Opinion
Court of Appeals No. A-10538 Trial Court No. 1KE-09-160 CR No. 5794
01-18-2012
CHRISTOPHER A. ALVARADO, Appellant, v. STATE OF ALASKA, 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.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the District Court, First Judicial District, Ketchikan,
Kevin Miller, Judge.
Appearances: Christine S. Schleuss, Law Office of Christine
Schleuss, Anchorage, for the Appellant. Stephen R. West,
District Attorney, Ketchikan, and John J. Burns, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
Christopher A. Alvarado was convicted of weapons misconduct after an anonymous informant told the police that Alvarado was drinking and that he had a firearm. Alvarado challenges his conviction on several grounds. He argues that the district court erred by refusing to grant an evidentiary hearing on the claims he raised in his motion to suppress. He contends that the court abused its discretion by relying on an affidavit by a police officer to deny his motion to compel disclosure of the identity of the informant, instead of interviewing the informant in person. He argues that the court should have excluded a rebuttal witness because the State did not disclose the name of the witness before trial. And he argues that the court should have granted his motion for a mistrial because of improper testimony by this rebuttal witness. For the reasons explained below, we reject Alvarado's claims and affirm his conviction.
Facts and proceedings
Shortly before midnight on February 21, 2009, Ketchikan Police Officer Andrew Berntson was on routine patrol when someone flagged him down and told him Christopher Alvarado was in the Totem Bar with a black .45 caliber handgun. The informant, who wished to remain anonymous, described Alvarado and where he was sitting, and said Alvarado had been drinking.
Berntson and two other officers approached Alvarado in the bar. They asked Alvarado if he had any weapons on him, and when he did not immediately respond, they did a pat-down search. The officers located an unloaded handgun in Alvarado's waistband, and an ammunition clip for this weapon in his right pocket. Alvarado was arrested for fourth-degree weapons misconduct for possessing a firearm while his mental or physical condition was impaired by alcohol. A breath test at the police station showed that he had a blood alcohol level of .257 percent, more than three times the legal limit for driving.
AS 11.61.210(a)(1).
Before trial on the weapons misconduct charge, Alvarado moved to suppress the evidence and asked for an evidentiary hearing on his claims. He argued that the police lacked reasonable suspicion to detain and frisk him, and that they did not have probable cause to arrest him. He also argued that the police did not follow proper procedures in administering the breath test. District Court Judge Kevin Miller denied the motion and the request for an evidentiary hearing.
Alvarado also raised other claims that are not pertinent to this appeal.
Alvarado then filed a motion to compel disclosure of the identity of the informant who told the police Alvarado had a gun. Alvarado asked the court to interview the informant in camera to determine if the informant had knowledge relevant to his defense at trial. Judge Miller ultimately denied the motion to compel after reviewing an ex parte affidavit by Officer Berntson.
Why we uphold the district court's decision to deny an evidentiary hearing
Alvarado argues that he was entitled to an evidentiary hearing to establish whether the information provided by the informant gave the police reasonable suspicion to detain and search him. He implicitly concedes that the informant's tip, as conveyed by the State, provided reasonable suspicion for the contact. But he argues that he should have been given the opportunity at an evidentiary hearing to cross-examine the officer, and perhaps the informant, to establish whether the information provided by the State was accurate.
Alvarado did not ask for an evidentiary hearing on this ground in district court. In his motion to suppress, Alvarado did not contest the State's version of the information provided by the informant; instead, he argued that the information did not give the police reasonable suspicion to believe he posed an "imminent public danger" under Coleman v. State. Because Alvarado's claim is that the court should have granted a hearing on a suppression issue he never raised, we decline to address his claim.
553 P.2d 40, 46 (Alaska 1976).
See Moreau v. State, 588 P.2d 275, 280 (Alaska 1978).
Alvarado also argues that he was entitled to a hearing on his claim that the police did not have probable cause to arrest him for possessing a firearm while impaired. Probable cause for an arrest exists "when the officer is aware of facts and circumstances, based on reasonably trustworthy information, that are sufficient in themselves to warrant a reasonable belief that an offense has been or is being committed."
