Opinion
Court of Appeals No. A-8595.
July 20, 2005.
Appeal from the District Court, Fourth Judicial District, Fairbanks, Raymond M. Funk, Judge, and Paul Verhagen, Magistrate. Trial Court No. 4FA-02-1656 CR.
Robert B. Downes, Downes, MacDonald Levengood, P.C., Fairbanks, for Appellant.
Danielle S. Simmons, Assistant District Attorney, Jeffrey A. O'Bryant, District Attorney, Fairbanks, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Amy M. Olson was convicted of misdemeanor driving while under the influence. On appeal, she claims that the district court erred when it found that she had not been subjected to a pretextual traffic stop. She also claims that the prosecutor made improper remarks during closing argument. For the reasons set out below, we conclude that the district court did not err when it found that the traffic stop was not a pretext. On the other hand, we agree that the prosecutor made improper remarks during closing argument. But we conclude that reversal is not required because the remarks did not appreciably affect the jury's verdict.
AS 28.35.030(a).
Facts and proceedings
At about 3:50 in the morning on May 26, 2002, Alaska State Trooper Robert J. Wurst saw a Nissan pickup truck leaving the Boatel Bar in Fairbanks. He followed the vehicle and saw it turn into a gas station's parking lot. As he passed the vehicle, he saw that its registration was expired. He also noticed that the driver was no longer in the vehicle. Soon after, he saw the driver return to the vehicle and drive away. Wurst saw no moving violations, but he stopped the vehicle because its registration was expired. Olson was the driver.
Upon contact with Olson, Wurst noticed signs that she might be intoxicated: she fumbled while searching for an appropriate identification card, and she had a strong odor of alcohol, bloodshot, watery eyes, and slurred speech. Wurst administered five field sobriety tests, and Olson failed them all. After she failed the field sobriety tests, Wurst arrested her for driving while under the influence. Later, a DataMaster test indicated that her blood alcohol content was .151 percent.
Prior to trial, Olson moved to suppress the evidence. She claimed that the traffic stop was unlawful because it was a pretext. She argued that Wurst really stopped her because he wanted to see if she was intoxicated. At an evidentiary hearing on this motion, Wurst testified that he suspected Olson might be driving while under the influence because of the late hour and because she was leaving the parking lot of a bar. But he also said that even though he saw no moving violations, he had probable cause to stop Olson for the registration violation.
After the hearing, District Court Judge Raymond M. Funk allowed Olson to submit a brief on pretext stops. But Judge Funk also noted that under Hamilton v. State, even if the trooper stopped Olson because he suspected she was intoxicated, if he had a valid objective basis for the stop — like an equipment violation — then the stop was lawful. After the additional briefing, Judge Funk denied the motion to suppress without further comment.
59 P.3d 760, 764-65 (Alaska App. 2002).
Olson was tried before a jury. During closing argument, Olson's attorney listed what he believed were flaws in how the field sobriety and DataMaster tests were conducted. He then pointed out that despite Olson's high DataMaster result of .151 percent, Wurst had not seen any moving violations while following Olson. The attorney argued that Olson's ability to drive perfectly was strong evidence that the DataMaster result was inaccurate. The attorney emphasized that the trooper, trained to look for intoxicated drivers, did not see her do "one single thing wrong" while she was driving. The attorney then recited a long list of the possible infractions Olson could have committed, but did not. He concluded that Wurst's poor investigation and Olson's perfect driving provided the jury with reasonable doubt.
The prosecutor then made her final remarks. She claimed that Olson was arguing for an acquittal based on "technicalities" and on the lack of bad driving. The prosecutor then asked the jurors: "would you want to be on the road? Would you want your family members to be on the road?" Olson's attorney objected, arguing that the prosecutor was making an improper "golden rule" argument.
Magistrate Paul Verhagen heard Olson's argument outside the presence of the jury. Olson's attorney argued that both the defense and the prosecution were precluded in their arguments from "plac[ing] the jurors into the shoes of someone else." Magistrate Verhagen overruled the objection.
The prosecutor returned to her summation. She again asked the jurors, even though the trooper has seen no bad driving, whether they would want their family members to be on the road with a driver who had a blood alcohol content of .151 percent.
The jury returned a guilty verdict. Olson appeals, claiming that the traffic stop was unlawful because it was a pretext, and that the prosecutor's improper remarks during closing argument require reversal.
Discussion Was the traffic stop a pretext?
Olson claims that Wurst made an unlawful pretext stop by pulling her over for an expired vehicle registration. She does not contest that her registration was expired. But she argues that after Wurst saw her vehicle leaving the parking lot of a bar, he really stopped her to investigate if she was driving while under the influence. As discussed earlier, Judge Funk found that Trooper Wurst could lawfully stop Olson for an equipment violation even if his real reason for stopping her was that she was driving drunk.
Olson's claim is resolved against her by our recent decision in Nease v. State. The facts in Nease are similar to those in Olson's case. In Nease, a police officer saw Nease drinking in a bar. About an hour later, the officer saw Nease's vehicle parked at a restaurant. Soon after, the officer saw Nease driving the vehicle away from the restaurant.
