Opinion
Court of Appeals No. A-11331 No. 6406
12-14-2016
TERRY W. SUITER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda J. Kerry, Girdwood, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, 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. 4FA-10-4940 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael P. McConahy, Judge. Appearances: Glenda J. Kerry, Girdwood, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. Judge MANNHEIMER.
Terry W. Suiter was convicted, following a jury trial, of felony driving under the influence. He now appeals his conviction, raising three claims of error.
AS 28.35.030(n).
First, Suiter contends that he was denied a fair trial because the trial judge refused to delay the trial when one of Suiter's defense witnesses was "weathered in" and could not attend the trial as scheduled. Second, Suiter contends that the trial judge committed error by allowing a police officer to testify that Suiter's conduct in this case constituted "operating a motor vehicle" for purposes of the driving under the influence statute. And third, Suiter contends that the jury instruction defining "actual physical control of a motor vehicle" was constitutionally flawed — that this instruction essentially directed the jurors to find Suiter guilty.
With regard to the judge's decision to have the trial go forward without the defense witness's testimony, we conclude that the error was harmless, since this witness's testimony would only have been relevant to one of the charges against Suiter, and Suiter was acquitted of this charge.
With regard to the police officer's testimony that Suiter's conduct constituted "operating a motor vehicle", we agree with Suiter that this portion of the officer's testimony was improper, and that the trial judge should have sustained the defense attorney's objection. But again, for reasons we will explain, we conclude that the error was harmless.
With regard to the challenged jury instruction, we conclude that Suiter's argument has no merit: this jury instruction did not direct a verdict in favor of the government. Although there were other potential problems with this jury instruction, the instruction did not improperly direct the jury to decide this case in favor of the government.
For these reasons, we affirm Suiter's conviction for felony driving under the influence.
Underlying facts
At 8:20 p.m. on the evening of November 20, 2010, Fairbanks Police Officer Ron Dupee heard a "DUI locate" call on his radio. Dupee was told that someone had called the police to report that a black 2000 Dodge pickup truck, registered to Terry Suiter and being driven by him, was en route to the Comfort Inn. The caller reported that Suiter was intoxicated, that he had been holding a beer in his hand when he got into the vehicle, and that he was driving to the Comfort Inn to drop off his passenger there.
Dupee was already close to the Comfort Inn when he received this broadcast, and he arrived at the hotel a few minutes later.
As Officer Dupee pulled into the parking lot of the Comfort Inn, he saw Suiter's black Dodge pickup truck: it was parked with the engine running under the Inn's covered entryway. Dupee then saw Suiter walk out of the Comfort Inn and get into the truck on the driver's side.
Dupee pulled up behind Suiter's truck and stopped his patrol car. Suiter then got out of the truck and spoke with the officer.
Suiter, whose license was suspended, told Officer Dupee that he had not been driving the truck. Suiter said that his girlfriend, Michelle Johnson, was the one who had driven Suiter's truck to the Comfort Inn — and that Suiter had merely come back to his truck in case he needed to move the vehicle from the entryway.
When Dupee asked Johnson if she had been driving the truck; she answered "No." Despite Johnson's negative answer, Suiter continued to insist that he had not driven his pickup truck to the Comfort Inn.
According to Dupee's later testimony, Suiter demonstrated several signs of intoxication during their contact: Suiter's eyes were bloodshot and watery, his speech was slurred, he swayed as he stood, and he smelled of alcoholic beverages. Dupee administered field sobriety tests to Suiter, and Suiter performed "very poorly" on these tests.
Dupee then arrested Suiter for driving under the influence. A subsequent breath test showed that Suiter's blood alcohol level was .128 percent.
Based on these events, and based on Suiter's prior convictions, the State charged Suiter with two crimes: felony driving under the influence, and driving while his license was suspended.
AS 28.35.030(n) and AS 28.15.291(a), respectively.
It turned out that this apparently straightforward scenario was more complicated than it seemed.
