Opinion
Court of Appeals No. A-8482.
July 7, 2004.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge. Trial Court No. 4FA-02-0009 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Following a jury trial, Robert VanReenan was convicted of felony driving while intoxicated and driving while his license was suspended. VanReenan's major issue on appeal is his contention that Superior Court Judge Mark I. Wood erred in refusing to bifurcate his driving while intoxicated trial. VanReenan had wanted the jury to first decide whether he had driven while intoxicated, and, in a separate proceeding, to determine whether the State proved that he had prior driving while intoxicated convictions. VanReenan also contends that Judge Wood abused his discretion in allowing the State to introduce evidence suggesting that VanReenan's license plate had been altered to show a more recent registration and erred in admitting prejudicial information which appeared on VanReenan's notice of license suspension. In addition, VanReenan contends that the State failed to actually introduce the judgments from his prior driving while intoxicated convictions and therefore did not present sufficient evidence that he had committed felony driving while intoxicated. We reject VanReenan's arguments and affirm his conviction.
AS 28.35.030(a).
AS 28.15.291(a).
Factual and procedural background
On January 1, 2002, at 6:00 a.m., Fairbanks Police Officer Pearl Jean Turney noticed a car with a broken taillight while on patrol. Officer Turney radioed the police dispatcher with the vehicle's license plate number. The dispatcher reported that the vehicle's registration had expired in 1999. Officer Turney activated her overhead lights, but the driver did not immediately pull over. Officer Turney then activated her siren, and the driver pulled over shortly thereafter.
Officer Turney then contacted the driver — VanReenan. Officer Turney observed that VanReenan's speech was slurred, that his eyes were bloodshot, and that he smelled of alcohol. VanReenan also had difficulty turning his ignition off when asked. VanReenan admitted to Officer Turney that he did not have a valid driver's license.
At this point Officer Turney asked VanReenan to perform three field sobriety tests: the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. VanReenan failed all three. Officer Turney arrested VanReenan for driving while intoxicated and driving while license suspended. VanReenan was then transported to the Fairbanks Police Department, where his breath alcohol content was measured at.156 percent.
One week later VanReenan was indicted for felony driving while intoxicated (He had previously been convicted of driving while intoxicated in 1997 and 2001.) He was also charged by information with driving while license suspended. VanReenan pleaded not guilty to both charges.
AS 28.35.030(n).
Judge Wood did not abuse his discretion in denying VanReenan's motion to bifurcate his trial
Judge Wood required the parties to file all motions by Monday of the week prior to the trial. On the day that trial was set to begin, just prior to jury selection, VanReenan made an oral motion to bifurcate his trial, arguing that the evidence of his prior driving while intoxicated convictions should not be presented to the jury until they had deliberated and found that the State had proved the other elements of the offense. The State opposed the motion for bifurcation on the grounds that the motion was untimely. The State also argued that the former driving while intoxicated convictions were relevant to prove the driving while license suspended charge because Van Reenan's license had been suspended as a result of those convictions. The State suggested that the court caution the jury not to improperly use the information. Judge Wood denied the motion for bifurcation.
In arguing that Judge Wood erred in failing to bifurcate his driving while intoxicated trial, VanReenan relies on our prior decisions in Ross v. State and Ostlund v. State. In Ross, we recommended that trial court judges bifurcate felony driving while intoxicated trials when the evidence of a defendant's prior convictions for driving while intoxicated were not relevant for some purpose other than to establish the "prior convictions" element of felony driving while intoxicated. We suggested that if the defendant's prior convictions were relevant for some other purpose, then the trial judge should allow evidence of the prior convictions only when the probative value of the evidence was not outweighed by the danger of unfair prejudice. In Ostlund v. State, (a decision issued three days after the jury reached a verdict in VanReenan's case) we held that the trial court abused its discretion in refusing to bifurcate Ostlund's trial when the evidence of Ostlund's prior driving while intoxicated convictions was only admissible to establish the "prior convictions" element of felony driving while intoxicated.
