Opinion
Court of Appeals No. A-10298.
October 26, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge, Trial Court No. 3AN-06-9827 CR.
Christine S. Schleuss, Law Office of Christine Schleuss, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
In a jury trial conducted by Superior Court Judge Michael Spaan, Adam Milazzo was convicted of murder in the second degree, one count of assault in the third degree, one count of assault in the fourth degree, and other offenses not relevant to this appeal. The convictions arose from an incident where Milazzo, driving while intoxicated, fled from the police, struck tw o patrol cars, and ultimately crashed into a truck driven by Gene Burch, who died from injuries received in the collision.
AS 11.41.110(a)(1).
AS 11.41.220(a)(1)(A).
AS 11.41.230(a)(1).
On appeal, Milazzo first argues that there was insufficient evidence for the jury to convict him of murder in the second degree on the theory that he either intended to cause serious physical injury or knew that his conduct was substantially certain to cause death or serious physical injury. We conclude that there was sufficient evidence to support the jury's verdict.
Milazzo also argues that Judge Spaan erred in refusing to allow him to introduce his medical records to show the extent of Milazzo's injuries which resulted from the collision. We conclude that Judge Spaan did not abuse his discretion in determining that the probative value of this evidence was outweighed by the likelihood that introduction of this evidence would confuse the issues and waste time.
Milazzo also argues that there was a fatal variance between the evidence that the State presented at grand jury in support of the charge that he assaulted Anchorage Police Sergeant Roy LeBlanc and the evidence that the State presented in support of that charge at trial. Milazzo never objected on this ground in the trial court and, therefore, to prevail, must establish plain error. We do not find plain error. Factual and procedural background
On July 13, 2006, at approximately 11:30 p.m., Sergeant LeBlanc was traveling east on Northern Lights Boulevard, just west of Lake Otis. LeBlanc saw Milazzo's Ford Probe being driven recklessly. LeBlanc decided to stop Milazzo and activated his emergency lights and siren. Milazzo kept driving on Northern Lights, passing several places where he could have stopped.
Milazzo finally pulled into a dead end street. LeBlanc followed him. Anchorage Police Officer Norman Robison also turned into the street, backing up LeBlanc. But Milazzo did not stop. Instead, he started to make a slow turn. LeBlanc interpreted this action as dangerous because he thought that Milazzo might be maneuvering to attack him with a gun. According to LeBlanc's testimony, Milazzo "gunned" his engine, "rammed" the front corner of LeBlanc's patrol car, and headed toward Robison.
Robison saw that Milazzo had hit LeBlanc's patrol vehicle and concluded that Milazzo had no intention of stopping. Robison tried to position his patrol car to block Milazzo from getting back on Northern Lights. Milazzo accelerated toward Robison, struck the right front of Robison's patrol car, got by it, and went back onto Northern Lights.
Milazzo accelerated east on Northern Lights. Other drivers on the road estimated Milazzo's speed at between eighty and ninety miles an hour. Robison pursued with his lights flashing and siren activated. Robison saw that Milazzo was heading toward a red light at the Northern Lights and Bragaw intersection. He saw three cars stopping for the red light and concluded that continuing to pursue Milazzo was not worth the risk to public safety. He therefore stopped his pursuit and turned off his lights and siren. He saw Milazzo go through the red light at Bragaw.
Faith Czopec was driving east on Northern Lights, approaching the intersection at Boniface. She saw and heard Milazzo's car coming up rapidly behind her. To protect herself and her passengers, she got out of Milazzo's path by going into the left-hand turn lane, although she was not planning to turn left. She saw that Milazzo was not going to stop at the red light and watched Milazzo go through the light and smash into a pickup truck that was crossing Northern Lights northbound on Boniface.
The truck was driven by Gene Burch, who died from the injuries he received in the collision. Milazzo was also seriously injured in the collision and was taken to the hospital. Testing established that Milazzo's blood alcohol content was 0.19 percent.
