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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ALLEN G. LAU, | ) |
| ) Court of Appeals No. A-9715 | |
| Appellant, | ) Trial Court No. 3PA-05-1839 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2141 January 18, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Allen G. Lau appeals his convictions for felony driving
under the influence, felony breath-test refusal, driving while
his license was suspended, and sixth-degree misconduct involving
a controlled substance (possession of marijuana).1 Lau claims
that the superior court improperly allowed the State to amend the
indictment on the first day of trial. Lau further claims that
the trial judge committed error in connection with the States
playing of a video tape and an audio CD, by allowing the State to
turn off the sound at various places rather than physically
redacting the videotape and the CD. Finally, Lau claims that the
trial judge improperly allowed the State to introduce two
prescription pill bottles and some pills that the police found
when they searched Laus car following his arrest.
For the reasons explained here, we conclude that none
of the superior courts actions requires reversal of Laus
convictions.
Background facts
Palmer Police Officer Kelly Turney was on
patrol when he noticed a vehicle driving without
headlights. Turney ran a check on the license plate
and discovered that the vehicle registration had
expired, so he stopped the vehicle. Lau was the driver
of this vehicle.
During his contact with Lau, Officer Turney
discovered that Laus drivers license was suspended, and
he also saw signs that Lau might be under the
influence. Turney administered field sobriety tests
and a preliminary breath test to Lau, and he videotaped
the administration of these tests.
Based on the results of these tests, Turney
arrested Lau for driving under the influence, as well
as for driving with a suspended license.
Following this arrest, Turney searched Laus
person, while another officer searched Laus vehicle.
Turney found marijuana in one of Laus pockets, and the
other officer found a rifle and ammunition in the car.
The other officer also found a small assortment of
pills inside two prescription pill bottles.
Turney then transported Lau to the Palmer
police station for administration of a breath test.
When Turney asked Lau to submit to the breath test, Lau
refused.
Based on these events, and based on Laus
prior criminal history, Lau was indicted for felony
driving under the influence and felony breath-test
refusal. Lau was also charged with three misdemeanors:
driving while his license was suspended, fourth-degree
weapons misconduct (possession of a firearm while
intoxicated), and sixth-degree controlled substance
misconduct (possession of marijuana).
Laus jury was unable to reach a verdict on
the weapons charge, but they found Lau guilty of all
the other charges.
The amendment of the indictment
On the day that Laus trial began, the State
sought permission to amend the count of the indictment
that charged Lau with felony DUI. As originally
worded, this count alleged that Lau
drove or operated a motor vehicle while under
the influence of an alcoholic beverage,
inhalant, or controlled substance when there
was 0.08% or more by weight of alcohol in his
blood or when there was 0.08 grams or more
per 210 liters of his breath[.]
This wording represents an amalgam
of the two discrete ways in which a person
can violate Alaskas DUI statute, AS
28.35.030(a). Subsection (1) of this statute
forbids a person from operating a motor
vehicle while under the influence of an
alcoholic beverage, intoxicating liquor,
inhalant, or any controlled substance, singly
or in combination. Subsection (2) of the
statute forbids a person from operating a
motor vehicle if ... there is 0.08 percent or
more by weight of alcohol in the persons
blood or 80 milligrams or more of alcohol per
100 milliliters of blood, or if there is 0.08
grams or more of alcohol per 210 liters of
the persons breath.
As already explained, Lau refused
to take the breath test. Thus, the State had
no admissible evidence of Laus blood or
breath alcohol level. Instead, the State
intended to rely on the theory specified in
subsection (1) of the statute that Lau
operated his car while under the influence.
Consequently, the prosecutor asked the
superior court for permission to amend the
wording of this count by striking all of the
language after the words controlled
substance that is, the language that
referred to the theory that Lau had 0.08% or
more by weight of alcohol in his blood or ...
0.08 grams or more per 210 liters of his
breath.
Laus attorney objected to the
amendment, arguing that the grand jury must
have intended to indict Lau solely on a blood
alcohol level theory. But when the trial
judge, Superior Court Judge Eric Smith, asked
the defense attorney to specify exactly what
prejudice Lau would suffer if the proposed
amendment was allowed, the defense attorney
failed to specify any prejudice. Instead,
the defense attorney merely asserted that it
would be procedural error for the judge to
allow the amendment.
That argument was meritless.
Alaska Criminal Rule 7(e) expressly allows
the superior court to amend an indictment at
any time before the jury reaches its verdict,
so long as the amended indictment does not
charge an additional or different offense,
and so long as the defendant is not
prejudiced by the amendment.
