Memorandum decisions of this court do not create legal precedent.
COATS, Chief Judge.
David T. Prince was convicted of murder in the second degree,
These convictions arose from an incident when Prince, driving while intoxicated and at a high rate of speed, crashed his SUV into the rear of a Hyundai. The resulting collision caused the death of Pamela Miller and caused serious physical injury to Antoinette Mayes, Lamont Flemister, and Dessie Cooper. Prince's defense was that he was not the driver of the SUV.
On appeal, Prince raises two issues. He first argues that Superior Court Judge Patrick J. McKay erred in denying his motion to dismiss the indictment on the ground that the State presented hearsay testimony to the grand jury without stating its reasons for presenting the evidence. He next argues that Superior Court Judge Michael R. Spaan erred in allowing the State to introduce evidence that Prince had previously been convicted of driving under the influence and evidence that Prince had recently participated in a court-ordered program in which he received education about the dangers of drinking and driving.
Prince caused a collision in which three passengers in another car were seriously injured, and one passenger died. Officer Robin Callison responded to the scene. She testified at grand jury but did not identify the victims. Officer Richard Steiding, who was not present at the scene of the collision, also testified at grand jury. His testimony included hearsay evidence — information obtained from other officers — identifying the victims.
Prince moved to dismiss the indictment on the grounds that the prosecutor did not state on the record why this hearsay evidence was presented. Prince based his argument on Alaska Criminal Rule 6(r)(1), which provides:
The State contended that admission of Steiding's testimony concerning the names of the victims was authorized by Criminal Rule 6(r)(3), which allows hearsay evidence to be admitted before the grand jury if the witness is "a peace officer involved in the investigation," and "the hearsay evidence consists of the statement and observations made by another peace officer in the course of [the] investigation," and additional evidence corroborates the statement.
Prince concedes that Officer Steiding based his identification of the victims on reports of other officers. And he does not attack Judge Spaan's finding that the officer's testimony satisfied all of the criteria in Criminal Rule 6(r)(3), including that the State corroborated the hearsay testimony. Rather, Prince argues that, even if Officer Steiding's testimony fell within Rule 6(r)(3), the State was still required to "announce on the record the reasons" for its introduction.
Alaska law limits the admissibility of hearsay evidence at grand jury if that hearsay would not be admissible at trial.
But in 1995, the Alaska Supreme Court issued an order which amended Criminal Rule 6(r) to add a new provision, subsection (r)(3), to cover hearsay evidence offered by police witnesses."
The original core of Rule 6(r) is preserved in what is now Rule 6(r)(1), and that provision still declares that the State must have a compelling justification for introducing otherwise inadmissible hearsay at grand jury, and that the State must explain its reasons for introducing this hearsay evidence on the record. But Rule 6(r)(1) explicitly declares that the State need not have a compelling justification to offer police hearsay evidence under subsection (3) of the rule. The pertinent portion of Rule 6(r)(1) states:
In the present appeal, Prince acknowledges that, because of the "except as stated" clause of Rule 6(r)(1), the requirement of a "compelling justification" does not apply to hearsay introduced under Criminal Rule 6(r)(3). However, Prince argues that the "except as stated" clause applies only to the "compelling justification" language, and that this clause does not modify the next sentence, which contains the requirement that the State must provide an on-the-record explanation of its reasons for introducing otherwise inadmissible hearsay evidence at grand jury.
We disagree, because we interpret the two sentences of Rule 6(r)(1) as a related pair. In the original version of Rule 6(r)(1) — that is, in the version before the additional subsections were enacted, when the rule was simply Rule 6(r), and it did not contain the "except as stated" clause — these two sentences clearly expressed one continuing thought:
In other words, the State had to have a compelling justification for relying on otherwise inadmissible hearsay evidence at grand jury, and the State had to explain that justification to the grand jurors.
Now, in the present version of the rule, the "compelling justification" requirement no longer applies to hearsay evidence presented by police witnesses under subsection (3). We conclude that the ancillary requirement — the requirement of informing the grand jurors of the reasons for using hearsay — likewise does not apply to police hearsay introduced under subsection (3).
A contrary reading of the rule (i.e., the interpretation that Prince proposes) would make little sense, because Rule 6(r) no longer requires a case-specific justification for introducing police hearsay testimony of other police officers' reports and observations. Instead, the State's justification for this evidence will always be the same: the police hearsay is authorized by Rule 6(r)(3).
