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Huntington v. State (1/19/2007) ap-2080

Huntington v. State (1/19/2007) ap-2080

     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

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) Court of Appeals No. A-9227
Appellant, ) Trial Court No. 4GA-03-178 Cr
v. )
) O P I N I O N
Appellee. ) No. 2080 January 19, 2007
          Appeal  from the District Court, Fourth  Judi
          cial  District, Galena, Winston  S.  Burbank,
          Judge, and Jerry D. Anderson, Magistrate.

          Appearances:   Marcia E.  Holland,  Assistant
          Public   Defender,  Fairbanks,  and   Quinlan
          Steiner, Public Defender, Anchorage, for  the
          Appellant.    Kelly   J.  Lawson,   Assistant
          District  Attorney, and Jeffrey  A.  OBryant,
          District  Attorney, Fairbanks, and  David  W.
          M rquez,  Attorney General, Juneau,  for  the

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Wayne   D.   Huntington  appeals  his  conviction   for
misdemeanor driving under the influence.
          The  first of Huntingtons claims involves his statutory
right  to  contact  an  attorney.   Under  AS  12.25.150(b),   as
interpreted in Wardlow v. State,1 all arrestees have the right to
contact  an attorney, relative, or friend immediately upon  their
          arrival at the police station or other place of detention.
Moreover,  in Copelin v. State, 659 P.2d 1206 (Alaska 1983),  the
supreme court interpreted this statutory right in the context  of
DUI arrests:  the court held that if an arrested motorist asks to
contact  an  attorney,  the motorist has a  right  to  delay  the
mandatory  breath test for a reasonable length of time  to  allow
the  motorist to consult the attorney about whether to  take  the
breath test.2
          Huntington   argues  that  the  police   violated   his
statutory  right to contact an attorney, and that the  result  of
his breath test should therefore be suppressed.
          Huntington was arrested at his house in Galena.  At the
time  of his arrest, Huntington asked to call his attorney.   The
police  told  Huntington that he could make this  telephone  call
after they got to the police station.  At the police station, the
police  informed Huntington of his Miranda rights (including  his
right to speak to an attorney before questioning), but the police
did  not expressly remind Huntington that he had previously asked
to  call his attorney, and they did not expressly invite  him  to
make that telephone call.  Huntington argues that the police,  by
failing  to  remind  Huntington of his earlier  request,  and  by
failing to expressly offer Huntington the opportunity to make the
telephone call, infringed Huntingtons statutory right to  contact
an attorney.
          Huntingtons   argument  runs  counter  to   our   prior
decisions  on  this  issue.   We have  repeatedly  held  that  AS
12.25.150(b)  does not obligate the police to expressly  offer  a
telephone call to an arrestee.  Rather, the statute only  obliges
the  police  not  to  unreasonably interfere  with  an  arrestees
efforts to call an attorney, relative, or friend.3
          Here,  Huntington  does not assert  that  he  made  any
attempt  to  contact his attorney after he arrived at the  police
station,  or  that he reminded the police of his desire  to  make
this  call.  The record shows that Huntington remained silent  on
this  matter  even after he was read the Miranda warnings,  which
expressly  apprised Huntington that he had a  right  to  have  an
attorney present.  Nor has Huntington challenged the truthfulness
of  Officer  Danny  Michelss testimony that  he  would  have  let
Huntington  make a telephone call if Huntington had asked  to  do
          In   other  words,  even  though  the  police  informed
Huntington (correctly) that he would have to wait until they  got
to  the  police  station to call his attorney, the  police  never
impeded  Huntingtons  ability to invoke and exercise  that  right
once they got to the station.4
          Huntington  contends that he never again mentioned  his
desire  to  contact his attorney because he was waiting  for  the
police  to  raise the issue  waiting for the police to  tell  him
that  the  time  had arrived for him to call his  attorney.   But
there  is  no  evidence that the police officers told  Huntington
that he would have to wait until they expressly authorized him to
make   the  telephone  call.   Rather,  the  police  simply  told
Huntington  that he would have to wait until he  arrived  at  the
police station.
          Even if we assume that Huntington subjectively believed
          that the police had placed some greater limitation on his ability
to  contact  his  attorney, this belief was  not  the  result  of
anything  that  the  police told him.  We  therefore  agree  with
Magistrate Jerry Anderson that, under the circumstances presented
