Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are requested to bring
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSEPH J. HAZELWOOD, )
) Court of Appeals No. A-3452
Appellant, ) Trial Court Nos. 3AN-S89-7217CR
) 3AN-S89-7218CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1595 - July 2, 1998]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Karl S. Johnstone, Judge.
Appearances: Richard H. Friedman, Friedman,
Rubin & White, Anchorage, for Appellant. Cynthia M. Hora,
Assistant Attorney General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, Joannides,
District Court Judge, and Wolverton, Superior Court Judge.
[Mannheimer and Stewart, Judges, not participating.]
COATS, Chief Judge.
Joseph J. Hazelwood was convicted by a jury of negligent
discharge of oil. We reversed his conviction on appeal, holding
that Hazelwood was immune from prosecution. Hazelwood v. State,
836 P.2d 943 (Alaska App. 1992). In State v. Hazelwood, 866 P.2d
827 (Alaska 1993), the Alaska Supreme Court reversed our decision,
remanding the case to us. In Hazelwood v. State, 912 P.2d 1266
(Alaska App. 1996), we concluded that Hazelwood's prosecution was
permissible under the inevitable discovery doctrine but concluded
that the trial court erred in finding that some items which were
introduced into evidence were admissible under the inevitable
discovery doctrine. We concluded that it was unnecessary for us to
determine whether admissibility of these items of evidence
constituted harmless error because we concluded that the trial
court erred in instructing the jury that civil, rather than
criminal negligence, was necessary to convict Hazelwood of
negligent discharge of oil. In State v. Hazelwood, 946 P.2d 875
(Alaska 1997), the Supreme Court reversed our decision finding that
the trial court did not err in instructing the jury that ordinary
negligence was sufficient to convict under the statute. The
Supreme Court remanded the case to us for consideration of any
unresolved issues which were originally raised by Hazelwood on
appeal. Id. at 886.
There are two issues which remain for us to address: (1)
was it harmless error for the trial court to admit the
impermissible evidence of Hazelwood's immunized statements and
Hazelwood's intoxication; and (2) assuming that it was harmless
error to admit this evidence, was Hazelwood's sentence permissible?
We conclude that admission of the evidence in question constituted
harmless error and conclude that Hazelwood's sentence was
permissible.
In reviewing whether it was harmless error for the trial
court to admit evidence of Hazelwood's immunized statements and
intoxication, we have assumed that we should apply the standard
which courts apply when the impermissible evidence in question was
obtained in violation of the defendant's constitutional rights. In
those cases courts are bound by the rule of Chapman v. California,
386 U.S. 18, 24 (1967), that before a constitutional error can be
held harmless, the court must be able to declare that it was
harmless beyond a reasonable doubt. See also Love v. State, 457
P.2d 622, 633 (Alaska 1969). In determining whether there is
harmless error beyond a reasonable doubt, "[t]he question is
whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction."
Billingsley v. State, 807 P.2d 1102, 1106 (Alaska App. 1991)
(citing Chapman, 386 U.S. at 23 (quoting Fahy v. Connecticut, 375
U.S. 85 (1963))); see also Braham v. State, 571 P.2d 631, 645
(Alaska 1977). [Fn. 1] We are deciding the harmless error question
based upon our findings and decision in Hazelwood v. State, 912
P.2d 1266 (Alaska App. 1996), but given the length of this
litigation, we have concluded that we should decide the harmless
error question based upon the record as it now stands. [Fn. 2]
In Hazelwood, 912 P.2d at 1273-77, this court determined
that, with two exceptions, the record supported the trial court's
findings that the majority of the state's evidence was admissible
pursuant to the inevitable discovery doctrine. The two exceptions,
which this court concluded were erroneously admitted into evidence,
were: (1) some of Hazelwood's own statements; and (2) some of the
evidence of Hazelwood's intoxication. Id. at 1273-74.
In Hazelwood, 912 P.2d at 1276-77, this court determined
that several of Hazelwood's statements were erroneously admitted
into evidence.