For these reasons, we reject Prince's contention that the final sentence of Rule 6(r)(1) continues to govern police hearsay introduced under Rule 6(r)(3). When a prosecutor introduces a police officer's hearsay testimony pursuant to Rule 6(r)(3), the prosecutor need not affirmatively explain to the grand jurors that the hearsay is admissible because of the provisions of Rule 6(r)(3).
We do not mean to imply that Rule 6(r)(3) abolishes all limits on the State's ability to present its case to the grand jury through the hearsay testimony of an investigating officer. We believe it is unlikely that Criminal Rule 6(r)(3) was designed to subvert the general rule announced in Galauska v. State — that grand juries should normally make their decision based on testimony that would be admissible at trial.
But in Prince's case, the challenged details of the officer's testimony related to the precise identities of Prince's victims. This information was collateral to the charges against Prince: even if the precise identities of his victims had remained unknown at the time of the grand jury hearing, Prince still could have been indicted for killing and injuring them.
We note, moreover, that almost all police testimony concerning a crime victim's identity will be hearsay. Generally, an officer's information concerning the identity of a victim will be based on out-of-court statements made by the victim or by some other witness, or it will be based on the officer's scrutiny of documentary evidence of the victim's identity, such as a driver's license.
Thus, allowing hearsay testimony concerning a victim's identity normally will not undermine the core value of having grand juries base their decisions primarily on evidence that will be admissible at trial.
Before trial, the State moved to admit evidence of Prince's prior conviction for driving under the influence and evidence that Prince had recently completed a court-ordered wellness program. Prince completed the program about six weeks before the homicide. The wellness program included education about the dangers of drinking and driving. The State argued that the evidence was admissible to show an element of murder in the second degree, that Prince had acted with extreme indifference to the value of human life. Judge Spaan reasoned that the evidence was admissible to show that Prince "had knowledge of the dangers of drinking and driving."
An analysis of this issue requires us to consider the opinion of the Alaska Supreme Court in Jeffries v. State (Jeffries II).
Jeffries had previously been convicted for driving while intoxicated six times.
The Supreme Court was divided on the issue of whether Jeffries's prior history was admissible to show his heightened awareness. Three justices concluded that Jeffries's extensive record showed that he was aware of the threat that his decision to drink and drive created:
Justice Matthews, joined by Justice Fabe, concluded that Jeffries's prior history was inadmissible. Justice Matthews pointed out that the legislative history of the statute that permitted a conviction of murder where the defendant acted with "extreme indifference to the value of human life" showed that the statute was only to apply to particularly egregious behavior:
Justice Matthews stated that, based upon this legislative history, he
They pointed out a possible unintended consequence of allowing these convictions to be admitted to show that a defendant committed murder by acting with "extreme indifference to the value of human life."
Prince points out that his prior history, a single conviction for driving under the influence, was nowhere near as egregious as the defendant's record in Jeffries. Prince argues that evidence of his prior conviction had little probative value to show that he had a heightened sense of the dangers of driving under the influence. He argues that there was significant danger that he would be prejudiced by informing the jury of his prior conviction for the same kind of conduct for which he was on trial.
We think that there is merit to Prince's contention. It is difficult for us to predict what the majority of the Jeffries court would do under the circumstances presented by Prince. It is possible to read the opinion of the Court broadly, as allowing admission of a defendant's prior history of driving under the influence to show that he had a heightened knowledge of the dangers of driving under the influence to support an inference that he acted with "extreme indifference to the value of human life." It seems to us that it is more plausible to interpret the majority opinion more restrictively. In Jeffries II, the opinion of the Court emphasized the trial judge's reasoning that, because of Jeffries's extensive and repetitive history of drinking and driving, Jeffries had a heightened awareness of the risk of that behavior.
This interpretation takes into account the substantial danger that, when a court admits evidence that the defendant has previously been convicted of similar offenses, the jury will use this evidence "as evidence that the defendant is a person who characteristically engages in this type of criminal behavior — and that the jurors [would] presume the defendant's guilt from the fact that the defendant has done it before."
Our prior cases reflect this concern. In Jansen v. State,
During his defense case, Jansen called a psychiatrist who testified that, from his examination of Jansen, he concluded that at the time of the motor vehicle homicide, "there was nothing about the circumstances of the accident or his knowledge of Jansen that would indicate that Jansen was acting in a reckless manner."
A jury convicted Jansen of criminally negligent homicide and assault, and Jansen appealed.
We reasoned that, in most cases involving a motor vehicle homicide, "the defendant disputes the drunk driving charge, but does not seriously dispute the mens rea issue."
