Summary
In Prince, we reversed the defendant's conviction for second-degree murder because we concluded that Prince's prior criminal history — a single conviction for driving under the influence, and participation in a single education program on the dangers of drinking and driving — was "nowhere near as egregious as the defendant's record in Jeffries", and thus it had little probative value on the question of whether Prince acted with the heightened degree of recklessness required for second-degree murder.
Summary of this case from Phillips v. StateOpinion
Court of Appeals No. A-10302 Trial Court No. 3AN-07-763 CR No. 5787
12-28-2011
DAVID T. PRINCE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Paul Malin, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, 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, Third Judicial District,
Anchorage, Patrick T. McKay, Michael R. Spaan, Judges.
Appearances: Paul Malin, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Daniel S.
Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
BOLGER, Judge, dissenting.
David T. Prince was convicted of murder in the second degree, three counts of assault in the first degree, and driving under the influence.
AS 11.41.110(a)(1) or (2).
AS 11.41.200(a)(1) or (3).
AS 28.35.030(a)(1).
These convictions arose from an incident when Prince, driving while intoxicated and at a high rate of speed, crashed his SUV into the rear of a Hyundai. The resulting collision caused the death of Pamela Miller and caused serious physical injury to Antoinette Mayes, Lamont Flemister, and Dessie Cooper. Prince's defense was that he was not the driver of the SUV.
On appeal, Prince raises two issues. He first argues that Superior Court Judge Patrick J. McKay erred in denying his motion to dismiss the indictment on the ground that the State presented hearsay testimony to the grand jury without stating its reasons for presenting the evidence. He next argues that Superior Court Judge Michael R. Spaan erred in allowing the State to introduce evidence that Prince had previously been convicted of driving under the influence and evidence that Prince had recently participated in a court-ordered program in which he received education about the dangers of drinking and driving.
Why we conclude that Judge McKay did not err in concluding that the State was not required to explain to the grand jury the reason for the hearsay testimony about the names of the victims at the grand jury proceeding
Prince caused a collision in which three passengers in another car were seriously injured, and one passenger died. Officer Robin Callison responded to the scene. She testified at grand jury but did not identify the victims. Officer Richard Steiding, who was not present at the scene of the collision, also testified at grand jury. His testimony included hearsay evidence — information obtained from other officers — identifying the victims.
Prince moved to dismiss the indictment on the grounds that the prosecutor did not state on the record why this hearsay evidence was presented. Prince based his argument on Alaska Criminal Rule 6(r)(1), which provides:
Evidence which would be legally admissible at trial shall be admissible before the grand jury. In appropriate cases, however, witnesses may be presented to summarize admissible evidence if the admissible evidence will be available at trial. Except as stated in subparagraphs (2), (3), and (6), hearsay evidence shall not be presented to the grand jury absent compelling justification for its introduction. If hearsay evidence is presented to the grand jury, the reasons for its use shall be stated on the record.The State contended that admission of Steiding's testimony concerning the names of the victims was authorized by Criminal Rule 6(r)(3), which allows hearsay evidence to be admitted before the grand jury if the witness is "a peace officer involved in the investigation," and "the hearsay evidence consists of the statement and observations made by another peace officer in the course of [the] investigation," and additional evidence corroborates the statement.
(Emphasis added).
Criminal Rule 6(r)(3) provides:
Hearsay evidence related to the offense, not otherwise admissible, may be admitted into evidence before the grand jury if
(i) the individual presenting the hearsay evidence is a peace officer involved in the investigation; and
(ii) the hearsay evidence consists of the statement and observations made by another peace officer in the course of an investigation; and
(iii) additional evidence is introduced to corroborate the statement.
Prince concedes that Officer Steiding based his identification of the victims on reports of other officers. And he does not attack Judge Spaan's finding that the officer's testimony satisfied all of the criteria in Criminal Rule 6(r)(3), including that the State corroborated the hearsay testimony. Rather, Prince argues that, even if Officer Steiding's testimony fell within Rule 6(r)(3), the State was still required to "announce on the record the reasons" for its introduction.
Alaska law limits the admissibility of hearsay evidence at grand jury if that hearsay would not be admissible at trial. Since the early 1970s, Criminal Rule 6(r) has allowed grand jury witnesses to "summarize admissible evidence if the admissible evidence will be available at trial." However, apart from these summaries, Criminal Rule 6(r) formerly allowed the State to introduce otherwise inadmissible hearsay evidence at grand jury only if there was a "compelling justification for its introduction," and if "the reasons for its use [were] stated on the record."
Galauska v. State, 527 P.2d 459, 463-67 (Alaska 1974).
See Alaska R. Crim. P. 6(r)(1); former Alaska R. Crim. P. 6(r) (pre-January 15, 1989 version).
But in 1995, the Alaska Supreme Court issued an order which amended Criminal Rule 6(r) to add a new provision, subsection (r)(3), to cover hearsay evidence offered by police witnesses." As we have previously explained, Rule 6(r)(3) authorizes police witnesses to offer hearsay descriptions of the reports and observations of other police officers involved in the investigation, so long as additional evidence corroborates the hearsay.
Alaska Supreme Court Order 1204 (effective July 15, 1995).
The original core of Rule 6(r) is preserved in what is now Rule 6(r)(1), and that provision still declares that the State must have a compelling justification for introducing otherwise inadmissible hearsay at grand jury, and that the State must explain its reasons for introducing this hearsay evidence on the record. But Rule 6(r)(1) explicitly declares that the State need not have a compelling justification to offer police hearsay evidence under subsection (3) of the rule. The pertinent portion of Rule 6(r)(1) states:
Except as stated in subparagraphs (2), (3), and (6) [of this rule], hearsay evidence shall not be presented to the grand jury absent compelling justification for its introduction. If hearsay evidence is presented to the grand jury, the reasons for its use shall be stated on the record.
(Emphasis added).
In the present appeal, Prince acknowledges that, because of the "except as stated" clause of Rule 6(r)(1), the requirement of a "compelling justification" does not apply to hearsay introduced under Criminal Rule 6(r)(3). However, Prince argues that the "except as stated" clause applies only to the "compelling justification" language, and that this clause does not modify the next sentence, which contains the requirement that the State must provide an on-the-record explanation of its reasons for introducing otherwise inadmissible hearsay evidence at grand jury.
We disagree, because we interpret the two sentences of Rule 6(r)(1) as a related pair. In the original version of Rule 6(r)(1) — that is, in the version before the additional subsections were enacted, when the rule was simply Rule 6(r), and it did not contain the "except as stated" clause — these two sentences clearly expressed one continuing thought:
Hearsay evidence shall not be presented to the grand jury absent compelling justification for its introduction. If hearsay evidence is presented to the grand jury, the reasons for its use shall be stated on the record.In other words, the State had to have a compelling justification for relying on otherwise inadmissible hearsay evidence at grand jury, and the State had to explain that justification to the grand jurors.
Former Alaska R. Crim. P. 6(r)(pre-January 15, 1989 version).
