Opinion
Court of Appeals No. A-8644.
June 15, 2005.
Appeal from the District Court, Third Judicial District, Palmer, Stephanie Rhoades, Judge. Trial Court No. 3PA-03-536 Cr
Verne E. Rupright, Rupright Foster, for the Appellant.
Curtis W. Martin, Assistant District Attorney, and Roman J. Kalytiak, District Attorney, Palmer, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Paul A. Humpal appeals his conviction for driving while under the influence.
AS 28.35.030(a).
Humpal asserts that his trial judge committed error by answering a jury question without first consulting Humpal and his attorney. However, Humpal did not object, or even attempt to preserve a record of the judge's action, after the judge told the parties that the jury had asked a question, and after the judge implied that she had already responded to the jury's question.
Moreover, the judge's response to the jury's question was correct. Therefore, even if the judge committed error, that error was harmless beyond a reasonable doubt.
Humpal also argues that his trial judge gave the jury an incorrect answer when the jurors asked a question (a separate question) concerning the significance of Humpal's post-arrest blood test. For the reasons explained here, we conclude that the judge's answer to this second question was correct.
Finally, Humpal contends that the trial judge misinstructed the jury by suggesting that the State was required to prove that Humpal's blood alcohol content exceeded the legal limit (0.08 percent) at the time of his post-arrest testing rather than at the time of his driving. It is true that one of the jury instructions (Number 3) wrongly stated that Humpal's guilt or innocence hinged on his blood alcohol level at the time he was tested, rather than his blood alcohol level at the time he was driving. However, another jury instruction (Number 9) contained the correct rule: that the ultimate issue was Humpal's blood alcohol level at the time he was driving.
The record of Humpal's trial shows that the prosecuting attorney argued the correct rule of law, both to the trial judge and to the jury. To support the argument that Humpal's blood alcohol level equaled or exceeded 0.08 percent at the time he was driving, the prosecutor presented expert testimony to show that, based on the result of Humpal's post-arrest breath test (0.087 percent) and his later blood test (0.079 percent), Humpal's blood alcohol level at the time he was driving must have exceeded the statutory limit of 0.08 percent.
It was Humpal's attorney who wanted the jurors to focus their attention on the post-arrest blood test result — because that result was slightly under 0.08 percent. Indeed, when the prosecutor told the judge (during a discussion of jury instructions) that the ultimate issue was Humpal's blood alcohol level at the time he was driving, Humpal's attorney responded that the prosecutor's argument was "flim-flam". In other words, the record shows that Humpal's attorney had a tactical reason for withholding an objection to Instruction No. 3 and for actively encouraging the jurors to apply incorrect law when deciding the case.
For these reasons, we reject Humpal's claims of error and we affirm his conviction.
Underlying facts: Humpal's arrest and the two ensuing chemical tests of his blood alcohol level
In the early morning of April 6, 2003, a state trooper pulled Humpal over for driving with expired license plate tags. Humpal smelled of alcoholic beverages, and he had bloodshot and watery eyes, so the trooper asked him if he had been drinking. Humpal said that he had consumed a few drinks some six or seven hours earlier. The trooper then administered field sobriety tests to Humpal. Based on Humpal's performance on these tests, the trooper arrested him for driving while under the influence.
At the trooper station, Humpal submitted to a breath test. This test was administered at 5:09 a.m.; it showed that Humpal's blood alcohol level was 0.087 percent — i.e., 0.007 above the legal limit. Humpal then exercised his right to an independent blood test. This blood test was performed forty-five minutes after his breath test; it showed a blood alcohol level of 0.079 percent — i.e., 0.001 below the legal limit.
At trial, the State presented an expert witness who analyzed these two test results and concluded that, at the time of his driving, Humpal's blood alcohol level was between 0.092 and 0.106 percent. Humpal's attorney urged the jury to disregard this expert testimony. The defense attorney argued that the blood test, with its result of 0.079 percent, was the most scientifically reliable evidence.
The jury found Humpal guilty of driving while under the influence.
The trial judge's response to the jury's first question
During the jury's deliberations, the jury asked the trial judge to clarify certain issues. On appeal, Humpal challenges the trial judge's responses to two of these jury questions.
