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Tickett v. State (9/19/2014) ap-2427

Tickett v. State (9/19/2014) ap-2427

                                                   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  



PATRICK L. TICKETT,                                 )  

                                                    )            Court of Appeals No. A-11043 

                                      Appellant,    )            Trial Court No. 2KB-09-79 CR  

                                                    ) 

                  v.                                )                  O  P  I  N  I  O  N  

                                                    )  

STATE OF ALASKA,                                    )  

                                                    )            No. 2427 - September 19, 2014 

                                      Appellee.     )  

_________________________________)  



                 Appeal  from  the  Superior  Court,  Second  Judicial  District,  

                 Kotzebue, Ben Esch, Judge.  



                 Appearances:  Dan  S.  Bair,  Assistant  Public  Advocate,  and  

                 Richard Allen, Public Advocate, Anchorage, for the Appellant.  

                 Nancy R. Simel,  Assistant  Attorney  General,  Office of Special  

                 Prosecutions       and    Appeals,     Anchorage,       and    Michael      C.  

                  Geraghty, Attorney General, Juneau, for the Appellee.  



                 Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                 District Court Judge.*  

                                               



                 Judge HANLEY.  



    *    Sitting  by  assignment  made  pursuant  to  article  IV,  section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                    In November 2008, Patrick L. Tickett was driving his snow machine from  

                                                                                     



Kotzebue  to  Noorvik  at  approximately  sixty  miles  per  hour  after  having  consumed  



alcohol, marijuana, and cocaine.  Two people with a team of sled dogs were on the trail  



at the same time.  Tickett did not see the people or dogs until it was too late for him to  

                                                                                                              



avoid a collision.  Tickett's snow machine struck the people, killing one and seriously  

                                                                  



injuring the other.  A jury convicted Tickett of manslaughter, first-degree assault, and  

                                                                         



driving under the influence.  



                    Tickett  claims  the  trial  court  erred  by  improperly  restricting  his  cross- 

                                                                                                   



examination of one of the State's expert witnesses. We conclude that the superior court's  

                                                                             



limitation of Tickett's cross-examination of the State's expert was error.  However, given  

                                                               



the facts of this case, the error was harmless.  



                    Tickett also claims that the trial court erred when it allowed the State to  

                                                                                                  



introduce evidence that Tickett had ingested cocaine prior to the collision.  We conclude  

                                                                                        



that the court correctly denied Tickett's motion to exclude evidence of the cocaine.  



                    Finally, Tickett asserts his sentence is unlawfully severe.  The sentence  



imposed by the superior court is not clearly mistaken.  We therefore affirm the judgment  

                                                 



of the superior court.  



          Facts and proceedings  



                    At around 7:15 p.m. on November 19, 2008, Dr. Roger Gollub and Tracey  

                                            



Schaeffer  went  mushing  with  a  team  of  sled  dogs  on  a  multi-use  trail  outside  of  



Kotzebue.    Gollub  was  dressed  in  a  white  wind  suit  that  did  not  have  reflectors.  

                                                        



Schaeffer's parka had a reflector on the back of it, and the dog harnesses had reflective  

                            



material on them.  When they had traveled approximately four miles outside of town,  



                                                                2                                                           2427
  


----------------------- Page 3-----------------------

Schaeffer noticed a snow machine approaching from behind. She decided to stay on the  

                                                                                                    



trail but began waving her headlamp to signal the driver of the snow machine.  



                    Tickett  was  driving  the  snow  machine  with  Clarissa  Cleveland  as  a  

                                                                      



passenger.  Cleveland had contacted Tickett earlier that day to get a ride to Noorvik.  

                                                          



Tickett's  goggles  were  fogging  up,  he  was  driving  the  snow  machine  at  a  speed  of  



approximately sixty miles per hour, and he did not see Schaeffer waving her headlamp.  

                                                                              



By  the time Tickett saw Gollub and Schaeffer, it was too late to stop and the snow  

       



machine struck Schaeffer, Gollub, and the dog sled.  



