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Winfrey v. State (10/16/2003) ap-1903
Winfrey v. State (10/16/2003) ap-1903
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
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CAMERON L. WINFREY, )
) Court of Appeals No.
A-8332
Appellant, ) Trial
Court No. 4FA-01-2124 CR
)
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1903 - October 16, 2003]
)
Appeal from the District Court, Fourth Judi
cial District, Fairbanks, Mark I. Wood and
Jane F. Kauvar, Judges.
Appearances: Geoffry B. Wildridge, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for
Appellant. Kim S. Stone, Assistant District
Attorney, Teresa Foster, District Attorney,
Fairbanks, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Cameron Winfrey was convicted of driving while
intoxicated.1 He appeals, claiming that the district court erred
when it denied his motion to suppress the results of the breath
test after finding that state troopers had interfered with his
right to make a phone call under AS 12.25.150(b). He also claims
that the district court erred when it excluded on relevancy
grounds evidence that the troopers had decided to stop
videotaping breath testing procedures because the videotapes made
prosecuting drunk drivers harder. On the first issue, we agree
with the district court that suppression was not warranted
because, as the district court found, neither of Winfreys
requests to make a phone call was related to the breath test. As
for the second issue, we believe that the evidence Winfrey sought
to admit was relevant; however, based on the inadequacy of
Winfreys offer of proof, and considering the strength of the
States case, we find that any possible error was harmless.
Facts and proceedings
On July 14, 2001, Alaska State Trooper Jeff Jones was
driving on Chena Pump Road in Fairbanks near Cheyenne Court when
an oncoming vehicle swerved in front of him, crossed completely
over his lane of travel, and then left the road, coming to rest
in the ditch. Jones activated his vehicles emergency lights and
turned around. As he did so, the driver of the vehicle, later
identified as Winfrey, got out of the vehicle and ran into some
nearby woods. Other troopers arrived to help Jones track Winfrey
down.
At least twice, troopers spotted Winfrey, who continued
to run from them. One of the troopers chasing Winfrey saw that
as he ran, he was having a hard time ... keeping himself
balanced. Winfrey, because of his weaving, was hitting trees. I
mean, he was actually literally bouncing off trees.
Approximately forty-five minutes after he had fled from his
vehicle, Winfrey was apprehended and placed in Joness vehicle.
When they apprehended him, the troopers saw that Winfrey could
hardly stand, he swayed, staggered would be more correct. He had
bloodshot watery eyes, [and] ... an odor of alcohol ... [that]
was fairly strong. He also had slurred speech, and he failed the
only two field sobriety tests the troopers gave him the
horizontal gaze nystagmus test, and a test that required him to
count backwards. He was arrested for driving while intoxicated
and transported to the Alaska State Trooper post in Fairbanks.
When he was tested on a DataMaster, his breath alcohol content
was .221 percent.
Before trial, Winfrey moved to suppress the results of
the DataMaster test. He claimed that his right under AS
12.25.150(b) to make a telephone call had been violated. An
evidentiary hearing was held, during which Jones, Winfrey, and
Winfreys wife testified.
Jones testified that Winfrey did not ask to use the
phone. Winfrey, however, testified that he had asked Jones while
being transported to the trooper post if he could use Joness cell
phone to call his wife to arrange bail, and that Jones responded
that he could use a phone later when they got to jail. Winfrey
also said that at the post, while Jones was attending to other
business, he asked an unidentified female trooper if he could use
the phone; although this trooper spoke with Winfrey, Winfrey said
she did not respond to his request to use a phone. Winfreys wife
testified that when she picked Winfrey up at the jail, he
complained that he had tried to use a phone earlier while in
custody to arrange for bail.
After the hearing, District Court Judge Mark I. Wood
denied Winfreys motion to suppress. Judge Wood found that
Winfrey had twice asked to use the phone, and that he had done so
each time to arrange for bail. Based on these findings, Judge
Wood ruled that the troopers had violated Winfreys right under
AS 12.25.150(b) to call his wife. However, Judge Wood held that
suppression of the breath test result was not warranted because
Winfreys requests to use the phone were not related to the breath
test.
Later, District Court Judge Jane F. Kauvar presided
over Winfreys jury trial. During this trial, Winfrey asked to
call a trooper he claimed would testify that the troopers had
made a deliberate decision to stop videotaping detainees during
breath tests because people look too good on the videotape that
is, because detainees appeared too sober. Judge Kauvar excluded
this evidence, ruling that it was not relevant to Winfreys case.
The jury found Winfrey guilty of driving while intoxicated. He
now appeals.
