Opinion
Court of Appeals No. A-11616 No. 6264
12-30-2015
HAROLD D. GREENWAY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Nancy Driscoll Stroup, The Law Office of Nancy Driscoll Stroup, Palmer, for the Appellant. Mary A. Gilson, 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. 3PA-12-1672 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa White, Judge. Appearances: Nancy Driscoll Stroup, The Law Office of Nancy Driscoll Stroup, Palmer, for the Appellant. Mary A. Gilson, 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).
Following a jury trial, Harold D. Greenway was convicted of felony driving under the influence. Greenway appeals his conviction, raising three claims of error. Greenway contends first that his traffic stop was unlawful, and that the superior court therefore erred in denying his motion to suppress the evidence obtained as a result of the stop. Greenway contends next that the troopers violated his right under Copelin v. State to contact counsel before deciding whether to submit to a breath test, and that the superior court therefore erred in denying his motion to suppress the evidence of his breath test result. Lastly, Greenway contends that the superior court committed error when it precluded Greenway's defense attorney from using a particular visual aid during closing argument. For the reasons explained here, we find no merit to these claims.
659 P.2d 1206 (Alaska 1983).
Greenway also challenges his sentence, asserting that the superior court erred in rejecting his proposed statutory mitigating factors. We also find no merit to this claim. Accordingly, we affirm Greenway's conviction and sentence.
Facts and proceedings
On June 30, 2012 at approximately 9:30 p.m., Harold Greenway was driving an off-road vehicle — similar to a homemade dune buggy — on a dirt trail running alongside Pittman Road in Wasilla. Alaska State Trooper Lee Phillips was driving on Pittman Road at the time. It was still light out, and Phillips saw Greenway holding his left hand out the driver's side window, emptying liquid from a "shiny silver can." When Greenway saw Phillips, he quickly pulled the shiny can out of view and back into his vehicle.
Suspicious that Greenway had been pouring beer out of a can, Trooper Phillips conducted a traffic stop. Phillips was unable to locate the shiny can inside Greenway's vehicle, but he observed that Greenway's breath smelled of alcohol. Greenway denied that the can Phillips saw had been a beer can, but Greenway admitted to consuming "a few beers" earlier in the day. (Greenway's passenger, Carlee Coughlin, later testified at trial that Greenway had been drinking a beer while driving the buggy, and that Greenway discarded the beer can when he saw Trooper Phillips.)
Trooper Phillips called another officer, Trooper Peter Frederick, to assist him with the traffic stop. Trooper Frederick performed field sobriety tests on Greenway. After Greenway performed poorly on the field sobriety tests, Frederick placed him under arrest for driving under the influence. A DataMaster breath test subsequently showed that Greenway's blood-alcohol content was 0.093 percent.
Because he had two prior DUI convictions within the past ten years, Greenway was indicted for felony driving under the influence. The jury subsequently convicted him at trial.
AS 28.35.030(n).
As a second felony offender, Greenway faced a presumptive term of 2 to 4 years to serve. At sentencing, the superior court rejected Greenway's proposed statutory mitigators under AS 12.55.155(d)(9) ("least serious") and AS 12.55.155(d)(12) ("consistently minor harm") and sentenced him to 4 years with 2 years suspended (2 years to serve).
Greenway now appeals his conviction and sentence.
Under the facts found by the superior court, Trooper Phillips had reasonable suspicion to stop Greenway
Prior to trial, Greenway moved to suppress all of the evidence obtained from the traffic stop, arguing that Trooper Phillips lacked reasonable suspicion to conduct the stop. At the evidentiary hearing on Greenway's motion, Trooper Phillips testified that, as he drove on Pittman Road, he observed Greenway "with his left hand out the driver's side window [with] a can in it, shiny, I believe a shiny silver can, pouring liquid out." According to Phillips, Greenway "quickly pulled the can out of [the trooper's] view" once he saw Phillips's patrol car — leading Phillips to believe that the shiny can was a beer can.
The superior court credited Trooper Phillips's testimony and found that these observations, taken together, were sufficient for Phillips to reasonably suspect that Greenway was driving while there was an open container of an alcoholic beverage in the passenger compartment — a violation of AS 28.35.029.
On appeal, Greenway disputes Phillips's characterization of events, pointing out that Trooper Frederick, who arrived second on the scene, listed "littering" as the reason for the stop. Greenway also argues that Trooper Phillips was "not close enough to observe the can Mr. Greenway was holding."