                    On impact, Schaeffer was thrown from the sled, and Tickett and Cleveland  

                                                             



were thrown from the snow machine.  Although she was injured, Schaeffer walked back  



to the sled and saw that it had landed on Gollub.  With Cleveland's help, Schaeffer lifted  

                                    



the sled off of Gollub.  Schaeffer administered first aid to Gollub, who was severely  

              



injured.  



                    After unsuccessfully attempting to use a radio and start the snow machine,  

                                                                                                        



Tickett began walking back to Kotzebue to get help, and Cleveland ran after him.  An  

                                                                                                               



unidentified  person  on  a  snow  machine  gave  Tickett  and  Cleveland  a  ride  back  to  

                                                                                            



Kotzebue.  Tickett called 911 when they arrived at his mother's house at about 9:00 p.m.  

                                                                                                          



                    Gollub  died  from  the  injuries  he  sustained.    Schaeffer  suffered  life- 

                                                                                                               



threatening  injuries,  remained  in  the  hospital  for  two  weeks,  and  continued  to  have  



complications following her release.  



                    When the police questioned Tickett on the night of the incident, an officer  



detected the odor of alcohol coming from him.  Tickett initially denied having used  



alcohol prior to the crash but later admitted to having taken a couple of shots to "deal  

                                              



with the cold."  He later told the police that he had taken two or three swigs of whiskey  

                                                                   



                                                                 3                                                           2427
  


----------------------- Page 4-----------------------

before heading to Noorvik.  He also stated that he had smoked a joint of marijuana  



between 6:00 and 7:00 p.m.  



                    Cleveland later told the police that Tickett admitted using cocaine on the  

                                                   



day of the incident.   Cleveland also testified that even though she did not see Tickett  

                                



drink any alcohol before the collision, and while he did not appear to be intoxicated, she  



smelled alcohol on him prior to the collision.  



                    Tickett consented to a blood draw, and a sample was taken shortly before  

                                                                                                   



midnight.  The State's analysis of the blood sample revealed that Tickett's blood alcohol  

                                              



level was .069 percent.  The defense analysis reflected a blood alcohol level of .052  

                                                                                                             



percent.  The Washington state toxicology lab also analyzed Tickett's blood and found  



that  it  contained  substances  indicating  prior  use  of  marijuana,  cocaine,  and  alcohol  

           



(described in more detail below).  

                    A grand jury indicted Tickett on charges of second-degree murder 1 and  



                             2                                                                                   3 

first-degree assault;  the State added a charge of driving under the influence.   Prior to  



                                                                                                          

trial, Tickett moved to preclude the State from introducing evidence of his cocaine use  



on the day of the crash, but the court denied the motion.  



                    Superior Court Judge Ben Esch presided over Tickett's trial.  During the  

                                                                                                                



trial, the court granted Tickett's motion for a judgment of acquittal on the second-degree  

                                                                                                 



murder charge.  Following the acquittal, the State argued that Tickett was guilty of the  

                         



lesser-included offense of manslaughter for recklessly causing Gollub's death.  The State  

                                                                                



     1    AS 11.41.110(a)(2).  



     2    AS 11.41.200(a)(l), (a)(3).  



     3    AS 28.35.030(a)(l), (a)(2).  



                                                               4                                                           2427  


----------------------- Page 5-----------------------

argued that Tickett was reckless in that he drove under the influence of drugs and alcohol           



at a speed of sixty miles per hour with foggy goggles.  



                      Tickett countered that his actions were not reckless.  He asserted that due  

                                                                                                                     



to a number of factors, including the weather, Gollub's white clothing, and Schaeffer's  

                                                        



head lamp allegedly being broken, he did not see the victims or the dog sled with enough  



time to stop.  Tickett also argued that he was not intoxicated and that Schaeffer was at  



fault for not moving the sled off the trail.  

