told Hooton drove through traffic cones and over a freshly painted crosswalk. This conduct gave Officer Mickelsen reasonable suspicion to stop Hooton for driving while under the influence. Field sobriety test claims
See Ebona v. State, 577 P.2d 698, 699-701 (Alaska 1978).
Hooton next challenges his field sobriety test results. First, he argues that Officer Mickelsen must have been biased in administering the tests because earlier that night Mickelsen had observed Hooton near his pickup truck with two intoxicated people, a man and a woman, who were both about the same height as Hooton. Second, he challenges the accuracy of the field-sobriety tests on the ground that he is sixty-seven years old, lame, has flat feet, and has had cataract surgery on both eyes. Third, he asserts that horizontal gaze nystagmus test results can be influenced by the consumption of caffeine, nicotine, or aspirin — though he does not assert that he consumed any of these substances on the night that he was stopped. Lastly, he testified at trial that he takes Coumadin, and he asserts that the effects of this drug on nystagmus are unknown.
Hooton has not articulated what error relating to these claims he seeks to remedy on appeal. He has not argued that Judge Weeks prohibited him from presenting expert testimony or other evidence to challenge the administration and interpretation of the field sobriety tests or to show that his physical disabilities and medications affected the sobriety test results. Nor has he argued that Judge Weeks precluded him from questioning Mickelsen to establish his bias.
To the extent Hooton is arguing that there was insufficient evidence to convict him of driving while under the influence because his field sobriety tests results were unreliable, we find no merit to that claim. A defendant is entitled to a judgment of acquittal only if the evidence, viewed in the light most favorable to the jury's verdict, is insufficient for a fair-minded juror to find the defendant guilty beyond a reasonable doubt. Mickelsen testified that he saw Hooton driving about ten minutes after he saw him staggering and swaying in the parking lot of a bar. He also testified that Hooton smelled of alcohol and had watery, bloodshot eyes.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
A breath test about an hour and a half after Hooton was stopped showed a blood alcohol level of .101 percent. That breath test result, standing alone, was sufficient evidence for the jury to convict Hooton of driving while under the influence. Thus, even assuming the field sobriety tests were unreliable, there was still ample evidence for the jury to convict Hooton of that offense. Breath test claims
Hooton argues that Judge Weeks improperly prevented him from challenging the accuracy of the DataMaster "relative to the testing of different non-typical subjects." This claim is not supported by the record. Judge Weeks ruled that Hooton could argue the "square peg in the round hole theory . . . that whatever the [breath test] results were, [they] were not applicable to him because he was old or taking Coumadin or otherwise." And Hooton's attorney did make this argument:
[Y]ou put him [on] this machine, and you get a reading that's just slightly above the legal limit. And it's because this guy is sixty-seven years old and has been on chemicals for fifteen years, and he just doesn't react the same. And the officer told you, they don't even train for it. They take a standard machine for standard people, like we're all cookie cutters. But we're not. And if you want to accept that we are, you can. But it's going to leave the Larry Hootons of the world standing out there with their hands at their sides going, "I've been convicted of something that I didn't do."
On a related issue, Judge Weeks prohibited Hooton from arguing that the DataMaster has an inherent margin of error, or "working tolerance." This ruling was mandated by statute. Alaska Statute 28.90.020 provides that as long as a breath test is administered by a properly calibrated instrument approved by the Department of Public Safety, the instrument's inherent margin of error is irrelevant to a driver's guilt under AS 28.35.030(a)(2). Judge Weeks therefore properly prohibited Hooton from offering evidence on the DataMaster's margin of error. Discovery claim
Bushnell v. State, 5 P.3d 889, 891-92 (Alaska App. 2000).
Hooton complains that the State Crime Lab refused to provide him with a copy of the "chromatogram" of his blood test. (A chromatogram is a pictorial depiction of the chemical contents of a substance — a series of zones or bands that result when chemists use the process of chromatography to isolate the different chemical compounds contained in a substance.) Hooton asserts that this information might have been helpful to show the effect that his ingestion of Coumadin had on his test result. But Hooton's request and the crime lab's response are not included in the record that we review for this appeal. We cannot identify any place in the record where Hooton asked the trial court to order the State to produce this evidence. Hooton therefore has waived this claim.
