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Howell v. State (07/01/2005) ap-1991
Howell v. State (07/01/2005) ap-1991
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
MARSHALL R. HOWELL, )
) Court of Appeals No. A-8556/A-8575
Appellant/Cross-Appellee, ) Trial Court No. 3AN-02-4598 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee/Cross-Appellant. ) [No.1991 July 1, 2005]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael L.
Wolverton, and Stephanie E. Joannides,
Judges.
Appearances: David D. Reineke, Assistant
Public Defender, and Barbara K. Brink,
Public Defender, Anchorage, for the
Appellant/Cross-Appellee. Kenneth M
Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for the Appellee/Cross-
Appellant.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Following a jury trial, Marshall R. Howell was
convicted of misdemeanor driving while under the influence.1 The
grand jury had indicted Howell for felony driving while under the
influence,2 but the superior court entered a judgment of
acquittal on the felony charge.
Howell appeals, claiming that the superior court
should have suppressed the evidence on the ground that the police
conducted an unlawful stop, that the superior court gave an
erroneous operating a motor vehicle jury instruction, that the
superior court imposed an excessive sentence, and that the
probation imposed as part of that sentence should be vacated.
The State cross-appeals, claiming that the superior court erred
when it entered a judgment of acquittal on the felony charge
after ruling that the evidence of Powells prior drunk driving
convictions was insufficient to allow the felony charge to go to
the jury. The State agrees with Howell that the probation
imposed should be vacated. For the reasons set out below, we
vacate the probation imposed as part of Howells sentence, and we
affirm the other decisions of the superior court with the
exception of the courts decision to grant a judgment of
acquittal. We do not reach the merits of that ruling because the
double jeopardy clause bars the State from challenging that
ruling.
Facts and proceedings
Anchorage Police Officer Steven Busby contacted Howell
when he saw Howells vehicle parked in the early morning hours
near a business in Anchorage. Howell claimed that Busbys contact
was unlawful, and moved to suppress the evidence. Superior Court
Judge Michael L. Wolverton held an evidentiary hearing at which
Officer Busby testified.
According to Busby, at approximately three in the
morning on May 31, 2002, he saw a vehicle in the parking lot of
Alaska Laser Car Wash at East Fifth Avenue near Orca Street. The
driver was hunched over the steering wheel with a coat over his
head. There were no other vehicles in the parking lot, and Busby
testified that it was unusual for a vehicle to be parked there at
that time of morning. Because he thought it was possible that
the person hunched over the steering wheel had a medical problem,
Busby approached the occupant to make sure that he was okay.
Busby knocked on the drivers side window several
times. Busby could see that the vehicles dashboard and stereo
lights were on, although he could not recall if the vehicles
engine was running. The driver, Howell, removed the coat from
his head, looked at Busby, then again covered his head with the
coat. Busby continued to knock on the window. Howell eventually
removed the coat from his head, then turned off the vehicles
ignition switch. Howell attempted to roll down the window, but,
because it was an electric window, he could not. Howell then
turned the ignition back on and rolled down the window.
In response to Busbys questions, Howell told Busby
that he had been drinking soda and that he was sitting in his
vehicle listening to music because he was tired. He admitted that
he drank four beers about nine hours earlier. But he also said
that a friend had driven him to the parking lot, and that he
(Howell) had been parked there all day.
Busby noticed that Howells eyes were red, his pupils
dilated, and that he had difficulty focusing on the conversation.
Busby asked Howell for his drivers license, and Howell gave Busby
an Oregon state identification card. Busby had Howell get out
of his vehicle for field sobriety tests, which Howell failed.
Busby arrested Howell for driving while under the
influence and for driving while his license was revoked. Busby
took Howell to the Fifth Avenue police substation where a
chemical test showed that Howells breath alcohol content was .114
percent.
Judge Wolverton denied Howells motion to suppress. He
ruled that based on the circumstances described by Busby, Busby
had acted lawfully when he contacted Howell to inquire about his
welfare. Later, Howell sought reconsideration based on new
evidence. After Judge Wolverton reviewed the new evidence an
audiotape recorded during Busbys contact with Howell he affirmed
his earlier decision.
