Ostlund v. State

OPINION

COATS, Chief Judge.

A jury convicted William B. Ostlund of felony driving while intoxicated (DWI)¹ and driving with a revoked operator’s license.² He raises two issues on appeal: (1) whether the trial judge erred when she denied his motion to bifurcate the trial so the jury would not hear evidence of his prior convictions before deliberating on the current DWI allegation and (2) whether the trial judge erred in failing to give a jury instruction regarding photographs he contends the police might have taken at the scene of his alleged offense. We reverse Ostlund’s convictions because we find the trial court erred when it did not bifurcate Ostlund’s trial. However, we find no error in the trial judge’s refusal to give the proposed jury instruction regarding the photographs.

Ostland’s -motion to bifurcate his felony DWI trial

A defendant commits felony DWI when he drives while intoxicated and has two or more prior convictions for DWI or refusal to submit to a chemical test within the past five years.³ The state charged Ostlund with felony DWI for driving while intoxicated while having two prior DWI convictions within the past five years. Prior to trial, Ostlund argued that presenting evidence of his prior convictions to the jury would prejudice the jury in reaching a decision about whether he had committed his current DWI offense. He argued that the court should have the jury only determine whether he had committed the present offense of driving while intoxicated. He agreed to stipulate to the two prior convictions if the jury convicted him of driving while intoxicated. Superior Court Judge pro tem Jane F. Kauvar denied Ostlund’s request. As a result of Judge Kauvar’s ruling, the parties stipulated to the two prior DWI convictions and Judge Kauvar advised the jury of Ostlund’s prior convictions. Following the presentation of evidence, the jury convicted Ostlund of felony driving while intoxicated.

In State v. McLaughlin,⁴ this court discussed the prejudice that could accrue to a defendant from introducing his prior convictions in a case where the prior convictions are an element of the offense:

Both in Alaska and elsewhere, courts have recognized that evidence concerning the number and nature of a defendant’s prior convictions can pose a serious risk of prejudice when introduced in a case in which a prior conviction is an element of the offense charged. For this reason, appellate courts have generally agreed that the trial court has broad discretion to limit the amount of evidence allowed on the issue and to regulate the form in which it is presented, particularly when the defendant does not dispute the prior conviction’s existence.⁵

McLaughlin was charged with the offense of felon in possession (possession of a coneeala-ble firearm by a previously convicted felon).⁶ He sought to keep the state from presenting evidence of his prior conviction to the jury, fearing that the jury might be prejudiced against him because he had a prior felony conviction.⁷ McLaughlin offered to stipulate to his prior conviction and have the court withdraw the prior conviction element from the jury. The trial judge agreed with McLaughlin and ruled that the jury would decide only the issue of whether McLaughlin knowingly possessed a concealable firearm— McLaughlin’s criminal history would be inadmissible unless it somehow became relevant to other issues arising during the course of the trial.⁸

The state filed a petition for review to this court. The state argued that McLaughlin’s prior felony conviction was an element of McLaughlin’s offense and the trial court had no authority to prevent the state from presenting evidence of this element to the jury. We accepted the state’s petition for review, and a majority of this court reversed the trial court’s decision.⁹

The court stated that the issue was close.¹⁰ The court reasoned that, if the issue was strictly an evidentiary matter, a strong case could be made to exclude McLaughlin’s prior conviction.

In most cases, however, once the defendant concedes the prior conviction element, evidence of prior convictions would have no evidentiary relevance except to establish the defendant’s general propensity to commit crimes — an impermissible, and therefore illegitimate, purpose under Alaska Rule of Evidence 404(b)(1).¹¹

But the court concluded that other policy arguments supported the government’s introduction of evidence to prove McLaughlin had prior felony convictions.¹² The court reasoned that if the jury was only allowed to act as a fact-finder to determine whether McLaughlin had possessed a firearm, the jury might be left with the inaccurate impression that McLaughlin was being prosecuted for conduct that was not unlawful.¹³ Because possession of a concealable firearm is generally legal, the government’s prosecution of McLaughlin only made sense because he was a convicted felon. The court concluded that it was necessary for the jury to understand why it was convicting or acquitting the defendant for the jury to properly fulfill its role in the criminal justice system.¹⁴

The court specifically limited its decision to cases where the defendant’s conduct was conduct that was ordinarily lawful but became unlawful because the defendant had a prior felony conviction:

We further note that our decision addresses only the specific circumstances of this case, in which the charged offense consists of conduct that is ordinarily lawful, which is rendered unlawful only because of the defendant’s prior conviction of a felony. By contrast, other types of crimes that include the existence of a prior felony conviction as an element deal with conduct that is already independently unlawful; in such eases, the prior-conviction element serves only to enhance the seriousness of the offense.