The first disputed statements were made during
Hazelwood's initial report to the Coast Guard, in which he stated
in part:
Yeah, ah Valdez back, ah we've, should be on
your radar there, we've fetched up ah hard aground, north of Goose
Island, off Bligh Reef, and ah evidently leaking some oil and we're
gonna be here for awhile and ah, if you want ah, so you're
notified, over.
The tape recording of this transmission was admitted as exhibit 120
at trial. Hazelwood asserts the significance of this entire trans-
mission is that it established that Hazelwood was on the bridge
immediately after the grounding, it established the weather
conditions as he perceived them, and it established the efforts he
was making to try to extract the vessel from the reef.
The second disputed statement was elicited during Alaska
State Trooper Michael Fox's testimony. Fox testified:
I told [Hazelwood] who I was, and I was
representing the state, and that I was helping with the
investigation into cause, why it happened, and I said, "Well, what
the heck is the problem?" and he said, "You're lookin' at it."
Hazelwood argues that this statement could be construed as an
admission of his guilt, which is what the state argued in closing
argument.
The final group of disputed statements occurred during an
interview of Hazelwood that Coast Guard Chief Warrant Officer Mark
Delozier conducted. The tape of the interview was admitted into
evidence and played for the jury. Hazelwood points to the
following statements that he made during the interview which he
asserts are prejudicial: that he had a beer at the Pipeline Bar
before boarding the Valdez; that after the pilot left, he assumed
the "con" of the vessel; that he altered course outside of the
shipping lane; that he left the bridge without leaving explicit
instructions for the third mate as to when to turn back into the
lane; and that he made a mistake in overestimating the third mate's
abilities. Hazelwood points out that during closing argument, the
prosecutor characterized Hazelwood's statement to Delozier as an
admission and argued that Hazelwood acknowledged responsibility for
the negligent discharge of oil.
We acknowledge that, in general, a defendant's own words,
admitting responsibility for an offense, can have a very damaging
effect against the defendant. See Cole v. State, 923 P.2d 820, 832
n.20 (Alaska App. 1996) (quoting Arizona v. Fulminante, 499 U.S.
279, 292 (1991), for the premise that "A defendant's confession is
probably the most probative and damaging evidence that can be
admitted against him[.]"); Collazo v. Estelle, 940 F.2d 411, 424
(9th Cir. 1991) (en banc) (quoting Bruton v. United States, 391
U.S. 123, 139-40 (1968)) ("[a] confession is like no other
evidence. Indeed, 'the defendant's own confession is probably the
most probative and damaging evidence that can be admitted. . . .
Certainly, confessions have profound impact on the jury[.]'");
Motta v. State, 911 P.2d 34, 40 (Alaska App. 1996) (quoting
Fulminante, 499 U.S. at 296) (explaining that "[e]ven in the face
of powerful independent proof of guilt, the defendant's inculpatory
description of the offense 'may tempt the jury to rely upon that
evidence alone in reaching its decision.'").
In the instant case, however, Hazelwood's statement that
he accepted responsibility for the grounding is cumulative of
similar admissible evidence that the state introduced, which also
established that Hazelwood accepted responsibility for the
grounding. Exxon employee Paul B. Myers testified that after the
grounding, he spoke with Hazelwood. Hazelwood told Meyers that he
was not on the bridge at the time the ship went aground. Meyers
testified:
[Hazelwood] indicated that this had happened
and that it was his fault, he was to blame, he had just gone down
to do some paperwork when this had happened and that he should have
been on the bridge.
Given this statement, we do not believe that there was a
reasonable possibility that Hazelwood's other statements might have
contributed to his conviction. The fact that Hazelwood merely
repeated that the incident was his fault and that he should not
have left the bridge had negligible evidentiary impact. In
response to these statements, Hazelwood's attorney argued that as
captain, Hazelwood believed it was his responsibility to take the
blame for the incident; the statement did not indicate that
Hazelwood was negligent.
