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Firey v. State7/14/2002
was bleeding from a cut on his chin and a scrape on his forehead. Officer Martin smelled alcohol on Firey and suspected that he was under the influence. Officer Martin asked Firey to complete a series of field sobriety tests; Firey agreed and failed every test.
Firey testified that his head struck the windshield during the accident. Because he hit his head on the windshield, everything was very "fuzzy" after the accident. He vaguely remembered talking to Officer Martin and did not remember the field sobriety tests.
Following Officer Martin's investigation, the police arrested Firey for driving while intoxicated and took him to the police station where he provided a breath sample. Firey's blood alcohol concentration was 0.109% two hours after the accident. The state subsequently charged Firey by information and indictment with assault in the first degree and driving while intoxicated.
It was the state's theory that Firey recklessly caused serious physical injury to Dr. Aarons by driving home from Wasilla under the influence of alcohol and that Firey's impairment was a substantial cause of the collision. According to the state's experts, the New Seward Highway is straight and level at the site of the accident, the visibility the night of the accident was good, and but for Firey's intoxication, the accident would not have occurred.
Firey's defense focused on Dr. Aarons's conduct in towing the disabled vehicle. Firey argued that Dr. Aarons had failed to act as a reasonable and prudent driver and that if Dr. Aarons had used his vehicle's emergency flashers while being towed, the accident would not have occurred. Firey also argued that his alleged intoxication was not a contributing factor - i.e., the accident would have occurred regardless of his intoxication. The jury convicted Firey of both first-degree assault and DWI.
Judge Card did not err in denying Firey's motion for a new trial based on juror misconduct
Michael Pierce served as a juror at Firey's trial; indeed, the jurors ultimately chose Pierce as their foreperson. Firey contends that Pierce knowingly gave false answers during voir dire so that he could remain on the jury.
As part of the initial juror questioning, jurors were asked if they or a family member had been involved in litigation. When Pierce responded to this question, he stated that neither he nor any member of his family had been involved in litigation. Firey alleges that Pierce's response was knowingly false.
Firey relies on the fact that approximately one month after his trial ended Pierce appeared at the sentencing of Victorino Samson. Samson had been convicted of sexually abusing the minor daughter of Pierce's live-in girlfriend, and Pierce gave a victim-impact statement at Samson's sentencing - telling the judge that the sexual abuse had severely affected his family.
Based on the fact that Pierce appeared and gave a statement at Samson's sentencing, Firey filed a motion for a new trial. Firey particularly relied on the fact that Pierce stated at the sentencing hearing that he viewed his girlfriend and her daughter as part of his family. Based on this remark, Firey asserted that Pierce must have lied during jury selection when he stated that neither he nor any family member was involved in litigation.
But Judge Card found that Pierce had not engaged in intentional misconduct during jury voir dire. The judge concluded that Pierce's challenged answer was technically true because there was no legal relationship between Pierce and his girlfriend's daughter. Judge Card noted, moreover, that Pierce had readily volunteered other information during voir dire that he reas
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