U.S. v. Wilmer
| Decision Date | 28 July 1986 |
| Docket Number | No. 85-3182,85-3182 |
| Parties | 21 Fed. R. Evid. Serv. 761 UNITED STATES of America, Plaintiff-Appellee, v. Christopher D. WILMER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Edward C. Eisler, Sp. Asst. U.S. Atty., Tacoma, Wash., for plaintiff-appellee.
Allen Bentley, Asst. Federal Public Defender, Seattle, Wash., for defendant-appellant.
Appeal from the United States District Court for the Western District of Washington.
Before TANG, PREGERSON, and ALARCON, Circuit Judges.
Christopher Wilmer appeals from his conviction for driving while intoxicated and driving while his license was suspended in violation of Washington state law. 1 These crimes occurred at McChord Air Force Base in the state of Washington. The district court had subject matter jurisdiction because the crimes occurred on a military base. United States v. Binder, 769 F.2d 595, 600 (9th Cir.1985). 2 Wilmer was prosecuted under the Assimilative Crimes Act. 18 U.S.C. Secs. 7 and 13 (1982). 3 We must decide whether federal or state rules of evidence apply at the trial of criminal matters prosecuted under the Assimilative Crimes Act and whether there was sufficient evidence to convice Wilmer. We conclude that the federal rules of evidence apply.
At 4:00 a.m. on January 2, 1985, two Air Force security police officers on patrol duty at McChord Air Force Base observed a car drive onto the shoulder of the road and stop. As the police approached the vehicle, the driver attempted to get the vehicle back on the road. Staff Sergeant Marvin McDonald testified that he saw the driver wave at them to pass him. McDonald testified that he thought "his arm" was out of the window. The car stopped again. When Staff Sergeant McDonald approached the car on foot, he saw Wilmer seated behind the wheel. Diane Burbank, the owner of the car, was seated on the passenger side of the vehicle. McDonald testified that Wilmer's eyes were glazed and his speech was very slurred. Wilmer was asked for identification. He produced a number of cards but failed to present a driver's license. Wilmer got out of the car very slowly. He was asked to step to the rear of the vehicle for a field sobriety test. Staff Sergeant McDonald testified that field sobriety tests were not conducted at the scene of the arrest because it was extremely cold and Wilmer was only wearing a short sleeved shirt and vest to cover the upper part of his body.
Wilmer was transported to the law enforcement desk at McChord Air Force Base. There he was requested to perform two field sobriety tests. At first, Wilmer was quite belligerent and stated he did not want to perform the tests. He then agreed to "go ahead and try to do it." During this conversation, Staff Sergeant McDonald perceived an extreme odor of alcohol.
Wilmer was asked to perform the heel-to-toe balance test. Wilmer was "unsure of his steps" and stopped in the middle and turned around and stated he would try again.
Wilmer performed the coin test very slowly. He was also slow in performing the finger to nose test with his left hand. He missed his nose with his right hand.
Wilmer was very belligerent during the tests. He did not want to walk. It appeared that "he didn't quite understand what he should do."
After administering the field sobriety tests, Staff Sergeant McDonald formed the opinion that Wilmer was intoxicated and unable to drive a vehicle.
Wilmer was arrested at this time and advised of his constitutional rights. Wilmer was advised of Washington's implied consent law. He agreed to submit to a breathalyzer test.
At about 5:00 a.m., Staff Sergeant McDonald and Sergeant Robert Lee Brower attempted to administer a breathalyzer test at McChord Air Force Base. The machine did not function properly.
Staff Sergeant McDonald telephoned Fort Lewis to request the use of their breathalyzer. Wilmer agreed to go to Fort Lewis to take a breathalyzer test. The trip to Fort Lewis took twenty minutes because it was snowing. An additional twenty minutes elapsed before the breathalyzer test was administered.
Sergeant Brower testified that he has been certified by the State of Washington to administer a breathalyzer test.
The breathalyzer test was administered at 6:21 a.m.
The government offered the report of the person who calibrated the breathalyzer machine as part of the foundation for introducing the result obtained in the analysis of Wilmer's breath samples. Wilmer's trial counsel objected on two grounds. First, he argued that the results obtained from a breathalyzer test are inadmissible unless the person who calibrated the instrument is produced as a witness by the government. Secondly, he argued that the calibration report was inadmissible in a criminal case under the exclusionary provisions of Rule 803(8) of the Federal Rules of Evidence because it contains matters observed by a law enforcement officer. No objection was made to the admission of the evidence on constitutional grounds nor was any question raised regarding the availability of the maintenance operator.
