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Newsom v. State (1/9/2009) ap-2204

Newsom v. State (1/9/2009) ap-2204

                             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


CHARLES EDWIN NEWSOM, )
) Court of Appeals No. A-9984
Appellant, ) Trial Court No. 3AN-05-10239 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2204 January 9, 2009
)
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Philip R.  Volland
          and Michael L. Wolverton, Judges.

          Appearances:   Doug Miller, Assistant  Public
          Advocate,   Appeals   &   Statewide   Defense
          Section,  and Joshua Fink and Rachel  Levitt,
          Public   Advocates,   Anchorage,   for    the
          Appellant.   Diane  L.  Wendlandt,  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 Bolger, Judges.

          MANNHEIMER, Judge.

          In  this case we are asked to clarify the scope of  the
investigative  stops  authorized under  the  search  and  seizure
clause  of  the  Alaska Constitution (Article I, Section  14)  as
interpreted  in Coleman v. State, 553 P.2d 40, 46 (Alaska  1976).
The question is whether Coleman allows police officers to conduct
an   investigative  stop  for  the  purpose  of   detaining   and
identifying  a person who is suspected of being the driver  of  a
vehicle who fled rather than submit to a traffic stop.
          As  we  explain  in  more detail in this  opinion,  the
officers  in  this case were in hot pursuit of  the  driver,  the
investigative  stop  was  required  as  a  matter  of   practical
necessity,  and  the  stop was conducted in  a  manner  that  was
minimally  intrusive.  For these reasons, we  conclude  that  the
stop  was  lawful  under the Coleman test as we interpreted  that
test in State v. G.B., 769 P.2d 452 (Alaska App. 1989).
          We   also  reject  Newsoms  claims  that  the  evidence
presented  to  the  grand jury was insufficient  to  support  the
indictment,  and  that the evidence presented at  his  trial  was
insufficient to support the jurys verdict.

