Gilbert v. State
| Decision Date | 01 July 2015 |
| Docket Number | Court of Appeals No. A-11272,No. 6204,6204 |
| Parties | MARK D. GILBERT, Appellant, v. STATE OF ALASKA, Appellee. |
| Court | Court of Appeals of Alaska |
NOTICE
Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINIONAppeal from the Superior Court, Third Judicial District, Anchorage, Warren W. Matthews, Judge.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges.
A jury convicted Mark D. Gilbert of felony driving under the influence and driving with a revoked license.
At trial, Gilbert raised a hearsay objection to a police officer testifying that his decision to arrest Gilbert was based in part on statements made by other occupants of the car asserting that Gilbert had been driving. Pro tem Superior Court Judge WarrenW. Matthews overruled the objection. The judge also denied Gilbert's later mistrial motion that was based in part on the same testimony of the officer.
On appeal, Gilbert renews his claim that the superior court improperly allowed the officer to testify to statements made by other people in the car. He argues that this testimony was hearsay and that the admission of the officer's testimony violated Gilbert's constitutional right of confrontation. Gilbert also claims the superior court should have granted his mistrial motion, and in addition claims that he should receive a new trial because of improper closing arguments by the prosecutor.
For the reasons explained in this decision, we reject Gilbert's claims and affirm his convictions.
Underlying facts
Al Levinsohn was driving home on Dimond Boulevard in Anchorage when he noticed a Dodge Stratus driving toward him in his lane at roughly fifty miles per hour. Levinsohn pulled off the road to avoid a head-on collision, called 911, and followed the Stratus to a nearby neighborhood. Levinsohn saw the Stratus park, and watched as a male passenger wearing shorts got out and moved into the driver's seat.
The Stratus resumed moving, and Levinsohn continued to follow it until it stopped at a gas station. Levinsohn parked about seventy-five yards away, and he watched the police arrive and contact a man getting out of the driver's side of the vehicle.
Anchorage Police Officer Josh Nolder, the first officer to arrive at the gas station, testified that a man (later identified as Gilbert) got out of the driver's side. Gilbert was swaying and stumbling, and his eyes were bloodshot and watery. Gilbert told Officer Nolder that he was intoxicated but had not been driving. Gilbert's brother Robert was in the front passenger seat, and two women were sitting in the back. However, the officer observed that Robert was "catatonic," and in fact emergencymedical services had to be called to the scene to attend to him. The car keys were not in the ignition, and Gilbert did not have them on his person.
After administering field sobriety tests to Gilbert, Officer Nolder arrested him. A DataMaster breath test showed Gilbert's blood alcohol level to be .223 percent. During the breath test processing, the officer noticed that Gilbert was wearing shorts.
The State charged Gilbert with felony driving under the influence and driving with a revoked license, and Gilbert proceeded to trial on these charges. Gilbert's defense at trial was that he was not driving or operating the vehicle; rather, he had simply switched seats with his brother Robert after the car stopped at the gas station. The jury found Gilbert guilty of both charges.
The officer's testimony regarding the passengers' identification of Gilbert as the driver
During the direct examination of Officer Nolder, the prosecutor asked why his investigation had focused solely on Gilbert when the officer arrived at the gas station. Officer Nolder answered,
When defense counsel objected to the officer's answer as hearsay, the trial court struck the answer and instructed the jury that the answer "shouldn't be considered by you in any way."
Later, during the cross-examination of the officer, defense counsel established: that the officer never saw the car moving with Gilbert in the driver's seat; that when the officer first contacted Gilbert (as Gilbert stepped out of the car), Gilbert had said that he was intoxicated but that he wasn't driving; that the officer did not see the keys in the ignition and that Gilbert did not have keys on him; and that Gilbert's brother was intoxicated and sitting in the front passenger seat. Defense counsel then asked theofficer: "So then you made the decision to arrest Mr. Gilbert based upon ... his sitting behind the wheel without any keys in the ignition, correct?" The officer answered, "No. I made the decision based upon the other people in the car stating he drove."
Defense counsel moved to strike this answer, but the trial judge ruled that this answer was responsive to the question that defense counsel had asked. The judge offered to give a limiting instruction, and defense counsel accepted the offer. The judge directed the officer to answer the question again, and the officer stated that his investigation The judge then instructed the jury:
[T]hese statements, in view of the [defense attorney's] question, can be considered for why the officer acted as he did, but they shouldn't be considered for the truth of the matter of the statements. That would be hearsay. So it's a fine line, but you're not to consider these assertions that are relayed by the officer for the truth of what the asserters said. I hope you understand that.
The following morning, defense counsel moved for a mistrial, claiming that Gilbert was prejudiced by the "cumulative effect" of Officer Nolder's repeated testimony as to the statements of the other passengers that Gilbert was driving. The trial judge denied this motion, noting that he had instructed the jury to disregard the officer's initial testimony about what the passengers said, and that he had instructed the jury to not consider the statements for their truth when the officer reiterated them on cross-examination.
Gilbert's contentions on appeal regarding the officer's testimony and why we reject them
As mentioned, Gilbert raises three claims regarding Officer Nolder's testimony that the two female passengers in the back seat told him that Gilbert was the driver. First, he claims that the superior court should have stricken Officer Nolder's cross-examination testimony that he had arrested Gilbert based on the statements of the women that Gilbert was the driver. He also argues, for the first time on appeal, that this testimony was testimonial hearsay that violated his Sixth Amendment right of confrontation. Third, he contends that the superior court committed error when it did not grant his mistrial motion. Gilbert asserted in this motion that it was unfairly prejudicial for the jury to hear multiple times through the officer's testimony that others in the car had said that he was the driver of the vehicle.
The first time that Officer Nolder testified that the car's passengers had told him that Gilbert was the driver, defense counsel raised a hearsay objection, and the superior court struck the officer's answer and instructed the jurors to not consider it in any way.
Officer Nolder later reiterated that the passengers had identified Gilbert as the driver, but this was in response to defense counsel's questions on cross-examination suggesting that there was a limited basis upon which Officer Nolder made the decision to arrest Gilbert for driving under the influence.
Normally, an officer's explanation about why the officer made an arrest is not particularly relevant.1 But here, when defense counsel asked the officer to concede that his decision to arrest Gilbert was based wholly on circumstantial evidence, theofficer's answer — that other people in the car had stated that Gilbert drove — was relevant and proper.2 The superior court instructed the jury concerning the limited non-hearsay purpose for which the statement was admitted.
And because the evidence was properly admitted for a non-hearsay purpose, its admission did not violate Gilbert's Sixth Amendment right of confrontation.3
As mentioned above, Gilbert also claims the superior court erred when it did not grant his motion for mistrial that was based on the jury repeatedly hearing the officer's testimony about the passengers' identification of Gilbert as the driver. The first time the jury heard the statement, the superior court correctly struck the testimony and instructed the jurors they were not to consider the statement "in any way." The second time, the superior court correctly admitted the statement and explicitly instructed the jury on the limited purpose for which the statement could be considered. We find no error in the superior court's denial of Gilbert's motion for mistrial.4
The prosecutor's closing argument
At the close of the trial, the prosecutor began his closing argument by stating, "So what this case is really about is community standards and ... ." Defense counsel immediately objected on the ground of "prejudices of general DUI policy, community policy," but the trial judge...
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