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Ostlund v. State (7/26/2002) ap-1813
Ostlund v. State (7/26/2002) ap-1813
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM B. OSTLUND, )
) Court of Appeals No. A-
7787
Appellant, ) Trial
Court No. 4FA-S99-3964 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1813 - July 26, 2002]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Jane F. Kauvar,
Judge.
Appearances: Bill D. Murphree, Bill D.
Murphree, P.C., and Robert John, Law Office
of Robert John, Fairbanks, for Appellant. W.
H. Hawley, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
A jury convicted William B. Ostlund of felony driving
while intoxicated (DWI)1 and driving with a revoked operators
license.2 He raises two issues on appeal: (1) whether the trial
judge erred when she denied his motion to bifurcate the trial so
the jury would not hear evidence of his prior convictions before
deliberating on the current DWI allegation and (2) whether the
trial judge erred in failing to give a jury instruction regarding
photographs he contends the police might have taken at the scene
of his alleged offense. We reverse Ostlunds convictions because
we find the trial court erred when it did not bifurcate Ostlunds
trial. However, we find no error in the trial judges refusal to
give the proposed jury instruction regarding the photographs.
Ostlands motion to bifurcate his felony DWI
trial
A defendant commits felony DWI when he drives while
intoxicated and has two or more prior convictions for DWI or
refusal to submit to a chemical test within the past five years.3
The state charged Ostlund with felony DWI for driving while
intoxicated while having two prior DWI convictions within the
past five years. Prior to trial, Ostlund argued that presenting
evidence of his prior convictions to the jury would prejudice the
jury in reaching a decision about whether he had committed his
current DWI offense. He argued that the court should have the
jury only determine whether he had committed the present offense
of driving while intoxicated. He agreed to stipulate to the two
prior convictions if the jury convicted him of driving while
intoxicated. Superior Court Judge pro tem Jane F. Kauvar denied
Ostlunds request. As a result of Judge Kauvars ruling, the
parties stipulated to the two prior DWI convictions and Judge
Kauvar advised the jury of Ostlunds prior convictions. Following
the presentation of evidence, the jury convicted Ostlund of
felony driving while intoxicated.
In State v. McLaughlin,4 this court discussed the
prejudice that could accrue to a defendant from introducing his
prior convictions in a case where the prior convictions are an
element of the offense:
Both in Alaska and elsewhere, courts
have recognized that evidence concerning the
number and nature of a defendants prior
convictions can pose a serious risk of
prejudice when introduced in a case in which
a prior conviction is an element of the
offense charged. For this reason, appellate
courts have generally agreed that the trial
court has broad discretion to limit the
amount of evidence allowed on the issue and
to regulate the form in which it is
presented, particularly when the defendant
does not dispute the prior convictions
existence.5
McLaughlin was charged with the offense of felon in possession
(possession of a concealable firearm by a previously convicted
felon).6 He sought to keep the state from presenting evidence of
his prior conviction to the jury, fearing that the jury might be
prejudiced against him because he had a prior felony conviction.7
McLaughlin offered to stipulate to his prior conviction and have
the court withdraw the prior conviction element from the jury.
The trial judge agreed with McLaughlin and ruled that the jury
would decide only the issue of whether McLaughlin knowingly
possessed a concealable firearm McLaughlins criminal history
would be inadmissible unless it somehow became relevant to other
issues arising during the course of the trial.8
The state filed a petition for review to this court.
The state argued that McLaughlins prior felony conviction was an
element of McLaughlins offense and the trial court had no
authority to prevent the state from presenting evidence of this
element to the jury. We accepted the states petition for review,
and a majority of this court reversed the trial courts decision.9
The court stated that the issue was close.10 The
court reasoned that, if the issue was strictly an evidentiary
matter, a strong case could be made to exclude McLaughlins prior
conviction.
In most cases, however, once the defendant
concedes the prior conviction element,
evidence of prior convictions would have no
evidentiary relevance except to establish the
defendants general propensity to commit
crimes an impermissible, and therefore
illegitimate, purpose under Alaska Rule of
Evidence 404(b)(1).11
But the court concluded that other policy arguments supported the
governments introduction of evidence to prove McLaughlin had
prior felony convictions.12 The court reasoned that if the jury
was only allowed to act as a fact-finder to determine whether
McLaughlin had possessed a firearm, the jury might be left with
the inaccurate impression that McLaughlin was being prosecuted
for conduct that was not unlawful.13 Because possession of a
concealable firearm is generally legal, the governments
prosecution of McLaughlin only made sense because he was a
convicted felon. The court concluded that it was necessary for
the jury to understand why it was convicting or acquitting the
defendant for the jury to properly fulfill its role in the
criminal justice system.14
The court specifically limited its decision to cases
where the defendants conduct was conduct that was ordinarily
lawful but became unlawful because the defendant had a prior
felony conviction:
We further note that our decision addresses
only the specific circumstances of this case,
in which the charged offense consists of
conduct that is ordinarily lawful, which is
rendered unlawful only because of the
defendants prior conviction of a felony. By
contrast, other types of crimes that include
the existence of a prior felony conviction as
an element deal with conduct that is already
independently unlawful; in such cases, the
prior-conviction element serves only to
enhance the seriousness of the offense.
