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finding no plain error when a jury instruction incorrectly stated the crime as "Felony Driving Under the Influence" rather than "Driving Under the Influence"
Summary of this case from Morris v. StateOpinion
Court of Appeals No. A-9807.
March 4, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge, Trial Court No. 4FA-05-02357 CR.
William R. Satterberg Jr., Fairbanks, for Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
David B. Cassou was charged with felony driving under the influence and driving with a revoked license, a misdemeanor, after he was pulled over near the Fairbanks airport in July 2005. Cassou went to trial on the driving under the influence charge and pleaded no contest to driving with a revoked license. A jury convicted Cassou of felony driving under the influence.
AS 28.35.030(n).
AS 28.15.291(a)(1).
On appeal, Cassou, who is an Alaska Native, contends that none of the prospective jurors in his case was Alaska Native. He argues that he should be granted a new trial because the absence of Alaska Natives from the jury pool violated his constitutional right to an impartial jury and his right to equal protection of the law. Cassou also argues that his conviction should be vacated because the verdict form submitted to the jury, which listed Cassou's crime as "Felony Driving Under the Influence, as Charged in the Indictment," tainted the jury's verdict because it could have alerted the jury to the fact that Cassou had prior driving under the influence convictions. Finally, Cassou argues that he should have been given Nygren credit for time he spent on court-ordered electronic monitoring.
Nygren v. State, 658 P.2d 141 (Alaska App. 1983).
For the reasons explained below, we affirm Cassou's conviction and sentence.
Why we conclude that Cassou has not shown an equal protection violation or a denial of his right to be tried by a jury drawn from a fair cross-section of the community
The Equal Protection Clause of the United States Constitution and Article I, Section 1 of the Alaska Constitution prohibit intentional discrimination through the systematic exclusion of a cognizable class from jury venires. To make out an equal protection violation, Cassou must show intentional discrimination, a claim that can be circumstantially supported by evidence of a racial disparity on jury venires over "a significant period of time." Cassou has made no such showing.
See, e.g., Coleman v. Alabama, 389 U.S. 22, 88 S. Ct. 2, 19 L. Ed. 2d 22 (1967); Arnold v. North Carolina, 376 U.S. 773, 84 S. Ct. 1032, 12 L. Ed. 2d 77 (1964); Eubanks v. Louisiana, 356 U.S. 584, 78 S. Ct. 970, 2 L. Ed. 2d 991 (1958); Hernandez v. Texas, 347 U.S. 475, 74 S. Ct. 667, 98 L. Ed. 866 (1954); Avery v. State, 514 P.2d 637, 640-41 (Alaska 1973); Green v. State, 462 P.2d 994, 996 (Alaska 1969); Brower v. State, 683 P.2d 290, 291-92 (Alaska App. 1984).
Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 1280, 51 L. Ed. 2d 498 (1977).
Alternatively, the United States Supreme Court and the Alaska Supreme Court have held that the guarantee of an "impartial jury" implicitly includes the right of a defendant to be tried by a jury drawn from a "fair cross-section" of the community. Cassou was required to prove the following elements to establish a fair cross-section violation:
U.S. Const. amend. VI; Alaska Const., art. I, § 11.
See, e.g., Thiel v. S. Pac. Co., 328 U.S. 217, 220, 66 S. Ct. 984, 985, 90 L. Ed. 1181 (1946); Ballard v. United States, 329 U.S. 187, 192-93, 67 S. Ct. 261, 264, 91 L. Ed. 181 (1946); Alvarado v. State, 486 P.2d 891, 898 (Alaska 1971); Green, 462 P.2d at 997; see also Simmons v. United States, 406 F.2d 456, 462 (5th Cir. 1969).
(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.[]
Tugatuk v. State, 626 P.2d 95, 100 (Alaska 1981) (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579 (1979)).
Tugatuk v. State, 626 P.2d 95, 100 (Alaska 1981) (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579 (1979)).
