Opinion
Court of Appeals No. A-10449.
April 27, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-08-1187 CR.
Dan Bair and Brooke V. Berens, Assistant Public Advocates, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Deann Ruth Bacarella was convicted of felony driving under the influence and misconduct involving a controlled substance in the sixth degree (possession of marijuana) in a jury trial conducted by Superior Court Judge Michael L. Wolverton. Bacarella appeals her convictions. We affirm.
AS 28.35.030(n).
AS 11.71.060(a)(1).
Factual and procedural background
At about 2:30 a.m. on February 3, 2008, Noreene Cooper was driving in east Anchorage. Katherine Walters and Michael Luper were passengers in her truck. They saw Deann Bacarella standing on the side of the road, near a car in a ditch. The temperature was about ten degrees below zero, and Bacarella was dressed in thin shorts, a tank top, and a thin jacket. Cooper and Walters thought that Bacarella might be pregnant. Cooper stopped near Bacarella, got out and talked to her, and told her the police were on the way. Bacarella got into Cooper's truck because it was cold. She sat in the front seat. Luper and Walters were in the back seat. Bacarella offered a small sum of money to Cooper to take her home. According to Luper, Bacarella stated that she had been driving when the vehicle went off the road, and that she wanted to go home because she did not want to get in trouble. After waiting for the police for a few minutes, Cooper started driving. She turned around and headed back to the site of the crash after the police contacted Walters and told them to return. Bacarella then offered Cooper one or two hundred dollars to take her home. When Cooper refused, Bacarella jumped from Cooper's moving vehicle. Bacarella talked to the driver of a nearby vehicle and asked him to call the police because Cooper had dragged her.
A few moments later, the police contacted Bacarella. Bacarella at first told the officers that there was nobody in her car with her. She then stated that either her sister-in-law or her brother-in-law had been driving. The police administered sobriety tests, determined that Bacarella was intoxicated, and arrested her. At the police station, Bacarella's blood alcohol content was determined to be .203 percent. Bacarella admitted that she was carrying a small amount of marijuana, and the police seized it. The State charged Bacarella with felony driving under the influence and possession of marijuana.
At trial, Bacarella conceded that she was highly intoxicated but contended that she was not guilty of driving under the influence because she had not been driving. Two witnesses testified for Bacarella. Evelyn Voliva testified that she was friends with Bacarella and that she had been driving the vehicle that night, and that Bacarella did not drive. She testified that she and Bacarella were on their way to a party, and that when she tried to make a turn, she couldn't stop and slid down into the snowbank. She testified that her friend, Sara Jessee, came by and picked her up, but Bacarella did not want to go with them, so they left Bacarella. Jessee testified that she was friends with Voliva but did not know Bacarella, and confirmed Voliva's account. The jury convicted Bacarella of felony driving under the influence and possession of marijuana.
Discussion
On appeal, Bacarella makes four claims of error. Bacarella first contends that Judge Wolverton erred in allowing Katherine Walters and Noreene Cooper to testify that one of the reasons they stopped to help Bacarella when they saw her standing on the side of the road was that they thought that she might be pregnant. Bacarella argues that the jury could have been prejudiced by the suggestion that she was abusing alcohol while she was pregnant.
We agree with Bacarella that it was unnecessary for the State to introduce this testimony. The testimony presented at trial showed that when Walters and Cooper saw Bacarella standing beside the road, it was extremely cold and Bacarella was wearing light clothing. Assuming it was necessary to explain why Walters and Cooper stopped to help Bacarella, it was unnecessary to show that they were concerned she might be pregnant. But we fail to see how Bacarella was prejudiced by this testimony. From the testimony presented at trial, it seems apparent that Bacarella was not pregnant on the night in question. And, if Bacarella believed that the trial testimony did not make this clear, she could have taken steps to further clarify this issue. Therefore, to the extent that this ruling was error, it was harmless.