Raymond McDonald was the man who called 911 to report that Suiter was driving to the Comfort Inn, and that Suiter was intoxicated. McDonald phrased his report to make it seem that he had just personally witnessed the events he described to the 911 operator. But this was apparently not true. According to an offer of proof made by Suiter's attorney, McDonald was actually in Anchorage when he called the Fairbanks 911 operator, and many of the details that McDonald provided to the 911 operator were relayed to him (as hearsay) by people in Fairbanks. McDonald was apparently motivated to get Suiter in trouble because he (McDonald) was romantically involved with Michelle Johnson.
Suiter's argument that the trial judge should have granted him a continuance to secure Raymond McDonald's testimony
Suiter's defense team spent a substantial amount of time, prior to trial, attempting to contact Raymond McDonald and secure his testimony. Just before trial, they were finally able to locate McDonald and serve him with a subpoena. But McDonald was in Kotzebue, and Suiter's trial was being held in Fairbanks. On the day that McDonald was scheduled to come to Fairbanks to testify, weather prevented his flight from leaving Kotzebue.
Suiter's attorney told the court that they were willing to have McDonald testify telephonically, but the prosecutor would not agree to this. As a result, the trial judge had to decide whether to grant the defense a short continuance to secure McDonald's testimony.
As we have explained, Suiter was charged with two crimes: driving under the influence, and driving with a suspended license. The DUI charge was directly based on Officer Dupee's observations of Suiter, as Suiter sat in the vehicle outside the Comfort Inn. But to prove the suspended license charge, the State had to prove that Suiter was the one who drove the vehicle to the Comfort Inn in the first place, before his encounter with Officer Dupee — an assertion that Suiter denied.
Suiter's attorney argued that McDonald's testimony was material to the suspended license charge. The defense attorney pointed out that the prosecutor had already played the audio recording of the "DUI locate" for the jury. In this recording, the police dispatcher stated that someone had called 911 to report that Suiter had been observed getting into his truck with a beer in his hand, and that he was driving to the Comfort Inn. The defense attorney argued that it was important for the jury to understand that, even though the 911 caller (McDonald) purported to be relaying information that he knew first-hand, McDonald in fact never personally observed the things he told the 911 operator.
The trial judge rejected the defense attorney's argument and concluded that McDonald's proposed testimony was not material — that, indeed, it was probably not admissible at all, because the judge believed that this testimony was irrelevant to the question of Suiter's guilt. Based on his conclusion that McDonald's proposed testimony was not material to the issues being litigated at Suiter's trial, the judge denied the defense attorney's request for a continuance.
The judge was mistaken when he concluded that McDonald's proposed testimony was immaterial. The evidence suggested that Michelle Johnson and Raymond McDonald may have had reasons to fabricate evidence against Suiter — and that Johnson may not have been telling the truth when she denied driving the vehicle to the Comfort Inn. For this reason, McDonald's testimony would have been relevant to the jury's assessment of whether Suiter was guilty of driving with a suspended license.
But the error in the trial judge's ruling was harmless beyond a reasonable doubt — because the jury acquitted Suiter of driving with a suspended license.
The jury's decision to acquit Suiter of this charge means that they had a reasonable doubt as to whether Suiter was the one who drove the truck to the hotel. It also means that when the jury convicted Suiter of driving under the influence, they convicted him under the theory that his control of the truck when it was parked outside the hotel constituted "operating" (as opposed to "driving").
The police officer's testimony that Suiter's conduct at the Comfort Inn constituted "operating a motor vehicle"
As we explained earlier in this opinion, when Officer Dupee heard the "DUI locate" broadcast, he proceeded to the Comfort Inn. When Dupee arrived, he saw Suiter's Dodge pickup truck parked in the Comfort Inn's covered entryway, with its engine running. Dupee then saw Suiter walk out of the Comfort Inn and get into the truck on the driver's side. At this point, Dupee drove up behind Suiter and made contact with him.
