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Lewis v. State (8/14/2015) ap-2468

Lewis v. State (8/14/2015) ap-2468

                                                                               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@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                     



GEORGE  W.  LEWIS,  

                                                                                                      Court  of  Appeals  No.  A-11189  

                                                      Appellant,                                    Trial  Court  No.  3PA-10-2656  CR  



                                        v.  

                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                 

STATE  OF  ALASKA,  



                                                      Appellee.                                         No. 2468 - August  14, 2015  

                                                                                                                                                        



                           Appeal from the Superior Court, Third Judicial District, Palmer,  

                                                                                                                                      

                           Vanessa H. White, Judge.  

                                                                



                           Appearances:  Laurence Blakely, Mendel & Associates, under  

                                                                                                                                          

                           contract with the Public Defender Agency, and Quinlan Steiner,  

                                                                                                                                      

                           Public  Defender, Anchorage, for the Appellant.   Timothy W.  

                                                                                                                                              

                           Terrell,          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 MANNHEIMER.  



       *  

              Sitting   by   assignment    made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                             


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

                                                         In this case, the State introduced scientific evidence - specifically, (1) the                                                                                                                                                                                                                            



result of a breath test conducted on a hand-held "preliminary" breath testing device, and                                                                                                                                                                                                                                                                       



 (2)   the result of                                                    a   chemical field test for marijuana - without first establishing the                                                                                                                                                                                                                   



 scientific validity of either test as required by                                                                                                                                        State v. Coon                                            , 974 P.2d 386 (Alaska 1999).                                                                                                 



                                                          (In   Coon,   the   Alaska   Supreme   Court   adopted   the   federal test                                                                                                                                                                                                           for   the  



 admissibility                                                of                  scientific                                     evidence                                      announced                                              in              Daubert                                     v.               Merrell                                  Dow  



Pharmaceuticals, Inc.                                                                           , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).)                                                                                                                                                                                                   



                                                         When the defendant objected that the State had not laid a proper foundation                                                                                                                                                                                               



 for this evidence under the                                                                                      Daubert-Coon  rule, the trial judge mistakenly ruled that the                                                                                                                                                                                   



 defendant had already waived any                                                                                                                 Daubert-Coon  objection by failing to raise this issue                                                                                                                                                  



before trial.                                         The judge therefore                                                                          allowed the State to introduce this evidence even                                                                                                                                                      



though   the   State   never   established   the   required   foundation   for   the   evidence   under  



Daubert-Coon.  



                                                         We take this occasion to clarify two legal principles.                                                                                                                                                                 First, absent a pre-trial                                  



 order expressly requiring the litigation of a                                                                                                                              Daubert-Coon  issue before trial, a litigant can                                                                                                                                     



 object to scientific evidence on                                                                                                     Daubert-Coon   grounds when the evidence is offered.                                                                                                                                                                                       



 Second,   if   a   party   offers   evidence   that   qualifies   as   "scientific"   for   purposes   of   the  



Daubert-Coon  rule, and another party objects to the lack of foundation, the trial judge                                                                                                                                                                                                                                                                



must   not   admit   this   evidence   unless   the   proponent   of   the   evidence   establishes   its  



 scientific validity under                                                                         Daubert-Coon.  



                                                         Nevertheless, as we explain in this opinion, we conclude that the erroneous                                                                                                                                                                                                  



 admission of this scientific evidence was harmless under the facts of Lewis's case, and                                                                                                                                                                                                                                                                        



we therefore affirm his convictions.                                                                                                                     



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

                                           Underlying facts   



                                                                                  The Wasilla police received a call from a person who reported that a small                                                                                                                                                                                                                                                                                                                                              



white   truck   was   being   driven   erratically,   and   that   the   truck   had   stopped   in   the  



 intersection of the Palmer-Wasilla Highway and the Parks Highway.                                                                                                                                                                                                                                                                                                                                                                 



                                                                                  When a police officer arrived at the intersection, he saw that the truck was                                                                                                                                                                                                                                                                                                                                                          



 still there, parked in the left-hand turn lane, and that its engine was not running.                                                                                                                                                                                                                                                                                                                                                                                                                            The  



person who had called the police was also still at the intersection, watching the truck.                                                                                                                                                                                                                                                                                                                                                                                                                                                        



                                                                                  The police officer saw someone get out of the truck on the driver's side and                                                                                                                                                                                                                                                                                                                                                             



head toward                                                                        a   nearby gas station.                                                                                                                   This person was George W. Lewis.                                                                                                                                                                                                       The officer   



 contacted Lewis, and he observed that Lewis appeared to be intoxicated:                                                                                                                                                                                                                                                                                                                                                                                      there was an                                                       



 odor of alcohol about Lewis's person; he had bloodshot, watery eyes; his speech was                                                                                                                                                                                                                                                                                                                                                                                                                                  



 slurred; and he swayed from side to side while standing.                                                                                                                                                                                                                                                                                                



                                                                                  When the officer asked Lewis why he had left his truck in the middle of the                                                                                                                                                                                                                                                                                                                                                                



 intersection, Lewis explained that the truck would not start.                                                                                                                                                                                                                                                                                                                         When the officer asked                                                                                              



Lewis how much he had had to drink that evening, Lewis answered, "Not enough."                                                                                                                                                                                                                                                                                                                                                                                                                                                    



                                                                                  The officer administered three field sobriety tests to Lewis,                                                                                                                                                                                                                                                                                                                     and Lewis's   



performance indicated that he was intoxicated.                                                                                                                                                                                                                                                The officer then asked Lewis to submit                                                                                                                                                                   



to a preliminary breath test.                                                                                                                                                The test result was a blood alcohol level of .217 percent.                                                                                                                                                                                                                                                                                                         



