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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| WAYNE D. HUNTINGTON, | ) |
| ) Court of Appeals No. A-9227 | |
| Appellant, | ) Trial Court No. 4GA-03-178 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2080 January 19, 2007 |
| ) | |
Appeal from the District Court, Fourth Judi
cial District, Galena, Winston S. Burbank,
Judge, and Jerry D. Anderson, Magistrate.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Quinlan
Steiner, Public Defender, Anchorage, for the
Appellant. Kelly J. Lawson, Assistant
District Attorney, and Jeffrey A. OBryant,
District Attorney, Fairbanks, and David W.
M rquez, Attorney General, Juneau, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Wayne D. Huntington appeals his conviction for
misdemeanor driving under the influence.
The first of Huntingtons claims involves his statutory
right to contact an attorney. Under AS 12.25.150(b), as
interpreted in Wardlow v. State,1 all arrestees have the right to
contact an attorney, relative, or friend immediately upon their
arrival at the police station or other place of detention.
Moreover, in Copelin v. State, 659 P.2d 1206 (Alaska 1983), the
supreme court interpreted this statutory right in the context of
DUI arrests: the court held that if an arrested motorist asks to
contact an attorney, the motorist has a right to delay the
mandatory breath test for a reasonable length of time to allow
the motorist to consult the attorney about whether to take the
breath test.2
Huntington argues that the police violated his
statutory right to contact an attorney, and that the result of
his breath test should therefore be suppressed.
Huntington was arrested at his house in Galena. At the
time of his arrest, Huntington asked to call his attorney. The
police told Huntington that he could make this telephone call
after they got to the police station. At the police station, the
police informed Huntington of his Miranda rights (including his
right to speak to an attorney before questioning), but the police
did not expressly remind Huntington that he had previously asked
to call his attorney, and they did not expressly invite him to
make that telephone call. Huntington argues that the police, by
failing to remind Huntington of his earlier request, and by
failing to expressly offer Huntington the opportunity to make the
telephone call, infringed Huntingtons statutory right to contact
an attorney.
Huntingtons argument runs counter to our prior
decisions on this issue. We have repeatedly held that AS
12.25.150(b) does not obligate the police to expressly offer a
telephone call to an arrestee. Rather, the statute only obliges
the police not to unreasonably interfere with an arrestees
efforts to call an attorney, relative, or friend.3
Here, Huntington does not assert that he made any
attempt to contact his attorney after he arrived at the police
station, or that he reminded the police of his desire to make
this call. The record shows that Huntington remained silent on
this matter even after he was read the Miranda warnings, which
expressly apprised Huntington that he had a right to have an
attorney present. Nor has Huntington challenged the truthfulness
of Officer Danny Michelss testimony that he would have let
Huntington make a telephone call if Huntington had asked to do
so.
In other words, even though the police informed
Huntington (correctly) that he would have to wait until they got
to the police station to call his attorney, the police never
impeded Huntingtons ability to invoke and exercise that right
once they got to the station.4
Huntington contends that he never again mentioned his
desire to contact his attorney because he was waiting for the
police to raise the issue waiting for the police to tell him
that the time had arrived for him to call his attorney. But
there is no evidence that the police officers told Huntington
that he would have to wait until they expressly authorized him to
make the telephone call. Rather, the police simply told
Huntington that he would have to wait until he arrived at the
police station.
Even if we assume that Huntington subjectively believed
that the police had placed some greater limitation on his ability
to contact his attorney, this belief was not the result of
anything that the police told him. We therefore agree with
Magistrate Jerry Anderson that, under the circumstances presented
here, the police had no affirmative duty to remind [Huntington]
about his earlier request to speak to an attorney.
In two earlier unpublished decisions Colette v. State5
and Schroeder v. State6 we held that, under similar
circumstances (i.e., when an arrestee requested to call an
attorney or friend in the field, but did not renew that request
at the police station), the police did not violate AS
12.25.150(b) by failing to expressly remind the arrestee of their
earlier request to make a telephone call. Now that this issue
has arisen again, we believe that we should issue a published
opinion on this point of law.
Huntington next argues that his trial judge, District
Court Judge Winston S. Burbank, should have granted a mistrial
after a witness the fuel truck driver who gave Huntington a ride
home after Huntingtons car went into a ditch testified that
Huntington (who is Native) was mad and pretty loud during the
drive, and that he was upset with the white people. From the
ensuing discussion of the truck drivers testimony, it appears
that the prosecutor did not know that the truck driver would give
this last answer.
