Opinion
Court of Appeals No. A-8598.
December 15, 2004.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Raymond M. Funk, Judge, Trial Court No. 4FA-02-1532 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Scot J. Kinneen was convicted of felony driving while under the influence. Kinneen appeals, contending that the superior court erred when it allowed the State to introduce evidence that he declined the opportunity to obtain an independent chemical test. He also contends that he was entitled to a mistrial because a state trooper testified that Kinneen had been arrested for a felony and could not be released on his own recognizance. For the following reasons, we affirm Kinneen's conviction.
AS 28.35.030 (a) (n).
Facts and proceedings
On May 18, 2002, at about two in the morning, Alaska State Trooper Patrick Nelson was driving behind a white Chevrolet Blazer between Nenana and Clear. Nelson saw that the Blazer was weaving, repeatedly crossing over both the center line and the fog line, and driving onto the shoulder of the roadway. Nelson stopped the vehicle and contacted the driver, Kinneen.
Nelson noticed that Kinneen had "a strong odor of alcohol about his breath and person." He also had slurred speech and bloodshot, watery eyes. When asked if he had been consuming alcohol, Kinneen said that he had had about four beers. He said that he had been drinking at a bar outside Fairbanks, and that he was heading to Seattle.
Nelson had Kinneen perform some field sobriety tests: the horizontal gaze nystagmus test, the walk-and-turn test, the one-leg-stand test, and an alphabet test. Nelson concluded that Kinneen failed all four tests and arrested him for driving while under the influence.
Nelson transported Kinneen to Clear Air Station to use that facility's DataMaster machine. According to the DataMaster results, Kinneen's blood alcohol content was .189 percent. Afterwards, Nelson informed Kinneen that he was entitled to obtain an independent chemical test. When asked if he wanted this test, Kinneen declined.
Before trial, Kinneen moved to exclude evidence that he had declined the independent chemical test. He claimed that introducing this evidence violated various constitutional rights, and that the evidence was more prejudicial than probative. The State responded that the motion was premature, and that the issue should be addressed at trial. The court agreed with the State and denied Kinneen's motion.
At trial, Kinneen objected when this evidence was offered, claiming that the evidence violated Miranda and his right to remain silent. The court overruled the objection. Trooper Nelson then testified that he had informed Kinneen of the right to an independent test, and that Kinneen had declined to get the test.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
During cross-examination, Nelson explained that although he had considered releasing Kinneen on his own recognizance, he "discovered that [the charge] was a felony" and did not. Nelson mentioned nothing about prior convictions. Kinneen moved for a mistrial, but he acknowledged that he had already told the jury during voir dire that he was charged with a felony. Acting Superior Court Judge Raymond M. Funk denied the motion. Judge Funk also decided against giving a cautionary instruction.
The jury found Kinneen guilty as charged. Kinneen appeals.
Discussion Kinneen's decision to forego an independent chemical test
Kinneen contends that Judge Funk erred when he allowed the State to introduce evidence that he declined the opportunity to obtain an independent chemical test. Kinneen claims that this evidence was unduly prejudicial and had no evidentiary value. But Kinneen's defense made this evidence relevant. Kinneen primarily defended by attacking the reliability of the trooper's investigation. He started his cross-examination of Trooper Nelson by pointing out that "DWI is a serious case . . . [a]nd it's very important that you . . . follow the rules and . . . gather the evidence accurately." Kinneen then elicited the fact that Nelson had not recorded his contact with Kinneen at the traffic stop or during the DWI processing at Clear Air Station, and had not noted in his police report the time he started the fifteen-minute observation period that must precede the breath test.
He also questioned Nelson extensively about whether he had actually observed Kinneen for the required fifteen-minute period. Kinneen went over Nelson's police report to establish the time that Nelson said Kinneen had been stopped, the time that Nelson and Kinneen left the scene of the stop, the time they arrived at Clear Air Station, and the time the test was administered. In his summation, Kinneen reemphasized the faults he saw in Nelson's investigation, arguing that Nelson had not followed the few rules imposed on him and had not complied with the required fifteen-minute observation period.