The jury's first question involved Jury Instruction No. 3, the instruction that listed the elements of the crime of driving while under the influence. Instruction No. 3 informed the jury that the State was obliged to prove that Humpal "knowingly drove or operated a motor vehicle." During its deliberations, the jury posed the following question regarding this element: "The defendant knowingly drove — what does `knowingly' mean? Knew that he was intoxicated[,] or [knew that he was] driving?" About fifteen minutes later, the trial judge — District Court Judge Stephanie Rhoades — answered the jury by telling them that the State had to prove "[t]hat the [defendant] knowingly drove a motor vehicle."
On appeal, Humpal's attorney complains for the first time that Judge Rhoades answered the jury's question without consulting the parties.
The record contains no substantive discussion of this jury question or Judge Rhoades's response. The record shows that the jury submitted its question at 8:48 a.m., and that Judge Rhoades wrote her response at 9:06 a.m. But the electronic record of that day's proceedings does not begin until 10:08 a.m. Thus, the record is silent as to what communication (if any) took place between Judge Rhoades and the attorneys regarding the jury's question and the judge's response. (We do note, however, that later comments at Humpal's trial suggest that there was some communication regarding the jury's question.)
Humpal's attorney concedes that someone from the court staff notified him that the jury had posed this question. But, according to Humpal's brief, Judge Rhoades had already answered the jury's question by the time the defense attorney arrived at the courthouse.
In his brief on appeal, Humpal's attorney acknowledges that he never objected to Judge Rhoades's action, even after he learned of it. The attorney explains his omission by declaring that he thought it would be useless to object to a " fait accompli".
Regarding the substance of Judge Rhoades's response to the jury, Humpal's attorney argues that the judge's response was wrong — that the jury should have been instructed that the State had to prove that Humpal knew that he was intoxicated.
We reject Humpal's attorney's contention that he was not obliged to object to the judge's action and preserve a record of what had occurred. Regardless of the precise chain of events, it is clear that Humpal's attorney learned of the jury's question, and of Judge Rhoades's response, while the jury was still deliberating. If, as Humpal's attorney now argues, Judge Rhoades gave the wrong response to the jury, there was still time to correct that erroneous response. Accordingly, to preserve this claim of error for appeal, Humpal's attorney was obliged to alert Judge Rhoades (1) that he believed that she had violated proper procedure when she responded to the jury's question, and (2) that he believed that her response to the jury was mistaken as a matter of law. Because Humpal's attorney failed to do this, he is not entitled to pursue this claim of error on appeal.
Moreover, even if we assume that Judge Rhoades answered the jury's question without properly consulting the parties, any error was harmless beyond a reasonable doubt. The test is whether the presence of the defendant and his attorney "could have had an impact on the decisional process."
Raphael v. State, 994 P.2d 1004, 1013 (Alaska 2000).
On appeal, Humpal's attorney argues that the correct answer to the jury's question was that the State was obliged to prove that Humpal knew that he was under the influence at the time he was driving. Humpal's attorney contends that, if he had been notified of the jury's question, he would have asked Judge Rhoades to respond to the question in this fashion.
But this is not the law in Alaska. A prosecution for drunk driving requires proof that the motorist was under the influence, or that the motorist had the prohibited blood alcohol level, but it does not require proof that the motorist was aware that they were under the influence or that they had the prohibited blood alcohol level. Given this well-settled law, Humpal's suggested response to the jury's question is wrong. Moreover, Humpal is not entitled to relief based on the possibility that he might have been able to convince Judge Rhoades to misinstruct the jurors on this point of law.
State v. Simpson, 53 P.3d 165, 167 (Alaska App. 2002); see also Hoople v. State, 985 P.2d 1004, 1006 (Alaska App. 1999) (holding that the state statute prohibiting driving while intoxicated "does not require proof of any culpable mental state regarding the circumstance that makes the driving illegal (the fact that the driver was intoxicated or that the driver's blood-alcohol content exceeded [the legal limit])"); Cooley v. Anchorage, 649 P.2d 251, 253 n. 3 (Alaska App. 1982) (rejecting a claim that the Anchorage driving under the influence ordinance violated due process because it required no criminal intent and because motorists had no way of knowing whether their blood or breath alcohol had reached a level that placed them in violation of the ordinance); Van Brunt v. State, 646 P.2d 872, 873 (Alaska App. 1982) (holding that conviction under the state driving while intoxicated statute does not require proof that a motorist knew that they were under the influence or that their blood or breath alcohol level exceeded the legal limit; the fact that the motorist intentionally drank and drove is enough to support a conviction); Morgan v. Anchorage, 643 P.2d 691, 692 (Alaska App. 1982) ("We do not believe that a person who intentionally drinks and intentionally drives must be aware that he is under the influence of alcohol in order to be convicted[.]").