Although Huntington does not question the prosecutors
good faith, he points out that all of the jurors at his trial
were non-Natives. (Apparently, five of the jurors were white,
and one was Filipino.) Huntington argues that the evidence about
this remark could be expected to engender so much prejudice
against him in the minds of the jurors that Judge Burbank should
have stopped the trial.
When Huntington made this request to Judge Burbank, the
judge concluded that the challenged testimony had been relevant
to the issue of Huntingtons intoxication (because it was part of
the truck drivers description of Huntingtons demeanor and
conduct). The judge further concluded that the prejudicial
impact of this testimony would not be as great as the defense
attorney argued. Judge Burbank explained:
The Court: Mr. Huntington is well known
in Galena. I assume that ... his views on
[this] subject [are] widely known by most of
the people [living here]. [And] most of the
people on this jury, with the exception of
one juror, I believe, [were already
acquainted with] Mr. Huntington.
The judge therefore denied Huntingtons motion
for a mistrial.
On appeal, Huntington renews his
claim that a mistrial was required. We are
to uphold a trial judges decision to deny a
motion for mistrial unless that decision is
clearly erroneous.7 As this court explained
in Roth v. State:
The trial judge has the opportunity to
observe the tainted evidence in the context
in which it is received by the jury. [That
judge], far better than we, can tell whether
substantial prejudice has been done.
626 P.2d 583, 585 (Alaska App. 1981).
Huntington relies on cases from
Florida and Texas in support of his claim
that racial slurs and ethnic epithets can be
so prejudicial that their improper
introduction warrants a mistrial.8 But those
cases involved statements that were far more
prejudicial than the statements at issue
here.
In particular, the Florida and
Texas cases dealt with inflammatory racial
comments that were elicited for the very
purpose of appealing to racial prejudice or
for the purpose of undercutting the
credibility of a key witness. Huntingtons
case, on the other hand, presents a situation
where the challenged evidence, although
possessing racial overtones, was relevant to
the issues being litigated. The fact that
Huntington was loud, upset, and perhaps
belligerent was probative of whether he was
under the influence. Moreover, the
prosecutor did not deliberately elicit the
challenged testimony, nor did the prosecutor
either expressly or implicitly ask the jurors
to draw any improper inference from this
testimony. In fact, the prosecutor made no
further reference to this challenged
testimony, either during the examination of
later witnesses or in final argument.
Judge Burbank could also properly
consider the fact that the other evidence
against Huntington was strong, and thus the
challenged statement would likely have no
effect on the jurys verdict. One of the
States witnesses saw Huntington trying to get
his car out of the ditch. And the truck
driver who gave Huntington a ride home
testified that Huntington smelled of
alcoholic beverages, and that Huntington fell
as he was getting out of the truck. The
Galena police chief testified that, when he
examined Huntingtons vehicle in the ditch, it
smelled of alcoholic beverages. And when the
police chief contacted Huntington at his
home, he observed that Huntingtons speech was
slurred, that Huntington had an odor of
alcoholic beverages, and that he staggered
when he walked. Finally, Huntingtons breath
test showed that he had a blood alcohol level
of .261 percent more than three times the
legal limit.
Finally, we note that Huntington
declined Judge Burbanks invitation to give
the jury a curative instruction, and we
further note that the jurors were
affirmatively instructed that they should
base their decision on [a] fair consideration
of the evidence, and that they should not be
governed by sentiment ... passion, [or]
prejudice.
In prior unpublished decisions, we
have addressed similar instances of brief
racial references in the trial testimony, and
we concluded that these references did not
require a mistrial.9 We likewise conclude
here that Judge Burbank did not abuse his
discretion when he declined to order a
mistrial in Huntingtons case.
Huntington argues one final point
on appeal. As explained above, when Judge
Burbank ruled on Huntingtons motion for a
mistrial, he adverted to the fact that
Huntington was well known in the Galena
community, and he surmised that, because most
of the jurors were already acquainted with
Huntington before trial, Huntingtons views
about white people would not come as a
surprise to these jurors. Huntington now
argues that Judge Burbank abused his
discretion by basing his decision, in part,
on the assumption that the jurors already
knew Huntingtons views. He contends that, by
resting his decision on this assumption, the
judge relied on facts not in evidence.
