Opinion
Court of Appeals No. A-11578 No. 6456
04-19-2017
CARL THOMAS WASHINGTON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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-12-1515 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Glenda Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Carl Thomas Washington was convicted of felony driving under the influence, failure to stop at the direction of a police officer, and driving while license revoked. Prior to trial, during jury voir dire, Washington challenged for cause a prospective juror who had once worked for the state crime lab and had trained the blood-alcohol expert who was slated to testify for the State at Washington's trial. This prospective juror also knew the three police officers on the State's witness list. Washington requested an additional peremptory challenge if the court denied his challenge for cause.
AS 28.35.030(a) & (n), AS 28.35.182(b), and AS 28.15.291(a)(1), respectively.
Superior Court Judge Michael L. Wolverton denied both the challenge for cause and the request for an additional peremptory challenge. Washington was subsequently convicted, and he now appeals. For the reasons explained here, we uphold the judge's rulings.
Background facts regarding Washington's arrest
At about 5:00 a.m. on February 15, 2012, a police officer observed a man, later identified as Washington, driving a van with its sliding door wide open. When the officer activated his flashing lights, Washington pulled into a McDonald's parking lot. But rather than stopping, Washington drove through the restaurant's drive-through lane, continued past the awaiting police car, and departed. Washington abandoned the van in a nearby parking lot and fled on foot, leaving the driver's door open and the engine running.
Officers arrested Washington approximately two hours later in a nearby apartment building lobby. They suspected Washington was intoxicated. He performed poorly on three field sobriety tests: the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg-stand test. A subsequent breath test showed that Washington had a blood-alcohol content of 0.075 percent, slightly below the .08 percent presumptive level for intoxication. Washington told the police that he had consumed four drinks the evening before his early morning stop, consuming his last drink at about 10:30 p.m.
Based on this conduct, Washington was charged with felony driving under the influence, failure to stop at the direction of a peace officer, and driving with a revoked license.
Jury selection proceedings
During the first day of jury selection, the judge excused twenty-two prospective jurors for cause, primarily due to their opinions regarding alcohol use and its consequences. In addition, the defense used ten of its eleven allotted peremptory challenges. By day's end, only eight jurors had been impaneled.
On the second day of jury selection, the judge excused an additional twenty-two prospective jurors for cause. The remaining prospective jurors included two persons with ties to law enforcement and a fireman who had encountered chronic alcoholics incident to his employment. Of the two prospective jurors with ties to law enforcement, one was a 911 operator. The other, J.S., had once worked for the state crime lab and had directed its breath-alcohol testing program. J.S. had trained her co-employee Carol O'Bryant, who was going to testify as the State's expert at Washington's trial. J.S. also knew three of the police officers on the State's witness list.
During voir dire, J.S. stated that O'Bryant was not her personal friend. When defense counsel asked J.S. if she could objectively evaluate the testimony of the witnesses, J.S. replied that she could. And when J.S. was asked if she could be fair, given her prior employment at the crime lab, she explained:
I think I could be fair because I do know, I would say, the good sides and the bad sides, so I would be [an] evaluator ... who's worked with these people and knows a lot about them, and, you know ... everybody has strengths and weaknesses.
Washington's attorney challenged the fireman, the 911 operator, and J.S. for cause. He also asked the court to grant him additional peremptory challenges if these challenges for cause were denied. The superior court denied all three challenges for cause and did not grant additional peremptory challenges. Washington then used his last peremptory challenge to excuse the fireman.
At trial's end, the judge excused the 911 operator as the alternate juror pursuant to a stipulation of the parties. J.S. remained on the jury. The jury returned guilty verdicts on all charges.
Washington now argues that the superior court abused its discretion when it denied his challenge of J.S. for cause and his alternative request for an additional peremptory challenge.
Why we affirm the judge's ruling that J.S.'s acquaintance with the three police officers was not disqualifying
When a prospective juror is challenged for cause based on partiality, and the prospective juror affirms her belief that she can set aside any biasing influences and be a fair juror, the judge must decide whether the juror is credible. That is, the judge must decide that the juror is speaking in subjective good faith. We review this decision for clear error. The judge must also decide whether, even if the prospective juror is responding in good faith, they are actually capable, under all the facts and circumstances of which the judge is aware, of serving in an unbiased manner. We review this decision for abuse of discretion. Juror bias is not established as a matter of law simply because a prospective juror has a professional connection to law enforcement.
See Reich v. Cominco Alaska, Inc., 56 P.3d 18, 21 (Alaska 2002).
See Young v. State, 848 P.2d 267, 270 (Alaska App. 1993).
See Bryant v. State, 115 P.3d 1249 (Alaska App. 2005).
