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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
NICHOLAS MAXIE,
Court of Appeals No. A-13728
Appellant, Trial Court No. 4BE- 19-00197 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2747 - May 19, 2023
Appeal from the Superior Court, Fourth Judicial District,
Bethel, William T. Montgomery, Judge.
Appearances: David T. McGee, Attorney at Law, under
contract with the Public Defender Agency, and Samantha
Cherot, Public Defender, Anchorage, for the Appellant. Eric A.
Ringsmuth, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Treg R. Taylor, Attorney General,
Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
Judge HARBISON.
Nicholas Maxie was convicted, following a jury trial, of third-degree
assault, leaving the scene of an accident, and first-degree failure to stop at the direction
of a police officer for repeatedly ramming a four-wheeler into an occupied taxicab on a
winter evening in Bethel, and then driving away from police as they tried to apprehend
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1
him. Maxie appeals, contending that the trial court's instruction on eyewitness
identification did not include all of the information that was necessary for the jury to
evaluate the testimony provided by several eyewitnesses. According to Maxie, the jury
instruction should have described recent scientific research explaining the limitations
on the accuracy of eyewitness identifications, particularly where the fallibility of such
identifications may be counterintuitive. Maxie maintains that the instructional error
appreciably affected the verdicts, requiring reversal of his convictions.
For the reasons explained below, we hold that the verdict was not
appreciably affected by the omission of the additional information from the court's
instruction. We accordingly affirm Maxie's convictions.
Background facts and proceedings
At around 9:00 p.m. on a February evening in 2019, Jerilyn Ulroan was
riding in a taxicab in Bethel. When the taxicab stopped to pick up another passenger, a
green Honda four-wheeler with a windshield drove up to the driver's side of the cab.
According to Ulroan, the driver of the four-wheeler - who was later identified as
Maxie - seemed drunk and appeared to have blood on his chin. The driver repeatedly
rammed his four-wheeler into the cab, causing Ulroan to think that the taxi might
explode.
Two high school students, Robert Charlie and Eugene Alexie, witnessed
the event. At trial, Charlie testified that he heard a bumping noise and observed a green
four-wheeler with a windshield ramming a taxicab. Charlie told the jury that the driver
of the four-wheeler was wearing a big coat. Alexie also described seeing a green four-
wheeler, driven by a man wearing a big coat, bump a taxicab a total of six times. Alexie,
Charlie, and Ulroan all testified that the four-wheeler drove off before police could
contact the driver.
1
AS 11.41.220(a)(1)(A), AS 28.35.050(b), and AS 28.35.182(a)(1), respectively.
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Bethel Police Officer Eric Pavil responded to the scene. As Pavil arrived,
a green four-wheeler with a windshield passed by, so he followed it, attempting to
contact the drive r. According to his testimony, Pavil activated the lights and sirens of
his patrol vehicle , but the four -wheeler continued driving, traveling at a high rate of
speed, going into the oncoming traffic lane, and swerving on the icy roads . Early in the
pursuit, Pavil, who was familiar with Maxie from previous interactions with him,
radioed that he thought the four -wheeler driver "look[ed] like Nicholas Maxie from the
back." After a few minutes, Pavil lost sight of the four -wheeler. Then, a short time later,
he saw it coming towards him on the road, and he gave chase once again.
Pavil later testified that, at one point, he got close enough to the driver to
identify him as Maxie. Pavil estimated that he was not more than five feet away from
Maxie at that time, an d he stated that they were both underneath a lighted lamp post,
traveling five to ten miles per hour. Pavil rolled down his window to get Maxie to stop,
but Maxie kept driving.
A second police officer, William Charles, who also knew Maxie from
previous interactions, participated in law enforcement efforts to apprehend the driver of
the four-wheeler. Charles and Pavil followed the four-wheeler, attempting to get the
driver to stop, but they lost sight of the four -wheeler multiple times. Approximately one
hour into the pursuit, when the officers had lost sight of the four-wheeler, Charles
noticed a green four -wheeler parked on the tundra with a person seated on it. According
to Charles, he approached the four -wheeler, and when he got close (approximately three
feet away) , he could see that the person on it was Maxie, but Maxie then drove away .