here,  the  police had no affirmative duty to remind [Huntington]
about his earlier request to speak to an attorney.
          In two earlier unpublished decisions  Colette v. State5
and   Schroeder   v.   State6   we  held  that,   under   similar
circumstances  (i.e.,  when  an arrestee  requested  to  call  an
attorney  or friend in the field, but did not renew that  request
at   the   police  station),  the  police  did  not  violate   AS
12.25.150(b) by failing to expressly remind the arrestee of their
earlier  request to make a telephone call.  Now that  this  issue
has  arisen  again, we believe that we should issue  a  published
opinion on this point of law.
          Huntington  next argues that his trial judge,  District
Court  Judge Winston S. Burbank, should have granted  a  mistrial
after a witness  the fuel truck driver who gave Huntington a ride
home  after  Huntingtons car went into a  ditch   testified  that
Huntington  (who  is Native) was mad and pretty loud  during  the
drive,  and  that he was upset with the white people.   From  the
ensuing  discussion  of the truck drivers testimony,  it  appears
that the prosecutor did not know that the truck driver would give
this last answer.
          Although  Huntington does not question the  prosecutors
good  faith,  he points out that all of the jurors at  his  trial
were  non-Natives.  (Apparently, five of the jurors  were  white,
and one was Filipino.)  Huntington argues that the evidence about
this  remark  could  be expected to engender  so  much  prejudice
against him in the minds of the jurors that Judge Burbank  should
have stopped the trial.
          When Huntington made this request to Judge Burbank, the
judge  concluded that the challenged testimony had been  relevant
to  the issue of Huntingtons intoxication (because it was part of
the   truck  drivers  description  of  Huntingtons  demeanor  and
conduct).   The  judge  further concluded  that  the  prejudicial
impact  of  this testimony would not be as great as  the  defense
attorney argued.  Judge Burbank explained:
               The Court:  Mr. Huntington is well known
          in  Galena.  I assume that ... his  views  on
          [this] subject [are] widely known by most  of
          the  people [living here].  [And] most of the
          people  on  this jury, with the exception  of
          one   juror,   I   believe,   [were   already
          acquainted with] Mr. Huntington.
          The judge therefore denied Huntingtons motion
          for a mistrial.
                    On  appeal,  Huntington renews  his
          claim  that a mistrial was required.  We  are
          to  uphold a trial judges decision to deny  a
          motion  for mistrial unless that decision  is
          clearly  erroneous.7  As this court explained
          in Roth v. State:
          The  trial  judge  has  the  opportunity   to
          observe  the tainted evidence in the  context
          in  which it is received by the jury.   [That
          judge],  far better than we, can tell whether
          substantial prejudice has been done.
          626 P.2d 583, 585 (Alaska App. 1981).
                    Huntington  relies  on  cases  from
          Florida  and  Texas in support of  his  claim
          that racial slurs and ethnic epithets can  be
          so    prejudicial    that   their    improper
          introduction warrants a mistrial.8  But those
          cases involved statements that were far  more
          prejudicial  than  the  statements  at  issue
          In   particular,  the  Florida  and
Texas  cases  dealt with inflammatory  racial
comments  that  were elicited  for  the  very
purpose  of appealing to racial prejudice  or
for   the   purpose   of   undercutting   the
credibility  of  a key witness.   Huntingtons
case, on the other hand, presents a situation
where   the  challenged  evidence,   although
possessing racial overtones, was relevant  to
the  issues being litigated.  The  fact  that
Huntington  was  loud,  upset,  and   perhaps
belligerent was probative of whether  he  was
under    the   influence.    Moreover,    the
prosecutor  did not deliberately  elicit  the
challenged  testimony, nor did the prosecutor
either expressly or implicitly ask the jurors
to  draw  any  improper inference  from  this
testimony.  In fact, the prosecutor  made  no
further    reference   to   this   challenged
testimony,  either during the examination  of
later witnesses or in final argument.
          Judge  Burbank could also  properly
consider  the  fact that the  other  evidence
against  Huntington was strong, and thus  the
challenged  statement would  likely  have  no
effect  on  the jurys verdict.   One  of  the
States witnesses saw Huntington trying to get
his  car  out  of the ditch.  And  the  truck
driver  who  gave  Huntington  a  ride   home
testified   that   Huntington   smelled    of
alcoholic beverages, and that Huntington fell