Because Howell had prior drunk driving convictions
from Oregon, the State charged him with felony driving while
under the influence. However, because of apparent deficiencies
in the States proof of these prior convictions at trial, Judge
Stephanie E. Joannides granted a motion for judgment of acquittal
on the felony charge before evidence of those prior convictions
went to the jury. The jury found that the State had proven that
Howell was driving while under the influence, and he was
convicted of the misdemeanor offense.
However, for purposes of sentencing, the prosecutor
showed that Howells conviction in this case was (at least)
Howells fourth driving while under the influence conviction, and
that it was his third conviction within the past five to six
years. Although Judge Joannides did not make a worst offender
finding, she sentenced Howell to 365 days to serve, the maximum
term. She also imposed a $5,000 fine and placed Howell on
probation for 10 years.
Howell appeals, challenging Judge Wolvertons
suppression decision, one of the jury instructions, and the
length of the sentence. The State cross-appeals, challenging
Judge Joannidess ruling that there was insufficient evidence of
Howells prior drunk driving convictions for that evidence to go
to the jury.
Discussion
Was the police contact with Howell unlawful?
Howell claims that under Coleman v. State,3 Busby
conducted an unlawful investigatory stop when he contacted him,
and that Judge Wolverton therefore erred in denying his motion to
suppress.
Judge Wolverton found that Busby was authorized to
check on Howells welfare because he was sitting in his vehicle
slumped over the steering wheel with a coat over his head. Based
on our review of the record, we uphold Judge Wolvertons ruling
that Busbys contact with Howell was authorized under the
community caretaker doctrine. In Ozhuwan v. State,4 we
recognized that a police officers community caretaker
responsibilities can justify a Fourth Amendment stop.5 In
Ozhuwan, the police officer had no specific information to
justify his suspicion that the occupants of Ozhuwans vehicle
needed assistance.6 Rather, all the police saw was a vehicle
parked in an area where the police knew that minors often
consumed alcohol. Here, Busby saw a person with a coat over his
head slumped over the steering wheel of a vehicle parked in a
parking lot that was normally deserted at that time of morning.
Busby testified that he thought the driver might have
a medical problem, or some other problem, and that he felt it was
necessary to contact the occupant to make sure he was okay.
Although Busby drove over to the vehicle, nothing in the record
indicates that he turned on his vehicles emergency lights, or
used a spot light, or parked his vehicle in a manner that blocked
Howells vehicle from leaving. In addition, Judge Wolverton could
reasonably find that Busbys welfare check was not complete when
Howell initially looked at Busby, then re-covered his head with
his coat, because this conduct did not demonstrate that Howell
was not in need of aid.
We review a denial of a motion to suppress in the
light most favorable to upholding the trial courts ruling.7
Viewing the record in this light, we conclude that Judge
Wolverton did not clearly err in finding that this was a welfare
stop. During this lawful contact, Busby observed signs that
Howell was intoxicated. Therefore, we uphold Judge Wolvertons
ruling denying Howells motion to suppress.
Did the courts operating instruction improperly direct
the jury verdict?
Howell next claims the courts operating jury
instruction directed the jury to find [him] guilty if the jury
found that his conduct was substantially similar to the three
examples set forth in the instruction. He argues that the jury
should have been instructed that the fact patterns were examples
of situations where a jury could, but did not have to, find
operating.8
The jury instruction the court gave in this case is
similar to the criminal pattern instruction,9 which sets out
examples from prior cases illustrating circumstances in which
defendants were found to be operating a motor vehicle.10 One of
those examples, derived from State, Department of Public Safety
v. Conley,11 described a circumstance similar to this case:
Conley was sitting in the drivers seat and capable of starting
the engine, but the engine was not running and the vehicle was
not moving.12
Despite this similarity, the instruction in Howells
case did not direct the jury to find that Howell, like Conley,
had been operating his vehicle. Instead, it told the jury that
whether the defendant was operating a motor vehicle is a question
that you must decide. We conclude that Judge Joannides did not
abuse her discretion when she gave this instruction.