                      The  jury  ultimately  convicted  Tickett  of  manslaughter,4  

                                                                                                                            first-degree  



            5                 6 

                                                                                                                                   

assault,  and DUI.   The trial court sentenced Tickett to a composite sentence of 19 years  



                                                                                         

with 4 years suspended, resulting in 15 years to serve.  Tickett appeals his conviction and  



sentence.  



                                                                                                         

           The trial court erred by precluding Tickett from using a treatise to cross- 

           examine one of the State's experts  



                                                                   

                      On appeal, Tickett argues that the trial court erred when it precluded him  



          

from cross-examining one of the State's expert witnesses with a learned treatise.  We  



agree with Tickett but conclude the error was harmless.  



                      The State presented two experts during the trial to support its theory that  



Tickett was intoxicated at the time of the crash.  Stephan Palmer, a forensic scientist at  

                                                                                                             



      4    AS   11.41.120(a)(1)   (recklessly   causing   "the   death   of   another   person   under  



circumstances not amounting to murder in the first or second degree").   



      5    AS 11.41.200(a)(1) (recklessly causing "serious physical injury to another by means                                   



of a dangerous instrument").  



      6    AS  28.35.030(a)(1)  (driving  a  motor  vehicle  while  "under  the  influence  of  an  



alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly or in   

combination").  



                                                                       5                                                                2427
  


----------------------- Page 6-----------------------

the State crime laboratory, first testified regarding the test results for Tickett's blood and  

                                               



the effects of alcohol on people.  Without objection from the State, Tickett extensively  

                                                                                           



cross-examined Palmer using a book entitled Alcohol and Drug Intoxication by Russell  



Rockerbie.  



                    The next day, the State presented a second expert witness, Brian Capron.  

                                                                         



 Capron was a toxicology supervisor at the Washington state toxicology laboratory; he  

                                                                 



tested Tickett's blood sample for the presence of drugs.  Capron testified that Tickett's  



blood contained carboxy THC (an inactive metabolite of marijuana), benzoylecgonine  



(the primary inactive metabolite of cocaine), and a small amount of cocaethylene (an  



active  metabolite  that  forms  when  cocaine  and  alcohol  are  used  concurrently).    He  



further  testified  about  the  effects  of  marijuana  and  cocaine  both  separately  and  in  

                                                                                



combination with alcohol. Dr. Patricia Sulik, an expert witness for Tickett, was listening  

                                                                                             



telephonically to part of Capron's testimony but had to hang up the phone so that she  

                                                                    



could board a plane to Alaska for the trial.  



                    During cross-examination, Tickett attempted to use Rockerbie's book to  



question Capron's opinion regarding how marijuana affects people.  He asked Capron  

                                                                                          



if he was aware of Rockerbie's book, and Capron replied that he had never heard of  



Rockerbie.  When Tickett asked Capron to look at a particular page of Rockerbie's book,  

                                                                                                  



the State objected on the ground that Tickett had not established the proper foundation  

                                                                   



for introducing the book as a learned treatise under Evidence Rule 803(18).  



                    The  trial  court,  over  Tickett's  objection,  ruled  that  if  Capron  did  not  



acknowledge Rockerbie's book as a learned treatise, then Tickett could not use it to  



cross-examine Capron.  Tickett told the court that Sulik could establish that Rockerbie's  

                                                                          



book was an authoritative treatise within the meaning of Evidence Rule 803(18), but that  

                                                                                                                      



Sulik was unavailable because she was flying to Alaska.  



                                                               6                                                         2427
  


----------------------- Page 7-----------------------

                     The trial court ruled that Sulik's testimony would not make any difference.  



That  is,  the  judge  declared  that  even  if  Sulik  testified  that  Rockerbie's  book  was  a  



learned treatise, he would not allow Tickett to use Rockerbie's book to cross-examine  



Capron because Capron did not personally acknowledge the book as a learned treatise.  

                                                                                                           



                     On   appeal,   Tickett   argues   that   the   trial   judge   misunderstood   the  

                                                      



foundational basis to introduce statements from a learned treatise, and that the judge  



incorrectly precluded him from using Rockerbie's book to cross-examine Capron.  We  

                                                                                                                               



agree.  



