Opinion
Court of Appeals No. A-10956 Trial Court No. 4FA-10-1487 CR No. 6035
03-12-2014
LAWRENCE AVERY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.
Appearances: Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge MANNHEIMER.
Late one night in April 2010, a police officer observed Lawrence Avery driving on the Steese Highway in Fairbanks without his headlights on. During the ensuing traffic stop, Avery performed poorly on field sobriety tests, and he made several statements concerning drug use. Avery was arrested and taken to a police station for a breath test.
During the fifteen-minute observation period preceding the breath test, the officer inspected Avery's mouth and saw a small plastic bag containing a white powdery substance. Avery struggled with the officer and attempted to chew the bag, but he ultimately spit the bag out of his mouth. The officer took possession of the bag, and then he continued the breath test protocol. After Avery's breath test result showed that he had no alcohol in his blood, the police sent the plastic bag to the Alaska Crime Laboratory, asking for chemical analysis of the white powdery substance.
A forensic analyst at the Crime Lab, Stephen Palmer, tested the powder and reported that it was dihydrocodeinone, a Schedule IIA controlled substance. Based on Palmer's analysis of the powder, Avery was charged with three crimes: fifth-degree controlled substance misconduct, driving under the influence, and tampering with evidence.
AS 11.71.050(a), AS 28.35.030(a), and AS 11.56.610(a)(1), respectively.
But the State did not present Palmer as a witness at Avery's trial. Instead, the State introduced the chemical analysis of the white powder through the testimony of Jack Hurd, another forensic analyst employed by the Crime Lab (and Palmer's co-worker).
In the present appeal, Avery argues that his rights under the confrontation clause were violated when the State presented this testimony through Hurd rather than through Palmer, because Palmer was the one who personally conducted the physical tests of the powdery substance. For the reasons explained in this opinion, we conclude (1) that this claim of error is not preserved, and (2) the admission of Hurd's testimony was not plain error.
The pertinent proceedings in the trial court
As we just explained, the State introduced the chemical analysis of the white powder through the testimony of Jack Hurd rather than through the testimony of Stephen Palmer.
Hurd testified, without objection from Avery's attorney, that (1) the Crime Lab follows a protocol whereby one analyst's work is always reviewed by another analyst before the Lab's final report is approved and issued; and (2) Hurd was the one who reviewed Palmer's testing of the white powder under this protocol.
Hurd stated that he personally reviewed the test results that Palmer generated — i.e., primarily, the results of a "color" test for the presence of amphetamines (which came back negative), the results of a "gold chloride" test for the presence of cocaine (which also came back negative), and the results obtained by testing the powdery substance with a gas chromatograph mass spectrometer. Based on these results, Hurd agreed with Palmer that the powder was dihydrocodeinone.
Avery's attorney cross-examined Hurd briefly. The defense attorney elicited Hurd's opinion that the "color" test and the "gold chloride" test were both "fairly accurate" in his experience. The defense attorney also elicited the fact that the powdery substance in the plastic bag was basically just a residue, and that there was not enough left to weigh it.
The defense attorney then announced that he had no further questions, and the prosecutor announced that he did not intend to conduct any re-direct examination of the witness.
The matter would have ended there (and we would not be addressing this appeal) except that, before Hurd left the stand, the trial judge announced that he wished to voir dire Hurd outside the presence of the jury. The judge told the parties that his questions were prompted by this Court's recently issued decision in Vann v. State, 229 P.3d 197 (Alaska App. 2010).
(In Vann, this Court addressed the issue of whether a defendant's right of confrontation is violated when the State introduces the results of a DNA analysis through the testimony of a forensic analyst who did not personally conduct all of the physical tests of the genetic sample — i.e., when a portion of the physical testing was conducted by another analyst who did not testify.)
The trial judge asked Hurd a series of questions designed to clarify Hurd's exact role in the testing of the powdery substance. Hurd stated that he did not personally perform any of the tests that he described in his testimony. Rather, Palmer performed those tests, and then Palmer presented the test results to Hurd.
