Opinion
Court of Appeals No. A-10815 Trial Court No. 4FA-09-1634 CR No. 5950
05-22-2013
JOHNNY M. BIVINS, Appellant, v. STATE OF ALASKA, Appellee.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and 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.
MEMORANDUM OPINION
AND JUDGEMENT
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.
Appearances: David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge .
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge COATS.
Johnny M. Bivins was convicted of felony driving under the influence and driving with a revoked license. He argues that the jury had insufficient evidence that he was driving to convict him of those offenses. He also argues that the superior court abused its discretion and committed legal error by allowing the State to reopen its case to offer documents establishing that the Datamaster machine used for his breath test was properly calibrated.
We have reviewed the record and conclude that there was sufficient evidence for a fair-minded juror to conclude that Bivins was driving. We also conclude that the superior court did not abuse its discretion, or commit plain error, when it allowed the State to reopen its case.
Facts and proceedings
Early on the morning of May 15, 2009, Casandra Champagne-Christian was driving home from work in North Pole when a red car pulled in front of her from the parking lot of the Circle M Bar, forcing her to slam on her brakes and come to almost a complete stop. The car then swerved drastically to the left before returning to its lane. Champagne-Christian saw that the driver was an "older gentleman," and that he was the only person in the car.
Champagne-Christian, a former police officer, followed the car and watched it weave back and forth across the road, at one point almost hitting a pedestrian. When the vehicle made a left-hand turn, the driver slammed on the brakes and was slow to use the turn signal. The vehicle also rolled through a stop sign. Champagne-Christian concluded that the driver was probably intoxicated and she reported the license plate number and a description of the vehicle to the state troopers. After the car turned onto Stobie Road, Champagne-Christian stopped observing the car and continued home.
North Pole Police Officer Philip McBroom received the dispatch that a possibly intoxicated older man was driving a red Oldsmobile with license plate number FGL147 or FLG147. Within five minutes of receiving this dispatch, McBroom located a car matching that description in Bivins's driveway on Stobie Road. Bivins, then 62 years old, was sitting in the driver's seat with both feet on the floorboard. The engine was off and the key was out of the ignition. Bivins was trying to get out of the vehicle, but he had threaded the seatbelt through a rip in his pants and McBroom had to help him extricate himself. McBroom located what he believed to be the car keys in Bivins's pocket, but McBroom did not test the keys to see if they worked in the ignition.
Once Bivins was out of the vehicle, McBroom observed that Bivins staggered and had to lean against the vehicle to steady himself. Bivins also had bloodshot, watery eyes, a very strong odor of alcohol, and poor dexterity when he produced his identification. Bivins admitted he did not have a driver's license and McBroom confirmed this with dispatch. Bivins also admitted that he had been driving. After administering field sobriety tests, McBroom concluded that Bivins was under the influence and arrested him. At the police station, a breath test showed that Bivins's blood alcohol level was .174 percent, more than twice the legal limit.
See AS 28.35.030(a)(2).
Bivins was charged with felony driving under the influence and driving with a revoked license. During his trial on those charges, the State inadvertently introduced the wrong documents to establish that the instrument used for Bivins's breath test was properly calibrated. Over Bivins's objection, Superior Court Judge Paul R. Lyle allowed the State to reopen its case to introduce the correct documents.
AS 28.35.030(n) and AS 28.15.291(a)(1), respectively. Bivins was also charged with disorderly conduct and resisting arrest, but those charges were dismissed before trial.
Bivins's defense at trial was that his son was driving. The jury rejected this defense and convicted Bivins of both charges. Because Bivins had prior convictions for driving under the influence and refusal to submit to a chemical test, he was convicted of a felony offense. He appeals.
Was there sufficient evidence to support the jury's verdicts?
Bivins does not dispute the State's evidence that he was intoxicated — he admitted at trial that he was "pretty loaded," and his son testified that he was "very drunk." Instead, Bivins argues that the jury did not have sufficient evidence that he was driving to convict him of driving under the influence or driving with a revoked license.
When reviewing a claim that there was insufficient evidence to support the jury's verdict, the question is whether a fair-minded juror exercising reasonable judgment could conclude that the State met its burden of proving guilt beyond a reasonable doubt. In this analysis, we do not weigh the evidence or witness credibility; we only consider those facts most favorable to the jury's verdicts and the reasonable inferences a jury may have drawn from those facts.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Sheldon v. State, 796 P.2d 831, 839 (Alaska App.1990); Deal v. State, 657 P.2d 404, 405 (Alaska App.1983).
Dorman, 622 P.2d at 453; Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App.1990).
The State argues that, because Bivins did not move for a judgment of acquittal in the trial court, he must now show plain error. But as explained in Shafer v. State, whenever the evidence is insufficient to support the jury's verdict there has been a miscarriage of justice. Consequently, the same analysis applies regardless of whether the defendant moved for a judgment of acquittal at trial.
456 P.2d 466 (Alaska 1979).
Id. at 467-68.
Id.
To support his claim of insufficient evidence, Bivins points to weaknesses and inconsistencies in the testimony of the State's witnesses. He notes that Officer McBroom mistakenly testified that the Oldsmobile was registered to Bivins, when in fact it was registered to Bivins's son's mother. He also observes that McBroom never tested the keys he found in Bivins's pocket to verify that they operated the car. He argues that Champagne-Christian's testimony that the driver was an "older gentleman" was suspect because she told the dispatcher that the rear windows were tinted and difficult to see through. And he points out that the testimony of the State's witnesses was contradicted by defense evidence that his son was driving the car that night.
