Opinion
Court of Appeals No. A-11227 No. 6180
05-06-2015
GABRIEL D. BRANNAN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Robert John, Law Office of Robert John, Fairbanks, for the Appellant. Eric A. Ringsmuth, 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. Trial Court No. 4DJ-10-12 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Delta Junction, Douglas L. Blankenship, Judge. Appearances: Robert John, Law Office of Robert John, Fairbanks, for the Appellant. Eric A. Ringsmuth, 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. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Gabriel D. Brannan was convicted of felony driving under the influence and felony failure to stop at the direction of a peace officer.
Prior to trial, Brannan moved to bifurcate the trial so the jury would not hear about his prior convictions for driving under the influence and breath-test refusal — the prior convictions that made his current offense a felony — unless the jury first found him guilty of driving under the influence. The superior court denied the motion and admitted the evidence based on the prosecutor's argument that the prior convictions were independently relevant to establish Brannan's motive to flee from the state trooper (and thus commit the offense of failure to stop at the direction of a peace officer).
On appeal, Brannan argues that the superior court's failure to bifurcate his trial was error. We agree with Brannan that the probative value of his prior convictions to prove his motive for committing the offense of failure to stop at the direction of a peace officer was marginal, at best, and that the superior court therefore abused its discretion when it denied Brannan's request to bifurcate the trial. But we conclude that the error was harmless under the particular facts of Brannan's case.
Brannan raises two additional claims of error. He argues that the prosecutor's use of his prior convictions during closing argument was improper and rose to the level of plain error. He also argues that the superior court should not have allowed the prosecutor to introduce photographs that invited the jury to make shoe print comparisons between Brannan's boots and the prints in the snow found at the scene without expert testimony to guide that comparison. For the reasons explained here, we conclude that neither of these claims has merit.
Factual background and prior proceedings
Just after midnight on February 5, 2010, in Delta Junction, Alaska State Trooper Joseph Harris saw a truck slide through an intersection and turn without signaling. The trooper activated his emergency lights and attempted to pull the truck over, but the truck sped away, veering off the road multiple times before coming to a stop after striking several trees. The trooper saw the driver jump out of the truck and run into the woods.
The trooper notified dispatch of the truck's license plate number, then got out of his patrol car, and went up to the truck. He saw that there was no one in the truck, that the passenger side door was right next to trees, and that there was only a single set of prints in the snow leading from the driver's side door into the woods.
Trooper Harris followed the single set of prints into the woods and heard someone breaking branches ahead of him. While the trooper was following the prints, dispatch notified him that the truck belonged to Gabriel Brannan. The trooper then yelled, "Gabriel Brannan," and the sound of breaking branches stopped. The trooper continued following the prints until, only minutes later, he found a frostbitten Brannan, who was sitting in the snow crying.
After the trooper placed Brannan in the patrol car, Brannan told the trooper that he had been the only person in the truck and that he ran from the trooper because he was "scared" and "didn't want to get into trouble."
The trooper took photographs of the truck and the prints in the snow, including those that led into the woods where Brannan was found, then took Brannan to the Delta Junction Courthouse for booking. After he was booked, Brannan took a breath test which showed that his blood alcohol level was 0.169 percent. (Brannan also requested an independent blood test. That test, which was taken approximately forty minutes after the breath test, showed a higher blood alcohol level: 0.189 percent.)
Because Brannan had prior convictions for driving under the influence and refusal to submit to a chemical test within the previous ten years, he was charged with felony DUI. Brannan was also charged with felony failure to stop at the direction of a peace officer, as well as a traffic infraction for turning without signaling.
AS 28.35.030(a)(n).
AS 28.35.182(a).
Brannan moved to bifurcate his trial so that the jury would not hear evidence of his prior convictions for driving under the influence and breath-test refusal until after it reached a verdict on his conduct in this case. The superior court initially granted this motion to bifurcate.
But the State then moved for reconsideration, arguing that Brannan's prior convictions were relevant to explain his motive to flee from the trooper. The superior court granted the State's motion for reconsideration, finding that the probative value of the prior convictions (on the issue of Brannan's motive to flee) outweighed their potential for unfair prejudice.
