Summary
disapproving of prosecutor's use of an airplane travel analogy to explain the concept of "beyond a reasonable doubt" and noting the general disapproval of these types of "daily-life" analogies across jurisdictions
Summary of this case from Mati v. StateOpinion
Court of Appeals No. A-11787 No. 6435
03-01-2017
TOU FUE YANG, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Douglas O. Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Lawrence B. Monsma, Assistant District Attorney, 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-10-618 CR MEMORANDUM OPINION Appeal from the District Court, Third Judicial District, Anchorage, Leslie Dickson, Judge. Appearances: Douglas O. Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Lawrence B. Monsma, Assistant District Attorney, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Tou Fue Yang was convicted of driving under the influence based on evidence that he failed field sobriety tests and that his blood-alcohol level was over the legal limit of .08 percent. On appeal, Yang argues that the trial court committed plain error by (1) failing to strike the arresting officer's testimony that Yang declined the offer of an independent blood test, and (2) failing to take corrective action in response to improper arguments made by the prosecutor during closing argument.
AS 28.35.030(a)(1)-(2).
The State concedes that the testimony regarding Yang's refusal to take the offered independent blood test was improper under Bluel v. State. But the State argues that the testimony was harmless. For the reasons explained here, we agree with the State that introduction of this evidence, although improper, was harmless in this case. We also conclude that the prosecutor's closing arguments, although improper, did not affect the fundamental fairness of Yang's trial and do not require reversal of his conviction.
Bluel v. State, 153 P.3d 982, 991 (Alaska 2007).
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
See Rogers v. State, 280 P.3d 582, 589 (Alaska App. 2012).
Background facts and prior proceedings
On January 16, 2010, shortly before midnight, Anchorage Police Officer Matthew Peltier stopped a red Toyota Tundra that had rolled through the intersection. The driver of the Tundra was later determined to be Tou Fue Yang. After initiating the traffic stop, Officer Peltier observed that Yang's speech was "slow and slurred" and that his breath smelled of alcohol. Yang admitted to "roll[ing]" through the intersection, and he also admitted that he had consumed "two or three beers" and a shot earlier that night. Based on this information, Peltier conducted field sobriety tests. Yang failed two of the three tests he performed and he was then arrested for driving under the influence. A subsequent DataMaster breath test revealed that Yang's blood-alcohol level was .098 percent, which is above the legal limit of .08.
AS 28.35.030(a)(1)-(2).
AS 28.35.030(a)(2).
At trial, Yang's defense attorney argued that the field sobriety tests were unreliable and that the DataMaster test was flawed. The jury convicted Yang of driving under the influence.
This appeal followed.
Yang's claim that the trial court committed plain error when it failed to strike the arresting officer's testimony that Yang declined an independent blood test when offered
Under Alaska law, a person lawfully arrested for driving under the influence is required to submit to a breath test to determine the person's blood-alcohol level. As part of the processing related to this mandatory breath test, the police must also offer the person the option of obtaining an independent chemical test — typically, a blood test. The purpose of the independent blood test is to ensure that the person has a fair opportunity to challenge the evidence from the breath test.
See AS 28.35.031(a).
AS 28.35.033(e); see Velarde v. State, 353 P.3d 355, 358 (Alaska App. 2015).
See Gundersen v. Anchorage, 792 P.2d 673, 675-76 (Alaska 1990).
In Bluel v. State, the Alaska Supreme Court held that evidence about the offer of an independent blood test and the defendant's response to that offer is generally inadmissible at trial because the probative value of that evidence will almost always be outweighed by the danger of unfair prejudice. The court analogized this type of evidence to evidence that a person refused to consent to a search, reasoning that the two situations were "functionally and legally indistinguishable" from one another.
Bluel v. State, 153 P.3d 982, 992 (Alaska 2007).
Id. at 990; see also Elson v. State, 659 P.2d 1195, 1198-99 (Alaska 1983); Padgett v. State, 590 P.2d 432, 434 (Alaska 1979); Bargas v. State, 489 P.2d 130, 133 (Alaska 1971).
As the State concedes on appeal, the principle behind Bluel was clearly violated in this case. During Yang's trial, the prosecutor questioned Anchorage Police Officer Somerset Jones about his administration of the breath test to Yang. Toward the end of that direct examination, the prosecutor improperly elicited Jones's testimony that Yang declined the opportunity to take an independent blood test when it was offered. The prosecutor then sought to admit the form where Yang's refusal of the independent blood test was noted.
