State v. Martin

Court of Appeals of Washington

State v. Martin

849 P.2d 1289, 69 Wash. App. 686, 1993 Wash. App. LEXIS 186

CourtCourt of Appeals of Washington

DecidedMay 4, 1993

DocketNo. 11893-2-III

StatusPublished

Cited by1 cases

This text of 849 P.2d 1289 (State v. Martin) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Martin, 849 P.2d 1289, 69 Wash. App. 686, 1993 Wash. App. LEXIS 186 (Wash. Ct. App. 1993).

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Opinions

Munson, J.

Fredrick Martin appeals his conviction for driving while intoxicated, RCW 46.61.502, contending (1) the evidence was insufficient to support one of the alternative means included in the jury instructions, and (2) the prosecutor made improper remarks during closing argument.

About 4 a.m. on June 9, 1991, William Nash discovered his gray Chevrolet pickup was missing. At 4:15 a.m., after receiving the radio dispatch call reporting the vehicle theft, Deputy Sheriff Sara Munroe saw a pickup of the same description. She called for backup, followed the pickup and saw it swerve between the fog and center lines. The vehicle was traveling at 35 m.p.h. in a 50 m.p.h. zone.

When the pickup turned into a cemetery, Deputy Munroe activated her emergency fights. The driver of the pickup, later identified as Mr. Martin, got out of the vehicle and began walking away. Mr. Martin did not stop when ordered to do so. The deputy chased him, wrestled him to the ground and handcuffed him. She observed that he appeared unkempt and disoriented, was uncooperative, and had glassy eyes and slurred speech. Shortly thereafter, Deputy Munroe turned Mr. Martin over to tribal police. She did not administer breath alcohol or field sobriety tests.

Mr. Martin was tried on charges of taking a motor vehicle without permission and driving while intoxicated. The jury acquitted Mr. Martin of taking a motor vehicle but found him guilty of driving while intoxicated.

[688]*688First, Mr. Martin contends the jury instruction¹ on the alternate means of committing the crime of driving while intoxicated deprived him of due process since it permitted the jury to predicate guilt on blood alcohol levels, despite the total absence of evidence on this alternative means.

The crime of driving while intoxicated may be committed by the alternative means of driving while under the influence of intoxicants, or having the statutorily specified percentage of alcohol in the blood or breath, as shown by a prescribed analysis. State v. Franco, 96 Wn.2d 816, 823, 639 P.2d 1320 (1982). If the jury is not required to be unanimous as to the means of the crime's commission, the evidence in support of each alternative means must be such that a rational trier of fact could have found each means of committing the crime was proved beyond a reasonable doubt. State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988); Franco, at 823. This requirement of sufficient evidence embodies constitutional considerations of due process. See State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980).

The deputy's testimony was sufficient to permit a rational trier of fact to find, beyond a reasonable doubt, that Mr. Martin was "under the influence of or affected by intoxicating liquor." The record, however, is devoid of evidence of Mr. Martin's blood or breath alcohol content as determined by any prescribed analysis. Instructing the jury on the blood or breath alcohol content as an alternative means of driving while intoxicated and expressly permitting the jury to base [689]*689its decision on either alternative, in the last three sentences of instruction 9, was error. Although plainly the result of oversight, the giving of this erroneous instruction is not trivial, State v. Maupin, 63 Wn. App. 887, 822 P.2d 355, review denied, 119 Wn.2d 1003 (1992); a challenge to the sufficiency of the evidence implicates constitutional due process requirements and may be raised for the first time on appeal, State v. Baeza, 100 Wn.2d 487, 488, 670 P.2d 646 (1983).

