Opinion
Court of Appeals No. A-11260 No. 6096
09-24-2014
PAMELA G. CONRAD, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Heather Sia, Valcarce Law Office, LLC, Bethel, for the Appellant. Ben Wohlfeil, Assistant District Attorney, 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 precedent for any proposition of law. Trial Court No. 4BE-10-623 CR
MEMORANDUM OPINION
Appeal from the District Court, Fourth Judicial District, Bethel, Leonard R. DeVaney III, Judge. Appearances: Heather Sia, Valcarce Law Office, LLC, Bethel, for the Appellant. Ben Wohlfeil, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge HANLEY.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Pamela G. Conrad appeals her conviction for driving under the influence, claiming the trial court committed several errors. Conrad argues the trial court (1) improperly denied her motion to suppress her breath test based on her claim that the trooper did not observe her for the mandatory fifteen minutes before her breath test and allegedly denied her the right to talk with an attorney after her arrest, (2) improperly denied discovery of documents relating to the Datamaster (an instrument which measures breath alcohol), (3) erred in allowing the State to introduce evidence of a preliminary breath test showing she had consumed alcohol, and (4) improperly prohibited her from cross-examining an expert witness about problems with "alco bottles," which are part of a quality assurance process used with the Datamaster.
We conclude that the trooper substantially complied with the mandatory observation period before administering the breath test and that he did not violate Conrad's right to consult with an attorney. We also conclude the trial court did not err in limiting her access to the Datamaster records. Any error in admitting the preliminary breath test evidence was harmless. And the trial court reasonably limited Conrad's cross-examination regarding issues with the alco bottle. Therefore, we affirm her conviction.
Facts and proceedings
On July 4, 2010, Alaska State Trooper Dustin Jorgensen stopped Conrad for driving without a seatbelt. He ultimately arrested her for driving under the influence and took her to the trooper post for administration of a breath test.
During the fifteen-minute observation period before Conrad's breath test, the trooper allowed Conrad to use the bathroom. While Conrad was in custody, she talked with her husband by telephone and asked him to contact an attorney. The husband and attorney arrived at the trooper post just after the trooper administered the breath test. Conrad's breath test result was .149 percent.
After the State charged Conrad with DUI, Conrad filed a motion to suppress her breath test result, arguing the trooper did not observe her for fifteen minutes before administering the breath test because she was out of his sight in the bathroom. After holding an evidentiary hearing and reviewing a recording of the DUI processing, Superior Court Judge Leonard R. DeVaney III, sitting in the district court, denied her motion. He concluded the trooper adequately monitored Conrad by standing outside the bathroom door and listening to her for the less than two minutes she was in the bathroom.
Conrad then filed a second motion to suppress, arguing Trooper Jorgensen denied her the right to consult with an attorney before giving a breath sample. The trial court denied Conrad's motion, finding the attorney did not arrive at the trooper post until after Conrad gave her breath sample and concluding the trooper was not required to postpone the breath test to wait for the attorney to arrive.
Conrad also filed a motion to compel discovery from the Alaska Crime Lab, requesting "any and all documentation regarding the purchase, calibration, certification, installation, maintenance, and repair" of the Datamaster instrument used in her case. The court concluded the discovery request was too broad but required the State to produce the repair records for the Datamaster for one year preceding Conrad's breath test.
During trial, Conrad requested the court to order the trooper not to mention the preliminary breath test (PBT). The court denied the request and allowed the State to elicit testimony from the trooper that he administered the PBT to Conrad and that it indicated the presence of alcohol.
The State called Colleen O'Bryant, a forensic scientist at the State Crime Lab, as an expert witness. During Conrad's cross-examination of O'Bryant, the State moved to exclude any evidence concerning problems with the alco bottles used by the Crime Lab in the operation of the Datamaster instruments. The court allowed Conrad to question O'Bryant, outside the presence of the jury, regarding this issue. Because Conrad failed to show that any issue concerning the alco bottles affected her breath test, the court ruled the matter was irrelevant and potentially would confuse the jury. Consequently, the court prohibited Conrad from developing this issue in cross-examination.
The jury convicted Conrad of DUI, and Conrad appeals her conviction.
Analysis
A. Substantial compliance with the fifteen-minute observation period
In Alaska, an officer must "observe the person to be tested for at least 15 minutes immediately before testing, to ensure that the person does not regurgitate or place anything in his or her mouth during that period." Conrad argues the trial court should have interpreted this language to require the officer to visually watch her for fifteen uninterrupted minutes before administering the breath test. She claims the officer did not meet this requirement because he stood outside the bathroom and listened through the door.
Alaska law allows breath test evidence to be admitted if the officer substantially complies with the fifteen-minute observation period. In Conrad's case, the trial court found that Trooper Jorgensen observed Conrad for twenty-four minutes before Conrad's breath test. The court found that Trooper Jorgensen visually and auditorily monitored Conrad from the time they entered the trooper post until she gave a breath sample, except for the period of less than two minutes when Conrad was in the bathroom, during which time the trooper auditorily observed her by listening closely at the bathroom door. The court also found there was no evidence in the record showing Conrad regurgitated during the fifteen minutes preceding the Datamaster test.