Did the violations of AS 12.25.150(b) require
suppression of the DataMaster results?
Winfrey claims that Judge Wood erred when he refused to
suppress the DataMaster breath test results after finding that
both troopers had violated his right to contact a relative or
friend under AS 12.25.150(b).2 Judge Wood based his suppression
ruling on the supreme courts decision in Zsupnik v. State.3
In Zsupnik, the supreme court, expanding its holding in
Copelin v. State4 on the right of an arrestee to contact an
attorney, ruled that drivers detained for drunk driving are also
entitled to call a friend or relative before deciding whether to
submit to a breath test.5 The defendant in Zsupnik made four
separate requests to telephone her uncle. All were denied.
Zsupniks fourth request was specific: she wanted to call her
uncle to ask for advice as to what to do.6 The supreme court
ruled that the police had violated Zsupniks right under AS
12.25.150(b) when they denied her request to call her uncle.7
The court said that the right defined in AS 12.25.150(b) is
clear: Subsection (b) is intended to give the prisoner a right
to call both his relatives and a lawyer. The legislature
expressly disapproved the then prevalent practice of allowing a
prisoner only one phone call to only an attorney.8
Having expanded the statutory right it recognized in
Copelin, the court next addressed the appropriate remedy when
police violated this limited statutory right. Noting that
Zsupnik wanted to call her uncle in order to contact an
attorney,9 a majority of the court concluded that [i]t is settled
that the remedy for violations of AS 12.25.150(b) for purposes
related to the defense process is exclusion of tainted
evidence.10 The majority reasoned that exclusion of the breath
test result would deter future intentional police interference
with an arrestees right to make a phone call for defense
purposes.11
The majority, however, added that it need not reach the
issue of whether the refusal of calls by an arrestee for purposes
other than obtaining attorney assistance requires the exclusion
of evidence.12 On the other hand, the two dissenting justices
opposed application of the exclusionary rule to cases where the
arrested person was not attempting to contact an attorney,
reasoning that reliable evidence of crimes should not be excluded
where there has been no serious interference with the defendants
ability to prepare her defense.13
Although Judge Wood found that both troopers had
violated Winfreys right under AS 12.25.150(b), he also found that
Winfrey had told both troopers that he wanted to make the phone
call to arrange for bail.
Applying Zsupnik in Winfreys case, Judge Wood ruled
that even though the state troopers had interfered with Winfreys
right under AS 12.25.150(b), this statutory violation did not
warrant suppression of Winfreys breath test result because
Winfrey did not want to use the phone for a purpose related to
the breath test. Judge Woods decision is based on the
distinction between police interference with a phone call
requested for purposes related to a defense function and police
interference with a phone call requested for other purposes. We
agree with Judge Woods interpretation of Zsupnik.
Although a majority of the supreme court applied the
exclusionary rule in Zsupnik, they did not mandate exclusion of
evidence for all violations of AS 12.25.150(b). Instead, the
majority held that the remedy for violations of AS 12.25.150(b)
for purposes related to the defense process is exclusion of
tainted evidence.14 As explained earlier, the supreme court did
not decide whether the refusal of a call for a non-defense
purpose required suppression of breath test evidence, and the
dissenting justices argued for applying the exclusionary rule
only in cases where the arrested person was obstructed in
contacting an attorney.
Here, Judge Woods decision is consistent with prior
Alaska decisions discussing the application of the exclusionary
rule when statutory rights have been violated.15 For instance,
in Nathan v. Anchorage,16 which involved a violation of the
Americans with Disabilities Act, we recognized the limited
circumstances in which the exclusionary rule is applied when the
police violate a statute rather than the constitution:
[W]hen the government has violated a statute
(as opposed to the Constitution), suppression
of evidence has generally been imposed only
when the governments violation of the statute
demonstrably prejudiced a defendants ability
to exercise related constitutional rights or
to prepare or present a defense.[17]
Winfrey did not at argue at the evidentiary hearing (nor does he
on appeal) that the governments violations of AS 12.25.150(b)
demonstrably prejudiced his ability to exercise related
constitutional rights or to prepare or present a defense. Hence,
Judge Wood correctly concluded that there was no reason to
suppress the breath test results, given that Winfrey wanted to
use the phone only to arrange for bail and not for any
discernible defense purpose. Stated another way, there was no
connection between the right violated and the evidence Winfrey
wanted excluded, hence there was no tainted evidence.18
Although Winfrey argues that he never told the state
troopers why he wanted to use the telephone, Judge Wood rejected
this contention. He found that Winfrey told both troopers that
the reason he wanted to use the telephone was to arrange for
bail. While we acknowledge that at the evidentiary hearing
Winfrey did not expressly say what he told the troopers, we
conclude that Judge Woods findings are based on reasonable
inferences drawn from Winfreys and his wifes testimony.19 These
findings are not clearly erroneous.20 Additionally, while
Winfrey challenges Judge Woods finding that Winfrey wanted to
make a phone call to arrange for bail, he conceded in his
argument at the hearing that this was indeed his purpose.
