Opinion
Court of Appeals No. A-11394 No. 6183
05-06-2015
PAMELA DENISE CARLSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David T. McGee, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ronald R. Dupuis, Assistant District Attorney, 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. 3AN-11-8123 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Pamela Scott Washington, Judge. Appearances: David T. McGee, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ronald R. Dupuis, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Pamela Denise Carlson appeals her conviction for driving under the influence, AS 28.35.030(a); she argues that the judge who presided over her trial made two erroneous evidentiary rulings. We conclude that, given the facts of this case, any potential error in the judge's rulings was harmless, and we therefore affirm Carlson's conviction.
Underlying facts
At approximately 1:00 a.m. on July 18, 2011, Carlson drove her vehicle into a parked SUV. The collision was forceful enough to push the SUV into another vehicle, and the crash triggered the air bag in Carlson's vehicle.
Carlson was the only person in her vehicle. When the vehicle stopped, she got out, staggered around, and then sat down in front of a nearby driveway. She remained there until the police and medical personnel arrived.
Anchorage Police Officer Troy Clark was the first officer to arrive on the scene. When Carlson spoke with him, she made a comment about hitting the other cars, and she also said that she had taken Ambien earlier that evening. Clark testified that it was "clear ... that [Carlson] was impaired". More specifically, Clark stated that Carlson had "droopy eyes [and] slurred speech, [and] she just [couldn't] walk. ... [S]he was stumbling all over the place [and] couldn't even stand."
Soon after Clark had this initial contact with Carlson, medical personnel arrived, and Clark watched Carlson's interaction with them. According to Clark, Carlson "was so impaired [and] out of it that she actually kept falling over[.]" Clark testified that "[Carlson] did that several times; ... she [was] talking to [the medical personnel], and she just kind of [fell] over and they [had] to catch her[.]"
Clark attempted to administer field sobriety tests to Carlson. For the most part, Carlson was physically incapable of cooperating in these tests, and when she did succeed in performing a test, she did poorly.
Based on these observations, Clark concluded that Carlson was impaired by a depressant drug. She was arrested for driving under the influence and taken to jail, where she submitted to a DataMaster breath test. This breath test showed that there was no measurable alcohol in Carlson's system. Because Carlson had told Clark that she had taken Ambien earlier in the evening, and because Clark found a prescription bottle with generic Ambien pills in it, the police suspected Carlson was impaired by Ambien.
Carlson requested an independent blood test. The results of this test (administered about two hours after the crash) revealed that Carlson had two controlled substances in her blood: hydrocodone and Zolpidem (Ambien). The hydrocodone was present at a level of .03 milligrams per liter of blood, while the Ambien was present at a level of .40 milligrams per liter of blood.
An expert witness testified that, based on the amount of Ambien that was prescribed for Carlson, and based on her body mass, the amount of Ambien one would expect to find in Carlson's blood (i.e., the therapeutic amount) was about .15 to .18 milligrams per liter. (As explained in the preceding paragraph, Carlson's blood contained almost three times this concentration of Ambien.)
In addition to the hydrocodone and the Ambien, Carlson's blood also contained trace amounts of two over-the-counter medications (i.e., medications that are not controlled substances): Diphenhydramine (Benadryl) and citalopram (Celexa). These trace amounts were detectable but not "reportable" — i.e., no accurate measurement of these drugs could be made, given the margin of error of the testing equipment.
The challenged evidentiary rulings
Carlson was brought to trial on one count of driving under the influence of controlled substances. On the second day of trial, Carlson's attorney asked the trial judge to prohibit the State from introducing evidence that Carlson's blood had detectable amounts of the two non-controlled substances (Benadryl and Celexa). The trial judge denied Carlson's motion, finding that this evidence was relevant and more probative than prejudicial.
At her trial, Carlson took the stand. As part of her testimony, Carlson wished to tell the jury that her doctor had told her that she could take Ambien whenever she felt the need to calm her anxiety. The State objected to Carlson's proposed testimony on hearsay grounds, and the trial judge sustained the State's objection. The judge concluded that the proposed testimony was hearsay because Carlson was offering her doctor's out-of-court statement for the truth of the matter asserted. Accordingly, the judge ruled that Carlson could testify that she took Ambien for anxiety, but she could not testify that her doctor had said that this was all right.
Why we conclude that any error in these rulings was harmless
(a) Evidence that Carlson's blood contained traces of Benadryl and Celexa
With respect to the evidence that Carlson's blood contained traces of the two non-controlled substances, Benadryl and Celexa, Carlson again argues that the trial judge should have excluded this evidence. Carlson notes that the DUI statute only applies to driving under the influence of alcohol or controlled substances. Because of this limitation, Carlson argues that evidence of the two non-controlled substances was both irrelevant and unfairly prejudicial, in that the jury might have convicted her of driving under the influence of these non-controlled substances. Carlson argues that it is impossible to know whether the jury convicted her of driving under the influence of the Ambien, the hydrocodone, the Benadryl, or the Celexa.
