Opinion
Court of Appeals No. A-12832 No. 6917
12-30-2020
DANIELLE NICOLE STEELE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael L. Barber, Barber Legal Services, under contract with the Public Defender Agency, and Beth Goldstein, Acting Public Defender, Anchorage, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 4FA-16-01301 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge. Appearances: Michael L. Barber, Barber Legal Services, under contract with the Public Defender Agency, and Beth Goldstein, Acting Public Defender, Anchorage, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge WOLLENBERG.
On June 9, 2016, Fairbanks police engaged in a lengthy chase with a four-wheeler, after one of the officers unsuccessfully attempted to initiate a traffic stop. The officers eventually tracked down the vehicle and took the driver into custody. The passenger, Danielle Nicole Steele, was released and left the area on foot.
The police later recovered a small satchel-like bag from a bike path used by the four-wheeler during the chase. The bag contained approximately nine grams of methamphetamine, unused baggies, a scale, drug paraphernalia, and $1,345 in cash. The bag also contained an identification card, debit card, and Alaska Quest card, all in Steele's name.
A grand jury indicted Steele on one count of third-degree misconduct involving a controlled substance. In a statement to the police, Steele disclaimed ownership of the bag and asserted that her cards had been stolen. At trial, Steele's attorney argued that the driver of the four-wheeler had possessed the bag. The jury convicted Steele as charged.
Former AS 11.71.030(a)(1) (pre-July 2016) (possessing methamphetamine with the intent to deliver).
Steele now appeals her conviction, raising several claims of error.
First, Steele argues that the prosecutor "ask[ed] dozens of inappropriate leading questions" during direct examination of each of the State's five witnesses. A "leading question" is "[a] question that suggests the answer to the person being interrogated" — especially, "a question that may be answered by a mere 'yes' or 'no.'" Under Alaska Evidence Rule 611(c), leading questions are generally permitted on cross-examination, but precluded on direct examination, except in limited circumstances: "(1) when they are merely formal or preliminary, (2) when they are necessary to develop the witness' testimony, (3) when the witness is hostile, an adverse party, or identified with an adverse party, or (4) when they are necessary for the purposes of impeachment of the witness' testimony."
Leading question, Black's Law Dictionary (11th ed. 2019).
With one exception (that we address below), Steele does not analyze or discuss any of the questions she contends were leading; she simply provides citations to eight different objections across the testimony of three different witnesses. We have nonetheless reviewed these portions of the transcript, and we agree that some of the questions to which Steele objected were leading and arguably fell outside any applicable exception. But we also conclude that, given the nature of the objectionable questions in the context of this case, any error in allowing these questions was harmless — i.e., any error did not appreciably affect the verdict.
See Love v. State, 457 P.2d 622, 634 (Alaska 1969) (holding that an erroneous evidentiary ruling is harmless when it can fairly be said that the error did not appreciably affect the jury's verdict).
Next, Steele argues that the trial court erred when it allowed an investigating officer to offer his opinion that he believed that Steele was wearing a purse during the police pursuit. Steele contends that because the officer's opinion was not based on the officer's own personal observations but was instead based solely on the officer's observation of the dash-cam video — the contents of which the jurors could view for themselves — the officer's opinion was not helpful to the jury and was therefore improper lay opinion testimony under Alaska Evidence Rule 701. Under Evidence Rule 701, a lay witness may provide testimony in the form of an opinion, but only if that opinion is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue."
We question whether the officer's belief was sufficiently helpful to the jury to qualify as proper lay opinion testimony. Although there is case law from other jurisdictions suggesting that an officer may base an opinion on the officer's viewing of a surveillance video, there must be some particularized reason why the officer is better suited to interpret the contents of the video than the jury is. Here, there was no evidence that the officer had observed Steele wearing a purse at the time of the incident, or that he had any other specialized knowledge that would assist the jury in interpreting this portion of the video. Requiring lay opinion testimony to offer some insight that assists, rather than supplants, the jury's determination is consistent with the Alaska Supreme Court's interpretation of the analogous standard in the context of Alaska Evidence Rule 702, which governs expert opinion testimony.
