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Lau v. State (1/18/2008) ap-2141

Lau v. State (1/18/2008) ap-2141

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ALLEN G. LAU, )
) Court of Appeals No. A-9715
Appellant, ) Trial Court No. 3PA-05-1839 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2141 January 18, 2008
)
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Eric Smith, Judge.

          Appearances:    Renee  McFarland,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Kenneth  M.  Rosenstein,  Assistant  Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Allen G. Lau appeals his convictions for felony driving
under  the  influence, felony breath-test refusal, driving  while
his  license was suspended, and sixth-degree misconduct involving
a  controlled substance (possession of marijuana).1   Lau  claims
that the superior court improperly allowed the State to amend the
indictment  on the first day of trial.  Lau further  claims  that
the  trial  judge committed error in connection with  the  States
          playing of a video tape and an audio CD, by allowing the State to
turn  off  the  sound  at various places rather  than  physically
redacting the videotape and the CD.  Finally, Lau claims that the
trial  judge  improperly  allowed  the  State  to  introduce  two
prescription  pill bottles and some pills that the  police  found
when they searched Laus car following his arrest.
          For  the reasons explained here, we conclude that  none
of   the  superior  courts  actions  requires  reversal  of  Laus
convictions.

     Background facts
     
               Palmer  Police  Officer Kelly Turney  was  on
     patrol  when  he  noticed  a  vehicle  driving  without
     headlights.   Turney ran a check on the  license  plate
     and   discovered  that  the  vehicle  registration  had
     expired, so he stopped the vehicle.  Lau was the driver
     of this vehicle.
               During  his contact with Lau, Officer  Turney
     discovered that Laus drivers license was suspended, and
     he   also  saw  signs  that  Lau  might  be  under  the
     influence.   Turney administered field  sobriety  tests
     and a preliminary breath test to Lau, and he videotaped
     the administration of these tests.
               Based  on the results of these tests,  Turney
     arrested Lau for driving under the influence,  as  well
     as for driving with a suspended license.
          Following  this arrest, Turney searched  Laus
person,  while  another officer searched Laus  vehicle.
Turney found marijuana in one of Laus pockets, and  the
other officer found a rifle and ammunition in the  car.
The  other  officer  also found a small  assortment  of
pills inside two prescription pill bottles.
          Turney  then  transported Lau to  the  Palmer
police  station  for administration of a  breath  test.
When Turney asked Lau to submit to the breath test, Lau
refused.
          Based  on  these events, and  based  on  Laus
prior  criminal  history, Lau was indicted  for  felony
driving  under  the  influence and  felony  breath-test
refusal.  Lau was also charged with three misdemeanors:
driving  while his license was suspended, fourth-degree
weapons  misconduct  (possession  of  a  firearm  while
intoxicated),  and  sixth-degree  controlled  substance
misconduct (possession of marijuana).
          Laus  jury  was unable to reach a verdict  on
the  weapons charge, but they found Lau guilty  of  all
the other charges.

The amendment of the indictment

          On  the day that Laus trial began, the  State
sought  permission to amend the count of the indictment
that  charged  Lau  with  felony  DUI.   As  originally
worded, this count alleged that Lau
     
     drove or operated a motor vehicle while under
     the   influence  of  an  alcoholic  beverage,
     inhalant, or controlled substance when  there
     was 0.08% or more by weight of alcohol in his
     blood  or when there was 0.08 grams  or  more
     per 210 liters of his breath[.]
     