                                                                                  At this point, the officer placed Lewis under arrest for driving under the                                                                                                                                                                                                                                                                                                                                                                



 influence.    During the arrest process, the officer asked Lewis if he was carrying any                                                                                                                                                                                                                                                                                                                                                                                                                               



weapons or any other objects on his person that the officer should be concerned about.                                                                                                                                                                                                                                                                                                                                                                                                                                                             



Lewis answered no, but that he had marijuana in his pocket.                                                                                                                                                                                                                                                                                                                The officer pulled a baggie                                                                                           



 out of Lewis's pants pocket, and he subjected the contents of the baggie to a chemical                                                                                                                                                                                                                                                                                                                                                                                          



 field test.                                              The field test indicated that the material in the baggie was marijuana.                                                                                                                                                                                                                                                                                                                                                                      



                                                                                  In the meantime, a computer check of Lewis's license status showed that                                                                                                                                                                                                                                                                                                                                                                



his license was revoked.                                                                                                                               



                                                                                                                                                                                                                                                           -  3 -                                                                                                                                                                                                                                                     2468
  


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

                                  The officer transported Lewis to the police station, where Lewis submitted                                                                                        



to the statutorily required breath test on a DataMaster.                                                                                      This test showed that Lewis's                              



blood alcohol level was .24 percent.                                                          



                                  Based on the foregoing, and based on Lewis's prior convictions for driving                                                                                                



under the influence, Lewis was charged with felony driving under the influence, driving                                                                                                                     



while   his   license   was   revoked,   and   sixth-degree   controlled   substance   misconduct  

                                                                    1  He was convicted of all three offenses following a jury trial.  

(possession of marijuana).                                                                                                                                                                                                     



                                                                                                               

                  The superior court's Daubert-Coon rulings  



                                                                                                                                                                                                          

                                  On the morning that Lewis's trial began, Lewis's attorney filed a motion  



                                                                                                                                                                                                                     

in limine asking the superior court to prohibit the State from introducing the result of the  



                                                                                                                                                                                                

preliminary breath test, on the basis that there had been no showing that the preliminary  



                                                                                                                                                                                                                               

breath test device met the standard for scientific evidence set forth in Daubert and Coon.  



                                                                                                                                                                                                    

                                  The prosecutor responded to the defense attorney's motion by conceding  



                                                                                                                                                                                       

that the State could not show that  the preliminary breath test met the Daubert-Coon  



                                                                                                                                                                                                                     

standard.  For this reason, the prosecutor explained, he would not offer evidence that the  



                                                                                                                                                                                  

preliminary breath test yielded a result of .217 percent blood alcohol.  



                                                                                                                                                                                                                    

                                  Instead, the prosecutor stated that he would merely introduce evidence that  



                                                                                                                                                                                                        

the  preliminary  breath  test  result  indicated  "the  presence  ...  of  alcohol"  in  Lewis's  



                                                                                                                                                                                                

system.  The prosecutor told the court that this was the "standard" way that preliminary  



                                                                                                                                                                                                                  

breath test results "[had] always been addressed ... in every other DUI trial that [he had]  



                    

done."  



                                                                                                                                                                                                                      

                                  After taking a brief recess to consider the matter, the judge agreed that the  



                                                                                                                                                                                        

State had failed to establish that the preliminary breath test device met the Daubert-Coon  



         1  

                 AS 28.35.030(n), AS 28.15.291(a)(1), and AS 11.71.060(a)(2), respectively.                                                                                                                 



                                                                                                         -  4 -                                                                                                  2468
  


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

 standard - if the test result was offered to prove that there was a specific amount of                                                                                                                                                                                                                                                                                                                                                                                                                                         



alcohol in a person's system.                                                                                                                                                             However,   the judge declared,                                                                                                                                                                     without any supporting                                                         



evidence or supporting legal authority, that the preliminary breath test device "meets the                                                                                                                                                                                                                                                                                                                                                                                                                                  



 ...  Daubert-Coon  standard" when the test result is merely offered to prove "the existence                                                                                                                                                                                                                                                                                                                                                                                           



of alcohol" in a person's system.                                                                                                                                                                          



                                                                                  The judge also ruled (in the alternative) that Lewis's motion to prohibit the                                                                                                                                                                                                                                                                                                                                                            



 State from introducing the preliminary breath test evidence was "untimely".                                                                                                                                                                                                                                                                                                                                                                                                 The judge   



noted that, earlier, Lewis's attorney had announced that the defense was ready for trial.                                                                                                                                                                                                                                                                                                                                                                                                                                                        



The judge declared that, once the parties announced themselves ready for trial, "the time                                                                                                                                                                                                                                                                                                                                                                                                                           



 for [  Daubert-Coon] motions [had] passed."                                                                                                                                                                                                                                 



                                                                                  During the State's case, the prosecutor asked the arresting officer if Lewis                                                                                                                                                                                                                                                                                                                                             



took a preliminary breath test.                                                                                                                                                       The officer testified that Lewis submitted to this test, and                                                                                                                                                                                                                                                                      



that the test result indicated "a presence of alcohol".                                                                                                                                                                                                                                                                         



