Opinion
Court of Appeals No. A-9864.
November 19, 2008.
Appeal from the District Court, Third Judicial District, Anchorage, John R. Lohff, Judge, Trial Court No. 3AN-05-10362 CR.
George J. Dozier Jr., Eagle River, for the Appellant. Daniel L. Cheyette, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Thomas M. Wood was convicted of one count each of pollution, hazardous substance release, and improper disposal of oil. On appeal he contends that the district court erred by denying his motion to suppress statements he made to a state investigator; by allowing the jury to inspect barrels of oil that had been abandoned alongside Eklutna Lake Road; by allowing the State to introduce a videotape of his automotive repair shop; by restricting his cross-examination of the State's witnesses; and by denying his motion for judgment of acquittal on the charge of releasing a hazardous substance. For the reasons explained here, we reject Wood's contentions and affirm his convictions.
AS 46.03.710, AS 46.03.745, and 18 AAC 60.020, respectively.
Wood also claims that his composite sentence is excessive. We do not have jurisdiction to resolve Wood's sentence claim and therefore refer that claim to the supreme court for discretionary review.
Facts and proceedings
On February 25, 2004, the Alaska Department of Environmental Conservation responded to a tip regarding three fifty-five gallon barrels that had been abandoned along Eklutna Lake Road. The barrels were full of what appeared to be used motor oil. One of the barrels had leaked some of its contents onto the ground. A Department employee, John Brown, field-tested the barrels for the presence of chlorinated solvents. The contents of all three barrels tested positive for chlorides.
Based on the positive field tests, the Department hired a contractor, Emerald Alaska, Inc., to remove and dispose of the barrels. Emerald sent a consolidated sample of the three barrels to SGS Environmental Services, Inc., for testing. The composite sample showed barium, cadmium, chromium and lead in concentrations above the allowable limits set by the federal Environmental Protection Agency (EPA). The barrels also contained impermissible levels of chlorides. Because of these results, the used oil was considered hazardous waste and Emerald had to dispose of the waste under the federal Resource Conversation and Recovery Act.
42 U.S.C. §§ 6901- 6992k (2000).
The Department determined that the three barrels had come from Foreign Engine and Repair, an automotive repair shop in Peters Creek. The Department had previously — about four months earlier — received a tip that the owner of that business, Wood, was trying to dispose of eight to ten barrels of used oil. Brown drove by the shop several times over the ensuing weeks and saw a total of nine barrels outside the shop. Brown was unable to determine whether the barrels were going to be disposed of illegally, but he took photos of the barrels and continued to monitor the shop.
After finding the abandoned barrels on Eklutna Lake Road, Brow n returned to Wood's shop. When he got there, he saw a different arrangement of barrels outside the shop. He took photos of the new arrangement. He compared the new photos to the photos he had taken a few months earlier. The comparison showed that three of the barrels missing from the shop matched the barrels discovered on Eklutna Lake Road.
On March 12, 2004, a Department investigator, along with other Department employees, served a search warrant on Wood's shop. One of Emerald's employees was present; he wore a HAZMAT suit and a full-face respirator and was tasked with collecting samples of fluids in Wood's shop. The Department investigator, accompanied by an EPA investigator, interviewed Wood. Wood admitted he had given barrels to a local teenager and that the barrels discovered on Eklutna Lake Road could have come from his shop. Wood later moved to suppress these statements on the ground that he had not been informed of his Miranda rights.
A HAZMAT suit is a protective suit worn when handling hazardous or potentially hazardous material. Its purpose is to protect skin and lungs from exposure to hazardous chemicals.
Based on the facts set out in the pleadings and an audio recording of Wood's interview, District Court Judge John R. Lohff denied the motion to suppress, finding that Wood had not been subjected to custodial interrogation.
Wood was tried by a jury. During trial, Judge Lohff — over Wood's objection — allowed the jury to go to the courthouse parking lot to inspect the three barrels recovered from Eklutna Lake Road. He also overruled Wood's objection and allowed the State to play a videotape of the inside of the automotive shop. Based on objections by the State, Judge Lohff limited Wood's cross-examination of two Emerald employees.
The jury convicted Wood. At sentencing, Judge Lohff sentenced Wood to concurrent sentences for each offense of 210 days with 180 days suspended.
This appeal followed.
Why we find that suppression of Wood's interview was not warranted
Wood contends that his interview should have been suppressed because he was not informed of his Miranda rights. He argues that Judge Lohff erred by ruling that there was no Miranda violation because Wood was not subjected to custodial interrogation.