Now, in the present version of the rule, the "compelling justification" requirement no longer applies to hearsay evidence presented by police witnesses under subsection (3). We conclude that the ancillary requirement — the requirement of informing the grand jurors of the reasons for using hearsay — likewise does not apply to police hearsay introduced under subsection (3).
A contrary reading of the rule (i.e., the interpretation that Prince proposes) would make little sense, because Rule 6(r) no longer requires a case-specific justification for introducing police hearsay testimony of other police officers' reports and observations. Instead, the State's justification for this evidence will always be the same: the police hearsay is authorized by Rule 6(r)(3).
For these reasons, we reject Prince's contention that the final sentence of Rule 6(r)(1) continues to govern police hearsay introduced under Rule 6(r)(3). When a prosecutor introduces a police officer's hearsay testimony pursuant to Rule 6(r)(3), the prosecutor need not affirmatively explain to the grand jurors that the hearsay is admissible because of the provisions of Rule 6(r)(3).
We do not mean to imply that Rule 6(r)(3) abolishes all limits on the State's ability to present its case to the grand jury through the hearsay testimony of an investigating officer. We believe it is unlikely that Criminal Rule 6(r)(3) was designed to subvert the general rule announced in Galauska v. State — that grand juries should normally make their decision based on testimony that would be admissible at trial.
Galauska, 527 P.2d at 464.
But in Prince's case, the challenged details of the officer's testimony related to the precise identities of Prince's victims. This information was collateral to the charges against Prince: even if the precise identities of his victims had remained unknown at the time of the grand jury hearing, Prince still could have been indicted for killing and injuring them.
We note, moreover, that almost all police testimony concerning a crime victim's identity will be hearsay. Generally, an officer's information concerning the identity of a victim will be based on out-of-court statements made by the victim or by some other witness, or it will be based on the officer's scrutiny of documentary evidence of the victim's identity, such as a driver's license.
Thus, allowing hearsay testimony concerning a victim's identity normally will not undermine the core value of having grand juries base their decisions primarily on evidence that will be admissible at trial.
Why we conclude that Judge Spaan erred in admitting evidence of Prince's prior driving under the influence conviction and evidence that Prince had completed a court-ordered alcohol awareness program
Before trial, the State moved to admit evidence of Prince's prior conviction for driving under the influence and evidence that Prince had recently completed a court-ordered wellness program. Prince completed the program about six weeks before the homicide. The wellness program included education about the dangers of drinking and driving. The State argued that the evidence was admissible to show an element of murder in the second degree, that Prince had acted with extreme indifference to the value of human life. Judge Spaan reasoned that the evidence was admissible to show that Prince "had knowledge of the dangers of drinking and driving."
An analysis of this issue requires us to consider the opinion of the Alaska Supreme Court in Jeffries v. State (Jeffries II). The issue presented in Jeffries was whether the State presented sufficient evidence for the jury to convict the defendant of murder in the second degree on the theory that he had acted with "extreme indifference to the value of human life." A major issue in the case was whether Jeffries's prior history of driving under the influence could be properly admitted to show that Jeffries had acted "with extreme indifference to the value of human life."
169 P.3d 913 (Alaska 2007).
Id. at 915 (quoting AS 11.41.110(a)(2)).
Jeffries v. State (Jeffries I), 10 P.3d 185, 194 (Alaska App. 2004).
Jeffries had six prior convictions for driving while intoxicated
Jeffries had previously been convicted for driving while intoxicated six times. At the time of the fatal collision, his driver's license had been revoked for over ten years, and he was ineligible to apply for a driver's license until 2018. Jeffries was also on probation. One of the conditions of his probation was to refrain from drinking alcoholic beverages. Jeffries had consistently refused to participate in court-ordered alcohol treatment programs. The trial judge concluded that, based upon this extensive record, Jeffries's prior history was admissible to show his heightened awareness of the risk of driving under the influence and supported the inference that Jeffries had acted "with extreme indifference to the value of human life."
Jeffries II, 169 P.3d at 922.
Id. at 922.
Id. at 923.
Id. at 922-23.
Id. at 923.
The Supreme Court was divided on the issue of whether Jeffries's prior history was admissible to show his heightened awareness. Three justices concluded that Jeffries's extensive record showed that he was aware of the threat that his decision to drink and drive created:
An intoxicated driver with a record as long as Jeffries's cannot possibly be unaware of the significant threat that his actions pose in the eyes of society. A reasonable jury could have inferred from this evidence that Jeffries had a
heightened awareness of the risk of drinking and driving and could have given this factor substantial weight ... .
Id.
Justice Matthews, joined by Justice Fabe, concluded that Jeffries's prior history was inadmissible. Justice Matthews pointed out that the legislative history of the statute that permitted a conviction of murder where the defendant acted with "extreme indifference to the value of human life" showed that the statute was only to apply to particularly egregious behavior:
The legislative history of our reckless murder statute makes it clear that the statute was meant to be confined to cases in which reckless conduct closely resembles an intentional or knowing murder. Conduct was contemplated that is similar in degree of risk to that which is encompassed in the phrase that governs knowing or intentional second-degree murder: "substantially certain to cause death or serious physical injury." The examples of such conduct offered by the senate committee which recommended the adoption of the statute were shooting into a tent or persuading a person to play Russian roulette.They pointed out a possible unintended consequence of allowing these convictions to be admitted to show that a defendant committed murder by acting with "extreme indifference to the value of human life." They reasoned that, if the defendant's prior convictions were admissible to prove murder, but not manslaughter, "given the likely impact on a jury's deliberations of a prior history of DWI convictions, it may turn out to be easier in such cases to obtain a conviction of murder than a conviction of manslaughter."
Justice Matthews stated that, based upon this legislative history, he [A]gree[d] with those cases and authorities that suggest that if a fatality caused by a drunken driver is to be murder rather than manslaughter, the driver must have engaged in egregiously unsafe maneuvers such as extreme speeding, wrong-way driving, or running stop lights. Merely being
drunk and attempting without success to drive normally can be manslaughter, but not murder.
Id. at 925.
Id. at 925-26 (Matthews, J., dissenting) (footnotes omitted).
Id. at 926.
Id. at 926.
Prince points out that his prior history, a single conviction for driving under the influence, was nowhere near as egregious as the defendant's record in Jeffries. Prince argues that evidence of his prior conviction had little probative value to show that he had a heightened sense of the dangers of driving under the influence. He argues that there was significant danger that he would be prejudiced by informing the jury of his prior conviction for the same kind of conduct for which he was on trial.
We think that there is merit to Prince's contention. It is difficult for us to predict what the majority of the Jeffries court would do under the circumstances presented by Prince. It is possible to read the opinion of the Court broadly, as allowing admission of a defendant's prior history of driving under the influence to show that he had a heightened knowledge of the dangers of driving under the influence to support an inference that he acted with "extreme indifference to the value of human life." It seems to us that it is more plausible to interpret the majority opinion more restrictively. In Jeffries II, the opinion of the Court emphasized the trial judge's reasoning that, because of Jeffries's extensive and repetitive history of drinking and driving, Jeffries had a heightened awareness of the risk of that behavior. The Court specifically stated that "an intoxicated driver with a record as long as Jeffries's cannot possibly be unaware of the significant threat that his actions pose in the eyes of society." And the opinion of the Court agreed that the charge of "extreme indifference murder" is reserved "for cases in which the objective risk of death or serious physical injury posed by the defendant's actions is 'very high.'" We conclude that, given this language, the Court did not intend to allow admission of the evidence of the defendant's prior convictions for driving under the influence to be routinely admitted.