In Ostlund v. State, we held that when the State charged a defendant with felony driving while intoxicated, the trial court was normally required to bifurcate the defendant's trial so that the jury first determined whether the defendant had committed the offense of driving while intoxicated before hearing evidence of his prior convictions.
More recently, in Hutson v. State,
We concluded that, although Hutson's "prior experience with DUI breath testing had some arguable relevance to the issues of fact litigated at Hutson's trial, ... it was both unnecessary and unfairly prejudicial to allow the State to establish this prior experience by introducing evidence of Hutson's previous criminal convictions for driving under the influence and breath test refusal."
In a prosecution for reckless murder, the State must establish a mens rea showing a high degree of culpability: that the defendant acted with "extreme indifference to the value of human life."
For instance, in Pears v. State,
These cases demonstrate that the appellate courts of this state have shown consistent concern about the danger of admitting evidence of a defendant's prior DUI convictions in cases where the defendant is on trial for similar crimes. The concern is that the jury will conclude "that the defendant is a person who characteristically engages in this type of criminal behavior [and] presume the defendant's guilt from the fact that the defendant has done it before."
In the present case, Prince had one prior conviction for driving under the influence. There was no evidence about the facts of that conviction that would make it particularly relevant. Under these circumstances, we conclude that the relevance of the evidence that Prince had previously been convicted was outweighed by the danger of unfair prejudice. We accordingly conclude that Judge Spaan erred in admitting this evidence.
We reach a similar conclusion about the evidence that Prince had participated in a court-ordered program in which he received education about the dangers of drinking and driving. As we have previously stated, it is reasonable to assume that any person would be aware of the extreme danger of driving under the influence. In the present case, the State presented a witness who testified that Prince attended a court-ordered twelve- to eighteen-month outpatient program. The witness described the program in detail. The program included a videotape put together by the Alaska State Troopers showing one summer of incidents of driving under the influence, including how an offense affected, not only the driver, but the victims and their families. The presentation of this evidence allowed the prosecution to remind the jury, in detail, of the extreme dangers of driving under the influence and the disastrous consequences that result from this criminal activity. We conclude that the relevance of this evidence was outweighed by the danger that the jury would be unduly prejudiced by the emphasis on the dangerousness of driving under the influence in general. The concern is that the presentation of this evidence might prejudice the jury by having them focus on the dangers of driving under the influence in general, rather than focusing on the specific facts of Prince's case.
We accordingly conclude that Judge Spaan erred in allowing the State to admit evidence that Prince had previously been convicted of driving under the influence and that Prince had previously participated in a court-ordered program in which he received education about the dangers of drinking and driving. We reverse Prince's conviction.
The judgment of the superior court is REVERSED.
MANNHEIMER, Judge, concurring.
At a superficial level, the primary issue presented in this appeal is whether Prince's trial judge committed error when he allowed the State to introduce evidence of Prince's previous conviction for driving under the influence. But at a deeper level, the primary issue in this appeal is whether the admission of this evidence rested within the trial judge's discretion, or whether instead the admission of this evidence was barred as a matter of law.
In Judge Bolger's dissenting opinion, he adopts the view that the admission of this evidence rested within the trial judge's discretion — that it was up to the trial judge to weigh the probative value of this evidence against its potential for unfair prejudice, and that we (as an appellate court) are authorized to reverse the judge's decision on this matter only if we are convinced that the judge abused his discretion.
"Abuse of discretion" is a deferential standard of review. Under this standard of review, an appellate court must affirm the trial judge's decision as long as that decision represents a reasonable weighing of the pertinent interests. If cases like Prince's truly present a question of judicial discretion — that is, if reasonable judges could differ as to whether evidence of a single prior DUI conviction was more prejudicial than probative — then, under the "abuse of discretion" standard of review, we must be prepared to affirm not only decisions like the one made by Prince's trial judge (admitting this evidence), but also decisions excluding this evidence under exactly the same facts, so long as the trial judges made a reasonable effort to conduct the balancing required by Evidence Rule 403.
For the reasons explained in this concurrence, I believe that the admission of the evidence of Prince's previous conviction for driving under the influence did not rest within the trial judge's discretion. Instead, given the facts of Prince's case, and given the way Prince's case was litigated, the admission of this evidence was error as a matter of law.