                                                                                  The prosecutor then asked the arrestingofficer about                                                                                                                                                                                                                                                                     the officer's pat-down  



 search of Lewis's pockets at the time of the arrest.                                                                                                                                                                                                                                                               The officer testified that Lewis told                                                                                                                                                              



him that there was "pot" in                                                                                                                                      his pocket -and                                                                                           that, after Lewis said this, the officer pulled                                                                                                                                                                               



a small baggie from Lewis's pocket.                                                                                                                                                                                          According to the officer, this baggie contained "a                                                                                                                                                                                                                                                 



 substance that appeared to be marijuana".                                                                                                                                                                                                                        



                                                                                  The officer explained that, because of his police training and experience,                                                                                                                                                                                                                                                                                                            



he was personally familiar with what marijuana looked and smelled like.                                                                                                                                                                                                                                                                                                                                                                      The officer told                                                          



the jury that, when he examined the contents of the baggie from Lewis's pocket, "that's                                                                                                                                                                                                                                                                                                                                                                                                             



what it looked like to me."                                                                                                                                                  And the officer added that the substance in                                                                                                                                                                                                                                                 the   baggie  



emitted the "very distinctive odor" of marijuana.                                                                                                                                                                                                                                                        



                                                                                  The officer then testified that he performed a chemical field test on the                                                                                                                                                                                                                                                                                                                                                               



 substance in the baggie,                                                                                                                              and that this substance "did react".                                                                                                                                                                                               At   this   point,   Lewis's  



                                                                                                                                                                                                                                                          -  5 -                                                                                                                                                                                                                                                     2468
  


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

 attorney objected (outside the presence of the jury) that there had been no showing that                                                                                                                                                                                                                                                                                                                                                  



this marijuana field test was scientifically reliable under the                                                                                                                                                                                                                                                 Daubert-Coon  standard.    



                                                                      The   prosecutor   conceded   that   evidence   of   the   field   test   result   was  



 "scientific" evidence for purposes of the                                                                                                                                                                       Daubert-Coon  rule.   But instead of offering a                                                                                                                                                                                        



Daubert-Coon   foundation for this evidence, the prosecutor suggested that the problem                                                                                                                                                                                                                                                                                                                             



 could be solved by giving the jury a limiting instruction - an instruction that the field                                                                                                                                                                                                                                                                                                                                            



 test result, "in and of itself", was not sufficient to prove the State's case with regard to                                                                                                                                                                                                                                                                                                                                                      



 the charge of marijuana possession.                                                                                                                                                       



                                                                      Again,   the   trial judge                                                                                         ruled   that   the   defense   attorney's   Daubert-Coon  



 objection was not timely.                                                                                                       Nevertheless, the trial judge allowed the prosecutor to conduct                                                                                                                                                                                                                      



 a  voir dire                                         examination of the arresting officer to see whether the marijuana field test met                                                                                                                                                                                                                                                                                                      



 the  Daubert-Coon  standard for scientific validity.                                                                                                                                                                                                            



                                                                      During this                                               voir dire                                         testimony, the police officer explained how the field                                                                                                                                                                                                



 test worked.                                                      He told the court that the testing device was a "small packet" that had                                                                                                                                                                                                                                                                                                



 "some chemicalin                                                                            it".   A person conducting the test "take[s] a small part of the substance  



 [to be tested]" and puts it in the small packet.                                                                                                                                                                                               Then, according to the officer, "there's                                                                                                                            



 three different glass, little amulets [                                                                                                                                           sic:    ampules] in there, and you break [them] in a                                                                                                                                                                                                                



 sequence, and [you] agitate the substance.                                                                                                                                                                                   [And] if it turns a particular color and then                                                                                                                                                            



 separates,   [that is] a presumptive positive test for the presence of THC" (the active                                                                                                                                                                                                                                                                                                                                      

 ingredient in marijuana).                                                                                                      2  

                                                                                                                                       



                  2  

                                   More specifically, the officer described the testing procedure as follows:                                                                                                                                                                                                                                                                                               



                                                                      Officer:   It's very simple.                                                                                                ...   It's three steps, [and] it's got the instructions                                                                                                                           

                                   right on the - every little packet you use.                                                                                                                                                                       [You] put the substance in; you break                                                                                                                         

                                   the first [ampule], [you] agitate it for about 30 seconds, [then] break the second                                                                                                                                                                                                                                                                                     

                                    [ampule], [and] if you see a color change, then you break the third [ampule], and                                                                                                                                                                                                                                                                                                       

                                   then if you see a separation of the color, then that's considered a positive test, a                                                                                                                                                                                                                                                                                                                 

                                    ... presumptively positive test [for marijuana].                                                                                                                                                                              



                                                                                                                                                                                                                     -  6 -                                                                                                                                                                                                             2468
  


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

                                                                The officer added that he had used this field test "hundreds upon hundreds                                                                                                                                                                                                                                      



 of times", and that this field test had been used in law enforcement for close to twenty                                                                                                                                                                                                                                                                                                 



years.    



                                                                After the officer gave                                                                                        this testimony,                                                              the trial judge asked the defense                                                                                          



 attorney if he continued                                                                                                 to   object to the testimony on                                                                                                                   Daubert-Coon   grounds.    The  



 defense attorney said that he did.                                                                                                                             The judge then suggested that the problem could be                                                                                                                                                                                            



 solved by telling the jury that the field test result only created a "presumption" that the                                                                                                                                                                                                                                                                                                                



 substance was marijuana - that it was                                                                                                                                                            not   conclusive proof.                                                                                        The defense attorney                                              



 continued to object to the evidence.                                                                                                                                        



                                                                When the judge called upon the prosecutor                                                                                                                                                                                to   respond to the defense                                                                  



 attorney's renewed objection, the prosecutor argued that the State was not required to                                                                                                                                                                                                                                                                                                                         



 affirmatively establish a                                                                                   Daubert-Coon  foundation for the marijuana field test.                                                                                                                                                                                                                     Rather  



 (the prosecutor argued), it was the                                                                                                                                defense attorney's                                                                         burden to provide the court with                                                                                                       



 some good reason to believe that the challenged evidence might not meet the                                                                                                                                                                                                                                                                                                  Daubert- 



 Coon  standard.     



