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McCord v. State (2/3/2017) ap-2537

McCord v. State (2/3/2017) ap-2537

                                                                                        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                                                                



CORRINA  I.  McCORD,  

                                                                                                                                                                 

                                                                                                                  Court of Appeals No. A-10982  

                                                                                                                                                                                

                                                            Appellant,                                         Trial Court No. 3PA-10-1743 CR  



                                             v.  

                                                                                                                                 O  P  I  N  I  O  N  

                                                                                                                                                                  

STATE  OF  ALASKA,  



                                                            Appellee.                                              No. 2537 - February 3, 2017  

                                                                                                                                                                         



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

                                                                                                                                                     

                              William L. Estelle, Judge.  

                                                                        



                              Appearances:                      Callie Patton Kim, Assistant Public Defender,  

                                                                                                                                               

                              and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for   the  

                                                                                                                                                             

                              Appellant.  Mary A. Gilson, 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.  



                              Corrina I. McCord appeals her conviction for driving under the influence.                                                                                             



McCord's blood alcohol level was not over the statutory limit, but testing of McCord's                                                                                      



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



Constitution and Administrative Rule 24(d).                                     


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

blood showed that she had four different medications in her blood when she was driving.                                                                                                                                                      



These medications                                  were tramadol(a                               pain medication sold under the name Ultram, among                                                                        



others) and three members of the                                                                benzodiazepine family:                                             quetiapine (also known as                                          



Seroquel),   clonazepam,   and 7-aminoclonazepam (a clonazepam metabolite,                                                                                                                                          which is   



itself a separate benzodiazepine).                                                           



                                     McCord was charged with violating the first subsection of Alaska's DUI                                                                                                                     



statute, AS 28.35.030(a)(1).                                                    This provision forbids a person from operating a motor                                                                                   



vehicle if they are "under the influence of an alcoholic beverage,                                                                                                                       intoxicating liquor,   



inhalant,   or any controlled substance                                                                , singly or in combination".                                                    (Emphasis added.)                                     



Even though McCord's blood showed                                                                           the presence of four medications, only one of                                                                             



these medications - clonazepam - is a "controlled substance" under state or federal                                                                                                                                      

             1       Thus,  the  State  needed  to  prove  that  McCord  was  under  the  influence  of  

law.                                                                                                                                                                                                                                 



clonazepam.  

                                    



                                     In this appeal,  McCord argues that the district court violated  her  Sixth  

                                                                                                                                                                                                                              



Amendment  right  of  confrontation  by  allowing  the  State  to  prove  the  presence  of  

                                                                                                                                                                                                                                     



clonazepam through hearsay testimony.  For the reasons explained here, we agree that  

                                                                                                                                                                                                                                  



McCord's  right  of  confrontation  was  violated,  and  we  therefore  reverse  McCord's  

                                                                                                                                                                                                               



conviction.  

                                



                   Underlying facts, and the district court's ruling  

                                                                                                                                     



                                     At McCord's trial, the State established the presence and the concentrations  

                                                                                                                                                                                                     



of the four substances in McCord's blood through the testimony of Lisa Noble, a forensic  

                                                                                                                                                                                                                     



toxicologist employed as an analyst at the Washington State Toxicology Lab.  

                                                                                                                                                                                                                   



          1       See  AS 11.71.170(b)(5).                                          



                                                                                                                - 2 -                                                                                                            2537
  


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

                                                                 Noble conducted the initial drug screening of McCord's blood sample, and                                                                                                                                                                                                                                                                           



 she performed the specific test that confirmed the presence (and the concentration) of the                                                                                                                                                                                                                                                                                                                            



tramadol.   But another analyst, Sarah Swenson, performed the test that confirmed the                                                                                                                                                                                                                                                                                                                                 



presence   and   concentrations   of   the   three   benzodiazepines   in   McCord's   blood   -  



including the clonazepam.                                                                                                             (Swenson performed this testing because Noble was not                                                                                                                                                                                                                         



certified to conduct the benzodiazepine test.)                                                                                                                                                                               



                                                                  Because Noble was the primary analyst assigned to McCord's case, she                                                                                                                                                                                                                                                                             



reviewed Swenson's test results, and she compiled the final lab report.                                                                                                                                                                                                                                                                              This final report                                 



included the results of Swenson's testing for                                                                                                                                                                                  benzodiazepines.    In particular, Noble's                                                                                                                     



 final report                                               recited Swenson's findings regarding the presence and concentration of                                                                                                                                                                                                                                                                                        



clonazepam in McCord's blood.                                                                                                                                   