Determinations of credibility are for the trial court, not the appellate court, and we must uphold a trial court's findings of fact unless those findings are clearly erroneous. Here, the record supports the trial court's findings concerning Trooper Phillips's observations, and those observations were sufficient to give the trooper reasonable suspicion of an imminent public danger — i.e., the risk that Greenway was consuming alcoholic beverages while driving. We therefore affirm the superior court's denial of Greenway's motion to suppress the evidence arising from the traffic stop.
Chilton v. State, 611 P.2d 53, 55 (Alaska 1980).
See Coleman v. State, 553 P.2d 40, 46 (Alaska 1976) (concluding that investigative stop permissible where police officer has reasonable suspicion that imminent public danger exists).
The superior court properly denied Greenway's motion to suppress the result of his breath test
Following Greenway's arrest, Trooper Frederick brought Greenway to the trooper station for a breath test. This breath testing procedure was recorded.
Upon their arrival, Frederick moved Greenway's handcuffs to the front of his body to allow Greenway to make phone calls with his mobile phone. Frederick then began the standard fifteen-minute pre-test observation period.
About three minutes into this observation period, Trooper Frederick began describing the breath testing process to Greenway. Greenway interjected, "I want a lawyer." Frederick replied, "Ok, that's fine." He then explained that Greenway would be free to use his phone to call a lawyer once Frederick finished reading Greenway the implied consent warning. Frederick also told Greenway that he could provide Greenway with a phonebook if he wanted one.
When Frederick finished reading the implied consent warning, he told Greenway that he was now free to use his phone. Frederick also told Greenway that it would be several minutes before Greenway had to make the decision whether to take the breath test.
Shortly afterward, Greenway can be heard on the audio recording muttering to himself, "Wow, I wish I had an attorney sitting here." But instead of trying to call a lawyer, Greenway used his phone to call a friend.
Greenway spoke to this friend for about eight minutes. Greenway discussed his arrest, and he made arrangements with his friend for the transport of his vehicle. Greenway did not try to call an attorney, nor did he request a phonebook from Trooper Frederick or otherwise express a desire to make any other phone call.
A little more than fifteen minutes into the breath test processing, after Greenway had been talking to his friend for about eight minutes, Trooper Frederick interrupted Greenway to ask if he had made a decision regarding whether to take the breath test. Greenway ended the call with his friend, and Frederick then asked Greenway for his cell phone (because, apparently, the radiation from a cell phone can interfere with the breath testing machine).
Before the breath test was administered, Greenway asked Frederick a number of questions about the difference between convictions for breath test refusal and driving under the influence, but Greenway did not indicate to Trooper Frederick that he still wished to contact an attorney. Greenway then agreed to take the breath test.
After Greenway was indicted, he filed a motion to suppress the evidence of his breath test result, asserting that Trooper Frederick had unreasonably interfered with his right to contact an attorney under AS 12.25.150(b) and Copelin v. State.
AS 12.25.150(b) provides that: "Immediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with the prisoner's attorney[.]"
659 P.2d at 1206 (holding that AS 12.25.150(b) entitles an arrestee to contact an attorney within a reasonable time period prior to breath testing).
At the evidentiary hearing on this motion, Greenway testified that when Trooper Frederick asked him to end the phone call with his friend, Greenway was "[just] getting ready to call an attorney." Greenway testified that Frederick "forced" him to surrender his cell phone, and that he did not know he could have asked Trooper Frederick for more time to contact an attorney. Greenway also testified that Trooper Frederick should have immediately supplied him with a phonebook when he indicated that he wanted an attorney.
Based on the testimony at the evidentiary hearing, the superior court denied Greenway's suppression motion. The court found that Greenway was given a reasonable opportunity to contact an attorney, but did not do so. The court expressly rejected Greenway's claim that he was "cowed" into surrendering his cell phone to Trooper Frederick, and the court found that Greenway never told Frederick that he wished to make a second phone call.
We have reviewed the evidentiary hearing and conclude that the superior court's findings are well supported by the record. Accordingly, we affirm the superior court's denial of Greenway's motion to suppress the breath test result.
Greenway has failed to allege that the trial court's ruling excluding his attorney's "burden of proof" chart prejudiced him
Prior to presenting his closing argument, Greenway's attorney requested permission to use a chart — a "burden of proof ladder" — as a visual aid during his argument. This chart listed twelve different states of mind that had labels ranging from "guilty beyond a reasonable doubt" to "believed not guilty." In between were states of mind such as "strong belief guilty," "likely guilty," "probably guilty," etc.