The state introduced significant independent evidence of
Hazelwood's specific conduct before the grounding and argued that
this conduct constituted a lack of due care. Hazelwood's
statements added nothing to the independent evidence which the
state presented regarding how the incident came about. Most of
this evidence, except for the evidence concerning Hazelwood's level
of intoxication at the time of the grounding, was undisputed. The
only evidence that was not cumulative of properly admitted evidence
was personal information about Hazelwood (such as his home
address), the admission of which is not prejudicial to Hazelwood.
The question before the jury was whether Hazelwood's actions
constituted negligence. We are convinced that there was no
reasonable possibility that the evidence of Hazelwood's erroneously
admitted statements contributed to his conviction.
In Hazelwood, 912 P.2d at 1273-74, we concluded that the
trial court erroneously admitted testimony concerning Hazelwood's
intoxication. Specifically, Coast Guard Officer Delozier testified
regarding what he observed when he boarded the Exxon Valdez. He
testified that he "observed a strong odor of alcohol coming from
Captain Hazelwood." Similarly, Coast Guard Lieutenant Commander
Thomas Falkenstein testified that he noticed "an obvious smell" of
alcohol on Hazelwood's breath when he arrived at the bridge.
Furthermore, the state presented evidence of Hazelwood's
blood-alcohol and urine-alcohol levels on the morning of March 24,
1989 (the grounding occurred during the early morning hours of
March 24, 1989). Coast Guard Health Services technician Scott
Conner took Hazelwood's blood sample at approximately 10:20 or
10:30 a.m. At roughly the same time, Hazelwood provided Delozier
with a urine sample. Dr. Michael Peat testified that CompuChem
Laboratories tested the samples. The tests revealed that
Hazelwood's blood contained .061 percent weight per volume of
alcohol. Hazelwood's urine contained .094 percent weight per
volume of alcohol. The state introduced the results of these tests
into evidence.
At trial the state presented testimony of Dr. Richard
Prouty which was based upon this inadmissible evidence. Dr. Prouty
explained alcohol elimination rates in the human body. Dr. Prouty
calculated what Hazelwood's alcohol level would have been at the
time of the grounding using various elimination rates. He
testified that assuming Captain Hazelwood weighs approximately 170
pounds and is about six feet tall, if Hazelwood stopped drinking at
8 p.m. and his blood alcohol concentration was .06 at 10:30 the
following morning, his blood alcohol concentration at 12:05 a.m.
(the time of the grounding) would have been at least .10, using
various elimination rates. He further testified that alcohol
impairs a person's judgment and decision making process.
The jury acquitted Hazelwood on the charge of operating
a vessel while intoxicated. As the state points out, the
erroneously admitted evidence of Hazelwood's intoxication was not
the only evidence that the state presented establishing that
Hazelwood had consumed alcohol the night before the grounding. The
state also presented the testimony of witnesses who stated that
Hazelwood had consumed alcohol on March 23, 1989. Chief Engineer
Jerry Glowacki testified that he met Hazelwood and radio operator
Gerald Roberson at the Pipeline Club around 4:00 p.m., on March 23,
1989. Glowacki testified that each man had at least one alcoholic
beverage; he believed Hazelwood was drinking vodka. Moreover,
marine pilot William Murphy, who had piloted the Valdez up until
Rocky Point, testified that prior to leaving the vessel, he had a
conversation with Hazelwood on the bridge. During the conversation
Murphy noticed an odor of alcohol on Hazelwood's breath.
In contrast, defense counsel argued that alcohol did not
play any role in the incident. Defense counsel acknowledged that
Hazelwood consumed alcohol the night before the incident, but
argued that Hazelwood had "four [drinks] at the most." Defense
counsel argued that Hazelwood was not impaired by the drinks, and
pointed out to the jury that twenty-one witnesses testified that
Hazelwood displayed no signs of intoxication when he boarded the
ship. It was therefore uncontested that Hazelwood had consumed
alcohol the night before the incident. There was also a
significant amount of testimony from which the jury could try to
ascertain whether Hazelwood was impaired by alcohol. As the state
points out, the fact that the jury acquitted Hazelwood of operating
the Exxon Valdez under the influence of alcohol demonstrates that
the jury was clearly not convinced beyond a reasonable doubt that
Hazelwood was intoxicated. The charge of which Hazelwood stands
convicted, negligent discharge of oil, does not require the state
to show that Hazelwood was intoxicated. The decision facing the
jury was whether Hazelwood's decisions before the grounding of the
Exxon Valdez were negligent and resulted in the negligent discharge
of oil. The jury's decision turned on whether the actions which
Hazelwood took constituted negligence.