Charles later testified that he heard Pavil earlier in the pursuit radioing that he thought
the driver was Maxie, but Charles asserted that his identification was indepen dent of
Pavil's suggestion.
Each time the officers resumed their pursuit of the four-wheeler, they
identified the four-wheeler as the same one that rammed the cab because it matched the
description in the report: a green four -wheeler with a windshield . Pavil corroborated the
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description given by Alexie and Charlie, that the driver was wearing a big coat. The
officers also testified they were able to identify Maxie because they were acquainted
with him from previous contacts . Both officers estimated that pri or to this incident, they
had interacted with Maxie one to two times each month, and Pavil stated that he spoke
to Maxie in the grocery store just days before the incident.
The police were unable to stop the green four -wheeler or contact the driver
on the night of the incident , and they were similarly unable to locate the green four -
wheeler after the incident. Maxie's face was not visibly injured when police arrested
him two days later , and neither officer noticed blood on his face during the chase.
One of the other trial witnesses , Sammie Waska, testified that he knew
Maxie because Maxie used to date Waska's daughter. Waska stated that he observed
Maxie with a green four -wheeler with a windshield on the same evening of the taxi cab-
ramming incident . Maxie knocked on Waska's door and appeared to be intoxicated,
which prompted Waska to call the police. Officer Charles responded to Waska's call
but did not locate Maxie at Waska's residence.
Maxie's case proceeded to a jury trial. At trial , Maxie's defense was that
the State could not meet its burden of proving that he was the driver of the four -wheeler.
Because identity was the only contested issue at trial, Maxie requested a
jury instruction on eyewitness identification, comporting with the Alask a Supreme
2
Court's decision in Young v. State , and he submitted a proposed jury instruction . The
State also submitted a proposed instruction. The trial court agreed to give an instruction
on eyewitness identification, but after reviewing the propo sals submitted by each party,
the court crafted a hybrid instruction, using parts from each of the two proposals .
2 Young v. State, 374 P.3d 395 (Alaska 2016).
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Maxie was convicted of third-degree assault, leaving the scene of an
accident, and first-degree failure to stop at the direction of a police officer.3
This appeal
followed.
Young v. State and the disputed jury instruction in this case
In 2016, the Alaska Supreme Court decided Young v. State, which
4
changed the law in Alaska governing eyewitness identifications. Prior to Young,
Alaska courts had followed the two-part test established by the United States Supreme
Court in Manson v. Brathwaite to determine the admissibility of eyewitness
5
identifications.
In Young, the supreme court held that the Brathwaite test provided
6
insufficient protection against the risks of eyewitness misidentification. The supreme
court explained that scientific research has identified several factors, known as "system
variables" and "estimator variables," that are relevant to evaluating the risk of a
7
misidentification. System variables "are manipulable and can be influenced by the
criminal justice system (such as the instructions given a witness during a lineup)."8
Estimator variables "cannot be influenced by the criminal justice system because they
are related to environmental conditions and personal characteristics (such as the stress
3 The jury also found Maxie guilty of reckless driving, AS 28.35.400, but the trial
court merged this guilty verdict into the conviction for first-degree failure to stop at the
direction of a police officer.
4
Young, 374 P.3d 395.
5
Id. at 405-06 (citing Manson v. Brathwaite , 432 U.S. 98 (1977)).
6 Id. at 412-13.
7 Id. at 417.
8 Id.
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9
of the moment). " In evaluating these variables, the Young court crafted a new test for
determining wh ether eyewitness identifications should be admitted into evidence. We
10
recently described that test in detail in Brigman v. State .