If the instructions given and the jury's verdict plainly show the jury must have been unanimous as to the alternative means which was supported by sufficient evidence, this court may conclude the erroneous instruction did not affect the outcome, and the error was harmless. State v. Bonds, 98 Wn.2d 1, 18, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831 (1983). Here, instruction 10 told the jury in order to convict Mr. Martin it must find the element "[t]hat at the time the defendant was under the influence of or affected by intoxicating liquor" proved beyond a reasonable doubt. This instruction immediately followed the challenged alternative means instruction 9. Instruction 10 is insufficient to plainly show the jury was unanimous on the "under the influence" alternative since it conflicts with the last three sentences of instruction 9 and could have confused the jury. The error was not harmless.

Second, Mr. Martin contends the prosecutor engaged in improper closing argument.

The prosecutor argued Mr. Martin's claim he had been given the pickup was not credible because none of the witnesses who could have corroborated his story had come forward, and the reason for this was they did not want to commit perjury. Because this argument related to the charge of taking a motor vehicle, and the jury rendered a not guilty verdict, any error was harmless. However, Mr. Martin is correct, the argument is not well taken; there is no evidence to support it nor any from which even an inference can be drawn.

[690]*690During rebuttal the prosecutor sought to explain the arresting deputy's failure to administer breath alcohol or field sobriety tests:

[T]he reason we don't have a BAC here is because the obvious effect of what he had to drink sometimes gives a close case. How many have heard of a condition drunk? How many have said I didn't know he was drunk until I saw him sober. That makes sense. Some of those people blow 300 BAC, that is very close to death. In fact they have to keep them in jail six hours so they are sober enough so they can go out and motivate on the street. But the legal limit is .100.

Contrary to Mr. Martin's characterization, this argument does not state or imply he is a "condition drunk". The thrust of the argument is that while some persons, termed condition drunks, may appear sober and testing is necessary to establish their inebriation, Mr. Martin was visibly intoxicated so testing was unnecessary. The argument has no basis in the record; no definition of condition drunk; there is no breath alcohol test evidence, nor explanation why not. The argument was improper.

Reversed.

Thompson, J., concurs.

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Munson, J.

Fredrick Martin appeals his conviction for driving while intoxicated, RCW 46.61.502, contending (1) the evidence was insufficient to support one of the alternative means included in the jury instructions, and (2) the prosecutor made improper remarks during closing argument.

About 4 a.m. on June 9, 1991, William Nash discovered his gray Chevrolet pickup was missing. At 4:15 a.m., after receiving the radio dispatch call reporting the vehicle theft, Deputy Sheriff Sara Munroe saw a pickup of the same description. She called for backup, followed the pickup and saw it swerve between the fog and center lines. The vehicle was traveling at 35 m.p.h. in a 50 m.p.h. zone.

When the pickup turned into a cemetery, Deputy Munroe activated her emergency fights. The driver of the pickup, later identified as Mr. Martin, got out of the vehicle and began walking away. Mr. Martin did not stop when ordered to do so. The deputy chased him, wrestled him to the ground and handcuffed him. She observed that he appeared unkempt and disoriented, was uncooperative, and had glassy eyes and slurred speech. Shortly thereafter, Deputy Munroe turned Mr. Martin over to tribal police. She did not administer breath alcohol or field sobriety tests.

Mr. Martin was tried on charges of taking a motor vehicle without permission and driving while intoxicated. The jury acquitted Mr. Martin of taking a motor vehicle but found him guilty of driving while intoxicated.

[688]*688First, Mr. Martin contends the jury instruction¹ on the alternate means of committing the crime of driving while intoxicated deprived him of due process since it permitted the jury to predicate guilt on blood alcohol levels, despite the total absence of evidence on this alternative means.

The crime of driving while intoxicated may be committed by the alternative means of driving while under the influence of intoxicants, or having the statutorily specified percentage of alcohol in the blood or breath, as shown by a prescribed analysis. State v. Franco, 96 Wn.2d 816, 823, 639 P.2d 1320 (1982). If the jury is not required to be unanimous as to the means of the crime's commission, the evidence in support of each alternative means must be such that a rational trier of fact could have found each means of committing the crime was proved beyond a reasonable doubt. State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988); Franco, at 823. This requirement of sufficient evidence embodies constitutional considerations of due process. See State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980).