                                                                The prosecutor was unable to supply a court decision to support this legal                                                                                                                                                                                                                                                            



 contention, but he told the trial judge that                                                                                                                                                                "it's understood that there has to be some                                                                                                                                         



 showing that there's [a                                                                                      Daubert-Coon] issue."                                                                                             



                                                                The   prosecutor   also   agreed   with   the   trial judge's                                                                                                                                                                                            suggestion   that   any  



Daubert-Coon  problem could be solved by telling the jury, "This is just a field test.                                                                                                                                                                                                                                                                                                                         It  



 is not conclusive.                                                                 ...   It's a presumptive field test - and you are not to presume, from                                                                                                                                                                                                                                         



that test alone, that the substance is indeed marijuana.                                                                                                                                                                                                        But you can consider it with any                                                                                                         



 other evidence [presented]."                                                                                                              



                                                                After hearing the arguments of counsel, the judge took a recess to re-read                                                                                                                                                                                                                                                



the   Coon   decision.    When the court went back on record, the judge declared that the                                                                                                                                                                                                                                                                                                                  



                                                                                                                                                                                                    -  7 -                                                                                                                                                                                             2468
  


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

marijuana field test evidence would be admitted because Lewis had waived any                                                                                                                           Daubert- 



Coon  objection:   



                                     

                                                    The Court                 : The          Daubert-Coon  analysis requires notice                                            

                                   and a full-blown eviden[tiary] hearing in order for the Court                                                                               

                                   to engage in what is a fairly meticulous analysis.                                                                         ...   For that   

                                   reason, motions under                                    Daubert  and  Coon  need to be brought                                        

                                   pre-trial,   so   that   that   analysis   can   be    undertaken   in   a  

                                   reasonable and prudent fashion.                                                      I find that [this] issue has                                 

                                   been waived.                           ...    [T]he defendant did not bring a timely                                                      

                                   motion for a                   Daubert-Coon  hearing.   



In other words, the judge admitted the marijuana field test evidence even though there                                                                                                                             



was nothing in the record to establish the scientific validity of the State's field test under                                                                                                                   



the  Daubert-Coon  standard.    



                                   The judge then stated that she would employ Evidence Rule 403 to mitigate                                                                                                



the consequences of her ruling:                                                   



                                     

                                                                                                                                                                                     

                                                    The Court:  I still need to evaluate ... whether ... the  

                                                                                                                                                                                  

                                   field test results ... are more prejudicial than probative.  And  

                                                                                                                                                                           

                                   my  finding is that ... the [test] results are relevant; they're  

                                                                                                                                                                            

                                   germane  to  the  issue  of  whether  or  not  ...  Mr.  Lewis  

                                                                                                                                                                                     

                                   possessed marijuana.  The possible prejudice is that the test  

                                                                                                                                                                                      

                                   is not a conclusive test, but merely an initial field test of the  

                                                                

                                   substance.  



                                                                                                                                                            

                                                    [I         conclude   that   this]   prejudice   is   successfully  

                                                                                                                                                                                         

                                   addressed by a limiting instruction that indicates that this is  

                                                                                                                                                                       

                                   a field test only, [and that] it does not conclusively establish  

                                                                                                                                                                           

                                   that  the  substance  being  tested  is  marijuana.                                                                               It  merely  

                                                                                                                                                                                        

                                   provides some evidence ... that the substance is [or] could be  

                                                                                                                                                                                      

                                   marijuana - and that that evidence, standing alone, does not  

                                                                                                                                                                         

                                   meet the State's burden of proof as to possession. ... [T]hat's  

                                                                                                                                                                                     

                                   the  instruction  I  intend  to  give.                                                    And  so  I  will admit  the  

                                                                                                                                                                 

                                   [marijuana field test] evidence with that limiting instruction.  



                                                                                                          -  8 -                                                                                                    2468
  


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

                                                              Following this ruling, the officer testified (in the jury's presence) that he                                                                                                                                                                                                                                                     



took the substance from Lewis's pocket and tested it by putting it into a container "that                                                                                                                                                                                                                                                                                           



has some chemicals in it."                                                                                                 The officer put the substance into the container, added the                                                                                                                                                                                                      



 chemicals "in a certain sequence", and then watched to see whether there was a change                                                                                                                                                                                                                                                                                 



 of color, followed                                                                   by a color separation.                                                                                    The officer testified that he observed these                                                                                                                                       



reactions - indicating that the substance was marijuana.                                                                                                                                                                                                             



                                Why the superior court's rulings were wrong                                                                                                                                      



                                                              When a litigant wishes to offer data or results derived from a scientific test                                                                                                                                                                                                                                                



 or a scientific analysis, "it is a prerequisite that the scientific test or analysis meet the test                                                                                                                                                                                                                                                                                         



 for admissibility under                                                                              Daubert  and   Coon."    Guerre-Chaley v. State                                                                                                                                                                 , 88 P.3d 539, 544                                                  



 (Alaska App. 2004).                                                                           



                                                              Moreover, when a party raises a                                                                                                              Daubert-Coon  objection to evidence that                                                                                                                                       



 qualifies   as   "scientific",   the   burden   of   establishing the                                                                                                                                                                                             required   foundation   for   that  



 evidence falls on the                                                                         proponent  of the evidence.                                                                                                    It is the proponent's task to establish                                                                                              



the scientific validity of the analysis                                                                                                                                 and/or the procedures that yielded this evidence.                                                                                                                                                                                     

                                                                                                                                                        3         A court is not  allowed  to simply assume that the  

 Guerre-Chaley, 88 P.3d at 544.                                                                                                                                                                                                                                                                                                                                                              



 evidence is scientifically valid in the absence of evidence to the contrary.  