Judge Smith concluded that, because
Lau had refused to submit to the breath
test, the only way Mr. Lau could have been
indicted was [under] an impairment theory.
Therefore, the judge concluded, the States
proposed amendment did not raise an
additional or different offense. Moreover,
based on his review of the grand jury record,
and based on the defense attorneys failure to
specify a way in which the amendment would
hamper the presentation of Laus defense,
Judge Smith concluded that the amendment
would not prejudice Laus substantial rights.
Judge Smith therefore allowed the amendment
of the indictment.
On appeal, Lau still fails to
identify any way in which the amendment
prejudiced his defense. Instead, he argues
that Judge Smith violated his right to grand
jury indictment.
Lau argues that Judge Smith ignored
the grand jurys factual basis for indicting
Lau for felony DUI, and that Judge Smith
improperly substituted his own personal
conclusion regarding the factual basis of
that charge.
Laus argument is unconvincing. The
record shows that the amendment to the DUI
count of the indictment was proper because it
brought that count into conformity with the
evidence presented to the grand jury.
Admittedly, the record is scanty
for Lau has not provided us with a transcript
of the grand jury proceedings. However,
during Laus trial, the parties discussed the
evidence heard by the grand jury, and that
discussion supports Judge Smiths decision to
allow the amendment of the indictment.
As explained above, the original
wording of the DUI count of the indictment
referred to both theories of DUI: the under
the influence theory and the blood alcohol
level theory. But the grand jury heard no
evidence of Laus blood alcohol level.
Indeed, the grand jurors heard evidence that
Lau had refused to take the breath test and
they separately indicted him for this
additional offense.
At one point in the proceedings, a
grand juror apparently asked if any breath
test had been conducted to determine Laus
level of intoxication. And the grand jury
transcript apparently shows that one of the
police witnesses testified that a preliminary
breath test (i.e., a test conducted on a
portable, hand-held device) had been
administered to Lau in connection with the
field sobriety tests. But the grand jury
apparently heard no testimony concerning the
result of this preliminary breath test or
any other alcohol test.
In other words, based on the record
before us, the under the influence theory of
DUI was the only theory of prosecution
supported by the evidence presented to the
grand jury. Indeed, given this record, Lau
himself would surely have been entitled to
ask Judge Smith to strike the language of the
indictment that referred to a blood alcohol
level theory of prosecution.
To the extent that Lau continues to
argue that Judge Smith misinterpreted the
grand jury testimony, or that the judge
misconceived the grand jurys factual basis
for deciding to indict Lau for felony DUI, we
deem Laus arguments to be waived because he
did not provide this Court with a transcript
of the grand jury proceedings.
In short, we uphold Judge Smiths
decision to allow the State to amend this
count of the indictment.
The playing of the videotape and the audio CD
At trial, Laus attorney anticipated that the
State would play the videotape (or other audio
recording) of Laus field sobriety tests. This created
a problem for the defense because, immediately
following the administration of these tests, Officer
Turney told Lau that he was being arrested for felony
DUI thus implying that Lau had a prior record of
convictions for DUI and/or breath-test refusal. In
addition, the State had a videotape of the later
encounter at the police station when Lau refused to
take the breath test. Upon his refusal, Lau was
informed that he would be charged with felony breath-
test refusal again implying that Lau had a prior
record of convictions for DUI and/or breath-test
refusal.
The defense attorney asked for a protective
order that would keep these references from the jury.
Judge Smith granted this request; he ordered redaction
of the statements where Lau was informed that his
offenses were felonies. However, for technical
reasons, it apparently was not feasible to redact the
videotape that the State was going to use at trial.
Because of this, Judge Smith over Laus objection
allowed the State to simply turn off the sound at the
point in the recording where Turney told Lau that he
was under arrest for felony DUI.
Later in the trial, the State played an audio
recording of Laus refusal to submit to a breath test.
(The audio portion of this encounter had been
transferred to a CD.) Before playing the CD, the
prosecutor acknowledged that the part of this audio
file where Lau was informed that he would be charged
with felony breath-test refusal had not been redacted
from the recording. However, the prosecutor offered to
turn off the sound at that point in the recording.
Judge Smith again, over Laus objection allowed the
prosecutor to play the CD using this procedure.
On appeal, Lau asserts that turning the sound
off, as opposed to actually redacting the two
recordings, was inappropriate under Evidence Rule 403.
He argues that the jury might have speculated about
what the officers said to Lau during the silent
portions of the two recordings, and that this potential
speculation might have prejudiced the jurys
consideration of the case.
