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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ANDREW F. ABYO, | ) |
| ) Court of Appeals No. A-9428 | |
| Appellant, | ) Trial Court No. 3PA-04-2923 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2114 August 10, 2007 |
| ) | |
Appeal from the District Court, Third Judi
cial District, Palmer, John Wolfe, Judge.
Appearances: Stephanie Patel, Law Offices of
Dan Allan, Anchorage, for the Appellant.
Richard K. Allen, Assistant District
Attorney, Roman J. Kalytiak, District
Attorney, Palmer, and David W. M rquez,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Andrew F. Abyo was convicted of driving while under the
influence (DUI). He argues that District Court Judge John Wolfe
improperly denied his request for an evidentiary hearing,
violated the confrontation clause of the Sixth Amendment to the
United States Constitution by admitting verification of
calibration documents for the DataMaster breathalyzer without
subjecting the author of the documents to cross-examination, and
erred in denying his motion for judgment of acquittal.
We agree that Judge Wolfe improperly denied Abyos
request for an evidentiary hearing on whether the officer had
probable cause to arrest Abyo. Accordingly, we remand for an
evidentiary hearing on that issue. But Judge Wolfe did not
violate the confrontation clause by admitting the verification of
calibration documents without subjecting the author to cross-
examination verification of calibration reports are
nontestimonial documents. And Judge Wolfe did not err in denying
Abyos motion for judgment of acquittal because the jury could
reasonably have relied in convicting Abyo on the arresting
officers testimony that Abyo was driving while under the
influence and the DataMaster test showing that Abyo had a blood
alcohol level of 0.125 percent.
Facts and proceedings
On October 2, 2004, at approximately 3:48 a.m., Palmer
Police Officer Donna Anthony stopped Abyo for driving with a
broken taillight. When she approached Abyo, she noticed that his
eyes were bloodshot and watery and that a strong odor of alcohol
was coming from his person or his breath. Abyo admitted that he
drank two beers at the Gaslight Lounge in Anchorage and that he
and his passengers were returning from a liquor run to Palmer.
Officer Anthony suspected that Abyo was under the
influence of alcohol and asked him to perform several
standardized field sobriety tests, including a horizontal gaze
nystagmus (HGN) test, a walk-and-turn test, a one-legged-stand
test, and alphabet and number tests.
Based on the results of these tests, Officer Anthony
believed Abyo was under the influence of alcohol. She asked him
to submit to a portable breath test, which indicated the presence
of alcohol. She then arrested him and took him to the Palmer
police station to conduct a DataMaster test. Abyos DataMaster
test, completed at 4:41 a.m., showed that Abyo had a blood
alcohol level of 0.125 percent.
At trial, Officer Anthony testified about the results
of Abyos field sobriety tests. She testified that on the HGN
test, both of Abyos eyes showed nystagmus rapid involuntary
rhythmic eye movement on all six clues, indicating the influence
of alcohol. She testified that on the walk-and-turn test, Abyo
had trouble putting his right foot in front of his left foot, had
to raise his arms to keep his balance, and did not follow the
instructions to count out loud while walking, scoring three of a
possible nine points. She testified that on the one-legged-stand
test (counting one to thirty while standing on one leg), he had
to raise his arms to keep his balance, put his foot down more
than three times, and was swaying. (Once a defendant puts his
foot down three times, he fails the test.) She testified that on
the alphabet test (reciting E to P), Abyo initially forgot the H
but then restarted and correctly completed the test. And
finally, she testified that on the number test (counting backward
from 69 to 54), Abyo repeated 65 and 64 but successfully
completed the test.
After Officer Anthony testified about the field
sobriety tests, the State played a video of the traffic stop.
After viewing the video, Officer Anthony stated that part of her
testimony was incorrect: Abyo did not sway, hop, lift his arms,
or stop and start counting. She eventually conceded that Abyos
only failures on the field sobriety test were on the HGN test.
And Officer Anthony admitted that a suspects performance on the
HGN test can be affected by overhead lights or other factors
unrelated to alcohol consumption.