Can the State appeal Judge Joannidess evidentiary
ruling?
The State challenges Judge Joannidess exclusion of the
prosecutors evidence of Howells Oregon convictions, and her entry
of a judgment of acquittal on the felony driving while under the
influence charge. Although the government normally cannot appeal
a judgment of acquittal, the State claims that procedurally Judge
Joannides did not grant a judgment of acquittal. Alternatively,
the State claims that even if she did, the State can re-try the
felony charge because the prior conviction element of felony
driving while under the influence is really no more than a
sentence enhancement.
We conclude that Judge Joannides did enter a judgment
of acquittal. In Anchorage v. Baxley,13 we reiterated the rule
that [i]n determining whether the trial courts ruling was a
judgment of acquittal, the appellate court must determine whether
the ruling of the judge, whatever its label, actually represents
a resolution, correct or not, of some or all of the factual
elements of the offense charged.14 We also acknowledged that a
dismissal on legal grounds that [does] not require resolution of
the factual elements of an offense ... does not amount to a
judgment of acquittal, regardless of its timing or the label
attached thereto.15
Here, Judge Joannides reviewed the prosecutors offered
evidence and ruled that even if this evidence was admitted, it
would not prove that Howell had twice been convicted of offenses
that had elements similar to AS 28.35.030, Alaskas drunk driving
statute. Judge Joannides found that if the prosecutor could not
present sufficient evidence to prove that element, Howell was
entitled to an acquittal on the felony charge. This is a
resolution, correct or not, of some ... of the factual elements
of the offense charged.16 Judge Joannides evaluated the
prosecutors evidence and determined that it was legally
insufficient to sustain a conviction.17
Although the State also argues that Judge Joannides
should have allowed the prosecutor to present the evidence to the
jury, we need not address this claim. Even if Judge Joannides
erred and improvidently entered a judgment of acquittal, the
judgment of acquittal must stand because it was based on a
resolution of a factual element of the charge.18 Because we
cannot vacate the judgment of acquittal, we need not address
Judge Joannidess evidentiary ruling.
The States double jeopardy argument
The State claims that even if a judgment of acquittal
was entered, federal double jeopardy law does not prevent the
State from having another chance to prove the prior conviction
element of felony driving while under the influence. The State
bases its argument on Monge v. California,19 where a divided
United States Supreme Court found that the double jeopardy clause
of the United States Constitution was not violated when, under
the California three strikes law, a prosecutor was given a second
chance to prove a sentence enhancement at a new sentencing
proceeding.20
In Monge, the Supreme Court noted that historically it
had found double jeopardy protections inapplicable to sentencing
proceedings ... because the determinations at issue do not place
a defendant in jeopardy for an offense.21 But the Supreme Court
also explained that when an appellate court overturns a
conviction on the ground that the [prosecution] proffered
insufficient evidence of guilt, that finding is comparable to an
acquittal, and the Double Jeopardy Clause precludes a second
trial.22 According to the Supreme Court, the difference was that
the pronouncement of sentence simply does not have the qualities
of constitutional finality that attend an acquittal.23
The State argues that the Monge decision applies to
Howells case because, under Alaska law, the prior convictions
element of felony driving while under the influence is
essentially a sentence-enhancing provision. This is incorrect.