The state introduced a significant amount of evidence
showing Hazelwood's conduct before the grounding. For instance,
the state introduced evidence that Hazelwood put the vessel on
autopilot and directed that the vessel be brought up to sea speed
while the vessel was on a direct course for Bligh Reef. The state
introduced evidence that Hazelwood left the bridge while the vessel
was out of the southbound lane of traffic to avoid ice. The state
introduced evidence that Hazelwood left the vessel in control of
the third mate, who did not have the necessary pilotage endorsement
for Prince William Sound. The state elicited third mate Gregory
Cousin's testimony regarding the minimal instructions that
Hazelwood gave Cousins before Hazelwood left the bridge. The state
introduced evidence that Hazelwood allowed helmsman Robert Kagan to
steer the vessel after having discussed with his junior officers,
earlier that month, that Kagan had problems steering the vessel.
The state's evidence showing Hazelwood's actions prior to
the grounding was virtually uncontested by the defense. The
parties vigorously disputed, however, whether Hazelwood's conduct
constituted negligence. The state elicited opinion testimony that
Hazelwood's various actions prior to the grounding constituted "bad
judgment" and recklessness. The state then argued that Hazelwood's
conduct was negligent. In contrast, while Hazelwood did not
dispute what his conduct was before the grounding, he asserted that
he gave routine directions to crewmen who it was reasonable for him
to believe were competent, qualified persons, and he argued that
this conduct was reasonable. The main question for the jury to
resolve, consequently, was not what Hazelwood did prior to the
grounding, but whether his conduct was negligent.
While the state elicited evidence of Hazelwood's
consumption of alcohol as a possible explanation for why Hazelwood
acted as he did, the ultimate issue remained whether Hazelwood's
decisions and conduct prior to the grounding were negligent. We
conclude that there is no reasonable possibility that the
erroneously admitted evidence of Hazelwood's intoxication affected
the jury's decision of whether Hazelwood's actions were negligent.
Accordingly, the erroneous admission of the evidence was harmless
beyond a reasonable doubt.
Hazelwood next contends that Superior Court Judge Karl S.
Johnstone imposed an impermissible sentence. At the time Hazelwood
committed the offense, negligent discharge of oil was a class B
misdemeanor. See AS 46.03.790. [Fn. 3] The maximum sentence for
a class B misdemeanor is ninety days imprisonment. AS
12.55.135(b). The maximum fine that may be imposed is $1,000. AS
12.55.035(b)(4). Judge Johnstone was authorized to impose both a
sentence and a fine if he so chose. See AS 12.55.015 (a)(1)(A) and
(4). Judge Johnstone sentenced Hazelwood to serve ninety days in
jail and pay a $1,000 fine, or, in the alternative, to perform
1,000 hours of community work service. He was also ordered to pay
$50,000 in restitution.
Hazelwood argues that Judge Johnstone did not have the
authority to impose 1,000 hours of community work service because
that many hours of community work service would not be permitted
under Alaska law.
Alaska Statute 12.55.100(a)(4) states:
While on probation and among the conditions of
probation, the defendant may be required to perform community work
in accordance with AS 12.55.055.
Alaska Statute 12.55.055(c) and (d) state:
(c) The court may offer a defendant convicted
of an offense the option of performing community work in lieu of a
fine, surcharge, or portion of a fine or surcharge if the court
finds the defendant is unable to pay the fine. The value of
community work in lieu of a fine is $3 per hour.
(d) The court may offer a defendant convicted
of an offense the option of performing community work in lieu of a
sentence of imprisonment. Substitution of community work shall be
at a rate of eight hours for each day of imprisonment. A court may
not offer substitution of community work for any mandatory minimum
period of imprisonment or for any period of a presumptive term of
imprisonment.