As already explained, when we review an attack on the sufficiency of the evidence we do not second-guess the jury's assessment of witness credibility. Bivins's attorney cross-examined the State's witnesses on these weaknesses in their testimony and the jury nevertheless concluded that their testimony was credible. There was sufficient evidence to support that conclusion. There was also sufficient evidence for the jury to conclude that Bivins's evidence that his son was driving was not credible. Champagne-Christian testified that she had several opportunities to observe the driver through the side windows — which were not tinted — and she told the dispatcher the car was driven by an older man. Within five minutes of when she saw the car turn onto Stobie Road, Officer McBroom located a car matching her description parked in Bivins's driveway with Bivins in the driver's seat, tangled up in the seatbelt and noticeably intoxicated. When he was contacted, Bivins said nothing about his son driving; in fact, he admitted that he had been driving. A fair-minded juror could conclude from this evidence that the State proved beyond a reasonable doubt that Bivins was driving under the influence.
Did the court err by allowing the State to reopen its case?
Part of the State's proof that Bivins was driving under the influence was a breath test result showing that his blood alcohol level was more than twice the legal limit. By regulation, a breath test machine may not be used in Alaska unless the accuracy of the machine's calibration has been verified at least every sixty days. For this reason, the State introduced documents to show that the machine used for Bivins's breath test was properly calibrated.
After the State rested its case and the defense presented its first witness, the trial judge informed the prosecutor that he had examined the verification of calibration reports, and that these reports had been prepared in 2008, not 2009 when Bivins's breath test was performed. The prosecutor acknowledged that he had inadvertently failed to check the date on the reports, and he asked for a recess to obtain the proper documents and for leave to reopen his case for the purpose of offering them into evidence. Bivins's attorney objected, arguing that allowing the State to reopen its case would violate the double jeopardy clause and prejudice her client. The court rejected these arguments and allowed the State to reopen its case and introduce the documents.
Bivins claims that Judge Lyle abused his discretion by allowing the State to reopen its case to offer these documents. He also argues that the court committed legal error by admitting the documents without analyzing whether the State had established "good reason" to reopen its case.
In Miller v. State, the supreme court held that a trial court has broad discretion to determine the order of proof at trial, and does not abuse that discretion by permitting a party to reopen its case when there is no suggestion the other party was surprised by the evidence or that further preparation was necessary to meet it. Applying that test, Judge Lyle found that Bivins was not surprised by the verification of calibration reports because he knew they would be introduced. And after confirming that Bivins did not want a continuance, the judge found that Bivins had adequate opportunity to rebut the evidence, particularly since Bivins conceded at trial that he was intoxicated. For these reasons, Judge Lyle concluded that Bivins would not be prejudiced if the court allowed the State to reopen its case for the limited purpose of introducing the correct verification of calibration documents.
462 P.2d 421 (Alaska 1969).
Id. at 428 (citing Massey v. United States, 358 F.2d 782, 786 (10th Cir. 1966)).
Bivins has not challenged the trial judge's findings. Instead, he argues that Miller is distinguishable because in that case the defense had not yet commenced its case when the State was allowed to offer additional evidence. In Bivins's case, the correct reports were admitted after the close of evidence. But Bivins has not explained how this timing increased the prejudice to his case. As already noted, Bivins has not asserted that he was surprised by the evidence or that he needed more time to rebut it.
Bivins also argues that Judge Lyle abused his discretion by allowing the State to reopen its case because the State was not diligent in obtaining the evidence. Judge Lyle recognized that any lack of diligence by the State was one factor he would consider in deciding whether to allow the State to reopen its case. But ultimately the judge concluded that the Miller factors weighed in favor of allowing the State to reopen its case to introduce the documents. Bivins has not shown that this decision was an abuse of discretion.
In the alternative, Bivins argues that Judge Lyle committed legal error because he did not address whether there was "good reason" under Criminal Rule 27(a)(3) for the State to reopen its case. Bivins did not raise this claim in the superior court so he must show plain error. Plain error is error that is so obvious that any competent judge or attorney would have recognized it. "If a claim of error is reasonably debatable — if reasonable judges could differ on what the law requires — then a claim of plain error fails."
See Cooper v. State, 153 P.3d 371, 372 (Alaska App. 2007).
Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005).
Id.
Criminal Rule 27(a)(3) provides that:
The state shall first produce its evidence, and the defendant may then produce the defendant's evidence. The state will then be confined to rebutting evidence unless the court, for good reason and in furtherance of justice, permits it to offer evidence in chief.
Italics added.
By its plain language, Rule 27(a)(3) appears to govern a trial judge's determination of what evidence the State may present after the defense has rested its case. The State introduced the verification of calibration reports in its case-in-chief. When the judge informed the prosecutor he had introduced the wrong documents, the defense had just begun to present evidence. Because it is not clear that Rule 27(a)(3) governs this situation, we conclude that Judge Lyle did not commit plain error when he failed to consider this rule sua sponte.
See generally Gafford v. State, 440 P.2d 405, 409 (Alaska 1968), overruled in part on other grounds by Fields v. State, 487 P.2d 831 (Alaska 1971); Carson v. State, 736 P.2d 356, 362 (Alaska App. 1987) (both discussing Criminal Rule 27(a)(3) in the context of the State's rebuttal evidence).
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Conclusion
We AFFIRM the judgment of the superior court.