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Feldman v. State1/19/2005
id: "We'll move on to the next thing, okay?" Given these circumstances, Feldman cannot colorably claim that he did not have enough warning that Trooper Dunford had concluded that he had refused to decide.
In the context of breath-test refusal, this court has held that a defendant's conduct may amount to refusal even if the defendant never explicitly states that he is refusing to take a breath test. Considering the encounter between Trooper Dunford and Feldman as a whole, Judge Kauvar's findings that Feldman by his conduct had refused to decide whether to take an independent test, and that Trooper Dunford gave him ample time to knowingly and intelligently waive his right to obtain that test are not clearly erroneous.
Did Feldman preserve his attack on the jury instructions?
Feldman asserts that three of the jury instructions given in this case created an inference in the mind of the jurors that he was guilty because he was not given the opportunity to decide to obtain an independent chemical test. Under Alaska Criminal Rule 30(a), an attorney who objects to a jury instruction must "stat distinctly the matter to which the party objects and the grounds of the objections" so that the trial judge is alerted to the problem and has an opportunity to correct it. Feldman has not indicated where, or if, he objected to these instructions below.
Because Feldman has not shown that he preserved the claim he advances here, he must show plain error. But Feldman's briefing on this issue does not cite any authority or explain how these instructions created a high likelihood that the jury followed an erroneous theory resulting in a miscarriage of justice. Because this claim is not briefed adequately, we decline to address it.
Conclusion
We AFFIRM the judgment of the superior court.
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