Opinion
Court of Appeals No. A-10431.
August 17, 2011.
Appeal from the District Court, Third Judicial District, Unalaska, Dawson Williams, Magistrate, Trial Court No. 3UN-07-306 CR.
Paul Malin, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Emma E. Haddix, Assistant District Attorney, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
John M. Roche appeals from his conviction for driving under the influence. On appeal, Roche argues the following: (1) the trial court erred in admitting the breath test result without an adequate foundation; (2) the trial court erred in limiting his cross-examination of the officer who administered the breath test; and (3) the trial court erred in instructing the jury to presume the breath test result was valid. For the reasons that follow, we affirm Roche's conviction.
On December 2, 2007, Unalaska Police Officer Kyle Plastino stopped Roche for driving erratically. After investigation, Officer Plastino arrested Roche for driving under the influence and administered the Datamaster test. The Datamaster showed that Roche's breath alcohol content was .14 percent. Roche was tried before Magistrate Dawson Williams, and the jury convicted him of driving under the influence.
Admissibility of the Breath Test Result
The morning of trial, Roche objected to the admission of the breath test result, arguing the State had not filed a notice of intent to call an expert witness and, without an expert to explain the science underlying the Datamaster, the test result was inadmissible. Magistrate Williams denied Roche's motion, concluding the test was admissible if the State met the statutory foundational requirements.
See AS 28.35.033(d).
On appeal, Roche claims the trial court erred in admitting the breath test result where no expert explained the science of the Datamaster. He argues that the court should have required the State to lay a foundation for the breath test result by showing the test result met the standard for the admission of scientific evidence under Daubert v. Merrell Dow Pharmaceuticals and State v. Coon.
509 U.S. 579 (1993).
974 P.2d 386 (Alaska 1999) (adopting the federal Daubert standard for evaluating the admissibility of scientific evidence).
The legislature provided the foundational requirements for the admissibility of a chemical analysis of breath in AS 28.35.033(d):
To be considered valid under the provisions of this section the chemical analysis of the person's breath or blood shall have been performed according to methods approved by the Department of Public Safety. The Department of Public Safety is authorized to approve satisfactory techniques, methods, and standards of training necessary to ascertain the qualifications of individuals to conduct the analysis. If it is established at trial that a chemical analysis of breath or blood was performed according to approved methods by a person trained according to techniques, methods, and standards of training approved by the Department of Public Safety, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary.
Given the language of this statute, it was not an abuse of discretion for Magistrate Williams to presume the Datamaster result was admissible under Alaska Rule of Evidence 702 if the State satisfied the statutory foundation. If Roche wanted to attack the scientific methods utilized in the construction or operation of the Datamaster, it was incumbent on him to present any relevant scientific evidence.
See Thayer v. Anchorage, 686 P.2d 721, 726-27 (Alaska App. 1984).
Roche also claims the trial court erred in finding the State established the foundational requirements of AS 28.35.033(d), specifically that the Alaska Department of Public Safety had approved the training of the officer w ho administered the breath test. But Roche did not raise this objection when the evidence was offered. When the State moved to introduce the breath test result, Roche stated, "No objection."
It was not until the close of the State's case that Roche objected to the foundation underlying the breath test result on the ground that the State had not proved the administering officer's training had been approved by the Department of Public Safety. The court ruled the officer's testimony established that he was trained according to methods approved by the Department of Public Safety and that therefore the State met the statutory foundational requirements.
The opposing party must make a contemporaneous objection to preserve an issue regarding the adequacy of an evidentiary foundation. Roche has not preserved his argument concerning the statutory foundation for the breath test result because he did not raise any objection when the State moved to admit this evidence.
See Houston-Hult v. State, 843 P.2d 1262, 1265 (Alaska App. 1992).
Even if Roche had properly preserved this claim, it would not be successful. Magistrate Williams ruled the officer established that he was trained according to methods approved by the Department of Public Safety and therefore the State met the statutory foundational requirements. Roche does not mention this ruling or discuss why he thinks it was an abuse of discretion.