But when this issue was litigated in the trial court, the State introduced expert testimony that the trace amounts of Benadryl and Celexa would not appreciably affect a person's behavior by themselves. The State's expert testified that these trace amounts of Benadryl and Celexa could only have affected Carlson's ability to drive to the extent that, potentially, they might have heightened the effect of the much larger quantities of Ambien and hydrocodone in Carlson's system.
The jury was instructed that the State was required to prove that Carlson drove under the influence of controlled substances, and that the only controlled substances in this case were Ambien and hydrocodone.
We further note that, during the State's summation to the jury, the prosecutor argued that Carlson was under the influence of Ambien and hydrocodone. The prosecutor mentioned the trace amounts of the Benadryl and Celexa, but only in passing, and only for the proposition that these trace amounts might have heightened the effect of the Ambien and the hydrocodone.
Finally, we note that Carlson's defense was that she had a strong tolerance for Ambien, and that she was not under the influence of this drug or any other at the time of the collision. The defense attorney argued that Carlson's symptoms after the accident were not the result of ingesting drugs, but were instead the result of a concussion that Carlson suffered when her vehicle collided with the SUV.
For these reasons, we conclude that any arguable error in the admission of this evidence was harmless. We can fairly say that this evidence had no appreciable effect on the jury's verdict.
See Love v. State, 457 P.2d 622, 634 (Alaska 1969) (holding that, for instances of non-constitutional error, the test for harmlessness is whether the appellate court "can fairly say that the error did not appreciably affect the jury's verdict").
(b) Carlson's proposed testimony that her doctor told her it was all right to take Ambien whenever she felt anxious
We turn next to Carlson's proposed testimony that her doctor told her it was all right to take Ambien whenever she felt the need to calm her anxiety. Carlson argues that the trial judge was wrong to exclude this testimony on hearsay grounds because Carlson did not offer this testimony to try to establish the truth of the doctor's out-of-court statement. Rather, Carlson argues, she offered this testimony to establish how the doctor's out-of-court statement affected her attitude toward taking Ambien — i.e., whether she believed it was all right to take the Ambien more often, or in greater quantities, than was listed in her prescription. This, in turn, would support Carlson's assertion that she had developed a tolerance for higher levels of Ambien.
We have reviewed the discussion of this issue in the trial court, and it appears that the prosecutor's objection to this testimony, as well as the trial judge's decision to sustain the prosecutor's objection, were both based on a mistaken understanding of the hearsay rule.
"Hearsay" is defined as evidence of someone's out-of-court assertion that is offered to prove the truth of that out-of-court assertion. See Alaska Evidence Rule 801(a) and (c).
When the prosecutor objected to Carlson's proposed testimony about what the doctor told her, the prosecutor argued that this testimony was hearsay because it was being offered "for the truth of the matter asserted". But the prosecutor misunderstood the meaning of this phrase.
The record shows that, when the prosecutor used this phrase, he was arguing — mistakenly — that Carlson's testimony would be hearsay because Carlson was asserting that the doctor had, in truth, made this out-of-court statement to her. But it is not hearsay for a witness to testify about what they personally heard someone else say — as long as the relevance of the witness's testimony lies in the fact that the other person said this thing (or the fact that the witness heard it), and not any assertion about the truth of what the other person said.
Carlson wanted to describe what her doctor told her (i.e., the doctor's purported statement that it was all right for Carlson to take Ambien whenever she felt anxious) for the purpose of establishing the effect of this statement on her future behavior. Carlson's testimony on this point would not be hearsay, because Carlson was not offering this testimony to prove the truth of any matter asserted by her doctor in that out-of-court statement.
As Carlson's attorney explained to the trial judge, this testimony was offered for two purposes: (1) to prove that the doctor made this statement to Carlson (or, at least, to prove that this was what Carlson understood her doctor to have said), and (2) to prove how Carlson's attitude toward taking Ambien was affected by hearing the doctor make this statement.
Neither of these purposes was a hearsay purpose. That is, neither of these purposes rested on the assertion that the doctor's advice about taking Ambien was correct or medically sound. Thus, the prosecutor's hearsay objection was mistaken.
The trial judge sustained the prosecutor's objection and excluded the proposed testimony because the judge adopted the prosecutor's mistaken view of the hearsay rule — the mistaken view that Carlson's testimony was hearsay because it was offered to prove that her doctor actually made this statement to her.
(For example, at one point in the discussion, the trial judge asked the defense attorney, "How would [the prosecutor] challenge whether or not the doctor told her that[?]")
But even though the trial judge was wrong to exclude Carlson's proposed testimony as hearsay, the judge's error was harmless.
After the judge issued the erroneous hearsay ruling, Carlson proceeded to testify that she normally took Xanax and Lipitor to relieve stress and high blood pressure, that she took Ambien for these same purposes when she was out of her other prescriptions, and that her use of Ambien for these purposes was in accord with what her doctor had told her. Thus, despite the judge's mistaken ruling, Carlson was able to apprise the jury of the information she wanted.
Given this record, we can fairly say that the judge's erroneous hearsay ruling had no appreciable effect on the jury's verdict.
See Love v. State, 457 P.2d 622, 634 (Alaska 1969).
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Conclusion
The judgement of the district court is AFFIRMED.