                                                                 At McCord's trial, when the prosecutor indicated that Noble would testify                                                                                                                                                                                                                                                             



about Swenson's findings, McCord's attorney objected that Noble should not be allowed                                                                                                                                                                                                                                                                                                            



to testify about the clonazepam in McCord's blood, or about any of the other results of                                                                                                                                                                                                                                                                                                                                   



the benzodiazepine testing conducted by Swenson.                                                                                                                                                                                                            The defense attorney argued that,                                                                                                                  



because Swenson had done the testing, he was entitled to cross-examine Swenson about                                                                                                                                                                                                                                                                                                                      



her findings.                                                 



                                                                  McCord's attorney specifically relied on the United States Supreme Court's                                                                                                                                                                                                                                                      



decision in                                        Melendez-Diaz v. Massachusetts                                                                                                                                   , a case where a defendant was charged with                                                                                                                                                  

trafficking cocaine.                                                                             2             In  Melendez-Diaz,  the  Supreme  Court  ruled  that,  under  the  

                                                                                                                                                                                                                                                                                                                                                                                                                    



confrontation clause of the Sixth Amendment, the government was required to present  

                                                                                                                                                                                                                                                                                                                                                                                                 



live testimony from the laboratory technician who tested the substance at  issue and  

                                                                                                                                                                                                                                                                                                                                                                                                                  



concluded that it was cocaine.  

                                                                                                                                                     



                 2               557 U.S. 305, 310-11; 129 S.Ct. 2527, 2532; 174 L.Ed.2d 314 (2009).                                                                                                                                                                                                                                                                       



                                                                                                                                                                                                         - 3 -                                                                                                                                                                                                     2537
  


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

                                                                                                                             

                    But the trial judge concluded that Melendez-Diaz was distinguishable from  



                                                                                                                                  

McCord's case.  The judge noted that, in Melendez-Diaz, the government was trying to  



                                                                                                                           

prove the presence  of  a  particular substance (cocaine).   According to the trial judge,  



                                                                                                                                  

McCord's case was different because the State's task was not to prove the presence  of  



                                                                                                                                 

any specific substances, but rather to prove that McCord was under the influence of  



                                                                                                                                

controlled substances.  Thus, the judge reasoned, the presence and concentrations of the  



                                                                                                                           

various  substances  in  McCord's  blood  was  simply  the  underlying data  that  would  



                                                                                                                               

provide the basis for Noble's opinion as  to  whether McCord was impaired when she  



                                       

drove the motor vehicle.  



                                                                                                                   

                    Relying   on          this     analysis,       the     district     court      overruled        McCord's  



                                                                                                                                 

confrontation clause objection and decided that Noble could properly testify about all of  



                                                                                                                          

the  test  results  described  in  her  lab  report  -  including  the  results  of  the  testing  



                                                                                                                   

performed by Swenson, which showed the presence and the concentration of clonazepam  



                                 

in McCord's blood.  



                                                                                                     

           Why the district court's ruling violated McCord's right of confrontation  



                                                                                                                         

                    To prove that McCord was guilty of driving under the influence as defined  



                                                                                                                                

in AS 28.35.030(a)(1), the State had to show not only that McCord was impaired, but  



                                                                                                                        

more specifically that her impairment was a direct result of her ingestion of "an alcoholic  



                                                                                                                                 

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



                                                                                                                     

combination".  See Adams v. State, 359 P.3d 990, 994 (Alaska App. 2015).  



                                                                                                                      

                    Of the various medications detected in McCord's blood, the only controlled  



                                                                                                                     

substance was the clonazepam.  Thus, the State was required to prove that McCord's  



                                                                                                

impairment was a direct result of her ingestion of clonazepam.  



                                                               - 4 -                                                          2537
  


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

                                                                                                                   

                    Swenson performed the testing that detected clonazepam in McCord's  



                                                                                                                     

blood.  Noble was aware of the clonazepamonly because Swenson's lab report described  



                                                                                                                            

her test results.  For this reason, Melendez-Diaz controls, and McCord's attorney was  



                                                                                                                              

entitled  to  cross-examine  Swenson  regarding  the  presence  and  concentration  of  



                                                    

clonazepam in McCord's blood.  



