Opinion
Court of Appeals No. A-11792 No. 6324
05-04-2016
ALLEN LLOYD McCARTY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Paul D. Stockler, Anchorage, for the Appellant. Carole A. Holley, Assistant Attorney General, Office of Special Prosecutions, 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. 3SW-12-360 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Seward, George P. Peck, Magistrate Judge. Appearances: Paul D. Stockler, Anchorage, for the Appellant. Carole A. Holley, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. Judge MANNHEIMER.
Allen Lloyd McCarty appeals his convictions for three class A misdemeanors: polluting state waters, unlawfully discharging petroleum into state waters, and failing to report the unlawful discharge of petroleum. These convictions were based on evidence that (1) there was an oil spill surrounding his vessel, and (2) the oil in this spill was tested and was revealed to be molecularly identical to the oil found in the vessel's bilge.
AS 46.03.710, AS 46.03.740, and AS 46.03.755, respectively.
The molecular identity of the two oil samples (the sample from the oil spill, and the sample from the vessel's bilge) was established primarily through the testimony of the supervising chemist at the United States Coast Guard Marine Safety Laboratory, Dr. Wayne Gronlund. In this appeal, McCarty argues that the district court violated his constitutional right of confrontation when the court allowed Dr. Gronlund to testify about this matter. McCarty contends that Dr. Gronlund was barred from testifying about the test results because he did not personally run the tests on the oil samples. (The tests were run by chemists who worked for Gronlund at the laboratory.)
As we explain in this opinion, we conclude that Dr. Gronlund's testimony did not violate McCarty's right of confrontation. But to the extent Dr. Gronlund's testimony may have presented constitutional concerns, the error was invited. McCarty's attorney did not object to Dr. Gronlund's testimony on this subject. Indeed, the defense attorney expressly told the trial judge that Dr. Gronlund should be allowed to testify about the test results.
McCarty also challenges various aspects of the testimony given at his trial by Coast Guard Petty Officer Francis Schiano. For the reasons explained here, we conclude that some portions of the challenged testimony were properly admitted, and that the remaining portions were harmless.
We therefore affirm McCarty's convictions.
How McCarty's case came to the attention of the authorities
In January 2012, employees at the Seward Boat Harbor noticed that the M/V Dutch Harbor was listing to its side. A harbor employee contacted McCarty, who was the "boat watch" for the Dutch Harbor. This employee informed McCarty of the list and asked him to correct it.
On January 18th, boat harbor employees observed that the Dutch Harbor was listing worse than before. But on January 19th, McCarty visited the harbor master's office and reported that nothing was wrong with the vessel.
The following day (January 20th), harbor employees checked again on the Dutch Harbor. The weather was extremely cold — so cold that the water in the harbor was freezing, and the Dutch Harbor was surrounded with ice.
The harbor employees saw that the Dutch Harbor's list had been corrected. But they also saw that the vessel was floating noticeably higher in the water than it had been earlier in the week. And the harbor employees saw that the Dutch Harbor was now surrounded by a circle of ice — and that this circle was filled with oil.
When McCarty was contacted about this oil spill, he declared that he was not responsible for the oil, and that it must have come from some other source.
The harbor employees were skeptical of McCarty's denial. Although it is normally difficult or impossible to trace a harbor oil spill to a particular vessel (because, normally, the oil soon mixes with the harbor water and is dispersed by the tides), the Dutch Harbor presented an unusual case: the ice surrounding the vessel prevented the oil from dispersing.
The harbor employees reported the spill to the Alaska Department of Environmental Conservation and to the United States Coast Guard. Two days later, two Coast Guard petty officers arrived to investigate. The Dutch Harbor was still surrounded by ice, and the spilled oil was still contained in a circle around the vessel. The petty officers found no oil in the water around any of the other nearby boats.
The Coast Guard officers took a sample of the oily water contained in the Dutch Harbor's bilge, a sample of the oil surrounding the vessel, and a sample of clean water from the harbor. These three samples were then sent to the United States Coast Guard Marine Safety Laboratory for testing.
At the Coast Guard laboratory, these samples were subjected to two types of analysis: gas chromatography, and gas chromatography-mass spectrometry. The results of these tests showed that the oil in the Dutch Harbor's bilge matched the chemical composition of the oil spill that surrounded the vessel.
McCarty's challenge to Dr. Wayne Gronlund's testimony that the chemical composition of the oil samples matched
At McCarty's trial, the State presented the testimony of Dr. Wayne Gronlund, the manager and supervising chemist at the United States Coast Guard Marine Safety Laboratory. Dr. Gronlund described the Coast Guard laboratory and its testing procedures, and he explained his analysis of the test results in McCarty's case. Based on these test results, Dr. Gronlund concluded that the oil in the bilge water taken from the M/V Dutch Harbor matched the oil found in the spill that surrounded the vessel.
