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Tigner v. State10/13/1999
MEMORANDUM OPINION AND JUDGMENT
No. 4135
Appeal from the Superior Court, First Judicial District, Petersburg, Michael A. Thompson, Judge.
William P. Tigner was charged with felony driving while intoxicated - i.e., driving while intoxicated and having two convictions for either driving while intoxicated or breath-test refusal within the preceding five years. At trial, Tigner conceded that he was guilty of driving while intoxicated, but he asserted that he reasonably believed he had only one prior conviction.
Tigner conceded that, as an historical matter, he had been convicted of DWI twice before in Ohio. But he asserted that the Ohio prosecutor who handled the second case offered him a special plea bargain: Tigner would be sentenced as a first offender, and his second conviction would not count toward his future criminal record.
The Alaska prosecutor in the present case agreed that it was the State's burden to prove that Tigner acted recklessly with regard to the circumstance that he had two prior convictions for DWI. Accordingly, Tigner took the stand and presented his explanation to the jury. Tigner's jury was instructed that, if the State failed to prove that Tigner acted recklessly with regard to the fact that he had two prior convictions, Tigner should be acquitted of felony DWI (although he could be convicted of misdemeanor DWI, an offense that Tigner conceded). Despite Tigner's explanation, the jury found that Tigner had acted recklessly with regard to the two prior convictions, and they therefore convicted Tigner of felony DWI.
The present appeal arises because, during final argument, the prosecutor commented on Tigner's silence following his arrest. During the arrest process, a police officer checked Tigner's record and discovered that it showed two prior convictions. When the officer told Tigner that this would be his third DWI, Tigner did not respond. During final argument, the prosecutor told the jury that Tigner's failure to contradict the officer showed that Tigner was aware that he had two prior convictions.
Tigner asserts that the prosecutor's argument was an improper comment on Tigner's constitutional right to remain silent following an arrest. Our review of the record convinces us that Tigner is correct and that the prosecutor's argument was improper. However, the error is harmless beyond a reasonable doubt.
As explained above, Tigner conceded that he was driving while intoxicated, and he also acknowledged that he had twice before been prosecuted and found guilty of DWI. The only issue litigated at Tigner's trial was whether Tigner reasonably believed that his two prior convictions would be deemed a single conviction in any future court case. But we recently held in Hoople v. State that the crime of felony DWI does not require proof of any culpable mental state with regard to the defendant's prior convictions. That is, Tigner's "defense" to the charge was not a proper defense. Tigner would still be guilty of felony DWI even if the jury had accepted his assertion that he reasonably believed his two prior convictions were going to be treated as one. The fact that this issue was litigated at all was an error in Tigner's favor.
Because of this, and because the impropriety in the prosecutor's final argument was relevant solely to the non-issue of Tigner's recklessness, the improper argument was harmless beyond a reasonable doubt.
The judgment of the superior court is AFFIRMED.
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