                     Alaska  Evidence  Rule  803(18)  provides  for  the  admission  of  hearsay  



statements contained in "learned treatises" -  i.e., published works "on a subject of  



history, medicine, or other science or art" - to the extent that these hearsay statements  

                                                           



either are "relied upon by [an] expert witness in direct examination" or are "called to the  

                                                                                   



attention  of  an  expert  witness  [during]  cross-examination[.]"    The  proponent  of  the  



hearsay evidence must establish that the treatise in question is "a reliable authority," but  

                                                               



Rule 803(18) allows the proponent of evidence to do this in one of three ways:  through  

                                                                                                               



the testimony or admission of the expert witness, through other expert testimony, or by  

                                                                                                  

judicial notice. 7  



     7    Alaska Evidence Rule 803(18) reads:  



           The following [statements] are not excluded by the hearsay rule, even though the  

                                                                                 

     declarant is available as a witness:  

           .  .  .  .  

                     (18)  Learned Treatises.  To the extent called to the attention of an expert  

                                                                                                               

          witness upon  cross-examination or relied upon by the expert witness in direct  

                                

           examination, statements contained in published treatises, periodicals, or pamphlets  

           on a subject of history, medicine, or other science or art, established as a reliable  

                   

           authority by the testimony or admission of the witness or by other expert testimony  

           or by judicial notice.  If admitted, the statements may be read into evidence but  

                                                                                           

          may not be received as exhibits.  



                                                                  7                                                           2427
  


----------------------- Page 8-----------------------

                   The second paragraph of the Commentary to Alaska Evidence Rule 803(18)  



clarifies that Alaska's hearsay exception for learned  treatises is meant to codify the  

                                                                              



                                      8 

                                                                         

holding of Reilly v. Pinkus ,  and other "recent well considered state court decisions" - 



                                                                                      

i.e., the rule that litigants should be allowed to use learned treatises to cross-examine  



                                                                                       

their opponents' expert witnesses when the treatise's status as an authority is established  



                                                           

by any means, even though the witnesses themselves do not acknowledge the treatise as  



authoritative.  



                   In the present case, Tickett made an offer of proof that his expert, Sulik,  

                                                                                            



would testify that Rockerbie's book was an authoritative work.  The trial judge ruled that  



Sulik's testimony would be irrelevant - that Tickett would not be allowed to cross- 



examine  Capron  with  statements  from  Rockerbie's  book  unless  Capron  personally  



acknowledged the book as an authoritative treatise.  This was error.  



                   However, we agree with the State that this error was harmless under the  



facts of Tickett's case.  



                   The State called Capron as an expert witness in toxicology to testify about  

                                                                                   



the effects of alcohol and drugs, in particular marijuana and cocaine.  Although Tickett  

                                     



was unable to cross-examine Capron using Rockerbie's treatise, Tickett did challenge  



Capron's testimony by using other authoritative sources.  For example, when Tickett  



cross-examined Capron using scientific studies and another learned treatise, Capron  



agreed that it is possible for cocaine (a central nervous system stimulant) to reverse some  



of the fatigue that otherwise might be caused by marijuana (a depressant).  



                   Nor   was   Tickett   completely   barred   from   using   the   information   in  



Rockerbie's book.  He used Rockerbie's book to cross-examine the State's other expert,  



     8    338 U.S. 269, 275 (1949).  



                                                            8                                                         2427  


----------------------- Page 9-----------------------

Palmer, and Tickett's own expert, Sulik, testified extensively about various statements  

                                         



in  Rockerbie's  book,  including  Rockerbie's  conclusion  that  the  combined  effect  of  



marijuana and alcohol could actually lower a person's risk of causing an accident.  