At this point, Yang's attorney objected to admission of the form, arguing that the form was inadmissible hearsay. Yang's attorney did not mention Bluel; nor did he ask the court to strike the earlier testimony by the officer about Yang declining to take the independent blood test. The trial court sustained the defense attorney's hearsay objection. The court did not strike the officer's earlier testimony or instruct the jury to disregard this earlier testimony.
On appeal, the State concedes that the officer's testimony was improper under Bluel and should have been struck. The State argues, however, that the error was harmless in the context of Yang's case.
In Bluel, the defendant testified on cross-examination that he was "surprised" by the results of his breath test. After this statement was made, the prosecutor questioned Bluel about the fact that he had been offered the opportunity to take an independent test and he had declined that opportunity. In concluding that reversal was necessary under these circumstances, the Alaska Supreme Court emphasized that Bluel's refusal of the independent breath test was used specifically to attack Bluel's own testimony at trial and to undermine his credibility. The court also noted that the defense attorney had filed a motion in limine to preclude this evidence and had objected (unsuccessfully) to the evidence when it was introduced.
Bluel, 153 P.3d at 984.
Id.
Id. at 992.
Id. at 984.
Here, Yang did not testify at his trial, and the officer's testimony regarding the independent blood test was brief and part of a larger narrative of the different steps of the DUI processing. Moreover, Yang's attorney did not object to the introduction of this evidence or request that it be struck.
Given the differences between the facts of the two cases and the differences in how they were litigated, we conclude that the officer's passing reference to Yang's decision not to take the independent blood test — although improper — did not substantially affect Yang's rights and does not require reversal in this case.
Yang argues that reversal is nevertheless required in his case because the State's case was so weak. We disagree. Yang was tried under both the impairment and the blood-alcohol level theories of DUI and the jury heard evidence on both theories. This included evidence that (1) Yang was driving erratically and/or incautiously; (2) Yang exhibited multiple signs of intoxication; (3) Yang admitted to drinking "three or four" beers and "a shot" prior to driving; (4) Yang failed two field sobriety tests; and (5) Yang's breath test revealed a blood-alcohol level above the legal limit. Given this evidence, and given the brevity of the improper testimony regarding the independent blood test, we do not find plain error.
Yang's claim regarding the prosecutor's improper remarks during closing argument
Yang also challenges the propriety of two arguments made by the prosecutor during closing argument. Because Yang's attorney did not object to either argument, Yang must show plain error on appeal.
See Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
Yang's first complaint is about the prosecutor's use of an airplane travel analogy to explain the concept of "beyond a reasonable doubt" to the jury. In his closing argument, the prosecutor analogized proof beyond a reasonable doubt to the level of assurance that a traveler has when he or she decides to board a commercial aircraft:
A reasonable doubt is one based upon reason and common sense. Proof beyond a reasonable doubt must be proof of such a convincing character that after consideration, you would be willing to rely and act upon it without hesitation in your important affairs. Another question we often get, what's my important affairs. The best example I've heard of is getting on an airplane at the airport, a 737 or a 747, and flying away.
You don't give a breath analyzer to the pilot to make sure that they're sober even though we heard in the '80s and '90s that was a problem. You don't go kick the tires and ask for the engine reports and when was the last time a class A, B, or C inspection was done of the wiring. You put yourself and your family on an airplane to go see a family member, to go to Disneyland, to fly to Hawaii to get some sun in during breakup. That's an important affair. But do you require, as I talked about during jury selection, that CSI level of laser
analysis to make sure the rear aileron — no, you don't. That's impossible. We couldn't live our life that paranoid. That doesn't mean it's not the highest standard used in the course of law. It just means it's not an impossible standard.We agree with Yang that this analogy was improper and should not have been used. The analogy was flawed in three different ways: first, it falsely equated the process of coming to a verdict with the kind of decision that a person makes about going on a vacation; second, it falsely compared a criminal case to a highly regulated and controlled industry; and lastly, it falsely suggested that the jury should simply "trust" that due diligence had occurred in this case.
We have previously cautioned against using these types of "daily-life" analogies in closing argument, noting the general disapproval of such analogies across various jurisdictions and the uniform concern that such analogies often act to minimize the State's burden of proof. We take this opportunity to again caution both prosecutors and defense attorneys against using these types of daily-life analogies, despite the fact that our current pattern instruction on reasonable doubt appears to invite such analogies.
