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Seymour v. State6/4/2003
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
No.4710
MEMORANDUM OPINION AND JUDGMENT
Mervin E. Seymour was convicted of felony driving while intoxicated after a breath test administered ninety minutes after he drove revealed a breath alcohol level of .115. Seymour argues that his conviction should be reversed because the superior court instructed the jury in a way that precluded him from arguing, based on evidence that he drank beer after driving, that his breath alcohol level at the time he drove was below the legal limit. He also argues that his indictment should be dismissed because the State presented inadmissible hearsay to the grand jury. For the reasons below, we conclude that these claims are without merit, and affirm the decisions of the superior court.
Facts and proceedings
On July 9, 2002, at 7:15 p.m., Seymour was involved in a minor traffic accident at the intersection of Minnesota and Northern Lights in Anchorage. When Anchorage Police Officer Jeffrey Bell arrived at the scene, a witness told him that several individuals who had been in the blue truck (one of the vehicles involved in the accident) had left the scene, saying that they were going to call the police, but had not returned. Gary Lyon, a passenger in the blue truck, said the driver of the truck was a man named "Gene" who had been drinking Jack Daniel's at Lyon's residence earlier. Lyon said the bottle of Jack Daniel's was still in the truck. Officer Bell located the bottle and some beer cans in the truck. The police then made contact with "Gene" - Seymour - at Lyon's house. Seymour admitted that he had been driving and that he had left the scene of the accident. He also did poorly on field sobriety tests, and an Intoximeter test administered at 8:48 p.m. - about ninety minutes after the accident - showed a breath alcohol level of .115.
Because Seymour had two prior driving while intoxicated convictions within the previous five years, he was indicted for felony driving while intoxicated. He filed a motion to dismiss the indictment, arguing that Lyon's out-of-court statements that he had consumed Jack Daniel's before driving were inadmissible hearsay, and that the remaining evidence was insufficient to indict him. Superior Court Judge pro tem Gregory J. Motyka denied Seymour's motion, ruling that Lyon's statements were not hearsay because they were admitted to explain the nature of the police investigation. In the alternative, Judge Motyka found that there was sufficient other evidence of intoxication without the statements to indict Seymour.
A jury convicted Seymour of felony driving while intoxicated. He appeals.
Discussion
Was there sufficient admissible evidence to support the indictment?
Seymour claims that the superior court should have dismissed his indictment for driving while intoxicated because the only evidence presented to the grand jury that he had consumed alcohol before driving was inadmissible hearsay. He argues that the State had no compelling justification to present this hearsay evidence, and that the remaining evidence was insufficient to indict him.
Criminal Rule 6(r)(1) addresses what evidence a grand jury may hear:
Evidence which would be legally admissible at trial shall be admissible before the grand jury. In appropriate cases, however, witnesses may be presented to summarize admi
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