Saucier v. State, 869 P.2d 483, 484 (Alaska App. 1994).
In district court, Alvarado did not dispute that he possessed a firearm. He also did not dispute that the police observed signs that he might be intoxicated. His argument was that the police had insufficient time to observe these signs of impairment before they arrested him. He asserted that the police "walked up, grabbed and immediately arrested [him]" and that the police had "no idea" at the time whether he was intoxicated. Alvarado's argument that the police lacked probable cause to arrest him thus hinged on his claim that he was effectively arrested as soon as the police contacted him.
The district court was warranted in rejecting Alvarado's claim that he was already under arrest when the police conducted a pat-down search. From the information provided by the informant, the police had reasonable suspicion to believe Alvarado possessed a firearm and that he was impaired. The officers were consequently justified in conducting a pat-down search of Alvarado, and this pat-down search did not transform the investigatory stop into an arrest. Alvarado has not disputed the State's evidence that, by the time he was escorted from the bar in custody, the police had observed that he had an odor of alcohol, watery, bloodshot eyes, and slurred speech, and that he swayed. Therefore, accepting as true the facts alleged in Alvarado's motion, except for his legal conclusion that he was immediately arrested on contact, there was no material dispute that the police had probable cause at the time of his arrest that he possessed a firearm while impaired. We conclude that the district court did not err in rejecting Alvarado's request for an evidentiary hearing on this issue.
See Ozenna v. State, 619 P.2d 477, 479 (Alaska 1980); Howard v. State, 664 P.2d 603, 611 (Alaska App. 1983).
Alaska R. Crim. P. 42(e)(3) ("If material issues of fact are not presented in the pleadings, the court need not hold an evidentiary hearing.").
In any event, Officer Berntson testified at trial that he noticed within the first few seconds of contacting Alvarado that his eyes were "real bloodshot and watery" and that he had a "really strong" odor of alcohol on his breath and person. In closing argument, Alvarado conceded that Berntson relied on these observations to arrest him.
Alvarado next argues that Judge Miller should have granted a hearing on his claim that the police did not follow proper procedures in administering his breath test. He argues that the police did not observe him for the required fifteen minutes before the test to ensure that he did not regurgitate or place anything in his mouth, and that the machine was either inadvertently or deliberately miscalibrated.
Judge Miller ruled that Alvarado's breath test result was admissible if the State established a proper foundation at trial. Alvarado's claim is therefore controlled by Lawrence v. State. In Lawrence, the defendant attacked the adequacy of the State's pretrial evidence that it had complied with the breath test regulations, but never asserted that the foundation the State established for admission of the breath test at trial was inadequate. We therefore presumed that the State had established an adequate foundation at trial, and ruled that it was irrelevant whether the evidence the State presented in a pretrial hearing was sufficient.
715 P.2d 1213 (Alaska App. 1986).
Id. at 1217.
Id.
Likewise here, it is irrelevant whether Alvarado was entitled to a pretrial evidentiary hearing to challenge his breath test result, because he has not argued that the State failed to establish an adequate foundation for admission of the breath test result at trial.
Why the court did not abuse its discretion by declining to interview the informant in camera
After Judge Miller denied the motion to suppress, Alvarado filed a motion to compel disclosure of the informant's identity. Alvarado asserted that the informant had information relevant to whether he was impaired, and that the informant might have information that could lead to the discovery of additional witnesses. He asked Judge Miller to interview the informant in camera.
Judge Miller agreed to review whether the informant had knowledge relevant to Alvarado's impairment, and he invited the State to submit an affidavit or to request an ex parte hearing. Judge Miller ruled that Alvarado's interest in identifying additional witnesses did not merit disclosure of the informant's identity because Alvarado had also been in the bar and was equally able to identify potential witnesses.