The issue in this case does not concern whether the eyewitness
identifications should have been admitted into evidence. Rather, it concerns the
instruction the court provided to the jury about how to evaluate the reliability and
accuracy of the eyewitness identifications that were already admitted into evidence.
This issue was also addressed in Young. The court recognized that e ven
when a judge decides to admit an eyewitness identification, the judge should "provide
11
the jury with an instruction appropriate to the context of the case." The court
accordingly held that if eyewitness identification is a significant issue in a case, "the
trial court should issue an appropriate jury instruction that sets out the relevant factors
12
affecting reliability." The court asked the Alaska Criminal Pattern Jury Instructions
Committee to draft a model instruction appropriate for use in future cases that was
13
"consistent with the principles" announced in Young.
In making this request, the court emphasized that the reliability of
eyewitness identifications is outside the jury's common knowledge and often
contradicts commonsense understandings:
While it is the province of the jury to determine credibility
of witnesses, the reliability of eyewitness identifications
frequently is not a matter within the knowledge of an average
juror. Many of the factors that affect reliability are
9 Id.
10 Brigman v. State, 513 P.3d 1072 (Alaska App. 2022).
11
Young, 374 P.3d at 427.
12
Id . at 428.
13
Id .
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counterintuitive and, therefore, not coterminous with
common sense. Thus, while science has firmly established
the inherent unreliability of human perception and memory,
this reality is outside the jury 's common knowledge, and
[14]
often contradicts jurors commonsense understandings.
Maxie's trial was held in June 2019. At that time, the criminal pattern jury
instructions committee had not yet issued a model instruction. Maxie therefore drafted
his own instruction based on Young and proposed it to the court.
Maxie's instruction emphasized that eyewitness identifications are often
unreliable and explained that scientific research has revealed several defects in human
memory. For example, Maxie's proposed instruction stated that "[e]yewitness
identification evidence must be scrutin ized carefully," that "[h]uman memory is not
foolproof," and that "[eyewitness] identifications, even if made in good faith, may be
mistaken."
Maxie's proposed instruction also described a series of factors that,
according to scientific research, can affe ct eyewitness identifications. For example, the
proposed instruction stated that "a brief or fleeting contact is less likely to produce an
accurate identification," that the "greater the distance between an eyewitness and a
perpetrator, the higher the ris k of a mistaken identific ation," and that "high levels of
stress can reduce an eyewitness's ability to recall and make an accurate identification."
The State proposed its own much shorter instruction on eyewitness
identification. Like Maxie's proposed instruction, the State's instruction emphasized
that "evidence of an eyewitness's identification should be evaluated with care," and it
listed a series of factors for jurors to consider in evaluating whether the witness made
an accurate and reliable identificat ion.
But unlike Maxie's proposed instruction, the State's instruction did not
reference scientific research on eyewitness identifications, and it did not explain that
14
Id. (citations and internal quotation marks omitted).
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eyewitness identifications are often unreliable. It also did not explain how the listed
factors affected the accuracy and reliability of identifications. It stated, for example,
that one factor to be considered was "How long was the witness able to see the
perpetrator?" but it did not explain that a brief or fleeting contact is less likely to produce
an accurate identification.
The trial court expressed discomfort with Maxie's proposed instruction
because it described the results of scientific research, which the court viewed as
equivalent to presenting scientific evidence rather than explainin g the law. The court
acknowledged that the supreme court had addressed and endorsed much of that
scientific evidence in Young, but the court explained that "none of that [scientific
evidence] has been presented in this specific case." The court ruled that given the lack
of scientific evidence presented in Maxie's case, it did not "feel like [it had] the ability
to go that far" - i.e., to instruct the jury about the results of scientific research.
The court accordingly declined to give the more expansive instruction
requested by Maxie . The court instead crafted its own instruction, which it described as
a "hybrid" of Maxie's proposed instruction and the State's. The hybrid instruction was
somewhat more detailed than the State's, but it did not include any reference to
scientific research, did not suggest that eyewitness identifications are often mistaken,
and did not explain how the listed factors affected the accuracy of eyewitness
identifications.