Winfrey now argues that an arrestees ultimate reason
for wanting to make a phone call is unimportant. He asserts that
the supreme court in Zsupnik intended courts to apply the
exclusionary rule regardless of an arrestees underlying reason
for wanting a phone call, to ensure that the police honor the
arrestees request. But as explained above, suppression of
evidence for violations of a statutory right has generally been
imposed only when the governments violation of the statute
demonstrably prejudiced a defendants ability to exercise related
constitutional rights or to prepare or present a defense.
Nothing in Zsupnik indicates that the supreme court intended to
change this general rule. Moreover, Winfrey has advanced no
evidence of a pattern of purposeful violations by police of AS
12.25.150(b).21 Accordingly, we conclude that the exclusionary
rule does not apply to violations of AS 12.25.150(b) that are
unrelated to the breath test or some other defense purpose.
Did the trial court err when it ruled that
evidence that the troopers had decided to no
longer videotape the breath test procedures
was not relevant?
During Winfreys trial, Judge Kauvar excluded on
relevancy grounds evidence that Winfrey claimed would show that
the state troopers had made a policy decision to stop videotaping
suspects during breath test processing because the suspects often
did not look intoxicated, making prosecutions harder. To
introduce this testimony, Winfrey wanted to call a state trooper
who was not involved in his drunk driving arrest or processing.
After the State objected, Winfrey made the following offer of
proof: Basically, what [the trooper] would say is that [the
state troopers] decided that people look too good on the video
and so they decided not to do it anymore.
Winfrey argued that this testimony was relevant to show
two things: first, that the troopers, by not videotaping drunk
driving suspects, were violating their duty to do the best job
they can to preserve evidence; second, that the troopers were
acting in bad faith because they had deliberately decided to
prevent juries from reviewing evidence that contradicted troopers
claims that a suspect was acting intoxicated. But Judge Kauvar
rejected these reasons, pointing out that the troopers had no
duty to videotape drunk driving suspects. She then ruled that a
decision made five years before Winfrey was arrested for drunk
driving was not relevant to his case. Winfrey claims this was
error. On appeal, Winfrey argues that evidence that the
troopers deliberately stopped collecting evidence because it
often contradicted the breath test results or witnesses testimony
about how intoxicated a suspect looked or acted is relevant. We
agree with Winfrey. While we recognize that the due process
clause has never required [police] officers to undertake a
state-of-the-art investigation of all reported crimes,22 or to
track down every conceivable investigative lead and seize every
scintilla of evidence regardless of its apparent importance or
lack of importance at the time,23 we believe that it would be
relevant if the troopers decided to stop collecting a particular
type of evidence in drunk driving cases because the evidence
tended to be favorable to defendants.
In this case, it is not clear from Winfreys offer of
proof that the trooper could have given admissible testimony on
this issue. But even if we assume that the trooper would have
testified in accordance with Winfreys proffer, and that Winfrey
could have shown that the testimony was otherwise admissible, we
conclude that any error in excluding this testimony was harmless.
Although the State has not argued harmless error, the
States case against Winfrey was overwhelming. Trooper Jones saw
Winfrey driving dangerously; he watched as Winfreys oncoming
vehicle swerved in front of him, crossed completely over his lane
of travel, and then landed in the ditch. While Jones was turning
his vehicle around, Winfrey fled, running into nearby woods. As
the troopers pursued Winfrey, they saw that he appeared to be
intoxicated. A trooper chasing Winfrey noted that Winfrey had a
hard time ... keeping himself balanced. Winfrey, because of his
intoxication, was literally bouncing off trees. When Winfrey was
finally caught, approximately forty-five minutes after he had
fled from his vehicle, he could hardly stand, he swayed,
staggered would be more correct. He had bloodshot watery eyes,
[and] ... an odor of alcohol ... [that] was fairly strong.
Winfrey also had slurred speech, and he failed the field sobriety
tests the troopers gave him. When Winfrey was later tested on a
DataMaster, his breath alcohol content was .221 percent. We
additionally note that during the cross-examination of Trooper
Jones, Winfrey was able to introduce evidence that the troopers
had stopped videotaping drunk drivers at least three years before
Winfreys arrest. Thus, he could have argued to the jury that the
troopers had stopped videotaping arrestees during breath tests
because the evidence was unfavorable to the prosecution.