At Brannan's unified trial, the judge instructed the jury that evidence of the prior convictions was only to be used (1) to determine whether Brannan had prior convictions for driving under the influence and breath-test refusal and (2) to decide whether the prior convictions tended to show a motive to fail to stop at the direction of a peace officer. The judge further instructed the jury that Brannan's prior convictions could not be considered as evidence that Brannan had a tendency to commit crimes or that he was a person of "bad character."
Brannan's defense at trial was that someone else drove his truck and ran into the woods. He claimed that he left his truck in the parking lot of a bar and got a ride with his friend Ryan Walker, who dropped him off about three miles from the bar, near the house of another friend.
Brannan testified that when he got to this other friend's house, he was unable to get inside, so he tried to walk home but got lost in the woods — where, frostbitten and crying, he ran into Trooper Harris.
Brannan admitted telling the trooper that he was "scared," but he explained that he said this because he was concerned about freezing to death. Similarly, Brannan admitting telling the trooper that he was worried about getting into "trouble," but he asserted that he meant that he was afraid that someone would see him wandering in the woods and think he was a burglar. He also admitted that he told the trooper that he was the only person in the truck, but he asserted that he had been confused and scared when he said this.
Ryan Walker also testified for the defense. He corroborated Brannan's testimony that he gave Brannan a ride from the bar and dropped him off near another friend's house. Walker also testified that it was well known that Brannan kept an extra set of keys in his truck.
On cross-examination, Walker admitted that he may have dropped Brannan off at the friend's house an hour before Trooper Harris initiated the traffic stop. Brannan conceded on cross-examination that an hour was sufficient time for him to walk back to the bar and retrieve his truck.
The jury rejected Brannan's defense and convicted him of felony driving under the influence and failure to stop at the direction of a peace officer. This appeal followed.
Why we conclude that the superior court's failure to bifurcate Brannan's trial was harmless error
In Ostlund v. State, we held that when a defendant is charged with felony driving while intoxicated or felony breath-test refusal, the trial court should normally bifurcate the defendant's trial so that the jury decides whether the defendant is guilty of the currently charged conduct before it hears evidence of the defendant's prior convictions.
See Ostlund, 51 P.3d at 939-42.
In his concurring opinion in Ostlund, Judge Mannheimer observed that there will be times when a defendant's prior convictions for driving under the influence or breath-test refusal will "be relevant for some valid purpose other than merely to establish the 'prior convictions' element of the [felony] offense." In such circumstances, if the State seeks to admit evidence of the prior convictions in a unified trial, the trial judge must balance the relevance of the defendant's past convictions against the "danger that the jurors will view the defendant's past crimes as evidence that the defendant is a person who characteristically engages in this type of criminal behavior — and that the jurors will presume the defendant's guilt from the fact that the defendant has done it before."
Id. at 947 (Mannheimer, J., concurring).
Id. at 943 (Mannheimer, J., concurring).
Here, the prosecutor asserted that a unified trial was proper because Brannan's prior convictions were independently relevant to prove Brannan's guilt on the separate charge of failure to stop at the direction of a peace officer. Specifically, the prosecutor argued that Brannan's prior convictions, and the increased penalty he faced because of them, explained Brannan's motive to flee into the woods.
The superior court agreed that this was a proper independent ground for admitting evidence of the prior convictions, and the court found that the probative value of this evidence outweighed its potential for unfair prejudice. The court therefore granted the State's motion for a unified trial.
But as Brannan points out, the only disputed issue at his trial was whether Brannan was the driver. There was never any dispute that the driver fled, nor any contention that the driver had no motive to flee. Whether the driver had additional reasons for fleeing — reasons beyond his violation of the traffic law, his dangerous driving, and his suspected intoxication — was an issue of only marginal relevance. We therefore agree with Brannan that the superior court abused its discretion under Evidence Rule 403 when the court found that the probative value of this evidence outweighed its obvious potential for unfair prejudice.
Although we conclude that the superior court should have bifurcated Brannan's trial, we also conclude that this error was harmless given the particular facts of Brannan's case and the court's clear limiting instructions to the jury. At Brannan's trial, there was no dispute that Trooper Harris saw a man jump out of the driver's seat of Brannan's truck and run into the woods. There was also no dispute that the trooper followed a single set of prints in the snow, leading from the drivers's side door of the truck into the woods. Nor was there any dispute that the sound of breaking branches stopped when the trooper yelled, "Gabriel Brannan," and that shortly thereafter, the trooper came upon Brannan. The jury also heard evidence of Brannan's admissions to the trooper that he was the only person in the truck and that he fled because he was scared and did not want to get into trouble.