The State submitted an ex parte affidavit by Officer Berntson and, after reviewing that affidavit, Judge Miller ruled that the informant had information material to Alvarado's guilt or innocence, and he ordered the State to disclose the informant's identity or dismiss the charge.
The State filed an objection to this ruling, arguing that Alvarado was not entitled to disclosure of the informant's identity because the informant's knowledge about Alvarado's impairment was only helpful to the State, not to Alvarado. The trial court treated the State's objection as a motion for reconsideration and reversed its decision. The court found that the affidavit contained no information favorable to Alvarado — and that disclosure of the informant's identity or the officer's affidavit would therefore not aid Alvarado in the preparation of his defense.
On appeal, Alvarado argues that Judge Miller erred by relying on Officer Berntson's affidavit to make this ruling, instead of interviewing the informant in camera. But Alvarado does not explain why interviewing the informant was necessary in his case. Nor does he discuss Evidence Rule 509, which codifies the government's privilege, well established at common law, not to disclose the identity of informants.
Commentary to Alaska R. Evid. 509, first paragraph.
Evidence Rule 509(c)(2) provides that if the government invokes its privilege not to identify an informant, and the defendant claims the informant may have testimony "necessary to a fair determination of the issue of guilt, innocence, credibility of a witness testifying on the merits, or punishment in a criminal case," the court must take evidence to determine if there is a reasonable possibility that the informant can give the testimony sought. If the government's evidence might tend to reveal the informant's identity, it may submit its evidence ex parte. The rule provides that, although this ex parte submission "generally will consist of affidavits, the judge may direct that witnesses appear before the judge, without the government or the other party present."
Evidence Rule 509(c)(2) thus gives trial courts discretion to rely on affidavits in determining whether the considerations that favor disclosure of an informant's identity outweigh the State's privilege not to disclose. Because Alvarado has not explained how the court abused its discretion by not interviewing the informant in his case, his claim must be that courts are always required to interview an informant before deciding whether to disclose the informant's identity — but, as just explained, Rule 509 plainly does not require this.
Alvarado also argues that Judge Miller applied the wrong legal standard in refusing to order disclosure of the informant's identity. He argues that he was entitled to disclosure if the informant had any knowledge that related to his guilt or innocence — it was not necessary, he argues, that the informant have exculpatory knowledge. This argument misstates the court's ruling. Judge Miller did not hold that it was necessary for the informant to have exculpatory knowledge; rather, he ruled that disclosure of the informant's identity was only required if the informant had information that would aid Alvarado in the preparation of his defense.
In Roviaro v. United States,the United States Supreme Court declared that the government's privilege not to disclose an informer's identity, or the contents of an informer's communication, must give way when the evidence "is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." The Alaska Supreme Court has similarly held that, to obtain disclosure of an informer's identity, the defendant must "demonstrate a reasonable possibility that the anonymous informant could give evidence on the issue of guilt or innocence which might result in the defendant's exoneration." Reading Evidence Rule 509 to require disclosure of an informant's identity even when the informant only has evidence favorable to the prosecution, as Alvarado urges, would be contrary to this authority and would defeat the purposes of the rule. As the commentary to Rule 509 explains, the government has a privilege to withhold the identity of an informant unless doing so would frustrate the defendant's interest in obtaining information "that might reasonably help the defendant on the merits." Requiring disclosure when an informant has information that is only helpful to the prosecution would undermine the privilege with no concomitant benefit to the defendant.
353 U.S. 53 (1957).
Id. at 60-61 (emphasis added).
Schmid v. State, 615 P.2d 565, 572 (Alaska 1980) (emphasis added; original emphasis removed).
Commentary to Alaska R. Evid. 509(c)(2) and (3), paragraph four.