Dr. Gronlund brought with him the printed-out lab report relating to the testing of the oil samples. McCarty's attorney objected to the admission of the report on hearsay grounds, but he did not object to Dr. Gronlund's testimony describing the results of the laboratory testing. In fact, the defense attorney affirmatively told the trial judge that it was proper for Dr. Gronlund "[to] testify as to the results [of the testing]", so long as "the reports themselves don't come in." The defense attorney repeated this position just a few minutes later.
In the end, the lab report was never admitted at McCarty's trial, although several pertinent pages of the lab report were displayed to the jury during Dr. Gronlund's testimony.
Although McCarty's attorney expressly told the trial judge that it was proper for Dr. Gronlund to testify about the laboratory's test results, McCarty (represented by the same attorney) now contends that this testimony violated his right of confrontation. More specifically, McCarty asserts that Dr. Gronlund's testimony regarding the test results was prohibited by the Sixth Amendment because Dr. Gronlund did not personally run the oil samples through the gas chromatograph and the gas chromatograph-mass spectrometer.
As we have already explained, McCarty's attorney never raised a confrontation clause objection to Dr. Gronlund's testimony at trial. The defense attorney objected (on hearsay grounds) to the introduction of the written lab report, but the attorney repeatedly told the trial judge that it was proper for Dr. Gronlund to testify about the opinions or conclusions he formed based on the laboratory test results.
Because McCarty's attorney did not object to Dr. Gronlund's testimony, he must now show that the admission of this testimony was plain error. But a claim of plain error fails if the record of the trial court proceedings affirmatively shows that the party's attorney made a tactical decision to refrain from objecting to the action that is challenged on appeal.
Moreno v. State, 341 P.3d 1134, 1142 (Alaska 2015) (a claim of plain error fails if it is "obvious from the [trial court] record on its face ... (1) that counsel had an obvious awareness or knowledge of the error, and (2) that counsel made an intentional or tactical decision not to object").
Here, McCarty's attorney expressly (and repeatedly) told the trial judge that Dr. Gronlund's testimony was admissible — while, at the same time, objecting to the introduction of the related laboratory report on hearsay grounds. This record affirmatively demonstrates that McCarty's attorney made a conscious decision not to object to Dr. Gronlund's testimony.
This tactical decision means that McCarty's claim of plain error fails unless the existing record manifestly demonstrates that the defense attorney's decision was incompetent — which it does not. The defense attorney's handling of this matter was not manifestly incompetent because there was no obvious error in admitting Dr. Gronlund's testimony.
In his testimony, Dr. Gronlund described the process of testing the oil samples with a gas chromatograph and a gas chromatograph-mass spectrometer. From Dr. Gronlund's testimony, it appears that this testing process produces graphs or graphic images — and that the "peaks" in these graphs or graphic images indicate the presence of various identifiable molecules. Someone trained in the field then had to visually compare and analyze these images to see if the molecular content of the two samples matched.
When Dr. Gronlund testified about the test results from the two samples, he described his conclusions as representing his own analysis — "my analysis of the [testing] data" — and he walked the jury through his personal reading of the graphs produced by the testing process.
In Vann v. State, 229 P.3d 197 (Alaska App. 2010), this Court addressed the question of whether an expert's testimony violates the confrontation clause if the expert relies on data that was generated by tests performed by someone else. We concluded that the crucial question is whether the expert is "simply a conduit for an absent witness's analysis" (in which case, their testimony violates the confrontation clause), or whether instead the expert "offers their own analysis, based in part on test data obtained from other people" (in which case, the confrontation clause is satisfied). Id. at 206.
The record in McCarty's case shows that Dr. Gronlund performed his own analysis of the test results. Thus, under Vann, his testimony did not violate the confrontation clause.
On appeal, McCarty argues that Vann's confrontation clause analysis is inconsistent with the United States Supreme Court's holding in Bullcoming v. New Mexico, a confrontation clause case decided in 2011. But the Supreme Court's latest decision in this area — Williams v. Illinois, 567 U.S. ___, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012) — dealt specifically with the problem of an expert witness's reliance on data generated by someone else's testing, and the court found no violation of the confrontation clause.
564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). --------
In Williams, the question was whether, consistent with the confrontation clause, an expert witness could rely on the results of DNA testing performed by another laboratory when the expert evaluated whether the defendant's DNA matched a DNA sample obtained from inside the victim's body. Id., 132 S.Ct. at 2230. The Williams plurality concluded that the expert's testimony did not violate the defendant's right of confrontation. Although the Williams decision presents no unified rationale regarding the proper application of the confrontation clause, we interpret Williams as being at least consistent with the approach that this Court took in Vann. In particular, see Williams, 132 S.Ct. at 2243-45.
For these reasons, we uphold the district court's decision to admit Dr. Gronlund's testimony.
And for these same reasons, we reject McCarty's related argument that the trial judge committed error by allowing one of the Coast Guard petty officers (Francis Schiano) to describe the results of the laboratory testing before Dr. Gronlund was called as a witness. As the trial judge noted at the time, even if the petty officer's testimony was technically inadmissible or premature, there would be no prejudice to McCarty if Dr. Gronlund later gave his own testimony about the testing results — which he did.