     Underlying facts
     
               Just  after  midnight on  October  29,  2005,
     Anchorage  Police Officer Michael Busey turned  on  his
     overhead lights and attempted to perform a traffic stop
     of  a  car that was being driven without its headlights
     on.  The driver of this car was later identified as the
     defendant in this case, Charles Edwin Newsom.
               Rather  than  submit  to  the  traffic  stop,
     Newsom   fled.   Newsom  accelerated,  weaved   through
     traffic,  and  then made a sudden right  turn  onto  an
     intersecting street.  Busey concluded that it  was  too
     dangerous to chase Newsom, so he followed at  a  slower
     speed and thus lost sight of him.
          While Newsom was out of Buseys sight, he took
the  opportunity to abandon his car in a nearby parking
lot,  and  he  then  ran away toward a  nearby  Walmart
store.   As  Newsom  made his way toward  the  Walmart,
Busey  found  the  abandoned car.   Busey  broadcast  a
description  of what had just occurred,  including  the
fact that the driver had absconded (although Busey  did
not  know in what direction).  In this broadcast, Busey
described  the driver as a white adult male  with  dark
(or dark brown) hair.
          Two   plainclothes  officers  who  had   just
stopped to eat at a nearby restaurant responded to  the
summons  for help.  Because it was late at  night,  and
because  Walmart  was one of the  only  stores  in  the
vicinity that was still open, the two officers  decided
to check Walmart for the escaped driver.
          As  the  two officers pulled into the Walmart
parking lot, one of them (Officer Jeffrey Bell) noticed
a  man  walking  hurriedly from the  direction  of  the
northwest corner of the parking lot, heading toward the
store  entrance.  This man caught Bells  attention  for
two  reasons.  First, the man appeared to be in a hurry
to get into the store, and he was looking back over his
shoulder  as  he entered.  Second, the man was  wearing
shorts,  even  though  the temperature  was  around  25
degrees.
          Bell  got  out  of  his car and  entered  the
Walmart to see if he could find this man or anyone else
who  matched the description broadcast by Officer Busey
and   who  was  acting  suspiciously.   Bells  partner,
Sergeant Christopher Sims, remained in the car to  meet
Officer  Busey and the other officers who had  come  to
assist him.
          When  Bell got inside the store, he  realized
that the store was closing and that the store employees
were  rounding  people up to [get  them  to]  exit  the
store,  or to check out.  Bell found the man in  shorts
that  he had seen entering the store.  He noticed  that
this  man didnt appear to be shopping; rather,  he  was
just walking around, pacing ... .  [He] wasnt pushing a
cart,  [and he] didnt have anything in his  hands.   In
addition,  the man looked nervous and frantic,  and  he
appeared to be sweating even though he had removed  his
coat.
          As  Bell  followed this man, the  man  headed
back to the main exit (i.e., the front entrance to  the
store).  At this same time, Sergeant Sims was trying to
enter  the store.  When a store employee tried to  stop
Sims  by  telling him that the store was closing,  Sims
(who,  again, was in plain clothes) identified  himself
as  a police officer who was looking for someone inside
the  store.  Immediately after Sims identified  himself
as   a   police  officer,  Newsom  turned  around   and
essentially ran into Bells arms.  Bell caught  him  and
held him.  When Bell told Sims that he thought they had
just  caught  the person they were looking for,  Newsom
responded by asking if it was illegal to be drunk.
          It  was  now 12:17 a.m.  approximately  seven
minutes after Busey announced on the radio that he  was
halting  his  pursuit  of  the  fleeing  driver.   Sims
broadcast that he had detained a suspect, and that  the
suspect exhibited a strong smell of alcohol.  Bell  and
Sims  remained  with Newsom until Busey  and  witnesses
from  the parking lot were brought to the front of  the
store  to  identify Newsom.  While they  were  waiting,
Newsom  told the officers, Ill bet my girlfriend called
me  in  [for]  drunk driving again, didnt she?   Newsom
also told the officers that they should just take [him]
to jail, [because he was] on probation anyway.
          Essentially       contemporaneously       (at
approximately 12:18 a.m.), police dispatch notified the
officers that a woman had called the police just before
midnight to report that her car had been stolen by  her
boyfriend.  The woman did not identify herself, nor did
she identify her boyfriend, but she did tell the police
operator  that  the car was registered to  her  father,
Terry  Farr.  When Officer Busey ran the license plates
on the car that Newsom had abandoned, he found out that
the registered owner was Terry Farr.  Busey then called
Mr.  Farr,  who identified his daughters  boyfriend  as
Charles Newsom.
          Meanwhile, back at the Walmart store,  Newsom
was  identified by two witnesses who had  been  in  the
Walmart  parking lot when Newsom approached the  store.
These  witnesses told the police that Newsom had walked
up  to their cars and had asked each of them for a ride
offering  to  pay  $20 if they would  take  him  a  few
blocks.
          Additional  confirmation of Newsoms  identity
as  the  driver  of the car was provided  by  a  police
tracking dog, Bolo.  After Busey broadcast his original
report,  Bolos handler, Officer Aaron Whitt,  drove  to
meet  Busey at the location of the abandoned car.  When
Whitt  arrived, he set Bolo tracking from  the  drivers
side  of  the car, in an attempt to locate the  driver.
At  essentially the same time that Sims and  Bell  were
looking  for  the  driver  inside  Walmart,  Bolo   was
following  the drivers trail to the north side  of  the
Walmart  store,  and then to the main entrance  of  the
store, where Whitt stopped him.
          Newsom  was  ultimately convicted  of  first-
degree (felony) failing to stop at the direction  of  a
police  officer  under  AS  28.35.182(a)(1)   i.e.,   a
failure  to  stop  accompanied by an  act  of  reckless
driving  as  defined in AS 28.35.400(a).1   Newsom  was
also convicted of driving while his license was revoked
or suspended.

The primary issue presented on appeal:  Does Coleman v.
State allow the police to conduct an investigative stop
under these circumstances?