                    We also  note  that Tickett's primary defense was that his collision with  

                                          



Gollub and Schaeffer was an "unavoidable accident" and that he had not acted recklessly  

                                                                                                     



even if he had consumed intoxicating substances.  Tickett argued that there was "almost  

                                                                                      



no chance" that  anyone else would be on the trail outside of Kotzebue when he was  

      



traveling, and that the chances were even smaller that he would encounter people who  

                                                                                                                



were not wearing reflective clothing and were stopped in the middle of the trail with a  

                                                                                                                        



dog team.  



                    In his summation to the jury, Tickett only briefly mentioned the evidence  



of his intoxication - characterizing the State's evidence as "some vague confusing  



numbers about cocaine and marijuana." Tickett never mentioned Capron's testimony or  

                                                                                 



that Sulik's testimony suggested that the jurors should discount Capron's opinions.  



                    Tickett  contends  that  the  trial  court's  restriction  on  Tickett's  cross- 



examination rises to the level of constitutional error, and that the error therefore requires  

                                                                              



reversal of his conviction unless it is shown to be harmless beyond a reasonable doubt.  

                                                                           



We doubt that the trial judge's erroneous hearsay ruling in this case is of constitutional  

                                               



dimension.    But  in  any  event,  we  conclude  that  the  ruling  was  harmless  beyond  a  



reasonable doubt.  



                                                               9                                                          2427
  


----------------------- Page 10-----------------------

          The  trial  court  properly  allowed  the  State  to  introduce  evidence  of  Tickett's  

          cocaine use  



                    Prior to trial, Tickett asked the superior court to bar the admission of any  

                                                                                                       



evidence that he had ingested cocaine before the collision. The court denied this motion,  

                                                                                                    



and Tickett now challenges the court's ruling.  



                    Tickett argues that the trial court should have excluded all evidence of the  

                                                                                       



cocaine metabolite in his blood pursuant to Evidence Rule 403 because the probative  



value of this evidence was low and it was unfairly prejudicial.  More specifically, he  

                                   



asserts that the amount of the metabolite found in his blood was insignificant and there  

                                                                      



was no evidence that his consumption of cocaine played a role in the collision.  Tickett  

                                                                                       



also asserts that the revelation of his cocaine use would lead the jury to believe he was  



a "drug user and of unsavory character."  



                    To establish the offense of manslaughter, the State was required to prove  

                                                                                  



                                                                                     9  

that Tickett recklessly caused the death of another person.  

                                                                                        To establish the offense of  



first-degree assault, the State had to prove that Tickett recklessly caused serious physical  



                                                                                             10  

injury to another person by means of a dangerous instrument.    And to establish the  



offense of driving under the influence, the State had to prove that Tickett drove a motor  



                                                        

vehicle while under the influence of an alcoholic beverage or a controlled substance,  

singly or in combination.11  



                    The trial judge could properly conclude that the challenged evidence was  



                                                                                                     

relevant to prove that Tickett acted recklessly and that he was under the influence.  The  



     9    AS 11.41.120(a)(1).   



     10   AS 11.41.200(a)(1).  



     11   AS 28.35.030(a)(1).   



                                                              10                                                           2427  


----------------------- Page 11-----------------------

State presented expert testimony that cocaine is a stimulant and that it can cause a person  



to be inattentive, to have difficulty with complex, divided-attention tasks such as driving,  

                                                                                                        



and to engage in aggressive, risk-taking behavior.  



                   Further,  the  prosecutor  never  suggested  that  the  jury  should  use  the  



evidence of Tickett's cocaine use for any other purpose.  And Tickett never asked the  

                   



judge to give a cautionary instruction on the potential misuses of this evidence.  



                   Given this record, we conclude the trial court did not abuse its discretion  



when it allowed the State to present evidence of Tickett's ingestion of cocaine.  



          Tickett's sentence is not clearly mistaken  



                   The jury convicted Tickett of manslaughter, first-degree assault, and DUI. 

