Opinion
Court of Appeals No. A-10598 Trial Court No. 4BE-08-129 CR No. 5827
04-11-2012
BRANDON RUSSELL-DURANT, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael R. Smith, Law Office of Michael R. Smith, Portland, Oregon, 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.
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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Fourth Judicial District, Bethel, Marvin Hamilton, Judge.
Appearances: Michael R. Smith, Law Office of Michael R. Smith, Portland, Oregon, 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.
COATS, Chief Judge.
Brandon Russell-Durant was convicted of sexual assault in the second degree for having sexual intercourse with M.W., age 16, while she was incapacitated, perjury for making false statements to a grand jury, and two counts of furnishing alcohol to a minor for furnishing alcohol to M.W. and E.K., age 14. Russell-Durant appeals his convictions for sexual assault in the second degree and perjury, raising several issues. We affirm the convictions.
AS 11.41.420(A)(3).
AS 11.56.200(a).
AS 04.16.051(a).
Factual and procedural background
On December 24, 2006, in Bethel, M.W., age 16, and E.K., age 14, met up with Brandon Russell-Durant and Kyle Mortenson. Russell-Durant and Mortenson obtained whiskey from a bootlegger. M.W. became severely intoxicated sometime between 2:30 and 3:30 in the morning and lost consciousness. Physical evidence and trial testimony established that Russell-Durant, Mortenson, and E.K. all had sexual contact with M.W. that night. M.W. testified that she had no recollection of any of the sexual contact.
Initially, only Mortenson was charged with sexually abusing M.W. and furnishing her with alcohol. Russell-Durant testified at the grand jury proceeding where the State presented the charges against Mortenson. Russell-Durant testified about the events of the night of December 24. He testified that he didn't notice that anyone was drinking, but it appeared that "someone may have drank something." He also testified that he never "saw any bottle of alcohol." Later, after further investigation, the State indicted Russell-Durant for perjury based upon this testimony.
The State entered into an agreement with Mortenson for him to plead no contest to the charges that he furnished alcohol to minors. The State agreed to dismiss the charge of sexual assault in the second degree. For his part, Mortenson agreed to testify against Russell-Durant.
The State charged Russell-Durant with sexual assault in the second degree, perjury, and two counts of furnishing alcohol to a minor. Superior Court Judge Marvin Hamilton presided over Russell-Durant's jury trial.
Why we conclude that Judge Hamilton did not commit plain error by not excusing juror Isaiah Peter
During jury voir dire, prospective juror Isaiah Peter informed the court that Kyle Mortenson, who was going to testify for the State, was his first cousin. Russell-Durant's counsel asked Peter, "Did Kyle Mortenson talk to you about details about the case, about what happened?" Peter replied, "Not too much, just his part about why he was going to trial and stuff." When the attorney asked Peter if Mortenson had told him about Russell-Durant's involvement, Peter replied, "Not really, but I know that (indiscernible) all that." Peter conceded that it would be difficult for him to judge the case based only on what was presented in the courtroom during the trial, but he said that he would do it. He conceded that he would tend to believe Mortenson because he knew him, but he stated that, although it would be difficult to set what he knew aside, he would do it.
After Peter gave these answers, Judge Hamilton asked Russell-Durant's counsel if she was going to challenge Peter for cause. She replied, "I'm not going to challenge." The State then challenged Peter for cause. The State pointed out that Peter was Mortenson's cousin and that Peter knew Russell-Durant personally. Judge Hamilton denied the State's challenge for cause.
On appeal, Russell-Durant argues that Judge Hamilton erred in not questioning Peter further and in denying the State's challenge for cause. Because Russell-Durant did not challenge Peter for cause or request reconsideration of the court's ruling, he has not preserved the claims he now makes on appeal. Accordingly, we only examine Judge Hamilton's decision for plain error. In order to show plain error, an appellant must establish that an error occurred and that the error (1) was not the result of an intelligent waiver or a tactical decision to not object; (2) was obvious; (3) affected the defendant's substantial rights; and (4) was prejudicial.
See Ketzler v. State, 634 P.2d 561, 566 (Alaska App. 1981) (stating that a party waives his claims arising from the alleged unfitness of a juror when he fails to challenge the juror at trial).
Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
Russell-Durant has not established plain error. When Judge Hamilton asked Russell-Durant's attorney whether she wanted to challenge Peter for cause, she specifically declined to do so. Rather, it was the State that challenged Peter for cause. Russell-Durant's attorney made a tactical choice after hearing Peter's answers. From Peter's answers, she had all the information Russell-Durant now relies on for his claim on appeal. Because Russell-Durant's attorney made a tactical choice to not exercise a challenge for cause, Russell-Durant cannot establish plain error.
In a related issue, Russell-Durant argues that Judge Hamilton committed plain error in not acting sua sponte to dismiss Peter as a juror under Alaska Criminal Rule 24(c)(9). That rule states that a juror may be challenged for cause if he is "related within the fourth degree (civil law) of consanguinity or affinity to one of the parties or attorneys." Russell-Durant argues that Mortenson was a constructive party to the case because he was a witness for the State and, thus, Peter was disqualified from jury service because Mortenson was Peter's first cousin.