Id. at 923 (majority opinion).
Id. at 923.
Id. at 917.
This interpretation takes into account the substantial danger that, when a court admits evidence that the defendant has previously been convicted of similar offenses, the jury will use this evidence "as evidence that the defendant is a person who characteristically engages in this type of criminal behavior — and that the jurors [would] presume the defendant's guilt from the fact that the defendant has done it before."
Ostlund v. State, 51 P.3d 938, 943 (Alaska App. 2002) (Mannheimer, J., concurring).
Our prior cases reflect this concern. In Jansen v. State, the defendant, driving while intoxicated, caused a collision which resulted in the death of one person and injury to another. He was charged with manslaughter and assault in the third degree. Jansen had two prior convictions for driving while intoxicated. The trial judge granted a protective order to prevent the State from admitting these prior convictions, but ruled that if the defendant opened the door in some way that made these prior convictions relevant, he would reconsider his ruling.
764 P.2d 308 (Alaska App. 1988).
Id. at 309.
Id.
Id.
Id.
During his defense case, Jansen called a psychiatrist who testified that, from his examination of Jansen, he concluded that at the time of the motor vehicle homicide, "there was nothing about the circumstances of the accident or his knowledge of Jansen that would indicate that Jansen was acting in a reckless manner." On application by the State, the trial judge ruled that the State could cross-examine the psychiatrist about whether he had considered Jansen's prior convictions for driving while intoxicated in forming his opinion. The psychiatrist stated that he had considered Jansen's prior convictions and that he had given them "considerable weight." But he adhered to his opinion that there was nothing in Jansen's background indicating that he was reckless.
Id. at 309-10.
Id.
Id. at 310.
See id. at 309-10
A jury convicted Jansen of criminally negligent homicide and assault, and Jansen appealed. We concluded that the trial judge had correctly ruled that Jansen's prior convictions for driving while intoxicated were not initially admissible:
Id. at 310.
[The trial judge] was correct when he refused to automatically admit evidence of the prior DWI convictions. Although [the judge] did not directly address this issue, he apparently concluded that the probative value of Jansen's past convictions was outweighed by the potential danger that the jury could conclude that Jansen was driving while intoxicated in this case because Jansen had driven while intoxicated in the past. To automatically allow prior DWI convictions into evidence would have been particularly prejudicial in this case because Jansen was contesting the fact that he was driving while intoxicated.
Id. at 311-12.
We reasoned that, in most cases involving a motor vehicle homicide, "the defendant disputes the drunk driving charge, but does not seriously dispute the mens rea issue." But we concluded that Jansen's case was unusual because he had disputed his mens rea by calling the psychiatrist. We held that, under these circumstances, the trial judge could properly find that, once the mens rea issue was opened, "the probative value of the evidence outweighed the potential prejudice."
Id. at 312.
Id.
Id.
In Ostlund v. State, we held that when the State charged a defendant with felony driving while intoxicated, the trial court was normally required to bifurcate the defendant's trial so that the jury first determined whether the defendant had committed the offense of driving while intoxicated before hearing evidence of his prior convictions. We reasoned that, without bifurcation, the jury would hear evidence of the defendant's prior criminal history, and the presumption of innocence would be destroyed by evidence that the defendant had committed an offense which was similar to the one for which he was on trial. (Of course, the defendant's prior convictions for driving under the influence could be admissible, as they were in Jansen, if they were independently admissible, and the probative value of the evidence did not outweigh the danger of unfair prejudice.)
Ostlund, 51 P.3d at 941-42.
Id. at 942.
Id. at 948 (Mannheimer, J., concurring).
More recently, in Hutson v. State, the defendant was charged with felony driving under the influence and felony refusal to submit to a chemical test. Hutson defended on the ground that, besides not being intoxicated, he had not refused the breath test. While he was at the Juneau Police Department awaiting the test, an officer had indicated that one of the two breath test machines was not working properly. Hutson stated that the machine, which the arresting officer was going to test him on, was making strange noises, and Hutson kept insisting that he wanted to be tested on both machines.The arresting officer ultimately read the "implied consent" warning to Hutson which warned him of the consequences of refusing to take the breath test. When Hutson continued to insist that he wanted to take the breath test on both machines or at least listen to the other machine, the arresting officer charged him with refusing to submit to the breath test. The trial judge reasoned that Hutson's prior record was admissible to rebut the defense that Hutson was familiar with the breath test procedure. The arresting officer was allowed to testify that Hutson had previously been convicted of driving while intoxicated in 1999 and again in 2000, and had previously refused to take a breath test following arrest.
Memorandum Opinion & Judgment No. 5676 (Alaska App., Feb. 23, 2011), 2011 WL 667881.
Id. at *1.
Id. at *2.
Id. at *1.
Id.
Id.
Id. at *1.
Id. at *2.
Id.
We concluded that, although Hutson's "prior experience with DUI breath testing had some arguable relevance to the issues of fact litigated at Hutson's trial, ... it was both unnecessary and unfairly prejudicial to allow the State to establish this prior experience by introducing evidence of Hutson's previous criminal convictions for driving under the influence and breath test refusal."
Id. at *1.
In a prosecution for reckless murder, the State must establish a mens rea showing a high degree of culpability: that the defendant acted with "extreme indifference to the value of human life." But, with the exception of Jeffries, in cases involving motor vehicle homicides, the defendant's culpability has generally been established by the actual facts surrounding the offense, such as the defendant's extremely reckless driving and high level of intoxication — not by showing the defendant's prior history of committing similar offenses. The defendant's culpability has also been shown through evidence of warnings that he received either just before or during the commission of the offense.
AS 11.41.110.
For instance, in Pears v. State, evidence presented at trial, besides establishing Pears's extremely reckless driving, established that he "was made abundantly aware of the dangerous nature of his driving by both his passenger ... and the police officers who warned him not to drive." In Stiegele v. State, the evidence showed that shortly before the fatal collision, "an eyewitness saw Stiegele's passengers screaming for him to stop." In Pusich v. State, a sentence appeal, we considered the fact that shortly before Pusich engaged in the extremely reckless driving, which led to the charges against her, a friend, who knew that Pusich was intoxicated, made Pusich promise not to drive.
672 P.2d 903 (Alaska App. 1983), reversed on other grounds, 698 P.2d 1198 (Alaska 1985).
Id. at 910.
714 P.2d 356 (Alaska App. 1986).
Id. at 360.
907 P.2d 29 (Alaska App. 1995).
Id. at 31.
