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Firey v. State7/14/2002
No. 4589
MEMORANDUM OPINION AND JUDGMENT
MANNHEIMER, Judge, concurring.
A jury convicted Charles R. Firey of assault in the first degree and driving while intoxicated (DWI). Superior Court Judge Larry D. Card sentenced Firey to the presumptive five-year term of imprisonment for the assault conviction and a consecutive 180 days with 170 suspended for the DWI conviction. Firey appeals, arguing an array of issues: (1) Judge Card abused his discretion in refusing to grant Fiery a new trial based on juror misconduct; (2) the judge erred in instructing the jury on the issue of causation; (3) he abused his discretion in failing to dismiss the indictment against Firey when the prosecutor failed to present exculpatory evidence to the grand jury; (4) he violated the double jeopardy provision of the Alaska Constitution by sentencing Firey for both first-degree assault and DWI; (5) the three-judge panel erred in refusing to accept Judge Card's referral to consider a more favorable sentence than the presumptive five-year sentence for assault in the first degree based upon Firey's favorable prospects for rehabilitation; and (6) Judge Card committed reversible error by rejecting Firey's proposed mitigators during sentencing. We affirm both Firey's convictions and sentence.
Factual background
In the early morning of September 8, 1996, Dr. Charles Aarons was driving southbound on the New Seward Highway when his truck - a restored 1962 Dodge M-37, a former military truck - lost power and stalled. The truck stopped approximately half-way between Dimond Boulevard. and O'Malley Boulevard. Shortly thereafter, Anchorage Police Officer Mitchell Paige stopped to assist Dr. Aarons and gave him a ride home. At approximately 4:30 a.m., Dr. Aarons and his wife, Martha Aarons, drove back to the scene in their Ford F-350 pickup truck to tow the M-37 home. Dr. Aarons connected a twenty-foot wire tow cable to both vehicles. Dr. Aarons attached the tow cable to the right rear of the Ford pickup and to the left front of the M-37 so the M-37 would be offset to the right of the Ford while it was being towed. Martha Aarons drove the Ford pickup while Dr. Aarons steered the M-37. Before pulling onto the road, Martha Aarons looked in her rearview mirror to check for traffic and Dr. Aarons stuck his head out the window to look behind him. The road was clear; neither saw any approaching traffic.
Moments after Martha Aarons pulled into the right lane, she heard a loud crash; she looked behind her and saw that a large pick-up had rear-ended the M-37. Both the Aarons had completely entered the roadway and were traveling approximately twenty miles per hour when Dr. Aarons felt the collision. The force of the impact caused the M-37 to flip over onto its roof. As a result of the accident, Dr. Aarons severely injured his right hand and wrist and lost considerable range of movement in his hand.
Charles Firey was driving the vehicle that hit the M-37. Firey admitted to drinking four or five beers over a several-hour period before the accident, but he claimed that he was not impaired. Firey stated that he was traveling southbound on the New Seward Highway when he turned his attention to his car stereo. When he returned his attention to the road, he saw something coming from the right shoulder of the road; he quickly jerked his wheel to the right to attempt to avoid the collision but struck the M-37. Firey believed he was traveling approximately fifty-five or sixty miles per hour immediately before the accident.
Anchorage Police Department Officers Gerald Wesley and Jill Martin responded to the accident scene. When Officer Martin made contact with him, Firey
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