We note that, at trial, Humpal did not dispute that he knowingly drank alcoholic beverages and then knowingly operated a motor vehicle. Instead, Humpal asserted that he delayed driving until he felt clear-headed and believed that he was no longer too drunk to drive. Humpal thus argues on appeal that his "theory of the case hinged on his subjective impression that he was not intoxicated". But the fact that Humpal litigated his case on this theory does not mean that he was entitled to a jury instruction on this "defense".
We addressed a similar situation in Cheely v. State, 850 P.2d 653 (Alaska App. 1993). The defendant in Cheely was charged with stealing a truck from a car dealer. The State alleged that Cheely had taken the truck from the dealer's lot. Cheely's attorney offered the "defense" that Cheely had knowingly received the stolen vehicle from another person who had physically removed the truck from the lot.
Cheely, 850 P.2d at 657.
During jury deliberations, the jurors asked whether Cheely's "defense" was really a defense to theft, or if Cheely could be convicted of theft even if the jurors believed that he had merely received stolen property. The judge told the jurors that theft could be committed either by taking or by receiving stolen property, and the jurors ultimately convicted Cheely.
Id.
Id. at 658.
On appeal, we upheld the trial judge's action. We declared that "[i]f Cheely believed that [he could defend] by asserting that he was guilty, not of theft by asportation, but of theft by receiving, his belief was unreasonable and completely unfounded in law." We reach an analogous conclusion in Humpal's case.
Id. at 661.
For these reasons, we conclude that Humpal failed to preserve an objection to Judge Rhoades's response to the jury's question. We further conclude that, even if Judge Rhoades violated Humpal's rights by answering the jury's question without soliciting Humpal's input, any error was harmless beyond a reasonable doubt.
The conflicting jury instructions on the issue of when Humpal's blood alcohol level had to equal or exceed 0.08 percent, and the trial judge's response to the jury's second question
As noted above, Humpal's jury heard evidence of two blood alcohol tests. The first test, a breath test conducted approximately forty minutes after Humpal's arrest, showed that he had a blood alcohol level of 0.087 percent. The second test, a blood test conducted approximately forty-five minutes after the breath test, showed that he had a blood alcohol level of 0.079 percent.
However, neither of these test results was dispositive of Humpal's guilt. As we held in Conrad v. State, 54 P.3d 313 (Alaska App. 2002), and as we reiterated in Bertilson v. State, 64 P.3d 180 (Alaska App. 2003), when a defendant is prosecuted for operating a motor vehicle with a blood alcohol level equaling or exceeding 0.08 percent, the defendant's guilt or innocence hinges on their blood alcohol level at the time of the driving, not at the time of the later testing.
Conrad, 54 P.3d at 315; Bertilson, 64 P.3d at 182.
During Humpal's trial, the jury received conflicting information on this issue. Some of this information was wrong.
In particular, Jury Instruction No. 3 told the jurors that Humpal should be found guilty of driving while under the influence if the State proved that, within four hours of driving or operating a motor vehicle, Humpal submitted to a breath test on a properly calibrated and properly functioning Datamaster breath testing machine, and that Humpal's test result was 0.08 percent blood alcohol or higher.
However, another jury instruction — Instruction No. 9 — embodied the correct rule of law. Instruction No. 9 drew the jurors' attention to "[the] evidence in this case that the defendant submitted to a chemical test", but Instruction No. 9 told the jurors that the crucial question was Humpal's blood alcohol level at the time he operated the motor vehicle:
If you find that [Humpal] did take such a test within four hours of the offense alleged and that an accurate result was obtained, [then] you may, but are not required to, infer from such result that [Humpal's] alcohol content at the time of the test was equal to or less than [his] alcohol content at the time he operated a motor vehicle.
However, if you find that the breath test did not produce a result which accurately reflected [Humpal's] alcohol content at the time of the test or at the time he operated a motor vehicle, then you must consider all of the facts and circumstances in evidence in determining whether the defendant's alcohol content was at or greater than the legal limit at the time the motor vehicle was operated, no longer relying exclusively on the results of the test in that regard.