These cases demonstrate that the appellate courts of this state have shown consistent concern about the danger of admitting evidence of a defendant's prior DUI convictions in cases where the defendant is on trial for similar crimes. The concern is that the jury will conclude "that the defendant is a person who characteristically engages in this type of criminal behavior [and] presume the defendant's guilt from the fact that the defendant has done it before." The theory that the defendant's prior convictions are relevant to show that the defendant was aware of the dangers of driving under the influence and that this relevance is sufficient to overcome the danger of unfair prejudice is questionable. It seems highly unlikely that any person in today's society could be unaware of the extreme danger of driving under the influence.
Ostlund, 51 P.3d at 943 (Mannheimer, J., concurring).
In the present case, Prince had one prior conviction for driving under the influence. There was no evidence about the facts of that conviction that would make it particularly relevant. Under these circumstances, we conclude that the relevance of the evidence that Prince had previously been convicted was outweighed by the danger of unfair prejudice. We accordingly conclude that Judge Spaan erred in admitting this evidence.
We reach a similar conclusion about the evidence that Prince had participated in a court-ordered program in which he received education about the dangers of drinking and driving. As we have previously stated, it is reasonable to assume that any person would be aware of the extreme danger of driving under the influence. In the present case, the State presented a witness who testified that Prince attended a court-ordered twelve-to eighteen-month outpatient program. The witness described the program in detail. The program included a videotape put together by the Alaska State Troopers showing one summer of incidents of driving under the influence, including how an offense affected, not only the driver, but the victims and their families. The presentation of this evidence allowed the prosecution to remind the jury, in detail, of the extreme dangers of driving under the influence and the disastrous consequences that result from this criminal activity. We conclude that the relevance of this evidence was outweighed by the danger that the jury would be unduly prejudiced by the emphasis on the dangerousness of driving under the influence in general. The concern is that the presentation of this evidence might prejudice the jury by having them focus on the dangers of driving under the influence in general, rather than focusing on the specific facts of Prince's case.
We accordingly conclude that Judge Spaan erred in allowing the State to admit evidence that Prince had previously been convicted of driving under the influence and that Prince had previously participated in a court-ordered program in which he received education about the dangers of drinking and driving. We reverse Prince's conviction.
Conclusion
The judgment of the superior court is REVERSED. MANNHEIMER, Judge, concurring.
At a superficial level, the primary issue presented in this appeal is whether Prince's trial judge committed error when he allowed the State to introduce evidence of Prince's previous conviction for driving under the influence. But at a deeper level, the primary issue in this appeal is whether the admission of this evidence rested within the trial judge's discretion, or whether instead the admission of this evidence was barred as a matter of law.
In Judge Bolger's dissenting opinion, he adopts the view that the admission of this evidence rested within the trial judge's discretion — that it was up to the trial judge to weigh the probative value of this evidence against its potential for unfair prejudice, and that we (as an appellate court) are authorized to reverse the judge's decision on this matter only if we are convinced that the judge abused his discretion.
"Abuse of discretion" is a deferential standard of review. Under this standard of review, an appellate court must affirm the trial judge's decision as long as that decision represents a reasonable weighing of the pertinent interests. If cases like Prince's truly present a question of judicial discretion — that is, if reasonable judges could differ as to whether evidence of a single prior DUI conviction was more prejudicial than probative — then, under the "abuse of discretion" standard of review, we must be prepared to affirm not only decisions like the one made by Prince's trial judge (admitting this evidence), but also decisions excluding this evidence under exactly the same facts, so long as the trial judges made a reasonable effort to conduct the balancing required by Evidence Rule 403.
For the reasons explained in this concurrence, I believe that the admission of the evidence of Prince's previous conviction for driving under the influence did not rest within the trial judge's discretion. Instead, given the facts of Prince's case, and given the way Prince's case was litigated, the admission of this evidence was error as a matter of law.
The Alaska Supreme Court's decision in Jeffries v. State, and the trial judge's decision to admit evidence of Prince's earlier conviction for driving under the influence
Before Prince's trial began, the State gave notice that it would seek to introduce evidence of Prince's earlier conviction for driving under the influence. The State argued that this prior DUI conviction tended to establish that Prince was "[aware] of the risks associated with drinking and driving", and thus this evidence tended to show that Prince acted with the culpable mental state required for second-degree murder under AS 11.41.110(a)(2) — extreme indifference to the value of human life.
In support of this argument, the State relied heavily on this Court's opinion in Jeffries v. State, 90 P.3d 185, 193 (Alaska App. 2004) (Jeffries I) — an opinion that was later affirmed by the Alaska Supreme Court in Jeffries v. State, 169 P.3d 913 (Alaska 2007) (Jeffries II).
The defendant in Jeffries was charged with second-degree murder for driving under the influence, causing an accident, and killing the passenger in his car. The evidence showed that Jeffries turned his car directly in front of an oncoming car on a multi-lane, well-lit street. Jeffries was heavily intoxicated: he had a blood alcohol level of .27 percent (more than three times the legal limit) about an hour after the collision.
Jeffries II, 169 P.3d at 914.
Id. at 914-15, and Jeffries I, 90 P.3d at 186-87.
One of the major disputes at Jeffries's trial was whether Jeffries exhibited "manifest indifference to the value of human life" — the culpable mental state for second-degree murder — as opposed to the typical recklessness that would support a conviction for manslaughter. To prove this higher culpable mental state, the State relied on evidence that Jeffries had six prior convictions for DUI, that his driver's license had been suspended for over a decade, that he was under a condition of probation that prohibited him from drinking alcoholic beverages, and that, four times in the past, he had failed to participate in court-ordered substance abuse programs.
Jeffries II, 169 P.3d at 915.
Ibid.
The jury found Jeffries guilty of second-degree murder. In his ensuing appeal, Jeffries argued that the State's evidence was not legally sufficient to support a murder conviction, and that this evidence proved only that Jeffries was guilty of manslaughter.
Ibid.
Jeffries I, 90 P.3d at 186-87.
More specifically, Jeffries argued that, in cases of vehicular homicide, a conviction for second-degree murder was proper only if the evidence showed that the intoxicated driver engaged in egregious driving during the episode being litigated — i.e., that the defendant operated the vehicle in a particularly dangerous or heedless manner.Jeffries contended that his history of past DUI convictions, and his history of failed rehabilitative treatment, had no bearing on the issue of whether he exhibited "manifest indifference to the value of human life" as opposed to "recklessness".
Jeffries II, 169 P.3d at 915.
Ibid.
The Alaska Supreme Court agreed with Jeffries that, in normal circumstances, an intoxicated driver who tries unsuccessfully to drive safely and who causes a death will be guilty of manslaughter, not second-degree murder. The supreme court endorsed this Court's statement in Pears v. State, 672 P.2d 903, 906 n. 1 (Alaska App. 1983), that "a charge of second-degree murder should only rarely be appropriate in a motor vehicle homicide [case]".
Id. at 917, citing St. John v. State, 715 P.2d 1205, 1209 (Alaska App. 1986).
Id. at 923.