                                                                                                                                                                                                                                                                                                                                               



                3  

                               See   also   Burnett   v.   State,   815   N.E.2d   201,   209   (Ind.   App.   2004);   Gilbert   v.  

DaimlerChrysler Corp.                                                                                   , 685 N.W.2d 391, 408 (Mich. 2004);                                                                                                                                State v. Casillas                                                        , 782 N.W.2d           

 882, 836-37 (Neb. 2010);                                                                                         Harris v. State                                                    , 424 S.W.3d 599, 607 (Tex. App. 2013);                                                                                                                                           Jackson  

 v.  State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000);                                                                                                                                                                               United States v. Mooney                                                                                      , 315 F.3d 54,                              

 63 (1st Cir. 2002);                                                             In re Paoli Railroad Yard PCB Litigation                                                                                                                                                , 35 F.3d 717, 743-44 (3rd Cir.                                                                                    

  1994);  Moore v. Ashland Chemical Inc.                                                                                                                                     , 151 F.3d 269, 276 (5th Cir. 1998);                                                                                                                     United States v.                                              

Nacchio , 555 F.3d 1234, 1241, 1244 (10th Cir. 2009);                                                                                                                                                                                             United States v. Frazier                                                                                      , 387 F.3d              

  1244, 1260 (11th Cir. 2004).                                                                                                    



                                                                                                                                                                                            -  9 -                                                                                                                                                                                      2468
  


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

                              If the scientific validity of a particular type of evidence has already been                                                                               



resolved in prior litigation, the proponent of the evidence (and the judge who is asked                                                                                                



to rule on the admissibility                                       of the evidence) can normally rely on that earlier court                                                             



decision as establishing the foundation required by                                                               Daubert  and  Coon.   See Samaniego   

                                                                                                                       4    In such instances, the trial court  

v.   City of Kodiak                     , 80 P.3d 216, 220 (Alaska 2003).                                                                                                               



need not hold a Daubert-Coon hearing, and the court may admit the evidence based on  

                                                                                                                                                                                              



the earlier judicial determination that the evidence  is  scientifically valid - unless the  

                                                                                                                                                                                             



opponent  of  the  evidence  provides  a  good  reason  to  re-examine  the  earlier  court  

                                                                                                                                                                                       

                     5      If  the  opponent  of  the  evidence  does  offer  good  reason  to  doubt  the  

decision.                                                                                                                                                                                   



continuing validity of the prior court decision, then the burden once again falls upon the  

                                                                                                                                                                                             

proponent of the evidence to establish its scientific validity under Daubert  and Coon. 6  

                                                                                                                                                                                   



                              In  Lewis's  case,  the  State  relied  on  two  pieces  of  evidence  that  are  

                                                                                                                                                                                            



unquestionably "scientific" evidence for Daubert-Coon purposes.  Both the preliminary  

                                                                                                                                                                          



breath test device and the marijuana field test kit are classic examples of testing devices  

                                                                                                                                                                                   



that yield results that can not be meaningfully explained or cross-examined without a  

                                                                                                                                                                                                 



scientific foundation.  

                                                  



                              In the case of the preliminary breath test, a person blows into the testing  

                                                                                                                                                                                     



device, and the device responds with a displayed number.   At Lewis's trial, the State  

                                                                                                                                                                                        



asserted that this displayed number will either prove or disprove the presence of alcohol  

                                                                                                                                                                                    



in the tested person's blood.  But under the Daubert-Coon rule, the trial court was not  

                                                                                                                                                                                             



supposed to let the State make  this  assertion to the jury unless and until the State  

                                                                                                                                                                                        



        4  

               See also Johnson v. Commonwealth                                               , 12 S.W.3d 258, 262 (Ky. 1999);                                         Hernandez v.   

State, 116 S.W.3d 26, 31 n. 11 (Tex. Crim. App. 2003) (                                                                en banc            ).   



        5  

                                                                                                                                              

               See Johnson v. Commonwealth, 12 S.W.3d 258, 262 (Ky. 1999).  



        6  

                                                                                                                                          

               Johnson , 12 S.W.3d at 262; Samaniego, 80 P.3d at 220.  



                                                                                                       

                                                                                           -  10 -                                                                                       2468
  


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

demonstrated the scientific validity of the principles underlying the design and operation                                                                                                                                                                                                                                                                                                            



of the testing device.                                                                                     



                                                                    In Lewis's case, the State presented no evidence concerning the scientific                                                                                                                                                                                                                                                           



principles underlying the design and operation of the preliminary breath testing device.                                                                                                                                                                                                                                                                                                                                                                



The prosecutor simply asserted that it was "standard" for courts to admit this evidence.                                                                                                                                                                                                                                                                                                                                                                



Despite the lack of any foundational evidence, and despite the lack of any prior court                                                                                                                                                                                                                                                                                                                                    



decision   establishing the                                                                                                    scientific   validity   of   the   preliminary   breath   testing device,   



