Opinion
Court of Appeals No. A-10842 Trial Court No. 4FA-09-4597 CR No. 5872
08-29-2012
BRENT TYLER GUNNELS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Kenneth L. Covell, Fairbanks, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael McConahy, Judge.
Appearances: Kenneth L. Covell, Fairbanks, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Brent Tyler Gunnels was convicted of felony driving while under the influence of alcohol. On appeal, he claims that the trial court erroneously excluded another person's out of court statement that he, not Gunnels, was driving the vehicle. He also claims that the trial court erred when it instructed the jury on the definition of "operating" a motor vehicle because the issue was whether he was a driving a vehicle, not whether he was operating one. He also asserts that the "operating" instruction given in this case was plainly erroneous because it told the jury that if the State proved certain facts, then the jury was required to find that he operated the vehicle. For the reasons explained here, we conclude that the superior court committed no error and we therefore affirm its judgment.
AS 28.35.030(a), (n).
Background
On November 22, 2009, William Stewart was driving his vehicle in Fairbanks when he saw a Jeep Cherokee go out of control, slide across University Avenue, bounce over a curb, and come to rest in a ditch adjacent to University Avenue. When Stewart stopped near the Jeep, he and his passenger, Mark Love, saw one person get out of the Jeep from the driver's side, stumble around to the back of the Jeep, and then stagger across University Avenue toward a shopping center. Stewart briefly spoke with the man; at trial he identified the man as Gunnels.
Both Stewart and Love called 911 to report the accident. They both described the person they saw leaving the Jeep as wearing a black jacket, blue jeans, and a white hat. Stewart said that the man was white or Native. Love said that the man was Hispanic or Native.
Troopers arrived soon after the report was made. They found Gunnels and another man, Dwight Emerson, in the shopping center's parking lot. Gunnels and Emerson were not together when the troopers found them; they were about 100 feet apart. Gunnels's clothing matched the description given by Stewart and Love in their 911 calls; Emerson's clothing did not. In addition, Emerson was African-American, and neither witness had described the man they saw leave the Jeep as an African-American. Furthermore, Stewart testified that he saw a trooper speak to the man who had gotten out of the Jeep — that is, he saw the trooper speak to Gunnels.
Trooper Clarence Smyth arrived and contacted Gunnels because Gunnels was the only person in the area who fit the description given in the 911 call. Smyth interviewed Gunnels, who denied driving and denied any knowledge of the Jeep. But Gunnels fit the description of the person who had emerged from the Jeep, and he appeared intoxicated, so Smyth had him perform some field sobriety tests. Gunnels failed the tests, and he was arrested for DUI. Later testing showed that his blood alcohol content was .221 percent. Sometime after the arrest, troopers discovered that the Jeep belonged to Gunnels's mother.
Meanwhile, Trooper William Dooley interviewed Emerson in the parking lot. Emerson initially denied any knowledge of the Jeep and said that he had come from a bar called Kodiak Jack's. He also gave conflicting explanations about how he arrived in the area. Emerson first said that a cab had dropped him off, but then he said that he had walked there. He also said that he had driven there, but then again said that he had been driven in a cab.
Dooley arrested Emerson for falsely reporting about the accident. After his arrest, Emerson told Dooley that he had not wanted to get Gunnels into trouble because they were friends. He then said that "[Gunnels] was driving, he's drunk, and we slid into the ditch. I didn't mean to lie to you; I just didn't want anybody to get into trouble."
A third state trooper, Gary Tellep, investigated the accident scene and photographed the Jeep. He saw that there were two sets of footprints leading away from the Jeep, one set from each side.
Gunnels was charged with felony DUI.
On the first day of trial, the State learned that Emerson was going to invoke his privilege against self-incrimination. Ultimately, a superior court judge ruled that Emerson had a valid basis for invoking the privilege. The State declined to grant Emerson immunity.
Gunnels then suggested that he would introduce the portion of Emerson's out-of-court statement where he said he had been driving. The State objected. Superior Court Judge Michael McConahy postponed ruling on this issue until Gunnels actually sought to introduce this evidence.
After the State had rested its case-in-chief, Gunnels again raised the question of Emerson's hearsay statement. He argued that the statement was admissible under Evidence Rule 804(b)(3) as a statement against interest because Emerson was unavailable. Judge McConahy ruled that Gunnels had failed to satisfy the requirement of Rule 804(b)(3) that there was sufficient corroboration to establish the statement's trustworthiness.