We have repeatedly and consistently held that when a defendants
prior convictions make the defendant subject to conviction for a
higher degree of offense, those prior convictions are an element
of the offense that must be proved beyond a reasonable doubt at
trial.24 In particular, Ross v. State25 squarely holds that, in
a prosecution for felony driving while under the influence under
AS 28.35.030(n), the defendants prior convictions are not a
sentence-enhancement factor to be considered by the sentencing
judge after the defendant is found guilty; instead, the
defendants prior convictions are an element of the offense that
must be proved to the jury at trial.26
In Howells case, the jury concluded that Howell had
operated a motor vehicle while under the influence. Then, before
the jury could reach a decision regarding Howells prior
convictions in the second portion of a bifurcated trial, Judge
Joannides granted Howell a partial judgment of acquittal
effectively dismissing the felony charge, leaving the lesser
offense of misdemeanor driving while under the influence because
she concluded that the States proposed evidence was insufficient
to establish the prior convictions element. Whether Judge
Joannides was right or wrong, the double jeopardy clause bars the
State from relitigating Howells guilt of felony driving while
under the influence. As the United States Supreme Court declared
in Burks v. United States27: The Double Jeopardy Clause forbids
a second trial for the purpose of affording the prosecution
another opportunity to supply evidence which it failed to muster
in the first proceedings.28
Was the sentence excessive?
Judge Joannides imposed a sentence of 365 days to
serve with none suspended. This was the maximum term the court
could impose for a class A misdemeanor. Howell claims that this
sentence is excessive because Judge Joannides did not make a
worst-offender finding, and because the record would not support
such a finding.
Generally, a maximum sentence cannot be imposed
without some foundation for characterizing a defendant as the
worst type of offender.29 A worst-offender finding may be based
on the facts and circumstances surrounding the offense, the
defendants criminal history, or both.30
Although the State concedes that Judge Joannides made
no explicit worst-offender finding, the State contends that
Howells sentence is not excessive. The State points out that an
express worst-offender finding is not required when the trial
court implicitly found that the defendant was a worst offender.31
The State also argues that when the trial court finds that the
defendant actually committed a more serious offense, that finding
will support a worst-offender finding and justify a maximum
sentence.32
Here, the sentencing record shows that Judge Joannides
was aware that Howell had at least three prior convictions for
driving while under the influence. Because two of those
convictions had occurred after 1996, he had in fact committed the
more serious offense of felony driving while under the influence
even though Judge Joannides had ruled that the State had not
presented sufficient evidence to prove that element at trial. At
sentencing, the State claimed that it had learned that Howell had
an additional prior driving while under the influence conviction
from Pennsylvania. Because Howell did not concede this prior
conviction, the State requested a continuance to prove the prior
conviction. But Howells attorney pointed out that he had been in
custody pending trial for so long that Howell was willing to take
a flat sentence of whatever length the court wants to impose.
Judge Joannides proceeded with sentencing without resolving
whether Howell had a prior driving while under the influence
conviction in Pennsylvania.
We have reviewed Judge Joannidess sentencing comments.
Although it is possible that she concluded that Howell was a
worst offender, we are not able to say that her sentencing
remarks reflect that finding. Ordinarily, we would remand the
case for additional findings on that question, or vacate Howells
sentence and remand for re-sentencing. However, we conclude that
the issue is moot in this case because Howell has already served
a 365-day sentence. Thus, a reduction of the sentence specified
in his written judgment would not help him.
Finally, both the State and Howell agree that Judge
Joannides erred when she imposed a probationary period because no
part of Howells sentence or fine was suspended. Both parties
acknowledge that the probationary period should be vacated. We
agree.
In Kelly v. State,33 we explained that [w]hen a court
sentences a defendant to serve a probationary period, the court
must suspend a portion of the sentence or else the probationary
term is meaningless.34 Here, no portion of Howells sentence,
either the imprisonment or the fine, was suspended. Therefore,
no probationary term could be imposed.
Conclusion
Howells probation is VACATED. The judgment of the
superior court is AFFIRMED.
_______________________________
1 AS 28.35.030.
2 AS 28.35.030(n).
3 553 P.2d 40 (Alaska 1976).
4 786 P.2d 918 (Alaska App. 1990).
5 Id. at 922; see also Rogers-Dwight v. State, 899 P.2d
1389, 1391 (Alaska App. 1995); Crauthers v. State, 727 P.2d 9, 11
(Alaska App. 1986).
6 786 P.2d at 922.