Before Prince's trial began, the State gave notice that it would seek to introduce evidence of Prince's earlier conviction for driving under the influence. The State argued that this prior DUI conviction tended to establish that Prince was "[aware] of the risks associated with drinking and driving", and thus this evidence tended to show that Prince acted with the culpable mental state required for second-degree murder under AS 11.41.110(a)(2) — extreme indifference to the value of human life.
In support of this argument, the State relied heavily on this Court's opinion in Jeffries v. State, 90 P.3d 185, 193 (Alaska App. 2004) (Jeffries I) — an opinion that was later affirmed by the Alaska Supreme Court in Jeffries v. State, 169 P.3d 913 (Alaska 2007) (Jeffries II).
The defendant in Jeffries was charged with second-degree murder for driving under the influence, causing an accident, and killing the passenger in his car.
One of the major disputes at Jeffries's trial was whether Jeffries exhibited "manifest indifference to the value of human life" — the culpable mental state for second-degree murder — as opposed to the typical recklessness that would support a conviction for manslaughter.
The jury found Jeffries guilty of second-degree murder.
More specifically, Jeffries argued that, in cases of vehicular homicide, a conviction for second-degree murder was proper only if the evidence showed that the intoxicated driver engaged in egregious driving during the episode being litigated — i.e., that the defendant operated the vehicle in a particularly dangerous or heedless manner.
The Alaska Supreme Court agreed with Jeffries that, in normal circumstances, an intoxicated driver who tries unsuccessfully to drive safely and who causes a death will be guilty of manslaughter, not second-degree murder.
The supreme court also agreed with Jeffries that convictions for "extreme indifference" second-degree murder should be "reserve[d] ... for cases in which the objective risk of death or serious physical injury posed by the defendant's actions is very high."
However, the supreme court expressly affirmed this Court's holding in Neitzel v. State, 655 P.2d 325 (Alaska App. 1982), that the distinction between second-degree murder (i.e., "extreme indifference" homicide) and manslaughter (i.e., "reckless" homicide) is ultimately an issue of fact, and that juries (or judges in bench trials) are to make this assessment using the following factors: (1) the social utility of the defendant's conduct; (2) the magnitude of the risk created by the defendant's conduct, including both the nature of the foreseeable harm and the likelihood that this harm would occur; (3) the defendant's level of awareness of this risk; and (4) any precautions that the defendant took to minimize this risk.
The supreme court further explained that, because the distinction between "extreme indifference" and "recklessness" is one of degree, and because this assessment should normally be made by the trier of fact, the evidence in a drunk-driving homicide case will be legally sufficient to support a second-degree murder conviction "[unless] the evidence, viewed as a whole, cannot be reasonably interpreted as demonstrating the type of heightened recklessness that is equivalent to purposeful or knowing homicide."
With regard to the evidence of Jeffries's six prior DUI convictions and his four failures to comply with court-ordered alcohol treatment programs, the supreme court concluded that this evidence was relevant to prove Jeffries's "heightened awareness of the dangerousness of his conduct".
More specifically, the supreme court endorsed the trial judge's analysis of why evidence of Jeffries's history of recidivism as an intoxicated driver, and evidence of his repeated failures to attend court-ordered treatment programs, was relevant to the question of whether he acted with extreme indifference to the value of human life:
Jeffries II, 169 P.3d at 923 (quoting the trial judge). The supreme court then added:
Id. at 923-24.
Turning to the facts of Prince's case, when the State gave notice that it would seek to introduce evidence of Prince's prior conviction for driving under the influence, the State relied on the theory expounded in the above-quoted portion of Jeffries: the theory that Prince's prior conviction tended to prove his heightened awareness of the risk of driving under the influence. The State argued that evidence of Prince's previous conviction was admissible because it was not offered to prove Prince's characteristic behavior, but rather to prove "his level of awareness of the risks created by his driving while intoxicated".
The State also argued that evidence of Prince's previous conviction was relevant to the issue of the degree of Prince's disregard for the safety of others. Quoting the language of Jeffries, the State suggested that Prince, because of his previous conviction, "[was] on notice that his drinking behavior was dangerous to others and [that his behavior] had to change", and that Prince "[had] consciously refused to act on these warnings."
The trial judge adopted the State's view of this matter. The judge acknowledged that the defendant in Jeffries had six prior DUI convictions (not just one), and that the defendant in Jeffries had willfully failed to comply with court-ordered alcohol treatment. However, the judge concluded that this distinction affected only the strength of the State's proposed evidence, and not its admissibility. The judge declared that evidence of Prince's prior conviction was relevant because it was "[at least] some evidence that [Prince] understood the risk of drunk driving".