At Suiter's trial, during the prosecutor's examination of Officer Dupee, the prosecutor asked Dupee to specify the point at which he decided to initiate a DUI investigation of Suiter. Dupee answered that he made this decision when he saw Suiter walk out of the Comfort Inn and get into the driver's side of his truck. The prosecutor then asked Dupee to explain why those observations led him to initiate the contact, and Dupee responded: "The vehicle was running. The brake lights had come on. So, in the State of Alaska, that's operating."
Suiter's attorney objected to this last part of Dupee's answer, arguing that Officer Dupee was "not an expert on the law". The trial judge overruled the defense attorney's objection, noting that the jury would be instructed later on what it means to "operate" a motor vehicle for purposes of the DUI statute. A little later in Dupee's testimony, he again asserted that Suiter was "obviously operating" his vehicle; the defense attorney did not repeat the earlier objection.
On appeal, Suiter argues that Officer Dupee was not qualified to give expert testimony on the issue of what constitutes "operating a motor vehicle" for purposes of Alaska's DUI statute. But that is beside the point. Regardless of whether Officer Dupee was an expert on Alaska vehicle law, the judge should not have allowed the officer to testify on the subject of what conduct amounts to "operating" a motor vehicle under Alaska law. Instead, the judge should have sustained the defense attorney's objection, should have instructed the jurors to disregard the officer's comment, and should have told the jurors that he (i.e., the judge) would instruct them on this point of law at the end of the trial.
(We acknowledge that Dupee's testimony on this point — his conclusion that Suiter was actively committing the offense of DUI in his presence — would potentially have been relevant if Suiter had attacked the propriety of Dupee's investigation (i.e., Dupee's decision to approach Suiter, question him, and have him perform field sobriety tests). For instance, the challenged testimony might have been relevant if Suiter's attorney had suggested that Dupee acted from an improper motive, or that Dupee prematurely or unreasonably focused on Suiter when there were other potential suspects. But Suiter did not raise any of these issues.)
But even though the trial judge should have sustained the defense attorney's objection, we conclude that the admission of this challenged testimony was harmless.
It was obvious, from the fact that Dupee arrested Suiter for driving under the influence, that Dupee thought that Suiter had "operated" the truck. And the jury heard admissible evidence of all the factors that Dupee relied on when he made that arrest. In particular, Dupee testified that Suiter's truck was left running outside the Comfort Inn, and that he saw Suiter come out of the Comfort Inn and get into the driver's seat. The jury also saw the video recording taken by the camera in Dupee's patrol car, which showed Suiter getting into the driver's side of the truck.
The jurors were also instructed that they were the ultimate judges of the facts of the case, and that it was the State's burden to prove all the elements of the crime — including "operation" — beyond a reasonable doubt.
We therefore conclude that this challenged portion of Dupee's testimony had no appreciable effect on the jury's verdict.
See Love v. State, 457 P.2d 622, 634 (Alaska 1969) (holding that the test for the harmlessness of non-constitutional error is whether the appellate court "can fairly say that the error did not appreciably affect the jury's verdict").
The jury instruction on "actual physical control" of a motor vehicle
To resolve the DUI charge against Suiter, the jury was required to decide whether he had operated a motor vehicle while he was under the influence. The jurors received an instruction on the meaning of "operate a motor vehicle" that was excerpted from the then-current version of Alaska Pattern Jury Instruction 28.35.030(a) #3.
In 2015, Criminal Pattern Jury Instruction 28.35.030(a) #3 was substantially revised, and it no longer resembles the jury instruction that was given at Suiter's trial. The pattern instruction now reads:
To "operate" a motor vehicle means to drive or to have actual physical control over the vehicle. Operating a motor vehicle does not necessarily require that the vehicle engine be running, that the keys be in the ignition, that the vehicle actually move, or that the vehicle is capable of movement, although these are factors that you may consider in deciding whether the defendant was operating the vehicle.
