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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
| CHRISTOPHER H. HEWITT, | ) |
| ) Court of Appeals No. A-9717 | |
| Appellant, | ) Trial Court No. 3PA-05-3533 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2177 July 25, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: Marcia E. Holland, contract
attorney, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Douglas H. Kossler, 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.
Christopher H. Hewitt appeals his convictions for
felony driving under the influence and driving while his license
was revoked.1 He contends that the evidence presented at his
trial was insufficient to support the jurys verdicts; in
particular, Hewitt argues that the evidence fails to establish
that he (as opposed to someone else) was operating the vehicle.
In addition, Hewitt contends that the trial judge should have
dismissed the entire jury venire (i.e., the group of prospective
jurors who had assembled in court for jury selection in Hewitts
case) after the judge, by mistake, started to read the portion of
the indictment which alleged that Hewitt had prior convictions
for DUI.
For the reasons explained here, we conclude that the
evidence was sufficient to support the jurys verdicts, and we
further conclude that the trial judge did not abuse his
discretion when he decided to cure his mistake by simply telling
the jurors that he had read the wrong thing.
Hewitts claim that the evidence is insufficient to
support his convictions
When a verdict is challenged as lacking a
sufficient basis in the evidence, the question is
whether the evidence and the inferences to be drawn
from it, viewed in the light most favorable to
upholding the verdict, are sufficient to support a
conclusion by fair-minded jurors that the State had met
its burden of proof.2
Viewed in the light most favorable to the
jurys verdicts, the evidence at Hewitts trial showed
the following:
Around 4:00 a.m. on December 20, 2005,
Officer Cory Rupe was stopped at a traffic light.
There was a car waiting in front of him, and that car
had a single occupant the driver.
When the light turned green, Rupe followed
this car. He saw it turn into the parking lot of a
business, Alaska Automotive, and stop in the middle of
the lot. Given the time of night, Rupe thought that
this behavior was strange, so he turned his patrol car
around and drove back to the Alaska Automotive lot. As
Rupe approached the parking lot, he saw the car begin
moving again. The car pulled up to a door in the
Alaska Automotive garage. A man (Hewitt) got out of
the car from the drivers seat and then walked to the
side of the garage.
Rupe got out of his patrol car and contacted
this man. Rupe asked the man for identification, and
to explain what he was doing. Hewitt produced an
Alaska identification card (not a drivers license), and
he asserted that he was at the automotive business for
work reasons. When Rupe checked Hewitts name in the
police computer, he learned that Hewitts license was
revoked.
After Rupe learned that Hewitts license was
revoked, he confronted Hewitt with the fact that he was
driving. In response, Hewitt claimed that he had not
been driving that an unnamed buddy had been driving
the car. Rupe (who had been observing the car for
several minutes by that time) replied that there had
been no one else in the car. At that point, Hewitt
told Rupe, All right, man. You got me.
This evidence, if believed, was a sufficient
basis for a reasonable person to conclude that Hewitt
was driving the car. Accordingly, the evidence
presented at Hewitts trial is sufficient to support the
jurys verdicts.
Hewitts claim that a new jury venire should have been
summoned after the trial judge mistakenly began to read
the allegation in the indictment that Hewitt had prior
convictions for DUI
Hewitt was indicted for felony DUI that is,
DUI committed by a person who has two or more previous
convictions for DUI or breath-test refusal within the
preceding ten years. Hewitt stipulated that he had the
requisite two prior convictions, and the parties agreed
that the jury would not be told about these prior
convictions or asked to decide the prior convictions
element of the crime. Instead, the jury would simply
decide whether Hewitt was guilty of driving under the
influence on the occasion in question.
