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Nicholas v. State2/12/2003
In Nicholas v. State, Alaska App. Memorandum Opinion No. 4564 (April 24, 2002), we reversed Nicholas's conviction for breath-test refusal but affirmed his convictions for vehicle theft and driving while intoxicated. The Alaska Supreme Court has now directed us to re-examine our decision concerning these latter two charges. In particular, the supreme court asks us to re-assess whether Nicholas's defense to the charges of vehicle theft and DWI was prejudiced by a mid-trial discovery violation. We have re-examined the record and reconsidered Nicholas's claims of prejudice. For the reasons explained here, we again affirm Nicholas's convictions for vehicle theft and driving while intoxicated.
Underlying facts
On the evening of June 18, 1998, Eric L. Nicholas stole a car that had been left running outside a Mapco store in Kenai. Shortly after the owner reported the theft, a police officer spotted the car and pulled Nicholas over. The officer concluded that Nicholas was intoxicated, so he transported him to the Wildwood Pre-Trial Facility for a breath test. Nicholas declined to take the test. Based on these events, Nicholas was charged with first-degree vehicle theft, driving while intoxicated, and refusing a breath test.
During pre-trial disclosure under Alaska Criminal Rule 16(b)(1), the State provided Nicholas's attorney with a copy of the tape recording of Nicholas's DWI processing. Unbeknownst to the defense attorney, his copy of the tape (through inadvertence) did not include the entire recording. In the defense attorney's opening statement, he relied on his truncated copy of the tape when he asserted that the police had failed to record Nicholas's refusal to submit to the breath test. Later in the trial, the State introduced a complete version of the tape - a version which disclosed that Nicholas's refusal to take the breath test had, in fact, been taped.
When Nicholas's attorney discovered that his copy of the tape was incomplete, he asked for a mistrial. The defense attorney relied on Bostic v. State, 805 P.2d 344 (Alaska 1991), a case in which the Alaska Supreme Court held that a defendant is presumptively prejudiced when a Rule 16(b) violation is discovered mid-trial. Nicholas's attorney argued that the State had violated its duty to make full disclosure of the DWI processing tape under Rule 16(b), and that a mistrial was the proper remedy for this problem.
The superior court declined to order a mistrial. Instead, the superior court gave a curative instruction. In this instruction, the judge informed the jury that, because of judicial rulings, the evidence actually admitted at a criminal trial may vary from what the attorneys expected when they delivered their opening statements. For this reason, the judge explained, "you should not hold a party responsible for the representations of that party's attorney in the opening statement as to the existence or nonexistence of any evidence".
The jury ultimately convicted Nicholas of all three charges: vehicle theft, driving while intoxicated, and breath-test refusal. Nicholas appealed these convictions, arguing that the superior court should have granted his motion for a mistrial. In Nicholas v. State, Alaska App. Memorandum Opinion No. 4564 (April 24, 2002), we decided that, because of the discovery violation, Nicholas was entitled to a new trial of the breath-test refusal charge, but we affirmed Nicholas's convictions for vehicle theft and driving while intoxicated.
Nicholas then petitioned the Alaska Supreme Court to review our decision. The supreme court granted hearing and has now directed us to re-evaluate Nicholas's two remaining convictions under the Bostic te
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