This jury instruction began with the accurate statement that, under Alaska law, "operate" means either "to drive" or "to have actual physical control over a [motor] vehicle". The instruction then turned to the definition of "actual physical control":
The following two examples illustrate what it means for a person to be in actual physical control of a motor vehicle. If you find that the defendant in this case had as much physical control over a motor vehicle as the person in these examples, or more, then you must find that the defendant was "operating" the motor vehicle.
First, if a person is seated in the driver's seat and the motor vehicle's engine is running, the person is "operating" the motor vehicle, even if the vehicle isn't moving, and even if the vehicle isn't capable of moving.
Second, if a person is seated in the driver's seat of a motor vehicle, is in possession of the ignition key for the motor vehicle, and is physically capable of starting the engine and causing the vehicle to move, then the person is
"operating" the motor vehicle, even if the engine isn't running, and even if the motor vehicle isn't moving, and even if the motor vehicle isn't capable of moving.
In his brief to this Court, Suiter focuses on the concluding sentence of the first paragraph quoted above — the sentence that reads, "If you find that the defendant in this case had as much physical control over a motor vehicle as the person in these examples, or more, then you must find that the defendant was 'operating' the motor vehicle." Suiter argues that, because this sentence includes the phrase "you must find", it amounted to a directed verdict in favor of the State.
But in this respect, the challenged pattern jury instruction is no different from any other jury instruction that (1) defines the elements of a crime and then (2) tells the jurors that their duty is to return a "guilty" verdict if they find that these elements have been proved beyond a reasonable doubt.
Indeed, in Suiter's case, the jury received a separate instruction that listed all the elements of "driving under the influence", and Suiter does not challenge that instruction, even though it contained the same type of language:
If you find from your consideration of all the evidence that each [element of this crime] has been proved beyond a reasonable doubt, then you shall find the defendant guilty as to [this count].(Emphasis added.)
If, on the other hand, you find from your consideration of all the evidence that any [element] has not been proved beyond a reasonable doubt ... , then you shall find the defendant not guilty as to [this count].
As we noted earlier in this opinion, the jurors were instructed that they were the ultimate judges of the facts of the case, and that it was the State's burden to prove its allegations — including the element of "operation" — beyond a reasonable doubt. We therefore conclude that the jurors would not have interpreted the challenged instruction as directing them to return a verdict in favor of the State.
Although we reject Suiter's "directed verdict" challenge to the jury instruction defining "actual physical control", we are not saying that this instruction was free from any potential problems.
Inevitably, problems may arise when a jury instruction offers only an ostensive definition of a legal concept — i.e., when the instruction defines the legal concept only by example.
The facts of a particular defendant's case may sometimes be arguably different from any of the listed examples. In such instances, an instruction like the one given at Suiter's trial implicitly requires the jurors to decide which aspects of the given examples are the legally significant ones — so that the jurors will be able to properly compare the defendant's conduct to the given examples, and then correctly classify the defendant's conduct. But because the jury instruction only contains examples, and never directly states the governing principle, there may be situations where the jurors will have a difficult time identifying the legally significant aspects of the situation.
That being said, the potential problems inherent in this type of jury instruction did not come to fruition in Suiter's case.
The DUI charge against Suiter was based on evidence that Suiter got into the driver's seat of a truck that he owned, while the truck was parked in front of a hotel with its engine running. This evidence, if accepted as credible by the jury, essentially tracked the first example listed in the challenged jury instruction: "[I]f a person is seated in the driver's seat and the ... engine is running, then the person is 'operating' the motor vehicle, even if the vehicle isn't moving[.]" Suiter does not contend that this first example misstates the law of Alaska.
Therefore, under the facts of Suiter's case, we find no error arising from the jury instruction's definition of "actual physical control".
Conclusion
The judgement of the superior court is AFFIRMED.
This pattern instruction is not before us in this case, and we therefore express no opinion regarding the merits of this instruction.