Here, J.S. acknowledged that she had prior professional relationships with three of the State's police officer witnesses. But she had changed jobs and had not worked with these officers for several years. She expressed confidence that her past association with them would not affect her independent judgment in Washington's case. We conclude that Judge Wolverton's implicit factual findings that J.S. believed in good faith that she was capable of setting aside her police associations and was capable of serving on the jury in an unbiased manner were not clearly erroneous or an abuse of discretion.
Why J.S.'s technical expertise and her prior training relationship with the State's expert turned out to be irrelevant at trial
Washington argues that J.S. should have been disqualified for two additional reasons: because the judge should have presumed bias from J.S.'s close working relationship with O'Bryant, the State's blood-alcohol expert, and because J.S. was herself a blood-alcohol expert.
As to the first point, J.S. testified that she had no personal relationship with O'Bryant and that she believed she could neutrally evaluate O'Bryant's testimony. The judge implicitly found J.S. to be both credible and realistic on these points. The judge was therefore justified in denying Washington's challenge for cause based on J.S.'s professional association with O'Bryant.
As to the second point, Washington argues that J.S.'s technical knowledge of blood-alcohol issues was so closely related to potential issues at trial that she should not have been allowed to serve. At trial, O'Bryant testified about "reverse extrapolation," a technique that allowed her to calculate Washington's blood-alcohol level at the time of the car chase (at about 5:00 a.m.) using Washington's blood-alcohol level at the time of his breath test (at about 8:00 a.m.).
We acknowledge that J.S. had scientific knowledge that was closely related to a potential issue at trial — the validity and application of principles of reverse extrapolation. But nothing in our case law suggests that the relevance of a juror's scientific training to specific issues at trial, standing alone, is disqualifying.
For example, in Titus v. State, 963 P.2d 258, 262 (Alaska 1998), the supreme court approvingly cited a case where, during deliberations, an individual juror shared his expertise in X-ray technology. And, employing the Titus rule, this Court held that it was not misconduct for individual jurors to share their personal knowledge of how loud a shot from a .22 caliber rifle would be, or their knowledge of the breakage characteristics of the type of glass used in construction vehicles. See Larson v. State, 79 P.3d 650, 654 (Alaska App. 2003).
Moreover, J.S.'s scientific knowledge turned out to be irrelevant, given how the defense attorney chose to address the blood-alcohol evidence. The defense attorney did not argue that reverse extrapolation was scientifically invalid, or that O'Bryant applied it incorrectly in this case. Rather, the attorney argued that the governing assumption that the State furnished to O'Bryant as the basis for her extrapolation — that Washington had, consistent with his statement to the police, stopped drinking at 10:30 p.m. — was incorrect, and that O'Bryant's conclusion was therefore wrong because this predicate assumption was wrong. The attorney did not argue that O'Bryant had erred in her scientific calculation. Instead, the defense argued that the assumption was wrong because his own client was not worthy of belief. The defense attorney told the jury that Washington was dishonest, that he had lied to the police about various matters, and that therefore his statement to the police that he had ceased drinking at about 10:30 p.m. was not worthy of belief.
Given this defense strategy, J.S.'s scientific knowledge and her purported bias in favor of O'Bryant's extrapolation analysis bear no relation to the sole issue the defense attorney asked the jury to decide regarding O'Bryant's testimony: the purely factual issue of when Washington had stopped drinking. O'Bryant exercised no judgment on that issue of historical fact; she simply analyzed the hypothetical facts provided to her by the State, as is normal in expert testimony. The defense attorney in effect ratified the scientific principles that O'Bryant testified to and simply proposed that the jury apply these scientific principles using a different assumption than the State's about when Washington had stopped drinking.
Thus, even if the judge should have excused J.S. based on the concerns Washington raised during voir dire (an issue we do not decide), there was no prejudice to Washington. Because the judge's denial of Washington's challenge of O'Bryant for cause did not prejudice Washington, we affirm the superior court's ruling.
Why we conclude that the judge did not abuse his discretion when he denied Washington's motion for an additional peremptory challenge
The granting of additional peremptory challenges is a decision within the trial court's discretion. We conclude that the judge did not abuse his discretion by denying Washington's request for an additional peremptory challenge once the judge refused to disqualify J.S. for cause. Although the voir dire in this case resulted in an unusual number of disqualifications due to the prospective jurors' opinions about alcohol, there was no showing that J.S. shared these disqualifying biases.
Arnold v. State, 751 P.2d 494 (Alaska App. 1988).
And as the judge pointed out, he consistently excused persons displaying any higher-than-normal sensitivity to alcohol issues, even in the absence of a challenge by the defense. Having taken those steps, the judge could reasonably discount the defense attorney's argument that he had exhausted his eleven peremptory challenges due to pervasive alcohol-related bias on the part of prospective jurors. We conclude that the judge did not abuse his discretion when he ruled that the circumstances did not justify an award of an additional peremptory challenge.
Conclusion
We AFFIRM the judgment of the superior court.