                                                                                                                     

                    Accordingly, the district court erred when it allowed the State to introduce  



                                                                                                                   

this evidence  through Noble's testimony, and we must reverse McCord's conviction  



                                  

because of this error.  



                                                                    

          McCord's motion for a judgement of acquittal  



                                                                                                                               

                    During the trial,  McCord  asked the court to grant her a judgement of  



                                                                                                                              

acquittal.       McCord  argued that even if the State validly introduced evidence of the  



                                                                                                                       

presence and level of clonazepam in her blood, the State's proof of the crime charged  



                                                                                                                             

(driving under  the  influence)  was  still legally  deficient.                         The  trial judge  denied  this  



                                                                                                                        

motion,  and on appeal McCord renews her attack on the  sufficiency of the State's  



                

evidence.  



                                                                                            

                    There are two aspects to McCord's argument.  



                                                                                                                              

                    McCord first argues that the State failed to present any evidence that the  



                                                                                                                      

concentration of clonazepam found in her blood was capable of impairing her capacity  



                         

to drive safely.  



                                                                                                                          

                    As we have explained, under Alaska's DUI statute, the State must prove  



                                                                                                                     

that the driver was impaired and that this impairment was a direct  result of ingesting  



                                                                                                                                

alcoholic beverages,  inhalants,  or controlled substances.                             Of the four drugs found in  



                                                                                                                 

McCord's body, only one of them - the clonazepam - was a controlled substance.  



                                                              - 5 -                                                         2537
  


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

                                                                                                                         

                    McCord  asserts  that  the  evidence  presented  at  her  trial  was  legally  



                                                                                                                                

insufficient  to  prove  that  the  amount  of  clonazepam  in  her  blood  was  capable  of  



                                                                                                                            

impairing her.  This assertion is mistaken; the State did present evidence that the level  



                                                                                                                                 

of clonazepam found in McCord's blood was capable of impairing a person's ability to  



            

drive.  



                                                                                                                        

                     Specifically,  Noble testified that clonazepam affects the central nervous  



                                                                                                                         

system in ways quite similar to alcohol:  a person on clonazepam may exhibit slurred  



                                                                                                                              

speech,  difficulty with balance and walking, double vision, loss of finger control, and  



                                                                                                                                 

impaired judgement.  Noble also testified that the concentration of clonazepam found in  



                                                                                                                   

McCord's  blood  was within the therapeutic range for that drug, and that therapeutic  



                                                                                                                                 

levels of clonazepam are sufficient  to cause impairment.   Although Noble declined to  



                                                                                                                        

offer an opinion as to whether McCord was in fact impaired at the time of her driving,  



                                                                                                                       

Noble testified that the symptoms of impairment which the police observed in McCord  



                                                                                                          

when they stopped her vehicle were consistent with the side effects of benzodiazepines.  



                                                                                                                           

                    Because of Noble's testimony on these subjects, the State's case was legally  



                                                                                                                                

sufficient to support a verdict that McCord was impaired as a result of her ingestion of  



                                                                                                                                

clonazepam.   This  remains true even though Noble should not have been allowed to  



                                                                                               

testify about the presence of clonazepam in McCord's blood.  



                                                                                                                             

                    Both the United States Supreme Court and this Court have held that, even  



                                                                                                                            

in cases where a portion of the government's evidence should have been excluded from  



                                                                                                               

a defendant's trial, an appellate court must still consider the entirety of the government's  



                                                                                                                      

evidence - including the portion that should have been excluded - when the appellate  



                                                                                                                 

court assesses the legal sufficiency of the evidence to support the verdict.  



                                                                                                                              

                    See Lockhart v. Nelson, 488 U.S. 33, 39-41; 109 S.Ct. 285, 290-91; 102  



                                                                                                                         

L.Ed.2d 265 (1988); Langevin v. State, 258 P.3d 866,  873-74  (Alaska App. 2011);  



                                                                                                                              

Houston-Hult v. State, 843 P.2d 1262, 1265 n. 2 (Alaska App. 1992).  In general, see  



                                                              - 6 -                                                          2537
  


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

 LaFave, Israel, King, and Kerr,                                                          Criminal Procedure                                         (4th ed. 2015),  25.4(c), Vol. 6,                                                     



 pp. 841-45.                       