Hurd testified that he independently interpreted the test results — especially the result of the testing with the gas chromatograph mass spectrometer, which Hurd described as "the gold standard in the forensic community". Hurd stated that, based on these test results, he came to his own independent conclusion that the powdery substance was dihydrocodeinone.
Hurd also testified that he reviewed Palmer's "bench notes" — Palmer's description of the testing process — "to make sure that his scientific process was correct, and [that it] made logical sense to me". Hurd told the court that he saw nothing in Palmer's bench notes that gave him any concern as to whether Palmer had followed standard testing procedures.
After the trial judge concluded this voir dire examination, the judge asked the parties if they had any further questions on these matters. Both the prosecutor and the defense attorney announced that they had no questions. The judge then ruled that Hurd's testimony met the requirements of the confrontation clause as interpreted by this Court in Vann, and he excused the witness.
The defense attorney did not object to the trial judge's ruling, or to the judge's decision to excuse the witness. And the record of Avery's trial court proceedings contains no further discussion of the confrontation clause.
Avery's argument on appeal is not preserved
Avery raises one claim in this appeal: the contention that his constitutional right of confrontation was violated when the State introduced the chemical analysis of the powdery substance through the testimony of Jack Hurd rather than through the testimony of Stephen Palmer, the analyst who personally ran the physical tests.
This claim is not preserved for appeal. As we have just explained, Avery's attorney never raised a confrontation clause objection (or any objection, for that matter) to any aspect of Hurd's testimony.
In his brief to this Court, Avery attempts to avoid this result by pointing out that the trial judge sua sponte identified the potential confrontation clause problem, conducted a voir dire examination of the witness, and then made a ruling on this issue. Avery argues that, because of the judge's actions, "[all] the purposes behind the contemporaneous objection requirement are substantially fulfilled", and thus his own failure to object to Hurd's testimony is irrelevant.
We do not agree. One of the major purposes of the contemporaneous objection rule is to alert the trial judge to the perceived problem, and to afford the judge a reasonable opportunity to correct the alleged error. Here, Avery's trial attorney never said anything to suggest (1) that the attorney shared the trial judge's confrontation clause concerns, or (2) that the attorney perceived any flaw in the scope of the trial judge's voir dire examination of the witness, or (3) that the attorney disagreed with the trial judge's ruling that Hurd's testimony was constitutionally permissible (and, if so, on what grounds).
Alexander v. State, 611 P.2d 469, 478 (Alaska 1980).
For these reasons, we conclude that Avery's claim in this appeal is not preserved. The remaining question is whether the trial judge committed plain error when the judge ruled that Hurd's testimony met the requirements of the confrontation clause.
The record shows that, after the trial judge raised the confrontation issue sua sponte, Avery's trial attorney chose not to object to any aspect of the judge's actions, or to the judge's ultimate ruling that the demands of the confrontation clause had been satisfied. The defense attorney's conscious failure to object may well preclude Avery from now raising a claim of plain error.
But even if Avery were entitled to pursue this claim of plain error, Avery fails to satisfy two other requirements of the plain error rule: the requirement of showing that error was indeed committed, and the requirement of showing that this error would have been obvious to any competent judge.
See, e.g., Adams v. State, 261 P.3d 758, 773 (Alaska 2011); Charles v. State, 287 P.3d 779, 782-83 (Alaska App. 2012).
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In Vann, this Court rejected a confrontation clause challenge to the testimony of a DNA analyst who did not personally conduct all of the underlying physical tests of the genetic sample. 229 P.3d at 210. Given our decision in Vann, and given the similarities between the facts of Vann and the situation presented in Avery's case, there is good reason to believe that the trial judge made the correct ruling when he decided that Hurd's testimony was constitutionally permissible. And even assuming that the trial judge's ruling was wrong, the error was not obvious.
Conclusion
The judgement of the superior court is AFFIRMED.