         Officer  Busey  saw Newsom  commit  a  traffic
offense,  and  he also saw Newsom commit the  crime  of
failing  to stop at the direction of a police  officer.
Thus,  Busey was authorized to arrest Newsom.  If Busey
had  been able to keep Newsom in his sight and  capture
him,  there  would  be no Coleman issue  in  this  case
i.e., no issue involving an investigative stop.
         But  Newsom  abandoned his car  and  absconded
from  the  scene  before Busey could  locate  the  car.
Minutes  later,  Newsom was stopped inside  the  nearby
Walmart  by  two other officers, Sims and Bell.   These
two  officers knew (from Buseys radio report) that  the
driver  of  the  abandoned car had failed  to  stop  at
Buseys direction, but they did not know for certain  if
the  man they had stopped inside Walmart was the driver
they were seeking.
         An  argument  could be made  that,  given  the
information  known to the community of police  officers
engaged in the chase  i.e., the totality of information
known  to  Busey, Sims, Bell, and Whitt (Bolos handler)
at  the  time that Sims and Bell detained Newsom inside
the Walmart store  there was probable cause to identify
Newsom  as  the  driver of the car  (and,  thus,  legal
         justification to arrest Newsom).  However, this
argument would rest on a broad view of the community of
knowledge doctrine.
         When  Sims and Bell went to Walmart  and  then
located  and  detained Newsom, they were responding  to
Buseys report that the driver of the car had failed  to
stop  and  then had abandoned the vehicle and  fled  on
foot.  Along with the contents of this report, Sims and
Bell  relied  on  their  own  observations  of  Newsoms
approach  to the Walmart store and his behavior  inside
the  store.   But  Sims and Bell were not  subjectively
aware  of the additional information obtained by  Busey
and  Whitt  (aided by Bolo) after Busey  broadcast  his
request for assistance.
         The  State  argues that when a court  assesses
the  validity of the investigative stop, the court  may
consider  the  totality of the information collectively
known to all the officers engaged in the pursuit.   But
the  case  that  the State cites for  this  proposition
State  v.  Prater,  958 P.2d 1110  (Alaska  App.  1998)
involved  a  different  aspect  of  the  community   of
knowledge  doctrine.  Prater involved an  investigative
stop of a suspected drunk driver that was prompted by a
citizens  telephone  report  to  the  community   REDDI
program (report every drunk driver immediately).2   The
issue  in  Prater  was whether the  investigative  stop
could be justified by information that was communicated
to  the police dispatcher by the citizen, but which the
police  dispatcher failed to specifically  recite  when
the  dispatcher broadcast the alert to the officers  in
the  field.3   We held that this information  could  be
used to justify the stop.4
         Newsoms   case   is  different   from   Prater
because, in Newsoms case, the State wishes to rely on a
collectivity  of  knowledge that  includes  significant
additional information separately obtained by Busey, as
well  as  significant additional information separately
obtained by Whitt (and Bolo), after Busey broadcast his
request  for  assistance.  The parties  briefs  do  not
focus  on  this  distinguishing  factor,  and  we   are
hesitant  to  issue  a decision on this  point  without
pertinent briefing.
         Moreover,  as  we explain in the remainder  of
this  opinion, we conclude that the investigative  stop
of  Newsom  inside the Walmart store can  be  justified
based  on Buseys knowledge at the time of his broadcast
and  the  additional information obtained by  Sims  and
Bell when they responded to Buseys call for assistance.
We   will  therefore  resolve  this  appeal  under  the
assumption  that  Sims and Bell did not  have  probable
cause  to  arrest  Newsom, but rather  only  reasonable
suspicion that Newsom was the driver of the car.
         Because  Sims  and Bell did not have  probable
cause to arrest Newsom, this means that their detention
of   Newsom  constituted  an  investigative   stop   to
         determine whether Newsom was the driver of the car.
And  under the doctrine announced in Coleman v.  State,
Alaska  law  allows the police to conduct investigative
stops  only when imminent public danger exists or  when
the  crime under investigation involves recent  serious
harm to persons or property.  553 P.2d at 46.
         Newsom  argues  that, because  Coleman  limits
investigative  stops in this fashion, the investigative
stop  in  his  case was unlawful  since  (according  to
Newsom)  the  facts of his case fail to satisfy  either
prong of the Coleman test.
         In  particular, Newsom contends that,  at  the
time  of  the stop, he posed no danger to anyone:   his
act  of reckless driving was over, he had abandoned his
girlfriends  car,  and the car was already  secured  by
police  officers.  Newsom further contends  that,  even
though  he  may  have  committed  a  traffic  violation
(driving at night with his headlights off), as well  as
the  more  serious offense of failing to  stop  at  the
direction  of  a  police  officer,  neither  of   these
offenses involved serious harm to persons or property.