Apparently, the trial judge also concluded that evidence of the prior DUI conviction was automatically admissible under Jeffries if it was offered for the purpose of proving Prince's degree of awareness of the risks of intoxicated driving. I say this because the trial judge did not mention Evidence Rule 403 when he made his ruling, nor did the trial judge ever discuss whether this evidence posed a danger of unfair prejudice.
I concede that when a defendant is on trial for a vehicular homicide committed while the defendant was intoxicated, and the defendant has a prior conviction for driving under the influence, one might reasonably draw the inference that this prior conviction would tend to heighten the defendant's awareness of the potential dangers of drinking and driving, especially if that prior conviction involved a situation where people were injured or nearly injured. Thus, evidence that a defendant has a prior DUI conviction probably qualifies as at least minimally relevant to proof of the defendant's culpable mental state — in particular, proof that the defendant acted with awareness of, and in disregard of, the risk of human death posed by drinking alcoholic beverages and then operating a motor vehicle.
But though evidence of a defendant's prior DUI conviction may be relevant to the defendant's awareness of the risk posed by driving while intoxicated, the degree of this relevance hinges on the particular facts of the defendant's case, and also on the litigation strategies of the parties.
In particular, if a defendant has only a single prior conviction for driving under the influence, the case will not present the factors that the supreme court found persuasive in Jeffries: a lengthy history of recidivism, coupled with willful and repeated failures to comply with court-ordered treatment. In the absence of these factors, the probative force of the defendant's single prior conviction may have little significance for the jury's assessment of whether the defendant acted with "manifest indifference to the value of human life" as opposed to merely "recklessly".
In addition, the probative force of a defendant's prior convictions may be insignificant if the defendant does not contest the mens rea element of the State's proof. This was the situation in Prince's case: Prince did not defend the murder charge by arguing that he acted only recklessly. Rather, Prince defended the murder charge by asserting that he was not the driver of the vehicle.
At the same time, evidence of a defendant's prior DUI convictions normally carries a high potential for unfair prejudice. When a jury hears that a defendant has previously been convicted of driving under the influence, there is a significant chance that the jury may use this information for the purpose prohibited by Alaska Evidence Rule 404(b)(1): as the basis for inferring that the defendant is a person who characteristically drives while under the influence, thus making it more likely that the defendant drove while under the influence during the episode currently being litigated.
Because Prince had only a single prior conviction for driving under the influence, evidence of this prior conviction did not demonstrate a history of recidivism like the one in Jeffries. Moreover, because the State did not suggest that this prior conviction arose from an episode that involved death or serious injury (or that involved a barely avoided death or serious injury), evidence of this prior conviction had only minimal probative value on the issue of whether Prince's awareness of the risks of drunk driving differed significantly from the level of awareness shared by other members of society — more specifically, that Prince's awareness of the danger was heightened to the degree that one might reasonably classify Prince's culpable mental state as "manifest indifference to the value of human life", as opposed to the typical recklessness of an intoxicated driver.
And, as I have already noted, Prince did not dispute the mens rea element of the State's proof. Rather, Prince asserted that he was not the driver of the car.
For these reasons, I believe that no reasonable judge could conclude that the probative value of this evidence equaled or outweighed its potential for unfair prejudice. Rather, given the facts of Prince's case, and given the way the case was litigated, the minimal probative value of this evidence was substantially outweighed by the danger that the jury would use this evidence for an improper purpose. Specifically, the danger was that the jury would view Prince's prior act of driving under the influence as "character" evidence — i.e., as circumstantial proof that he was the driver of the car.
I therefore conclude that it was wrong, as a matter of law, for the trial judge to allow the State to introduce this evidence at Prince's trial, and I further conclude that this error requires reversal of Prince's murder conviction.
In Jeffries, the Alaska Supreme Court endorsed the position that an intoxicated driver who causes a death should normally be convicted of manslaughter, not second-degree murder. The court declared that a charge of second-degree murder is "only rarely" appropriate in vehicular homicide cases
But while this principle may be easy to articulate in the abstract, it can be difficult to apply this principle on a case-by-case basis. Ultimately, trial jurors make the decision as to whether a particular act of vehicular homicide constitutes murder or manslaughter — and, unlike appellate judges and lawyers, trial jurors see only the one case in front of them. Because trial jurors have no fixed points of comparison, it is difficult for jurors to know whether the case before them is one of the "rare" cases where a murder conviction is appropriate, or whether the risk created by the defendant's conduct was "very high" in comparison to a typical case of reckless vehicular homicide.