In early 2020, after Maxie's trial, the Alaska Criminal Pattern Jury
Instructions Committee approved a pattern jury instruction for use in cases involving
eyewitness identification. Much like Maxie's proposed instruction, and unlike the
instruction given by the trial court in this case, the pattern instruction caut ioned jurors
that eyewitness identifications can be unreliable, explained that this view was supported
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by scientific research, and described in detail how different factors affected the
reliability and accuracy of eyewitness identifications.15
In a use note attached to the pattern instruction, the committee explained
that the "instruction is unique among jury instructions, and the committee struggled
with the Young court's direction to characterize the state of scientific knowledge that
16
usually comes to juri es in the form of expert testimony." The committee explained
that "[t]he state of scientific knowledge evolves over time, and eyewitness instructions
17
will need to be revised to remain consistent with scientific knowledge."
Why we affirm Maxie's convictions
On appeal, Maxie argues that the trial court erred when it refused to give
his proposed instruction. Maxie argues that his instruction closely resembles the pattern
instruction, and that the pattern instruction more accurately reflects the supreme court's
intent in Young.
When the trial court declined to give Maxie's proposed instruction, the
court explained that it would not give an instruction to the jury on scientific research
that had not been presented in the context of Maxie's specific case, particularly when
the criminal pattern jury instructions committee had not yet promulgated an appropriate
instruction. We understand the court's reluctance to instruct the jury about scientific
principles where, as here, the defendant did not present expert testimony, scholarly
articles, or treatises to support the proposed instruction. But the Young court directed
trial courts, in cases where eyewitness identification is a significant issue, to "issue an
appropriate jury instruction that sets out the relevant factors affecting [eyewitness]
15
Alaska Criminal Pattern Jury Instruction 1.24 (2020).
16
Use Note for Alaska Criminal Pattern Jury Instruction 1.24 (2020).
17
Id.
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18
reliability." In issuing this directive, the Young court further explained that "while
science has firmly established the inherent unreliability of human perception and
memory, this reality is outside the jury's common knowledge, and often contradicts
19
jurors commonsense understandings."
We accordingly conclude that the supreme court intended that trial courts
would issue instructions informing the jurors that scientific research has suggested that
eyewitness identifications can be unreliable. Indeed, because the unreliability of
eyewitness identifications is "not a matter within the knowledge of an average juror "
and often contradicts common sense, a prohibition on references to scientific research
would make it extremely difficult to comply fully with the spirit of Young in cases
where that scientific research is relevant.
The criminal pattern jury instructions committee evidently also interpreted
Young in this way. The pattern instruction refers to scientific research, although the use
note acknowledges that "the committee struggled with the Young court's direction to
characterize the state of scientific knowledge that usually comes to juries in the form of
20
expert testimony."
Our interpretation of Young is further supported by the Young court's
21
reliance on the New Jersey Supreme Court's opinion in State v. Henderson . As our
supreme court noted, its own analysis in Young "closely follows the framework set out
22
by the Supreme Court of New Jersey in State v. Henderson ." After Henderson (and
four years before Young was decided), the New Jersey Supreme Court issued a pattern
18
Young, 374 P.3d at 428.
19
Id. (citations and internal quotation marks omitted).
20
Use Note for Alaska Criminal Pattern Jury Instruction 1.24 (2020).
21
State v. Henderson, 27 A.3d 872 (N.J. 2011).
22
Young, 374 P.3d at 427.
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instruction designed to comport with Henderson . Much like Alaska's pattern
instruction, the New Jersey model instruction informs jurors that research has revealed
that eyewitness identifications can be mistaken and instructs the jury about what factors
23
to consider in evaluating the reliability and accuracy of eyewitness identifications.