Russell-Durant's argument on appeal assumes that Criminal Rule 24(c) is self-executing, which appears to be inconsistent with the wording of the rule. Rule 24(c) says, "the parties may challenge any juror for cause," and "[e]very challenge for cause shall be determined by the court." It appears that a trial judge is not required to disqualify a juror under the provisions of Criminal Rule 24(c)(9) unless a party challenges the juror under that rule.
(Emphasis added).
It also appears that Peter was not challengeable under Criminal Rule 24(c)(9). In City of Kotzebue v. Ipalook, the Alaska Supreme Court evaluated whether a party could challenge a relative of a witness for cause under Alaska Civil Rule 47(c)(9), the rule for challenging jurors in civil cases, which was (and remains) substantially similar to Criminal Rule 24(c)(9). In Ipalook, the Supreme Court stated "that relationship to a witness does not fall within any of the enumerated grounds under Civil Rule 47(c) upon which a prospective juror can be challenged for cause." Given this authority from the Alaska Supreme Court, Judge Hamilton did not commit plain error in not dismissing Peter as a juror under Criminal Rule 24(c)(9).
462 P.2d 75 (Alaska 1969).
Id. at 77.
Why we conclude that Judge Hamilton did not commit plain error in allowing expert testimony about M. W.'s blood alcohol level
The State charged that Russell-Durant had sexual intercourse with M.W. while she was incapacitated by alcohol. M.W.'s blood alcohol level was .377 percent approximately nine hours after Russell-Durant had intercourse with her. To provide an estimate of what M.W.'s blood alcohol was at approximately 3:00 a.m. when the intercourse occurred, the State called Jeanne Swartz, a forensic scientist with the State Department of Public Safety, to testify as an expert on retrograde extrapolation. Retrograde extrapolation is the process of estimating a person's blood alcohol level at a particular point in time by working backward from the time that the sample was taken.
E.g., Commonwealth v. Senior, 744 N.E.2d 614, 619 (Mass. 2001).
At trial, Russell-Durant primarily objected to Swartz's qualifications. On appeal, Russell-Durant does not attack Swartz's qualifications, but raises several other issues. He argues that retrograde extrapolation is not a "recognized science." He also argues that Swartz did not consider enough factors in making her calculations and that there was no proof that the hospital followed the proper procedures in obtaining M.W.'s blood sample.
Courts have widely recognized retrograde extrapolation as a valid scientific technique. And, in the absence of an objection, the trial court could reasonably conclude that the blood test taken at the hospital was admissible.
E.g., State v. Burgess, 5 A.3d 911, 916 (Vt. 2010) (recognizing that "retrograde extrapolation is generally considered to meet the admissibility requirements of Daubert"); see also 1 McCormick on Evidence § 205, at 849 (Kenneth S. Broun ed., 6th ed. 2006) ("Some courts have emphasized the need for care in admitting retrograde extrapolations, but arguments that the extrapolation process itself is so uncertain as to be inadmissible under Frye or Daubert have not prevailed.") (footnotes omitted).
Sullivan v. Anchorage, 577 P.2d 1070, 1073 (Alaska 1978).
In attacking Swartz's testimony in this case, Russell-Durant relies on the Texas case of Mata v. State. But Mata recognizes that retrograde extrapolation can be used in driving while intoxicated cases to establish a defendant's blood alcohol content at the time of an alleged offense, so long as factors are present that make the test reliable. Mata sets out standards for admissibility of testimony about retrograde extrapolation, which Russell-Durant argues should have applied in this case. But, as we have previously pointed out, Russell-Durant never presented this issue in the trial court, so we only review for plain error.
46 S.W.3d 902 (Tex. Crim. App. 2001).
Id. at 916.
Id. at 915-17.
In driving while intoxicated cases, the defendant's exact blood alcohol level at a particular time could be critical evidence. But in Russell-Durant's case, M.W.'s precise alcohol level at 3:00 a.m. was relatively unimportant. It was established that M.W. had an extremely high blood alcohol level, .377 percent, approximately nine hours after she had intercourse with Russell-Durant. The evidence presented at trial indicated that M.W. had been incapacitated (and therefore had not been drinking) during this nine-hour period. Swartz's testimony merely asserted the common-sense conclusion that M.W.'s blood alcohol level was significantly higher nine hours before M.W.'s blood alcohol was tested at the hospital. Given the fact that Russell-Durant did not raise in the trial court the issues he raises on appeal, and given the limited potential prejudicial impact of Swartz's testimony, we do not find plain error.
Why we conclude that Judge Hamilton did not err in his instructions to the jury on the offense of perjury
Russell-Durant testified at Mortenson's grand jury proceeding that, on the evening of December 24, 2006, and the early morning hours of December 25, he never saw a bottle of alcohol. The State charged Russell-Durant with perjury based upon this statement. Russell-Durant argues that Judge Hamilton erred in the instruction which he gave to the jury on the perjury offense. Again, Russell-Durant never objected to this instruction, so to prevail, he must establish plain error.