McCarty's other objections to the testimony offered by Petty Officer Schiano
Petty Officer Francis Schiano was one of the two coast guard officers who investigated the M/V Dutch Harbor and its oil spill. Schiano was a marine science technician whose primary duties were responding to incidents of pollution and acting as the federal on-scene representative.
As part of his investigation into the incident involving the Dutch Harbor, Schiano prepared a case report. This case report included a description of the test results obtained by the Coast Guard Marine Safety Lab (i.e., that the oil in the vessel's bilge matched the oil that surrounded the vessel).
Schiano testified that he had sent hundreds of samples to the Coast Guard lab in the past, but this was only the third case where testing showed a molecular match. Schiano further testified that this match was one of the primary reasons he decided to refer the incident to the Coast Guard Intelligence Service for criminal investigation.
McCarty's attorney raised a number of objections to Schiano's testimony, but the defense attorney's main objection was that Schiano was offering expert testimony and the State had failed to designate Schiano as an expert witness during pre-trial discovery.
The trial judge voiced some doubt as to whether Schiano was actually offering expert testimony, but the judge ruled that even if Schiano's testimony qualified as expert testimony, McCarty's remedy would be a continuance — not exclusion of Schiano's testimony. McCarty's attorney disagreed: he asserted that continuances were never an appropriate remedy in criminal cases, and he rejected the idea of a continuance in McCarty's case.
The defense attorney was wrong on this point of law. The Alaska Supreme Court has declared that the normal remedy for a discovery violation is a continuance or, if the violation comes to light during trial and the defendant is prejudiced, a mistrial. See Des Jardins v. State, 551 P.2d 181, 187 (Alaska 1976), and Bostic v. State, 805 P.2d 344, 347-48 (Alaska 1991).
McCarty also raises one other claim related to Schiano's testimony: he argues that the trial judge erred by allowing Schiano to testify that, among the hundreds of times he had submitted oil samples for laboratory testing, the samples had matched in only three instances.
As soon as the prosecutor asked Schiano how many times he had seen oil spill matches, McCarty's attorney objected that Schiano's answer would lack any relevance. The trial judge overruled the defense attorney's objection without comment, and Schiano then answered, "Three."
On appeal, McCarty argues that Schiano's answer to the prosecutor's question was improper because (1) Schiano's answer constituted "expert" testimony that had not been announced in advance, (2) the State did not give McCarty pre-trial notice that it intended to have Schiano testify on this point, and (3) Schiano's testimony had no relevance to the jury's resolution of the issues being litigated, other than to improperly vouch for the results obtained by the Coast Guard laboratory.
We agree in part with McCarty's third argument. The fact that Schiano had seen chemical matches only three times in the past bore only questionable relevance to the issue of whether the Coast Guard laboratory had accurately identified a match in McCarty's case. But as we are about to explain, this whole matter was clarified, and the irrelevance of Schiano's answer was exposed, during voir dire testimony that Dr. Gronlund gave later in the trial.
While Dr. Gronlund was on the stand, McCarty's attorney asked the district court for permission to conduct a voir dire examination of Dr. Gronlund (outside the presence of the jury) to see if the defense attorney could lay a foundation for challenging Gronlund's testimony under Vann. During this voir dire examination, the defense attorney asked Dr. Gronlund how common it was that oil samples would match.
In response to the defense attorney's question, Dr. Gronlund gave a lengthy answer in which he identified all the different variables that would affect the likelihood or unlikelihood of finding a match. Gronlund explained that the number of matches one might expect to observe had nothing to do with the accuracy of the laboratory testing — and that the most significant variable was the set of circumstances under which the samples were collected in any particular case.
In other words, during this voir dire examination, the defense attorney elicited the very information he needed to squelch any misleading inference that the jury might draw from Schiano's testimony that matches were rare.
But having elicited this helpful information from Dr. Gronlund, the defense attorney made no attempt to use it — no attempt to have Dr. Gronlund repeat this clarifying explanation for the jury. Instead, the defense attorney waited until this appeal to argue that the jurors would necessarily have interpreted Schiano's answer in this prejudicial manner (i.e., as an improper vouching for the accuracy of the Coast Guard laboratory test results).
If McCarty's attorney thought that the jurors might interpret Schiano's answer in this fashion, he certainly had the means to solve this problem — but he refrained from doing anything. Moreover, we have reviewed the record as a whole, and we conclude that it is extremely unlikely that Schiano's challenged testimony affected the jury's verdict in any appreciable way.
McCarty's claim of cumulative error
Finally, McCarty claims that the purported errors we have discussed already, in combination with several other alleged errors, were cumulatively so prejudicial as to require reversal of McCarty's convictions.
We have already addressed McCarty's main claims of error. Even viewed cumulatively, they do not justify reversing McCarty's convictions.
With respect to the several other alleged errors that McCarty mentions for the first time in the "cumulative error" section of his brief, we reject these claims of error as inadequately briefed. Each of these additional claims of error is mentioned in a single, conclusory sentence. "Where a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal." Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990).
Conclusion
The judgement of the district court is AFFIRMED.