The supreme court also agreed with Jeffries that convictions for "extreme indifference" second-degree murder should be "reserve[d] ... for cases in which the objective risk of death or serious physical injury posed by the defendant's actions is very high." The court indicated (based on the commentaries to the Model Penal Code) that convictions for "extreme indifference" second-degree murder should be limited to situations where the defendant's actions, "while not purposeful or knowing with regard to the resulting death, demonstrate [an] equivalent indifference to the value of human life" — an extreme form of recklessness "that cannot fairly be distinguished in [seriousness] from homicides committed ... knowingly."
Id. at 917 (internal quotation marks omitted). See also id. at 920.
Id. at 916-17.
However, the supreme court expressly affirmed this Court's holding in Neitzel v. State, 655 P.2d 325 (Alaska App. 1982), that the distinction between second-degree murder (i.e., "extreme indifference" homicide) and manslaughter (i.e., "reckless" homicide) is ultimately an issue of fact, and that juries (or judges in bench trials) are to make this assessment using the following factors: (1) the social utility of the defendant's conduct; (2) the magnitude of the risk created by the defendant's conduct, including both the nature of the foreseeable harm and the likelihood that this harm would occur; (3) the defendant's level of awareness of this risk; and (4) any precautions that the defendant took to minimize this risk.
Id. at 916, citing Neitzel, 655 P.2d at 336-37.
The supreme court further explained that, because the distinction between "extreme indifference" and "recklessness" is one of degree, and because this assessment should normally be made by the trier of fact, the evidence in a drunk-driving homicide case will be legally sufficient to support a second-degree murder conviction "[unless] the evidence, viewed as a whole, cannot be reasonably interpreted as demonstrating the type of heightened recklessness that is equivalent to purposeful or knowing homicide."
Id. at 917.
With regard to the evidence of Jeffries's six prior DUI convictions and his four failures to comply with court-ordered alcohol treatment programs, the supreme court concluded that this evidence was relevant to prove Jeffries's "heightened awareness of the dangerousness of his conduct". Similarly, with regard to the long-term revocation of Jeffries's driver's license, and the fact that his conditions of probation prohibited him from consuming alcoholic beverages, the supreme court concluded that this evidence was relevant because it proved Jeffries's awareness of his obligations to refrain completely from any driving and from any drinking.
Id. at 922-23.
Ibid.
More specifically, the supreme court endorsed the trial judge's analysis of why evidence of Jeffries's history of recidivism as an intoxicated driver, and evidence of his repeated failures to attend court-ordered treatment programs, was relevant to the question of whether he acted with extreme indifference to the value of human life:
[A] person who drinks [and] drives, causes an accident, gets arrested, goes to jail, is ordered to alcohol treatment, ordered not to drink, and then drinks and drives again, and then drinks and drives again, and then drinks and drives again, not only has [an] intellectual understanding of the risks associated with drinking and driving[,] but also has [a] very real understanding [of these risks] — which ... is relevant to show [his] heightened awareness of those risks. Experience is the best teacher.Jeffries II, 169 P.3d at 923 (quoting the trial judge). The supreme court then added:
An intoxicated driver with a record as long as Jeffries's [could not] possibly be unaware of the significant threat that his actions pose in the eyes of society. A reasonable jury could have inferred from this evidence that Jeffries had a heightened awareness of the risk of drinking and driving[,Id. at 923-24.
and the jury] could [properly] have given this factor substantial weight in its analysis under Neitzel.
. . .
Jeffries is distinguishable from the typical intoxicated driver by his heightened awareness of the risk resulting from his past history of drunk driving offenses and the revocation of his license, his extreme level of intoxication, and his inherently dangerous conduct in driving his car directly in front of an oncoming car that had no opportunity to react. [This] evidence allowed a reasonable jury to conclude that Jeffries's conduct was not only reckless, but also demonstrated extreme indifference to the value of human life.
Turning to the facts of Prince's case, when the State gave notice that it would seek to introduce evidence of Prince's prior conviction for driving under the influence, the State relied on the theory expounded in the above-quoted portion of Jeffries: the theory that Prince's prior conviction tended to prove his heightened awareness of the risk of driving under the influence. The State argued that evidence of Prince's previous conviction was admissible because it was not offered to prove Prince's characteristic behavior, but rather to prove "his level of awareness of the risks created by his driving while intoxicated".
The State also argued that evidence of Prince's previous conviction was relevant to the issue of the degree of Prince's disregard for the safety of others. Quoting the language of Jeffries, the State suggested that Prince, because of his previous conviction, "[was] on notice that his drinking behavior was dangerous to others and [that his behavior] had to change", and that Prince "[had] consciously refused to act on these warnings."
See Jeffries I, 90 P.3d at 194.
The trial judge adopted the State's view of this matter. The judge acknowledged that the defendant in Jeffries had six prior DUI convictions (not just one), and that the defendant in Jeffries had willfully failed to comply with court-ordered alcohol treatment. However, the judge concluded that this distinction affected only the strength of the State's proposed evidence, and not its admissibility. The judge declared that evidence of Prince's prior conviction was relevant because it was "[at least] some evidence that [Prince] understood the risk of drunk driving".
Apparently, the trial judge also concluded that evidence of the prior DUI conviction was automatically admissible under Jeffries if it was offered for the purpose of proving Prince's degree of awareness of the risks of intoxicated driving. I say this because the trial judge did not mention Evidence Rule 403 when he made his ruling, nor did the trial judge ever discuss whether this evidence posed a danger of unfair prejudice.
A summary of my analysis of Prince's case
I concede that when a defendant is on trial for a vehicular homicide committed while the defendant was intoxicated, and the defendant has a prior conviction for driving under the influence, one might reasonably draw the inference that this prior conviction would tend to heighten the defendant's awareness of the potential dangers of drinking and driving, especially if that prior conviction involved a situation where people were injured or nearly injured. Thus, evidence that a defendant has a prior DUI conviction probably qualifies as at least minimally relevant to proof of the defendant's culpable mental state — in particular, proof that the defendant acted with awareness of, and in disregard of, the risk of human death posed by drinking alcoholic beverages and then operating a motor vehicle.
But though evidence of a defendant's prior DUI conviction may be relevant to the defendant's awareness of the risk posed by driving while intoxicated, the degree of this relevance hinges on the particular facts of the defendant's case, and also on the litigation strategies of the parties.
In particular, if a defendant has only a single prior conviction for driving under the influence, the case will not present the factors that the supreme court found persuasive in Jeffries: a lengthy history of recidivism, coupled with willful and repeated failures to comply with court-ordered treatment. In the absence of these factors, the probative force of the defendant's single prior conviction may have little significance for the jury's assessment of whether the defendant acted with "manifest indifference to the value of human life" as opposed to merely "recklessly".
In addition, the probative force of a defendant's prior convictions may be insignificant if the defendant does not contest the mens rea element of the State's proof. This was the situation in Prince's case: Prince did not defend the murder charge by arguing that he acted only recklessly. Rather, Prince defended the murder charge by asserting that he was not the driver of the vehicle.