Anchorage Police Detective Richard Steiding testified as an expert in the investigation of the traffic accident. He estimated that, just prior to the collision, Milazzo was traveling at eighty-four to ninety-six miles per hour and Burch was traveling at approximately eighteen to nineteen miles per hour. From his investigation, which included an examination of the scene of the collision for signs that either driver had taken any evasive action, he concluded that neither driver attempted to brake or take any other emergency action to avoid the collision.
The jury convicted Milazzo of one count of murder in the second degree, two counts of assault, one count of eluding a police officer in the first degree, and one count of driving under the influence.
The State presented sufficient evidence to convict Milazzo of murder in the second degree
Milazzo was convicted of murder in the second degree under AS 11.41.110(a)(1). That statute defines murder in the second degree as causing the death of any person by engaging in conduct either "with intent to cause serious physical injury to another person" or "knowing that the conduct is substantially certain to cause death or serious physical injury."
AS 11.41.110(a)(1).
In determining whether evidence is sufficient to support a conviction, this court evaluates the evidence and the inferences from the evidence in the light most favorable to upholding the jury's verdict. "The evidence is sufficient if it supports `a conclusion by a reasonable mind that there was no reasonable doubt about the defendant's guilt.'"
State v. McDonald, 872 P.2d 627, 652 (Alaska App. 1994).
Id. at 652 (quoting Alam v. State, 776 P.2d 345, 347 (Alaska App. 1989)).
The State's main argument at trial was that Milazzo knowingly engaged in conduct that was "substantially certain to cause death or serious physical injury." Under Alaska law, "a person who is unaware of conduct or a circumstance of which the person would have been aware had that person not been intoxicated acts knowingly with respect to that conduct or circumstance[.]" In other words, in determining whether Milazzo acted "knowingly," the jury was required to disregard his intoxication.
AS 11.81.900(a)(2).
A reasonable jury could have concluded that Milazzo knew that his conduct was "substantially certain to cause death or serious physical injury." The evidence shows that Milazzo attempted to elude the police, going so far as to strike two patrol cars before racing down Northern Lights. He raced down Northern Lights at speeds estimated between eighty to ninety miles per hour. He then ran through the red light at Bragaw. At this point, realizing that the pursuit was too dangerous, Officer Robison stopped his pursuit. But Milazzo kept going at a high rate of speed, creating an obvious danger to other cars on the road. He then ran through the red light at Boniface, striking Gene Burch at speeds estimated between eighty-four to ninety-six miles per hour. A reasonable jury evaluating this evidence could conclude that, when he raced his vehicle into the intersection against a red light while Burch was crossing the intersection, Milazzo knew that his conduct was "substantially certain to cause death or serious physical injury."
Judge Spaan did not err in refusing to allow Milazzo to introduce his medical records
Milazzo suffered severe injuries in the collision, including a broken pelvis, multiple lacerations, and bone fractures. He was discharged from the hospital on August 31, 2006, over one and a half months after the collision. Milazzo sought to introduce his medical records, which consisted of some fifty pages describing his injuries and rehabilitation. Milazzo argued that the records were relevant to rebut the State's theory that Milazzo knew that his conduct carried a substantial certainty of death or serious physical injury. He argued that no one would intentionally put himself in a situation where he would receive such injuries.
A trial judge may exclude relevant evidence "if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, . . . or by considerations of . . . needless presentation of cumulative evidence." In this case, the probative value of Milazzo's medical records was marginal. Other evidence presented at trial showed that Milazzo was seriously injured in the collision. Furthermore, it had to be obvious to the jury that Milazzo faced a substantial chance of serious physical injury or death when he rammed into Gene Burch's truck going approximately eighty-four to ninety-six miles per hour. Therefore, the evidence presented at trial was sufficient for Milazzo to argue that his actions also placed him at substantial risk of death or serious physical injury. He has not shown how introducing the medical records was important for making this showing.