. . .
In this latter type of case, failing to
inform the jury of the prior-conviction
element arguably entails few of the problems
presented in the former type of case[.]15
In Ross v. State,16 we addressed the kind of offense we
had reserved judgment on in McLaughlin; an offense where the
defendants conduct, driving while intoxicated, was independently
unlawful and where the defendants prior convictions served only
to enhance the seriousness of the offense.17
Ross contended that his prior DWI convictions were
strictly a matter for the court to consider at sentencing rather
than an element of felony DWI.18 He contended that because his
prior convictions were not an element of the offense, it was
improper for the trial court to allow the jury to hear evidence
of his prior DWI convictions. He did not otherwise suggest to
the trial court any specific procedures to protect himself from
any unfair prejudice caused by the jury considering his prior
convictions. We held that the prior convictions are an element
of felony DWI.19 We declined to find that the trial judge
committed plain error by allowing the jury to consider both Rosss
prior convictions and his DWI offense simultaneously. We
recognized the prejudice that might result from having the court
inform the jury that the defendant had committed the identical
offense on prior occasions, and we recommended to judges that
they bifurcate felony DWI trials:
Another way of dealing with this problem
one that we recommend to judges in the future
is to bifurcate the trial. In a bifurcated
trial, the jury would first decide whether
the defendant was guilty of driving while
intoxicated on the date specified in the
indictment; if the jury found the defendant
guilty, the same jury would then decide the
issue of the defendants prior convictions.
This solution would preserve both parties
right to a jury determination of all issues,
while at the same time avoiding the potential
for unfair prejudice that would otherwise be
posed by evidence of the defendants prior
convictions. Moreover, this solution works
equally well regardless of whether the
defendant is willing to stipulate to the
prior convictions or wishes to contest
them.20
We also pointed out that, if the defendant and the state were
willing to waive jury trial on the prior-convictions element of
felony DWI, then this element could be tried to the court.21
We fail to see why Judge Kauvar did not agree to this
procedure. The state never argued that Ostlunds prior offenses
were relevant for any purpose other than to establish that his
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
have 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.
We note that the majority of jurisdictions considering
this issue have created procedures for the trial court to try the
felony DWI without the jury being informed of the prior
convictions during its consideration of the current DWI
offense.22 Those jurisdictions have concluded that the Ross
recommendations (i.e., bifurcation, stipulation, or waiver) are
the proper ways to try felony DWI offenses to protect a defendant
from being unfairly prejudiced by evidence of his earlier DWI
convictions.
[A]bsent the bifurcated process, the jury is
directly confronted with evidence of the
defendants prior criminal activity and the
presumption of innocence is destroyed and . .
. if the presumption of . . . [innocence] is
destroyed by proof of an unrelated offense,
it is [all the] more easily destroyed by
proof of a similar related offense.23
Accordingly, we conclude that Judge Kauvar abused her
discretion by failing to adopt the procedures we recommended in
Ross. We therefore reverse Ostlunds convictions.
Ostlunds request for a jury instruction that
absent photographs should have been presumed
to favor him
Ostlund argues that Judge Kauvar erred in failing to
give an instruction concerning some photographs he contends the
police might have taken at the scene of his alleged DWI offense.
Ostlund argues the court should have instructed the jury that, if
the jury found the police had taken and failed to preserve
photographs from the scene of the alleged DWI offense, the jury
should assume the missing evidence would have been favorable to
the defendant. But the sole evidence that photographs were taken
at the scene was a checked box on the police report stating that
the officers took photographs of the scene. The testimony at
trial was that the troopers had not taken any photographs and
that the checked box on the police report was probably a clerical
error.
After hearing the evidence, Judge Kauvar refused to
give Ostlunds proposed instruction. She concluded that the
police had not taken any photographs. She also concluded that
even if photographs existed, there was no evidence that they
would have been relevant to resolving any contested fact.
We conclude Judge Kauvar did not err in determining
that the evidence indicated the police did not take any
photographs and that, even if photographs had been taken, they
would not have been relevant to determining any contested fact.
