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Hewitt v. State (7/25/2008) ap-2177

Hewitt v. State (7/25/2008) ap-2177

                             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


CHRISTOPHER H. HEWITT, )
) Court of Appeals No. A-9717
Appellant, ) Trial Court No. 3PA-05-3533 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2177 July 25, 2008
)
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Eric Smith, Judge.

          Appearances:   Marcia  E.  Holland,  contract
          attorney,   and   Quinlan   Steiner,   Public
          Defender,   Anchorage,  for  the   Appellant.
          Douglas   H.   Kossler,  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.

          Christopher  H.  Hewitt  appeals  his  convictions  for
felony  driving under the influence and driving while his license
was  revoked.1   He contends that the evidence presented  at  his
trial  was  insufficient  to  support  the  jurys  verdicts;   in
particular,  Hewitt argues that the evidence fails  to  establish
that  he  (as opposed to someone else) was operating the vehicle.
In  addition,  Hewitt contends that the trial judge  should  have
dismissed  the entire jury venire (i.e., the group of prospective
          jurors who had assembled in court for jury selection in Hewitts
case) after the judge, by mistake, started to read the portion of
the  indictment  which alleged that Hewitt had prior  convictions
for DUI.
          For  the  reasons explained here, we conclude that  the
evidence  was  sufficient to support the jurys verdicts,  and  we
further  conclude  that  the  trial  judge  did  not  abuse   his
discretion when he decided to cure his mistake by simply  telling
the jurors that he had read the wrong thing.

     Hewitts  claim  that  the evidence is  insufficient  to
     support his convictions
     
               When  a  verdict is challenged as  lacking  a
     sufficient  basis  in  the evidence,  the  question  is
     whether  the  evidence and the inferences to  be  drawn
     from  it,  viewed  in  the  light  most  favorable   to
     upholding  the  verdict, are sufficient  to  support  a
     conclusion by fair-minded jurors that the State had met
     its burden of proof.2
               Viewed  in  the light most favorable  to  the
     jurys  verdicts, the evidence at Hewitts  trial  showed
     the following:
               Around  4:00  a.m.  on  December  20,   2005,
     Officer  Cory  Rupe  was stopped at  a  traffic  light.
     There  was a car waiting in front of him, and that  car
     had a single occupant  the driver.
          When  the  light turned green, Rupe  followed
this  car.  He saw it turn into the parking  lot  of  a
business, Alaska Automotive, and stop in the middle  of
the  lot.   Given the time of night, Rupe thought  that
this behavior was strange, so he turned his patrol  car
around and drove back to the Alaska Automotive lot.  As
Rupe  approached the parking lot, he saw the car  begin
moving  again.   The car pulled up to  a  door  in  the
Alaska  Automotive garage.  A man (Hewitt) got  out  of
the  car from the drivers seat and then walked  to  the
side of the garage.
          Rupe  got out of his patrol car and contacted
this  man.  Rupe asked the man for identification,  and
to  explain  what  he  was doing.  Hewitt  produced  an
Alaska identification card (not a drivers license), and
he  asserted that he was at the automotive business for
work  reasons.  When Rupe checked Hewitts name  in  the
police  computer, he learned that Hewitts  license  was
revoked.
          After  Rupe learned that Hewitts license  was
revoked, he confronted Hewitt with the fact that he was
driving.  In response, Hewitt claimed that he  had  not
been  driving   that an unnamed buddy had been  driving
the  car.   Rupe (who had been observing  the  car  for
several  minutes by that time) replied that  there  had
been  no  one  else in the car.  At that point,  Hewitt
told Rupe, All right, man.  You got me.
          This  evidence, if believed, was a sufficient
          basis for a reasonable person to conclude that Hewitt
was   driving  the  car.   Accordingly,  the   evidence
presented at Hewitts trial is sufficient to support the
jurys verdicts.

Hewitts  claim that a new jury venire should have  been
summoned after the trial judge mistakenly began to read
the  allegation in the indictment that Hewitt had prior
convictions for DUI

          Hewitt was indicted for felony DUI  that  is,
DUI  committed by a person who has two or more previous
convictions for DUI or breath-test refusal  within  the
preceding ten years.  Hewitt stipulated that he had the
requisite two prior convictions, and the parties agreed
that  the  jury  would not be told  about  these  prior
convictions  or  asked to decide the prior  convictions
element  of the crime.  Instead, the jury would  simply
decide  whether Hewitt was guilty of driving under  the
influence on the occasion in question.
          But when the prospective jurors assembled for
jury  selection  in  Hewitts case, and  Superior  Court
Judge Eric Smith read the indictment to them, the judge
slipped  up  and  began to read  the  language  in  the
indictment that referred to the allegation that  Hewitt
had previous convictions.  The language in question  is
italicized:
     
          The   Court:   [The  indictment]  reads:
     Count  I   that on or about the 20th  day  of
     December,   2005,   at   or   near   Wasilla,
     Christopher  H. Hewitt drove  or  operated  a
     motor vehicle while under the influence of an
     alcoholic  beverage, inhalant, or  controlled
     substance [or] when there was .08 percent  or
     more by weight of alcohol in his blood or  .8
     [pause:  the judge corrects himself]  .08  or
     more  grams of alcohol per 210 liters of  his
     breath; that he had previously been  con   Im
     sorry, I started to read the wrong thing.
     