The deputy's testimony was sufficient to permit a rational trier of fact to find, beyond a reasonable doubt, that Mr. Martin was "under the influence of or affected by intoxicating liquor." The record, however, is devoid of evidence of Mr. Martin's blood or breath alcohol content as determined by any prescribed analysis. Instructing the jury on the blood or breath alcohol content as an alternative means of driving while intoxicated and expressly permitting the jury to base [689]*689its decision on either alternative, in the last three sentences of instruction 9, was error. Although plainly the result of oversight, the giving of this erroneous instruction is not trivial, State v. Maupin, 63 Wn. App. 887, 822 P.2d 355, review denied, 119 Wn.2d 1003 (1992); a challenge to the sufficiency of the evidence implicates constitutional due process requirements and may be raised for the first time on appeal, State v. Baeza, 100 Wn.2d 487, 488, 670 P.2d 646 (1983).

If the instructions given and the jury's verdict plainly show the jury must have been unanimous as to the alternative means which was supported by sufficient evidence, this court may conclude the erroneous instruction did not affect the outcome, and the error was harmless. State v. Bonds, 98 Wn.2d 1, 18, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831 (1983). Here, instruction 10 told the jury in order to convict Mr. Martin it must find the element "[t]hat at the time the defendant was under the influence of or affected by intoxicating liquor" proved beyond a reasonable doubt. This instruction immediately followed the challenged alternative means instruction 9. Instruction 10 is insufficient to plainly show the jury was unanimous on the "under the influence" alternative since it conflicts with the last three sentences of instruction 9 and could have confused the jury. The error was not harmless.

Second, Mr. Martin contends the prosecutor engaged in improper closing argument.

The prosecutor argued Mr. Martin's claim he had been given the pickup was not credible because none of the witnesses who could have corroborated his story had come forward, and the reason for this was they did not want to commit perjury. Because this argument related to the charge of taking a motor vehicle, and the jury rendered a not guilty verdict, any error was harmless. However, Mr. Martin is correct, the argument is not well taken; there is no evidence to support it nor any from which even an inference can be drawn.

[690]*690During rebuttal the prosecutor sought to explain the arresting deputy's failure to administer breath alcohol or field sobriety tests:

[T]he reason we don't have a BAC here is because the obvious effect of what he had to drink sometimes gives a close case. How many have heard of a condition drunk? How many have said I didn't know he was drunk until I saw him sober. That makes sense. Some of those people blow 300 BAC, that is very close to death. In fact they have to keep them in jail six hours so they are sober enough so they can go out and motivate on the street. But the legal limit is .100.

Contrary to Mr. Martin's characterization, this argument does not state or imply he is a "condition drunk". The thrust of the argument is that while some persons, termed condition drunks, may appear sober and testing is necessary to establish their inebriation, Mr. Martin was visibly intoxicated so testing was unnecessary. The argument has no basis in the record; no definition of condition drunk; there is no breath alcohol test evidence, nor explanation why not. The argument was improper.

Reversed.

Thompson, J., concurs.

¹
Instruction 9 states:

"A person commits the crime of Driving While Under the Influence of Liquor when he or she drives a motor vehicle while he or she: (1) Has 0.10 grams or more of alcohol per two hundred ten liters of breath as shown by accurate analysis of his or her breath, or 0.10 percent more by weight of alcohol in his blood or her blood as shown by analysis of his or her blood; or (2) is under the influence of or affected by intoxicating liquor. The above are alternate means of committing the single crime charged. Your determination of the defendant's guilt or innocence may be based upon finding number (1) or finding number (2). These are alternative findings, and each of you may individually arrive at your own determination of the defendant's guilt or innocence based on either alternate method. Jury unanimity as to mode of commission is not required." (Italics ours.)

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849 P.2d 1289, 69 Wash. App. 686, 1993 Wash. App. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-martin-washctapp-1993.

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