          This  wording represents an amalgam
of  the  two discrete ways in which a  person
can   violate   Alaskas   DUI   statute,   AS
28.35.030(a).  Subsection (1) of this statute
forbids  a  person  from  operating  a  motor
vehicle  while  under  the  influence  of  an
alcoholic   beverage,  intoxicating   liquor,
inhalant, or any controlled substance, singly
or  in  combination.  Subsection (2)  of  the
statute  forbids  a person from  operating  a
motor vehicle if ... there is 0.08 percent or
more  by  weight  of alcohol in  the  persons
blood or 80 milligrams or more of alcohol per
100 milliliters of blood, or if there is 0.08
grams  or  more of alcohol per 210 liters  of
the persons breath.
          As  already explained, Lau  refused
to take the breath test.  Thus, the State had
no  admissible  evidence  of  Laus  blood  or
breath  alcohol  level.  Instead,  the  State
intended  to rely on the theory specified  in
subsection  (1)  of  the  statute   that  Lau
operated  his car while under the  influence.
Consequently,   the  prosecutor   asked   the
superior  court for permission to  amend  the
wording of this count by striking all of  the
language    after   the   words    controlled
substance    that  is,  the   language   that
referred to the theory that Lau had 0.08%  or
more by weight of alcohol in his blood or ...
0.08  grams  or  more per 210 liters  of  his
breath.
          Laus   attorney  objected  to   the
amendment, arguing that the grand  jury  must
have intended to indict Lau solely on a blood
alcohol  level  theory.  But when  the  trial
judge, Superior Court Judge Eric Smith, asked
the  defense attorney to specify exactly what
prejudice  Lau would suffer if  the  proposed
amendment  was allowed, the defense  attorney
failed  to  specify any prejudice.   Instead,
the defense attorney merely asserted that  it
would  be  procedural error for the judge  to
allow the amendment.
          That    argument   was   meritless.
Alaska  Criminal  Rule 7(e) expressly  allows
the superior court to amend an indictment  at
any time before the jury reaches its verdict,
so  long  as the amended indictment does  not
charge  an  additional or different  offense,
and   so   long  as  the  defendant  is   not
prejudiced by the amendment.
          Judge Smith concluded that, because
Lau  had  refused to submit  to  the   breath
test,  the  only way Mr. Lau could have  been
indicted  was  [under] an impairment  theory.
Therefore,  the judge concluded,  the  States
proposed   amendment   did   not   raise   an
additional  or different offense.   Moreover,
based on his review of the grand jury record,
and based on the defense attorneys failure to
specify  a  way in which the amendment  would
hamper  the  presentation  of  Laus  defense,
Judge  Smith  concluded  that  the  amendment
would  not prejudice Laus substantial rights.
Judge  Smith therefore allowed the  amendment
of the indictment.
          On   appeal,  Lau  still  fails  to
identify  any  way  in  which  the  amendment
prejudiced his defense.  Instead,  he  argues
that  Judge Smith violated his right to grand
jury indictment.
          Lau argues that Judge Smith ignored
the  grand  jurys factual basis for indicting
Lau  for  felony  DUI, and that  Judge  Smith
improperly   substituted  his  own   personal
conclusion  regarding the  factual  basis  of
that charge.
          Laus argument is unconvincing.  The
record  shows that the amendment to  the  DUI
count of the indictment was proper because it
brought  that count into conformity with  the
evidence presented to the grand jury.
          Admittedly,  the record  is  scanty
for Lau has not provided us with a transcript
of  the  grand  jury  proceedings.   However,
during Laus trial, the parties discussed  the
evidence  heard by the grand jury,  and  that
discussion supports Judge Smiths decision  to
allow the amendment of the indictment.
          As  explained  above, the  original
wording  of  the DUI count of the  indictment
referred to both theories of DUI:  the  under
the  influence  theory and the blood  alcohol
level  theory.  But the grand jury  heard  no
evidence   of   Laus  blood  alcohol   level.
Indeed, the grand jurors heard evidence  that
Lau  had refused to take the breath test  and
they   separately  indicted  him   for   this
additional offense.
          At one point in the proceedings,  a
grand  juror apparently asked if  any  breath
test  had  been  conducted to determine  Laus
level  of  intoxication.  And the grand  jury
transcript apparently shows that one  of  the
police witnesses testified that a preliminary
breath  test  (i.e., a test  conducted  on  a
portable,   hand-held   device)   had    been
administered  to Lau in connection  with  the
field  sobriety  tests.  But the  grand  jury
apparently heard no testimony concerning  the
result  of this preliminary breath  test   or
any other alcohol test.
          In other words, based on the record
before us, the under the influence theory  of
DUI   was  the  only  theory  of  prosecution
supported  by the evidence presented  to  the
grand  jury.  Indeed, given this record,  Lau
himself  would surely have been  entitled  to
ask Judge Smith to strike the language of the
indictment  that referred to a blood  alcohol
level theory of prosecution.
          To the extent that Lau continues to
argue  that  Judge  Smith misinterpreted  the
grand  jury  testimony,  or  that  the  judge
misconceived  the grand jurys  factual  basis
for deciding to indict Lau for felony DUI, we
deem  Laus arguments to be waived because  he
did  not provide this Court with a transcript
of the grand jury proceedings.
          In  short,  we uphold Judge  Smiths
decision  to  allow the State to  amend  this
count of the indictment.