The trial judge had apparently seen this chart in other cases because she informed Greenway's attorney that she had a "standing order" precluding the use of this visual aid during closing argument. The judge stated that the chart was potentially confusing to the jury because it included levels of proof "that are not burdens of proof that are recognized under the law[.]"
On appeal, Greenway argues that the trial judge erred by prohibiting his trial attorney from using this chart during final argument. But Greenway does not assert that he was actually prejudiced by the judge's ruling. More specifically, Greenway does not contend that his attorney's ability to argue the case was hampered in any fashion by the judge's ruling. Given Greenway's failure to articulate any potential prejudice, he has failed to allege (much less establish) reversible error.
The superior court did not err in rejecting Greenway's proposed mitigators at sentencing
Prior to sentencing, Greenway filed notice of two proposed mitigators: AS 12.55.155(d)(9), which allows a court to sentence a defendant below the presumptive sentencing range if the defense shows, by clear and convincing evidence, that the conduct constituting the offense was "among the least serious conduct in the definition of the offense"; and AS 12.55.155(d)(12), which allows a court to sentence a defendant below the presumptive range if the defense shows, by clear and convincing evidence, that "the facts surrounding the commission of the offense and any previous offenses by the defendant establish that the harm caused by the defendant's conduct is consistently minor and inconsistent with the imposition of a substantial period of imprisonment."
Greenway's attorney argued that Greenway's blood-alcohol content at the time of arrest — 0.093 percent—placed him on the "lower end" of DUI offenders. The defense attorney also pointed out that Greenway did not drive his vehicle on a highway, but rather off-road, and that there was no evidence that he drove dangerously or even poorly.
The superior court rejected Greenway's proposed mitigator of "conduct among the least serious," finding that Greenway's case was a "pretty standard felony DUI." The court also rejected Greenway's proposed mitigator of "consistently minor harm." The court at first stated that it "[couldn't] imagine a DUI of any kind falling within the minor harm [mitigator]," but then the court qualified that statement, declaring that it would be an "extremely unusual case" in which a court could find this mitigator by clear and convincing evidence.
Greenway argues that the trial judge committed error by declaring that the "consistently minor harm" mitigator could never apply to DUI cases. As we just explained, the sentencing judge did appear to say that at one point. But taking the judge's comments as a whole, we do not read these comments as categorically rejecting this mitigating factor in all DUI prosecutions. Instead, we view the judge's comments as indicating (consistent with applicable case law) that this mitigator would apply only in unusual DUI cases.
See Joseph v. State, 315 P.3d 678, 685-86 (Alaska App. 2013) (finding that the trial judge improperly rejected mitigator 12.55.155(d)(9) when he suggested that, in general, the mitigator was inapplicable in cases in which a defendant is sentenced for perjury); see also Simants v. State, 329 P.3d 1033 (Alaska App. 2014).
See State v. Parker, 147 P.3d 690, 695 (Alaska 2006) ("The presumptive term for a second felony conviction will apply in the majority of cases.").
Moreover, given the facts of Greenway's case, and given the range of conduct that can constitute the offense of driving under the influence, we agree with the superior court that Greenway failed to establish both of these proposed mitigators. The evidence indicated not only that Greenway was intoxicated, but also that he was actively drinking while driving. This conduct, although committed off-road, endangered both Greenway and his passenger.
Further, the superior court correctly rejected the notion that, just because Greenway's current and prior DUI offenses did not result in injury, the offenses qualified as causing "consistently minor harm." The offense of driving under the influence does not require proof that anyone was physically harmed. If an intoxicated driver inflicts injury on another person, that is a separate offense. And as this Court explained in Ison v. State, the "consistently minor harm" mitigator requires a court to consider not only the actual physical injury or property loss occasioned by the defendant's criminal conduct, but also "the risks ... [and the] disruption of the social fabric" that the defendant's criminal conduct entailed.
Ison v. State, 941 P.2d 195, 198 (Alaska App. 1997).
Greenway also asserts, in conclusory terms, that the superior court's sentence of 4 years with 2 years suspended and 3 years of supervised probation did not adequately take account of his prospects for rehabilitation. But Greenway makes no actual argument in support of this claim, nor does he point to anything in the record that would suggest that his prospects for rehabilitation were anything other than poor, as the superior court found.
See State v. Chaney, 477 P.2d 441, 443 (Alaska 1970). --------
Conclusion
The judgment of the superior court is AFFIRMED.