Nelson v. State
| Decision Date | 07 December 1984 |
| Docket Number | No. A-264,A-264 |
| Citation | 691 P.2d 1056 |
| Parties | Sandra NELSON, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
On September 30, 1983, Andrew Blank, a fish and wildlife protection officer, observed a car, driven by Sandra Nelson, traveling 15 to 20 mph in the left hand lane of four-lane Airport Road in Fairbanks. Officer Blank stopped Nelson for impeding traffic. Nelson told the officer she did not have a license, and produced other identification. Officer Blank returned to his car and determined that Nelson's license had been suspended. He then went back to Nelson's car and informed her that he would have to arrest her for driving while her license was suspended. Nelson's mother, Betty Mellot, was also in the car. Officer Blank testified that Nelson was in his custody for thirty to forty minutes. He testified, that she twice told him she was only moving the car a short distance, and that she was having problems with her car. She asked not to be arrested. No Miranda warnings were ever given and, apparently, no questioning took place once Nelson was in custody. The officer testified that he noted no signs of alcohol use by Nelson, and that he was under the impression that the vehicle was malfunctioning.
At trial, Nelson relied on the defense of necessity. Betty Mellot testified that on the morning of the incident she had driven her daughter's car from Mellot's residence, where it was normally kept, to her daughter's residence. She picked up Nelson, and they went downtown to pay bills, with Mellot driving. Mellot testified that after paying the bills, while she was driving, she pulled into a parking lot and indicated that because of a severe headache she felt that she should not drive. She asked her daughter to take her home. She testified that she did not have sufficient funds to call an ambulance or a cab.
Nelson testified that she knew her license was suspended, and that she had unsuccessfully attempted to call a friend, Bill Suitor, to drive her mother home. She further testified concerning the mechanical malfunction of her car. She testified she believed at the time of the arrest that it would do her no good to try to further explain her reason for driving to Officer Blank.
Over defense objection, the state was allowed to cross-examine Nelson concerning the fact that she had not mentioned the subject of her mother's migraine headache at the time of the arrest. The state was also permitted to comment on this fact during its opening and closing arguments, and to examine both Trooper Blank and Trooper Malone (who was called to the arrest scene by Blank) concerning Nelson's failure to mention her mother's condition at the time of the arrest.
The state also introduced over objection, certified copies of two recent convictions of Nelson for driving while intoxicated. These convictions led to Nelson's license suspension.
Nelson was found guilty of driving with her driver's license suspended. She now appeals to this court.
Nelson argues that the trial court erred in admitting evidence of her two prior convictions for driving while intoxicated. At the outset of the trial, Nelson offered to stipulate that at the time she was arrested, her license had been validly suspended and that she was aware that she was driving while her operator's license was suspended. She further offered to stipulate that the only issue in the case was whether she had a sufficient defense of necessity. However, the prosecution contended at trial, and maintains on appeal, that the evidence of Nelson's prior convictions was properly admitted to contest the defense of necessity. The trial court admitted the evidence for this purpose.
The defense of necessity, which is preserved from common law by AS 11.81.320, is an affirmative defense. AS 11.81.320(b). The necessity defense is discussed in Nelson v. State, 597 P.2d 977, 979 (Alaska 1979):
The defense of necessity may be raised if the defendant's actions, although violative of the law, were necessary to prevent an even greater harm from occurring.
* * *
Commentators generally agree that there are three essential elements to the defense: 1) the act charged must have been done to prevent a significant evil; 2) there must have been no adequate alternative; 3) the harm caused must not have been disproportionate to the harm avoided.
The trial judge admitted the evidence of the past convictions to aid the jury in determining whether the harm caused by Nelson's driving was disproportionate to the harm avoided.
The fact that Nelson's license had been suspended for driving while intoxicated does not appear to us to have probative value in evaluating Nelson's conduct at the time of her arrest. Regardless of why Nelson's license had originally been suspended, it had been suspended by court order and it should have been clear enough to the jury that Nelson was not to drive unless she prevailed on her defense of necessity. On the other hand, the prejudice of admitting the fact that Nelson had twice been convicted of driving while intoxicated is great. The jury might have been prejudiced against Nelson because she had twice been convicted of serious misdemeanor offenses. See E. Cleary, McCormick on Evidence, § 190, at 453-54 (2d ed. 1972). We conclude that the trial judge abused his discretion in admitting the evidence of the two prior convictions for driving while intoxicated. Alaska Rule of Evidence 403. We cannot say that the error was harmless, thus Nelson's conviction must be reversed.
Nelson contends that the trial judge erred in permitting the state to point out to the jury that at the time she was stopped and during the time she was in custody, Nelson never mentioned anything about having to drive because her mother had a migraine headache. Nelson contends that this argument by the state amounted to an impermissible comment on her right to remain silent. Since we have decided that this case must be reversed, it is not strictly necessary for us to reach Nelson's argument on this point. However, we believe that our comments may help the trial court in the event this case is retried.
In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that where a defendant had been given Miranda warnings, it was a violation of due process for the state to impeach him by showing that he had remained silent and for the state to argue that the defendant's silence was inconsistent with an explanation which he later gave at trial. Accord, Gunnerud v. State, 611 P.2d 69, 75 (Alaska 1980). See also United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) ().
In Dorman v. State, 622 P.2d 448, 456-59 (Alaska 1981), the Alaska Supreme Court held that it was plain error for the prosecutor to comment on the accused's post-arrest silence. In that case, the prosecutor had asked the jury to infer guilt from the fact that Dorman, during the eight minutes between the time he was told he was under arrest for murder and the time he was given Miranda warnings, did not ask the arresting officer who the murder victim was. The prosecutor argued that this was because Dorman knew who the victim was because Dorman was guilty of the murder.
Since the Dorman case, the United States Supreme Court has decided Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). In that case, the United States Supreme Court held that cross-examination concerning post-arrest silence where Miranda warnings were not given did not...
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