950 P.2d 587 (Alaska App. 1997).
51 P.3d 938 (Alaska App. 2002).
Ross, 950 P.2d at 590-91.
Id; see also A.R.E. 403 404(b).
Ostlund, 51 P.3d at 941-42.
In VanReenan's case, we conclude that Judge Wood did not abuse his discretion in refusing to bifurcate the trial. First, VanReenan raised his motion on the morning of trial, just a few minutes before the jurors were to be brought in. This was in violation of Judge Wood's pre-trial order, which required that the parties file all motions by the Monday of the week prior to trial. Furthermore, VanReenan did not file a written motion, but merely asked for severance. In response, the State, besides pointing out that the motion was untimely, represented that the prior driving while intoxicated offenses were relevant to prove the driving while license suspended charge. Judge Wood concluded that VanReenan had not shown that he would be prejudiced.
In determining that Judge Wood did not abuse his discretion in denying VanReenan's motion for severance, we consider the fact that the motion was filed on the day of trial shortly before the jury was to be called in. We commented on this situation in Wortham v. State, where the defendant moved for a severance on the morning of trial:
689 P.2d 1133 (Alaska App. 1984).
Unfortunately, when a motion is filed on the day of trial, a party may obtain a significant advantage. In the instant case the motion was raised orally without any citation to authority and apparently without warning. The trial judge was ready to proceed with the trial and in all probability had a jury waiting. This is a situation which makes it difficult for the opposing party to respond and for the trial judge to fully consider the motion before he rules. The dangers of a party obtaining an advantage from filing a late motion are significant enough that it appears to be unwise to hold that the trial judge must consider any motion and can only apply monetary sanctions. On the other hand some motions are significant enough that failure to consider those motions would be an abuse of discretion.
Id. at 1137-38.
In Wortham, we concluded that the trial judge did not err in denying Wortham's motion for severance on the ground that it was untimely.
Id. at 1138.
VanReenan properly points out that Judge Wood did not deny his motion for severance on the ground that it was untimely. But by filing his motion on the morning of trial, VanReenan created the problems which we outlined in Wortham. Furthermore, VanReenan never pointed out to Judge Wood how he might be prejudiced and never challenged the State's assertion that VanReenan's prior driving while intoxicated offenses were relevant to establish the driving while license suspended offense. On this record, we conclude that Judge Wood did not abuse his discretion in denying VanReenan's motion for severance.
Judge Wood did not err in allowing admission of VanReenan's license plate
Officer Turney testified that one of the reasons that she stopped VanReenan was because she learned that VanReenan's vehicle registration had expired in 1999. Apparently VanReenan's license plate tag had been altered to show that the registration had expired in September of 2001. Officer Turney testified that she had seized the license plate that was on VanReenan's vehicle. Officer Turney identified the license plate and the State offered it into evidence.
VanReenan objected, contending that the license plate was not relevant. He pointed out that he was not contesting Officer Turney's grounds for stopping him. VanReenan contended that the testimony about the license plate was unduly time consuming. Judge Wood concluded that the license plate was relevant to corroborate the officer's observations. He admitted the license plate into evidence.
On appeal, VanReenan contends that admission of the license plate was error. He argues that admission of the license plate might have allowed the jurors to infer that VanReenan "had engaged in other improper conduct." But VanReenan did not make this objection at trial. In any event, as Judge Wood found, the license plate was relevant to establish Officer Turney's observations. It seems highly unlikely that the jury would be prejudiced against VanReenan because of the license plate evidence. We conclude that Judge Wood did not abuse his discretion in admitting the license plate.
Judge Wood did not err in allowing admission of the notice of license suspension
During trial, the State presented a letter from the Division of Motor Vehicles, marked as Exhibit 11, informing VanReenan that his license would be suspended through April 2001. VanReenan did not object to Exhibit 11. The State also sought to introduce a notice, given to VanReenan during an earlier driving while intoxicated arrest, informing him that his license was revoked. This notice was marked as Exhibit 10. Initially the defense objected to Exhibit 10, claiming that it contained hearsay and irrelevant information. The State offered to redact the second page (which contained the information that the defense objected to), leaving only the notice and the order of revocation. The defense agreed to admission of the first page. Exhibit 10 was then admitted with no objection. On appeal, VanReenan points out that the first page of Exhibit 10 contains his breath alcohol content at the time of the earlier arrest, which was above the legal limit. However, because VanReenan did not object to Exhibit 10 at trial, we review its admission only for plain error.