When the parties discussed jury instructions, Gunnels objected to the instruction defining the terms "drive" and "operate." Gunnels argued that the definition of "operating" was not necessary in this case and would confuse the jury. He also argued that the instruction's examples of what it means to "operate" a vehicle should be omitted. Judge McConahy overruled these objections and gave the challenged instruction to the jury.
Gunnels was convicted of felony DUI, and he now appeals.
Discussion
Judge McConahy could reasonably exclude Emerson's statement.
As already explained, when Trooper Dooley interviewed Emerson in the parking lot, Emerson initially denied any knowledge of the Jeep and said that he had just arrived from Kodiak Jack's bar. Emerson then made a number of conflicting statements in an effort to explain his presence in the parking lot. He claimed that a cab had dropped him off at the shopping center, but then said he had walked to the shopping center. He also said that he had driven to the shopping center, although he changed this story, too, and again said that he had been driven there in a cab.
Finally, after he was arrested for making a false report, Emerson stated that Gunnels was driving; Emerson explained that he had lied because he did not want to get Gunnels into trouble.
Gunnels contends that Emerson's statement that he was driving was admissible under Evidence Rule 804(b)(3) as a statement against interest. Gunnels acknowledges that under Rule 804(b)(3), the proponent of the hearsay must show that "corroborating circumstances clearly indicate the trustworthiness of the statement." But he claims that Judge McConahy erred when he ruled that Gunnels had failed to show sufficient corroboration to establish the statement's trustworthiness. He asserts that the statement was "clearly trustworthy" because Emerson smelled of alcohol and was near a vehicle that was in a ditch.
The Commentary to Alaska Evidence Rule 804(b)(3) explains that "[t]he requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication." And we have stated that under Alaska law, the corroboration requirement "recognizes a significant risk that out-of-court statements purporting to exculpate the accused in a criminal proceeding may be unreliable." The Commentary also clarifies that the requirement of corroboration is not a question for the jury: this requirement is a preliminary question for the trial judge under Evidence Rule 104(a).
Garroutte v. State, 683 P.2d 262, 267 (Alaska App. 1984).
At trial, Gunnels offered the following corroboration: Emerson was on the scene, he was interviewed by police officers, and he was a suspect in the matter. He also pointed out that there were two sets of footprints coming from the Jeep, and that the two men were found a short distance from the Jeep at 3:00 in the morning in 35-below-zero weather.
But Judge McConahy found that Gunnels had not shown that corroborating circumstances clearly indicated that Emerson's statement was trustworthy. Judge McConahy pointed out that, during the interview, Emerson gave "four different versions" of how he had arrived at the shopping mall — "none of which are consistent." Based on Emerson's contradictory statements, Judge McConahy ruled that "I find that [his statement] is not corroborated by anything that would say that his statement is trustworthy to any extent... . So I'm not going to admit it [as] a trustworthy exception."
We review a trial court's decision to exclude a hearsay statement under Evidence Rule 804(b)(3) for an abuse of discretion. Here, the record shows Emerson made several contradictory statements within a short span of time, and he ultimately stated that he had lied when he said that he had driven the vehicle in order to keep Gunnels out of trouble. We conclude that Judge McConahy did not abuse his discretion.
See Bright v. State, 826 P.2d 765, 771 (Alaska App. 1992); Garroutte, 683 P.2d at 265-67.
Gunnels also makes a cursory argument that exclusion of Emerson's statement violated Gunnels's due process right to present a defense. But we rejected a similar due process claim in Garroutte. There, we concluded that Evidence Rule 804(b)(3) meets the constitutional requirements for determining the admissibility of statements against interest, so that excluding a statement that is not admissible under Rule 804(b)(3) does not violate due process. We reached a similar conclusion in Bright. We likewise conclude that the superior court did not violate Gunnels's right to due process by excluding Emerson's hearsay statement.
Id.
The judge's decision to instruct the jury on the definition of "operating" a motor vehicle was harmless.
Over Gunnels's objection, Judge McConahy instructed the jury on the definition of "operating" a motor vehicle. Gunnels objected on the ground that because the case was tried "solely" under a driving theory, the operating instruction would confuse the jury. The State asked that the operating instruction be given, and Judge McConahy found that the instruction was "an accurate reflection" of the law.