At Humpal's trial, the prosecutor took the position that the crucial fact was Humpal's blood alcohol level at the time he drove the motor vehicle. As we mentioned above, the prosecutor presented an expert witness who analyzed Humpal's breath test and blood test results (0.087 and 0.079, respectively), and then extrapolated back to Humpal's blood alcohol level at the time of his arrest. The expert estimated that Humpal had a blood alcohol level of between 0.092 and 0.106 percent at that time.
Humpal also presented expert testimony on this issue. Although Humpal's expert disclaimed the ability to attach a number to Humpal's blood alcohol level at the time he was driving, she did agree that one would expect Humpal's blood alcohol level at that time to be higher than either of his post-arrest test results.
Humpal's attorney, for his part, urged the jury to ignore this expert testimony and to concentrate instead on the test results — in particular, the result of the blood test, which showed Humpal's blood alcohol level to be below the legal limit.
In this appeal, Humpal argues that his conviction should be reversed because Jury Instruction No. 3 incorrectly informed the jurors that Humpal's guilt or innocence hinged on the post-arrest test results. But Humpal did not object to Jury Instruction No. 3. In fact, during an in-chambers discussion of jury instructions, when the prosecutor argued that Humpal's guilt or innocence turned on his blood alcohol level at the time he was driving, not on his later test results, Humpal's attorney interjected that the prosecutor's argument was "flim-flam".
Immediately after this "flim-flam" remark, Humpal's attorney told Judge Rhoades that Instruction No. 3 correctly stated the elements of the offense, and that Instruction No. 9 properly clarified the meaning of Instruction No. 3 with regard to the legal significance of Humpal's test results.
In other words, to the extent that Humpal's jury was misinstructed on the question of when Humpal's blood alcohol level had to equal or exceed 0.08 percent, this misinstruction was done at the instigation of, or at least with the active cooperation of, Humpal's own attorney. Accordingly, to prevail in this appeal, Humpal must show that Jury Instruction No. 3 was plain error.
There is no plain error when the complaining party had a tactical reason for failing to flag the error to the trial judge. This appears to be true in Humpal's case.
Jackson v. American Equity Insurance Co., 90 P.3d 136, 144 (Alaska 2004) (a party can not challenge a jury instruction as "plain error" if the record indicates that the party's failure to object to the instruction was a tactical choice); Willis v. State, 57 P.3d 688, 691 (Alaska App. 2002) (a party alleging plain error must show that there was no tactical reason for failing to object to the alleged error); Henry v. State, 861 P.2d 582, 589 (Alaska App. 1993) (a court will not find plain error "when there appears to have been a tactical reason to withhold objection").
Instruction No. 3 told the jurors to focus on Humpal's breath test result, which was in line with Humpal's theory of defense. Humpal's attorney argued that the jurors should ignore the State's expert testimony about Humpal's probable blood alcohol level at the time of driving, and that the jurors should instead focus on the later test results. In particular, Humpal's attorney urged the jurors to focus on the blood test result of 0.079 percent because (according to Humpal's attorney) that test result was, scientifically speaking, the most trustworthy.
Moreover, Instruction No. 3 told the jurors that the State was obliged to prove that Humpal's breath test was performed on a properly calibrated, properly functioning Datamaster breath testing machine. Humpal's attorney argued to the jury that Humpal's blood test result (0.079 percent) showed that the higher Datamaster test result (0.087 percent) was not trustworthy.
In other words, Humpal's attorney had tactical reasons for wanting to focus the jury's attention on the post-arrest breath test, and its arguable shortcomings, rather than on the State's evidence concerning Humpal's blood alcohol level at the time he was driving. For these reasons, we conclude that Humpal has failed show that the giving of Instruction No. 3 was plain error.
There is a second reason why Instruction No. 3 is not plain error in Humpal's case. A jury instruction will not constitute plain error if, viewing the record as a whole, we are convinced that the erroneous instruction did not significantly influence the jury's decision. We reach that conclusion here.
Willis v. State, 57 P.3d 688, 697 (Alaska App. 2002).
We note that, during the State's summation to the jury, the prosecutor correctly categorized the ultimate issue as whether Humpal's blood alcohol level equaled or exceeded 0.08 percent at the time he was driving. The prosecutor urged the jurors to find, based on Humpal's post-arrest breath test and blood test results, and based on the expert testimony extrapolating those results backward in time, that Humpal must have had a blood alcohol level of at least 0.08 percent at the time he was driving.