See Cooper v. State, 2008 WL 4595180, at *2 (Alaska App. Oct. 15, 2008) (unpublished); see also Scurry v. United States, 347 F.2d 468, 470 (D.C. Cir. 1965) (concluding that equating matters of personal importance to a verdict "den[ies] the defendant the benefit of reasonable doubt"); People v. Johnson, 115 Cal. App. 4th 1169, 1172 (Cal. App. 2004) (noting the trial court's analogizing reasonable doubt to making vacation plans "had the effect of lowering the prosecution's burden of proof"); People v. Nguyen, 40 Cal. App. 4th 28, 36 (Cal. App. 1995) (noting the prosecutor's analogy to the decision to "change lanes trivializes the reasonable doubt standard"); Commonwealth v. Ferreira, 364 N.E.2d 1264, 1272-73 (Mass. 1977) (stating that "[t]he degree of certainty required to convict is unique to the criminal law" and that "individuals may often have the luxury of undoing private mistakes; a verdict of guilty is frequently irrevocable."); Quillen v. State, 929 P.2d 893, 901-02 (Nev. 1996) (admonishing prosecutor for equating reasonable doubt to "weightier affairs of life," even though error was harmless); State v. Johnson, 774 P.2d 1141, 1148 (Utah 1989) (Stewart, J., concurring in the result) (concluding an instruction which equates reasonable doubt to "the more weighty and important matters relating to [private] affairs" misstates the law).
See Alaska Criminal Pattern Jury Instruction 1.06 (Revised 2012).
We note that the airplane analogy used here has also been singled out for criticism by the California Court of Appeals, which declared:
We are not prepared to say that people planning vacations or scheduling flights engage in a deliberative process to the depth required of jurors or that such people finalize their plans only after persuading themselves that they have an abiding conviction of the wisdom of the endeavor. Nor can we say that people make such decisions while aware of the concept of "beyond a reasonable doubt."
Johnson, 115 Cal. App. 4th at 1172-73; see also People v. Miller, 2010 WL 2913613, at *11 (Cal. App. July 27, 2010) (unpublished) (condemning the use of a similar airplane boarding analogy).
We nevertheless conclude that the remarks here by the prosecutor do not rise to the level of plain error justifying reversal of Yang's conviction. We note that Yang's counsel helped mitigate any prejudice created by the improper analogy by pointing out how inapt the analogy was in his closing argument.
Rogers v. State, 280 P.3d 582, 589 (Alaska App. 2012) ("When a defendant argues that a prosecutor's argument amounted to misconduct, we consider whether the prosecutor's statements, if in error, constituted such egregious conduct as to undermine the fundamental fairness of the trial.") (internal citations and quotation marks omitted). --------
We therefore conclude that, viewed within the larger context of the trial, the airplane analogy — although improper — did not substantially affect Yang's rights or undermine the fundamental fairness of his trial.
We reach a similar conclusion with regard to the other prosecutorial remarks that Yang complains about on appeal. The other remarks occurred in rebuttal and require some additional background to be understood.
At trial, Officer Peltier testified that Yang paused for "one or two" seconds after he completed the turn during the walk-and-turn test. Peltier characterized this one-to two-second pause as a "clue" of intoxication.
In closing argument, Yang's counsel argued that it was inappropriate for Peltier to treat this small pause as somehow significant, and he further argued that Peltier's decision to do so "show[ed] the flaws inherent in this kind of [field sobriety] test."
In response to this line of argument, the prosecutor spent part of his rebuttal argument defending the reliability of the field sobriety tests. As part of this response, the prosecutor attempted to dramatize how significant a one- or two-second pause might be under certain circumstances:
[The defense attorney] said that one or two seconds during the walk and turn. Is that really a stop? Remember that panic stop you had, what, three or four months ago, when you looked away for a second or two while driving and you looked at your radio or your phone rang and you looked to see who it was, and all of a sudden somebody you didn't notice hit the brakes and you were getting real close too fast? One or two seconds while driving can be tragedy, hopefully near tragedy with nobody getting hurt.
People step off the crosswalks. People step off curbs. Bicyclists come from around the sides when they're in blind spots. That's why there's a variety of different tests, testing different skills. That one to two second pause, well, he did that actually. He told you he did. I yielded. I didn't stop at the red light. We all know the law of the land is stop, rights on reds. So that one or two seconds is kind of important.
Yang asserts that these remarks were improper because they were inflammatory and because the prosecutor was falsely conflating the significance of a one-to two-second pause in the walk-and-turn field sobriety test with a one- to two-second span of inattention while driving a moving vehicle. Although we question the propriety of these remarks for this reason, we do not find plain error justifying reversal of Yang's conviction given the briefness of the comments and the lack of any defense objection.
Conclusion
The judgment of the district court is AFFIRMED.