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
"Custodial interrogation" is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." To determine if a person is in custody, courts look at the circumstances surrounding the interrogation and determine whether a reasonable person would have felt at liberty to terminate the interrogation and leave. When we review a trial court's ruling on this issue, we defer to that court's factual findings and apply an objective test to resolve "the ultimate inquiry" — whether there was a "`formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest."
State v. Smith, 38 P.3d 1149, 1154 (Alaska 2002) (quoting Miranda, 384 U.S. at 444, 86 S. Ct. at 1608).
Smith, 38 P.3d at 1154 (citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465, 133 L. Ed. 2d 383 (1995)).
Smith, 38 P.3d at 1154 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275 (1983)).
After reviewing the pleadings and the audiotape of Wood's interview, Judge Lohff did not find the type of coercion indicative of custodial interrogation. He found no evidence that the officials who executed the search warrant were openly armed or that Wood thought they were armed. He did not find the fact that one person was wearing a HAZMAT suit indicative of custody; in fact, he thought this fact militated against a finding of custody. Wood was not restrained in any way during the interview and he continued to run his business. Judge Lohff found that no reasonable person would believe he was in custody in these circumstances.
Wood contests only one of Judge Lohff's factual findings — he argues that a reasonable person would have believed the investigators were armed. But he points to no evidence to support this claim, and in his reply brief he acknowledges that the Department investigator testified that his weapon was not visible during the interview. Wood has therefore not shown that Judge Lohff clearly erred in finding that Wood did not know that the investigators were armed.
After accepting Judge Lohff's factual findings, we must determine whether, under the totality of the circumstances, Wood was in Miranda custody. To determine whether "a reasonable person would feel he was not free to leave and break off police questioning," the Alaska Supreme Court noted that facts pertaining to events before the interrogation, facts intrinsic to the interrogation, and facts about events after the interrogation are all relevant. As summarized in State v. Smith, specific facts include:
Hunter v. State, 590 P.2d 888, 895 (Alaska 1979).
1. Preinterrogation events, especially how the defendant got to the place of questioning — whether he came completely on his own, in response to a police request, or escorted by police officers;
2. The circumstances of the interrogation, including:
• when and where it occurred
• how long it lasted
• how many police were present
• what the officers and the defendant said and did
• the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door
• whether the defendant was being questioned as a suspect or as a witness;
3. Postinterrogation events, especially what happened after the interrogation — whether the defendant left freely, was detained, or was arrested.
Id. at 1154 (citing Hunter, 590 P.2d at 895).
In making the determination, the Supreme Court explained, "[n]o single factor is dispositive; we consider the totality of the circumstances in each case."
Id. at 1154 (citing Carr v. State, 840 P.2d 1000, 1003 (Alaska App. 1992)).
Here, Wood was interviewed in his place of business. He was not restrained, and he conducted business with customers throughout the interview. The investigators did not object or interrupt Wood while he conducted his business, nor did they pressure him in an effort to prevent these interruptions. The officers were investigators from the Department of Environmental Conservation and the EPA, and they were not in uniform.
The audio recording shows that Wood was not cowed during the interview and he ultimately terminated the interview because he had to go to town to pick up parts. It is clear that Wood knew he could leave when he wanted to — for instance, when Wood, a little more than halfway through the interview, asked if he was being held, one of the investigators said "absolutely not." When Wood first said he had to leave, the investigators did not try to dissuade him. Despite this, Wood did not end the interrogation but continued to talk to the investigators and to conduct shop business. When he finally announced he had to go, he left.
Despite Wood's various announcements during the second half of the interview that he had to leave, the audio recording strongly suggests that he was not anxious to terminate the interview. After each announcement, he continued to try to convince the investigators that he had done nothing wrong and that someone was setting him up to take the fall for dumping the barrels.
Based on these facts, Judge Lohff did not err when he ruled that Wood was not in custody for Miranda purposes.
Why we uphold Judge Lohff's decision allowing the jury to see the barrels of used motor oil
The prosecutor wanted the jury to see the barrels that had been abandoned along Eklutna Lake Road. After they were recovered, the barrels were placed inside larger barrels to contain any further contamination. The parties inspected the barrels just before trial began. When they opened the larger barrels, the smaller barrels emitted a strong odor.