Overall, Officer Anthony agreed that her police report
and testimony were inaccurate in describing the field sobriety
tests. At the conclusion of the States case, Abyo moved for a
judgment of acquittal. The court denied the motion, holding that
the evidence was sufficient to allow reasonable jurors to find
Abyo guilty. The jury found Abyo guilty of driving while under
the influence.1
Discussion
Why we find the court erred in refusing to hold an
evidentiary hearing on Abyos second suppression motion
Abyo filed three pre-trial motions to suppress the
evidence, the first based on lack of probable cause to stop him
for a traffic violation, the second based on lack of probable
cause to arrest him for driving while under the influence, and
the third based on Miranda2 violations. Judge Wolfe held an
evidentiary hearing on March 11, 2005, at which Abyo asked to
address all three motions. Judge Wolfe indicated that he was
only prepared to rule on the first motion, but he allowed the
parties to present evidence on all three motions.
On March 21, 2005, Abyo requested an evidentiary
hearing on his second suppression motion. The court denied the
request under Alaska Criminal Rule 42(b)(2) because Abyo had not
presented evidence of a material factual dispute. But the court
stated that [t]his motion can be reurged if after receipt of
discovery a dispute of material fact is found to exist.
On April 21, 2005, Abyo filed a renewed request for a
hearing. The motion included an affidavit by Abyos counsel that
stated she had reviewed the video recording of the field sobriety
tests and that it contradicted the statements of the arresting
officer and showed there was no probable cause for the arrest.
The court did not respond to the request for a hearing; instead
the court set the matter for a trial call on May 27, 2005.
Abyo then filed another renewed request for an
evidentiary hearing, which the court treated as a motion for
reconsideration under Criminal Rule 42(k). Before denying the
motion, the court observed that it was procedurally defective
because Abyo had not specified the ground on which he was seeking
reconsideration, or shown good cause why the facts he advanced in
his affidavit were not included in his original motion.
The court nevertheless reached the merits of Abyos
motion, ruling that an evidentiary hearing was not warranted
because there were no material discrepancies between the officers
affidavit in support of probable cause and the affidavit attached
to Abyos motion for reconsideration. The court found that, even
accepting as true the assertions of Abyos counsel that the police
video showed that Abyo had not staggered, stumbled, been off
balance, or slurred his speech, the officers affidavit was
sufficient to establish probable cause for his arrest. The court
noted that Abyo had not directly contradicted the officers
assertions that Abyo smelled of alcohol, had bloodshot, watery
eyes, failed several field sobriety tests, admitted to drinking
and being on a liquor run, and registered 0.155 percent blood
alcohol on a portable breath test.
On appeal, Abyo argues that the court erred in
concluding that there were no material factual disputes and in
refusing to hold a hearing on his suppression motion.
Criminal Rule 42(e) states that [i]f material issues of
fact are not presented in the pleadings, the court need not hold
an evidentiary hearing. In Selig v. State,3 we explained the
procedure for establishing if there are disputes of material fact
that warrant an evidentiary hearing:
[W]here the claim is made that a warrantless
arrest was not supported by probable cause,
the defendant should be permitted to allege
this fact on information and belief in
reliance on specified materials he receives
through discovery. Once the defendant has
filed his affidavits and supporting legal
memoranda, the state is obligated to respond
by filing affidavits setting out its version
of the facts. When a comparison of the
affidavits in support of and in opposition to
the motion establishes disputed issues of
material fact, the trial court should
schedule an evidentiary hearing to resolve
those issues sufficiently in advance of trial
to avoid delay. The trial court can then
make the specific findings of fact required
by Criminal Rule 12(d).[4]
In Boggess v. State,5 we stated that conflicting affidavits
provide no basis for evaluating the relative credibility of their
makers. For this reason, issues of credibility cannot normally
be decided based on a review of affidavits; when conflicting
facts are set forth in competing affidavits, an evidentiary
hearing will ordinarily be required.6
In this case, Abyo did not include a statement of facts
in his initial request for a hearing. In his renewed request
(which the court treated as a motion for reconsideration), Abyos
counsel stated as follows:
I have reviewed the video recording provided
by the State in this case, which includes the
field sobriety tests, and as a result of this
review I believe the video recording is
evidence of a lack of objective facts
sufficient to establish probable cause for
the arrest of defendant in this case (i.e. a
lack of the usual indicia, including
staggering, stumbling, being off balance,
slurred speech, lack of awareness, etc.), and
that such video contradicts other evidence of
statements made by the arresting officer to
support probable cause. ... I believe that a
reasonable person would or could conclude
that the entire credibility of the arresting
officer is undermined by the discrepancy
between the objective evidence on the video
and written statements made by the arresting
officer.