In Catlett v. State,24 the Alaska Supreme Court held that even
though the police lost or destroyed photographs of the crime
scene, the defendant was not prejudiced when the record showed
that the photographs would have been cumulative of other
available evidence.25 In Lee v. State,26 this court held that
even if the police failed to preserve two traffic signs that were
allegedly hit and broken off by the defendants car, the defendant
failed to show prejudice in light of the fact the trial judge
found that, under the circumstances, the signs would not have
been exculpatory.27 We conclude that Judge Kauvar did not abuse
her discretion in refusing to give Ostlunds proposed instruction.
Conclusion
Ostlunds request for bifurcation should have been
granted. For this reason, his convictions are REVERSED.
However, assuming Ostlund is retried, we uphold Judge Kauvars
decision to reject Ostlunds proposed instruction regarding the
photographs.
MANNHEIMER, Judge, concurring.
I agree that Ostlunds trial should have been
bifurcated, but I am writing separately to more fully explain our
stand on this issue.
Judge Coats begins his substantive discussion of the
bifurcation issue with a quotation from State v. McLaughlin.1 In
this passage from McLaughlin, this court acknowledged that a
trial judge has broad discretion when formulating the rules that
will govern the admission of evidence of a defendants prior
convictions.2 But a dozen paragraphs later, Judge Coats
concludes that Ostlund is entitled to a new trial because his
trial judge did not follow a procedure that we recommended but
did not mandate in Ross v. State, 950 P.2d 587, 592 (Alaska App.
1997). If trial judges have broad discretion in this area, why
are we substituting our judgement for the trial judges? Why do
we conclude that Ostlunds judge abused her discretion when she
declined to bifurcate the trial?
As we indicated in McLaughlin, the answer lies in the
balancing of two competing principles. One is the laws
traditional ban on propensity evidence the use of a defendants
other crimes to prove the defendants character. The other is the
laws insistence that jurors be apprised of all the relevant
facets of the episode and the conduct that they are being asked
to judge.
Our decision in State v. McLaughlin
When a jury hears evidence that a defendant
has previously committed the same crime currently
charged against him, there is a danger that the jurors
will view the defendants past crimes as evidence that
the defendant is a person who characteristically
engages in this type of criminal behavior and that the
jurors will presume the defendants guilt from the fact
that the defendant has done it before. This is why
Alaska Evidence Rule 404(b)(1) bars evidence of a
defendants other wrongdoings when this evidence has no
relevance other than to prove the defendants
characteristic tendency to engage in crime, thus
circumstantially tending to show that the defendant
committed the crime being litigated.3
When a defendant is charged with an offense
that requires proof of prior convictions, one might
reasonably contend that the situation is different
because, in these circumstances, the defendants prior
crimes have a relevance outside the normal ban on
character evidence. But the question presented is also
different: not whether evidence of the defendants past
crimes is to be excluded completely, but rather whether
this evidence should be presented in a separate portion
of the trial.
In McLaughlin, we acknowledged that even
though Evidence Rule 404(b)(1) technically does not
apply to this situation, the policy of Rule 404(b)(1)
strongly suggests that the issue of the defendants
prior convictions should be segregated from the other
issues in the case, at least when the defendant is
willing to concede the prior convictions:
From the narrow standpoint of
evidentiary relevance[,] a strong case can be
made that the evidence of [a defendants]
prior convictions should ... be excluded.
The specific circumstances of some
felon-in-possession cases might give the
state legitimate reasons to introduce
evidence of [the defendants] prior
convictions even though the defendant is
willing to concede the prior-conviction
element. In most cases, however, once the
defendant concedes the prior-conviction
element, evidence of prior convictions would
have no evidentiary relevance except to
establish the defendants general propensity
to commit crimes an impermissible, and
therefore illegitimate, purpose under Alaska
Rule of Evidence 404(b)(1).
Id. at 1273.
But despite this potential for unfair prejudice, we
rejected bifurcation in McLaughlin. The defendant in
McLaughlin was charged with the crime of being a felon
in possession i.e., possessing a concealable firearm
after having been convicted of a felony.4 We concluded
that when a defendant stands trial for this charge, the
policy of Rule 404(b)(1) is outweighed by the competing
policy of having the jury fully informed concerning the
crime they are asked to judge.
