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Pence v. State3/27/2002
MEMORANDUM OPINION AND JUDGMENT
No. 4549
Following a jury trial, Harold Pence was convicted of driving while intoxicated (DWI). Pence appeals, contending that District Court Judge Mark I. Wood should have granted his motion for a mistrial based on a state trooper's testimony that he had exercised his right to remain silent. Because we conclude that Judge Wood did not abuse his discretion, we affirm.
Facts and Proceedings
In the early morning hours of September 13, 2000, Alaska State Trooper Walter D. Blajeski responded to a report of a traffic hazard on the Old Richardson Highway, approximately one-half mile from Badger Road. When he arrived in that area, he found a pickup truck stuck in the ditch. As Blajeski drove up, he saw Pence in the driver's seat and watched him get out of the truck on the driver's side. After Blajeski stopped, another person - Pence's brother, James Hollen - walked over from the truck's passenger side and intercepted Blajeski before he could contact Pence. Blajeski testified that Hollen was "concerned" and "didn't want his brother to get in trouble." Hollen testified that initially he told Trooper Blajeski that Pence had been driving. But later, after learning that Blajeski was taking Pence to jail, Hollen admitted to Blajeski that he had been driving and that he did not have a valid driver's license.
After speaking with Hollen, Blajeski met with Pence near the stuck truck. Blajeski saw that Pence was trying to light a cigarette, but was so impaired that he dropped it and had trouble bending over to pick it up. Blajeski saw that Pence was stumbling as he leaned over, swaying back and forth, and having a difficult time keeping his balance. When Blajeski asked Pence some questions, Pence's speech was slow, and he slurred so badly that Blajeski found him hard to understand. During this contact, Pence said that he owned the stuck truck, but that he had not yet changed the registration. Additionally, although contested by Pence's witnesses, Blajeski testified that he found vehicle keys on the driver's seat of the truck. Pence's brother testified that he had the keys, and Pence's wife testified that it was possible the keys the trooper found did not belong to the truck.
Blajeski administered three field sobriety tests, and Pence failed them all. Additionally, Pence had watery, bloodshot eyes. When asked if he had been drinking, Pence said that he had consumed seventeen beers. Blajeski arrested Pence for DWI and for driving while his license was revoked or suspended; he then transported Pence to the trooper station for DWI processing. During processing and immediately after Blajeski advised Pence of his right to get an independent chemical test, Pence told Blajeski: "I wasn't driving. Yes, I tried to get the vehicle out of the ditch, but that was it." During its case-in-chief, the state played a portion of the DWI processing tape, allowing the jury to hear Pence make this statement.
During Blajeski's testimony, Pence objected on hearsay grounds when Blajeski testified that Hollen was "concerned" and did not want his brother to get in trouble. This objection was sustained and the jury was instructed to disregard the testimony. Later, Pence again objected when Blajeski testified that he was not told a third party had been in the truck. Following this objection, Pence moved for his first mistrial; he argued that Blajeski had made an improper comment on his right to remain silent. Judge Wood rejected this argument and denied the request for a mistrial.
Later, when Blajeski was asked if Pence had given any medical reasons why he had performed so poorly on the field sobriety tests, Blajeski answ
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