Judge Wolfe found no discrepancy between the two
affidavits and found that [t]he facts contained in the officers
affidavit establish probable cause for the arrest, even assuming
those claimed by the defense were all true as well. Apparently,
Judge Wolfe refused to hold an evidentiary hearing because Abyo
failed to explain which parts of Officer Anthonys affidavit the
video contradicted.
Although it is true that Abyos counsel did not clearly
explain what parts of Officer Anthonys affidavit the video
contradicted, we find that there was a sufficient factual dispute
to warrant an evidentiary hearing in this case. Abyos counsel
stated that the video contradicted statements made by Officer
Anthony to support probable cause and that this undermined the
overall credibility of the officer. If Officer Anthony had been
confronted with the video at an evidentiary hearing, she might
have admitted, as she did at trial, that she made mistakes in her
affidavit and that she might have written her report based on the
facts of a different DUI investigation. We find that Judge Wolfe
erred in failing to hold an evidentiary hearing. We therefore
remand the case for an evidentiary hearing on whether Officer
Anthony had probable cause to arrest Abyo.
Why we find the court did not err in admitting the
verification of calibration documents
At trial, the State attempted to introduce documents to
verify that the DataMaster breath test machine was properly
calibrated. Abyo objected, claiming that he had a right to cross-
examine the author of the documents under Crawford v. Washington.7
The State responded that the documents fell within the business
records exception to the hearsay rule and therefore it was
unnecessary to subject the author to cross-examination. The court
overruled Abyos objection. Officer Anthony then testified that
the documents showed the DataMaster was successfully calibrated
on August 18, 2004, and again on October 7, 2004, and therefore
was presumed to be properly operating on October 2, 2004, the
date of Abyos test.8
The Sixth Amendment to the United States Constitution
states that [i]n all criminal prosecutions, the accused shall
enjoy the right ... to be confronted with the witnesses against
him. In Crawford, the United States Supreme Court reaffirmed
that this clause applies to both in-court and out-of-court
statements and that it applies regardless of the rules of
evidence in place at the time.9 If the statement is testimonial,
it cannot be admitted at trial unless the declarant is
unavailable to testify and the defendant had a prior opportunity
to cross-examine the declarant about the statement.10 The Supreme
Court did not explicitly define the term testimonial in Crawford,
but it did state that business records are, by their nature, not
testimonial.11
Before Crawford, this court and our supreme court held
that verification of calibration reports were admissible without
subjecting the author to cross-examination, but we have not
decided the issue since then.12 We therefore must decide whether
verification of calibration reports are testimonial under
Crawford.
In Abyos case, the court admitted the verification of
calibration documents as public records not as business records,
which the Supreme Court stated were nontestimonial in Crawford.
But most courts have held that verification of calibration
documents whether business records or public records are
nontestimonial, and that courts do not violate the confrontation
clause by allowing them to be introduced without subjecting the
author to cross-examination.13
For example, in Bohsancurt v. Eisenberg,14 the Arizona
Court of Appeals found that verification of calibration documents
were both public records and business records and that, under
Crawford, they were nontestimonial.15 The court relied on the
fact that the calibration documents were mandated by
administrative rules, were created whether or not the machine was
ever used, did not have any relationship to any specific case or
defendant, and were not created to document the specific facts of
a case.16
Courts have continued to hold that these documents are
nontestimonial even after the United States Supreme Courts
decision in Davis v. Washington,17 which held that statements made
in the course of a police interrogation are testimonal if the
primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prosecution.18
While verification of calibration reports are prepared in
anticipation of criminal litigation in a general sense, courts
have held that they are nontestimonial because they are not
prepared in anticipation of litigation in a particular case.19
We agree. Verification of calibration reports are
mandated by the administrative rules,20 are created whether or not
the DataMaster machine whose calibration is being verified is
used,21 and are not created in anticipation of litigation in a
particular case. We therefore find that verification of
calibration documents for breath test machines are nontestimonial
and reaffirm that their introduction without cross-examination of
the author does not implicate the confrontation clause. The
court did not err in allowing the State to introduce the
verification of calibration documents without subjecting the
author to cross-examination.
