Opinion
A-14096 0347
06-05-2024
JENNIFER J. PUTNAM, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Olivia M. Wells (opening brief), William R. Satterberg, Jr. (reply brief and oral argument), The Law Offices of William R. Satterberg Jr. Fairbanks, for the Appellant. Donald Soderstrom, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Fourth Judicial District, Fairbanks, Trial Court No. 4FA-22-00163 CR Maria P. Bahr, Judge.
Appearances: Olivia M. Wells (opening brief), William R. Satterberg, Jr. (reply brief and oral argument), The Law Offices of William R. Satterberg Jr. Fairbanks, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Jennifer J. Putnam was convicted of driving or operating a vehicle while under the influence after she drove her intoxicated friend to the hospital and then continued to drive and operate the vehicle in the hospital parking lot after her friend was admitted. Putnam raises two issues on appeal.
AS 28.35.030(a). Putnam's breath test revealed a blood alcohol content of 0.158 percent.
First, Putnam argues that the district court erred when it permitted the State to discuss, in its opening statement, a hospital security guard's expected testimony, and when it later allowed the security guard to testify to certain facts at trial. The substance of the security guard's testimony was that he saw Putnam driving around the hospital parking lot. Putnam argues that this testimony was inadmissible because it was not based on the security guard's personal observation, but was instead based on a combination of statements he heard from a different witness (a patient safety associate) and a video recording of the incident he reviewed after the fact (which was never introduced into evidence at trial).
We conclude that any error was harmless. Putnam never disputed that she drove in the hospital parking lot. Furthermore, the statute under which Putnam was charged prohibits both driving and operating a vehicle while intoxicated, and additional testimony, including Putnam's own, established that she was operating the vehicle - i.e., sitting in the front seat with the engine running - when police responded to the scene.
AS 28.35.030(a).
Putnam also argues that the security guard's testimony was false and that the State engaged in prosecutorial misconduct because it knew, or should have known, his testimony was false and failed to correct it. Putnam, however, has failed to point to any spot in the record that supports a finding that the security guard presented false evidence, let alone a finding that the State knew or should have known about this. See Montes v. State, 669 P.2d 961, 967 (Alaska App. 1983) (rejecting the defendant's argument that a witness's testimony was false where the record did not establish that the witness's statements were false); Henry v. State, 2014 WL 7005580, at *3-4 (Alaska App. Dec. 10, 2014) (unpublished) (same).
Second, Putnam contends that the district court erred in asking the parties to withhold their objections to opposing counsel's closing arguments. The district court requested that the parties not "interrupt[] each other in the midst of closing [arguments]" and withhold objections until after closing arguments "unless it's something that is just burning." The court assured them that it would issue any necessary curative instructions and that it would interrupt if it found either party to be making improper argument.
Putnam did not object to the district court's instruction at trial, so she must now show plain error. While we caution trial court judges that such instructions to counsel are not best practice and should not be routinely employed, we nonetheless conclude that the district court's instruction was not plainly erroneous. The parties were permitted to object to any issue requiring immediate correction. Moreover, they could raise objections after the other party finished their argument for the court to give necessary curative instructions. In fact, Putnam did raise objections after closing arguments. Furthermore, we have reviewed the closing arguments in this case and we cannot identify any statements that resulted in meaningful prejudice to Putnam, or that might otherwise cast doubt upon the validity of Putnam's conviction.
Adams v. State, 261 P.3d 758, 764 (Alaska 2011) ("Plain error is an error that (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial.").
The judgment of the district court is AFFIRMED.