Both parties agree that under these statutes the maximum
fine for Hazelwood's offense, $1,000, can be valued at 333.3 hours
of community work service. The parties also agree that the maximum
prison sentence for Hazelwood's offense, ninety days, can be
equated to 720 hours of community work service. Hazelwood argues
that the 1,000 hours of community work service is excessive,
because it exceeds both the maximum number of hours that could be
imposed for a fine, or a sentence, alone. The state points out
that even if the court accepts Hazelwood's analysis that AS
12.55.055(c) and (d) impose a limit on the court's ability to
impose community work service, the court had the authority to
impose both a fine and imprisonment for the offense. The court's
authority to impose both a fine and imprisonment would authorize it
to impose over 1,000 hours of community work service in lieu of the
fine and imprisonment. [Fn. 4] We find the state's argument
persuasive. Even if we were to adopt Hazelwood's view that AS
12.55.055 limited the amount of community work service which the
trial court could impose, the 1,000 hours of community work service
did not exceed the amount which the court could impose under the
statute.
The conviction and sentence are AFFIRMED.
FOOTNOTES
Footnote 1:
In Hazelwood v. State, 912 P.2d 1266, 1270 n.4 (Alaska App.
1996), we noted:
However, the federal reporting require-
ment in this case applies to participants in a
heavily regulated, licensed activity; accordingly there is
substantial doubt as to whether the reporting requirement
implicated Hazelwood's constitutional right against self-
incrimination.
(Citation omitted.) In the event that the statute which required
Hazelwood to report the oil spill, 33 U.S.C. sec. 1321(b)(5), did
not
implicate Hazelwood's constitutional right against self incrimin-
ation, then it would appear that we should apply the harmless error
standard which applies to non-constitutional errors, which is
whether the evidence in question appreciably affected the jury's
verdict. See Love v. State, 457 P.2d 622 (Alaska 1969); see also
Bernard Penner, Immunity and Oil Spill Reporting Statutes, 3 U.
Balt. J. Envtl. L. 34 (1993) (distinguishing between statutes that
require individuals to make potentially incriminating disclosures
for regulatory purposes (such as providing information at the scene
of an accident), and traditional immunity statutes intended to
compel individuals to testify in criminal investigations over a
claim of Fifth Amendment privilege; concluding that where the
information compelled to be reported requires no more information
than is necessary to respond to an emergency situation, the Fifth
Amendment privilege is not triggered).
Footnote 2:
In that decision we pointed out:
[W]e believe it appropriate to emphasize
that our disposition of the inevitable discovery issues presented
in this case is based on the factual record as it now stands. At
the time of the suppression hearing in the superior court, the
inevitable discovery doctrine had never been adopted in Alaska, and
no appellate decision by this court or the Alaska Supreme Court had
addressed the doctrine except in passing. Because no ground rules
for proof of inevitable discovery had been adopted in Alaska, the
parties were left with no clear guidelines for structuring their
presentation of evidence at the suppression hearing. We recognize
that such factors may well have influenced the presentation of
evidence at the original suppression hearing and may have resulted
in a record that, in retrospect, is incomplete or misleading. Our
ruling is not meant to preclude either party from requesting the
superior court to hear additional evidence on the inevitable
discovery issue. In the event of a request by either party to
reopen the issue, the deter-mination of whether and to what extent
additional evidence should be received will be a matter for the
superior court's discretion. We do not mean to suggest that the
superior court must permit reopening of the issue if, in its view,
both parties have had a full and fair opportunity to address it.
Hazelwood, 912 P.2d at 1277 n.13.
Footnote 3:
This statute has subsequently been changed and criminally
negligent discharge of oil is now a class A misdemeanor or a class
C felony, depending on the amount disharged.
Footnote 4:
The state also points out that, in the event that Hazelwood
concludes that the conditions of probation are unduly severe, he
has the right to refuse probation and demand that the court impose
sentence. See State v. Staael, 807 P.2d 513, 516 (Alaska App.
1991).