In support of his claim that none of the prospective jurors in his case was Alaska Native, Cassou merely cites to the jury selection list, which consisted of sixty-one names, and asserts that none of the prospective jurors "appeared" to be Alaska Native. Cassou asks us to assume from this list of names that none of the prospective jurors in his case was Alaska Native. This is clearly insufficient evidence to support Cassou's claim that Alaska Natives were under-represented on his venire. Further, Cassou has failed to show that any under-representation that might have existed was due to "systematic exclusion" of Alaska Natives in the jury-selection process.
In Alaska, the list of potential jurors is based on the list of applicants for the Alaska Permanent Fund Dividend. The local Fairbanks jury list contains those applicants who live within a fifty-mile radius of Fairbanks. Cassou argues that no known measures are taken to determine whether the Permanent Fund Dividend list contains a proportionate number of Alaska Natives. But the legislature appears to have concluded that Alaska residents are strongly motivated to apply for the Permanent Fund Dividend, and that dividend applications therefore provide a representative and non-discriminatory list of Alaska residents to serve on juries. This assumption seems reasonable, and Cassou has not presented any information to cause us to question this assumption. We accordingly reject Cassou's claims.
AS 09.20.050(b).
Alaska R. Admin. P. 15(b)(I).
Why we conclude that the inclusion of the words "felony" and "indictment" on the verdict form was not plain error
Cassou argues that Superior Court Judge Robert B. Downes erred in rejecting his motion for a new trial, a motion based in part on the fact that the verdict form contained the words "felony" and "indictment."
Before trial, Cassou successfully moved to have his trial bifurcated to allow the jury to first determine whether he was guilty of driving under the influence. The jury would then determine whether Cassou had the requisite prior convictions to support a felony conviction. Although Judge Downes and counsel went to considerable effort to avoid informing the jury of Cassou's prior convictions during the first phase of this bifurcated trial, the verdict form that went to the jury stated that the jury was to find Cassou either guilty or not guilty "of the crime of Felony Driving Under the Influence, as Charged in the Indictment."
See Ostlund v. State, 51 P.3d 938, 941 (Alaska App. 2002).
Given the record, it seems fairly obvious that it was an oversight to give the jury a verdict form indicating that Cassou was charged with felony driving under the influence. But Alaska Criminal Rule 30(a) declares that "[n]o party may assign as error any portion of the charge [to the jury] . . . unless the party objects thereto before the jury retires to consider its verdict." Thus, even though Cassou sought a mistrial on this ground, and later moved for a new trial on this same ground, because he failed to object to the verdict form before it was received by the jury he must now show that the mistake in the verdict form amounted to plain error.
Under Alaska law, a defendant charged with felony driving under the influence is entitled to ask for bifurcation of his or her trial, so that the issue of the defendant's guilt on the occasion in question is separated from the issue of the defendant's prior convictions. But as Judge Downes noted when he denied Cassou's request for a mistrial, there will be times when, despite the efforts of the judge and the attorneys, one or more trial jurors will deduce that the defendant is on trial for a felony simply from the fact that the trial is taking place in the superior court and the jury consists of twelve members.
See Ostlund, 51 P.3d at 941-42.
Cassou's argument rests on the contention that, if the jurors understood that he was charged by indictment with a felony, they must likewise have understood that driving under the influence is only a felony under Alaska law if the defendant has two or more prior convictions for DUI or breath-test refusal after January 1, 1996 or within the ten years preceding the offense. But absent some factual proof that the general population shares this level of knowledge of the law, we are unwilling to assume that any of Cassou's jurors knew this.
See AS 28.35.030(b), (n).
Finally, even assuming that one or more of the jurors might have known that a charge of felony driving under the influence meant that Cassou had prior convictions, the jurors were instructed to confine themselves to the evidence presented at trial, and the parties took care to make sure that no evidence of Cassou's prior convictions was admitted during the first phase of his trial.
For these reasons, we conclude that Cassou has not established plain error.
Why we conclude that Cassou was not entitled to Nygren credit for time spent on electronic monitoring
Cassou contends that Judge Downes erred in refusing to give him credit toward his jail sentence for the time he was subject to court-ordered electronic monitoring. Judge Downes concluded that our decision in Matthew v. State precluded giving Cassou credit.