Because of this problem, and because of the risk that jurors will misuse evidence of a defendant's prior convictions, I believe that this Court (and trial judges) must give a narrow interpretation to the decision in Jeffries.
As I have acknowledged, even a single prior DUI conviction is arguably relevant to prove that a vehicular homicide defendant had a heightened awareness of the risks of driving under the influence. But the facts of Jeffries supported a much more forceful conclusion than mere "heightened awareness". The defendant in Jeffries had six prior DUI convictions, and he had repeatedly refused to participate in court-ordered alcohol rehabilitation programs. This was evidence, not simply of heightened awareness, but of a wanton or arrogant disregard for the safety of others.
As this Court held in Jeffries I, and as the majority of the supreme court held in Jeffries II, this lengthy history of recidivism and spurned opportunities for rehabilitation was sufficiently egregious to warrant the inference that, when Jeffries drank alcoholic beverages and got behind the wheel, he acted with a culpable mental state that was substantially more blameworthy than the recklessness typically present in vehicular homicide cases involving intoxicated drivers.
In Prince's case, the trial judge concluded that even though Prince's criminal history (a single prior conviction) was not nearly as egregious as Jeffries's, evidence of that prior conviction was admissible because the single conviction was at least "some evidence that [Prince] understood the risk of drunk driving". But as explained in the preceding paragraph, the precise issue is not whether Prince was aware of the dangers of drunk driving, or even if he had a heightened awareness of these dangers compared to a typical citizen. Rather, the question is whether Prince's single prior conviction gave rise to a reasonable inference that Prince acted with wanton or arrogant disregard for the safety of others — in other words, with a culpable mental state that was substantially more blameworthy than the recklessness that typifies drunk driving homicides.
It is true, as pointed out by the supreme court in Jeffries II, and as pointed out by this Court in Neitzel, that the distinction between "manifest indifference to the value of human life" and typical "recklessness" generally hinges on the particular facts of the case, and it is a question to be decided by the trier of fact. Thus, one might argue that even a single prior conviction is a valid part of the factual mix that a jury should consider.
But, generally speaking, a single prior DUI conviction has only marginal probative force on the issue of whether the defendant acted with the kind of wanton or arrogant disregard for the safety of others that would warrant a conviction for second-degree murder. Balanced against this marginal probative value is the high potential for unfair prejudice posed by evidence of a prior conviction.
If we adopted the approach of the trial judge in Prince's case — that is, if we ruled that evidence of even a single prior conviction could be admitted because of its marginal probative value — we would effectively be endorsing a rule that prior convictions are admissible when a defendant is charged with murder, even though this same evidence would be inadmissible if the defendant were charged with manslaughter.
The dissent in Jeffries II warned of this potential consequence,
For these reasons, I conclude that when a vehicular homicide defendant has only a single prior conviction for driving under the influence, and there is no proof that this prior incident involved death or serious injury, the State should not be allowed to introduce this evidence for the purpose of proving that the defendant acted with manifest indifference to the value of human life. In these circumstances, evidence of the prior conviction has so little probative value and such great potential for unfair prejudice that, as a matter of law, the balancing under Evidence Rule 403 must result in exclusion.
Apart from the general considerations discussed in the preceding section of this concurrence, I conclude that, under the specific facts of Prince's case, the evidence of Prince's prior conviction had essentially no probative value.
The evidence was offered to prove Prince's culpable mental state. But Prince did not actively dispute his culpable mental state. Rather, Prince contended that he was not the driver of the car. Given this defense, the unfair prejudice of telling the jury about Prince's prior conviction clearly outweighed whatever minimal probative value this information might have.
My analysis of this aspect of Prince's case is based on this Court's decision in Jansen v. State, 764 P.2d 308 (Alaska App. 1988).
The defendant in Jansen was charged with manslaughter and assault after he drove a motor vehicle while intoxicated, killing one person and injuring another.
In support of this defense, Jansen offered the testimony of a psychiatrist, Dr. George Harris, who stated "that he examined Jansen, looking for aggressive tendencies or impulses that might manifest themselves while Jansen was driving", and that "[he] found none".
The trial judge had previously barred the prosecutor from introducing evidence that Jansen had two prior convictions for driving under the influence. But after Dr. Harris gave the testimony described in the preceding paragraph, the trial judge re-assessed that ruling and allowed the State to introduce evidence of the prior convictions.