Why we find the court did not err in denying Abyos
motion for judgment of acquittal
Abyo also argues that the court erred in denying his
motion for judgment of acquittal. In denying the motion, the
court held that the evidence was sufficient to allow fair minded
persons in the exercise of reasonable judgment to find Abyo
guilty.22
When we review the denial of a motion for judgment of
acquittal, we view the evidence presented at trial and the
reasonable inferences from that evidence in the light most
favorable to the State.23 Viewing the evidence in that light, we
determine whether fair minded jurors exercising reasonable
judgment could find the defendant guilty beyond a reasonable
doubt.24
Essentially, Abyo claims that Officer Anthonys
credibility was sufficiently undermined that no reasonable juror
could believe any of her testimony. However, even after the
confusion over the field sobriety tests, there was a great deal
of Officer Anthonys testimony that she did not retract: Abyos
eyes were bloodshot and watery, there was a strong odor of
alcohol coming from the car, Abyo failed the HGN test, Abyo
admitted he had been drinking at the Gaslight Lounge in Anchorage
and that he and his passengers were returning from a liquor run,
and Abyos DataMaster test showed a breath alcohol level of 0.125
percent. It is the jurys job to determine the credibility of
witnesses.25 Because reasonable jurors could have believed
Officer Anthonys remaining testimony and used this testimony to
find Abyo guilty beyond a reasonable doubt, the court did not err
in denying the motion for judgment of acquittal.
Abyo also argues that the jury could not rely on the
DataMaster result because the August 18, 2004, verification of
calibration report was not certified by the director of the State
Breath Alcohol Testing Program until November 29, 2004 more than
three months after the verification of calibration was performed
and nearly two months after Abyos DataMaster test.
The Alaska Administrative Code provides that, in order
for a breath test to be considered valid:
At intervals not to exceed 60 days, the
accuracy of the calibration of a breath test
instrument must be verified. The
verification of calibration must be performed
by the scientific director or by a qualified
person designated by the scientific director.
A written report of the verification of
calibration shall be made by the person who
performed that verification. That report
shall be submitted to the scientific
director, if the scientific director did not
prepare it. Upon receipt of the written
report or after preparing the written report,
and if the report verifies that the
calibration of the breath test instrument is
accurate, the scientific director shall issue
a certification for the breath test
instrument. The certification is valid for
60 days after the day the verification of
calibration was performed.[26]
This language does not require the scientific director to issue
the certification within a certain amount of time after the
verification of calibration is performed, and it does not state
that DataMaster test results are only valid if they are performed
after the scientific director issues the certification. Instead,
in order for a breath test result to be presumed valid, a
verification of calibration must be performed every sixty days,
and, at some point, the scientific director must issue a
certification for the breath test instrument.27
Here, the DataMaster was properly verified as
calibrated on August 18, 2004, and the verification of that
calibration was certified later by the scientific director. The
jury was therefore justified in relying on any tests performed on
that DataMaster within sixty days of August 18, 2004, including
the October 2, 2004, test that showed Abyo had a blood alcohol
level of 0.125 percent.
Conclusion
We REMAND this case to the district court for an
evidentiary hearing on whether Officer Anthony had probable cause
to arrest Abyo. Within ninety days, the district court shall
transmit findings on that issue to this Court. The parties
shall have twenty days to submit simultaneous memoranda
addressing the district courts findings. We reject Abyos other
claims of error. We retain jurisdiction.