As we pointed out in McLaughlin, [t]he jurys historical
role in our criminal justice system is more than that of fact
finder: the jury has always served as the vehicle of community
conscience in the courtroom.5 Because of this, evidence of the
defendants other crimes should be admitted (despite its potential
for unfair prejudice) when this evidence is needed for the jurys
complete understanding of the defendants alleged present
wrongdoing. Essential to the jurys ability to fulfill its
traditional role is its full understanding of the cause at issue
the wrongdoing for which the accused has been held to answer.6
McLaughlin explains this principle at some length:
Without full knowledge of the nature of
the crime, the jury cannot speak for the
people or exert their authority. If an
element of the crime is conceded and stripped
away from the jurys consideration, the jurors
become no more than factfinders. The jury
must know why it is convicting or acquitting
the defendant, because that is simply how our
judicial system is designed to work.
The issue is one transcending a jurys
ability to determine guilt or innocence in
any individual case. It implicates the
publics trust in our system of criminal
justice. If those in the inner sanctum of
the criminal justice system the judge, the
prosecutor, and defense counsel cloister to
themselves the true nature of a criminal
prosecution, jurors will inevitably sense
manipulation: that they are participants in
a game of justice whose rules are beyond
their trust. The systems distrust of jurors
will eventually mirror back upon the court in
the form of public suspicion. Citizens
called upon to serve as jurors will bring
with them, not a healthy skepticism toward
the prosecutors power, but a subversive
distrust of the legal process itself.
McLaughlin, 860 P.2d at 1277.7
Normally, possession of a handgun
is not a crime. The defendants prior felony
is the circumstance that makes possession of
the handgun illegal. We therefore concluded
in McLaughlin that when a defendant is
charged with violating the felon-in-
possession statute, the jury must be told of
the defendants prior felony conviction,
regardless of whether this element is
actually disputed for without knowing the
true nature of the charges, the jury is
deprived of context for its consideration of
the issues actually in dispute.8
Evidence of a defendants past wrongdoing when it is
relevant to establish the nature or context of the
defendants present conduct
McLaughlin can be viewed as one of a series
of Alaska cases recognizing the principle that
evidence of a defendants past wrongdoing may be
needed in order for the jury to properly
understand the nature or context of the defendants
present conduct. In such circumstances, the
evidence of past wrongdoing is admissible despite
the restriction codified in Evidence Rule
404(b)(1).
For instance, in Dulier v. State, 511 P.2d
1058 (Alaska 1973), the defendant was charged
with complicity in a murder that was physically
perpetrated by two of his housemates. The States
theory was that Dulier, through a long pattern of
physical and mental abuse, established
psychological control over the other people living
in the house to the point that two of them were
willing to commit homicide if Dulier ordered it.9
The supreme court concluded that the State was
properly allowed to introduce evidence of Duliers
past acts of coercion and abuse to establish his
relationship to the other people in the house
and, thus, his complicity in the murder:
[W]e hold that the probative value of the
evidence of the [defendants] previous
uncharged offenses outweighed any possible
prejudicial impact. ... The evidence tended
to show Duliers control and domination of the
other occupants of the apartment. It proved
his complicity in the unlawful killing.
Because the evidence completed the picture
and set the stage for the offense being
tried, it was admissible.
Id. at 1061.
Similarly, in McKee v. State, 488
P.2d 1039 (Alaska 1971), the supreme court
upheld the admission of evidence that the
defendant had previously assaulted and raped
one of the States witnesses:
It is true that such evidence normally
would be excluded because it would not tend
to establish a proposition material to
appellants guilt. However, as we held in
Kugzruk v. State, 436 P.2d 962, 967 (Alaska
1968), evidence is admissible when it tends
to complete the picture or set the stage for
the crime for which the defendant is being
tried.
An eye witness to an event should be
permitted to testify in a natural manner
about what he observed. This ordinarily
includes such background facts as where the
witness was, how he happened to be there, and
what interrelationship he may have had with
other persons present at the event about
which the witness testifies. Otherwise the
testimony of the witness may seem distorted,
improbable, or incredible to some degree. To
strip away such background evidence may well
result in an artificial or false picture of
what occurred.
Id. at 1041-42.
See also Braham v. State, 571 P.2d
631 (Alaska 1977), an attempted murder
prosecution in which the States theory was
that Braham hired another man, Jeffrey
Koelzer, to murder one of Brahams enemies.
The supreme court ruled that the trial judge
properly allowed the State to introduce
evidence suggesting that Braham had been
involved in previous attempts on the victims
life:
An inference that the jury might well
have drawn from this [evidence was] that
Braham had something to do with the two prior
attempts on Petersons life. To this extent,
the evidence had a prejudicial effect. But
this must be weighed against its probative
value. The purpose and effect of Koelzers
testimony was not to prove that Braham was
guilty of two prior attempts on Petersons
life. Rather, it was introduced for the
purpose of showing that, since such incidents
figured heavily in conversations between
Braham and Koelzer, and Braham had knowledge
of the attempts and gave them his moral
support, Koelzers testimony that Braham
wanted Peterson killed would be credible. At
the trial, this issue was hotly disputed by
Braham.