Why we conclude that this investigative stop was lawful

         It  is  true  that  the text  of  the  Coleman
opinion    suggests   that   there   was   insufficient
justification  for  the investigative  stop  of  Newsom
inside  the Walmart store.  But in State v.  G.B.,  769
P.2d 452 (Alaska App. 1989), this Court adopted a broad
interpretation of the Coleman rule.
         In  G.B., an employee of a video store saw the
defendant standing on the side of the counter  normally
occupied   by  store  employees.   When  the   employee
confronted   G.B.,  G.B.  ran  from  the  store.    The
employee,  suspecting that G.B. had  just  committed  a
theft,  telephoned  the police.   By  chance,  a  state
trooper  was  nearby; almost immediately after  hearing
the  police dispatch, the trooper observed a young  man
on  foot who matched the store employees description of
the   suspected  thief.   The  trooper   performed   an
investigative stop, and this stop led to the  discovery
of $800 in cash that the defendant had just stolen from
the store.5
         The    superior   court   ruled   that    this
investigative  stop failed to meet  the  Coleman  test.
The  superior court pointed out that, even  though  the
theft turned out to be felony (i.e., a theft of $500 or
more)6,  the only supportable suspicion at the time  of
the  stop  was  that G.B. had committed shoplifting  or
some other minor theft  a crime that posed no immediate
danger  to  anyone, and that was not serious enough  to
qualify as recent serious harm to persons or property.7
         On  appeal,  this Court reversed the  superior
courts  ruling.  We held that this reading of  the  two
Coleman categories was too rigid.8
         In  particular,  we rejected the  notion  that
Coleman  categorically  bars  investigative  stops  for
certain  categories of crime.  Instead,  we  held  that
even  though the theoretical seriousness of  the  crime
[being  investigated]  is  a  significant  factor  when
applying the Coleman test, the seriousness of the crime
is  not  in  itself determinative.9  In particular,  we
declared  that  [a] minimally intrusive stop  based  on
solid  information indicating that a crime is  actually
in progress or has just been completed may be justified
under  Coleman  even when the crime  itself  is  not  a
felony  and involves harm that in other contexts  might
not seem particularly serious.10
         We  also  explained that when a court analyzes
these close or borderline cases, the court should focus
on  two principles highlighted by the Coleman decision.
The first is to ensure that the police do not employ an
investigative  stop  (i.e., a temporary  custody  based
merely  on  reasonable suspicion rather  than  probable
cause)  as  a pretext to conduct a search for evidence.
The  second is to allow the police to perform temporary
stops  when a prompt investigation [is] required  as  a
matter of practical necessity.11
         Applying   this  analysis  to  the  facts   of
Newsoms  case, we conclude that the investigative  stop
was lawful.
         First,  the police had solid information  that
the  driver  they were seeking had just  committed  the
crime  of  eluding  a police officer.   In  fact,  even
though  Officer  Busey  did not  immediately  draw  the
conclusion  that he had witnessed first-degree  eluding
(i.e.,  a felony), the circumstances known to Busey  at
the  time  were  sufficient to support this  inference.
Those  same  circumstances were sufficient to  convince
Newsoms  trial  jury, beyond a reasonable  doubt,  that
Newsom had in fact committed the additional offense  of
reckless  driving  in his efforts to elude  Busey,  and
that Newsoms offense was therefore a felony.
         We  also  note that the police knew  that  the
driver  had  abandoned the car and  had  fled  on  foot
circumstances  indicating that something  more  serious
was  occurring than simply a driver wishing to avoid  a
traffic ticket.
         Second,    the    investigative    stop    was
essentially contemporaneous with the commission of  the
crime.   As  we  explained  above,  the  stop  occurred
approximately  seven minutes after Busey  announced  on
the radio that he was halting his immediate pursuit  of
the  fleeing  driver.  Sims and Bell, the two  officers
who  found Newsom inside Walmart, were acting in direct
response  to Buseys radio report.  For all intents  and
purposes,   they  were  acting  on  Buseys  behalf   in
conducting a hot pursuit of the fleeing driver.
         Third,   the   stop   itself   was   minimally
intrusive.  Sims and Bell held Newsom for a few minutes
         until he could be more plainly identified as the driver
of the abandoned car.  Once there was probable cause to
identify Newsom as the driver, the police were entitled
to  arrest  him   and, thus, the ensuing  detention  of
Newsom was no longer governed by Coleman.
         Fourth,  there  was plainly a need  for  quick
action  if  the driver of the car was to be apprehended
before  he  or  she left the immediate  area.   In  the
language of Coleman and of G.B., a prompt investigation
was required as a matter of practical necessity.
         And  fifth,  nothing in the facts  of  Newsoms
case suggests that the investigative stop was conducted
as  a  pretext  for  a  search  of  Newsoms  person  or
belongings.   Indeed, in Newsoms briefs to this  Court,
he does not even assert that the police searched him in
any fashion during the investigative stop.
         For   these  reasons,  we  conclude  that  the
investigative  stop of Newsom inside the Walmart  store
was lawful under Coleman, as interpreted in G.B..