See Wester v. State, 528 P.2d 1179, 1184-85 (Alaska 1974).
Based on the trial court's findings of fact, we conclude that Trooper Jorgensen substantially complied with the observation period.
B. Reasonable opportunity to communicate with an attorney
Conrad also claimed that the trooper violated her right to consult with an attorney before she decided whether to submit to a breath test. The trial court denied Conrad's motion, finding that her attorney did not arrive until after the breath test. He further ruled the trooper had no obligation to wait for the attorney to arrive or to let the attorney inside the trooper post if doing so would delay the breath test.
Under the Alaska Supreme Court's decision in Copelin v. State, a person arrested for driving under the influence has the right to attempt to contact and consult with an attorney during the observation period before taking a breath test. In Grossman v. State, this Court held that an arrestee's right to contact an attorney does not include the right to interrupt the actual administration of the breath test.
659 P.2d 1206, 1212-14 (Alaska 1983).
Grossman v. State, 285 P.3d 281, 284-85 (Alaska App. 2012); see also Aubrey v. Anchorage, 2014 WL 2937878 (Alaska App. June 25, 2014) (unpublished).
The trooper honored Conrad's request to make phone calls during the observation period, and she made two calls, apparently to her husband. After the observation period, the trooper prepared the Datamaster and Conrad provided a sample of her breath. Shortly thereafter, someone knocked at the door of the trooper post. The trooper escorted Conrad outside, where she met with an attorney and her husband.
We note that a phone rang twice during the processing — shortly after the Datamaster was ready for Conrad's breath sample and again after she gave her breath sample. But there is no evidence of who was calling. Also, the DUI processing occurred at the Alaska State Trooper post in Bethel, and it is unknown what phone rang — the trooper's personal cell phone, the main phone for the trooper post, or a phone assigned to a particular employee at the trooper post. And both of the calls happened after the trooper had prepared the Datamaster and it was ready to accept Conrad's breath sample.
Because the trooper honored Conrad's request to make phone calls, and because her attorney arrived after the breath test was completed, we affirm the trial court's ruling that the trooper did not violate Conrad's right to consult with counsel during the observation period.
C. The Datamaster records
Relying on Alaska Rule of Criminal Procedure 16(b)(7), Conrad filed a motion to compel the Alaska Crime Lab to produce "any and all documentation regarding the purchase, calibration, certification, installation, maintenance, and repair" of the Datamaster used in her case. She complained that the Crime Lab's discovery policy covered only the "production of documents regarding the calibration, certification, and repair of the Datamaster in question, and limit[ed] the information to that which [was] closest in time prior to the subject breath test in question." She argued the materials she requested were relevant to whether the Datamaster was reliable and functioning properly on the day of her breath test.
The State opposed Conrad's motion, arguing it was overbroad and characterizing it as a fishing expedition. The trial court agreed Conrad's request was too broad and granted the motion only as to the Datamaster repair records for the year prior to Conrad's breath test.
We are to uphold this decision unless the court abused its discretion.
Sawyer v. State, 244 P.3d 1130, 1133 (Alaska App. 2011) ("An abuse of discretion has occurred when the reasons for the exercise of the trial judge's discretion are clearly untenable or unreasonable.").
The question under Criminal Rule 16(b)(7) was not just whether the records were relevant, but also whether the records were material to Conrad's defense. On appeal, Conrad does not discuss Criminal Rule 16(b)(7)'s requirements — specifically, she does not discuss the fact that she had the burden of showing materiality.
Alaska R. Crim. P. 16(b)(7); see Sawyer, 244 P.3d at 1133-34 ("[I]nformation covered by Rule 16(b)(7) need be produced on request only after a showing of materiality."); Carman v. State, 658 P.2d 131, 140 (Alaska App. 1983) ("Items ... covered by Rule 16(b)(7) need be produced only on request and only where their materiality is shown.").
See Gunnerud v. State, 611 P.2d 69, 72 n.8 (Alaska 1980) (describing "materiality" in this context to mean "germaneness of the ultimate point to issues in the trial") (original citation omitted); see also Sawyer, 244 P.3d at 1133-34 (Alaska App. 2011) (the requirement that discoverable information be relevant "will justify nondisclosure of information that is 'reasonably not thought to be germane to the case'") (original citation omitted).
According to Conrad's briefing, the Crime Lab has a policy of giving criminal defendants access only to "documents regarding the calibration, certification, and repair" of the Datamaster that are close in time to the defendants' tests. Conrad does not allege the Crime Lab violated its policy in producing these documents. Also, Conrad did not explain to the trial court how records from prior years would relate to issues at her trial or, for example, how the purchase records of the Datamaster were relevant. The court granted her access to the repair records of the Datamaster for the year prior to her test. After receiving these records, Conrad did not return to the court with a renewed discovery request alleging any specific relevance or issues concerning the Datamaster justifying more extensive discovery.
Because Conrad did not meet her burden of showing the additional discovery she sought was material to her defense, and because she has failed to make any showing of actual prejudice stemming from the more limited discovery ordered by the trial court, we affirm the judge's discovery ruling.