Lewis's   trial   judge   found   that   this   device   was    a   scientifically   valid   method   of  



determining the presence of alcohol in a person's system.                                                                                                                                                                                                                                            This was error.                                                                       



                                                                    The same thing is true of the marijuana field testing kit.                                                                                                                                                                                                                                According to the                                                        



police   officer's   voir dire                                                                                                      testimony, this testing kit consists of a small container with                                                                                                                                                                                                                            



three ampules of unidentified liquid chemicals.                                                                                                                                                                                                The tester places a substance into the                                                                                                                                               



container and then breaks the ampules one by one, looking first for a change of color and                                                                                                                                                                                                                                                                                                                                         



then for a separation of color.                                                                                                                         According to the officer, these two observations - the                                                                                                                                                                                                                       



color   change, followed by the color separation - constitute evidence that the tested                                                                                                                                                                                                                                                                                                                                



 substance is marijuana.                                                                                                  Again,   under the                                                                             Daubert-Coon  rule, the trial court was not                                                                                                                                                               



 supposed to let the State make this assertion to the jury unless                                                                                                                                                                                                                                                                          and   until   the State   



demonstrated the scientific validity of the principles underlying the design and operation                                                                                                                                                                                                                                                                                                            



of the testing kit.                                                                    



                                                                    It may be true,                                                                  as the officer testified,                                                                                                  that he had personally used the                                                                                                                     



marijuana testingkit "hundreds upon hundreds" of times, and it may also                                                                                                                                                                                                                                                                                                  be true                              that this  



testing kit is used frequently by law enforcement agencies.                                                                                                                                                                                                                                           But the fact that this testing                                                                                



device might be commonly used by police officers in the field does not exempt the State                                                                                                                                                                                                                                                                                                                                    



 from establishing the scientific validity                                                                                                                                                                  of the test under                                                                         Daubert   and   Coon.    As the   



Minnesota   Court   of   Appeals   has   remarked,   "lengthy   use   of   a   method    by   law  



 enforcement, and even lengthy unquestioningacceptance                                                                                                                                                                                                                                    by [the] courts, does                                                                                   not [itself]  



                                                                                                                                                                                                            -   11 -                                                                                                                                                                                                           2468
  


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

exempt [scientific] evidence from scrutiny [under the                                    Daubert  test]."   State v. Dixon                  , 822   

N.W.2d 664, 671-72 (Minn. App. 2012).                                  7  



                       As we explained earlier, Lewis's trial judge ruled that the  State was not  

                                                                                                                                                



required to establish the scientific validity of the marijuana field test because Lewis had  

                                                                                                                                               



waived any Daubert-Coon  objection to this evidence - by failing to object to the  

                                                                                                                                                



evidence before trial.  This, too, was error.  

                                                                             



                       This  Court's   only  prior  statement  on  this  issue  is  contained  in  an  

                                                                                                                                                



unpublished decision,  Trout-Clark v. State, 1993 WL 13157037 (Alaska App. 1993).  

                                                                                                                                                      



Trout-Clark  involved  the  State's  attempt  to  introduce  evidence  of  a  drunk-driving  

                                                                                                                            



defendant's performance on a horizontal gaze nystagmus (HGN) field test.  On appeal,  

                                                                                                                                         



the State suggested that it should have been excused from establishing the scientific  

                                                                                                                                      



foundation of the HGN test because the defendant "waited until the trial was beginning  

                                                                                                                                     

                                                                            8  We rejected the State's contention:  

... before moving to exclude the HGN test".  

                                                                                                                         



                         

                       While it is true that suppression motions must normally  be  

                                                                                                                          

                       filed before trial(see CriminalRule 12(b)(3)), [the defendant]  

                                                                                                             

                       was not seeking "suppression" of the HGN test.  ...  Rather,  

                                                                                                                  

                       [the  defendant]  argued  that  the  HGN  evidence  should  be  

                                                                                                                          

                       excluded because the State failed to establish the foundational  

                                                                                                          

                       facts required to secure its admission [as scientific evidence].  

                                                                                                                                

                       A "lack of foundation" objection to proffered evidence need  

                                                                                                                       

                       not be made before trial.  

                                                                   



Id. , 1993 WL 13157037 at *3.  

                                                       



      7  

            Quoting  State v. Hull             , 788 N.W.2d 91, 103 n. 3 (Minn. 2010).                            



      8  

                            

           Id. at *3.  



                                                                               

                                                                     -  12 -                                                                2468
  


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

                             Other courts agree that, absent a court order or the parties' agreement that                                                                            



a  Daubert  issue should be litigated before trial, a                                                 Daubert  objection to scientific evidence                           



                                                                                                                               9  

is timely if it is made at trial when the evidence is offered.                                                                     



                                                                                                                                                                                         

                             It is true,  as Lewis's trial judge remarked,  that it is generally better to  



                                                                                                                                                                                        

conduct Daubert-Coon  litigation before the trial begins - because the assessment of  



                                                                                                                                                                            

scientific validity under the Daubert-Coon test generally requires an evidentiary hearing,  



                                                                                                                                                                            

the testimony of expert witnesses, and a "fairly meticulous analysis".  But when Lewis's  



                                                                                                                                                                                

attorney raised the Daubert-Coon  issue after Lewis's trial began, the trial judge chose  



                                                                                                                                                                                 

an  improper  solution  to  the  procedural difficulty:                                                             the  judge  precluded  Lewis  from  



                                                                                                                                                                                        

objecting to the State's scientific evidence - thus effectively allowing the State  to  



                                                                                                                                                                          

introduce its evidence without having to establish the scientific validity of the evidence  



                                                                   

under the Daubert-Coon test.  



