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Lervick v. State10/31/2001
No. 4483
MEMORANDUM OPINION AND JUDGMENT
Following a jury trial before District Court Judge pro tem Teresa R. Chenhall, Clifford G. Lervick was convicted of one count of driving while intoxicated (DWI) and refusal to submit to a chemical test (Refusal). Lervick appeals, claiming that the prosecutor made improper remarks during closing arguments about Lervick's right to remain silent and his right not to testify. He also claims that the prosecutor improperly offered opinions and testimony during closing argument. Lastly, Lervick points out that Acting Judge Chenhall's appointment as acting judge was no longer valid when she sentenced him. For the reasons below we affirm Lervick's convictions.
Facts and Proceedings
Lervick was charged with DWI and Refusal. A jury trial was held on September 23, 1999, with Acting Judge Chenhall presiding. The jury returned guilty verdicts on both charges. After the jury returned its verdicts, but before the sentencing hearing on October 7, 1999, Acting Judge Chenhall's term as an acting judge ended, and she returned to her former status as a magistrate. She nevertheless presided -without objection - over Lervick's sentencing. Lervick now appeals.
The Prosecutor's Closing Argument.
Lervick contends that the prosecutor made improper comments during closing argument on his exercise of his right to remain silent and his right not to testify. He also claims that the prosecutor offered improper opinions and in essence testified during closing. Lervick concedes that he never objected to the prosecutor's remarks that he now claims were error. Because he never objected, Lervick must show plain error - that is, an error that "is both obvious and substantially prejudicial." As explained by the Alaska Supreme Court, " lain error involves such egregious conduct as to `undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.'"
We have carefully reviewed both parties' closing arguments, their opening statements, and the evidence presented during trial. Based on our review, we find that the prosecutor's conduct did not undermine the fundamental fairness of the trial, nor did it contribute to a miscarriage of justice. We conclude that the prosecutor's comments, if error at all, do not amount to plain error.
The Jurisdiction of the Acting Judge to Sentence Lervick.
For the first time on appeal, Lervick challenges the authority of Magistrate Chenhall to sentence him.
This issue arose because of a 1999 vacancy in the Ketchikan district court. Pursuant to AS 22.15.170, the presiding judge of the First Judicial District appointed Magistrate Chenhall as acting district court judge until that district court position was filled. As acting district court judge, Magistrate Chenhall presided over Lervick's trial in September 1999.
Under AS 22.15.170(b), an acting district court judge's term of office lasts twelve months or until the vacant district court position is filled, whichever occurs first. The new permanent Ketchikan district court judge, Kevin Miller, was sworn in on October 1, 1999. Thus, Magistrate Chenhall's term of office as an acting district court judge ended on October 1 (although she continued to be a magistrate).
Lervick's sentencing was held six days later, on October 7. Without objection from Lervick, Magistrate Chenhall presided over that sentencing hearing and imposed sentence on Lervick. On appeal, Lervick contends that the whole sentencing process was void because Magistrate Chenhall's term of office as an acting district court judge expired before the sentencing hearing.
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