Bacarella next argues that Judge Wolverton erred in refusing to preclude the State from introducing evidence of her marijuana possession. Before trial, Bacarella moved to bifurcate the driving under the influence charge from the marijuana possession charge. Judge Wolverton denied Bacarella's motion to bifurcate the charges, pointing out that Bacarella was charged with driving under the influence of alcohol and/or a controlled substance.
Bacarella then asked whether, in a trial on the DUI charge, the court would preclude the State from introducing evidence that she possessed marijuana if she entered a guilty plea to possession of marijuana. She argued that the State had evidence that she was legally intoxicated based upon her alcohol consumption alone, and that there was no direct evidence she consumed marijuana. The State responded that it intended to show that Bacarella had a high level of blood alcohol, but that Bacarella might also have been affected by marijuana consumption.
Judge Wolverton ruled that, even in a separate trial on the DUI charge, the State would be allowed to present evidence that Bacarella possessed marijuana when the police arrived at the scene. In addition to the State's argument that Bacarella's impairment might be due (at least in part) to consumption of marijuana, Judge Wolverton noted that, if Bacarella took the stand in a separate DUI trial, the fact that she might have consumed marijuana would be relevant to the jury's assessment of her ability to observe and recall the events that led to her arrest and its aftermath.
As it turns out, Bacarella's defense to the DUI charge was that she was not driving, and she conceded that she was highly intoxicated. Moreover, Bacarella did not take the stand. Given Bacarella's strategic choices at trial, Judge Wolverton's two rationales for admitting the disputed testimony may not appear particularly strong.
But we must assess Judge Wolverton's ruling in light of what he knew at the time he made the ruling. At that time Judge Wolverton did not know that Bacarella would concede she was intoxicated or that she would choose not to testify. Marijuana is an intoxicant, and Bacarella's possession of marijuana was circumstantial evidence that she used marijuana on the night in question. That evidence was relevant both to Bacarella's level of intoxication and, if she took the stand, to her credibility as a witness. Thus, both of Judge Wolverton's rationales for admitting this evidence were valid.
See Lau v. State, 175 P.3d 659, 663 (Alaska App. 2008).
We addressed a similar situation in Itta v. State. Itta was charged with assault in the first degree. Itta asked the trial judge for a preliminary ruling as to whether, if he testified that he acted in defense of others, the judge would allow the State to present evidence of his prior assaultive conduct. The judge stated that, based upon what he knew at that time, he would probably preclude the State from introducing evidence of Itta's prior assaultive conduct, but the judge cautioned Itta that his final decision on this matter would be based on the content of Itta's testimony.
191 P.3d 1013 (Alaska App. 2008).
Id. at 1014.
Itta chose not to testify. On appeal, Itta contended that the trial judge was required to give him a definitive answer on this evidentiary question before he decided whether to testify. Itta argued that he was deprived of his right to testify because he was forced to make the decision whether to testify without knowing whether the disputed evidence would be admitted.
In rejecting Itta's claim, we stated:
[T]he rule that Itta proposes would create grave problems. If trial judges were required to give a defendant definitive rulings on these evidentiary matters before the defendant made the decision whether to take the stand, and if the defendant's testimony truly altered the balance between the probative value of the evidence and its potential for unfair prejudice, then either the trial judge would be powerless to amend the earlier ruling or the defendant could plausibly claim that he was improperly enticed to take the stand.
Id. at 1015.
In Bacarella's case, as well, we must assess Judge Wolverton's ruling based on what the judge knew at the time he made the ruling. Given what the judge knew about the case, and about Bacarella's litigation strategy, his ruling was reasonable and not an abuse of discretion.
See Bluel v. State, 153 P.3d 982, 986 (Alaska 2007).
