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Brewer v. State1/26/2005
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
No. 4966
A jury found Edward J. Brewer guilty of misdemeanor driving while under the influence. Brewer appeals, contending that the district court erred when it refused to allow him to play a portion of the police contact audiotape. For the reasons set forth below, we find that the district court did not abuse its discretion when it excluded this evidence. Accordingly, we affirm Brewer's conviction.
Facts and Proceedings
On July 6, 2003, Alaska State Trooper Joseph Hazelaar stopped Brewer for speeding. Upon contact, Trooper Hazelaar noticed that Brewer had a strong odor of alcohol; bloodshot, watery eyes; and slurred speech. Brewer admitted that he had been drinking. He also failed the majority of the field sobriety tests that Hazelaar administered. After administering the tests, Hazelaar arrested Brewer for driving while under the influence. He was transported to the Fairbanks trooper post for a DataMaster breath test. The DataMaster test showed that Brewer's blood alcohol level was .105 percent.
After arresting Brewer, but before transporting him, Hazelaar spoke with Brewer's wife, Sherida Brewer, who was a passenger, to determine whether she could drive Brewer's vehicle. She tried to dissuade Hazelaar from arresting Brewer, explaining that an arrest would have dire consequences for Brewer, his career as a truck driver, and the financial well-being of his family. This discussion was tape recorded.
At trial, during cross-examination, Hazelaar testified about the discussion with Sherida Brewer. This testimony arose after Brewer asked if obstreperous behavior could be a sign of intoxication. Hazelaar agreed that it could. When Brewer asked if he had been polite during the contact, Hazelaar responded that he had not been entirely polite. When asked for an example of Brewer's impolite behavior, Hazelaar said that when he transported Brewer, he had continued a line of comments that had started with Sherida Brewer. Hazelaar said that Brewer "took up what she was saying and sort of continued on with that as far as the comments made to me."
When asked about Sherida Brewer's behavior, Hazelaar said that when he spoke with her, she was "yelling and screaming" at him because he was arresting Brewer. Hazelaar then explained that to him, a person is yelling and screaming if that person raises his or her voice while telling him to do something. Hazelaar did not testify that Brewer had yelled or screamed at him.
After trial ended for the day, Brewer asked District Court Judge Jane F. Kauvar for permission to play the police contact tape the next day to show that Hazelaar had not accurately described Sherida Brewer's behavior. Judge Kauvar initially granted this request. The next day, however, the State objected to admission of this portion of the audiotape because it included Sherida Brewer's statements about the detrimental consequences Brewer and his family would suffer if Brewer was convicted of drunk driving . Brewer argued that this portion of the audiotape was relevant to impeach the trooper's testimony that Sherida Brewer was yelling and screaming and to impeach the trooper's claim that Brewer had continued in this same vein when he was transported.
Judge Kauvar had Brewer play part of the audiotape outside the presence of th
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