     Judge  Smith  then  read  Count  II  of   the
     indictment to the jury (the charge of driving
     with a revoked license).
               Immediately   after   he   finished
     reading the two charges against Hewitt, Judge
     Smith  cautioned the prospective jurors  that
     the  indictment is not evidence  against  the
     defendant, that a defendant is presumed to be
     innocent, and that it is the States  task  to
     prove  the charges beyond a reasonable  doubt
     by presenting sufficient evidence.
               A   few   moments  later,   Hewitts
     attorney  asked  for a bench conference.   At
     that conference, the defense attorney pointed
     out  that Judge Smith had started to read the
     clause of the indictment that referred to the
     allegation that Hewitt had prior convictions.
     The  defense  attorney argued that  the  jury
     pool was now tainted and that an entirely new
     jury venire would have to be summoned.  Judge
     Smith  declined to do this; he noted that  he
     had caught [himself] before anything else was
     said.
          On   appeal,   Hewitt  renews   the
argument that the jury pool should have  been
dismissed.
          The    question   of   whether    a
particular  mistake or occurrence requires  a
mistrial  is  entrusted to the  trial  judges
discretion,  and  an  appellate  court   will
reverse the trial judges decision only if the
judge  has  abused  that discretion.3   Under
this  standard  of review, the  trial  judges
decision  is to be reversed only when,  after
reviewing  the  whole record, [the  appellate
court  is]  left  with a  definite  and  firm
conviction that the trial court erred in  its
ruling.4
          As  the  State points  out  in  its
brief, technically speaking, Hewitts attorney
was   not  asking  for  a  mistrial   because
jeopardy had not yet attached.  However,  the
issue presented here (whether the jury venire
should  have been dismissed and a replacement
venire  summoned  to  court)  is  so  closely
related to mistrial requests that we conclude
it  is appropriate to apply the same abuse of
discretion standard of review.
          Perhaps more importantly, the abuse
of discretion standard of review was designed
to  govern  situations like the one presented
here   situations where (1) the law does  not
specify a particular proper response  to  the
situation,  but  instead  only  provides  the
factors  or  criteria  that  a  judge  should
consider,  and  where (2)  reasonable  judges
applying  the  correct criteria  might  reach
differing conclusions about how to deal  with
the   problem.    In  such   situations,   an
appellate  court  should  uphold  the   trial
judges    decision    unless,    under    the
circumstances,  the  judges  decision   falls
outside the range of reasonable responses  to
the problem.5
          Here,  when  Judge Smith mistakenly
started  to read the clause of the indictment
that  referred to the allegation that  Hewitt
had  prior convictions, he immediately caught
himself.   He told the assembled jurors  that
          he had read the wrong thing, and he also
informed   the  jurors  that  the  assertions
contained  in an indictment are not  evidence
and  do not dispel the defendants presumption
of innocence.
          We  also note that, after the  jury
was selected in Hewitts case, the jurors were
repeatedly  told that it was  their  duty  to
decide  Hewitts case solely on  the  evidence
presented  in court (in light of  the  judges
instructions on the law).  And at the end  of
the  case,  just before the parties presented
their  final  arguments,  Judge  Smith  again
instructed the jurors that the indictment was
not  evidence, and that the jury [was not to]
presuppose any facts concerning the  case  or
the  defendant  solely because an  indictment
has been filed.
          Thus,   (1)  Judge  Smiths  initial
reference to the prior convictions clause  of
the  indictment was never completed; (2)  the
judge immediately announced to the jury  that
he  had  read  the wrong thing; and  (3)  the
jurors  were  repeatedly told that,  whatever
might  be  asserted  in the  indictment,  the
indictment  was not evidence and,  under  the
law, their decision had to be based solely on
the evidence.  Given these circumstances,  we
conclude  that Judge Smith acted  within  his
proper  discretion when he denied the defense
request to dismiss the jury venire and summon
a new one.

Conclusion

     The  judgement  of  the  superior  court   is
AFFIRMED.

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

2  Dorman  v.  State, 622 P.2d 448, 453 (Alaska  1981);  Eide  v.
State, 168 P.3d 499, 500-01 (Alaska App. 2007).

3Tritt v. State, 173 P.3d 1017, 1019 (Alaska App. 2008).

4Id.

5Nelson v. State, 68 P.3d 402, 406 (Alaska App. 2003).

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