105 P.3d 1145 (Alaska App. 2005).
Id. at 1146.
Id.
Id.
The officer followed Nease. Although the officer saw no problems with Nease's driving, when Nease stopped at a traffic light, the officer saw that one of his vehicle's brake lights was not working. The officer stopped Nease for the equipment violation. During this contact, he determined that Nease was intoxicated.
Id. at 1146-47.
Id. at 1147.
Id.
Nease moved to suppress the evidence, asserting that the traffic stop was a pretext to investigate him for drunk driving. The district court agreed with Nease that the stop had been a pretext stop and suppressed the evidence of Nease's intoxication. On appeal, we reversed the district court.
Id.
Id.
We noted that even under the doctrine of pretext stops, the fact that a police officer may have an ulterior motive for enforcing the law is irrelevant for fourth amendment purposes unless the defendant proves that this ulterior motive prompted the officer to depart from reasonable police practices. Applying this rule to Nease's claim, we held that Nease had "failed to allege sufficient facts to bring the traffic stop within the doctrine of pretext stops." We explained that "[e]ven if we were to subscribe to the doctrine of `pretext stops,' the question would be whether Nease proved that [the officer] departed from reasonable police practice when he decided to stop Nease because of the non-functioning brake light."
Id. at 1148 (citing Wayne R. LaFave, 1 Search and Seizure: A Treatise on the Fourth Amendment § 1.4, at 115-25 (3rd ed. 1996)).
Id.
Id. at 1149.
Nease's claim failed because he presented "no evidence to suggest that police officers never stop motorists to issue citations for equipment violations, or that they would never do so under the circumstance of [Nease's] case." In addition, Nease had never asserted that the police officer who stopped him "manipulated the traffic stop . . . by abnormally expanding or extending his contact . . . so that he could investigate Nease's potential drunk driving."
Id. at 1149-50.
Id. at 1150.
Like Nease, Olson's claim of pretext fails because she presented no evidence suggesting that police officers never stop motorists for registration violations, or that they would never do so under the circumstances of Olson's case. Likewise, she never asserted that Wurst manipulated the traffic stop by abnormally expanding or extending the contact so that he could investigate her potential drunk driving. Here, as in Nease, the record indicates that as soon as Wurst contacted Olson, he saw signs that she was intoxicated.
We conclude that Judge Funk did not err when he refused to suppress evidence based on Olson's assertion that Wurst had conducted an unlawful pretext stop.
Did the prosecutor make improper remarks during closing?
Olson claims that the prosecutor made improper remarks during her final argument. She argues that by asking the jurors whether they would want their family members on the road while someone was driving with a .151 percent blood alcohol content, the prosecutor violated the "prohibition on argument based on the consequences of the verdict, . . . the prohibition on arguments based on issues other than guilt or innocence, . . . the prohibition on inflaming the passions and prejudices of the jury, [and] the prohibition on the prosecutor expressing a personal belief as to the evidence."
Olson's four "prohibitions" come from Patterson v. State. There, we explained that § 3-5.8(d) of the American Bar Association Standards for Criminal Justice
747 P.2d 535 (Alaska App. 1987).
prohibits the prosecutor from expressing a personal belief as to the evidence, from making appeals calculated to inflame passions and prejudices of the jury, and from advancing arguments based on the consequences of the verdict or on issues other than the guilt or innocence of the accused.
In this case, despite Olson's claims to the contrary, the prosecutor did not make an "argument based on the consequences of the verdict," nor did she express a personal belief as to the evidence. But the prosecutor's argument did raise issues other than Olson's guilt or innocence, and risked inflaming the passions and prejudices of the jury.
In response to Olson's argument that she had exhibited no bad driving, the prosecutor asked the jurors
would you want to be on the road? Would you want your family members to be on the road? . . . [W]ould you want to be on the road with somebody driving with .151? Would you want your family members to be on the road with somebody driving with a .151? Your sons? Your daughters? Your girlfriend? Your boyfriend? Your husbands? Your wives? I submit to you that I would not want to. And that's what this case is about. That's why we have the law [prohibiting] driving [while] under the influence.
Olson's attorney properly objected to these remarks, claiming that they violated the "golden rule." Both the prosecutor and the magistrate said that they had never heard of this rule. Olson's attorney explained that the rule is "essentially, that you can't ever argue that the jurors should be placed in the shoes of someone else." But when the attorney was unable to provide the magistrate with any authority supporting this objection, the magistrate overruled it.
In a civil context, the Alaska Supreme Court has held that a golden rule argument is improper. The court explained that a golden rule argument "implores the jurors to put themselves in the position of the [litigants], and then to ask themselves what kind of outcome they would wish under the circumstances." In Phillips v. State, we recognized that the rule applies in criminal cases.
Beaumaster v. Crandall, 576 P.2d 988, 994 (Alaska 1978); Mallonee v. Finch, 413 P.2d 159, 164 (Alaska 1966).
Beaumaster, 576 P.2d at 994.
70 P.3d 1128 (Alaska App. 2003).
Id. at 1145 (citing United States v. Teslim, 869 F.2d 316, 328 (7th Cir. 1989)).