See United States v. Sanchez, 789 F.3d 827, 837 (8th Cir. 2015) (concluding that, under the corresponding federal rule, an officer's identification of an individual in a blurry surveillance video was admissible because the officer had engaged in extensive surveillance of the defendant around the time the video was taken and there was therefore "some basis for concluding that the witness [was] more likely to correctly identify the defendant from the [video] than [was] the jury" (quoting United States v. Anderson, 783 F.3d 727, 746 (8th Cir. 2015))); United States v. Torralba-Mendia, 784 F.3d 652, 659-60 (9th Cir. 2015) (approving lay opinion testimony by a police officer who had not been present for the underlying event but who narrated surveillance videos, because the officer viewed the videos roughly fifty times and pointed out unique details linking specific vehicles to specific conspirators among the different video clips, assisting the jury in identifying different people); United States v. Rodriguez-Adomo, 695 F.3d 32, 40 (1st Cir. 2012) (holding that when an officer is in no better position than the jury to make an identification from a video or photograph, the testimony is inadmissible under Federal Evidence Rule 701); United States v. Begay, 42 F.3d 486, 503 (9th Cir. 1994) (approving lay opinion testimony by a police officer who lacked personal knowledge of the underlying event but who narrated and annotated a video of a riot involving two hundred people because, having spent over a hundred hours watching the video, he pointed out details that a casual observer was likely to miss and assisted the jury in determining which persons were engaged in what conduct at any given moment); People v. Fomby, 831 N.W.2d 887, 891 (Mich. App. 2013) (upholding officer's testimony linking individuals in surveillance video with individuals in still photographs, because he himself had created the still images from the six-hour video and was therefore in the best position to identify the individuals in the photographs as being the same as those depicted in the video).
See United States v. Jackson, 849 F.3d 540, 554 (3d Cir. 2017) (noting that "[Federal Evidence] Rule 701(b)'s helpfulness requirement mandates the exclusion of 'testimony where the witness is no better suited than the jury to make the judgment at issue'" (quoting United States v. Fulton, 837 F.3d 281, 293 (3d Cir. 2016)).
Kodiak v. Samaniego, 83 P.3d 1077, 1088-89 (Alaska 2004) (noting that an expert should not be allowed to state their own conclusions on points that jurors are equally capable of determining for themselves) (discussing Spenard Action Comm. v. Lot 3, 902 P.2d 766, 780-81 (Alaska 1995)).
But even assuming the testimony was admitted in error, we conclude that any error was harmless. The officer acknowledged that he did not observe Steele wearing a purse at the time of the police pursuit — and that his opinion was based solely on his own viewing of the dash-cam video. The jury was therefore aware that the officer was not bringing any particularized knowledge to his identification of the purse. Moreover, in both the State's initial closing argument and in rebuttal, the prosecutor encouraged the jury to watch the video and decide for themselves whether they could see a purse strap on Steele's back. The video was then available to the jury during deliberations. Under these circumstances, we find no reversible error.
Steele also argues that the prosecutor's question, in which he asked the officer whether he believed that Steele was wearing a purse, was leading. But because Steele did not object to this questioning in the trial court on the ground that it was leading, she must establish plain error — i.e., obvious error undermining the fundamental fairness of the trial. Adams v. State, 261 P.3d 758, 764 (Alaska 2011) (recognizing that "plain error" is "such egregious conduct as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice"; it requires a reviewing court to find that the error (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). Having reviewed the record and concluded that any error in admitting the officer's testimony on this point was harmless, we find no plain error.
Based on the totality of the prosecutor's leading questions and the officer's opinion testimony regarding the video, Steele also argues that she is entitled to relief under the doctrine of cumulative error. The doctrine of cumulative error "is really a doctrine of cumulative prejudice." It "applies only when real errors have been identified and the remaining question is whether these errors, in combination, were so prejudicial as to undermine the trustworthiness of the underlying judgment." Having reviewed Steele's challenges to her conviction, we conclude that any errors — even when considered together — did not prejudice her right to a fair trial.
State v. Savo, 108 P.3d 903, 916 (Alaska App. 2005).
Id. (citing Sivertsen v. State, 963 P.2d 1069, 1073-74 (Alaska App. 1998)).
Finally, Steele argues that the trial court failed to adequately consider her potential for rehabilitation when sentencing her. As a first felony offender, Steele faced a presumptive sentencing range of 0 to 2 years for her class B felony conviction. The trial court sentenced Steele to 2 years with 1 year suspended.
Former AS 11.71.030(a)(1) (pre-July 2016); former AS 12.55.125(d)(1) (2017). The legislature has since increased the applicable presumptive range to 1 to 3 years. FSSLA 2019, ch. 4, § 71 (amending AS 12.55.125(d)(1)).
Because Steele's sentence does not exceed two years of imprisonment, Steele does not have the right to appeal her sentence as excessive to this Court, and we do not have jurisdiction to consider Steele's excessive sentence claim. Steele must instead petition the Alaska Supreme Court for discretionary sentence review.
AS 12.55.120(a); AS 22.07.020(b).
See Alaska R. App. P. 215(a)(5). --------
Accordingly, with respect to Steele's excessive sentence claim, we TRANSFER this case to the Alaska Supreme Court under Alaska Appellate Rule 215(k). With that exception, the judgment of the superior court is AFFIRMED.