The evidence in question would tend to
show that it was not unbelievable, as Braham
contended, that Braham had hired Koelzer to
kill Peterson. The record demonstrates that
the evidence of prior attempts was so
integrated into the story of this crime, that
to exclude it would have made the factual
setting of this crime incomprehensible to the
fact finder. Thus the need to admit this
evidence was great, and it had the
permissible effect of completing the picture
or setting the stage of the crime for which
Braham was being tried the attempted murder
of Peterson. There was no error in admitting
such evidence.
Id. at 640-41.
Although our decision in McLaughlin
can be viewed as standing on the same
principle as the decisions in Dulier, McKee,
and Braham, our holding in McLaughlin is
different in one key respect. In McLaughlin,
we announced a rule that governs all
prosecutions for felon in possession of a
concealable weapon. We held that, in every
such case, the jurors need to be apprised of
the defendants prior felony conviction
because they need to know why they are being
asked to hold the defendant criminally liable
for possessing a handgun. Dulier, McKee, and
Braham, on the other hand, do not stand for
the proposition that evidence of a defendants
prior wrongdoing is automatically admissible
whenever it is relevant to establish the
nature or context of the defendants present
conduct. Normally, when the government seeks
to introduce this type of evidence, a trial
judge must still follow the directive of
Evidence Rule 403, balancing the probative
force of this evidence against the danger
that it will unfairly prejudice the jurys
deliberations. McLaughlin dictates the
result of this Rule 403 balancing in a
specific recurring situation.
Evidence of prior DWI convictions in a prosecution for
felony DWI
McLaughlin dealt with a prosecution for felon
in possession of a concealable firearm. In such
cases, the defendants underlying conduct is
unlawful only because the defendant has a prior
felony conviction. In McLaughlin, we ruled that
the jurors need to know about the prior conviction
in order to properly discharge their duties.
But Ostlund was prosecuted for felony driving
while intoxicated. In such a prosecution, the
defendants alleged underlying conduct driving while
intoxicated is a crime in itself.10 The offense is
elevated to a felony if the defendant has two or more
prior convictions for DWI or breath-test refusal within
the preceding five years11, but these prior convictions
do not alter the legality (or, more precisely, the
illegality) of the defendants underlying conduct. Does
it therefore follow that the jurors need not be told
about the defendants prior convictions until after they
have decided whether the defendant is guilty of driving
while intoxicated on the present occasion? The answer
is: it depends.
We addressed this topic in Tallent v. State,
951 P.2d 857 (Alaska App. 1997). Tallent involved a
prosecution for felony theft under AS 11.46.130(a)(6).
This statute, like the felony DWI statute, raises
misdemeanor theft to a felony if the offender has two
or more prior misdemeanor theft convictions within the
preceding five years. The question in Tallent was
whether the trial judge should exclude all evidence of
the defendants prior misdemeanor thefts until after the
jury has decided whether the defendant is guilty of
theft on the present occasion.
Tallent argued that a trial judge should have
the power to exclude all evidence of a defendants prior
crimes whenever the existence of the prior crimes only
enhances the seriousness of the current charge, and the
defendants conduct on the current occasion is
independently unlawful.12 But we noted that such a
rule would potentially create the same legal problem as
the bifurcated trial procedure that we disapproved in
McLaughlin. That is, it would allow a trial judge to
artificially segregate certain aspects of the
governments case, thereby keeping the jury ignorant of
the true nature and context of the defendants actions
and thus reducing the jurors to mere factfinders rather
than allowing them to serve[] as the vehicle of the
community conscience.13
Criminal offenses often require proof of
facts that can potentially sway the emotions
of jurors or lead them to return a verdict
based on improper considerations. For
instance, under AS 11.41.500(a)(3), unarmed
robbery becomes robbery in the first-degree
if the robber causes serious physical injury
to any person. Depending upon the severity
of the injury (if, for example, the victim
was maimed or permanently disfigured), such
evidence might conceivably lead the jury to
decide the case based on outrage at the
injury suffered by the victim, rather than
demanding that the government meet its full
burden of proof. Tallents argument implies
that a defendant who is prosecuted for
first-degree robbery under 500(a)(3) should
be able to stipulate to the victims injury
and then demand that the trial judge (1) bar
the government from introducing any evidence
of the injury and (2) withhold the issue of
serious physical injury from the jury. Since
robbery is a crime whether or not the robber
inflicts injury, the defendants infliction of
serious physical injury only enhances the
seriousness of ... conduct [that is]
independently unlawful. Under Tallents
reasoning, the trial judge could confine the
jury to deciding whether the defendant
committed second-degree robbery. However, we
are aware of no legal authority to support
this outcome.