At the same time, evidence of a defendant's prior DUI convictions normally carries a high potential for unfair prejudice. When a jury hears that a defendant has previously been convicted of driving under the influence, there is a significant chance that the jury may use this information for the purpose prohibited by Alaska Evidence Rule 404(b)(1): as the basis for inferring that the defendant is a person who characteristically drives while under the influence, thus making it more likely that the defendant drove while under the influence during the episode currently being litigated.
Because Prince had only a single prior conviction for driving under the influence, evidence of this prior conviction did not demonstrate a history of recidivism like the one in Jeffries. Moreover, because the State did not suggest that this prior conviction arose from an episode that involved death or serious injury (or that involved a barely avoided death or serious injury), evidence of this prior conviction had only minimal probative value on the issue of whether Prince's awareness of the risks of drunk driving differed significantly from the level of awareness shared by other members of society — more specifically, that Prince's awareness of the danger was heightened to the degree that one might reasonably classify Prince's culpable mental state as "manifest indifference to the value of human life", as opposed to the typical recklessness of an intoxicated driver.
And, as I have already noted, Prince did not dispute the mens rea element of the State's proof. Rather, Prince asserted that he was not the driver of the car.
For these reasons, I believe that no reasonable judge could conclude that the probative value of this evidence equaled or outweighed its potential for unfair prejudice. Rather, given the facts of Prince's case, and given the way the case was litigated, the minimal probative value of this evidence was substantially outweighed by the danger that the jury would use this evidence for an improper purpose. Specifically, the danger was that the jury would view Prince's prior act of driving under the influence as "character" evidence — i.e., as circumstantial proof that he was the driver of the car.
I therefore conclude that it was wrong, as a matter of law, for the trial judge to allow the State to introduce this evidence at Prince's trial, and I further conclude that this error requires reversal of Prince's murder conviction.
Evidence of a defendant's single prior conviction for driving under the influence generally should not be admitted to prove that the defendant acted with "manifest indifference to the value of human life"
In Jeffries, the Alaska Supreme Court endorsed the position that an intoxicated driver who causes a death should normally be convicted of manslaughter, not second-degree murder. The court declared that a charge of second-degree murder is "only rarely" appropriate in vehicular homicide cases — appropriate only when "the objective risk of death or serious physical injury posed by the defendant's actions is very high", and the defendant's actions demonstrate an extreme form of recklessness "that cannot fairly be distinguished in [seriousness] from homicides committed ... knowingly."
Jeffries II, 169 P.3d at 923.
Id. at 917. See also id. at 920.
Id. at 916-17.
But while this principle may be easy to articulate in the abstract, it can be difficult to apply this principle on a case-by-case basis. Ultimately, trial jurors make the decision as to whether a particular act of vehicular homicide constitutes murder or manslaughter — and, unlike appellate judges and lawyers, trial jurors see only the one case in front of them. Because trial jurors have no fixed points of comparison, it is difficult for jurors to know whether the case before them is one of the "rare" cases where a murder conviction is appropriate, or whether the risk created by the defendant's conduct was "very high" in comparison to a typical case of reckless vehicular homicide.
Because of this problem, and because of the risk that jurors will misuse evidence of a defendant's prior convictions, I believe that this Court (and trial judges) must give a narrow interpretation to the decision in Jeffries.
As I have acknowledged, even a single prior DUI conviction is arguably relevant to prove that a vehicular homicide defendant had a heightened awareness of the risks of driving under the influence. But the facts of Jeffries supported a much more forceful conclusion than mere "heightened awareness". The defendant in Jeffries had six prior DUI convictions, and he had repeatedly refused to participate in court-ordered alcohol rehabilitation programs. This was evidence, not simply of heightened awareness, but of a wanton or arrogant disregard for the safety of others.
As this Court held in Jeffries I, and as the majority of the supreme court held in Jeffries II, this lengthy history of recidivism and spurned opportunities for rehabilitation was sufficiently egregious to warrant the inference that, when Jeffries drank alcoholic beverages and got behind the wheel, he acted with a culpable mental state that was substantially more blameworthy than the recklessness typically present in vehicular homicide cases involving intoxicated drivers.
In Prince's case, the trial judge concluded that even though Prince's criminal history (a single prior conviction) was not nearly as egregious as Jeffries's, evidence of that prior conviction was admissible because the single conviction was at least "some evidence that [Prince] understood the risk of drunk driving". But as explained in the preceding paragraph, the precise issue is not whether Prince was aware of the dangers of drunk driving, or even if he had a heightened awareness of these dangers compared to a typical citizen. Rather, the question is whether Prince's single prior conviction gave rise to a reasonable inference that Prince acted with wanton or arrogant disregard for the safety of others — in other words, with a culpable mental state that was substantially more blameworthy than the recklessness that typifies drunk driving homicides.
It is true, as pointed out by the supreme court in Jeffries II, and as pointed out by this Court in Neitzel, that the distinction between "manifest indifference to the value of human life" and typical "recklessness" generally hinges on the particular facts of the case, and it is a question to be decided by the trier of fact. Thus, one might argue that even a single prior conviction is a valid part of the factual mix that a jury should consider.
But, generally speaking, a single prior DUI conviction has only marginal probative force on the issue of whether the defendant acted with the kind of wanton or arrogant disregard for the safety of others that would warrant a conviction for second-degree murder. Balanced against this marginal probative value is the high potential for unfair prejudice posed by evidence of a prior conviction.
If we adopted the approach of the trial judge in Prince's case — that is, if we ruled that evidence of even a single prior conviction could be admitted because of its marginal probative value — we would effectively be endorsing a rule that prior convictions are admissible when a defendant is charged with murder, even though this same evidence would be inadmissible if the defendant were charged with manslaughter.
The dissent in Jeffries II warned of this potential consequence, and Prince's case is an illustration of what the dissenters were concerned about. I believe it is this Court's duty to interpret Jeffries in a manner that avoids such pernicious results.
Jeffries II, 169 P.3d at 926 (Matthews, J., dissenting).
For these reasons, I conclude that when a vehicular homicide defendant has only a single prior conviction for driving under the influence, and there is no proof that this prior incident involved death or serious injury, the State should not be allowed to introduce this evidence for the purpose of proving that the defendant acted with manifest indifference to the value of human life. In these circumstances, evidence of the prior conviction has so little probative value and such great potential for unfair prejudice that, as a matter of law, the balancing under Evidence Rule 403 must result in exclusion.
Given Prince's defense that he was not the driver, the unfair prejudice created by evidence of his prior conviction clearly outweighed whatever probative value this evidence might have had
Apart from the general considerations discussed in the preceding section of this concurrence, I conclude that, under the specific facts of Prince's case, the evidence of Prince's prior conviction had essentially no probative value.
The evidence was offered to prove Prince's culpable mental state. But Prince did not actively dispute his culpable mental state. Rather, Prince contended that he was not the driver of the car. Given this defense, the unfair prejudice of telling the jury about Prince's prior conviction clearly outweighed whatever minimal probative value this information might have.
My analysis of this aspect of Prince's case is based on this Court's decision in Jansen v. State, 764 P.2d 308 (Alaska App. 1988).