Because the prosecutor did not expressly urge the jurors to put themselves or their family members into the position of a litigant or a victim, the prosecutor's remarks do not neatly fit the definition of a golden rule argument. Even so, the prosecutor's argument created the same error that makes a golden rule argument improper.
A golden rule argument creates error because it "encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence." This same type of error is caused when a prosecutor asks the jurors to consider things other than a defendant's guilt or innocence, or says things to inflame the passions and prejudices of the jurors.
Teslim, 869 F.2d at 328. See also Forrestal v. Magendantz, 848 F.2d 303, 309 (1st Cir. 1988) (golden rule argument is universally condemned); Hayes v. State, 512 S.E.2d 294, 297 (Ga. 1999) (golden rule argument improperly asks jurors to consider case not as fair and impartial jurors but from biased, subjective viewpoint of litigant or victim); State v. McHenry, 78 P.3d 403, 410 (Kan. 2003) (golden rule arguments are not allowed because they encourage the jury to depart from neutrality and decide case on improper basis of personal interest and bias); Caudill v. Commonwealth, 120 S.W.3d 635, 675 (Ky. 2003) (golden rule argument improper because prosecutor asks jurors to imagine themselves or someone they care about in position of crime victim).
Although this type of argument is usually error, it does not automatically require reversal. On appeal, the State argues that the error was harmless in light of the strength of its case. We agree with the State.
To determine whether reversible error occurred, this court reviews the prosecutor's "summation as a whole." Here, the prosecutor could legitimately rebut Olson's defense that she was not intoxicated because the trooper saw no problem with her driving. But rather than focusing on Olson's poor performance on the field sobriety tests, or the other indicia of intoxication, the prosecutor urged the jurors to consider their loved ones when determining whether Olson was driving drunk. Because of this, the prosecutor's argument was improper, and Magistrate Verhagen erred when he overruled Olson's objection.
Cook v. State, 36 P.3d 710, 729 (Alaska App. 2001).
In asking for a reversal, Olson relies primarily on this court's decision in Patterson. But the circumstances in Olson's case were nothing like those in Patterson. Patterson had been charged with sexually abusing the young daughter of his live-in girlfriend. In the prosecutor's summation, she improperly attacked Patterson's character, calling him a "crud," a "child molester," and a "chicken" who had "sexually abuse[d] . . . a precious child like this." The prosecutor also appealed to the jurors' emotions and prejudices by stating that "we can protect [the victim;] hopefully, we'll be able to protect her." She then, when discussing the reasonable doubt standard, told the jurors at some length to consider the decision they would make with regards to the child's future if she had to live with Patterson, and urged them to find Patterson guilty to protect his victim. This court found this last argument "a calculated and unabashed appeal to the emotions of the jury."
747 P.2d 538.
Id. at 538-39.
Id. at 539.
Id. at 540.
All of this argument was improper, but what we found most disturbing was that the prosecutor's argument also managed to "effectively stand the reasonable doubt standard on its head." We explained that the prosecutor's argument subverted the reasonable doubt standard by urging the jury "to convict Patterson unless convinced beyond a reasonable doubt of his innocence." Moreover, "the prosecutor advanced this explanation of the reasonable doubt standard with what appeared to be the express approval of the trial court, after Patterson's efforts to object had been overruled." And, because the improper statements came during the prosecutor's rebuttal argument, Patterson had no opportunity to respond. Under those circumstances, even though the State's case was strong, we ruled that we could not "readily dismiss the improper argument as harmless error."
Id.
Id. at 541.
Id.
Id.
Olson's case was markedly different. The subject matter involved in a drunk driving case, especially one like Olson's (where there was no accident, no injury of any kind, nor any identifiable victim), is nowhere near as emotionally charged as that involved when a defendant, like Patterson, is charged with sexually abusing a child. In addition, although the prosecutor's remarks in Olson's case were more than a passing reference to the jurors' loved ones, the summation was not permeated with improper comments, nor were the jurors misled regarding the reasonable doubt standard.
Moreover, even though the trooper did not see Olson drive poorly, the State's case was strong. Olson's performance on all but one of the administered field sobriety tests was poor. She also had a strong odor of alcohol, watery, bloodshot eyes, and slurred speech. She was unable to find her driver's license when first stopped — instead, she handed the trooper some sort of bartender identification card. The DataMaster's test showed that her blood alcohol content was nearly two times the legal limit. And at trial she admitted that although she had been drinking that night, she told Trooper Wurst that she had not been drinking.
Although Magistrate Verhagen, by overruling Olson's attorney's objection, may have indicated to the jury approval of the prosecutor's comments, we still conclude, looking at the "totality of the prosecutor's . . . final argument in the context of the record as a whole," that the prosecutor's improper remarks during her closing argument "did not appreciably affect the jury's verdict." Conclusion
See Patterson, 747 P.2d at 541 (citing Love v. State, 457 P.2d 622, 629-34 (Alaska 1969)). See also Tuckfield v. State, 805 P.2d 982, 987 (Alaska App. 1991) (applying same standard of review).
The judgment of the district court is AFFIRMED.