Tallent, 951 P.2d at 863.
One could argue that a prosecution for felony theft (as
in Tallent) or a prosecution for felony DWI (as in Ostlunds case)
does not raise these same problems. For example, in prosecutions
for felony DWI, often the defendants prior convictions for DWI or
breath-test refusal are relevant only to prove the prior
convictions element of the offense and are not otherwise relevant
to explaining the nature or context of the defendants current
misconduct. In such instances, if the trial judge decides to
keep the jury insulated from evidence of these prior crimes, the
jurors can still make an informed decision regarding the
currently charged DWI. Indeed, in such instances, evidence of
the defendants prior crimes would only add an element of unfair
prejudice to the evidentiary mix the inference from character
that is forbidden by Evidence Rule 404(b)(1).
But not all felony DWI prosecutions fit this mold.
There will be times when a defendants prior commission of DWI or
breath-test refusal will be relevant for some valid purpose other
than merely to establish the prior convictions element of the
offense. Both this court and the Alaska Supreme Court have
encountered analogous cases. In Shane v. Rhines, 672 P.2d 895
(Alaska 1983), the supreme court suggested that a defendants past
history of driving while intoxicated might be relevant to
establish the defendants mens rea to establish that the
defendants current act of drinking and driving amounted to
reckless indifference to the [safety] of [others].14 This court
acknowledged the same potential theory of relevance in Abruska v.
State, 705 P.2d 1261 (Alaska App. 1985). We said:
[Abruska] contends that ... the
legislature intended to permit evidence of a
persons past experience when intoxicated to
the extent that it would be relevant to show
his appreciation of the risks he presented to
others when he was intoxicated. See, e.g.,
Shane v. Rhines, 672 P.2d 895, 899 n.3
(Alaska 1983). We generally agree ... that
the statutory limitations on the use of
evidence of intoxication to show diminished
capacity ... would not prevent evidence by
either the prosecution or the defense that
the persons past experiences while drunk
would or would not have alerted him to the
risks that he presented to others when
intoxicated.
Id. at 1263-64.
We applied this theory of relevance in Jansen v. State,
764 P.2d 308 (Alaska App. 1988). The defendant in Jansen was
charged with manslaughter and assault for killing one person and
injuring another when he drove a motor vehicle while intoxicated.
At trial, Jansen disputed the mens rea of these two crimes (the
culpable mental state of recklessness). To rebut Jansens
assertion that he had not acted recklessly, the trial judge
allowed the State to introduce evidence that Jansen had twice
previously been convicted of DWI thus tending to show that
Jansen was subjectively aware of the risk he took when he drank
alcoholic beverages knowing that he would be driving.15
This court concluded that the trial judges ruling was
a proper exercise of discretion under Evidence Rule 403.16
Thus, a felony DWI defendants prior offenses will
sometimes be independently relevant (i.e., relevant for a purpose
other than to prove the prior convictions element of the
offense), and sometimes not. This fact, coupled with the
balancing test mandated by Evidence Rule 403, means that no one
rule will fit all cases. Thus, felony DWI prosecutions are not
amenable to a uniform solution like the one we adopted in
McLaughlin to govern felon in possession cases.
If evidence of the defendants prior crimes is
independently relevant, and if the trial judge performs the
balancing mandated by Rule 403 and concludes that evidence of
these crimes should be admitted, then bifurcation is no longer an
issue. The judge will have concluded that the jury needs to hear
evidence of the prior crimes in order to adequately understand
the nature and context of the defendants current conduct, so a
unified trial is the answer. As we noted in Ross v. State, the
question of a bifurcated trial arises only in cases ... where the
[defendants] prior convictions have no relevance other than to
prove the prior convictions element of [felony DWI].17
But in Ostlunds case, the State concedes that Ostlunds
prior offenses were not relevant for any purpose other than to
establish the prior convictions element of the felony offense.
In these circumstances, what is a trial judge allowed or obliged
to do?
Our decision in Ross v. State
In Ross v. State, 950 P.2d 587 (Alaska App.
1997), we were asked to decide whether a felony DWI
trial should be bifurcated, but the bifurcation issue
was posed in a slightly different legal context. The
defendant in Ross contended that a defendants prior
convictions were not an element of the offense but,
rather, a factor that enhanced the penalty for the
crime.18 Under this reasoning, the jury would never
hear about the prior convictions because sentencing
decisions are made by the judge. Ross thus argued that
evidence of his prior convictions should be presented
to the judge (if the jury convicted him of the current
DWI).