Given all of these facts, we conclude that any
potential error in excluding Winfreys proffered evidence could
not have affected the jurys verdict.
Conclusion
Winfreys conviction is AFFIRMED.
_______________________________
1 Former AS 28.35.030(a) (2001).
2 AS 12.25.150(b) provides in relevant part that
[i]mmediately after an arrest, a prisoner shall have the right to
telephone or otherwise communicate with the prisoners attorney
and any relative or friend, and any attorney at law entitled to
practice in the courts of Alaska shall, at the request of the
prisoner or any relative or friend of the prisoner, have the
right to immediately visit the person arrested.
3 789 P.2d 357 (Alaska 1990).
4 659 P.2d 1206, 1215 (Alaska 1983) (concluding that when
a person is arrested for operating a motor vehicle while
intoxicated and asks to consult a lawyer, AS 12.25.150(b) and
Criminal Rule 5(b) mandate that the arrestee be afforded the
right to do so before being required to decide whether to submit
to a breathalyzer test).
5 Zsupnik, 789 P.2d at 360-61.
6 Id. at 358.
7 Id. at 360-61.
8 Id. at 359 (citation omitted) (emphasis in Zsupnik).
9 Id. at 361 n.4.
10 Id. at 361 (emphasis added).
11 Id.
12 Id. at 361 n.4.
13 Id. at 364 (Matthews, C.J., and Rabinowitz, J.,
dissenting).
14 Id. at 361 (emphasis added).
15 Compare Ward v. State, 758 P.2d 87, 90 (Alaska 1988)
(exclusionary rule applied when the police deprived the defendant
of his statutory right to an independent blood test, thereby
impeding the defendants ability to present a defense), with
Burrece v. State, 976 P.2d 241, 244 (Alaska App. 1999)
(exclusionary rule not applied to suppress evidence obtained
pursuant to a telephonic warrant where the judge did not follow
statutory procedure in issuing the warrant, and where there was
no bad faith); Nathan v. Anchorage, 955 P.2d 528, 533 (Alaska
App. 1998) (exclusionary rule not applied for violation of
Americans with Disabilities Act); Harker v. State, 637 P.2d 716,
719-20 (Alaska App. 1981) (exclusionary rule not applied to
violation of Posse Comitatus Act); State v. Sundberg, 611 P.2d
44, 50-52 (Alaska 1980) (in the absence of a legislative
directive, exclusionary rule not applied where arrests were
accompanied by excessive force on the part of the police); see
also Zsupnik, 789 P.2d at 361; Copelin, 659 P.2d at 1214-15.
16 955 P.2d 528.
17 Id. at 533.
18 See Zsupnik, 789 P.2d at 361; cf. Smith v. State, 948
P.2d 473, 477 (Alaska 1997) (quoting Erickson v. State, 507 P.2d
508, 516 (Alaska 1973)) (Once a causal connection is established
between the proffered evidence and the primary illegality, the
evidence must be excluded unless if falls within [some
exception].).
19 See Stumbaugh v. State, 599 P.2d 166, 172 (Alaska
1979) (when reviewing a denial of a motion to suppress, appellate
courts view the record in the light most favorable to upholding
the trial courts ruling).
20 See Chilton v. State, 611 P.2d 53, 55 (Alaska 1980);
see also Nathan, 955 P.2d at 531 (citation omitted) (A finding is
clearly erroneous only when an appellate court is left with a
definite and firm conviction ... that a mistake has been made,
even though there may be evidence to support the [trial courts]
finding.); Wilburn v. State, 816 P.2d 907, 911 (Alaska App. 1991)
(citation omitted) (We will reverse the trial courts factual
findings only if they are clearly erroneous. Reversal is proper
only where there is no substantial evidence supporting the trial
courts findings.).
21 Cf. Sundberg, 611 P.2d at 52 (In the event a history
of excessive force arrests is shown, demonstrating that existing
deterrents are illusory, we will not hesitate to reexamine the
question of whether an exclusionary deterrent should be fashioned
... .); Nathan, 955 P.2d at 533 (noting, in declining to apply
the exclusionary rule, the absence of evidence of persistent,
purposeful violations of the statute).
22 March v. State, 859 P.2d 714, 716 (Alaska App. 1993).
23 Id. (quoting Nicholson v. State, 570 P.2d 1058, 1064
(Alaska 1977)).