Newsoms  argument  that  the grand  jury  evidence  was
insufficient   to  support  the  conclusion   that   he
committed  the  offense  of  reckless  driving  in  his
efforts to elude Officer Busey

         Newsom  challenges  the  sufficiency  of   the
evidence  presented to the grand jury with  respect  to
the  charge  of felony eluding.  In particular,  Newsom
argues  that the evidence presented to the  grand  jury
was  not  sufficient  to support  the  conclusion  that
Newsom  engaged in reckless driving in his  efforts  to
elude Officer Busey.
         When  a  defendant challenges the  sufficiency
of  the evidence supporting an indictment, the test  is
whether  the  evidence  heard by  the  grand  jury,  if
unexplained or uncontradicted, is adequate to  persuade
reasonable jurors or a judge to convict a person of the
offense  charged.  Wilkerson v. Division of Family  and
Youth Services, 993 P.2d 1018, 1025 (Alaska 1999).12
         As   we  explained  above,  a  person  commits
felony  eluding (i.e., first-degree failure to stop  at
the  direction  of  police  officer)  under  AS  28.35.
182(a)(1)  if  the person fails to stop at  the  police
officers  direction and, in so doing, the  person  also
commits  the offense of reckless driving as defined  in
AS  28.35.400(a)  formerly numbered AS 28.35.040.  This
latter  offense consists of [driving] in a manner  that
creates a substantial and unjustifiable risk of harm to
a   person   or  to  property   with  substantial   and
unjustifiable risk defined as a risk of such  a  nature
and degree that conscious disregard of it or failure to
perceive  it  constitutes a gross  deviation  from  the
standard  of  conduct  that a reasonable  person  would
observe in the situation.13
         When  Busey  testified at the grand  jury,  he
         described his attempt to stop Newsoms car:
     
          Officer  Busey:  I got behind  [the  car
     and]  ...  activated my overhead lights,  and
     actually also turned on my spotlight.  And as
     soon as I did that  there was actually a  car
     in  front  of  the  vehicle and  another  one
     alongside it  [the car] accelerated  and  cut
     between the [other] two vehicles, and  [then]
     whipped  around the one in front of it.   And
     then,  as  it continued eastbound, [the  car]
     turned  [right] and went onto Denali [Street]
     over the curb.
     