The government argued to the trial court that the calibration report was admissible under Rule 4.09(d) of the Washington Court Rules for Courts of Limited Jurisdiction because Wilmer failed to make a written demand upon the prosecution within seven days of trial to produce the maintenance operator. The objection was overruled. The maintenance operator's calibration report was received. The government did not call the maintenance operator as a witness.
The records custodian for breathalyzer maintenance testified that the calibration record was prepared by a State Patrol Officer on December 26, 1984, the date that she received it. She maintained the calibration certificate at all times after receiving it.
The breathalyzer test revealed that Wilmer had .14 blood alcohol. Sergeant Brower was asked if he formed an opinion as to Wilmer's state of sobriety and his ability to drive a car after he had seen the breathalyzer reading of .14. The officer replied: "No sir, the ability had already been determined basically by the field sobriety test that had been performed."
Military Policeman John Carl Frick testified that he observed Wilmer's performance of the field sobriety tests. Wilmer wabbled and swayed during the balance test. He weaved back and forth as he stood up. He was unsteady on his feet and swayed from side to side on the heel-to-toe test. The witness observed Wilmer miss his nose on the finger to nose test. He fumbled coins during the coin tests. Wilmer appeared to be in an "intoxicated stupor." Based on these observations, Officer Frick formed the opinion that Wilmer was "intoxicated and unfit for driving."
During oral argument Wilmer's counsel stated as follows:
As to the other two charges, that is DWI and driving under suspension, I am fully willing to give them all the elements at this point of their case as far as intoxication, as far as having a suspension, everything except driving.
Wilmer's attorney then challenged the sufficiency of evidence to show that Wilmer was driving. He argued there was a reasonable doubt whether Wilmer and the woman in the car changed places.
In his brief before this court, Wilmer seeks reversal on the following grounds:
One. The trial court erred in applying Rule 4.09 of the Washington Court Rules, which requires a demand for the production at trial of the maintenance operator of a breathalyzer machine, in overruling Wilmer's objection to the admission of the calibration certificate. 4
Two. The evidence is insufficient to permit the trier of fact to find beyond a reasonable doubt that Wilmer was driving the vehicle immediately prior to his arrest.
We discuss each issue under separate headings.
Wilmer contends that the trial court erred in applying the state of Washington's Justice Court Criminal Rules in the trial of this matter. We agree.
This issue of which rule of evidence should be applied in a federal court in a prosecution under the Assimilative Crimes Act presents a question of law we review de novo. United States v. Kearney, 750 F.2d 787, 789 (9th Cir.1984).
The question has not been previously presented to this court. The Fourth Circuit, however, considered this issue in Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S.Ct. 42, 3 L.Ed.2d 65 (1958). The Kay court, relying on Rule 26 of the Federal Rules of Crim. Proc., held, "[t]he [Assimilative Crimes] Act, however, does not generally adopt state procedures.... and federal, rather than state, rules of evidence are applicable under the Act." Id. at 479. We agree with the Fourth Circuit's analysis of this issue.
The Assimilative Crimes Act, 18 U.S.C. Secs. 7 and 13 "subjects persons on federal lands to ... prosecution in federal court for violations of criminal statutes of the state in which the federal lands are located." United States v. Binder, 769 F.2d 595, 600 (9th Cir.1985) (quoting United States v. Kiliz, 694 F.2d 628, 629 (9th Cir.1982)). In such prosecutions, we apply "state substantive criminal law as federal substantive law." United States v. Kearney, 750 F.2d at 789 (emphasis added). The Assimilative Crimes Act does not require the adoption of state procedural rules. Id.
Criminal proceedings in federal courts are governed by the Federal Rules of Criminal Procedure For The United States District Courts. Rule 1 of the Rules of Criminal Procedure provides in pertinent part as follows: "These rules govern the procedure in all criminal proceedings in the courts of the United States ..."
Rule 26 of the Rules of Criminal Procedure provides that in criminal trials, "the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an Act of Congress, or by...
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