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

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


         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

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PATRICK L. TICKETT,                                 )  

                                                    )            Court of Appeals No. A-11043 

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


                  v.                                )                  O  P  I  N  I  O  N  


STATE OF ALASKA,                                    )  

                                                    )            No. 2427 - September 19, 2014 

                                      Appellee.     )  


                 Appeal  from  the  Superior  Court,  Second  Judicial  District,  

                 Kotzebue, Ben Esch, Judge.  

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

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

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

                 Prosecutions       and    Appeals,     Anchorage,       and    Michael      C.  

                  Geraghty, Attorney General, Juneau, for the Appellee.  

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

                 District Court Judge.*  


                 Judge HANLEY.  

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

Constitution and Administrative Rule 24(d).  

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

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


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

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

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


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


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


driving under the influence.  

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


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


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


the facts of this case, the error was harmless.  

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


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


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

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

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


of the superior court.  

          Facts and proceedings  

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


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

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


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


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

                                                                2                                                           2427

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

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


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

                    Tickett  was  driving  the  snow  machine  with  Clarissa  Cleveland  as  a  


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


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

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


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


machine struck Schaeffer, Gollub, and the dog sled.  

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


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

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


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



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


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


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


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


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


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

complications following her release.  

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

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

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


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


                                                                 3                                                           2427

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

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

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

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


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


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

smelled alcohol on him prior to the collision.  

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


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


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


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

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


(described in more detail below).  

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

                             2                                                                                   3 

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


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

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

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


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


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


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


     1    AS 11.41.110(a)(2).  

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

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

                                                               4                                                           2427  

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

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

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

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


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


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

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

fault for not moving the sled off the trail.  

                      The  jury  ultimately  convicted  Tickett  of  manslaughter,4  


            5                 6 


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


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



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

           examine one of the State's experts  


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


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

agree with Tickett but conclude the error was harmless.  

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

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


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

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

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

of a dangerous instrument").  

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

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


                                                                       5                                                                2427

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

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


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


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


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


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


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

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

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

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

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


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


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


could board a plane to Alaska for the trial.  

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

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


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

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


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


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

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

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

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


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


Sulik was unavailable because she was flying to Alaska.  

                                                               6                                                         2427

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

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

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

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

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


                     On   appeal,   Tickett   argues   that   the   trial   judge   misunderstood   the  


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

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



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

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

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


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


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

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


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


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


judicial notice. 7  

     7    Alaska Evidence Rule 803(18) reads:  

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


     declarant is available as a witness:  

           .  .  .  .  

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


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


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

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


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

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


          may not be received as exhibits.  

                                                                  7                                                           2427

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

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

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




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


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


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


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


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


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

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

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

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

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

facts of Tickett's case.  

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


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


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

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

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

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

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

                   Nor   was   Tickett   completely   barred   from   using   the   information   in  

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

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

                                                            8                                                         2427  

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

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


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

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

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


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


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


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


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


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


dog team.  

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

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

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


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

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

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


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


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


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

reasonable doubt.  

                                                               9                                                          2427

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

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

          cocaine use  

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


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


and Tickett now challenges the court's ruling.  

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


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

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


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


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


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

a "drug user and of unsavory character."  

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



that Tickett recklessly caused the death of another person.  

                                                                                        To establish the offense of  

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


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

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


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

singly or in combination.11  

                    The trial judge could properly conclude that the challenged evidence was  


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

     9    AS 11.41.120(a)(1).   

     10   AS 11.41.200(a)(1).  

     11   AS 28.35.030(a)(1).   

                                                              10                                                           2427  

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

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

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


and to engage in aggressive, risk-taking behavior.  

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

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


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

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

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

          Tickett's sentence is not clearly mistaken  

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


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


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


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



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

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


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

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


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

4 years suspended, resulting in 15 years to serve.  

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

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

     14   AS 28.35.030(b).   

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

                                                             11                                                       2427

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

                    Tickett claims on appeal that this sentence is clearly mistaken.  

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

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


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




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


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


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

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


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


                    Here,  the  sentencing  court  considered  the  above  factors  in  formulating  


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

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


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

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

another, unrelated felony.  

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

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


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


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


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

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

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

                                                               12                                                           2427  

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

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

while under the influence.  

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


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


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


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

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


goal was deterrence and that isolation was also a factor.  

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


sentencing court's decision unless it is clearly mistaken.  


                                                                                                                    Here, the sentencing court  

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

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


                          The judgment of the superior court is AFFIRMED.  

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

                                                                                   13                                                                                2427  

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