Because of the odor and the size of the barrels, the prosecutor suggested that the barrels be placed in the courthouse parking lot so the jury could view them there. Wood objected, arguing that the odor could be prejudicial because it might overwhelm the jury. Judge Lohff overruled this objection, noting that placing the barrels outside might help resolve the odor issue. He also offered to give any instruction counsel thought appropriate. Without objection, Judge Lohff informed the jury that the barrels might have an odor, that the odor might relate to the cleaning and storage of the barrels, and that the jury was to ignore any odor associated with the barrels because it was not intended as evidence in the case.
On appeal, Wood renews his claim that allowing the jury to view the barrels was improper under Evidence Rule 403. But Wood has not shown that there was any detectable odor from the barrels by the time the jury viewed them. If, as Judge Lohff suggested, the barrels had aired out, then the odor had no potential to prejudice the jury. Moreover, Judge Lohff instructed the jury to ignore any odor from the barrels because that odor might not relate to Wood's conduct. We conclude that Judge Lohff did not abuse his discretion by allowing the jurors to view the barrels.
Why we uphold Judge Lohff's admission of the videotape of Wood's shop
The State moved to admit a videotape of Wood's automotive repair shop. The State made this motion after an Emerald employee testified that he had drawn samples for testing from various containers at Wood's shop. Wood objected on the grounds that the video was not relevant, and was more prejudicial than probative because it would "appear that things [in the shop] are very dirty." The State responded that the video was the best way to show the condition of the shop, which would explain how the motor oil in the barrels became contaminated with chlorides.
Judge Lohff overruled Wood's objection. He pointed out that the Emerald employee had testified that the shop's condition was typical of a small automotive repair shop. Later, when the State actually asked to play the video, Wood again objected, arguing that the video might contain footage of areas of the shop that were shared by the building's owner, Edwin Nelson. This objection was also overruled.
On appeal, Wood argues that it was error to let the jury watch the video because "[t]he video was of two separate shops and not solely of Wood's shop and it was impossible to tell from the video where one shop ended and the other began." He contends that admitting the video recording was unfairly prejudicial and the jury had to have based its verdicts on the conditions of both shops. He also claims that the video was cumulative because the State introduced photographs of the shop.
The State counters that the evidence at trial, including Nelson's testimony, a diagram showing his part of the shop, and the video itself alleviated any possible confusion as to who was responsible for the areas and operations shown in the video. The State adds that Wood had tactical reasons not to question the State's witnesses or introduce evidence to clarify any possible confusion about who controlled the separate areas of the shop because Nelson's areas of the shop were comparatively clean and organized.
Judge Lohff did not abuse his discretion by admitting the videotape. The video was more probative than prejudicial because it showed how the disorganization of Wood's operation could have resulted in contaminated oil. The jury was told that Nelson used part of the building, and Nelson used a diagram to identify this section. The video, in conjunction with Nelson's testimony and this diagram, showed the jury that the disorganized portions of the shop were Wood's responsibility.
It is true that the State also introduced photos of the shop. But, as the State points out, the photos did not provide a continuous picture of conditions inside the shop, and they were therefore less effective in establishing how the motor oil might have become contaminated. We find no error.
Why we uphold Judge Lohff's rulings regarding Wood's cross-examination of the State's witnesses
Wood claims that in two instances, Judge Lohff improperly limited Wood's cross-examination of the State's witnesses. The first occasion was when Judge Lohff granted the State's motion to exclude evidence of the cost of the site cleanup. The State said it wanted to limit arguments for jury sympathy or jury nullification based solely on the cost of the cleanup. Wood objected, arguing that he was entitled to inquire about the compensation paid to Emerald because Emerald's on-going contract with the State gave Emerald reason to be biased in favor of the State and cast doubt on the integrity of the investigation.
Judge Lohff agreed that Wood was entitled to question the State's witnesses to show that they had reason to be biased because they were paid by the State. But Judge Lohff disagreed with Wood's assertion that the cleanup cost alone made the investigation suspect; he told Wood that, without an offer of proof to show that the "$12,000 charge makes [the investigation] suspect," that line of questioning was prohibited. Wood said he would consider making a later application, but he never did.
In other words, the only limitation imposed on Wood was that he could not — without an offer of proof — inquire about the precise cost of the cleanup to show that this amount, by itself, cast doubt on the integrity of the investigation.