We rejected this construction of the felony
DWI statute. Instead, we held that a defendants prior
convictions are an element of the offense, an element
that must be alleged in the indictment and proved
beyond a reasonable doubt at trial.19
At the same time, we recognized that when a
defendants prior offenses are not relevant for any
purpose other than to prove the prior convictions
element of the offense, the jurys verdict could be
unfairly influenced by this evidence. In situations
where evidence of the prior offenses is not needed for
the jurys proper understanding of the defendants
current misconduct, evidence of those prior offenses
would serve only to raise the inference prohibited by
Evidence Rule 404(b)(1) an inference of the defendants
bad character or propensity to drive while intoxicated.
But because the defendants prior convictions
constitute an element of felony DWI, the trial judge
can not exclude all evidence of the prior convictions
under Rule 404(b)(1). The jury must ultimately be made
aware of the convictions so that they can reach a
decision on each element of the offense. To resolve
this difficulty, we recommended a bifurcated trial:
In a bifurcated trial, the jury would first
decide whether the defendant was guilty of
driving while intoxicated on the date
specified in the indictment; if the jury
found the defendant guilty, the same jury
would then decide the issue of the defendants
prior convictions. This solution would
preserve both parties right to a jury
determination of all issues, while at the
same time avoiding the potential for unfair
prejudice that would otherwise be posed by
evidence of the defendants prior convictions.
Moreover, this solution works equally well
regardless of whether the defendant is
willing to stipulate to the prior convictions
or wishes to contest them.
Ross, 950 P.2d at 592.
Ostlunds case
The trial judge in Ostlunds case was aware of
our decision in Ross, but she noted (correctly) that
our recommendation for a bifurcated trial in these
situations was just that a recommendation. The
precise issue raised in Ross was whether a defendants
prior convictions are an element of felony DWI. Our
precise holding was that the prior convictions are an
element of felony DWI, and thus the jury (not the trial
judge) must decide this element. Because the issue of
a bifurcated trial was not directly litigated in Ross,
we phrased our comments on this subject as a
recommendation rather than a mandate. And, because our
recommendation concerning a bifurcated trial was only
dictum, Ostlunds trial judge rightly concluded that
this recommendation did not bind her.
But Ostlunds case presents the bifurcation
issue directly. In the superior court, Ostlund
expressly asked his trial judge to bifurcate the trial
(in the manner we recommended in Ross), and in this
appeal he directly challenges the trial judges refusal
to do so. We therefore must formulate a rule to govern
these cases.
For the reasons explained above, I reach the
following conclusions:
When a defendant is tried for felony DWI, and
when the defendants previous offenses have no relevance
other than to prove the prior convictions element of
the offense, a trial judge should bifurcate the trial
so that the jurys deliberations on the current DWI are
not unfairly prejudiced by evidence of the defendants
prior similar crimes evidence that, in other
circumstances, would be barred by Evidence Rule
404(b)(1).
If the defendants previous offenses are
relevant for some other purpose, and if the trial judge
concludes (under Evidence Rule 403) that the probative
value of this evidence is not outweighed by its
potential for unfair prejudice, then the trial should
not be bifurcated for, in these circumstances, the
jury should be allowed to consider all of the relevant
evidence as a whole.
If the answer is in doubt if it is unclear,
when the trial begins, whether evidence of the
defendants previous crimes will be admissible for a
purpose other than to prove the prior convictions
element then a judge should err on the side of caution
and initially bifurcate the trial. If the judge later
decides that the defendants offenses are admissible
for another purpose, it should be relatively easy to
convert the bifurcated trial to a unified trial much
easier than trying to convert a unified trial into a
bifurcated one.
In Ostlunds case, his prior offenses were
relevant for only one purpose to establish the prior
convictions element of the offense. Accordingly, the
trial judge should have bifurcated Ostlunds trial when
he asked for this procedure. I therefore join the
decision to reverse Ostlunds convictions.
_______________________________
1 AS 28.35.030(a), (n).
2 AS 28.15.291(a).
3 AS 28.35.030(n),(o)(4). Alaska Statute 28.35.030(n)
states: A person is guilty of a class C felony if the person is
convicted of driving while intoxicated and has been previously
convicted two or more times within the five years preceding the
date of the present offense.
4 860 P.2d 1270 (Alaska App. 1993).