Alvarado suggests several ways in which discovering the informant's identity might have aided his defense. He claims the informant's identity was necessary to establish the informant's bias. But the informant's possible bias against Alvarado was not relevant to his defense, because the State did not call the informant as a witness. Alvarado also argues that the informant was a witness to whether he was impaired, and could aid him in identifying other witnesses. But as already discussed, Judge Miller found, after reviewing Officer Berntson's affidavit, that the informant had no testimony that could aid Alvarado's defense on the issue of impairment, and our review of the affidavit supports this finding. The judge also found that disclosure of the informant's identity was not necessary to help Alvarado identify witnesses, because Alvarado was also in the bar and just as able to identify witnesses. Alvarado has not argued, much less shown, that this finding was error. We conclude that Judge Miller did not abuse his discretion by denying Alvarado's motion to compel without interviewing the informant.
Why we reject Alvarado's claim that the court should have excluded the State's rebuttal witness
Alvarado's next claim is that Judge Miller erred by allowing the State to call a Department of Corrections officer to testify about Alvarado's level of impairment because the witness had not been properly disclosed under Criminal Rule 16. Criminal Rule 16(b)(1)(A)(i) requires the State to disclose to the defense the names of "persons known by the government to have knowledge of relevant facts."
After Alvarado rested his case, the prosecutor announced that he intended to call a corrections officer, Christopher Nemire, to testify that Alvarado was not released from jail until 11:00 a.m. the day after his arrest because he was so intoxicated. The State offered this evidence to rebut the testimony of a defense witness that Alvarado did not appear intoxicated when he was in the Totem Bar. Alvarado objected to the late disclosure of the witness and asked the court to preclude this testimony. (Alvarado asserts that he also moved for a mistrial on this ground, but the record does not support this.)
Even assuming the State violated its discovery obligation by not disclosing this witness earlier, a continuance, not exclusion of the evidence, was the proper remedy.Alvarado never asked for a continuance; nor has he offered any plausible explanation of how the mid-trial disclosure prejudiced him, or why a continuance would have been an inadequate remedy. We therefore find no error in the court's decision to allow Nemire to testify.
See Bostic v. State, 805 P.2d 344, 348 (Alaska 1991).
See id.
When Nemire took the stand, he said he could not remember whether Alvarado displayed any physical manifestations of intoxication. He said Alvarado was given a breath test at the jail and that he was "over the legal limit." Alvarado objected to this testimony and the court immediately instructed the jury to "strike any reference to a legal limit breath test."
After Nemire's testimony, Alvarado moved for a mistrial. He also asked the court, in the event it denied the mistrial motion, to instruct the jury that the results of a portable breath test are not admissible. Judge Miller denied the mistrial motion. But he then instructed the jury "not to give any weight whatsoever to the correctional officer's testimony regarding a breath test taken up at the jail. It has no evidentiary value whatsoever, and you're not to consider it during your deliberations."
On appeal, Alvarado argues that the court erred by refusing to grant his mistrial motion. He argues that the curative instruction was not sufficient to cure the prejudice from Nemire's testimony.
The decision whether to grant a mistrial is committed to the sound discretion of the trial court and will not be overturned unless it was an abuse of discretion. This is because "[t]he trial judge has the opportunity to observe the tainted evidence in the context in which it is received by the jury. He, far better than [the appellate court], can tell whether substantial prejudice has been done." When the trial judge instructs the jury to disregard improper testimony, "such an instruction is presumed to cure any error which may have been committed by its introduction."
Graham v. State, 656 P.2d 1192, 1194 (Alaska App. 1982) (Singleton, J., concurring).
Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).
Id. (quoting Anderson v. State, 438 P.2d 228, 233 n.15 (Alaska 1968)).
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Judge Miller did not abuse his discretion in ruling that a mistrial was not warranted and that a curative instruction was sufficient to cure any prejudice. Nemire's testimony about the breath test result was brief and the court instructed the jury twice to disregard the evidence, saying it had "no evidentiary value whatsoever." In the context of the trial testimony as a whole, the jury was unlikely to be influenced by this improper evidence, particularly since it heard much stronger evidence of Alvarado's intoxication, including physical signs of impairment and a breath test at the police station that showed his blood alcohol level was three times the legal limit for driving.
Conclusion
Alvarado's conviction is AFFIRMED.