Russell-Durant argues that Judge Hamilton committed plain error by not instructing the jury that it had to unanimously agree about which of Russell-Durant's statements were false. But both parties agreed that the issue the jury needed to decide was whether Russell-Durant committed perjury when he stated that he never saw any alcohol that evening. Since there was only this one issue before the jury, Judge Hamilton did not commit plain error by not telling the jury that they had to unanimously agree about which of Russell-Durant's statements were false.
Russell-Durant also argues that Judge Hamilton committed plain error by failing to instruct the jury that it could not convict him of perjury based on the uncorroborated testimony of one witness.
In Nelson v. State, the Alaska Supreme Court stated that a defendant could only be convicted of perjury on the testimony of one witness if that testimony was corroborated by either direct or circumstantial evidence. But after Nelson, in 1978, the legislature enacted AS 11.56.220, which currently states that: "In a prosecution for perjury or unsworn falsification [in the first or second degree], it is not necessary that proof be made by a particular number of witnesses or by documentary or other type of evidence." The Commentary on the Alaska Revised Criminal Code explains:
546 P.2d 592 (Alaska 1976).
Id. at 595-96.
While there is currently no statute mandating that a perjury prosecution is subject to special rules of proof, the Alaska Supreme Court has held that a perjury conviction cannot be based on the uncorroborated testimony of a single witness. Nelson v. State, 546 P.2d 592 (Alaska 1976).
In the Code, perjury and unsworn falsification are no exception to the rule that guilt must be proved beyond a reasonable doubt. The number of witnesses as well as the corroborating evidence in support of the witnesses becomes simply one of the several factors that a jury may take into consideration in arriving at a verdict.
Senate Journal Supp. No. 47 at 73-74 (June 12, 1978).
It seems clear from the text of AS 11.56.220 and its legislative history that a perjury prosecution can be based on the uncorroborated testimony of a single witness, as long as the State proves the offense beyond a reasonable doubt. Furthermore, even if corroboration of Russell-Durant's perjury was required, there was substantial corroboration, both through the testimony of the witnesses who testified at trial as well as the evidence which established the extreme levels of intoxication of M.W. and E.K. We do not find plain error.
Why we conclude there was sufficient evidence to support Russell-Durant's convictions for sexual assault in the second degree and perjury
In determining whether evidence is sufficient to support a criminal conviction, we view the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to upholding the jury's verdict.
Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
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Russell-Durant argues that the evidence at trial was insufficient to support the jury's verdict convicting him of sexual assault in the second degree because the evidence was insufficient to show that M.W. was incapacitated when he had intercourse with her. Under AS 11.41.420(a)(3)(B), an individual is guilty of sexual assault in the second degree if he "engages in sexual penetration with a person who the offender knows is ... incapacitated." Alaska Statute 11.41.470(2) defines incapacitation as being "temporarily incapable of appraising the nature of one's own conduct or physically unable to express unwillingness to act."
The evidence presented at trial, in the light most favorable to upholding the jury's verdict, established that M.W. was incapacitated when Russell-Durant had intercourse with her. M.W. testified at trial that she blacked out and did not remember any of the sexual contact. Kyle Mortenson testified that M.W. and E.K. consumed an entire 750 ml bottle of whiskey and became incapacitated. Mortenson testified that he knew M.W. was too drunk to be having sex when he had sex with her, and that M.W. was in the same condition when Russell-Durant was in the room with M.W. M.W.'s blood-alcohol registered .377 percent at the hospital approximately nine hours after the sexual encounter. Expert testimony established that M.W.'s blood alcohol level would have been significantly higher when the sexual encounter occurred. Based upon this evidence, and considering the evidence in the light most favorable to upholding the jury's verdict, we conclude that a reasonable jury could have found Russell-Durant guilty of sexual assault in the second degree beyond a reasonable doubt.
Russell-Durant argues that the evidence was insufficient to support his conviction for perjury. Under AS 11.56.200(a), "A person commits the crime of perjury if the person makes a false sworn statement which the person does not believe to be true." At the Mortenson grand jury proceeding, Russell-Durant stated that he never saw any alcohol on the evening in question. The evidence presented at trial, in the light most favorable to upholding the jury's verdict, was sufficient for the jury to conclude that Russell-Durant committed perjury when he made this statement. Mortenson testified that Russell-Durant witnessed him hand M.W. and E.K. a bottle of whiskey. E.K. testified that Mortenson handed the bottle to Russell-Durant, who handed it to M.W. and E.K. In addition, E.K. testified that Russell-Durant was present during part of the time when they were drinking. The evidence that M.W., E.K., Mortenson, and Russell-Durant were with each other on the evening of December 24-25, and that E.K. and M.W. became highly intoxicated, also supports the jury's verdict.
Conclusion
The judgment of the superior court is AFFIRMED.