7 State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).
8 Emphasis in original.
9 See Alaska Criminal Pattern Jury Instruction 28.35.030(a)
Operating (1999).
10 See State Dept of Public Safety v. Conley, 754 P.2d 232
(Alaska 1988); Williams v. State, 884 P.2d 167 (Alaska App.
1994), abrogated on other grounds in State v. Coon, 974 P.2d 386
(Alaska 1999); Lathan v. State, 707 P.2d 941 (Alaska App. 1985).
11 754 P.2d 232.
12 Id. at 236.
13 946 P.2d 894 (Alaska App. 1997).
14 Id. at 898 (quoting United States v. Martin Linen
Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1355, 51 L.Ed.2d
642 (1977)). See also Smith v. Massachusetts, ___ U.S. ___, 125
S.Ct. 1129, 1134, 160 L.Ed.2d 914 (2005) (what matters is that
... the judge evaluated the [governments] evidence and determined
that it was legally insufficient to sustain a conviction.)
(citation and quotation marks omitted); State v. Thronsen, 809
P.2d 941, 943 (Alaska App. 1991) ([W]e may not reverse a genuine
verdict of acquittal on appeal without violating the
constitutional provisions of the United States and the Alaska
Constitutions which prohibit putting a defendant twice in
jeopardy. ... Where ... the ruling of the judge, whatever its
label, actually represents a resolution, correct or not, of some
or all of the factual elements of the offense charged, the ruling
constitutes a judgment of acquittal.) (internal citation
removed).
15 Baxley, 946 P.2d at 898 (quoting State v. Martushev,
846 P.2d 144, 148 (Alaska App. 1993)).
16 Id. Compare Selman v. State, 406 P.2d 181, 186 (Alaska
1965), overruled on other grounds by Whitton v. State, 479 P.2d
302, 312 (Alaska 1970).
17 See Smith, 112 S.Ct. at 1135.
18 See State v. Kott, 636 P.2d 622, 623 (Alaska App.
1981), overruled on other grounds by Kott v. State, 678 P.2d 836
(Alaska 1984) ([G]enerally judgments of acquittal are not
reviewable on appeal by the state. Both the state and federal
constitutional prohibitions against placing a defendant twice in
jeopardy insulate him from an appeal from a judgment of acquittal
however erroneous the trial judges view of the facts or the law.)
(emphasis added and internal citation omitted); 5 Wayne R.
LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure,
25.1(g) at 648 (2nd ed. 1999) (If ... the judge grants a judgment
of acquittal, double jeopardy bars a new trial even if it appears
that the acquittal was based on an erroneous interpretation of
the law.). See also Martin Linen Supply Co., 430 U.S. at 571, 97
S.Ct. at 1354.
19 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998).
20 Id. at 728-29, 118 S.Ct. at 2250-51.
21 Id. at 728, 118 S.Ct. at 2250.
22 Id. at 729, 118 S.Ct. at 2251.
23 Id. (citations and internal quotation marks omitted).
24 See Tallent v. State, 951 P.2d 857, 861 (Alaska App.
1997) (holding that a defendants prior theft convictions are an
element of second-degree theft under AS 11.46.130(a)(6)); Morgan
v. State, 661 P.2d 1102, 1103 (Alaska App. 1983) (holding that a
defendants prior conviction for bootlegging is an element of
felony bootlegging under AS 04.16.200(b)); see also Mead v.
State, 445 P.2d 229, 234 (Alaska 1968) (holding that a defendants
prior felony conviction is an element of the offense of felon in
possession of concealable firearm).
25 950 P.2d 587 (Alaska App. 1997).
26 Id. at 590-91.
27 137 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).
28 Id. at 11, 98 S.Ct. at 2147.
29 State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975).
30 Id.; Napayonak v. State, 793 P.2d 1059-62 (Alaska App.
1990).
31 See Napayonak, 793 P.2d at 1062.
32 See Fee v. State, 656 P.2d 1202, 1204 (Alaska App.
1982).
33 842 P.2d 612 (Alaska App. 1992).
34 Id. at 613.