The defendant in Jansen was charged with manslaughter and assault after he drove a motor vehicle while intoxicated, killing one person and injuring another. At trial, Jansen disputed the mens rea of these two crimes; he argued that he had not been "reckless" with respect to the danger to others posed by his conduct.
Jansen, 764 P.2d at 309.
Ibid.
In support of this defense, Jansen offered the testimony of a psychiatrist, Dr. George Harris, who stated "that he examined Jansen, looking for aggressive tendencies or impulses that might manifest themselves while Jansen was driving", and that "[he] found none". Dr. Harris declared "that there was nothing about the circumstances of the accident or his knowledge of Jansen that would indicate that Jansen was acting in a reckless manner."
Ibid.
Ibid.
The trial judge had previously barred the prosecutor from introducing evidence that Jansen had two prior convictions for driving under the influence. But after Dr. Harris gave the testimony described in the preceding paragraph, the trial judge reassessed that ruling and allowed the State to introduce evidence of the prior convictions.
Id. at 310.
Jansen was convicted and, on appeal, he challenged the trial judge's evidentiary ruling. The State defended the judge's ruling on two grounds. The first ground was that, by offering the testimony of Dr. Harris, the defense had "opened the door" to evidence of Jansen's prior DUI convictions. But the State presented an alternative argument: the argument that, regardless of the content of Harris's testimony, evidence of Jansen's prior convictions was independently admissible "to prove that Jansen was subjectively aware of the risk posed by his drunk driving". Id. at 311. The State asserted that evidence of Jansen's prior DUI convictions "should have been automatically admitted to show [that Jansen was on] notice [of the dangers of drunk driving], whether Jansen specifically litigated mens rea or not." Ibid.
Responding to the State's argument, this Court acknowledged that, in earlier cases, both this Court and the Alaska Supreme Court had suggested "that a person's past experience of being arrested for driving while intoxicated or other alcohol related offenses ... might be relevant to show recklessness when that person later became intoxicated and engaged in dangerous conduct, i.e., driving while intoxicated." The potential relevance of this evidence stems from the fact that the earlier DUI prosecution "would ... support an inference of the defendant's appreciation of the risk presented to others by driving when intoxicated", and because "awareness of the risk is ... an element of [any] offense [that has] recklessness [as the] mens rea." Ibid.
Id. at 311, citing Abruska v. State, 705 P.2d 1261, 1263-65 (Alaska App. 1985), and Shane v. Rhines, 672 P.2d 895, 899 n. 3 (Alaska 1983).
But despite the relevance of a defendant's prior convictions to show the defendant's awareness of the risk of driving a motor vehicle while under the influence, this Court held that evidence of a defendant's prior convictions normally should not be admitted under this theory:
[The trial judge] was correct when he refused to automatically admit evidence of the [defendant's] prior DWI convictions. Although [the trial judge] did not directly address this issue, he apparently concluded that the probative value of Jansen's past convictions was outweighed by the potential danger that the jury would conclude Jansen was driving while intoxicated in [the present] case because Jansen had driven while intoxicated in the past. ...Jansen, 764 P.2d at 311-12.
In most cases of this type, the defendant ... does not seriously dispute the mens rea issue. [Jansen's] case is unique because Jansen emphasized the significance of his mental state when he interjected expert testimony on the issue of his mens rea. Once Jansen offered Dr. Harris' testimony and directly placed his mens rea in issue, [the trial judge] was free to reevaluate the danger of prejudice versus the probative value flowing from the prior DWI convictions. [The judge] apparently concluded that[,] after the mens rea issue was opened, the probative value of the evidence outweighed the potential prejudice. [This] ruling did not constitute an abuse of discretion.
In other words, the rule in Alaska is that evidence of a DUI defendant's prior DUI convictions is normally inadmissible when this evidence is offered to prove the defendant's awareness of the dangers posed by drinking and driving. This rule of exclusion is not based on a lack of relevance — for, under Alaska Evidence Rule 401, "relevant evidence" is defined as any evidence "having any tendency to make the existence of any [material] fact ... more probable or less probable than it would be without the evidence". Rather, the rule of exclusion is based on the fact that, unless there is an active dispute concerning the defendant's culpable mental state, evidence of the defendant's prior convictions has only a small probative value on the issue of culpable mental state, and this minimal probative value is outweighed by the potential unfair prejudice created by this evidence.
This same rule of exclusion is the implicit underpinning of this Court's decision in Ostlund v. State, 51 P.3d 938 (Alaska App. 2002). In Ostlund, we held that when a defendant is charged with felony DUI — that is, charged with driving under the influence after having been twice previously convicted of this offense — the defendant is normally entitled to a bifurcated trial, so that the jurors do not hear about the defendant's prior convictions unless and until they decide that the defendant is guilty of driving under the influence on the current occasion.
Id. at 941-42.
Our decision in Ostlund is based on the fact that, in a normal felony DUI trial, the defendant's prior convictions are relevant only to establish that the defendant's current act of driving under the influence constitutes a felony. Thus, allowing the State to introduce evidence of those prior convictions before the jury decides whether the defendant is guilty of the current act of driving under the influence poses an unnecessary risk of prejudicing the jury's decision. As we explained in Ostlund:
The state never argued that Ostlund's prior offenses were relevant for any purpose other than to establish that his [current] driving while intoxicated offense was a felony. By holding a unitary trial in which the state was allowed to present evidence that Ostlund had two prior convictions for DWI, the judge unnecessarily presented the jurors with information that could ... unfairly prejudice their deliberations. Having heard that Ostlund had committed DWI on two prior occasions, the jury might have used this information for the purpose prohibited by Evidence Rule 404(b)(1): to infer that Ostlund was a person who characteristically drove while intoxicated, thus making it more likely that he was guilty of the current DWI charge.Ostlund, 51 P.3d at 941. As we stated in this portion of Ostlund, the requirement of a bifurcated trial applies when "[the defendant's] prior offenses [are not] relevant for any purpose other than to establish that [the defendant's current] driving while intoxicated offense was a felony." Id. at 941; see also id. at 946-49 (Mannheimer, J., concurring).
But as I have acknowledged in this concurring opinion, and as the State explicitly argues in Prince's case, a defendant's prior convictions for driving under the influence always have at least some relevance to the question of the defendant's awareness of the dangers of driving under the influence — i.e., to the question of whether the defendant acted with recklessness or, potentially, with manifest indifference to the value of human life.
If we affirmed the ruling made by Prince's trial judge — that is, if we held that this small amount of relevance was sufficient to justify admission of the prior convictions, even when the defendant does not actively dispute the mens rea element of the offense — then we would effectively destroy the Ostlund requirement of bifurcated trials in felony DUI prosecutions. For if we adopted this view of the law, there would never be a felony DUI case where the defendant's prior convictions were relevant solely for the purpose of establishing that the defendant's current act of driving under the influence was a felony. The prior convictions would always be at least minimally relevant to establish the defendant's culpable mental state — and trial judges would presumably have the discretion, under Evidence Rules 403 and 404(b)(1), to let the State introduce evidence of these prior convictions.