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In this latter type of case, failing to inform the jury of the prior-conviction element arguably entails few of the problems presented in the former type of case[.]¹⁵

In Ross v. State,¹⁶ we addressed the kind of offense we had reserved judgment on in McLaughlin; an offense where the defendant’s conduct, driving while intoxicated, was independently unlawful and where the defendant’s prior convictions served only to enhance the seriousness of the offense.¹⁷

Ross contended that his prior DWI convictions were strictly a matter for the court to consider at sentencing rather than an element of felony DWI'.¹⁸ He contended that because his prior convictions were not an element of the offense, it was improper for the trial court to allow the jury to hear evidence of his prior DWI convictions. He did not otherwise suggest to the trial court any specific procedures to protect himself from any unfair prejudice caused by the jury considering his prior convictions. We held that the prior convictions are an element of felony DWI.¹⁹ We declined to find that the trial judge committed plain error by allowing the jury to consider both Ross’s prior convictions and his DWI offense simultaneously. We recognized the prejudice that might result from having the court inform the jury that the defendant had committed the identical offense on prior occasions, and we recommended to judges that they bifurcate felony. DWI trials:

Another way of dealing with this problem — one that we recommend to judges in the future — is to bifurcate the trial. In a bifurcated trial, the jury would first decide whether the defendant was guilty of driving while intoxicated on the date specified in the indictment; if the jury found the defendant guilty, the same jury would then decide the issue of the defendant’s prior convictions. This solution would preserve both parties’ right to a jury determination of all issues, while at the same time avoiding the potential for unfair prejudice that would otherwise be posed by evidence of the defendant’s prior convictions. Moreover, this solution works equally well regardless of whether the defendant is willing to stipulate to the prior convictions or wishes to contest them.²⁰

We also pointed out that, if the defendant and the state were willing to waive jury trial on the prior-convictions element of felony DWI, then this element could be tried to the court.²¹

We fail to see why Judge Kauvar did not agree to this procedure. , The state never argued that Ostlund’s prior offenses were relevant for any purpose other than to establish that his driving while intoxicated offense was a felony. By holding a unitary trial in which the state was allowed to present evidence that Ostlund had two prior convictions for DWI, the judge unnecessarily presented the jurors with information that could have unfairly prejudice their deliberations. Having heard that Ostlund had committed DWI on two prior occasions, the jury might have used this information for the purpose prohibited by Evidence Rule 404(b)(1): to infer that Ostlund was a person who characteristically drove while intoxicated, thus making it more likely that he was guilty of the current DWI charge.

We note that the majority of jurisdictions considering this issue have created procedures for the trial court to try the felony DWI without the jury being informed of the prior convictions during its consideration of the current DWI offense.²² Those jurisdictions have concluded that the Ross recommendations (ie., bifurcation, stipulation, or waiver) are the proper ways to try felony DWI offenses to protect a defendant from being unfairly prejudiced by evidence of his earlier DWI convictions.

[Ajbsent the bifurcated process, the jury is directly confronted with evidence of the defendant’s prior criminal activity and the presumption of innocence is destroyed and ... if the presumption of ... [innocence] is destroyed by proof of an unrelated offense, it is [all the] more easily destroyed by proof of a similar related offense.²³ Accordingly, we conclude that Judge Kau-

var abused her discretion by failing to adopt the procedures we recommended in Ross. We therefore reverse Ostlund’s convictions.

Ostlund’s request for a jury instruction that absent photographs should have been presumed to favor him

Ostlund argues that Judge Kauvar erred in failing to give an instruction concerning some photographs he contends the police might have taken at the scene of his alleged DWI offense. Ostlund argues the court should have instructed the jury that, if the jury found the police had taken and failed to preserve photographs from the scene of the alleged DWI offense, the jury should assume the missing evidence would have been favorable to the defendant. But the sole evidence that photographs were taken at the scene was a “checked” box on the police report stating that the officers took photographs of the scene. The testimony at trial was that the troopers had not taken any photographs and that the checked box on the police report was probably a clerical error.

After hearing the evidence, Judge Kauvar refused to give Ostlund’s proposed instruction. She concluded that the police had not taken any photographs. She also concluded that even if photographs existed, there was no evidence that they would have been relevant to resolving any contested fact.

We conclude Judge Kauvar did not err in determining that the evidence indicated the police did not take any photographs and that, even if photographs had been taken, they would not have been relevant to determining any contested fact. In Catlett v. State,²⁴ the Alaska Supreme Court held that even though the police lost or destroyed photographs of the crime scene, the defendant was not prejudiced when the record showed that the photographs would have been cumulative of other available evidence.²⁵ In Lee v. State,²⁶ this court held that even if the police failed to preserve two traffic signs that were allegedly hit and broken off by the defendant’s car, the defendant failed to show prejudice in light of the fact the trial judge found that, under the circumstances, the signs would not have been exculpatory.²⁷ We conclude that Judge Kauvar did not abuse her discretion in refusing to give Ostlund’s proposed instruction.

