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Jordan v. State5/9/2001
MEMORANDUM OPINION AND JUDGMENT
No. 4388
A jury convicted Melanie J. Jordan of felony driving while intoxicated and fourth-degree theft, but hung on the charge of felony refusal to submit to a chemical test. Jordan argues there were two instances of plain error at her trial: the admission of evidence that she declined to answer questions on the advice of counsel and a flawed jury instruction on theft. Because Jordan has not convinced us that either claim rises to the level of plain error, we reject both claims.
Jordan also argues that the court erroneously sustained the prosecutor's objections to testimony that suggested she had tried to pay for the food she was charged with stealing. However, the record shows that the witness answered Jordan's questions before the court ruled on the objections. Furthermore, Jordan argued the point to the jury without objection. Even if the court's rulings on the objection were wrong, the ruling did not prejudice Jordan.
Finally, Jordan argues that a comment by the prosecutor during closing argument that Jordan had failed to call a witness that Jordan had hinted might provide exculpatory testimony was reversible error because it shifted the burden of proof. However, even if the comment was error, the arguments of the attorneys and the court's instructions cured that error.
Facts and proceedings
On the evening of September 23, 1998, Jordan and eight-year- old Valerie Pickus, whom Jordan was baby-sitting, were inside the Carrs store on the corner of Dimond Boulevard and Jewel Lake. Jordan's car was parked in the roadway on the end of a row of parked cars with the keys inside. Jordan and Pickus ordered food from the snack bar, sat down at one of the tables, and ate. When they finished eating, Jordan told Pickus to throw away the empty food packaging. Jordan had not yet paid for the food. The store manager, Wendy McDaniel, asked Jordan several times to pay but Jordan declined. McDaniel then instructed a clerk to call the police.
Anchorage Police Officer Renee Miller arrived at the store, contacted Jordan, and spoke to the store manager, who filled out a private person's arrest form. Initially, Jordan denied driving to the store that evening, but later admitted driving when Officer Miller identified Jordan as the owner of the vehicle parked out front.
Officer Miller and Anchorage Police Officer Mitch Kehr conducted field sobriety tests on Jordan: the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand. Jordan performed poorly on the tests and Officer Miller concluded that Jordan was intoxicated. In addition, Jordan displayed extreme mood swings and directed obscenities at the officers. Officer Miller also observed that Jordan's eyes were bloodshot, that her speech was slurred, and that Jordan had a difficult time standing.
The police arrested Jordan for driving while intoxicated. The police officers gave Jordan ten chances to provide a sample for breath testing on the Intoximeter but the machine did not register a valid sample. The officers offered instructions to Jordan at least six times and gave her opportunities to ask questions. The officers eventually concluded that Jordan's inability to test was a refusal and that she was deliberately failing to provide a proper sample. The officers then read an implied consent warning to Jordan explaining that if she refused to consent to a breath test, she could be charged with a crime. The implied consent form indicated that Jordan had refused to take a breath test. Jordan called an attorney and the attorney advised the police not to question Jordan.
Jordan requested an independe
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