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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
VERONICA BOWLIN, )
) Court of Appeals No. A-3677
Appellant, ) Trial Court No. 3PA-S90-362
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
) [No. 1190 - December 27,
1991]
Appellee. )
________________________________)
Appeal from the District Court, Third Judi
cial District, Palmer, Peter Ashman, Judge.
Appearances: Cynthia Drinkwater, Assistant
Public Defender, Palmer, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Eugene B. Cyrus, Assistant District Attorney,
Kenneth J. Goldman, District Attorney,
Palmer, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Veronica Bowlin was convicted of refusal to submit to a
breath test, AS 28.35.031(a) and AS 28.35.032(f), following a
jury trial in the district court at Palmer. The main issue at
trial was whether Bowlin, who has asthma, was physically capable
of blowing enough air into the Intoximeter machine to trigger the
mechanism and run the breath test. The State's theory of the
case was that Bowlin had willfully refused to blow enough air
into the machine to activate the test. Bowlin testified that she
had tried several times to activate the Intoximeter but, because
of her asthma, she had failed despite her best efforts.
The prosecutor asked the trial judge to allow the
jurors to take turns blowing into the Intoximeter so they could
gain personal knowledge of how forceful the flow of air must be
to trigger the testing mechanism. District Court Judge Peter
Ashman granted the State's motion; the judge, the attorneys,
Bowlin, and the jurors went together to the Palmer police
station, where the jurors took turns blowing into the Intoximeter
and observing how much air was required to activate the machine's
testing mechanism. On appeal, Bowlin challenges the district
court's decision to allow the jurors to do this.
The procedure adopted by the trial judge in Bowlin's
case combines three traditional court procedures: (1) a jury
view (having the jury leave the courtroom to inspect physical
evidence that cannot practicably be brought to court)1; (2) a
demonstration (having the jury observe the working of the Intoxi
meter machine); and (3) an experiment (testing the Intoximeter to
see what amount of force was required to fill the testing chamber
with enough air to trigger the machine's breath testing func
tion). Moreover, because the jurors themselves blew into the
Intoximeter (rather than watching someone else do it), Bowlin's
case is also similar to cases involving jury experiments
conducted upon or using items of physical evidence during
deliberations.
Bowlin points out that the jurors' manipulation and
testing of the Intoximeter differed significantly from a normal
"jury view" in which jurors merely look at something. See Alaska
Criminal Rule 27(b) and Alaska Civil Rule 48(c). She asserts
that when the jurors took turns blowing into the Intoximeter they
created "new evidence" -- evidence obtained outside of court,
evidence that Bowlin could not subject to confrontation or cross-
examination.
But the words "new evidence" are not a talisman to
charm a decision from the facts of this case. "Evidence" is not
confined to the sworn words of witnesses or to small objects that
can be easily handled, carried into the jury room, and placed in
an envelope or box for transmission to an appellate court.
Rather, any jury view and any physical demonstration will yield
"evidence".
Bowlin cites State v. Fricks, 588 P.2d 1328, 1334
(Wash. 1979), for the proposition that the sole purpose of a jury
view is to help the jury understand testimony already presented
in court, and that a jury view is improper if it produces "new"
evidence -- that is, evidence which is not merely illustrative of
witnesses' testimony. Many cases echo the Fricks rule. But this
distinction between juror observations and the more usual forms
of evidence heard in a courtroom does not make sense. McCormick
on Evidence notes that this limitation on jury views is
"uniformly condemned" by commentators on the law of evidence:
This doctrine undoubtedly rests in large part
upon the consideration that facts garnered by
the jury from a view are difficult or impossi
ble to embody in the written record, thus
rendering review of questions concerning
weight or sufficiency of the evidence imprac
ticable. At the same time, however, this
doctrine ignores the fact that many other
varieties of demonstrative evidence are to
some extent subject to the same difficulty,
and further it is unreasonable to assume that
jurors, however they may be instructed, will
apply the metaphysical distinction suggested
and ignore the evidence of their own senses
when it conflicts with the testimony of the
witnesses.
McCormick on Evidence (2nd ed. 1972), 216, p. 539. Accord,
Wigmore on Evidence (Chadbourn rev. 1972), 1168, Vol. 4, pp. 385-
391. Thus, it is the fulfillment of purpose, not the creation of
error, when the jury's observation of an intersection, a
building, or a machine provides new information that allows the
jury to better assess the credibility of witnesses and the weight
to be given their testimony.
During the jury's visit to the police station, the
jurors observed the working of the Intoximeter machine. In
particular, they tested the machine to see how much air flow
would trigger it. Demonstrating the working of machinery is an
accepted part of evidence. As Wigmore pointedly states:
In general, when a question arises whether at
a certain machine, house, field, mine, or
other thing, a certain act can be done under
given conditions of time, strength, skill, or
achievement, one way [to obtain the answer]
is to speculate about it, and another way is
to try it; and it is a crude error to suppose
that the law of evidence here prefers specula
tion to experience, abhors actual experiment,
and delights in guesswork.
