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Town of Columbus v. Harrington12/11/2001
APPEAL FROM: District Court of the Twenty-Second Judicial District, In and for the County of Stillwater, Honorable Maurice R. Colberg, Jr., Judge Presiding
Submitted on Briefs: March 22, 2001
Loren Robert Harrington (Harrington) appeals from a jury verdict, judgment and sentence of the Twenty-Second Judicial District, Stillwater County, convicting him of Driving Under the Influence of Alcohol (DUI), a misdemeanor. We affirm.
We re-state the issues on appeal as:
. Whether Harrington's rights to due process and privilege against self-incrimination were violated and whether these issues are reviewable under the common law plain error doctrine.
. Whether the District Court erred by allowing Officer Newell to read statements from non-admitted documents into evidence and by admitting the results of the preliminary alcohol screening test (PAST).
. Whether the jury instructions, reviewed as a whole, fully and fairly presented the law to the jury.
FACTS AND PROCEDURAL BACKGROUND
On the evening of February 21, 1998, Town of Columbus police officer Scott Newell observed a pickup being driven by Harrington. After the pickup crossed over the center line, Newell began following it. He observed the pickup drift to the right, then back over the center line, make a wide left turn and then cross over the center line again. The pickup then came to a complete stop in a 45 m.p.h. speed zone. At that point, Newell turned on his overhead lights, and the pickup stopped at the end of a McDonald's parking lot. Harrington was in the pickup with his two children, ages three and six. Newell asked Harrington for his driver's license, vehicle registration and proof of insurance. Next he asked Harrington to get out of the pickup and perform some field sobriety tests. Harrington's eyes appeared to be bloodshot, his speech was slurred and he leaned on the door of the pickup and swayed on his first couple of steps. Newell could smell alcohol on his breath. After Harrington performed the sobriety tests, Newell read him Miranda warnings and Harrington chose to remain silent. Harrington was arrested for DUI.
A jury trial was held in December 1998, and the jury convicted Harrington of DUI. The District Court entered judgment and sentenced Harrington to a term of imprisonment of 60 days with all but 24 hours suspended. Harrington's driving privileges were suspended for six months, and he was required to pay a $350 fine and enroll in and successfully complete an alcohol treatment program.
This appeal followed.
DISCUSSION
Issue 1
Were Harrington's rights to due process and privilege against self-incrimination violated and are these issues reviewable under the common law plain error doctrine?
Harrington argues that his due process right and his privilege against self-incrimination were violated by testimony elicited and statements made by the prosecutor during the trial. Specifically, he objects to: 1) the prosecutor's statement to the jury during voir dire that "Harrington does not have to present any evidence in this case, doesn't have to take the stand. . . . He can take the stand if he wants to. He can present witnesses on his behalf, but he doesn't want to. I'm sorry, doesn't have to;" 2) testimony on direct examination of Newell that he advised Harrington of his Miranda rights and that Harrington invoked those rights; 3) testimony on cross-examination of Newell in which he stated it was "after he had invoked his rights, so it would have been improper for me to ask him a question;" 4) the prosecutor's comment in closing that there was no contradict
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