Opinion
Court of Appeals No. A-11278 Court of Appeals No. A-11388 No. 6177
04-29-2015
VINCENT NICOLAS LIBERTINO, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Criminal 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. 3AN-09-12449 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack Smith, Judge. Appearances: Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge ALLARD.
Vincent Nicolas Libertino was convicted of driving under the influence and fourth-degree misconduct involving a controlled substance for possession of methamphetamine. On appeal, Libertino argues that his drug conviction should be reversed because the prosecutor elicited testimony from the arresting officer about the officer's belief that Libertino was lying when he denied ingesting any narcotics. We conclude that this claim has no merit. The record shows that the judge cut off this improper line of questioning and Libertino did not request any other relief. Nor does it appear that additional relief was required here. Accordingly, we affirm the judgment of the superior court.
Facts and proceedings
On October 27, 2009, at about 11:00 p.m., Anchorage Police Officer Marc Patzke responded to a report that a Jeep Cherokee had been parked in a Costco parking lot for several hours with the engine running. When Officer Patzke approached the Jeep, he found Libertino asleep in the driver's seat. After turning off the vehicle and waking Libertino, Patzke observed signs that Libertino was under the influence of narcotics: Libertino slurred his speech, repeatedly stuck his tongue out, fidgeted "like ... a two year old," and had difficulty with balance. Libertino denied consuming any drugs other than his blood pressure medication.
After Libertino got out of the vehicle to perform field sobriety tests, Officer Patzke saw a glass pipe for smoking methamphetamine near the driver's seat. Residue from the pipe field-tested positive for methamphetamine. Officer Patzke arrested Libertino for operating a motor vehicle under the influence. A later blood test showed that Libertino had methamphetamine in his system. The State charged Libertino with fourth-degree misconduct involving a controlled substance, a class C felony, and misdemeanor driving under the influence.
AS 11.71.040(a)(3)(A).
AS 28.35.030(a).
At Libertino's trial, Officer Patzke testified that Libertino repeatedly denied consuming drugs. The prosecutor asked Officer Patzke whether he thought Libertino "was not telling [him] the complete truth regarding ... [Libertino's] use of methamphetamine or drugs." The defense attorney then objected to this question, and the court instructed the prosecutor not to elicit the officer's opinion about Libertino's credibility. However, the court allowed the prosecutor to ask the officer why he repeatedly questioned Libertino about his drug use even though Libertino steadfastly denied using drugs. In response to this question, the officer stated: "Because I — I didn't believe him."
A bench conference followed in which the prosecutor sought the court's permission to ask follow-up questions. The court refused the prosecutor's request to continue this line of questioning, and again admonished her that this was an improper line of questioning. There was no further testimony on this matter. The defense attorney did not request that the court strike the prior answer; nor did he request a curative instruction or any other relief.
The jury convicted Libertino of both charges. He now appeals.
Why we conclude that Officer Patzke's testimony that he did not believe Libertino was harmless error in Libertino's case
We have consistently disapproved testimony on the credibility of another witness, declaring that a witness should not act as a "human polygraph." We have also found non-expert testimony on the veracity of another witness "troublesome" when that testimony does not satisfy the requirements of Alaska Evidence Rule 608(a) — which allows a witness to express an opinion on another witness's character for truthfulness or untruthfulness after the witness has testified and been impeached.
Flynn v. State, 847 P.2d 1073, 1075-76 (Alaska App. 1993); Thompson v. State, 769 P.2d 997, 1003-04 (Alaska App. 1989); Esmailka v. State, 740 P.2d 466, 469 n.2 (Alaska App. 1987).
Thompson, 769 P.2d at 1003-04.
The requirements of Evidence Rule 608(a) were not met here. Libertino did not take the stand and testify in his defense. Nor did Officer Patzke offer an opinion on Libertino's general character for untruthfulness; rather, the officer testified that he believed Libertino lied about the specific conduct charged in this case. This type of police testimony is particularly problematic because "jurors may surmise that the police are privy to more facts than have been presented in court, or they may be improperly swayed by the opinion of a witness who is presented as an experienced criminal investigator."
Saeagak v. State, 952 P.2d 278, 282 (Alaska App. 1998).
--------
In this case, however, the record does not show any prejudice. The judge quickly cut off this line of questioning and there was no follow-up testimony. Nor was the jury likely to view this brief testimony as particularly significant. The jury was already aware that the officer had decided to arrest Libertino for driving while under the influence even though there was no sign of alcohol impairment. And there was independent evidence of Libertino's drug use, including the methamphetamine pipe found near the driver's seat, Libertino's unusual behavior during the police contact, and Libertino's blood test, which confirmed the presence of methamphetamine in his blood. For these reasons, we conclude that admission of Officer Patzke's testimony was harmless.
Conclusion
We AFFIRM the judgment of the superior court.