The playing of the videotape and the audio CD

          At  trial, Laus attorney anticipated that the
State   would  play  the  videotape  (or  other   audio
recording) of Laus field sobriety tests.  This  created
a   problem   for  the  defense  because,   immediately
following  the  administration of these tests,  Officer
Turney  told Lau that he was being arrested for  felony
DUI   thus  implying  that Lau had a  prior  record  of
convictions  for  DUI and/or breath-test  refusal.   In
addition,  the  State  had a  videotape  of  the  later
encounter  at  the police station when Lau  refused  to
take  the  breath  test.  Upon  his  refusal,  Lau  was
informed  that he would be charged with felony  breath-
test  refusal   again implying that  Lau  had  a  prior
record   of  convictions  for  DUI  and/or  breath-test
refusal.
          The  defense attorney asked for a  protective
order  that would keep these references from the  jury.
Judge  Smith granted this request; he ordered redaction
of  the  statements  where Lau was  informed  that  his
offenses   were   felonies.   However,  for   technical
reasons,  it apparently was not feasible to redact  the
videotape  that the State was going to  use  at  trial.
Because  of   this,  Judge Smith  over  Laus  objection
allowed the State to simply turn off the sound  at  the
point  in the recording where Turney told Lau  that  he
was under arrest for felony DUI.
          Later in the trial, the State played an audio
recording  of Laus refusal to submit to a breath  test.
(The   audio  portion  of  this  encounter   had   been
transferred  to  a  CD.)  Before playing  the  CD,  the
prosecutor  acknowledged that the part  of  this  audio
file  where  Lau was informed that he would be  charged
with  felony breath-test refusal had not been  redacted
from the recording.  However, the prosecutor offered to
turn  off  the  sound at that point in  the  recording.
Judge  Smith   again, over Laus objection  allowed  the
prosecutor to play the CD using this procedure.
          On appeal, Lau asserts that turning the sound
off,   as   opposed  to  actually  redacting  the   two
recordings,  was inappropriate under Evidence Rule 403.
He  argues  that  the jury might have speculated  about
what  the  officers  said  to  Lau  during  the  silent
portions of the two recordings, and that this potential
speculation   might   have   prejudiced    the    jurys
consideration of the case.
          But  Judge  Smith (at Laus request) expressly
instructed  the  jury not to speculate about  what  the
officers might have said during these portions  of  the
recordings.    Immediately  after  the  videotape   was
played, and again after the CD was played, Judge  Smith
instructed the jurors that he had concluded  that  what
was said on these silent portions of the recordings was
inadmissible  and that the jurors were not to speculate
about  the  contents of these portions.  Indeed,  Judge
Smiths  cautionary instructions employed language  that
Lau himself proposed.
          Lau  nevertheless argues that the  cautionary
instructions  must  have been ineffective  because,  in
both  instances where the prosecutor turned  the  sound
off,  the  jurors  were  alerted  that  the  recordings
contained  information that they were  not  allowed  to
hear  thus inevitably prompting the jurors to speculate
about  the contents of these portions.  There  are  two
answers to this contention.
          First, as we just explained, Judge Smith gave
the jurors explicit instructions not to speculate about
the   content  of  the  inaudible  segments.   The  law
presumes   that  jurors  will  follow  this   kind   of
cautionary  instruction,2 and the record of Laus  trial
contains  no  contrary indication  i.e., no  indication
that  the  jurors  failed  to  abide  by  Judge  Smiths
admonition.
          Second,  if  Judge Smith had  sustained  Laus
objection and had insisted on physical redaction of the
recordings,  this redaction  especially, the  redaction
of  the  videotape   would likewise  have  alerted  the
          jurors that something was missing.  Thus, if Judge
Smith  had  adhered  to  the  procedure  that  Lau  now
advocates, this procedure would have raised exactly the
same concerns that Lau advances in this appeal.
          For  these  reasons, we uphold  Judge  Smiths
decision on this matter.