                                                                                                                                                                          

                             As this Court explained in  Guerre-Chalet,  88 P.3d at  544,  if evidence  



                                                                                                                                                                                     

constitutes  "scientific"  evidence  for  purposes  of  the  Daubert-Coon  rule,  and  if  the  



                                                                                                                                                                          

method by which this evidence was derived has no scientific validity, then the evidence  



                                                                                                                                                                                      

is essentially irrelevant.  At the same time, such evidence presents the danger that the  



                                                                                                                                                                                     

verdict  will  be  influenced  by  assertions  "that  [have]  no  basis  in  science"  but  are  



                                                                                                                                           

nevertheless cloaked with an "aura of scientific respectability".  Ibid.  



                                                                                                                                                                                       

                             In Lewis's case, the defense attorney raised proper objections to both the  



                                                                                                                                                                            

preliminary breath test and the marijuana field test, and there was no prior court decision  



                                                                                                                                                                                   

establishing the scientific validity of either test.  Accordingly, the trial judge should have  



       9  

               See Love v.Commonwealth                                  ,55 S.W.3d816,822 (Ky.2001);                                      Commonwealth v. Daye                              , 

587 N.E.2d 194, 207 (Mass. 1992);                                          State v. Moore                  , unpublished, 647 N.W.2d 706 (Table)                              

(N.D.  2002), 2002 WL 1472300 at *1;                                              State v. Humberto                     , 963 N.E.2d 162, 171 (Ohio App.                            

2011);  Davis v. State                       , unpublished, 2004 WL 1404004 at *6 (Tex. App. 2004).                                                                  



                                                                                        -   13 -                                                                                   2468
  


----------------------- Page 14-----------------------

precluded the prosecutor from introducing the                                                                                                                                                                                                                                                                                   challenged evidence unless the State                                                                                                                                                                                           



 (as the proponent of the evidence) affirmatively established its scientific validity.                                                                                                                                                                                                                                                                                                                                                                                                                                                                       



                                                                                          The State needed expert testimony to establish the required foundations for                                                                                                                                                                                                                                                                                                                                                                                                           



these two tests under                                                                                                                          Daubert-Coon.   But the State did not give pre-trial notice of any                                                                                                                                                                                                                                                                                                                                                         



 expert witnesses on these subjects. Thus, if either party was at fault for forcing the judge                                                                                                                                                                                                                                                                                                                                                                                                                                                                  



to hold a mid-trial                                                                                                      Daubert-Coon  hearing, it was the State.                                                                                                                                                                                                                                          



                                                                                          The trial judge's approach to this problem - prohibiting the opponent of                                                                                                                                                                                                                                                                                                                                                                                                                  



the scientific evidence from challenging it, and allowing the proponent of the scientific                                                                                                                                                                                                                                                                                                                                                                                                                                              



 evidence to introduce the evidence without establishing a scientific foundation for it -                                                                                                                                                                                                                                                                                                                                                                                                                                                                               



would actually reward lawyers who act in ignorance of (or worse, in conscious disregard                                                                                                                                                                                                                                                                                                                                                                                                                                                



 of) the requirements of the                                                                                                                                                         Daubert-Coon  rule.    



                                                                                          For these reasons, the trial judge committed error by allowing the State to                                                                                                                                                                                                                                                                                                                                                                                                                 



 introduce the results of the preliminary breath test and the marijuana field test.                                                                                                                                                                                                                                                                                                                                                                                                                                                            



                                               Why we conclude that the admission of the preliminarybreath test evidence                                                                                                                                                                                                                                                                                                                                                                     

                                             and the marijuana field test evidence was harmless in Lewis's case                                                                                                                                                                                                                                                                                                                                                                         



                                                                                          As   we   have just explained,                                                                                                                                                                     the State should not have been allowed to                                                                                                                                                                                                                                               



 introduce evidence that the preliminary breath test showed the presence of alcohol in                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               



Lewis's system, or evidence that the marijuana field test result tended to show that the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       



vegetable materialin                                                                                                                    Lewis's possession was marijuana.   Nevertheless, we conclude that  



these errors were harmless under the facts of Lewis's case.                                                                                                                                                                                                                                                                                                                                                     



                                                                                          Even without the preliminary breath test evidence, the State had convincing                                                                                                                                                                                                                                                                                                                                                       



proof of Lewis's intoxication:                                                                                                                                                                           Lewis's erratic driving, his visible intoxication when he                                                                                                                                                                                                                                                                                                               



was contacted by the police, and the later result of the DataMaster test administered at                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               



the police station, which showed that Lewis's blood alcohollevelwas                                                                                                                                                                                                                                                                                                                                                                                                 .24 percent.   When  



the defense attorney delivered his summation to the jury, he did not argue that the State                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



                                                                                                                                                                                                                                                                               -   14 -                                                                                                                                                                                                                                                                                2468
  


----------------------- Page 15-----------------------

had failed to prove Lewis's intoxication.                                                               Instead, the defense attorney's sole argument                                                



was that the State had failed to prove that Lewis was the driver of the truck.                                                                                                                       



                                  Given these facts, there is no likelihood that the preliminary breath test                                                                                                        

evidence affected the jury's verdict.                                                        10  



                                  We reach the same conclusion with respect to the evidence of the marijuana  

                                                                                                                                                                                                     



field test. Lewis himself told the officer that the substance was marijuana, and the officer  

                                                                                                                                                                                                             



corroborated  Lewis's  assertion  both  visually  and  by  smell.                                                                                                  Given  this  record,  we  

                                                                                                                                                                                                                     



conclude that the erroneous admission of the marijuana field test evidence was harmless.  