When Brannan took the stand, he did not dispute any part of this evidence, other than to claim that he was not the driver and that it was mere coincidence that Trooper Harris stumbled across him while chasing the missing driver.
Thus, the jury was confronted with a clear credibility question: was it possible that Brannan was telling the truth and that "truth was stranger than fiction," as Brannan's defense attorney claimed, or had the State proven beyond a reasonable doubt that Brannan was the driver. Although we agree with Brannan that the jury should not have heard about his prior convictions, we conclude that the evidence of those prior convictions did not appreciably affect the jury's verdict in this case.
See Love v. State, 457 P.2d 622, 631-32 (Alaska 1969) (holding that the erroneous admission of evidence is harmless if the appellate court can fairly say that the error did not appreciably affect the jury's verdict).
We therefore find that the superior court's error in failing to bifurcate the trial was harmless.
Why we reject Brannan's claim of prosecutorial misconduct
Brannan argues that the prosecutor committed misconduct during the rebuttal portion of the State's closing argument by suggesting that the jury could view Brannan's prior convictions as evidence of his lack of credibility (rather than merely as evidence of his motive to flee). Brannan did not object to the prosecutor's closing argument at trial, so we review this claim for plain error.
See Alaska Criminal Rule 47(b); Adams v. State, 261 P.3d 758, 771 (Alaska 2011).
When a defendant argues as a matter of plain error that the prosecutor's statements during closing argument amounted to prosecutorial misconduct, this Court considers "whether the prosecutor's statements, if in error, constituted such egregious conduct as to undermine the fundamental fairness of the trial."
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985) (internal quotation marks omitted), superseded by statute on other grounds as recognized in Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996).
We conclude that Brannan has not met this standard. Contrary to Brannan's characterization of the prosecutor's rebuttal argument, it is not clear that the prosecutor was arguing that Brannan's prior convictions made him less credible. Instead, it appears that the prosecutor was arguing that Brannan had a strong incentive to lie when he took the stand because he had an obvious stake in the outcome of the case, and because he faced serious penalties if convicted.
Even assuming that this argument was improper (which we do not need to decide here), we do not view the prosecutor's statements as constituting such egregious misconduct as to undermine the fundamental fairness of Brannan's trial. We therefore do not find plain error.
Why we conclude that the trial court did not abuse its discretion by admitting photographs of Brannan's boots and the prints in the snow
Brannan next argues that the superior court abused its discretion by admitting photographs depicting the soles of Brannan's boots and the prints in the snow that Trooper Harris followed into the woods. He argues that this photographic evidence should have been excluded unless the State presented expert testimony to assist the jury in comparing the boots and the prints.
To support his argument that shoe print comparisons require expert testimony, Brannan cites to our decision in Ratliff v. State. Ratliff involved a burglar who, in the process of breaking into a safe, left shoe prints which were later used to link him to the crime.
110 P.3d 982, 983 (Alaska App. 2005).
Id. at 983.
In Ratliff, the State presented expert testimony that Ratliff's shoes matched the prints taken from the scene of the burglary. The issue on appeal, however, was not whether expert testimony was required, but rather whether the trial judge had abused his discretion in finding that no formal Daubert analysis was required to assess the expert's methodology. We concluded that a formal Daubert analysis was not needed because the comparison of Ratliff's shoes to the footprints was purely a visual comparison and the value of the State's expert in Ratliff's case lay in "being able to spot small physical abnormalities that might escape a lay person's eye, and in being able to identify (through training and experience) which physical traits were characteristic of a class or group of shoes, as opposed to the physical traits unique to a particular shoe (e.g., individual manufacturing defects or patterns of wear)."
Id. at 983, 985-86.
Id.
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Here, the only question was whether the soles of Brannan's boots were consistent (or inconsistent)with the single trail of prints that led from Brannan's truck to where Brannan was found in the woods. We agree with the superior court that this type of gross visual comparison was within the capability of lay jurors and that expert testimony was not required in this circumstance.
Conclusion
We AFFIRM the judgment of the superior court.