The only way to avoid this result is to hold fast to the rule we followed in Jansen: the rule that, unless a defendant actively disputes the element of culpable mental state, evidence of the defendant's prior DUI convictions is not normally admissible — because it has only a small probative value on the issue of culpable mental state, and because this minimal probative value is outweighed by the potential unfair prejudice of this evidence.
This rule of exclusion is dispositive of Prince's case.
In the superior court, the prosecutor relied on essentially the same argument that the State presented in Jansen: the argument that Prince's previous conviction was relevant because it showed "his awareness of the risks associated with drinking and driving". The prosecutor did not discuss the problem that this Court identified in Jansen — the problem that, since evidence of Prince's previous DUI conviction was being offered to prove mens rea, the probative value of this evidence would hinge on whether Prince actively disputed the element of mens rea.
Similarly, when the trial judge granted the prosecutor's request to introduce this evidence, the judge did not consider the question of whether Prince intended to dispute the mens rea element of the State's case.
But this question was crucial. Prince did not defend the murder charge by asserting that he lacked the required mens rea. Rather, he denied that he had been the driver of the vehicle.
Because Prince did not dispute the issue of mens rea, but instead disputed that he was driving the motor vehicle, evidence of Prince's earlier DUI conviction had very little probative value. Its only probative value related to an issue that was not in dispute. On the other hand, the danger of unfair prejudice was quite high: there was a substantial risk that the jury would view Prince's earlier act of driving under the influence as circumstantial evidence that Prince was the one driving the vehicle in the present case.
In these circumstances, Alaska law does not allow the government to introduce evidence of the defendant's prior convictions for DUI, even though this evidence meets the minimal test for relevance. Prince's trial judge committed error by failing to consider whether Prince intended to actively dispute the element of mens rea — and this error requires reversal of Prince's conviction because Prince did not, in fact, dispute the element of mens rea.
Conclusion
For the reasons explained here, I conclude that it was error to allow the State to introduce evidence of Prince's prior DUI conviction. Moreover, I conclude that the fairness of Prince's trial was substantially prejudiced by the admission of this evidence.
The major issue litigated at Prince's trial was whether Prince was the driver of the vehicle. The jurors heard that Prince had committed DUI on a prior occasion, and there was a significant chance that the jurors used this information for the purpose prohibited by Alaska Evidence Rule 404(b)(1): to infer that Prince was a person who characteristically drove while intoxicated, and that it was therefore more likely that Prince was driving the car in this case.
Accordingly, I agree with the result reached in the lead opinion: the judgement of the superior court should be reversed. BOLGER, Judge, dissenting.
We are required to affirm a trial judge's decision to admit or exclude evidence of a person's bad acts, unless the decision is an abuse of discretion. This standard implies that reasonable judges applying the correct criteria might reach differing conclusions: a judge's decision is not an abuse of discretion unless it "falls outside the range of reasonable responses to the problem." In my opinion, a reasonable judge could conclude that Prince's conviction for driving under the influence was admissible by directly applying the language and reasoning of the most pertinent precedent. Accordingly, Judge Spaan's decision to admit this evidence did not constitute an abuse of discretion.
Beaudoin v. State, 57 P.3d 703, 708 n.9 (Alaska App. 2002).
Hewitt v. State, 188 P.3d 697, 700 (Alaska App. 2008).
In Jeffries v. State, this court held:
[I]n cases of homicide caused by an intoxicated driver, the element of "extreme indifference to the value of human life" required for conviction of second-degree murder under AS 11.41.110(a)(2) can be established ... through evidence of ... the defendant's past convictions for driving while intoxicated.This court explained that "the jury is entitled to consider [this] factor[] when deciding whether the government has proved that the defendant acted with the extreme degree of recklessness that will support a murder conviction." When the Alaska Supreme Court affirmed this holding, it recognized that the defendant's DWI convictions were "significant evidence that Jeffries had a heightened awareness of the dangerousness of his conduct."
Jeffries v. State (Jeffries I), 90 P.3d 185, 193 (Alaska App. 2004).
Id. at 193-94.
Jeffries v. State (Jeffries II), 169 P.3d 913, 923 (Alaska 2007).
Jeffries argued that this evidence was so unfairly prejudicial that it should have been excluded. But this court rejected his argument explaining that "the evidence of Jeffries's prior convictions was offered, not to prove his characteristic behavior, but rather to establish his level of awareness of the risks created by his driving while intoxicated."
Jeffries I, 90 P.3d at 194.
Id.
The Alaska Supreme Court did not review our ruling on the admissibility of Jeffries's prior convictions. But the supreme court noted that we had "rejected Jeffries's contention that the evidence of the DWI convictions ... was irrelevant and unduly prejudicial."
Jeffries II, 169 P.3d at 915.
Based on the holdings in the Jeffries cases, a reasonable judge could have concluded that, in a second-degree murder case, the prosecution may introduce evidence of the defendant's past convictions for driving under the influence to prove the element of "extreme indifference to the value of human life." A reasonable judge could have concluded that this evidence is relevant to the defendant's awareness of the risks created by driving under the influence, and that the prejudice from this evidence does not necessarily outweigh this probative value.
In my opinion, it was more reasonable for Judge Spaan to rely on the language and reasoning of the Jeffries holdings, than to refer to the reasoning of the dissenting opinion or the cases with less obvious application to the issue at hand.
In addition, I disagree with the suggestion in the lead opinion that the admissibility of this evidence under Alaska Evidence Rule 403 is necessarily contingent on the number of prior convictions. The lead opinion reasons that this evidence becomes less probative as the number of prior convictions decreases. But a reasonable judge could also recognize that the prejudicial impact of this evidence decreases with the number of prior convictions. In other words, a judge could conclude that, if the prejudice accruing to Jeffries's six prior convictions did not render this evidence inadmissible, then the lesser prejudice inherent in a single prior conviction would not outweigh its recognized probative value.
Judge Spaan could reasonably conclude that the evidence of Prince's prior DUI conviction was relevant to suggest his "heightened awareness of the dangerousness of his conduct." Prince's outpatient education was also relevant to prove this same issue — that he was aware of "the extreme danger of driving under the influence and the disastrous consequences that result from this criminal activity." And the judge mitigated any unfair prejudice when he instructed the jury that this evidence could not be considered as evidence of Prince's propensity to drive under the influence or to engage in any other conduct that was an element of the charges.
Jeffries II, 169 P.3d at 923.
I am not suggesting that all trial judges should be required to decide this question in the same way. It is not an abuse of discretion to exclude evidence of prior DUI convictions when the trial judge concludes that the danger of unfair prejudice outweighs any potential relevance. But I cannot say that Judge Spaan committed an abuse of discretion when he admitted this evidence because his ruling was based on a reasonable interpretation of the Jeffries decisions.
See Shane v. Rhines, 672 P.2d 895, 898-99 (Alaska 1983); Jansen v. State, 764 P.2d 308, 311 (Alaska App. 1988).
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