Opinion
Court of Appeals No. A-11317 No. 6196
06-24-2015
CHARLES R. NIX, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Senta, Assistant District Attorney, Palmer, 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. 3PA-11-3393 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Palmer, David L. Zwink, Judge. Appearances: David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Senta, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
A jury convicted Charles R. Nix of driving a vehicle while under the influence. On appeal, Nix asserts that the trial court erred by allowing the State to amend its theory of prosecution during the trial. He also claims that the prosecutor made improper statements during his closing argument. For the reasons explained here, we conclude that Nix's claims have no merit, and we therefore affirm the judgement of the district court.
Underlying facts and proceedings
In December, 2011, Alaska State Troopers received a telephone report that a vehicle was parked on Nix's lawn in Palmer. According to the caller, a man was in the driver's seat of the vehicle, but he was not moving; his chest was leaning against the steering wheel, and his head was resting on his shoulder.
A trooper who arrived on the scene observed that the vehicle's engine was running and that its headlights were illuminated. The trooper knocked on the window and the driver (Nix) opened the door. The trooper could smell a strong odor of alcohol, and he observed that Nix exhibited various indicia of intoxication.
Nix told the trooper that he had been drinking, and that he had driven home from Wasilla. When the trooper had Nix get out of the car, Nix yelled obscenities and raised his middle finger at another trooper who arrived.
After Nix performed poorly on field sobriety tests, he was arrested for driving under the influence. At the trooper station, he submitted to a breath test which showed that his blood alcohol content was .229 percent.
The State charged Nix with DUI under subsection (a)(2) of AS 28.35.030. That is, the State charged Nix under the "blood alcohol of .08 percent or greater" clause of the statute, rather than the "under the influence" clause of the statute.
On the day before his trial began, Nix asked the district court to issue a protective order prohibiting the State from playing for the jury one of the trooper's audio recordings in which Nix repeatedly used offensive language. The prosecutor opposed Nix's request, arguing that Nix's use of profanity was circumstantial evidence of his degree of intoxication, and that redacting the specific words Nix used would be too difficult (because Nix used profanity throughout the recording).
While the trial judge was trying to evaluate the prosecutor's argument (i.e., the assertion that Nix's use of profanity was relevant to prove his degree of impairment), the judge asked Nix's attorney whether Nix was going to dispute the fact of his impairment, or whether Nix was going to defend the case on the theory that he had not "operated" the vehicle. Nix's attorney responded, "This one's not about impairment. It's about whether [Nix's conduct] constitutes operating."
And when the prosecutor continued to assert that Nix's offensive language was relevant because it tended to prove his impairment, Nix's attorney responded by offering to stipulate to the element of impairment: "Mr. Nix is prepared to stipulate to the fact that he was over .08 and therefore, under the law, intoxicated or impaired for the purpose of DUI." Nix's attorney further declared that he would not challenge the Datamaster evidence (i.e., the breath test evidence).
After the defense attorney announced his position on these matters, the trial judge essentially granted Nix's motion for a protective order: the judge directed the prosecutor to prepare a redacted version of the audio recording that did not contain Nix's use of profanity. (Nix does not argue on appeal that the court erroneously admitted any portion of the recording.)
The prosecutor then presented the State's case, which comprised the testimony of four witnesses plus the Datamaster result of .229 percent. Following the presentation of this evidence, the prosecutor rested his case-in-chief.
When the parties returned to court the next day, the prosecutor asked the district court to instruct the jury that Nix was stipulating to the fact of his impairment, and that Nix was not challenging the breath test result. But at this point, Nix's attorney altered his position: the defense attorney told the judge that Nix was still willing to stipulate to his intoxication, but he would not stipulate that the Datamaster test result was correct.
When Nix's attorney announced that he was no longer willing to stipulate to the Datamaster test result, the prosecutor told the judge that he wished to amend the complaint by adding an additional theory of DUI — the "under the influence" theory codified in subsection (a)(1) of AS 28.35.030.
