Opinion
No. 5896
11-14-2012
SHAWN SAFFELL-SUNNYBOY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Hanley R. Smith, Assistant Public Defender, and Quinlan Steiner, Pubic Defender, Anchorage, for the Appellant. Aaron C. Peterson, Assistant District Attorney, 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 precedent for any proposition of law.
Court of Appeals No. A-10908
Trial Court No. 3AN-10-9650 CR
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the District Court, Third Judicial District, Anchorage, Stephanie Rhoades, Judge.
Appearances: Hanley R. Smith, Assistant Public Defender, and Quinlan Steiner, Pubic Defender, Anchorage, for the Appellant. Aaron C. Peterson, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
A jury found Shawn Saffell-Sunnyboy guilty of misdemeanor driving while under the influence, and of sixth-degree misconduct involving a controlled substance. On appeal, Saffell-Sunnyboy asserts that he is entitled to a new trial because the district court admitted hearsay testimony that he was in the driver's seat when police arrived in response to a 911 call. For the reasons explained below, we find that any error was harmless. Accordingly, we affirm the judgment of the district court.
AS 28.35.030(a)(2) and AS 11.71.060(a)(2).
Background
On August 28, 2010, a security officer working for Bernie's Bungalow called Anchorage Police to report an intoxicated driver — Saffell-Sunnyboy. Earlier in the evening, the security officer, Austin Jacques, told Saffell-Sunnyboy and his girlfriend that because they were intoxicated, they could no longer purchase alcohol at the bar. The two left, but attempted, unsuccessfully, to re-enter the bar about forty-five minutes later. Jacques would not let Saffell-Sunnyboy re-enter the bar, but he offered more than once to call a cab. Saffell-Sunnyboy declined the offers.
Jacques testified that he watched Saffell-Sunnyboy walk to a parked vehicle, get into the driver's seat, and start the engine. Saffell-Sunnyboy then proceeded to drive backwards a bit and then forwards a bit in the parking space several times. According to Jacques, Saffell-Sunnyboy was so intoxicated that, as he walked to the vehicle, he almost fell down when stepping off the curb, and dropped his phone. Jacques called 911 to report that Saffell-Sunnyboy was driving while intoxicated. Police arrived soon after, and when they contacted Saffell-Sunnyboy, Jacques saw Saffell-Sunnyboy exit the vehicle from the driver's side door.
After an investigation, Saffell-Sunnyboy was arrested for driving while under the influence and for possessing a small amount of marijuana.
At trial, Sergeant Julie Shank, the first officer to contact Saffell-Sunnyboy in response to the 911 call, was unavailable to testify. Shank was the officer who removed Saffell-Sunnyboy from the driver's seat of the vehicle and later turned him over to another officer, Andrew Titus. Shank told Titus that she had found Saffell-Sunnyboy in the driver's seat. She told Titus that she thought Saffell-Sunnyboy was intoxicated, and she directed Titus to administer field sobriety tests. Because Saffell-Sunnyboy had been removed from the vehicle before Titus arrived, he had not seen Saffell-Sunnyboy in the vehicle. Titus's only role was administering field sobriety tests to Saffell-Sunnyboy, and then turning him over to yet another officer for Datamaster testing.
At trial, over Saffell-Sunnyboy's timely hearsay objection, Titus testified that Sunnyboy had been in the driver's seat of the vehicle. The trial judge ruled that this testimony was not hearsay because it explained why Titus asked Saffell-Sunnyboy to perform field sobriety tests. The trial judge also gave the jury a limiting instruction.
Ultimately, the jury found Saffell-Sunnyboy guilty of driving while under the influence and of sixth-degree misconduct involving a controlled substance. Saffell-Sunnyboy appeals, claiming that the trial judge erred by allowing the State to introduce inadmissible hearsay — Shank's statement that Saffell-Sunnyboy had been in the driver's seat of the vehicle.
Discussion
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay is not admissible except as provided by the Alaska Rules of Evidence, rules prescribed by the Alaska Supreme Court, or by enactment of the Alaska Legislature.
An out-of-court statement that is not offered for the truth of the matter asserted is not hearsay. And an out-of-court statement may be admissible to "show the process of [the] police investigation and to lay a foundation for the testimony of [the police officer who conducted the investigation]."
Watson v. State, 387 P.2d 289, 293 (Alaska 1963); see also Kristich v. State, 550 P.2d 796, 802 (Alaska 1976); Tracey v. State, 391 P.2d 732, 734 (Alaska 1964); Walker v. State, 652 P.2d 88, 93 (Alaska App. 1982).
Tracey, 391 P.2d at 734.
However, in Avery v. State, the supreme court placed a limit on such evidence. There, the court held that an out-of-court statement presented at trial to explain the course of the police investigation was inadmissible hearsay. The court explained that this type of evidence must be excluded when it provides details of the crime investigated that are so specific that the statement "is likely to be misused by the jury as evidence of the fact asserted." Consequently, even though the out-of-court statement in Avery was relevant to show the process of the police investigation, the court ruled that the statement was inadmissable because any probative value was outweighed by the evidence's potential impact on the defendant's defense.
514 P.2d 637 (Alaska 1973).
Id. at 645 (citation omitted).
Id.
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At Saffell-Sunnyboy's trial, the prosecutor explained that he was offering Shank's out-of-court statement not for its truth, but to show why Titus was administering field sobriety tests to Saffell-Sunnyboy — a person he had not seen driving. We agree with Saffell-Sunnyboy that there was a minimal need for any explanation about why Titus had him perform the field sobriety tests. But we conclude that even if this out-of-court statement was inadmissable, any error in the judge's ruling was harmless.
As noted above, Jacques testified that he saw Saffell-Sunnyboy get into the driver's seat and drive the vehicle. He also testified that, when the police arrived, he saw Saffell-Sunnyboy exit the driver's seat of the vehicle. Both Jacques and Officer Titus also testified that they saw Saffell-Sunnyboy's girlfriend exit from the vehicle's passenger seat.
During the defense case, Saffell-Sunnyboy's girlfriend testified that both she and Saffell-Sunnyboy were sitting in the vehicle, but she did not indicate who was in the driver's seat. Instead, she testified that she had the car keys that evening, that she had unlocked the vehicle when they returned to it, and that she would have refused to give the keys to Saffell-Sunnyboy if he had asked for them. In closing, Saffell-Sunnyboy argued that he did not have the vehicle's keys, that the engine was never started, and, therefore, he could not have operated the vehicle.
Saffell-Sunnyboy did not argue that he was in the passenger seat rather than the driver's seat, and this issue was never contested at trial. We conclude that Shank's out-of-court statement (that Saffell-Sunnyboy had been in the driver's seat) had no potential impact on Saffell-Sunnyboy's defense and that any error in admitting this statement was harmless.
Conclusion
The judgment of the district court is AFFIRMED.