See Collins v. State, 977 P.2d 741, 745 (Alaska App. 1999) (holding that a defendant waived his claim of a discovery violation where he did not articulate to the trial court how the purported discovery violation prejudiced his defense and did not ask for specific relief).
Hooton's argument would probably fail even if we considered the correspondence he has attached to his brief. Hooton's request to the crime lab encompassed far more than the chromatogram of his blood test. The letter that Hooton's attorney apparently sent to the crime lab demanded not only "a legible copy of the test chromatogram," with appropriate labeling of all known and unknown chemical compounds in Hooton's blood, but also demanded that the crime lab produce: (1) a description of the "exact procedure" utilized to conduct the test, including an identification of all chemicals and equipment used in the testing process; (2) any other information obtained from any other tests of Hooton's blood, "such as Ion Chromatography, hematocrit percentage[,] etc."; (3) a copy of "at least one Quality Control (QC) chromatogram" produced by the same gas chromatography testing equipment at about the same time as the test of Hooton's blood, "showing a typical and peak for a `known' alcohol and . . . the lab[']s `internal standard'"; and (4) "[c]onfirmation of the alcohol concentration of the `known' which the lab used to produce this [quality control] chromatogra[m]."
A crime lab toxicologist apparently responded to the defense attorney's letter. She told the defense attorney that she had checked with the Juneau District Attorney's Office and that the assistant district attorney handling Hooton's case had concluded that this "was not a reasonable discovery request." After Hooton's attorney received this response from the crime lab and the District Attorney's Office, he apparently took no further action on this matter.
Hooton argues that, under AS 28.35.033(f), he was entitled to the requested chromatogram (and, potentially, all the rest of the information and materials described in his attorney's letter). Alaska Statute 28.35.033(f) states that, "[U]pon the request of [a] person who submits to a chemical test at the request of a law enforcement officer, full information concerning the test . . . shall be made available to the person or the person's attorney." But by its very wording, this statute appears to apply only when a defendant has submitted to a chemical test at the request of a law enforcement officer. In Hooton's case, this was the breath test, not the independent chemical test that Hooton himself requested.
Even though AS 28.35.033(f) apparently does not apply to the independent chemical test in Hooton's case, Hooton may have had other lawful methods for obtaining some or all of the information he sought. For example, under Alaska Criminal Rule 16(b)(7), a trial court may order the government to make pretrial disclosure of information that is not covered by the provisions of Criminal Rule 16(b)(1) — (6) if the defendant "makes a reasonable request showing [the] materiality [of the requested information] to the preparation of the defense." But as we pointed out above, it appears that Hooton's attorney took no further action to obtain this information after the crime lab toxicologist wrote to him and denied his request. Weapons misconduct claims
Hooton was charged in count I with driving while under the influence under both a "blood alcohol" and "under the influence" theory. Count II charged Hooton with fourth-degree weapons misconduct under AS 11.61.210(a)(1), which provides:
(a) A person commits the crime of misconduct involving weapons in the fourth degree if the person
(1) possesses on the person, or in the interior of a vehicle in which the person is present, a firearm when the person's physical or mental condition is impaired as a result of the introduction of an intoxicating liquor or a controlled substance into the person's body[.]
During deliberations, the jury sent the following question to the court:
Does a finding of guilt on the first count [charging driving while under the influence] necessarily mean the defendant is impaired for the second count [charging weapons misconduct]?
After conferring with counsel, the court indicated it would instruct the jury as follows:
A finding of guilty on Count I does not require a finding of guilty on Count II. Driving under the influence because of a breath alcohol above .08 does not require the jury to find impairment. To find the defendant guilty of Count II, the jury would have to find the defendant impaired. The definition for "impairment" is the same for both counts. The jury must consider each count separately.
Hooton's attorney objected only to the sentence that read: "The definition for `impairment' is the same for both counts." He said this sentence was unnecessary because the jury had not asked for a definition of impairment. He did not argue that the legislature intended different definitions of "impairment" to apply to the statutes prohibiting driving while under the influence and fourth-degree weapons misconduct.
On appeal, Hooton argues that this instruction gave the jury "no choice" in its verdict. By this, he presumably means that Judge Weeks in effect instructed the jury that if it found him guilty under AS 28.35.030(a)(1) (the "under the influence" theory) this would amount to a finding that Hooton was "impaired" for purposes of fourth-degree weapons misconduct.