152 P.3d 469 (Alaska App. 2007).
Alaska Statute 12.55.025(c) entitles defendants, upon sentencing, to "receive credit for time spent in custody pending trial, sentencing, or appeal, if the detention was in connection with the offense for which the sentence was imposed." In Nygren v. State, we held that a defendant could receive credit for time served under circumstances "approximating those experienced by one who is incarcerated."
Id. at 146 (citing Paul v. State, 560 P.2d 754, 758 (Alaska 1977)).
In Matthew, we examined whether court-ordered electronic monitoring subjected the defendant to conditions approximating incarceration in satisfaction of Nygren. Through a global positioning system and ankle bracelet that monitored alcohol consumption, a private company monitored Matthew's activities to ensure that he did not consume alcohol and was either at his residence, at work, or commuting in between. Applying the factors set out in Nygren, we held that the conditions of release imposed on Matthew did not approximate "those experienced by one who is incarcerated."
Matthew, 152 P.3d at 472-73.
Id. at 470, 472-73.
Id. at 471-73.
Specifically, we emphasized that "Matthew's day-to-day activities were unencumbered by the kind of institutional rules and routines that are the hallmark of correctional or residential rehabilitative facilities." As opposed to the "structured, regimented life style that is the central feature of both incarceration and residential treatment programs," Matthew could essentially do anything he wanted so long as he did not consume alcohol and was at home or at work. In addition, Matthew "did not suffer from the same lack of privacy experienced by an offender in an incarcerative facility or residential treatment program" and was "free to associate with whomever he wanted."
Id. at 472.
Id. at 472-73.
Id. at 473 (citations omitted).
Cassou attempts to differentiate his bail restrictions from those in Matthew. Cassou points to the fact that he was released to a third-party custodian to buttress his claim that his restrictions were more confining than those in Matthew. But we rejected this contention in Fungchenpen v. State. Cassou also attempts to distinguish his case from Matthew by pointing out that his release was pending trial, sentencing, and appeal, whereas Matthew was released pending the beginning of his sentence. But we fail to see how this distinction would change our analysis.
181 P.3d 1115 (Alaska App. 2008).
Finally, Cassou contends that Matthew does not prohibit trial courts from granting credit for time served on electronic monitoring — i.e., he argues that trial courts retain discretion to grant credit for time served on electronic monitoring. But in Matthew, we stated that one goal of our decision was to "set[] uniform statewide standards" in order to help "eliminate unjustified disparit[ies]" in sentencing. We have subsequently applied Matthew to a wide range of cases where defendants were released on electronic monitoring but continued to live at home, pursued their normal employment, and did not suffer restrictions equivalent to incarceration. Cassou has not differentiated his case from these other cases in which we have held that the defendant was not entitled to credit toward his jail sentence for time served on court-ordered electronic monitoring. We therefore affirm Judge Downes's decision.
Matthew, 152 P.3d at 472.
See, e.g., Fungchenpen, 181 P.3d 1115 (defendant required to have third-party custodian, restricted to work, home, and transit in between, and ordered not to possess firearms, consume alcohol, or contact victim and witnesses); Ackerman v. State, 179 P.3d 951 (Alaska App. 2008) (defendant restricted to work, home, and transit in between, and ordered not to consume alcohol); State v. Stafford, Alaska App. Memorandum Opinion and Judgment No. 5373 (July 30, 2008), 2008 WL 2907806 (defendant restricted to work, home, and transit in between, and ordered not to consume alcohol); McNeil v. State, Alaska App. Memorandum Opinion No. 5216 (May 9, 2007), 2007 WL 1378151 (defendant subjected to conditions "essentially equivalent to . . . Department of Corrections' electronic monitoring program"); Finkel v. State, Alaska App. Memorandum Opinion and Judgment No. 5186 (March 7, 2007), 2007 WL 706637 (defendant restricted under "secure continuous remote alcohol monitoring" (SCRAM) program).
Conclusion
The judgment of the superior court is AFFIRMED.