See 13 AAC 63.040(a)(1).
Based on Kinneen's defense that the trooper had not done a proper investigation and had not followed the rules when processing Kinneen, evidence that the trooper provided Kinneen with the notification of his right to an independent test required by Alaska law was relevant because it tended to refute Kinneen's claim that the trooper's investigation was flawed. However, even though this evidence was relevant, the trooper made only one brief reference to it, and the prosecutor never mentioned this evidence. In light of Kinneen's defense, and considering the State's limited reference to and use of this evidence, Kinneen has not shown that the challenged evidence had no evidentiary value, or that it was unduly prejudicial.
Cf. Williford v. State, 653 P.2d 339, 342-43 (Alaska App. 1982), rev'd on other grounds, 674 P.2d 1329 (Alaska 1983) (refusal to take the breath test is admissible if relevant, and if its probative value outweighs its prejudicial impact).
Kinneen also claims that the right to obtain an independent test is analogous to the constitutional rights to remain silent and to refuse to consent to a search, as well as to the right against compulsory self-incrimination. Consequently, he argues that the government should be prohibited from admitting evidence that a person arrested for driving while under the influence declined an offer to obtain an independent chemical test.
We conclude that we need not resolve these claims. Here, even if Kinneen's decision to decline an independent test was constitutionally protected, any error in admitting that evidence was harmless beyond a reasonable doubt.
As just explained, the State's reference to this evidence was minimal. Moreover, the State's case was strong. The jury heard that at two in the morning, Nelson saw Kinneen's vehicle weaving in and out of its lane, crossing both the center line and the fog line, and driving off of the roadway onto the shoulder. When stopped, Kinneen admitted that he had consumed about four beers in a bar near Fairbanks. In addition, four field sobriety tests indicated that he was intoxicated; he could not follow directions, and his balance was so bad that the trooper stopped one of the tests. Finally, the DataMaster showed that Kinneen's blood alcohol content was .189 percent.
Because the State's evidence was strong, and because the reference to Kinneen declining the independent test was brief, we conclude that any potential error in admitting that evidence was harmless beyond a reasonable doubt; that is, even if Judge Funk erred, there was no reasonable possibility that the error affected the result of the trial. Kinneen's request for a mistrial
See Smithart v. State, 988 P.2d 583, 589 (Alaska 1999).
Kinneen next claims that he was entitled to a mistrial because Trooper Nelson testified during cross-examination that he had arrested Kinneen for a felony.
Kinneen had moved to bifurcate the trial so that the jury would first decide whether Kinneen was guilty of driving while under the influence and then decide whether he had the requisite prior convictions. Kinneen said that he wanted to ensure "that the evidence of his prior DWI convictions does not prejudice the jury in reaching a decision about whether [he] had committed the current charge."
Despite this, Kinneen told the jury during voir dire that he was facing a felony charge. And when Trooper Nelson stated that he had arrested Kinneen for a felony, it was in response to Kinneen's questioning.
Kinneen's attorney asked Nelson why he took Kinneen to Clear Air Station instead of Nenana for a breath test. Trooper Nelson responded that he did not have the access code to get into the trooper post at Nenana. Nelson explained that it was about the same distance to Clear as it was to Nenana, but for him to get into the trooper post, he would have had to wake somebody up. Kinneen's attorney then pointed out that Nelson's reasoning was flaw ed because after the breath test, he drove Kinneen past Nenana while taking him to Fairbanks. In response, Nelson explained that when he had arrested Kinneen, he thought that he could release Kinneen on his own recognizance, but realized that he could not do so when he discovered that the offense was a felony. Kinneen then asked for a mistrial.
Kinneen's attorney conceded that he had already informed the jury during voir dire that the case involved a felony. He said, "I realize I previously used the `F' word in the courtroom, [that] being felony, but we're not supposed to use — I guess I'd move for a mistrial at this point." This was the only reason he gave for a mistrial. He did not ask for a cautionary instruction, explaining that he thought the "error [was] so pervasive" that an instruction could not cure it. In short, he wanted a mistrial solely because Trooper Nelson had said that Kinneen had been arrested for a felony. The State pointed out that the trooper's answer was responsive to Kinneen's questioning, and noted that the jurors had not heard why the charge was a felony, or anything about Kinneen's background that was "so prejudicial . . . that it warrant[ed] a mistrial."