Alaska Criminal Rule 30(a) requires a litigant who disagrees with a jury instruction to make a specific objection to that instruction before the jury retires to deliberate so that the trial judge has the opportunity to correct the error before the charge goes to the jury. Hooton's attorney objected to Judge Weeks's decision to instruct the jury on the definition of impairment, but only on the ground that the jury had not asked for a definition — the attorney never argued that the court's definition was wrong. Therefore, Hooton must now show plain error.
Heaps v. State, 30 P.3d 109, 113-14 (Alaska App. 2001).
Hooton has barely briefed this issue and he cites no authority to establish that different definitions of impairment apply to these two offenses. Moreover, the evidence showed that Hooton had a breath-alcohol level of .101 and that, shortly before driving, he was staggering and swaying in the parking lot of a bar. The legislative history of the fourth-degree weapons misconduct statute suggests that the legislature intended to criminalize possession of a firearm within the interior of a vehicle by a defendant who exhibits such obvious signs of impairment by alcohol. Hooton thus has not shown that the court's instruction, as given, created "a high likelihood that the jury followed an erroneous theory[,] resulting in a miscarriage of justice."
See Act Defining Defensive Weapons and Prohibiting the Possession and Use in Certain Circumstances; and Amending the Criminal Laws Relating to Misconduct Involving Weapons: Hearing on H.B. 104 Before the H. Comm. on the Judiciary, 17th Leg., 1st Sess. (Alaska 1991) (statement of Laurie Otto, legal counsel for the House Judiciary Comm.).
Heaps, 30 P.3d at 114 (quoting Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993) (quoting Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 91 (Alaska 1974))).
Hooton next argues, again for the first time on appeal, that he could not be convicted of fourth-degree weapons misconduct unless the State proved that there was a nexus between his firearm possession and another criminal offense. In support of this claim, Hooton observes that this court in prior cases has required such a nexus for convictions under subsection (a)(1) of the second-degree weapons misconduct statute. But that nexus requirement is based on the language of the second-degree weapons misconduct statute; AS 11.61.195(a)(1) makes it illegal to "possess[] a firearm during the commission of [a felony drug] offense under AS 11.71.010 — 11.71.040." Hooton violated the fourth-degree weapons misconduct statute when he possessed a firearm in the interior of his vehicle while he was impaired by alcohol. That statute does not require a nexus between the firearm possession and the commission of a separate criminal offense.
See Collins v. State, 977 P.2d 741, 748, 753 (Alaska App. 1999) (holding that a conviction of second-degree weapons misconduct under AS 11.61.195(a)(1) requires proof of a nexus between the defendant's possession of a firearm and the defendant's commission of a felony drug offense); Murray v. State, 54 P.3d 821, 824 (Alaska App. 2002) (clarifying that the legislature, in enacting AS 11.61.195(a)(1), intended to penalize defendants who possessed a firearm "in furtherance of" a felony drug offense).
Hooton's final attack on his weapons misconduct conviction appears to be that AS 11.61.210(a)(1) is impermissibly vague or overbroad because it penalizes having a firearm in the interior of a vehicle, but does not define "interior" and provides no exception for vehicles with no trunk or other external storage area. Again, Hooton did not raise this challenge to the fourth-degree weapons misconduct statute in district court, so he must now show plain error.
But "the possibility of difficult or borderline cases will not invalidate a statute where there is a hard core of cases to which the ordinary person would doubtlessly know the statute unquestionably applies." Even assuming there is some potential vagueness in the phrase "interior of a vehicle," the statute clearly put Hooton on notice that it was illegal to drive his pickup truck with a firearm stashed behind the driver's seat while he was impaired by alcohol.
Stock v. State, 526 P.2d 3, 9 (Alaska 1974) (citations omitted).
Jury nullification
Lastly, Hooton argues for the first time on appeal that the jury should have been made aware of its right of jury nullification. In support of this claim, Hooton cites the dissenting opinion in a federal case, United States v. Dougherty. But Alaska cases establish that in this state, criminal defendants may not argue nullification to the jury. Conclusion
473 F.2d 1113, 1138-44 (D.C. Cir. 1972) (Bazelon, C.J., concurring in part and dissenting in part).
Skuse v. State, 714 P.2d 368, 373 n. 5 (Alaska App. 1986); Hartley v. State, 653 P.2d 1052, 1055 (Alaska App. 1982).
We therefore AFFIRM the district court judgment.