Bacarella's next claim of error is that Judge Wolverton erred in limiting her cross-examination of Michael Luper. Luper, Katherine Walters's boyfriend, was sitting with Walters in the backseat of Noreene Cooper's truck when they stopped to aid Bacarella. Luper's testimony was similar to the testimony that Cooper and Walters gave. But besides corroborating their testimony, Luper's testimony was important in at least two respects: He testified that he saw a set of footprints coming from the driver's side of the car which was off the road and that these footprints lead right to where Bacarella was standing when he saw her. He also testified that, when Bacarella got in Cooper's truck, she stated that she had been driving and had gone off the road while she was trying to use her phone.
At trial, Bacarella was able to establish that Luper had previously been convicted of a crime of dishonesty and that he was on felony probation. Bacarella cross-examined Luper about the fact that he faced incarceration if he violated his probation. In her closing argument, Bacarella's attorney argued to the jury that Luper was not a credible witness because he was on felony probation and had been convicted of a crime of dishonesty. Bacarella's attorney argued that, because Luper was on felony probation, he had every motive to slant his testimony in favor of the State, because the State had the power to decide whether he would go back to jail if he violated his probation.
Bacarella argues that the trial court should have allowed her to elicit additional evidence that would have undermined Luper's credibility — evidence that would have shown that Luper violated the terms of his probation the same night that Bacarella was arrested. Bacarella argues that Judge Wolverton abused his discretion by not allowing her to cross-examine Luper about whether, on the same night Bacarella was arrested, Luper committed two probation violations.
The problem with Bacarella's contention is that Bacarella's offer of proof was inadequate to establish the relevance of her proposed cross-examination. Bacarella's attorney represented that Luper had been convicted of assault in the third degree for assaulting Katherine Walters. And she represented that the judgment in that case indicated that Luper was not to have contact with Walters without having the prior consent of the probation office. But when Judge Wolverton inquired whether the probation office had given consent for Luper to contact Walters, Bacarella's attorney conceded she did not know the answer to that question. Bacarella's attorney also represented that Luper's car had been impounded earlier that same evening and that this impoundment was because of an unrelated probation violation. But Bacarella's attorney never explained how this charge might have affected Luper's testimony. In light of Bacarella's limited offer of proof, Judge Wolverton could reasonably conclude that Bacarella failed to establish the relevance of this evidence.
See Adamson v. Univ. of Alaska, 819 P.2d 886, 889-90 (Alaska 1991) (describing the importance of an offer of proof).
In addition, Bacarella claims that Judge Wolverton erred in refusing to allow her to ask Luper how much time he faced if his probation was revoked. But Bacarella was able to establish that Luper was on felony probation. We conclude that Judge Wolverton did not abuse his discretion in ruling that it was unnecessary to establish the length of imprisonment that Luper potentially faced in the event of a revocation of that probation.
Bacarella's final argument is that Judge Wolverton erred by instructing the jury on how to weigh evidence about a person's flight after the commission of a crime. Judge Wolverton gave the following instruction:
The flight of a person immediately after the commission of a crime is not sufficient in itself to establish his/her guilt, but is a fact which, if proved, may be considered by you in the light of all other facts in deciding the question of guilt or innocence. The weight to which such evidence is entitled is a matter for the jury to determine.
Bacarella argues that the evidence did not clearly show that she fled from authority. But the evidence presented at trial certainly suggested that Bacarella was attempting to leave the scene where her car had gone off the road and that she made extraordinary efforts to get someone to take her home because she wanted to avoid talking to the police.
In Nelson v. State, we upheld an instruction identical to the instruction that Judge Wolverton gave in this case. In upholding the instruction, we indicated that the instruction could clarify for the jury the proper use of evidence of flight and would also warn the jury about the possible improper use of the evidence. We concluded that this instruction, and similar instructions, did not "invade the province of the jury." In this case, for the reasons we set out in Nelson, we conclude that Judge Wolverton did not err in giving this instruction.
927 P.2d 331 (Alaska App. 1996).
Id. at 334-35.
Id. at 335.
Id.
Conclusion
The judgment of the superior court is AFFIRMED.