Opinion
A-13418
12-07-2022
FRANKLIN JAMES STEVENS-MCCONKEY, Appellant, v. STATE OF ALASKA, Appellee.
Bradly A. Carlson, Law Office of Bradly A. Carlson LLC, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-17-04021 CR Kevin M. Saxby and Erin B. Marston, Judges.
Bradly A. Carlson, Law Office of Bradly A. Carlson LLC, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Following a jury trial, Franklin James Stevens-McConkey was convicted of felony driving under the influence. Stevens-McConkey raises two primary issues on appeal.
AS 28.35.030(a) & (n).
First, Stevens-McConkey challenges the trial court's denial of his motion to suppress. This case arose after Stevens-McConkey's cousin reported to 911 that Stevens-McConkey had stolen her car. According to the cousin, Stevens-McConkey showed up on her doorstep after midnight, seemingly intoxicated. She told him that he could sleep on the couch, and she went to bed. When she woke up in the middle of the night, however, she discovered that he was gone, along with her car and her car keys. An officer arrived at her house to investigate. The officer confirmed that the cousin's car was not parked outside and that Stevens-McConkey was not present.
We recite the facts in the light most favorable to the court's ruling. See State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).
A few minutes later, Stevens-McConkey arrived at the house, slurring his speech and smelling of alcohol. After Stevens-McConkey provided non-responsive answers to questioning by the officer and his cousin, the officer handcuffed Stevens-McConkey and, shortly thereafter, discovered the car keys in his pocket during a pat-down search.
Prior to trial, Stevens-McConkey asked the trial court to suppress the discovery of the car keys. The trial court denied Stevens-McConkey's motion, and Stevens-McConkey now appeals that ruling.
On appeal, Stevens-McConkey challenges the trial court's denial of his motion to suppress evidence of the car keys. We reject this claim. The cousin reported that Stevens-McConkey was intoxicated and had taken her car without her permission. The officer's own observations corroborated important elements of the cousin's report: that the cousin's car was missing, that Stevens-McConkey was staying at that house and had left sometime earlier in the evening (as evidenced by his return when the officer was on the scene), and that Stevens-McConkey appeared to be intoxicated.
These facts "supported] a reasonable belief that an offense ha[d] been... committed" by Stevens-McConkey - namely, vehicle theft or driving under the influence, or both. Because the officer had probable cause to make an arrest before he discovered the keys, and because the search otherwise satisfied the requirements for a valid search incident to arrest, we uphold the trial court's denial of Stevens-McConkey's motion to suppress.
Id. at 1118-19 (defining "probable cause").
See Uptegraft v. State, 621 P.2d 5, 9 (Alaska 1980).
See Joubert, 20 P.3d at 1118 (setting out four-part test for valid search incident to arrest).
Stevens-McConkey also argues that the officer had no authority to make a warrantless arrest. We reject that argument. .See AS 12.25.030(a)(2) (authority to make a warrantless arrest for a felony, like vehicle theft, committed outside the presence of the officer); AS 12.25.033 (authority to make warrantless arrest for driving under the influence).
Second, Stevens-McConkey challenges certain testimony by the responding officer. At trial, the officer testified that after he arrested Stevens-McConkey, he watched the dash-cam video recording from his patrol car. According to this officer, the recording showed the cousin's car returning, and a person emerging from the car, wearing the same clothes as the person the officer saw at the cousin's apartment (i.e., Stevens-McConkey). When the officer testified that the in-court video display being shown to the jury was particularly dark, and that, on other displays he had viewed prior to trial, it had been easier to identify the color of the person's clothes, Stevens-McConkey objected that the testimony amounted to improper vouching. The trial court overruled Stevens-McConkey's objection.
On appeal, Stevens-McConkey argues that the officer's testimony improperly bolstered the video evidence by suggesting that the version he viewed was more reliable and that the jury should defer to his assessment of the video. But it is not clear that the officer's testimony constituted improper vouching. The officer's testimony was based on his own personal knowledge and viewing of the video. And the jury was not limited to watching the video on the in-court display or relying on the officer's assurances; it had access to its own computer during deliberations, and the prosecutor encouraged the jurors to watch the video during their deliberations.
But even assuming admission of this testimony was error, we conclude that any error was harmless. Stevens-McConkey never seriously disputed that he was the person in the video. In closing argument, defense counsel acknowledged that the person in the video "looks very much to be like my client, wearing the same clothes from what you can tell, [and he] walks across the street, [and] goes into [the cousin's apartment]." Stevens-McConkey's defense did not hinge on whether he was in the car, but rather on whether he had driven the car; he argued that a friend could have driven him. The video was not particularly probative of this point, because it did not show from which of the vehicle's doors Stevens-McConkey had exited. For these reasons, we find no reversible error on this point.
The judgment of the superior court is AFFIRMED.