Jansen was convicted and, on appeal, he challenged the trial judge's evidentiary ruling. The State defended the judge's ruling on two grounds. The first ground was that, by offering the testimony of Dr. Harris, the defense had "opened the door" to evidence of Jansen's prior DUI convictions. But the State presented an alternative argument: the argument that, regardless of the content of Harris's testimony, evidence of Jansen's prior convictions was independently admissible "to prove that Jansen was subjectively aware of the risk posed by his drunk driving". Id. at 311. The State asserted that evidence of Jansen's prior DUI convictions "should have been automatically admitted to show [that Jansen was on] notice [of the dangers of drunk driving], whether Jansen specifically litigated mens rea or not." Ibid.
Responding to the State's argument, this Court acknowledged that, in earlier cases, both this Court and the Alaska Supreme Court had suggested "that a person's past experience of being arrested for driving while intoxicated or other alcohol related offenses ... might be relevant to show recklessness when that person later became intoxicated and engaged in dangerous conduct, i.e., driving while intoxicated."
But despite the relevance of a defendant's prior convictions to show the defendant's awareness of the risk of driving a motor vehicle while under the influence, this Court held that evidence of a defendant's prior convictions normally should not be admitted under this theory:
Jansen, 764 P.2d at 311-12.
In other words, the rule in Alaska is that evidence of a DUI defendant's prior DUI convictions is normally inadmissible when this evidence is offered to prove the defendant's awareness of the dangers posed by drinking and driving. This rule of exclusion is not based on a lack of relevance — for, under Alaska Evidence Rule 401, "relevant evidence" is defined as any evidence "having any tendency to make the existence of any [material] fact ... more probable or less probable than it would be without the evidence". Rather, the rule of exclusion is based on the fact that, unless there is an active dispute concerning the defendant's culpable mental state, evidence of the defendant's prior convictions has only a small probative value on the issue of culpable mental state, and this minimal probative value is outweighed by the potential unfair prejudice created by this evidence.
This same rule of exclusion is the implicit underpinning of this Court's decision in Ostlund v. State, 51 P.3d 938 (Alaska App. 2002). In Ostlund, we held that when a defendant is charged with felony DUI — that is, charged with driving under the influence after having been twice previously convicted of this offense — the defendant is normally entitled to a bifurcated trial, so that the jurors do not hear about the defendant's prior convictions unless and until they decide that the defendant is guilty of driving under the influence on the current occasion.
Our decision in Ostlund is based on the fact that, in a normal felony DUI trial, the defendant's prior convictions are relevant only to establish that the defendant's current act of driving under the influence constitutes a felony. Thus, allowing the State to introduce evidence of those prior convictions before the jury decides whether the defendant is guilty of the current act of driving under the influence poses an unnecessary risk of prejudicing the jury's decision. As we explained in Ostlund:
Ostlund, 51 P.3d at 941. As we stated in this portion of Ostlund, the requirement of a bifurcated trial applies when "[the defendant's] prior offenses [are not] relevant for any purpose other than to establish that [the defendant's current] driving while intoxicated offense was a felony." Id. at 941; see also id. at 946-49 (Mannheimer, J., concurring).
But as I have acknowledged in this concurring opinion, and as the State explicitly argues in Prince's case, a defendant's prior convictions for driving under the influence always have at least some relevance to the question of the defendant's awareness of the dangers of driving under the influence — i.e., to the question of whether the defendant acted with recklessness or, potentially, with manifest indifference to the value of human life.
If we affirmed the ruling made by Prince's trial judge — that is, if we held that this small amount of relevance was sufficient to justify admission of the prior convictions, even when the defendant does not actively dispute the mens rea element of the offense — then we would effectively destroy the Ostlund requirement of bifurcated trials in felony DUI prosecutions. For if we adopted this view of the law, there would never be a felony DUI case where the defendant's prior convictions were relevant solely for the purpose of establishing that the defendant's current act of driving under the influence was a felony. The prior convictions would always be at least minimally relevant to establish the defendant's culpable mental state — and trial judges would presumably have the discretion, under Evidence Rules 403 and 404(b)(1), to let the State introduce evidence of these prior convictions.
The only way to avoid this result is to hold fast to the rule we followed in Jansen: the rule that, unless a defendant actively disputes the element of culpable mental state, evidence of the defendant's prior DUI convictions is not normally admissible — because it has only a small probative value on the issue of culpable mental state, and because this minimal probative value is outweighed by the potential unfair prejudice of this evidence.