D. Evidence of the PBT test and the test result showing the presence of alcohol
Over Conrad's objection, the trial court allowed Trooper Jorgensen to testify he administered a preliminary breath test to Conrad as part of his investigative procedures and the PBT indicated the presence of alcohol. On appeal, Conrad argues that the trial court erred in admitting this evidence and complains that the PBT evidence improperly bolstered the Datamaster result.
While a PBT result generally is not admissible without a showing that the test is scientifically reliable, the State did not seek to admit a result from the PBT indicating a particular amount of alcohol that may have been detected. Rather, the State only presented evidence that the test indicated the presence of alcohol.
See Guerre-Chaley v. State, 88 P.3d 539, 543-44 (Alaska App. 2004); see also Painter v. State, 2007 WL 706752, at *4-5 (Alaska App. Mar. 9, 2007) (unpublished); Halley v. State, 1991 WL 11650674 (Alaska App. Jan. 16, 1991) (unpublished); Pickarsky v. State, 1987 WL 1358665 (Alaska App. Feb. 18, 1987) (unpublished).
Regardless of whether the evidence should have been admitted, it was clearly harmless because it had no appreciable effect on the jury's verdict. The PBT's confirmation of the presence of alcohol was merely cumulative to other, stronger evidence at trial.
See Love v. State, 457 P.2d 622, 631 (Alaska 1969).
At trial, Trooper Jorgensen testified he stopped Conrad at about 11 p.m. on the fourth of July 2010. When he contacted her, he noticed the odor of alcohol coming from her breath and person, she had bloodshot, watery eyes, and her speech was slightly slurred. Conrad told Trooper Jorgensen she had consumed a few beers about an hour earlier (later clarifying it was three beers), and she failed the field sobriety tests. When tested on the Datamaster, Conrad's breath alcohol content was .149 percent.
Given the multiple indicia that Conrad had consumed alcohol, we conclude any error in admitting the PBT's detection of alcohol was harmless.
E. Evidence of issues with the alco bottles
The State called Colleen O'Bryant as an expert witness on the subject of breath testing. On direct examination, she testified about how the Datamaster works, including its internal and external quality assurance mechanisms. She explained that the external alco bottle supplies a sample of air with a known quantity of alcohol into the Datamaster in order to determine whether the Datamaster accurately measures its quantity of alcohol. During Conrad's cross-examination of O'Bryant, the State sought a protective order prohibiting Conrad from asking O'Bryant about a problem with alco bottles the Crime Lab had produced.
The parties presented to the judge information revealing extensive, pending litigation in Anchorage based on the fact that the Crime Lab erroneously calculated the amount of alcohol in approximately forty-nine alco bottles used throughout Alaska. O'Bryant testified that the alco bottle used in Conrad's case was not one of these forty-nine bottles.
Conrad argued she should be able to cross-examine O'Bryant regarding the alco bottle issue to show problems with the State's quality assurance and to discredit the validity of Conrad's breath test. After allowing Conrad to question O'Bryant outside the presence of the jury, the trial court granted the State's request for a protective order. The court reasoned that possible testimony from O'Bryant regarding the erroneously calculated alco bottles in the ongoing litigation was not relevant to the issues in Conrad's case, and that presenting the issue to the jurors could confuse them.
On appeal, Conrad argues the trial court erred in concluding the alco bottle evidence was irrelevant. She argues that general issues with the Crime Lab's quality assurance measures were relevant to the validity of her breath test. But she does not challenge the judge's factual finding that the alco bottle issue did not affect her personal breath test, and she does not challenge the judge's ruling that the evidence would have been confusing to the jury.
Criminal defendants have the right to cross-examine adverse witnesses and evidence. This Court reviews a trial court's ruling regarding the limits of cross-examination for an abuse of discretion.
Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986).
See Mustafoski v. State, 954 P.2d 1042, 1048 (Alaska App. 1998).
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When Conrad initially responded to the State's request for a protective order concerning this evidence, she argued she had the right to cross-examine the State's breath alcohol program expert about the State's quality assurance procedures for its breath alcohol testing program. We agree this would have been an appropriate area of cross-examination.
But after questioning O'Bryant outside the presence of the jury about the alco bottle problem and the related litigation that was occurring in Anchorage, Conrad abandoned this broader scope of cross-examination and narrowed her focus. She told the judge, "I would basically be asking four areas of questions ... : what was the problem, what was identified, ... has there been an independent investigation and findings as to what the problem was, the timeframe and the cases that were affected. ...[T]hose are the ... areas that I would ask questions on."
The trial court could reasonably foresee that questions focusing on the alco bottle investigation could turn Conrad's trial into a mini-trial about the alco bottles and end up confusing the jury. Had Conrad remained focused on the overall quality assurances the State used in its breath test program, the court could have allowed her to generally cover the alco bottle issue as an example of a failure in the State's quality assurance program. But Conrad asked to focus on a specific problem with alco bottles not used in her case and to develop the problem in unwarranted detail.
For these reasons, we conclude the trial court acted within its discretion when it limited Conrad's cross-examination of O'Bryant.
Conclusion
We AFFIRM the judgment of the district court.