                                      In other words, even if particular evidence should have been excluded from                                                                                                                     



 the defendant's trial, and even if the government's remaining evidence was insufficient                                                                                                                           



 to support the                             defendant's conviction,                                                the double jeopardy clause does not bar the                                                                          



 government from retrying the defendant if the                                                                                      entire  evidence (including the evidence                                             



 that should have been kept out of the trial) was sufficient to support the defendant's                                                                                                                         



 conviction.   Lockhart,  488 U.S. at 39-40, 109 S.Ct. at 290.                                                                                                          



                                      The reason for the                                 Lockhart  rule is that, had the State known that a portion                                                                          



 of   its   intended   evidence   was   inadmissible,   the   State   might   have   restructured   its  

                                                                                                                                                                                        3    In McCord's case,  

 presentation to compensate for the unavailability of this evidence.                                                                                                                                                                



 for instance, the record shows that the prosecutor had made tentative arrangements to  

                                                                                                                                                                                                                                            



 bring both Noble and Swenson to Alaska to testify, and that the prosecutor refrained  

                                                                                                                                                                                                                        



 from bringing Swenson to Alaska only after the district court ruled that Noble would be  

                                                                                                                                                                                                                                           



 allowed to testify  concerning all aspects of the Washington State Toxicology Lab's  

                                                                                                                                                                                                                                 



 testing (including Swenson's test results).  

                                                                                                                      



                                      We therefore conclude that the State's evidence was sufficient to allow the  

                                                                                                                                                                                                                                          



jury to conclude that the amount of clonazepam in McCord's blood was capable of  

                                                                                                                                                                                                                                           



 impairing her.  

                                         



                                      The second aspect of McCord's argument for a judgement of acquittal is  

                                                                                                                                                                                                                                             



 her claim that, even if the State's evidence was sufficient to show that the amount of  

                                                                                                                                                                                                                                           



 clonazepam found in McCord's blood could have impaired her ability to drive, the State  

                                                                                                                                                                                                                                    



 nevertheless failed to prove that McCord's impairment was due solely to the clonazepam,  

                                                                                                                                                                                                                



          3        See Lockhart                        , 488 U.S. at 42, 109 S.Ct at 291-92.                                      



                                                                                                                   - 7 -                                                                                                              2537
  


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

                                                                                                                      

as opposed to the other drugs found in McCord's blood (drugs that were not controlled  



                                                                                                                                      

substances) and her unrelated physical condition at the time (e.g., her emotional state).  



                                                                                                                        

                     When the trialjudge addressed this argument at McCord's trial, he correctly  



                                                                                                                          

perceived that the argument was not really an attack on the sufficiency of the State's  



                                                                                                      

evidence, but was rather an argument about the law of causation.  



                                                                                                                                

                     As we have explained, the State presented sufficient evidence to justify the  



                                                                                                                               

conclusion that McCord was impaired as a result of her ingestion of clonazepam.  But  



                                                                                                                            

McCord argues that even if the clonazepam in her body could have impaired her ability  



                                                                                                                            

to drive, the State nevertheless was required to prove that her impairment was due solely  



                               

to the clonazepam.  



                                                                                                                               

                     This contention is incorrect.  As this Court explained in Adams v. State , 359  



                                                                                                                                

P.3d 990, 994 (Alaska App. 2015), when a defendant is prosecuted for driving under the  



                                                                                                                      

influence, Alaska law does not require the State to prove that the alcohol or controlled  



                                                                                                                                 

substances in the defendant's body were the sole cause of the defendant's impairment -  



                                                                                                                                

only that the alcohol or controlled substances were a "substantial factor" in causing the  



                                        

defendant's impairment.  Ibid.  



                                                                                                                                 

                     Thus, McCord is wrong when she argues that the State was required to  



                                                                                                                                      

show that the other substances in her blood played no role in causing her impairment.  



                                                                                                                             

The jury could properly find that McCord was under the influence of clonazepam even  



                                                                                                                        

if the jurors believed that the other substances in her blood, or her unrelated physical  



                                                                                                                             

condition, also contributed in some manner to her impairment, so long as the jurors were  



                                                                                                                                

convinced that McCord's ingestion of clonazepam was a substantial factor in causing her  



                    

impairment.  



                                                                                                                                  

                     Accordingly,  the  trial  judge  correctly  denied  McCord's  motion  for  a  



                                     

judgement of acquittal.  



                                                               - 8 -                                                          2537
  


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

Conclusion  



                 McCord's conviction is REVERSED, but McCord can be retried.                                                                                                             



                                                                                       - 9 -                                                                                                    2537
  

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