In addition, Judge Rhoades emphasized the correct legal test when she responded to a jury question concerning the meaning of Jury Instruction No. 3.
During their deliberations, the jurors asked Judge Rhoades to clarify Instruction 3. They asked whether they were allowed to "replace" the Datamaster test result (0.087 percent blood alcohol) with the result of the later blood test (0.079 percent blood alcohol). The jurors also asked if Humpal would have been entitled to insist on waiting an entire four hours before taking the breath test — presumably, so that his blood alcohol level would fall farther before he took the test.
Both of these questions suggest that the jurors were in fact being led astray by Instruction No. 3 — that they believed that Humpal's guilt or innocence hinged on his test result rather than on his blood alcohol level at the time he was driving.
In response to this jury question, Humpal's attorney asked Judge Rhoades to instruct the jurors that they could, indeed, substitute the blood test result (0.079 percent) for the breath test result (0.087 percent). But Judge Rhoades did not agree. Instead, she suggested that Instruction No. 9 already told the jurors how to properly handle the conflict between the breath test result and the blood test result. As explained above, Instruction No. 9 told the jurors to evaluate the breath test result in light of all of the evidence in the case (including the blood test result). According to Instruction No. 9, it was the jurors' job to decide whether the breath test result was an accurate indicator of Humpal's blood alcohol level at the time he was driving.
After Judge Rhoades drew the defense attorney's attention to Instruction No. 9, the defense attorney stated that this instruction solved the problem:
Defense Attorney: Great. [So] what you should do then, Judge, is [tell them], "We're going to turn your attention back to Jury Instruction No. 9."The Court: I'm good with that.
Defense Attorney: That works, and I think that [that] balances it.
A few minutes later, Humpal's attorney reiterated his satisfaction with this approach:
The Court: All [the jurors] have to determine [under] Instruction No. 3 . . . is that he knowingly drove or operated a motor vehicle, and that within four hours of driving or operating, he submitted a breath test on a properly calibrated, properly functioning Datamaster, and that the breath test result was .08 [percent] or more. That is the first set of . . . elements. That's what the State has to prove, okay?
Defense Attorney: Then [the jurors] go to Jury Instruction No. 9, to clarify the rest of it for them.
The Court: To clarify, basically, [the breath test] element. . . . Jury Instruction No. 9 is what they should consider with respect to [the breath test] element. . . .Defense Attorney: And I think that answers it.
Following this discussion, Judge Rhoades addressed the jurors. She told them that they could not simply substitute the blood test result for the breath test result. However, she then directed the jurors to Instruction No. 9, and she reiterated the salient features of that instruction. In particular, she instructed the jurors that the breath test result was important only if (1) the test was administered within four hours of the alleged offense, (2) the test was administered on a properly calibrated and properly functioning Datamaster, and (3) the test result, viewed in light of all the evidence in the case, convinced the jurors that Humpal's blood alcohol level was at least that high at the time he was driving.
Given this record, we conclude that Humpal has failed to show that Instruction No. 3 (flawed though it was) constituted plain error. To show plain error, Humpal must demonstrate that the mistaken jury instruction created "a high likelihood" that the jury followed an erroneous theory when they voted to convict Humpal. The court's instructions, taken as a whole, focused the jurors' attention on Humpal's blood alcohol level at the time he was driving. Morever, the instructions allowed (even encouraged) the jurors to consider Humpal's blood test result (0.079 percent) as evidence that he might have been within the legal limit at the time he was driving.
Jaso v. McCarthy, 923 P.2d 795, 800 (Alaska 1996), quoting Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153 (Alaska 1992).
For both of these reasons — Humpal's tactical reasons for failing to object to Instruction No. 3, and the curative effects of the prosecutor's summation and Judge Rhoades's response to the jury question — we conclude that the giving of Jury Instruction No. 3 was not plain error.
Humpal's claim of judicial bias
Finally, Humpal claims that Judge Rhoades's wording of the jury instructions, and her rulings upon these instructions, demonstrate that she was biased against Humpal or biased in favor of the State. The record utterly fails to support these claims. Moreover, we note (again) that Humpal's attorney agreed with, and argued in favor of, essentially everything that he now challenges on appeal.
Conclusion
The judgement of the district court is AFFIRMED.