                                                                                                                                                                                                                                



                  The sufficiency of the evidence that Lewis was the driver of the truck  

                                                                                                                                                                                       



                                  Lewis argues on appeal that the evidence at his trial was legally insufficient  

                                                                                                                                                                                                  



to support the jury's decision that he was the driver of the truck.  Lewis's argument on  

                                                                                                                                                                                                                       



this point is based on construing the evidence in the light most favorable to himself.  But  

                                                                                                                                                                                                                   



when an appellate court reviews the sufficiency of the evidence to  support a criminal  

                                                                                                                                                                                                       



conviction, the court must view the evidence (and the reasonable inferences to be drawn  

                                                                                                                                                                                                              

from that evidence) in the light most favorable to upholding the jury's verdict. 11  

                                                                                                                                                                                                             



                                  When we assess the evidence at Lewis's trial in this light, it is sufficient to  

                                                                                                                                                                                                                        



support the conclusion that he was driving the truck.  

                                                                                                                                        



         10  

                 See Love v. State                         , 457 P.2d622,634 (Alaska1969) (holding that, for instances of non-                                                                                     

constitutional error, the test for harmlessness is whether the appellate court "can fairly say                                                                                                                       

that the error did not appreciably affect the jury's verdict").                                                          



         11  

                                                                                                                                                                                                                    

                 Beck v. State , 408 P.2d 996, 997 (Alaska 1965); Ross v. State , 586 P.2d 616, 618  

                                      

(Alaska 1978).  



                                                                                                                    

                                                                                                       -  15 -                                                                                                   2468
  


----------------------- Page 16-----------------------

                  Lewis's challenge to his sentence                                  



                                    As we noted toward the beginning of this opinion, Lewis was convicted of                                                                                                                     



three offenses: felony driving under the influence, driving with a suspended license, and                                                                                                                                    



sixth-degree controlled substance misconduct (possession of marijuana).                                                                                                                          



                                    Because Lewis was a third                                                   felony offender for presumptive sentencing                                                



purposes, he faced a presumptive range of 3 to 5 years' imprisonment for the felony                                                                                                                                  

               12       And  because  this  was  Lewis's  fifth  DUI  conviction,  he  was  subject  to  a  

DUI.                                                                                                                                                                                                                              

mandatory minimum term of 360 days. 13                                                                                In addition,  Lewis faced  a term of up to  

                                                                                                                                                                                                                                



                                                                                                                                                               14  

 1 year's imprisonment for driving with a suspended license.  

                                                                                                                                                                     



                                    Thus, for these two driving offenses, Lewis was required to serve at least  

                                                                                                                                                                                                                          



360 days, and he could receive as much as 6 years to serve.  

                                                                                                                                                                  



                                    Lewis received a sentence of 5 years with 1 suspended (4 years to serve)  

                                                                                                                                                                                                                      



for the felony DUI and a consecutive sentence of 90 days to serve for driving with a  

                                                                                                                                                                                                                                  



suspended license.  In other words, Lewis received a composite sentence of 4 years and  

                                                                                                                                                                                                                            



3 months to serve for the two driving offenses.  He received an additional30 days for the  

                                                                                                                                                                                                                              



marijuana possession.  

                                                            



                                    Lewis  contends  that   his   sentence  is  excessive  because  he  has  a  

                                                                                                                                                                                                                                 



"demonstrated  and  documented"  potential for  rehabilitation,  and  he  argues  that  the  

                                                                                                                                                                                                                             



sentencing judge failed to give sufficient weight to this potential.  

                                                                                                                                                 



         12  

                  AS 28.35.030(n) (felony DUI is a class C felony); AS 12.55.125(e)(3) (prescribing                                                                                                     

a presumptive range of 3 to 5 years' imprisonment for third felony offenders convicted of a                                                                                                                                         

non-sexual class C felony).                                           



         13  

                  AS 28.35.030(n)(1)(C).  

                                                                                



         14  

                  AS  28.15.291(a)  (this  offense   is  a  class  A  misdemeanor);  AS  12.55.135(a) 

                                                                                                                                                                                                   

(prescribing the punishment for class A misdemeanors).  

                                                                                                                                                



                                                                                                           -  16 -                                                                                                        2468
  

                                                                                                                         


----------------------- Page 17-----------------------

                                                            But this was Lewis's fifth conviction for driving under the influence - and                                                                                                                                                                                                                                             



his third felony-level conviction for this offense.                                                                                                                                                                      Lewis also has four prior convictions                                                                                   



for driving with a suspended license.                                                                                                                                  And he has a long history of probation violations                                                                                                                                 



 stemming from these convictions.                                                                                                                         



                                                            Given this criminalhistory,                                                                                           the sentencing judge acted reasonably when she                                                                                                                                                      



decided   to   impose   a   sentence   that   emphasized   the   sentencing goals                                                                                                                                                                                                                                               of   community  



condemnation and isolation.                                                                                                  We conclude that Lewis's composite term of imprisonment                                                                                                                                                    

is not clearly mistaken.                                                                                  15  



                               Conclusion  



                                                            The judgement of the superior court is AFFIRMED.  

                                                                                                                                                                                                                                                                                                          



                15  

                              See McClain v. State                                                                        , 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to                                                                                                                                                                                                   

affirm a sentencing decision unless the decision is clearly mistaken).                                                                                                                                                                                  



                                                                                                                                                                                     -   17 -                                                                                                                                                                                   2468
  

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