Judge Funk agreed with the State. He said that the jury did not know why the charge was a felony, nor had they heard that Kinneen had any prior offenses or convictions. He also said that he did not think the jury knew what the reference to "felony" meant. Judge Funk said that he could caution the jury that it was not to consider the level of punishment, but he thought it best to say nothing more about the testimony. Kinneen did not ask for a limiting instruction; instead, he maintained that a mistrial was the only remedy. Judge Funk rejected the request for a mistrial, and gave no cautionary instruction.
On appeal, Kinneen claims that Judge Funk "recognized the futility of a curative or cautionary instruction [because any] instruction would only highlight the officer's improper testimony." But as Kinneen said when the issue arose during voir dire, the purpose of bifurcating the trial was not to hide the fact that Kinneen was on trial for a felony, but to prevent the jury from hearing evidence of Kinneen's other DWI convictions.
The trial court is "vested with broad discretion to determine whether a mistrial should be granted." When reviewing the denial of a motion for a mistrial, this court normally defers to the trial judge because the judge "has the opportunity to hear the tainted evidence as it is presented and to observe the impact it has on the jury."
See Brown v. State, 693 P.2d 324, 327 (Alaska App. 1984).
Id.
Considering the circumstances in Kinneen's case, Judge Funk did not abuse his discretion when he ruled that a mistrial was not warranted based on Nelson's passing reference to the fact that the charge was a felony. Kinneen had already informed the jury that he was facing a felony charge. Additionally, part of Kinneen's trial strategy was to emphasize to the jury that the case was serious. Also, the jury was not told that Kinneen had prior DWI convictions, or that he had any other prior convictions. Trooper Nelson's comment did not provide any information about why this was a felony case, nor was there any further comment during trial or during the parties' summations about Kinneen's prior criminal history.
The circumstances of Kinneen's case do not reach those in Preston v. State. During Preston's trial, a state witness — despite a protective order precluding introduction of Preston's prior conviction and her "resultant probationary status" — testified that he had found the property stolen in the burglary "whatever day it was that [Preston's] probation officer came out." Preston moved for a mistrial but the superior court denied the motion. On appeal, the supreme court affirmed. The supreme court held that the "simple reference at trial to Preston's probation" was not a substantial violation of the protective order. The supreme court explained that the violation appeared unintentional, and that the "mention of Preston's probationary status neither informed the jury of the substance of the underlying conviction nor so prejudiced the defense as to demand a mistrial or a finding that the trial court abused its discretion in ruling on the motion."
615 P.2d 594 (Alaska 1980).
Id. at 603.
Id.
Id.
Id. at 604.
Id.
In Kinneen's case, the trooper described Kinneen's charge as a felony in reasonable response to Kinneen's questioning and the topic was not barred by a protective order. Furthermore, the fact that the charge was a felony did not directly imply that Kinneen had any prior convictions. We conclude that Judge Funk did not abuse his discretion when he denied Kinneen's motion.
See also Allen v. State, 51 P.3d 949, 954-55 (Alaska A pp. 2002) (no mistrial required when defense witness, in violation of a protective order, volunteered on cross-examination that he had last spoken with Allen while they were in jail).
Kinneen also claims that the testimony was improper because Nelson's testimony that Kinneen could not be released on his own recognizance "suggested that Kinneen was so dangerous that, by law, he was required to be arrested for the offense." But Kinneen did not tell Judge Funk that this was a reason to declare a mistrial. On appeal, Kinneen cites no authority supporting this claim, nor does he explain how Nelson's comment that Kinneen would not be released on his own recognizance amounted to plain error. Because he did not preserve this claim of error at trial, and makes no argument that plain error occurred, we do not address this claim. Conclusion
See Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988) (holding that "[a]rguments not raised in the trial court are waived and will not be considered on appeal, except to the extent that plain error has been committed.)".
The judgment of the superior court is AFFIRMED.