Frey v. State, 010621 AKCA, A-12758

Docket NºA-12758
Opinion JudgeHARBISON Judge.
Party NameLARRY MURPHY FREY, Appellant, v. STATE OF ALASKA, Appellee.
AttorneyMichael Barber, Barber Legal Services, under contract with the Public Defender Agency, and Beth Goldstein, Acting Public Defender, Anchorage, for the Appellant. Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for t...
Judge PanelBefore: Allard, Chief Judge, Harbison, Judge, and Hanley, District Court Judge.
Case DateJanuary 06, 2021
CourtCourt of Appeals of Alaska

LARRY MURPHY FREY, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12758

Court of Appeals of Alaska

January 6, 2021

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, No. 3AN-14-04121 CR Anchorage, Paul E. Olson, Judge.

Michael Barber, Barber Legal Services, under contract with the Public Defender Agency, and Beth Goldstein, Acting Public Defender, Anchorage, for the Appellant.

Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, Harbison, Judge, and Hanley, District Court Judge. [*]

MEMORANDUM OPINION

HARBISON Judge.

Larry Murphy Frey appeals his convictions for felony driving under the influence and felony refusal to submit to a chemical test.1 At trial, Frey claimed that he did not know he was legally required to provide a breath sample after his arrest for driving under the influence. On appeal, Frey challenges the trial court's decision to allow the State to rebut this contention by presenting evidence that Frey had been previously charged-on two occasions-with driving under the influence, and that on one of these occasions, he was also charged with refusal to submit to a chemical test after he refused to provide a breath sample. For the reasons explained here, we find no abuse of discretion in the trial court's evidentiary rulings. Accordingly, we reject Frey's claims of error and affirm his convictions.

Underlying facts

In May 2014, two witnesses reported to law enforcement that they had observed Frey driving and that he appeared to be intoxicated. Shortly after the report, two police officers contacted Frey and observed that he was exhibiting signs of intoxication. They arrested him for driving under the influence. At the jail, an officer requested that Frey provide a breath sample by blowing into a DataMaster machine. Frey refused. The officer then read Frey the standard "implied consent" advisement, explaining that refusal to provide a breath sample is a separate crime. After this, Frey again refused to blow into the DataMaster.

For this conduct, Frey was indicted on charges of felony DUI and felony refusal. The charges were felonies because Frey had been convicted of DUI, a predicate offense, twice within the preceding 10 years (in 2008 and 2009).

Prior to his trial, Frey filed a motion to bifurcate his trial into two stages. The trial court denied this motion, concluding that Frey's prior charge for refusal was admissible for a non-propensity purpose under Alaska Evidence Rule 404(b)(1) - to establish Frey's knowledge that, if he refused to submit to a breath test, he could be charged with a crime. However, in a later pretrial ruling, the trial court instructed the State that it could not discuss Frey's prior convictions during voir dire. The court also ruled that the State could not admit evidence of the prior convictions unless Frey disputed that he "knowingly refused" to take the breath test.

Frey testified on his own behalf during the trial and claimed that he did not know he was legally required to provide a breath sample. The trial court then conducted the balancing test required by Alaska Evidence Rule 403 and concluded that, although evidence of Frey's prior charges was admissible to show he understood the requirement to take the breath test, evidence of his prior convictions would be more prejudicial than probative. The prosecutor subsequently questioned Frey about the prior charges, and the jury ultimately convicted Frey of both DUI and refusal. The jury did not hear evidence that Frey's previous charges resulted in convictions.

After the jury returned its guilty verdicts, the trial court asked Frey whether he wanted the second stage of his trial to be heard by a judge or jury. After consulting with his attorney, Frey waived his right to have a jury determine whether he had been previously convicted of the prior DUI offenses from 2008 and 2009. The trial court gave the parties an opportunity to present evidence, and it then found Frey guilty of felony DUI and felony refusal. This appeal followed.

Why we affirm the trial court's ruling that the State could introduce evidence of Frey 's prior charges for DUI and refusal

Frey's defense to the refusal charge was that he did not understand that he was legally required to provide a breath sample. Frey testified that he refused to provide a breath sample in part because he suffers from a brain condition that affects his attention and makes him uncooperative when he feels threatened. Frey...

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