as  he  was  getting out of the  truck.   The
Galena  police chief testified that, when  he
examined Huntingtons vehicle in the ditch, it
smelled of alcoholic beverages.  And when the
police  chief  contacted  Huntington  at  his
home, he observed that Huntingtons speech was
slurred,  that  Huntington  had  an  odor  of
alcoholic  beverages, and that  he  staggered
          when he walked.  Finally, Huntingtons breath
test showed that he had a blood alcohol level
of  .261  percent  more than three times  the
legal limit.
          Finally,  we  note that  Huntington
declined  Judge Burbanks invitation  to  give
the  jury  a  curative  instruction,  and  we
further    note   that   the   jurors    were
affirmatively  instructed  that  they  should
base their decision on [a] fair consideration
of  the evidence, and that they should not be
governed  by  sentiment  ...  passion,   [or]
          In  prior unpublished decisions, we
have  addressed  similar instances  of  brief
racial references in the trial testimony, and
we  concluded that these references  did  not
require  a  mistrial.9  We likewise  conclude
here  that  Judge Burbank did not  abuse  his
discretion  when  he  declined  to  order   a
mistrial in Huntingtons case.
          Huntington  argues one final  point
on  appeal.   As explained above, when  Judge
Burbank  ruled on Huntingtons  motion  for  a
mistrial,  he  adverted  to  the  fact   that
Huntington  was  well  known  in  the  Galena
community, and he surmised that, because most
of  the  jurors were already acquainted  with
Huntington  before  trial, Huntingtons  views
about  white  people  would  not  come  as  a
surprise  to  these jurors.   Huntington  now
argues   that   Judge  Burbank   abused   his
discretion by basing his decision,  in  part,
on  the  assumption that the  jurors  already
knew Huntingtons views.  He contends that, by
resting his decision on this assumption,  the
judge relied on facts not in evidence.
          Huntington did not object to  Judge
Burbanks  ruling on this ground, so  he  must
now show plain error.
          It is not clear what evidence rule,
if  any,  governs a trial judges findings  of
fact in this circumstance.
          Alaska  Evidence  Rule  201  places
limitations  on  a judges authority  to  take
notice  of  facts.  But as the commentary  to
this rule explains, Rule 201 applies only  to
issues  of  fact  that  would  otherwise   be
submitted  to  the jury.10  The  question  of
whether  a  particular occurrence requires  a
mistrial  is  not a question of  fact  to  be
decided  by the jury; rather, it is  a  mixed
question  of  fact and law addressed  to  the
discretion of the trial judge.11
          Alaska Evidence Rule 104(a), on the
          other hand, gives a trial judge wide-ranging
authority to determine questions of fact that
underlie   the   judges   rulings   on    the
qualification  of a person to be  a  witness,
the   existence  of  a  privilege,   or   the
admission of evidence.  Evidence Rule  104(a)
declares  that, in these matters, a judge  is
not bound by the rules of evidence except for
the  rules  of privilege.  But although  Rule
104(a)  may  suggest  an  approach  to   this
problem, it is not directly pertinent to  the
issue  of whether the judge should declare  a
mistrial   or,  in particular, what  facts  a
judge may properly rely on when assessing the
potential   unfair  prejudice  of  challenged
          We  conclude,  in any  event,  that
Huntington has not shown plain error.  As  we
have   explained,  Judge  Burbank  had  ample
grounds  to  deny Huntingtons  motion  for  a
mistrial.   Moreover, it  seems  likely  that
Judge Burbank was simply drawing an inference
from  facts  that were already  part  of  the
record:   that Huntington was a  resident  of
the  small town of Galena, and that five  out
of  the  six  jurors were already  acquainted
with Huntington.
          On  the  face of it, Judge  Burbank
could   reasonably  infer  that   a   passing
reference  to  Huntingtons  anger  at   white
people  was unlikely to inflame these  jurors
or  influence  their verdict.  Alternatively,
another  plausible reading of Judge  Burbanks
remarks  is  that  he was  not  affirmatively
relying on this inference, but rather that he
was  simply  reassuring the defense  attorney
that  the  truck drivers challenged testimony
would  not  be unduly prejudicial  under  the
          To  the  extent that Judge Burbanks
remarks   might   plausibly  be   interpreted
differently,  as Huntington now suggests,  it
was  Huntingtons obligation to object to  the
judges  remarks at the time they  were  made,
and  to  either ask the judge to clarify  the
meaning of his remarks, or to engage in  voir
dire  examination  of  the  jurors  to  gauge
directly  how the challenged testimony  might
be affecting them.
          In sum, we find no plain error.
          The judgement of the district court