But when the prospective jurors assembled for
jury selection in Hewitts case, and Superior Court
Judge Eric Smith read the indictment to them, the judge
slipped up and began to read the language in the
indictment that referred to the allegation that Hewitt
had previous convictions. The language in question is
italicized:
The Court: [The indictment] reads:
Count I that on or about the 20th day of
December, 2005, at or near Wasilla,
Christopher H. Hewitt drove or operated a
motor vehicle while under the influence of an
alcoholic beverage, inhalant, or controlled
substance [or] when there was .08 percent or
more by weight of alcohol in his blood or .8
[pause: the judge corrects himself] .08 or
more grams of alcohol per 210 liters of his
breath; that he had previously been con Im
sorry, I started to read the wrong thing.
Judge Smith then read Count II of the
indictment to the jury (the charge of driving
with a revoked license).
Immediately after he finished
reading the two charges against Hewitt, Judge
Smith cautioned the prospective jurors that
the indictment is not evidence against the
defendant, that a defendant is presumed to be
innocent, and that it is the States task to
prove the charges beyond a reasonable doubt
by presenting sufficient evidence.
A few moments later, Hewitts
attorney asked for a bench conference. At
that conference, the defense attorney pointed
out that Judge Smith had started to read the
clause of the indictment that referred to the
allegation that Hewitt had prior convictions.
The defense attorney argued that the jury
pool was now tainted and that an entirely new
jury venire would have to be summoned. Judge
Smith declined to do this; he noted that he
had caught [himself] before anything else was
said.
On appeal, Hewitt renews the
argument that the jury pool should have been
dismissed.
The question of whether a
particular mistake or occurrence requires a
mistrial is entrusted to the trial judges
discretion, and an appellate court will
reverse the trial judges decision only if the
judge has abused that discretion.3 Under
this standard of review, the trial judges
decision is to be reversed only when, after
reviewing the whole record, [the appellate
court is] left with a definite and firm
conviction that the trial court erred in its
ruling.4
As the State points out in its
brief, technically speaking, Hewitts attorney
was not asking for a mistrial because
jeopardy had not yet attached. However, the
issue presented here (whether the jury venire
should have been dismissed and a replacement
venire summoned to court) is so closely
related to mistrial requests that we conclude
it is appropriate to apply the same abuse of
discretion standard of review.
Perhaps more importantly, the abuse
of discretion standard of review was designed
to govern situations like the one presented
here situations where (1) the law does not
specify a particular proper response to the
situation, but instead only provides the
factors or criteria that a judge should
consider, and where (2) reasonable judges
applying the correct criteria might reach
differing conclusions about how to deal with
the problem. In such situations, an
appellate court should uphold the trial
judges decision unless, under the
circumstances, the judges decision falls
outside the range of reasonable responses to
the problem.5
Here, when Judge Smith mistakenly
started to read the clause of the indictment
that referred to the allegation that Hewitt
had prior convictions, he immediately caught
himself. He told the assembled jurors that
he had read the wrong thing, and he also
informed the jurors that the assertions
contained in an indictment are not evidence
and do not dispel the defendants presumption
of innocence.
We also note that, after the jury
was selected in Hewitts case, the jurors were
repeatedly told that it was their duty to
decide Hewitts case solely on the evidence
presented in court (in light of the judges
instructions on the law). And at the end of
the case, just before the parties presented
their final arguments, Judge Smith again
instructed the jurors that the indictment was
not evidence, and that the jury [was not to]
presuppose any facts concerning the case or
the defendant solely because an indictment
has been filed.
Thus, (1) Judge Smiths initial
reference to the prior convictions clause of
the indictment was never completed; (2) the
judge immediately announced to the jury that
he had read the wrong thing; and (3) the
jurors were repeatedly told that, whatever
might be asserted in the indictment, the
indictment was not evidence and, under the
law, their decision had to be based solely on
the evidence. Given these circumstances, we
conclude that Judge Smith acted within his
proper discretion when he denied the defense
request to dismiss the jury venire and summon
a new one.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 28.35.030(n) and AS 28.15.291(a), respectively.
2 Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Eide v.
State, 168 P.3d 499, 500-01 (Alaska App. 2007).
3Tritt v. State, 173 P.3d 1017, 1019 (Alaska App. 2008).
4Id.
5Nelson v. State, 68 P.3d 402, 406 (Alaska App. 2003).
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