Court of Appeals No. A-11509 No. 6246
Appearances: Megan Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. 3UN-11-78 CR
Appeal from the Superior Court, Third Judicial District, Unalaska, John R. Lohff, Judge. Appearances: Megan Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Douglas Lee Seitz appeals his conviction for felony refusal to submit to a chemical test, arguing that the superior court abused its discretion by failing to grant his request for a mistrial. Seitz argues that he was entitled to a mistrial because the trial judge made a remark to the jury that, in Seitz's view, suggested that the court believed the State's evidence against him was strong and that the jury should reach its verdicts quickly.
For the reasons explained below, we find no merit to this claim. We therefore affirm Seitz's conviction.
Facts and proceedings
On May 1, 2011, Unalaska police officer pulled Douglas Seitz over for erratic driving. After administering field sobriety tests, the officer arrested Seitz for driving under the influence and transported him to the police station for a breath test. Seitz refused to take the breath test. The State then charged Seitz with felony driving under the influence and felony refusal to submit to a chemical test, and the case proceeded to trial before a jury of fourteen — twelve jurors and two alternates.
AS 28.35.030(n) and AS 28.35.032(p), respectively.
After closing arguments but before the court released the two alternate jurors, the judge asked the jurors if any of them "felt they were unable to serve." In response, one juror noted that she had a flight leaving the following morning at 10:00 a.m. The judge then stated:
Court: Okay, I'll presume that we're going to hear [the verdict] tonight.
Juror: Okay, that's fine.
Court: So I ...
Juror: I'm okay with staying then.
The court then released two randomly selected alternates, and the remaining twelve jurors — including the juror who had a flight scheduled the following morning — retired to deliberate on the charges at approximately 3:45 p.m.
Seitz's attorney then moved for a mistrial, arguing that the judge's remarks were prejudicial:
Defense attorney: I'm concerned that the comment you made — "I presume that we're going to hear tonight" — that you made to [the juror] just a few moments ago ... may put an unfair onus on the jury to try to rush through a decision and maybe that helps the defense but maybe it hurts it and because of that ... I'd respectfully ask for a mistrial based on that comment.The State opposed the motion, and the court denied it without comment.
At approximately 8:15 p.m., the jury returned a verdict acquitting Seitz of driving under the influence and convicting him of refusal to submit to a chemical test.
Why we conclude that the trial court did not abuse its discretion by denying Seitz's motion for a mistrial
On appeal, Seitz argues that the superior court abused its discretion by denying his mistrial motion. He argues that the implication of the trial judge's remark to the jury, "I'll presume that we're going to hear [the verdict] tonight," was that the judge believed the State's case was strong and that the jury would be able to reach a verdict quickly. Seitz also argues that, by failing to sua sponte excuse the juror who had a flight the following morning, "the trial court ensured that the matter would be resolved that day, regardless of whether the jury needed, or wanted, additional time to deliberate."
As the State points out, these are not the precise claims Seitz raised at trial. In the superior court, Seitz's claim was that the judge's remark might make the jury feel pressured to reach a quick decision—a situation Seitz acknowledged might or might not work to his benefit. Seitz never asked the court to excuse the juror who faced time constraints, nor did he request any other remedy short of a mistrial, such as asking the court to clarify its remarks or to caution the jury not to rush its deliberations.
We conclude that the superior court did not abuse its discretion by denying Seitz's motion for a mistrial under these circumstances. As a general matter, judges must always exercise care in making statements that have the potential to unintentionally convey the court's view of the evidence. But here, the potential prejudice Seitz complains of could easily have been cured by replacing the juror who faced time constraints with an alternate juror, or by giving the jury a clarifying instruction — remedies Seitz never requested.
See Malemute v. State, 791 P.2d 624, 626 (Alaska App. 1990) ("The decision whether to grant a mistrial is consigned to the sound discretion of the trial court.").
See Miller v. State, 462 P.2d 421, 429 (Alaska 1969) (finding no abuse of discretion in the court's failure to grant a mistrial because of a purportedly prejudicial statement volunteered by a witness, where the defendant failed to seek other lesser remedies to cure any harm). --------
Moreover, to the extent that Seitz suggests that the court committed plain error by failing to sua sponte discharge the juror who had a morning flight, he has failed to establish any prejudice. At trial, Seitz's attorney only challenged the driving while under the influence charge, essentially conceding the refusal charge. And the jury ultimately agreed with Seitz's defense, acquitting Seitz of driving while under the influence and convicting him only of refusal. Thus, even assuming that the judge's remark conveyed to the jury that the State's case was strong and that quick verdicts in its favor were called for, the jury was evidently not swayed by that remark.
We AFFIRM the judgment of the superior court.