See Kingery v. Barrett, 249 P.3d 275, 281 (Alaska 2011) ("The superior court's evidentiary rulings are reviewed for abuse of discretion. We leave questions of admissibility to the sound discretion of the trial court, reversing only if, upon review of the record as a whole, we are left with a definite and firm conviction that the trial court erred in its ruling and the error affected the substantial rights of a party." (footnote omitted) (internal quotation marks omitted)).
The trial court's ruling is supported by evidence in the record. As required by AS 28.35.033(d) and 13 AAC 63.050, Officer Plastino took and passed an eight-hour breath test operator course. His certification was valid for three years. Magistrate Williams observed that the certification card carried a state seal and signature. Based on this record, the trial court could reasonably conclude the officer's training satisfied the foundational requirements.
The trial court did not err in admitting the breath test result.
The Limitation on Cross-examination of the Officer Who Administered the Test
At trial, Roche's attorney cross-examined Officer Plastino regarding his administration of the Datamaster test to Roche, and regarding the factors that might possibly affect the accuracy of a Datamaster test result. When Plastino was asked whether he understood the inner working of the Datamaster, he replied that he did not have "a clue" about how the Datamaster worked. Plastino explained that his job was to administer the test, and that he was concerned with the practical operation of the instrument, and not the scientific principles or methodology by which the instrument analyzes the alcohol content of a breath sample.
Plastino stated that he was aware of one thing — radio interference — that could affect the accuracy of a Datamaster test result, and so he turned off his radio before administering the Datamaster to Roche.
Roche's attorney continued to question Plastino about a number of factors which, the defense attorney implied, might affect the test result. Specifically, the defense attorney asked Plastino whether he was aware that the test result could be affected if the test subject had diabetes, and whether he was aware that such things as the test subject's blood sugar level or the subject's body temperature could affect the accuracy of the test result. In response to these questions, Plastino's answer was the same: he did not know whether any of those factors could influence a breath test result.
At this point, the prosecutor objected to further questions in this vein. The prosecutor argued that Plastino was not an expert on the working of the Datamaster and (by his own admission) could not answer any of these questions. The prosecutor further argued that the defense attorney, by the manner in which she phrased her questions, was suggesting facts that had no basis in the evidence — i.e., suggesting that these various factors could indeed influence the Datamaster test result, when there was no evidence of this.
Magistrate Williams sustained the prosecutor's objection and instructed the defense attorney to stop asking Plastino further questions along this line. The magistrate concluded that the defense attorney's line of questioning was more likely to confuse the jury than aid it — because Officer Plastino had conceded that he did not know how the instrument functioned, and thus he had no idea whether any of the factors named by the defense attorney might affect the test result. The magistrate told Roche's attorney that, if she wished to conduct further inquiry into how the Datamaster worked and what factors might affect it, she should call a witness who had knowledge of the working of the Datamaster.
In response, the defense attorney indicated she would establish the point she was trying to make through another witness. But the defense attorney did not return to this line of questioning with any other government witness, and she did not call any witnesses on this issue during the defense case.
On appeal, Roche argues that Magistrate Williams's ruling was an impermissible limit on his right to cross-examine the government's witnesses, thus violating his constitutional right to confrontation.
Criminal defendants have a w ell-established right to cross-examine adverse witnesses. "However, it is equally well-established that this right is tempered by the trial judge's broad discretion to reasonably limit cross-examination to prevent harassment, prejudice, confusion of the issues, repetition, or irrelevant questioning from occurring." We review a trial court's ruling regarding the limits of cross-examination for abuse of discretion.
U.S. Const. amend. VI; Alaska Const. art. I, § 11.
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see also Wood v. State, 837 P.2d 743, 746-47 (Alaska App. 1992), cited with approval in Cropley v. State, Mem. Op. J. No. 3949, 1998 WL 906309, at *4 (Alaska App. Dec. 30, 1998).
See Wyatt v. State, 981 P.2d 109, 112 (Alaska 1999); Mustafoski v. State, 954 P.2d 1042, 1048 (Alaska App. 1998).
Given Officer Plastino's testimony that he had no knowledge of how the Datamaster worked, or what factors might affect a test result (other than radio interference), Magistrate Williams could reasonably conclude that further cross-examination along this line would be both pointless and cumulative (in the sense that each additional question would simply elicit the same response: that Plastino lacked the knowledge to answer the question). Moreover, Magistrate Williams could also reasonably conclude that there was a substantial risk that the jury might improperly assume that some evidentiary basis existed for each of the defense attorney's questions. Finally, as we noted above, the defense attorney did not actively object to the magistrate's ruling, but instead declared that she would pursue her line of questioning with another witness.