On appeal, Wood argues that he had the right "to explore whether the testimony of [Emerald's witnesses] was tainted by motive, bias, [or] ulterior motives." But Judge Lohff ruled that Wood could do this — he ruled that Wood could cross-examine the witnesses to show that they had contracts with the State and that the State paid them for their work and testimony in Wood's case. And, in fact, Wood established that Emerald had been paid by the State. He asked an Emerald employee how much work he performed at Eklutna Lake Road, how long that work took, and what hourly rate he charged the State. He also showed, through this employee's testimony, that Emerald had done so many projects for the State that the employee "couldn't name them all." In closing, Wood argued that Emerald's contractual relationship with the state made the testimony of its employees suspect:
[Y]ou saw how reluctant [one of the Emerald witnesses] was to be forthcoming. And in fairness to him, this court really put him in an impossible position. He's a state contractor and makes his living through working for the state. And if he would have been forthcoming with all of the problems that might have been present in that sampling procedure [used by the state], he would have been biting the hand that feeds him.
Even if Judge Lohff had erred when he ruled that Wood could not, without an offer or proof, inquire into the precise cost of the clean up, we conclude that the error was harmless. Wood was allowed to show that Emerald employees had economic reasons to be biased in the State's favor.
The second instance Wood complains about occurred after a State witness — another Emerald employee — spontaneously testified during direct examination that he thought it was immoral to pollute the environment. During cross-examination of this witness, Wood asked him if he thought there was anything immoral about the way typical small businesses ran their operations. The State objected to the question as not relevant. In a bench conference, Wood said he wanted to question the witness about whether he thought all small shops were immoral, or just Wood's shop. He argued that this inquiry was relevant because the jury would be "deciding a moral question" when it decided whether Wood had acted with criminal negligence. Judge Lohff sustained the State's objection.
On appeal, Wood renews his claim that he should have been allowed to cross-examine this witness because his testimony concerning morality "pertained directly to the issue of whether or not criminal negligence was present." In other words, Wood contends that the jury had to consider whether he acted immorally to determine if he was criminally negligent. Wood does not cite any authority for this contention, and we are unaware of any case law requiring a jury to determine whether a person's actions are immoral before determining whether the person acted with criminal negligence.
Additionally, Wood does not explain how further testimony on "the scope" of this witness's "moral condemnation" was relevant to the legality or morality of Wood's conduct in allowing the barrels of contaminated oil to be abandoned. Nor does he assert that the limits placed on his cross-examination of this witness prevented him from showing that the witness's testimony was biased or otherwise not credible.
Based on this record, we conclude that Judge Lohff did not err when he prevented this line of questioning.
Why we conclude there was sufficient evidence to support Wood's conviction for releasing a hazardous substance
Wood contends that Judge Lohff should have granted his motion for judgment of acquittal because there was insufficient evidence to support his conviction for releasing a hazardous substance. Wood made his motion at the end of the State's case. He argued that the State had failed to prove that there was contamination outside the barrels or that there was hazardous waste in the drum that leaked. He also argued that the field tests conducted on the contents of the barrels were "not legally defensible."
In reviewing the denial of a motion for judgment of acquittal, we consider the evidence and the reasonable inferences arising from that evidence in the light most favorable to the State. In doing so, we must decide whether fair-minded jurors in the exercise of reasonable judgment could differ on the question of whether guilt had been established beyond a reasonable doubt.
Houston-Hult v. State, 843 P.2d 1262, 1263 (Alaska App. 1992).
Des Jardins v. State, 551 P.2d 181, 185 (Alaska 1976).
Here, viewing the evidence in the light most favorable to the State, the evidence showed that Wood made no effort to control his waste streams in his shop and that hazardous chemicals were getting mixed in with barrels of used motor oil. The three barrels found along Eklutna Lake Road came from Wood's shop and the oil from each barrel tested positive for the type of hazardous contaminates that were present at Wood's shop. Even though the field test used to test each barrel had a twenty percent chance of producing a false positive, a fair-minded juror could conclude beyond a reasonable doubt that the tests, in conjunction with the other evidence, was accurate enough to support Wood's conviction. We conclude that there was sufficient evidence to support Wood's conviction for releasing a hazardous substance.
This court lacks jurisdiction to resolve Wood's sentence claim Judge Lohff sentenced Wood to a composite term of 210 days with 180 suspended, giving Wood 30 days to serve. Wood contends that this sentence is excessive because all of his time should have been suspended. Because Wood received less than 120 days to serve, we lack jurisdiction to resolve his claim that his sentence is excessive. Accordingly, we refer this issue to the Alaska Supreme Court for discretionary review. Conclusion
See Alaska R. App. P. 215(a)(1); AS 12.55.120(d). See Alaska R. App. P. 215(k).
With the exception of the sentencing issue, we AFFIRM the district court's decisions.