But Judge Smith (at Laus request) expressly
instructed the jury not to speculate about what the
officers might have said during these portions of the
recordings. Immediately after the videotape was
played, and again after the CD was played, Judge Smith
instructed the jurors that he had concluded that what
was said on these silent portions of the recordings was
inadmissible and that the jurors were not to speculate
about the contents of these portions. Indeed, Judge
Smiths cautionary instructions employed language that
Lau himself proposed.
Lau nevertheless argues that the cautionary
instructions must have been ineffective because, in
both instances where the prosecutor turned the sound
off, the jurors were alerted that the recordings
contained information that they were not allowed to
hear thus inevitably prompting the jurors to speculate
about the contents of these portions. There are two
answers to this contention.
First, as we just explained, Judge Smith gave
the jurors explicit instructions not to speculate about
the content of the inaudible segments. The law
presumes that jurors will follow this kind of
cautionary instruction,2 and the record of Laus trial
contains no contrary indication i.e., no indication
that the jurors failed to abide by Judge Smiths
admonition.
Second, if Judge Smith had sustained Laus
objection and had insisted on physical redaction of the
recordings, this redaction especially, the redaction
of the videotape would likewise have alerted the
jurors that something was missing. Thus, if Judge
Smith had adhered to the procedure that Lau now
advocates, this procedure would have raised exactly the
same concerns that Lau advances in this appeal.
For these reasons, we uphold Judge Smiths
decision on this matter.
Evidence of the pills and pill bottles found in Laus
vehicle
At Laus trial, Judge Smith allowed the State
to introduce the two pill bottles (and the various
pills inside these bottles) that the police found in
Laus car after his arrest. A police officer later
testified that some of the pills found in these
containers were Naproxen (which, the officer explained,
was basically Aleve), and that another of the pills was
[a] morphine tablet of some form. In addition, the
State presented testimony that one of the pill bottles
carried a warning label which stated that a person
taking that medication could become drowsy.
Lau objected that the physical evidence
(i.e., the two pill bottles and the pills) was
irrelevant, but Judge Smith overruled this objection,
apparently concluding that this evidence was
potentially relevant on the question of whether Lau
might have been under the combined influence of alcohol
and controlled substances. Lau offered no objection to
the police officers testimony identifying one of the
pills as morphine.
On appeal, Lau renews his objection that this
evidence lacked relevance. This objection has more
force now that Laus trial is over because, as it turns
out, when the prosecutor argued Laus case to the jury,
she did not rely on the theory that Lau was under the
combined influence of alcohol and controlled
substances. Rather, the prosecutor only argued that
Lau was under the influence of alcohol. (The
prosecutor noted that Lau was charged with driving
under the influence of intoxicating liquor or
controlled substances, but in his argument to the jury
the prosecutor never suggested that there was any
connection between Laus impairment and the presence of
the pills in Laus car.)
But the situation was different when, during
the trial, the State offered this evidence and Judge
Smith ruled on its admissibility. As we have noted,
the DUI count of the indictment charged Lau with
operating a motor vehicle while under the influence of
an alcoholic beverage, inhalant, or controlled
substance. And when this evidentiary issue was
presented to Judge Smith, the prosecutor argued that
evidence of the pills was relevant because
Prosecutor: ... there is clearly
evidence [that Lau] was under the influence
of something. ... And the question is, Was
he under the influence of alcohol or drugs?
These [pills] were found in his car.
In other words, given the factual and
procedural context in which Judge Smith made
his ruling, the judge could reasonably
conclude that the presence of the pills in
Laus vehicle was relevant to the charge of
DUI.
If Lau believed that the States
litigation strategy later diminished or
eliminated the relevance of this evidence, he
was obliged to ask Judge Smith to reconsider
this issue, and to request some form of
relief (either a cautionary instruction or,
perhaps, a mistrial).
Moreover, given the fact that the
prosecutor relied on a theory of alcohol
intoxication, and given the evidence
supporting that theory, we conclude that the
admission of this contested evidence was
unlikely to have affected the verdict. Thus,
any error would be harmless.3
Conclusion
For the reasons explained here, we conclude
that none of Laus claims of error merits reversal
of his convictions. Accordingly, the judgement of
the superior court is AFFIRMED.
_______________________________
1 AS 28.35.030(n), AS 28.35.032(p), AS 28.15.291(a)(1), and
AS 11.71.060(a)(1), respectively.
2 See Dailey v. State, 65 P.3d 891, 897 (Alaska App. 2003);
State v. McDonald, 872 P.2d 627, 654-55 (Alaska App. 1994);
Whiteaker v. State, 808 P.2d 270, 277 (Alaska App. 1991).
3See Love v. State, 457 P.2d 622, 629-631 (Alaska 1969).
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