Nix's attorney initially objected to this proposed amendment of the charge. But after the court and the parties discussed whether the State could amend its theory of DUI, Nix's attorney told the court:
Defense Attorney: If we could essentially go back in time, to the posture we were at before any of this, I would leave it to the State to choose whether they wish to accept a stipulation and leave the [charging document] as it is, ... or if they now want to change the playing field by adding this ["under the influence" theory], then they would do so at the cost of not getting the defendant's stipulation. I think that would be fair.
Upon hearing the defense attorney take this position, the trial judge asked the prosecutor to choose between the two options offered by the defense attorney: (1) to prosecute the case under the theory that Nix's blood alcohol content was .08 percent or more, without a stipulation that the Datamaster was working properly, or (2) to add the theory that Nix was "under the influence" of alcohol, without a stipulation that Nix was in fact under the influence.
The prosecutor chose the second option: to add an "under the influence" theory to the charge. The court then amended the jury instructions to reflect this change in the charge. Nix's attorney made no objection to the court's characterization of the choices the defense attorney had offered the State, nor did the defense attorney object when the prosecutor made the choice of amending the charging document to add an "under the influence" theory, nor did the defense attorney object when the judge altered the jury instructions to include this additional theory of prosecution.
The jury convicted Nix of DUI, and he now appeals — contending that it was error for the trial judge to allow the State to amend its theory of prosecution in the middle of trial.
Nix's attorney invited the mid-trial amendment of the complaint, so Nix may not challenge it on appeal
As we have just explained, Nix claims in this appeal that the trial judge committed error by allowing the State to amend its complaint in the middle of trial by adding an "under the influence" theory of prosecution. But this amendment of the complaint was done at the suggestion of Nix's attorney.
At the time this action was taken, the court and the parties were confronting the problem that was created when Nix announced that he was no longer willing to stipulate to the breath test results — even though Nix had earlier said that he would stipulate to these results, and the State had rested its case-in-chief relying on that stipulation.
The mid-trial amendment of the complaint was one of the two options that the defense attorney offered for resolving this problem — and the defense attorney expressly declared that this option "would be fair". After the defense attorney announced that he would be satisfied with either of the two options he described, the trial judge asked the prosecutor to pick one of the two options offered by the defense attorney. The prosecutor then chose to amend the complaint to include an "under the influence" theory.
The defense attorney never objected to any of this, nor did he indicate in any other way that he was having second thoughts about allowing the State to amend its complaint.
Now, represented by a different attorney, Nix argues that it was fatal error for the trial judge to allow the prosecutor to amend the complaint in this fashion. But Nix invited the judge and the prosecutor to do precisely this. And under the doctrine of invited error, Nix may not challenge the amendment of the complaint on appeal.
The doctrine of invited error applies to cases where a litigant rests their claim of error on action that the lower court took at the litigant's express request. And when error is invited, "an appellate court examines the error [only] to see if there is an 'exceptional situation' where reversal is necessary to preserve the integrity of the judicial process or to prevent a miscarriage of justice." Johnson v. State, 328 P.3d 77, 86 (Alaska 2014). Nix has not shown that the State's amendment of its complaint undermined the integrity of the judicial process or led to an obvious miscarriage of justice.
Barrett v. State, 772 P.2d 559, 568-69 n. 10 (Alaska App. 1989).
Quoting Parson v. Alaska Housing Finance Corp., 189 P.3d 1032, 1038 (Alaska 2008).
In his brief, Nix argues that his attorney's cross-examination of the State's witnesses would have been different if the defense attorney had known that Nix's degree of impairment (as opposed to his blood alcohol level) was at issue.
It is true that, when these witnesses took the stand during the State's case-in-chief, Nix's degree of impairment was not at issue. The State's complaint against Nix charged only the "blood alcohol level" theory of DUI, not the "under the influence" theory, and Nix's attorney had affirmatively announced that he was "prepared to stipulate to the fact that [Nix's blood alcohol level] was over .08 [percent] and [that] therefore, under the law, [Nix was] intoxicated or impaired for the purpose of DUI." Thus, both attorneys conducted their examinations of these witnesses under the assumption that Nix's degree of impairment was not at issue.