Judge Spaan could reasonably conclude that the medical records' marginal relevance was outweighed by the danger that the records would persuade the jury to base its verdict on sympathy rather than on a rational evaluation of the evidence. We conclude that Judge Spaan did not abuse his discretion in refusing to allow Milazzo to introduce the medical records.
There was not a fatal variance between the assault charge in the indictment and the evidence presented at trial
Milazzo argues that there was a fatal variance between the evidence that the State presented in support of the assault against Sergeant LeBlanc charged in count II of the indictment and the evidence which the State presented at trial. He argues that he was convicted of a charge that was different from the charge for which he was indicted. He acknowledges that he did not raise this issue in the trial court, but he argues that this variance constitutes plain error.
See generally Baker v. State, 22 P.3d 493, 501 (Alaska App. 2001) (discussing plain error review).
The Alaska Supreme Court set out the standard of review in Bowers v. State :
2 P.3d 1215 (Alaska 2000).
A claim that the indictment was [improperly] amended [at trial] is a question of law subject to de novo review. Alaska Rule of Criminal Procedure 7(e) permits the amendment of indictments so long as the amendment does not charge an additional or different offense, and the defendant is not prejudiced. A conviction for an offense different from the one charged is a fatal variance and requires reversal. . . .
Indictments furnish accuseds with descriptions of the charges against them so they can prepare a defense and claim double jeopardy if they are again charged with the same offense. An indictment's language, read in conjunction with the grand jury record, determines the charge for which the defendant is indicted.
Id. at 1217-18 (citations and internal quotations omitted).
Count II of the indictment charged Milazzo with recklessly placing Sergeant LeBlanc in fear of imminent serious physical injury by means of a dangerous instrument. Sergeant LeBlanc did not testify at grand jury, but Officer Robison testified that he saw Milazzo "accelerate and then strike the left front corner of Sergeant LeBlanc's patrol car." Milazzo then turned his car toward Robison's patrol car. Robison stated that he had already seen Milazzo strike one patrol car and was concerned that he could be seriously injured by Milazzo's car.
At trial, LeBlanc testified that he had a different concern when Milazzo tried to elude him after they turned into the dead end street. From Milazzo's actions, LeBlanc became concerned that Milazzo might be setting up his car to attack him with a gun — although he conceded that he never saw Milazzo with a gun. LeBlanc thought he was facing some sort of threat, so he put his car in park and prepared to jump out of the car. At that point, Milazzo "gunned" his engine and "rammed" the front corner of LeBlanc's patrol car.
Officer Robison testified that, after seeing Milazzo collide with LeBlanc's patrol car, he saw Milazzo heading toward him. He testified that he "realized immediately [that he] was in a dangerous situation." He thought that he was "potentially . . . in a fight for [his] life." So the testimony at trial supported a conclusion that, based upon Milazzo's erratic actions, both officers were concerned that Milazzo was going to attack them in some manner. Although the officers testified at trial that, because of Milazzo's actions, they had concerns that he might use a gun or other weapon to attack them, the State's argument to the jury was ultimately based upon its contention that Milazzo had placed the officers in fear of serious physical injury by means of a dangerous instrument when he struck their patrol cars with his car.
Milazzo admits that he never claimed that there was a fatal variance at the trial court. Instead, he argued that the evidence was insufficient to support the convictions for assault in the third degree. He pointed out that there was no evidence that Milazzo had a gun; therefore, there was no evidence to support a conclusion that the officers had been placed in fear by a gun. He went on to argue that the evidence was insufficient to support a conclusion that the officers had been afraid when Milazzo hit their patrol cars with his car. It seems clear from Milazzo's argument at trial that the indictment furnished him with a sufficient description of the charges against him so that he knew what the charges were and so he could prepare a defense. We therefore reject his claim that there was a fatal variance between the offense charged in the indictment and the offense for which he was convicted at trial. Conclusion
The judgment of the superior court is AFFIRMED.