Conclusion

Ostlund’s request for bifurcation should have been granted. For this reason, his convictions are REVERSED. However, assuming Ostlund is retried, we uphold Judge Kauvar’s decision to reject Ostlund’s proposed instruction regarding the photographs.

1 . AS 28.35.030(a), (n).

2 . AS 28.15.291(a).

3 . AS 28.35.030(n), (o)(4). Alaska Statute 28.35.030(n) states: "A person is guilty of a class C felony if the person is convicted of driving while intoxicated and has been previously convicted two or more times within the five years preceding the date of the present offense."

4 .860 P.2d 1270 (Alaska App. 1993).

5 . Id. at 1272 (footnote omitted).

6 . Id. at 1271.

7 . Id. at 1272.

8 . Id.

9 . Id. at 1278.

10 .Id. at 1273.

11 . Id.

12 . Id. at 1273-74.

13 . Id. at 1274.

14 . Id. at 1276-77.

15 . Id. at 1278 n. 15 (citations omitted).

16 . 950 P.2d 587 (Alaska App. 1997).

17 . Id. at 591.

18 . Id. at 589-90.

19 . Id. at 590.

20 . Id. at 591-92.

21 . Id. at 592.

22 . Peters v. State, 286 Ark. 421, 692 S.W.2d 243, 245 (1985) (requiring a bifurcated trial); Barker v. State, 52 Ark.App. 248, 916 S.W.2d 775, 776 (1996); State v. Rodriguez, 575 So.2d 1262, 1266 (Fla.1991), modified in part by State v. Harbaugh, 754 So.2d 691 (Fla.2000) (requiring a bifurcated trial); State v. Wiggins, 96 Idaho 766, 536 P.2d 1116, 1118 (1975) (approving use of a bifurcated trial); State v. Berkelman, 355 N.W.2d 394, 396-97 (Minn.1984) (requiring trial court to accept defendant's offer to stipulate to prior DWI offenses if the court finds unfair prejudice under Rule 403); State v. Saul, 434 N.W.2d 572, 574-75 (N.D.1989) (if defendant offers to stipulate to prior convictions, defendant is only tried on underlying DWI and prior convictions are not disclosed to jury); State v. Winters, 34 Or.App. 157, 578 P.2d 439, 441 (1978) (statute requires court to accept defendant's timely offer to stipulate regardless of state’s consent and prohibits disclosure of prior convictions to jury); State v. White, 338 S.C. 56, 525 S.E.2d 261, 262-63 (App.1999); State v. Anderson, 318 S.C. 395, 458 S.E.2d 56, 59 n. 2 (App.1995) (statute prevents trial court from disclosing stipulation of prior conviction to jury); State v. Florez, 777 P.2d 452, 459 (Utah 1989) (in first-degree murder trial with prior conviction as element of the offense, bifurcated trial required); State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310, 322-23 (1999) (trial court required to accept defendant's offer to stipulate regardless of state's consent, and prior convictions cannot be disclosed to jury; trial court should bifurcate trial if defendant's challenge of prior convictions is meritorious); State v. Alexander, 214 Wis.2d 628, 571 N.W.2d 662, 664 & 672 (1997) (if defendant stipulates to prior convictions, trial court cannot disclose them to jury). But see State v. Geschwind, 136 Ariz. 360, 666 P.2d 460, 462 (1983); State v. Superior Court, 176 Ariz. 614, 863 P.2d 906 (App.1993); State ex rel. Romley v. Superior Court, 195 Ariz. 9, 985 P.2d 494, 496-97 (1999) (requiring a unitary trial on all elements, including element of prior DWI convictions); Weaverv. State, 713 So.2d 860, 865 (Miss.1997); Nicholson v. State, 761 So.2d 924, 928-29 (Miss.App.2000) (same); State v. Lugar, 734 So.2d 14, 15 (La.App.1999) (same); Tamez v. State, 11 S.W.3d 198, 202 (Tex.Crim.App.2000) (if defendant stipulates to prior convictions state may read existence of prior convictions as part of indictment at beginning of trial but may not present evidence of prior convictions during trial).

23 . State v. Harbaugh, 754 So.2d 691, 693 (Fla.2000) (original citation and quotation marks omitted); see also State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310, 322 n. 20 & 324 (1999) (quoting our decision in Ross with approval).

24 . 585 P.2d 553 (Alaska 1978).

25 . Id. at 557-58.

26 . 760 P.2d 1039 (Alaska App.1988).

27 . Id. at 1044-45.