Wigmore (Chadbourn rev. 1979), 460, Vol. 2, p. 592.
Bowlin argues that, if the jury's visit to and
operation of the Intoximeter led to the jury's obtaining more
evidence, then that visit violated the fundamental rule of trial
procedure prohibiting the reception of evidence by the jury
outside of court. Wigmore (Chadbourn rev. 1976), 1802, Vol 6,
p. 334. But, for purposes of this rule, "court" means the
presence of the judge, the jury, and the parties. When a
physical object cannot practicably be brought to the courtroom,
or when a demonstration cannot feasibly be performed in the
courtroom, a trial judge has the discretion to bring the court to
the evidence. Id. at 336-38; Wigmore (Chadbourn rev. 1972),
1162, Vol. 4, p. 362. In Bowlin's case, the judge, the attor
neys, and Bowlin herself accompanied the jury to the police
station and were present during the entire procedure.
The propriety both of jury views and of courtroom
demonstrations is unquestionable. This being so, there is no
objection in principle to a combination of the two -- the holding
of a demonstration in the presence of the jury outside the court
room. See Wigmore (Chadbourn rev. 1976), 1802, Vol. 6, pp. 336-
38, indicating that it is proper for a court to hold proceedings
at the site of a jury view and have witnesses testify there if
this will aid the witnesses in imparting their information and
the jury in understanding it.
Bowlin contends, however, that it was error to allow
the jurors themselves to participate in the demonstration of the
Intoximeter. As noted above, the jurors took turns blowing into
the machine and finding out how much breath was required to
trigger the testing mechanism. Bowlin argues that this procedure
turned each of the jurors into a new "witness" against her, a
witness who could not be confronted or cross-examined.
We do not believe that the performance of the
Intoximeter test deprived Bowlin of the right to confront the
evidence against her. The jurors were not allowed to take the
Intoximeter and tinker with it in private; rather, they were
given access to the machine at the police station to conduct one
specific type of examination (blowing into the machine). The
entire procedure occurred in the presence of both Bowlin's
attorney and Bowlin herself. Bowlin was able to observe how the
procedure was conducted, and the same Intoximeter machine
employed in that procedure was available for Bowlin's inspection
and testing.
Nor is cross-examination an issue here. Normally,
jurors rely upon human witnesses' descriptions of what happened;
cross-examination is a method for testing the truthfulness and
accuracy of these after-the-fact accounts. But when the jurors
blew into the Intoximeter to see what amount of air pressure was
needed to trigger the testing mechanism, the jurors were able to
directly perceive the result for themselves rather than depending
on someone else's account of it. See Wigmore, (Chadbourn rev.
1976), 1803, Vol. 6, p. 342.
The Alaska Supreme Court has recognized that a
defendant has a due process right, analogous to the right of
cross-examination, to test the reliability of the results of the
government's chemical analysis of a motorist's breath.
Lauderdale v. State, 548 P.2d 376 (Alaska 1976). But the
scientific test conducted in Lauderdale occurred outside the
presence of the jury, and the jury was not in a position to
directly assess or gauge the accuracy of the breath test reading.
In Bowlin's case, on the other hand, the question is not whether
chemical analysis has yielded a trustworthy result. Rather, the
issue concerns a physical characteristic of the breath test
machine itself: how much breath is required to trigger the
machine's testing mechanism. This is a question that can be
resolved through the jurors' direct experience, similar to the
question of how much the machine weighs or whether it becomes
warm to the touch when it is being operated.
Nevertheless, Bowlin's argument is not trivial. As
demonstrated by the cases involving juror manipulation and
testing of physical evidence during jury deliberations, courts
are often troubled when jurors, supplementing their usual role as
mere hearers and observers of testimonial and demonstrative
evidence, undertake more direct participation in the fact-finding
process by examining or probing the physical objects introduced
at trial.
Notwithstanding this judicial trepidation, there are
many cases upholding jury experimentation with physical evidence.
In People v. Kurena, 410 N.E.2d 277 (Ill. 1980), jurors
constructed a cardboard replica of the knife admitted into
evidence and used this replica to re-enact the assault, to see if
the victim's wounds could have been inflicted by a left-handed or
right-handed person, and to see if the weapon could have been
concealed in a sleeve. In State v. Thompson, 524 P.2d 1115
(Mont. 1974), jurors used the handgun admitted into evidence to
re-enact the struggle described in the testimony and see if the
gun could have been fired if held in the manner described in the
testimony. In Allen v. State, 146 S.W.2d 384, 386 (Tex. Crim.