Huntington did not object to Judge
Burbanks ruling on this ground, so he must
now show plain error.
It is not clear what evidence rule,
if any, governs a trial judges findings of
fact in this circumstance.
Alaska Evidence Rule 201 places
limitations on a judges authority to take
notice of facts. But as the commentary to
this rule explains, Rule 201 applies only to
issues of fact that would otherwise be
submitted to the jury.10 The question of
whether a particular occurrence requires a
mistrial is not a question of fact to be
decided by the jury; rather, it is a mixed
question of fact and law addressed to the
discretion of the trial judge.11
Alaska Evidence Rule 104(a), on the
other hand, gives a trial judge wide-ranging
authority to determine questions of fact that
underlie the judges rulings on the
qualification of a person to be a witness,
the existence of a privilege, or the
admission of evidence. Evidence Rule 104(a)
declares that, in these matters, a judge is
not bound by the rules of evidence except for
the rules of privilege. But although Rule
104(a) may suggest an approach to this
problem, it is not directly pertinent to the
issue of whether the judge should declare a
mistrial or, in particular, what facts a
judge may properly rely on when assessing the
potential unfair prejudice of challenged
evidence.
We conclude, in any event, that
Huntington has not shown plain error. As we
have explained, Judge Burbank had ample
grounds to deny Huntingtons motion for a
mistrial. Moreover, it seems likely that
Judge Burbank was simply drawing an inference
from facts that were already part of the
record: that Huntington was a resident of
the small town of Galena, and that five out
of the six jurors were already acquainted
with Huntington.
On the face of it, Judge Burbank
could reasonably infer that a passing
reference to Huntingtons anger at white
people was unlikely to inflame these jurors
or influence their verdict. Alternatively,
another plausible reading of Judge Burbanks
remarks is that he was not affirmatively
relying on this inference, but rather that he
was simply reassuring the defense attorney
that the truck drivers challenged testimony
would not be unduly prejudicial under the
circumstances.
To the extent that Judge Burbanks
remarks might plausibly be interpreted
differently, as Huntington now suggests, it
was Huntingtons obligation to object to the
judges remarks at the time they were made,
and to either ask the judge to clarify the
meaning of his remarks, or to engage in voir
dire examination of the jurors to gauge
directly how the challenged testimony might
be affecting them.
In sum, we find no plain error.
The judgement of the district court
is AFFIRMED.
_______________________________
12 P.3d 1238, 1250 (Alaska App. 2000).
2Copelin, 659 P.2d at 1208.
3Rollefson v. Anchorage, 782 P.2d 305, 306-07 (Alaska App.
1989); Yancy v. State, 733 P.2d 1058, 1060-62 (Alaska App. 1987);
Anderson v. State, 713 P.2d 1220, 1221 (Alaska App. 1986).
4See Wardlow, 2 P.3d at 1250.
5Alaska App. Memorandum Opinion No. 4811 (January 7, 2004);
2004 WL 32924.
6Alaska App. Memorandum Opinion No. 4393 (May 9, 2001); 2001
WL 488038.
7Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).
8Bryant v. State, 25 S.W.3d 924, 925-26 (Tex. App. 2000);
MCI Express, Inc. v. Ford Motor Company, 832 So.2d 795, 800-02
(Fla. App. 2002); Simmons v. Baptist Hospital of Miami, Inc., 454
So.2d 681, 682 (Fla. App. 1984). See also La Reina Pharmacy,
Inc. v. L¢pez, 453 So.2d 882, 883-84 (Fla. App. 1984); McBride v.
State, 338 So.2d 567, 568-69 (Fla. App. 1976).
9See Bailey v. State, Alaska App. Memorandum Opinion No.
4813 (January 14, 2004); 2004 WL 60842 (evidence
introduced that the defendant, who was black, called
his female accomplice a fucking white bitch); Benson v.
State, Alaska App. Memorandum Opinion No. 1365 (March
18, 1987); 1987 WL 1359283 (evidence introduced that
the victim of a sexual assault stated that two honkies
had raped her).
10The pertinent portion of the Commentary states:
[Evidence] Rule 201 restricts only the power of the
court to declare on the record, without resort to
formal proof, that a particular fact exists, i.e., that
something is actually true, [when] the fact involved is
one that would otherwise be decided by the trier of
fact upon [evidence submitted] by the parties.
Commentary to Alaska Evidence Rule 201, subsection (a)
Scope of Rule, first paragraph.
11Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).
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