Evidence  of the pills and pill bottles found  in  Laus
vehicle

          At  Laus trial, Judge Smith allowed the State
to  introduce  the  two pill bottles (and  the  various
pills  inside these bottles) that the police  found  in
Laus  car  after  his arrest.  A police  officer  later
testified  that  some  of  the  pills  found  in  these
containers were Naproxen (which, the officer explained,
was basically Aleve), and that another of the pills was
[a]  morphine  tablet of some form.  In  addition,  the
State  presented testimony that one of the pill bottles
carried  a  warning label which stated  that  a  person
taking that medication could become drowsy.
          Lau   objected  that  the  physical  evidence
(i.e.,  the  two  pill  bottles  and  the  pills)   was
irrelevant,  but Judge Smith overruled this  objection,
apparently   concluding   that   this   evidence    was
potentially  relevant on the question  of  whether  Lau
might have been under the combined influence of alcohol
and controlled substances.  Lau offered no objection to
the  police officers testimony identifying one  of  the
pills as morphine.
          On appeal, Lau renews his objection that this
evidence  lacked  relevance.  This objection  has  more
force now that Laus trial is over  because, as it turns
out,  when the prosecutor argued Laus case to the jury,
she  did not rely on the theory that Lau was under  the
combined    influence   of   alcohol   and   controlled
substances.   Rather, the prosecutor only  argued  that
Lau   was   under  the  influence  of  alcohol.    (The
prosecutor  noted  that Lau was  charged  with  driving
under   the   influence  of  intoxicating   liquor   or
controlled substances, but in his argument to the  jury
the  prosecutor  never suggested  that  there  was  any
connection between Laus impairment and the presence  of
the pills in Laus car.)
          But  the situation was different when, during
the  trial, the State offered this evidence  and  Judge
Smith  ruled  on its admissibility.  As we have  noted,
the  DUI  count  of  the indictment  charged  Lau  with
operating a motor vehicle while under the influence  of
an   alcoholic   beverage,  inhalant,   or   controlled
substance.   And  when  this  evidentiary   issue   was
presented  to Judge Smith, the prosecutor  argued  that
evidence of the pills was relevant because
     
     Prosecutor:    ...  there   is   clearly
evidence  [that Lau] was under the  influence
of  something.  ...  And the question is, Was
he  under the influence of alcohol or  drugs?
These [pills] were found in his car.

In   other  words,  given  the  factual   and
procedural context in which Judge Smith  made
his   ruling,  the  judge  could   reasonably
conclude  that the presence of the  pills  in
Laus  vehicle was relevant to the  charge  of
DUI.
          If  Lau  believed that  the  States
litigation   strategy  later  diminished   or
eliminated the relevance of this evidence, he
was  obliged to ask Judge Smith to reconsider
this  issue,  and  to request  some  form  of
relief  (either a cautionary instruction  or,
perhaps, a mistrial).
          Moreover, given the fact  that  the
prosecutor  relied  on a  theory  of  alcohol
intoxication,   and   given   the    evidence
supporting that theory, we conclude that  the
admission  of  this  contested  evidence  was
unlikely to have affected the verdict.  Thus,
any error would be harmless.3

Conclusion

     For  the  reasons explained here, we conclude
that  none of Laus claims of error merits reversal
of his convictions.  Accordingly, the judgement of
the superior court is AFFIRMED.

_______________________________
  1  AS  28.35.030(n),  AS 28.35.032(p), AS 28.15.291(a)(1),  and
AS 11.71.060(a)(1), respectively.

2  See Dailey v. State, 65 P.3d 891, 897 (Alaska App. 2003);
State  v. McDonald, 872 P.2d 627, 654-55 (Alaska App. 1994);
Whiteaker v. State, 808 P.2d 270, 277 (Alaska App. 1991).

3See Love v. State, 457 P.2d 622, 629-631 (Alaska 1969).

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