(Moreover, as we have described, the defense attorney affirmatively relied on the fact that this element was not going to be disputed when the defense attorney successfully asked the trial judge to prohibit the State from introducing evidence of Nix's use of profanity.)
But after the State rested its case-in-chief, the defense attorney announced that Nix was no longer willing to stipulate. Doubtless, at that point, both the prosecutor and the defense attorney might have liked to revisit their examination of the State's witnesses. But rather than asking to have the State's case re-opened, the defense attorney proposed another solution: amendment of the complaint.
We must assume that when the defense attorney offered the prosecutor this option of amending the complaint, he did so with both eyes open — and that he would not have made this offer if he had thought that a mid-trial amendment of the complaint would prejudice the substantial rights of his client, see Alaska Criminal Rule 7(e), or that the amendment of the complaint would otherwise lead to a miscarriage of justice.
Criminal Rule 7(e) declares: "The [trial] court may permit an indictment or information to be amended at any time before [the] verdict ... if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced."
Nor was the defense attorney's offer an unalloyed benefit to the prosecutor. By amending the complaint, the prosecutor would be able to augment the State's theory of the case when it was argued to the jury. But there was a downside: the prosecutor had already examined all of his witnesses under the assumption that the issue of Nix's impairment would not be litigated.
Given these circumstances, we conclude that Nix has failed to show that the invited error in this case undermined the integrity of the judicial process or led to an obvious miscarriage of justice. Accordingly, we reject Nix's claim of error.
Even though the prosecutor made improper statements during closing argument, those statements do not require reversal of Nix's conviction
Nix claims that his conviction should be reversed because the prosecutor made improper and prejudicial statements during his closing argument to the jury.
When a defendant claims that a prosecutor's closing argument was improper, this Court considers "whether the prosecutor's statements, if in error, constituted such egregious conduct as to undermine the fundamental fairness of the trial."
Rogers v. State, 280 P.3d 582, 589 (Alaska App. 2012) (citations omitted). --------
The prosecutor made the remarks in question during rebuttal, in response to certain statements that Nix's attorney made during his final argument. Nix's attorney made statements suggesting that the jurors were not required to follow the law, and that they should instead act as the "conscience of the community" when reaching their verdict. The prosecutor objected to the defense attorney's remarks, and the trial judge cautioned the defense attorney. But Nix's attorney persisted in this line of argument; he essentially suggested that even if the State proved its case against Nix beyond a reasonable doubt, the jury was still authorized to find Nix not guilty.
In his rebuttal argument, the prosecutor responded to the defense attorney's statement that the jurors were the "conscience of the community" by telling the jurors about his own personal connections to Alaska, and how much he cared about the community. When Nix's attorney objected to the prosecutor's remarks, the court sustained the objection and told the prosecutor to refrain from talking about himself or his experiences.
In other words, the record shows that both attorneys made improper arguments to the jury. The defense attorney initiated the problem when he suggested that the jurors were not bound by the law, and that they could instead act as the "conscience of the community". The prosecutor objected, and the trial judge cautioned the defense attorney — but the defense attorney nevertheless returned to this theme. Rather than objecting yet again, the prosecutor waited until rebuttal — when he responded to the defense attorney's remarks by injecting his own improper argument.
This is not permitted. If the prosecutor believed that the defense attorney was not heeding the judge's admonition, the prosecutor should have objected again, rather than making improper arguments of his own.
Nevertheless, when Nix's attorney objected to the prosecutor's improper argument, the judge sustained the defense attorney's objection, and the defense attorney did not ask the judge to give the jury a curative instruction or to take any other remedial action.
Under these circumstances, we conclude that the prosecutor's improper arguments about his personal ties to the community and the depth of his commitment to Alaska did not undermine the fundamental fairness of Nix's trial.
Nix claims that the prosecutor made other improper statements during his summation — statements that Nix's attorney did not object to. We have examined the record, and we conclude that these other statements do not rise to the level of plain error.
Conclusion
The judgement of the district court is AFFIRMED.