For all these reasons, we conclude the trial court erred when it denied
Maxie's proposed instruction on the grounds that it lacked the authority to instruct the
jury on matters of scientific research that had not been introduced into evidence in
Maxie's case.
We ultimately conclude, however, that the court's legal error was not
prejudicial. Weighing most heavily in the balance is that this case does not involve a
stranger identification. As several courts have recognized, "identification of a person
who is well-known to the eyewitness generally does not give rise to the same risk of
misidentification as does the identification of a person who is not well -known to the
24
eye-witness." Here, the officers who identified Maxie were not strangers to him, and
thus the risk of misidentification was significantly lower.
23
New Jersey Model Jury Charges (Criminal), Identification (2012).
24
State v. Guilbert, 49 A.3d 705, 736 (Conn. 2012); see Haliym v. Mitchell , 492 F.3d
("The primary concern expressed in cases discussing the
680, 706 (6th Cir. 2007)
problems with eyewitness identification relates to a witness observing and subsequently
identifying a stranger. Witnesses are very likely to recognize under any circumstance the
people in their lives with whom they are most familiar, and any prior acquaintance with
another person substantially increases the likelihood of an accurate identification."
(citation and internal quotation marks omitted)); Rosario v. Ercole, 582 F. Supp. 2d 541,
581 (S.D.N.Y. 2008) ("Eyewitness identification by a stranger is even more susceptible
to error than identification by someone who is otherwise familiar with an alleged
perpetrator."); Bonnell v. Mitchel, 301 F. Supp. 2d 698, 761 (N.D. Ohio 2004) ("The
danger in eyewitness testimony is most pronounced when strangers observe the unexpected
commission of a crime and sometime later try to describe people and events involved in
the crime. In this case, while not initially admitting it, both [eyewitnesses] were acquainted
with [the defendant] and recognized him as the murderer. Their testimony was therefore
not subject to the unreliability often present when strangers attempt to describe and identify
persons . . . involved in a crime." (citation omitted)).
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Additionally, although the instruction given by the court did not reference
scientific research, the instruction still told the jury that eyewitness identifications
should not be taken at face value and should be examined critically. In particular, the
instruction warned the jury that "[e]yewitness identification should be examined with
care," and cautioned jurors to "consider the observations and perceptions on which the
identification was based, th e witness's ability to make those observations and perceive
events, and the circumstances under which the identification was made."
Furthermore, the court's instruction listed all but one of the estimator
25
variables set out by the supreme court's decision in Young. Although the court's
instruction did not discuss these variables as thoroughly as the current pattern jury
instruction, many of these variables did not apply to the facts of this case (e.g., the
presence of a weapon; whether the suspect is wea ring a disguise; or the time between
the witness's observation and their identification of the suspect). Thus, further
discussion of these variables was not particularly relevant or material in the context of
this case.
Ultimately, the factors that were most relevant to this case - the duration
of the observation and the environmental conditions attendant to it - were those
commonly understood by jurors and accordingly required little additional explanation.
Jurors would understand , based on their own experiences and common sense, that if the
suspect was viewed in poor lighting conditions, from far away, for only a brief duration,
or when the person's face was obstructed, the identification would be less reliable.
Furthermore, the d efense attorney relied on these factors in his closing argument, when
he pointed out that the officers claimed to have identified Maxie as the driver of the
25
"Memory decay/retention interval" was the only estimator variable not mentioned.
But the concept that the accuracy of memory fades over time is consistent with jurors'
everyday knowledge and common sense.
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four-wheeler even though the driver had covered his face when Pavil drove by him, and
even though the officers' observations were made after dark, in poor lighting, and only
for a short duration of time.
We therefore conclude that, even if the trial court had given Maxie's
proposed instruction, the additional information in Maxie's instruction would not have
26
appreciably affected the verdict under the facts of this case.
Conclusion
The judgment of the superior court is AFFIRMED.
26
Young, 374 P.3d at 429-30 & n.232.
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