     12 P.3d 1238, 1250 (Alaska App. 2000).

2Copelin, 659 P.2d at 1208.

     3Rollefson  v. Anchorage, 782 P.2d 305, 306-07 (Alaska  App.
1989); Yancy v. State, 733 P.2d 1058, 1060-62 (Alaska App. 1987);
Anderson v. State, 713 P.2d 1220, 1221 (Alaska App. 1986).

     4See Wardlow, 2 P.3d at 1250.

     5Alaska App. Memorandum Opinion No. 4811 (January 7,  2004);
2004 WL 32924.

     6Alaska App. Memorandum Opinion No. 4393 (May 9, 2001); 2001
WL 488038.

     7Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).

8Bryant  v.  State,  25  S.W.3d 924,  925-26  (Tex.  App.  2000);
MCI  Express, Inc. v. Ford Motor Company, 832 So.2d  795,  800-02
(Fla. App. 2002); Simmons v. Baptist Hospital of Miami, Inc., 454
So.2d  681,  682  (Fla. App. 1984).  See also La Reina  Pharmacy,
Inc. v. L¢pez, 453 So.2d 882, 883-84 (Fla. App. 1984); McBride v.
State, 338 So.2d 567, 568-69 (Fla. App. 1976).

9See Bailey v. State, Alaska App. Memorandum Opinion No.
4813  (January  14,  2004);  2004  WL  60842  (evidence
introduced  that the defendant, who was  black,  called
his female accomplice a fucking white bitch); Benson v.
State,  Alaska App. Memorandum Opinion No. 1365  (March
18,  1987);  1987 WL 1359283 (evidence introduced  that
the  victim of a sexual assault stated that two honkies
had raped her).

10The  pertinent  portion  of  the  Commentary  states:
[Evidence]  Rule 201 restricts only the  power  of  the
court  to  declare  on the record,  without  resort  to
formal proof, that a particular fact exists, i.e., that
something is actually true, [when] the fact involved is
one  that  would otherwise be decided by the  trier  of
fact   upon   [evidence  submitted]  by  the   parties.
Commentary to Alaska Evidence Rule 201, subsection  (a)
Scope of Rule, first paragraph.

11Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).

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