_______________________________
1 AS 28.35.030(a).
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966).
3 750 P.2d 834 (Alaska App. 1988).
4 Id. at 839 (citations omitted). See also Davis v. State,
766 P.2d 41, 43 (Alaska App. 1988).
5 783 P.2d 1173 (Alaska App. 1989).
6 Id. at 1180.
7 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
8 See AS 28.35.033(d) (establishing the presumption that a
person is intoxicated if the persons breath test result is above
the legal limit and the breath test was performed according to
methods approved by the Department of Public Safety); 13 AAC
63.100(c) (requiring that the accuracy of the calibration of a
breath test instrument be verified at intervals not to exceed
sixty days).
9 Crawford, 541 U.S. at 50-51, 124 S. Ct. at 1364.
10 Id., 541 U.S. at 53-54, 124 S. Ct. at 1365.
11 Id., 541 U.S. at 56, 124 S. Ct. at 1367. See also A.R.E.
803(6).
12 See Wester v. State, 528 P.2d 1179, 1183 (Alaska 1974)
(holding that ampule certification and breathalyzer calibration
need not be the subject of personal testimony and are clearly
admissible under the official records exception to the hearsay
rule); State v. Huggins, 659 P.2d 613, 615-17 (Alaska App. 1982)
(holding that a certificate of calibration is admissible under
the public records exception and its admission does not violate a
defendants Sixth Amendment right to confrontation); Byrne v.
State, 654 P.2d 795, 796-97 (Alaska App. 1982) (accord).
13 See, e.g., Bohsancurt v. Eisenberg, 129 P.3d 471, 475-80
(Ariz. Ct. App. 2006); Rackoff v. State, 621 S.E.2d 841, 845
(Ga. Ct. App. 2005); Rembusch v. State, 836 N.E.2d 979, 982 (Ind.
Ct. App. 2005); State v. Carter, 114 P.3d 1001, 1005-07 (Mont.
2005); State v. Godshalk, 885 A.2d 969, 973 (N.J. Super. Ct. Law
Div. 2005); State v. Dedman, 102 P.3d 628, 636 (N.M. 2004);
People v. Kanhai, 797 N.Y.S.2d 870, 875 (N.Y. Crim. Ct. 2005);
State v. Norman, 125 P.3d 15, 18-20 (Or. Ct. App. 2005);
Luginbyhl v. Commonwealth, 618 S.E.2d 347, 355 (Va. Ct. App.
2005). But see Shiver v. State, 900 So.2d 615, 618 (Fla. Dist.
Ct. App. 2005).
14 129 P.3d 471.
15 Id. at 477.
16 Id. at 479-80.
17 ___ U.S. ___ , 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
18 Id., 126 S. Ct. at 2273-74.
19 State v. Marshall, ___ P.3d ___, 2007 WL 1793875 at *5
(Hawaii App. 2007); Jarrell v. State, 852 N.E.2d 1022, 1025-26
(Ind. App. 2006); State v. Fischer, 726 N.W.2d 176, 182-83 (Neb.
2007) (all discussing Davis v. Washington in holding that
certifications were not testimonial).
20 See 13 AAC 63.100. See also AS 28.35.033(d).
21 13 AAC 63.100(c).
22 See Alaska R. Crim. P. 29.
23 Roussel v. State, 115 P.3d 581, 586 (Alaska App. 2005).
24 Id.
25 Anthony v. State, 521 P.2d 486, 492 (Alaska 1974). See
also Noble v. State, 552 P.2d 142, 145 (Alaska 1976) (holding
that inconsistencies in testimony do not destroy the probative
value of the testimony, but go instead to the credibility of the
witness and the weight to be given his testimony); Daniels v.
State, 767 P.2d 1163, 1167 (Alaska App. 1989) ([T]he credibility
of witnesses is exclusively a question for the jury and cannot
properly be considered on appeal in determining the sufficiency
of the evidence presented below.).
26 13 AAC 63.100(c). See also AS 28.35.033(d).
27 Id.
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