1940), overruled on another point by Stiles v. State, 520 S.W.2d
894 (Tex. Crim. App. 1975), the jury experimented with the pistol
admitted into evidence to see if, as claimed by the defendant,
the cylinder would "hang" or stick at a particular place in its
revolution and cause the handgun to discharge accidentally. In
State v. Best, 232 N.W.2d 447, 457 (S.D. 1975), a defendant on
trial for child abuse claimed that her infant's injuries had been
inflicted when the baby's two-year-old brother had struck the
baby with a telephone. The jurors experimented with the
telephone (which had been admitted into evidence), testing its
weight to see if it was conceivable that a two-year-old could
have used it to inflict serious injury. In People v. Engler, 540
N.Y.S.2d 591, 594 (N.Y. App. 1989), jurors experimented with a
vaporizer to test the defendant's claim that a child's injuries
had been sustained when the child carelessly played near the
vaporizer. In perhaps the most extensive jury experiment, the
jurors in Taylor v. Reo Motors, Inc., 275 F.2d 699, 705 (10th
Cir. 1960), actually dismantled a heat exchanger to test a
witness's testimony about the way it functioned.
We list these cases, not to indicate that we
necessarily approve of each of these decisions, but to illustrate
how much scope courts have been willing to grant juries who
experiment with exhibits in the privacy of their deliberations.
Bowlin's case is far easier to decide because the procedure at
issue in Bowlin's case does not raise the same policy concerns as
experimentation that occurs during jury deliberations.
The courts which forbid jurors' manipulation of or
experimentation with physical evidence generally base their
decisions on one or both of two objections. First, courts object
because jury deliberation occurs outside the presence of the
parties; thus, the parties cannot point out the weaknesses or
possible ambiguities in the jury's mode of examination, nor can
they elucidate any lack of similarity between what the jury is
doing with the exhibit and how the exhibit was actually used
under the circumstances of the case. Second, courts object
because they cannot exercise their normal power to exclude a
physical demonstration with or experiment upon an object when the
current condition of the object differs materially from its
condition at the time at issue in the litigation. See, e.g.,
People v. Andrew, 549 N.Y.S.2d 268 (N.Y. App. 1989).
The first objection has no force here because the
jurors' experiment with the Intoximeter occurred in the presence
and under the scrutiny of Bowlin and her attorney. Likewise, the
second objection does not apply to Bowlin's case either. Judge
Ashman heard the parties argue the pros and cons of holding such
an experiment before he exercised his discretion in favor of
allowing the procedure. If Bowlin had believed that the current
condition of the Intoximeter differed materially from its
condition at the time of her arrest, she could have raised this
objection.
Finally, Bowlin argues that the jurors' testing of the
Intoximeter differed substantially from the event being litigated
-- Bowlin's act of blowing into the machine at the time of her
arrest. Bowlin asserts that, because she has asthma while the
jurors do not, the jurors would have found it significantly
easier to activate the Intoximeter than she did. Bowlin
therefore claims that the jurors' experience with the machine was
misleading.
Bowlin's argument misapprehends the purpose of the
jurors' test. The jurors were not attempting to duplicate
Bowlin's act of blowing into the Intoximeter. Rather, they were
attempting to gain a better understanding of the witnesses'
testimony by testing a physical characteristic of the
Intoximeter, seeing how much air pressure was needed to activate
the machine. This is similar to jury tests of the weight or
working of a mechanical object upheld in Allen v. State, 146
S.W.2d at 386 (alleged defect in the cylinder of a revolver),
State v. Best, 232 N.W.2d at 457 (weight of a telephone), People
v. Engler, 540 N.Y.S.2d at 594 (functioning of a vaporizer), and
Taylor v. Reo Motors, Inc., 275 F.2d at 705 (functioning of a
heat exchanger).
When the jurors tested the Intoximeter, they were
already aware that Bowlin had asthma and that Bowlin's medical
condition gave her a reduced ability to exhale forcefully. It
was clear that the jurors could not duplicate Bowlin's act of
blowing into the machine; it was equally clear that the jurors'
ability to activate the machine did not necessarily mean that
Bowlin could have done so too. Bowlin's attorney had the
opportunity to emphasize these two propositions when the case was
argued.
For these reasons, we conclude that Judge Ashman did
not abuse his discretion when he allowed the jurors in Bowlin's
case to go to the Palmer police station and blow into the
Intoximeter. The judgement of the district court is AFFIRMED.
_______________________________
1 Apparently, the trial judge decided to bring the jury to
the Intoximeter rather than vice-versa because physical removal
of the Intoximeter from its location at the police station jeopar
dizes its certification by the Department of Health and Social
Services.