5 Id. at 1272 (footnote omitted).
6 Id. at 1271.
7 Id. at 1272.
8 Id.
9 Id. at 1278.
10 Id. at 1273.
11 Id.
12 Id. at 1273-74.
13 Id. at 1274.
14 Id. at 1276-77.
15 Id. at 1278 n.15 (citations omitted).
16 950 P.2d 587 (Alaska App. 1997).
17 Id. at 591.
18 Id. at 589-90.
19 Id. at 590.
20 Id. at 591-92.
21 Id. at 592.
22 Peters v. State, 692 S.W.2d 243, 245 (Ark. 1985)
(requiring a bifurcated trial); Barker v. State, 916 S.W.2d 775,
776 (Ark. App. 1996); State v. Rodriguez, 575 So.2d 1262, 1266
(Fla. 1991), modified in part by State v. Harbaugh, 754 So.2d 691
(Fla. 2000) (requiring a bifurcated trial); State v. Wiggins, 536
P.2d 1116, 1118 (Idaho 1975) (approving use of a bifurcated
trial); State v. Berkelman, 355 N.W.2d 394, 396-97 (Minn. 1984)
(requiring trial court to accept defendants offer to stipulate to
prior DWI offenses if the court finds unfair prejudice under Rule
403); State v. Saul, 434 N.W.2d 572, 574-75 (N.D. 1989) (if
defendant offers to stipulate to prior convictions, defendant is
only tried on underlying DWI and prior convictions are not
disclosed to jury); State v. Winters, 578 P.2d 439, 441 (Or. App.
1978) (statute requires court to accept defendants timely offer
to stipulate regardless of states consent and prohibits
disclosure of prior convictions to jury); State v. White, 525
S.E.2d 261, 262-63 (S.C. App. 1999); State v. Anderson, 458
S.E.2d 56, 59 n.2 (S.C. App. 1995) (statute prevents trial court
from disclosing stipulation of prior conviction to jury); State
v. Florez, 777 P.2d 452, 459 (Utah 1989) (in first-degree murder
trial with prior conviction as element of the offense, bifurcated
trial required); State v. Nichols, 541 S.E.2d 310, 322-23 (W.Va.
1999) (trial court required to accept defendants offer to
stipulate regardless of states consent, and prior convictions
cannot be disclosed to jury; trial court should bifurcate trial
if defendants challenge of prior convictions is meritorious);
State v. Alexander, 571 N.W.2d 662, 664 & 672 (Wis. 1997) (if
defendant stipulates to prior convictions, trial court cannot
disclose them to jury). But see State v. Geschwind, 666 P.2d
460, 462 (Ariz. 1983); State v. Superior Court, 863 P.2d 906
(Ariz. App. 1993); State ex rel. Romley v. Superior Court, 985
P.2d 494, 496-97 (Ariz. 1999) (requiring a unitary trial on all
elements, including element of prior DWI convictions); Weaver v.
State, 713 So.2d 860, 865 (Miss. 1997); Nicholson v. State, 761
So.2d 924, 928-29 (Miss. App. 2000) (same); State v. Lugar, 734
So.2d 14, 15 (La. App. 1999) (same); Tamez v. State, 111 S.W.3d
198, 202 (Tex. Crim. App. 2000) (if defendant stipulates to prior
convictions state may read existence of prior convictions as part
of indictment at beginning of trial but may not present evidence
of prior convictions during trial).
23 State v. Harbaugh, 754 So.2d 691, 693 (Fla. 2000)
(original citation and quotation marks omitted); see also State
v. Nichols, 541 S.E.2d 310, 322 n.20 & 324 (W.Va. 1999) (quoting
our decision in Ross with approval).
24 585 P.2d 553 (Alaska 1978).
25 Id. at 557-58.
26 760 P.2d 1039 (Alaska App. 1988).
27 Id. at 1044-45.
1 860 P.2d 1270 (Alaska App. 1993).
2 See id. at 1272.
3 See Smithart v. State, 946 P.2d 1264, 1270-71 (Alaska App.
1997), reversed on other grounds, 988 P.2d 583 (Alaska
1999).
4 AS 11.61.200(a)(1).
5 Id. at 1276.
6 Id. at 1277.
7 The first paragraph of this passage is quoted from United
States v. Gilliam, 994 F.2d 97, 101 (2nd Cir. 1993).
8 McLaughlin, 860 P.2d at 1277.
9 See id. at 1059-1060.
10 See AS 28.35.030(a).
11 See AS 28.35.030(n).
12 Id. at 863.
13 McLaughlin, 860 P.2d at 1276.
14 Id. at 899 n.3.
15 See id. at 310-11.
16 See id. at 312.
17 950 P.2d 587, 591 (Alaska App. 1997).
18 See id. at 589-590.
19 Id. at 590-91.