This court will find plain error only where the error "is so obvious that it must have been apparent to a competent judge and a competent lawyer even without an objection and . . . so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice." Exhibit 10 is primarily a notice of revocation of VanReenan's license. We fail to see that the one reference to VanReenan's breath alcohol content at the time of his earlier arrest rises to the level of plain error. It would hardly be surprising to the jurors to learn that VanReenan had a blood alcohol level over the legal limit when he was convicted for his former driving while intoxicated offense. It would be obvious to a juror that VanReenan's blood alcohol level for a prior offense was irrelevant to the current charges against him. Furthermore, Judge Wood cautioned the jury against improperly using evidence of other prior bad acts. And the presumption is that a jury will follow the court's instructions. We do not find plain error.
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).
Whiteaker v. State, 808 P.2d 270, 277 (Alaska App. 1991).
The evidence of VanReenan's prior convictions was admitted into evidence
VanReenan argues that the State never admitted into evidence his prior convictions for driving while intoxicated. He argues that the two prior judgments of conviction, marked as Exhibits 5 and 6, were never formally offered and admitted during trial. He argues that because the exhibits were never formally moved into evidence, there was insufficient evidence to sustain his conviction for felony driving while intoxicated.
But exhibits do not need to be admitted upon the motion of a party — the court may admit exhibits on its own motion. There is substantial evidence that the court admitted the exhibits, with the agreement of the parties, before the trial began. Prior to trial, Judge Wood and the parties specifically addressed Exhibits 5 and 6. The parties agreed that the judgments would be admitted after redacting all the provisions of VanReenan's sentence except for the fact that VanReenan's license was suspended. And both parties agreed that the defense would be responsible for redacting the information. Judge Wood stated that the certified judgements were admissible, but that they would not be presented to the jury until the end of the trial. Also, the exhibits were marked with stickers indicating that they were admitted and they were recorded as admitted on the exhibit list.
See id.
During trial, while questioning a witness, the State referred to one of the prior judgments as "what has been previously marked and admitted by agreement of the parties as State's Exhibit number 6." And, during closing argument, the State told the jury: "You will have certified copies of the judgements in this case. They weren't talked about in court. They have been admitted already. And those will be before you." VanReenan did not object to either statement, again implicitly acknowledging that Exhibits 5 and 6 were previously admitted by the parties' consent.
Finally, at the close of trial, the admitted exhibits were listed by the trial court. Exhibits 5 and 6 were listed as admitted and the defense made no objection.
We therefore conclude that Exhibits 5 and 6 were properly admitted. Therefore, VanReenan's argument that the State did not introduce evidence of his prior convictions is contradicted by the record.
In a related argument, VanReenan argues that Judge Wood violated Alaska Rule of Criminal Procedure 26.1. Criminal Rule 26.1 governs the handling of exhibits during a criminal prosecution. Subsection (e) requires that, prior to submission of the case to the jury, the court perform a "final check" of all the exhibits. This consists of: (1) examining all exhibits and the in-court clerk's exhibit list; (2) confirming that the list accurately reflects the status of the exhibits; and (3) confirming any modifications to the exhibits that the court has ordered.
Judge Wood conducted such a proceeding at the close of trial. Judge Wood and counsel went through and identified all of the exhibits. And the exhibits listed as admitted match those on the in-court clerk's exhibit list.
We find no basis to VanReenan's contention that Judge Wood violated Alaska Criminal Rule 26.1.
Conclusion
We conclude that the issues that VanReenan raises do not have merit. We accordingly affirm his convictions.
AFFIRMED.