This rule of exclusion is dispositive of Prince's case.
In the superior court, the prosecutor relied on essentially the same argument that the State presented in Jansen: the argument that Prince's previous conviction was relevant because it showed "his awareness of the risks associated with drinking and driving". The prosecutor did not discuss the problem that this Court identified in Jansen — the problem that, since evidence of Prince's previous DUI conviction was being offered to prove mens rea, the probative value of this evidence would hinge on whether Prince actively disputed the element of mens rea.
Similarly, when the trial judge granted the prosecutor's request to introduce this evidence, the judge did not consider the question of whether Prince intended to dispute the mens rea element of the State's case.
But this question was crucial. Prince did not defend the murder charge by asserting that he lacked the required mens rea. Rather, he denied that he had been the driver of the vehicle.
Because Prince did not dispute the issue of mens rea, but instead disputed that he was driving the motor vehicle, evidence of Prince's earlier DUI conviction had very little probative value. Its only probative value related to an issue that was not in dispute. On the other hand, the danger of unfair prejudice was quite high: there was a substantial risk that the jury would view Prince's earlier act of driving under the influence as circumstantial evidence that Prince was the one driving the vehicle in the present case.
In these circumstances, Alaska law does not allow the government to introduce evidence of the defendant's prior convictions for DUI, even though this evidence meets the minimal test for relevance. Prince's trial judge committed error by failing to consider whether Prince intended to actively dispute the element of mens rea — and this error requires reversal of Prince's conviction because Prince did not, in fact, dispute the element of mens rea.
For the reasons explained here, I conclude that it was error to allow the State to introduce evidence of Prince's prior DUI conviction. Moreover, I conclude that the fairness of Prince's trial was substantially prejudiced by the admission of this evidence.
The major issue litigated at Prince's trial was whether Prince was the driver of the vehicle. The jurors heard that Prince had committed DUI on a prior occasion, and there was a significant chance that the jurors used this information for the purpose prohibited by Alaska Evidence Rule 404(b)(1): to infer that Prince was a person who characteristically drove while intoxicated, and that it was therefore more likely that Prince was driving the car in this case.
Accordingly, I agree with the result reached in the lead opinion: the judgement of the superior court should be reversed.
BOLGER, Judge, dissenting.
We are required to affirm a trial judge's decision to admit or exclude evidence of a person's bad acts, unless the decision is an abuse of discretion.
In Jeffries v. State, this court held:
This court explained that "the jury is entitled to consider [this] factor[] when deciding whether the government has proved that the defendant acted with the extreme degree of recklessness that will support a murder conviction."
Jeffries argued that this evidence was so unfairly prejudicial that it should have been excluded.
The Alaska Supreme Court did not review our ruling on the admissibility of Jeffries's prior convictions. But the supreme court noted that we had "rejected Jeffries's contention that the evidence of the DWI convictions ... was irrelevant and unduly prejudicial."
Based on the holdings in the Jeffries cases, a reasonable judge could have concluded that, in a second-degree murder case, the prosecution may introduce evidence of the defendant's past convictions for driving under the influence to prove the element of "extreme indifference to the value of human life." A reasonable judge could have concluded that this evidence is relevant to the defendant's awareness of the risks created by driving under the influence, and that the prejudice from this evidence does not necessarily outweigh this probative value.
In my opinion, it was more reasonable for Judge Spaan to rely on the language and reasoning of the Jeffries holdings, than to refer to the reasoning of the dissenting opinion or the cases with less obvious application to the issue at hand.
In addition, I disagree with the suggestion in the lead opinion that the admissibility of this evidence under Alaska Evidence Rule 403 is necessarily contingent on the number of prior convictions. The lead opinion reasons that this evidence becomes less probative as the number of prior convictions decreases. But a reasonable judge could also recognize that the prejudicial impact of this evidence decreases with the number of prior convictions. In other words, a judge could conclude that, if the prejudice accruing to Jeffries's six prior convictions did not render this evidence inadmissible, then the lesser prejudice inherent in a single prior conviction would not outweigh its recognized probative value.
Judge Spaan could reasonably conclude that the evidence of Prince's prior DUI conviction was relevant to suggest his "heightened awareness of the dangerousness of his conduct."
I am not suggesting that all trial judges should be required to decide this question in the same way. It is not an abuse of discretion to exclude evidence of prior DUI convictions when the trial judge concludes that the danger of unfair prejudice outweighs any potential relevance.