                                                                                    

 Because manslaughter and first-degree assault are class A felonies, 12 and because Tickett  



                                                                                

caused serious injury and death during the commission of these offenses, he was subject  



                                                                                                     13  

to  a  presumptive  sentencing  range  of  7  to  11  years  on  each  count.                              For  the  DUI  



                                                                 14  

                                                                                                 

conviction, which is a class A misdemeanor,                         Tickett was subject to a maximum term  

of 1 year and a minimum term of 3 days of imprisonment.15  



                                                                             

                   The sentencing court rejected Tickett's proposed mitigating factor that his  



conduct was among the least serious within the definitions of manslaughter and first- 



            

degree assault, and the court sentenced Tickett to a composite sentence of 19 years with  



4 years suspended, resulting in 15 years to serve.  



     12   AS 11.41.120(b); AS 11.41.200(b).   



     13   AS 12.55.125(c)(2)(A).   



     14   AS 28.35.030(b).   



     15   AS 28.35.030(b)(1)(A).   



                                                             11                                                       2427
  


----------------------- Page 12-----------------------

                    Tickett claims on appeal that this sentence is clearly mistaken.  



                    "When a defendant [challenges] a composite sentence for two or more  



criminal convictions, this Court assesses whether the defendant's combined sentence is  

                                       

clearly  mistaken,  given  the  whole  of  the  defendant's  conduct  and  history."16  

                                                                                                                             In  



                                                                                                                              17  

                                                                                             

sentencing a defendant, Alaska courts consider the factors set forth in State v. Chaney 



                                                                                                           

and AS 12.55.005.  These factors include: the seriousness of the offense, the defendant's  



                                                                                               

criminal history and prospects for rehabilitation, the necessity of confining the defendant  



to prevent future harm to the public, deterrence, community condemnation, reaffirmation  



                                                                             

of  societal  norms,  the  effect  on  the  victim,  and  restoration  of  the  victim  and  the  

community.18  



                    Here,  the  sentencing  court  considered  the  above  factors  in  formulating  



                                                                          

Tickett's sentence.  The court noted that Tickett was nineteen years old at the time of  



these  offenses  and  that  he  had  had  prior  contact  with  the  juvenile  court,  as  well  as  



                                                         

convictions for consuming alcohol as a minor and violating the conditions of his release.  



The court also noted that while the charges were pending in this case, Tickett committed  



another, unrelated felony.  



                    The court recognized the positive steps Tickett had taken since this incident,  



including participating in a substance abuse program, graduating from high school, and  

                                                                                 



completing vocational training.  The court reasoned, however, that the tragic death of  

                                                                                                      



Gollub and serious injuries to Schaeffer were foreseeable consequences of operating a  

                                                                     



     16    Carlson v. State, 128 P.3d 197, 214 (Alaska App. 2006) (original citations omitted).
   



     17   477 P.2d 441, 444 (Alaska 1970).  
 



     18   AS 12.55.005; Chaney, 477 P.2d at 444.
  



                                                               12                                                           2427  


----------------------- Page 13-----------------------

snow machine along a public trail at a high rate of speed, and with reduced visibility,   



while under the influence.  



                          The court considered the effect of the collision on the victims, including  

                                                                      



Gollub's family, and the court found that Schaeffer's injuries would affect her for the rest  

                                                                       



of her life.  The court concluded that the primary Chaney goal was the reaffirmation of  

                       



societal norms, and that Tickett's sentence needed to demonstrate the seriousness of  



impaired driving to the larger community.  The court further reasoned that its secondary  

                                                                                                       



goal was deterrence and that isolation was also a factor.  



                          When  reviewing  a  sentence  on  appeal,  this  Court  will  not  disturb  the  



                                                                                                               19  

sentencing court's decision unless it is clearly mistaken.  

                                                                                                                                        

                                                                                                                    Here, the sentencing court  



carefully considered the sentencing criteria.  Based on our review of the record, we  



conclude that the sentence imposed by the superior court is not clearly mistaken.  



             Conclusion  



                          The judgment of the superior court is AFFIRMED.  



       19    Nicholas v. State , 477 P.2d 447, 449 (Alaska 1970).  



                                                                                   13                                                                                2427  

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