For these reasons, we conclude that Magistrate Williams did not abuse his discretion when he limited the defense attorney's cross-examination of Officer Plastino on this issue.
The Jury Instruction on the Presumptive Validity of the Test Result
The State requested the court instruct the jury that the breath test result was presumptively valid if the State met the foundational requirements for admissibility. Roche initially objected to giving such an instruction but, as a compromise, he proposed an instruction following the language of AS 28.35.033(d). The court used Roche's proposed language. The trial court instructed the jury that if the State proved the breath test "was performed according to approved methods by a person trained according to techniques, methods, and standards of training approved by the Department of Public Safety, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary."
See AS 28.35.033(d).
Roche now claims Magistrate Williams erred by giving this jury instruction. Because Roche proposed the language the court used in the instruction, his claim must be examined under the invited error doctrine. The doctrine of "invited error" applies "w hen the [trial] court takes [the] erroneous action at the express request of the defendant, and then the defendant urges reversal on that basis on appeal." Invited error is "cause for reversal in the `exceptional situation' in which it is `necessary to preserve the integrity of the judicial process or prevent a miscarriage of justice.'"
Barrett v. State, 772 P.2d 559, 568 n. 10 (Alaska App. 1989).
United States v. Ahmad, 974 F.2d 1163, 1165 (9th Cir. 1992) (quoting Gaum v. Alvarez, 763 F.2d 1036, 1038 (9th Cir. 1985)); see Roderer v. Dash, 233 P.3d 1101, 1113-14 (Alaska 2010); Barrett, 772 P.2d at 568 n. 10.
Alaska Evidence Rule 303(a)(1) prohibits the use of the word "presumption" in this type of instruction. And in Marrone v. State and Navarre v. City and Borough of Juneau, we held that instructions such as the one given in this case could be viewed as a directed verdict against the defendant on an element of the charge.
653 P.2d 672 (Alaska App. 1982).
Mem. Op. J. No. 2091, 1990 WL 10509563 (Alaska App. Sept. 26, 1990).
Marrone, 653 P.2d at 676-77; Navarre, 1990 WL 10509563, at *3-4.
The instruction the trial court gave in this case is faulty because it does not tell the jury the presumption of validity of the breath test result is a rebuttable presumption, and it does not tell the jury the quantum of evidence necessary to rebut the presumption. Presumptions that diminish the State's duty to prove guilt beyond a reasonable doubt are unconstitutional. Thus the instruction the trial court gave in this case was clear error.
See Marrone, 653 P.2d at 676-77; Navarre, 1990 WL 10509563, at *3-4.
Although it was clear error to give the instruction, the error is cause for reversal only if reversal is "`necessary to preserve the integrity of the judicial process or prevent a miscarriage of justice.'" We conclude the error in this case was not obviously prejudicial and therefore does not require reversal of Roche's conviction.
Ahmad, 974 F.2d at 1165; see Barrett, 772 P.2d at 568 n. 10.
This court has repeatedly held that the arguments of the parties can cure flaws in the jury instructions. In the closing arguments, the prosecutor restated the problematic instruction by telling the jury, "The judge is going to read you an instruction that the result is presumed valid if [the officer] follows [the statutorily required] training when he gives that test." But the defense attorney devoted a substantial portion of her argument to describing the reasons the jury should not rely on the breath test result to find Roche was under the influence. We conclude the defense attorney's closing argument adequately informed the jury that the presumption of validity of the breath test result w as a rebuttable presumption. For this reason, we conclude the invited error in the jury instruction does not merit reversal.
Buckwalter v. State, 23 P.3d 81, 87 (Alaska App. 2001) (citing Braun v. State, 911 P.2d 1075, 1081 (Alaska App. 1996); Norris v. State, 857 P.2d 349, 355 (Alaska App. 1993); O'Brannon v. State, 812 P.2d 222, 229 (Alaska App. 1991)).
Conclusion
We AFFIRM the district court's judgment.