On appeal, Gunnels asserts that the operating instruction was superfluous because his case did not involve a vehicle incapable of movement, but instead involved "a straightforward driving case." And he claims that the operating instruction was confusing, because a jury might have believed that it had to find a passenger guilty of DUI if the passenger moved briefly into the driver's seat while getting out of a running vehicle.
Gunnels was indicted for "driving or operating" a motor vehicle while under the influence. Consequently, the jury was instructed that the State, among other things, had to prove that Gunnels had knowingly driven or operated a motor vehicle. Judge McConahy instructed the jury that the terms "drove" and "operated" as used in the instructions refer to different acts. He explained that the act of driving involves actual movement of a motor vehicle caused by the acts of the driver. But he also instructed the jury that driving "necessarily includes the act of operating a motor vehicle." Gunnels did not object to this part of the instruction, only to the portion that followed.
The portion that Gunnels objected to explained that:
To "operate" a motor vehicle means to drive or to have actual physical control over the vehicle. Factors for determining whether a person was in actual physical control of a motor vehicle include whether the person is asleep or awake, whether the motor is running, and the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location.This instruction provided three examples that illustrated what it means to be in actual physical control over a vehicle. Gunnels also objected to these examples.
Gunnels does not claim that the instruction was an inaccurate statement of Alaska law. Instead, he asserts that the instruction was confusing because the jury might have thought that a passenger was "operating" the vehicle just because that person moved across the driver's seat while getting out of a vehicle. But this was not his defense theory — Gunnels did not argue that he was only a passenger who had moved across the driver's seat to get out of the Jeep after the accident. Rather, he argued that there were two people in the Jeep and no one saw which one was driving.
More importantly, the State did not argue that Gunnels was a passenger who slid across the driver's seat momentarily. Rather, the State's theory at trial was that Gunnels drove the vehicle. The prosecutor argued to the jury that "the defendant was under the influence of alcohol, the defendant drove his car, the defendant wrecked his car [in] the ditch, and the defendant fled the scene." In her closing statements, the prosecutor reiterated her theory: "[N]obody else drove that car but Mr. Gunnels. Mr. Gunnels is the intoxicated driver, and his own statements show his consciousness of that guilt."
In light of these arguments, we conclude there is no reason to believe that the pattern instruction confused the jury.
The trial judge did not commit plain error when he instructed the jury that if the State proved certain facts, then the jury had to find that Gunnels was operating the vehicle.
On appeal, Gunnels also argues that the "operating" instruction was erroneous because it "impermissibly shifts the burden of proof by telling the jury it must ... find Gunnels guilty." Because he did not object to the "operating" instruction on this ground at trial, he must now show plain error.
Among other things, plain error occurs when there is an error, and the error is so obvious that any competent judge or lawyer would have perceived it. Here, Judge McConahy based the instruction he gave off of a pattern jury instruction addressing "operating." Gunnels in essence claims that relying on the established pattern instruction was plain error.
See Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985) superseded by statute on other grounds as recognized in Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996).
See Alaska Criminal Pattern Jury Instruction — 28.35.030(a) "Operating" (2011 Revision) (zipped file available at http://courts.alaska.gov/crimins.htm ).
In Hilbish v. State, we rejected a similar claim of plain error when the jury instruction challenged on appeal was based on an Alaska Criminal Pattern Jury Instruction. The instruction defined reasonable doubt. Because the jury instruction on reasonable doubt was regularly given in criminal cases, we found that "it is difficult to understand how the wording Hilbish complains of could be deemed obvious error."Gunnels's circumstances are similar. As the State points out in its brief, the "operating" instruction was based on a long-standing Alaska Criminal Pattern Jury Instruction. Because the operating instruction is regularly given to juries in DUI cases, we conclude that giving this instruction cannot be considered an obvious error.
891 P.2d 841 (Alaska App. 1995).
Id. at 851.
Id.
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In addition, the instruction does not impermissibly shift the burden of proof or require the jury to find Gunnels guilty. Instead, the instruction informed the jury that if the State proved certain facts regarding the level of control Gunnels had over the vehicle, then under the law, Gunnels was "operating" the vehicle. This instruction accurately states the Alaska law on this issue. We conclude that the trial judge did not commit plain error.
Conclusion
The judgment of the superior court is AFFIRMED.