              Busey  told the grand jury  that  he
     decided not to engage in an immediate pursuit
     of Newsoms car because he (Busey) couldnt get
     between the other two vehicles the way Newsom
     had    because  they  were  just  too   close
     together,  and  I  wasnt going  to  take  the
     chance of getting in a collision.
         Given   this  testimony,  the  grand
jurors could reasonably conclude that Newsoms
driving  constituted a gross  deviation  from
the  standard  of conduct that  a  reasonable
person  would observe  in other  words,  that
Newsom  committed  the  offense  of  reckless
driving in his efforts to elude Busey.

Newsoms alternative argument that the trial evidence
was insufficient to support the conclusion that he
committed the offense of reckless driving  in  his
efforts to elude Officer Busey

    Newsom  alternatively claims that even if  the
grand  jury evidence was sufficient to  support  a
charge  of  felony eluding, the evidence presented
at  his trial was insufficient to support a guilty
verdict  on  this  charge.  Again,  Newsoms  claim
hinges  on  his  assertion that the  evidence  was
insufficient   to  establish  that  he   committed
reckless driving when he fled from Officer Busey.
    At  Newsoms trial, Busey was the only  witness
who  testified  regarding Newsoms driving.   Busey
testified  that  [Newsoms]  vehicle  had  ...  one
vehicle right next to it and another one ahead  of
it   and  that, when Busey activated his  overhead
lights, Newsom accelerated, cut between these [two
other] vehicles, got ahead of [the] one, then  cut
back,  and then ... took a right turn onto [Denali
Street]  going southbound, and actually  ran  over
the curb.
    Busey  testified  that  Newsom  [came]  pretty
close  to the other two cars  within a car  length
of each of them.  He added that he did not attempt
to  make  the same maneuver between the two  other
cars  because he was afraid [he] would strike  one
of them.
         When  a  defendant challenges the  sufficiency
of  the  trial  evidence to support a verdict,  we  are
obliged  to  view  the  evidence  in  the  light   most
favorable  to  upholding  the verdict.14   Viewing  the
evidence  in that light, it is sufficient to support  a
finding  that Newsom engaged in reckless driving  under
the  definition formerly codified in AS  28.35.040  and
currently codified in AS 28.35.400(a).
         In   the  process  of  eluding  Busey,  Newsom
accelerated,  changed  lanes  quickly,  darted  between
adjacent  cars, and made a right turn so abruptly  that
his   tires   went  over  the  curb  in  the   process.
Fortunately, Newsom did not cause an accident  when  he
engaged  in  these maneuvers.  Nevertheless, reasonable
jurors  could conclude that Newsom drove  in  a  manner
that created a risk of harm to persons or property, and
that  this  risk was of such a nature and  degree  that
[Newsoms]  conscious  disregard of  it  or  failure  to
perceive  it constitute[d] a gross deviation  from  the
standard  of  conduct  that a reasonable  person  would
observe  in  the situation.  Accordingly,  we  conclude
that  the  trial  evidence was  legally  sufficient  to
support the verdict.

Conclusion

         The   judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
1 At the time of Newsoms offense, the reckless driving statute
was numbered AS 28.35.040.

2 958 P.2d at 1110-11.

3 Id. at 1111.

4 Id. at 1113.

5 G.B., 769 P.2d at 453-54.

6 See AS 11.46.130(a)(1) and 130(c).

7 G.B., 769 P.2d at 454.

8 Id. at 455.

9 Id.

10Id. at 456.

11Id. at 456, citing Coleman, 553 P.2d at 46.

12Citing State v. Parks, 437 P.2d 642, 644 (Alaska 1968), and
Alaska Criminal Rule 6(q).

13AS 28.35.400(a).

14See,  e.g., Eide v. State, 168 P.3d 499, 500 (Alaska  App.
2007);  Simpson v. State, 877 P.2d 1319, 1320  (Alaska  App.
1994).

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