 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Coleman v. State6/23/2004
he admissibility of this evidence. Coleman argues that the threat inherent in Judge Funk's warning was error because it impinged on his right to cross-examine Jewkes. Coleman claims that in light of Judge Funk's warning, he wisely discontinued his "lines of questioning." In our view, however, Coleman's abandonment of his "lines of questioning" bars him from raising this issue on appeal. [FN5]
FN5. See Wickham v. State, 796 P.2d 1354, 1358-59 (Alaska 1990); Sam v. State, 842 P.2d 596, 598-99 (Alaska App.1992).
The essence of Coleman's argument is that he was prejudiced by the possibility that Judge Funk might have allowed the State to introduce evidence of the preliminary breath test if he had pursued certain lines of questioning. But because Coleman decided not to ask these questions, we have no way of knowing: (1) what evidence his possible cross-examination would have elicited; (2) whether Judge Funk would have allowed the State to introduce evidence of the preliminary breath test and, if so, the extent of the evidence that would have been admitted; and (3) whether there would have been an appropriate limiting instruction. Moreover, without this evidence, "meaningful appellate review is impeded ... by the uncertainty attendant to determining whether any error might ultimately have proven harmless." [FN6]
FN6. Sam, 842 P.2d at 599 (citing Wickham, 796 P.2d at 1358- 59).
In Sam v. State, [FN7] we addressed an analogous situation. There, the defendant had abandoned his diminished capacity defense after an adverse ruling. When he appealed the ruling, we held that his abandonment of his defense precluded appellate review of the trial court's decision. [FN8] Sam and the case it relied upon, Wickham v. State, [FN9] addresses "the inherent uncertainty and artificiality of applying a harmless error analysis in a purely hypothetical or abstract context." [FN10] As we explained in Sam, "any attempt to divine the likely effect of the alleged error in these circumstances would amount to pure speculation." [FN11]
FN7. 842 P.2d 596.
FN8. Id. at 599.
FN9. 796 P.2d 1354.
FN10. Sam, 842 P.2d at 599.
FN11. Id.
*5 Coleman's situation is similar. By abandoning his "lines of questioning" based only on a potential ruling, he has precluded appellate review of this claim of error.
Conclusion
This judgment of the district court is AFFIRMED.
Page 1 2 3 4 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|