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Green v. State11/22/2000
MEMORANDUM OPINION AND JUDGMENT
[No. 4310 - November 22, 2000]
Appeal from the Superior Court, First Judicial District, Juneau, Jay A. Rabinowitz, Judge.
Kenneth L. Green was tried in the Juneau superior court on charges of felony driving while intoxicated, felony refusal to submit to a breath test, driving with a revoked license, and sixth-degree controlled substance misconduct (possession of marijuana) . He raises one contention on appeal: that the trial judge mistakenly allowed the State to present hearsay evidence - an out-of-court statement which tended to disprove an alibi that Green offered to the police shortly before he was arrested. We conclude that, even if it was error to admit this hearsay statement, the error was harmless.
In the early morning hours of September 23, 1998, Sergeant John Boltjes of the Juneau Police Department saw a small blue pickup truck race past him. Boltjes believed that the truck was speeding, so he began to chase it down the highway.
Boltjes accelerated to approximately eighty miles per hour, but he was unable to close with the truck. He momentarily lost sight of the truck when it left the highway and turned onto a side street. When Boltjes followed the truck around the corner, he could not immediately find his quarry - until two pedestrians indicated that the truck had gone up Davis Avenue. Boltjes turned onto Davis Avenue, saw the truck's taillights, and followed the truck into a trailer park.
Boltjes turned on his overhead lights and pulled in behind the truck, blocking it inside its parking space. Boltjes saw the driver's- side door open, and a head - later identified as Green's head - "pop up". The truck had no other occupants.
When Boltjes asked Green why he had been driving so fast, Green replied that he had not been driving. Boltjes was incredulous. Green pointed to a neighboring trailer and said that he had been visiting a friend who lived there.
The trailer was dark and the gate was locked. Boltjes knocked on the gate and shined his flashlight at the trailer. At length, the trailer's occupant came to the door. When Boltjes asked if Green had been visiting there, the trailer owner (later identified as Leroy Armstrong) replied that he did not know Green. Armstrong sounded as if he had been sleeping.
After further investigation, Boltjes concluded that Green had been driving while intoxicated, and he arrested him.
Green's case was tried before Senior Justice Jay A. Rabinowitz, sitting pro tempore in the superior court. At trial, Sergeant Boltjes testified to the events described above. When Boltjes began to relate his conversation with Armstrong, Green's attorney objected on hearsay grounds. Justice Rabinowitz overruled the objection. Although he agreed that Boltjes's anticipated testimony would be hearsay, Justice Rabinowitz declared that the hearsay was admissible because it was merely background information.
On appeal, Green renews his argument that Boltjes should not have been allowed to testify about Armstrong's out-of-court statement. He contends that Boltjes's testimony was not merely background information but was offered primarily for the truth of the matter asserted - the truth of Armstrong's assertion that he did not know Green, an assertion that contradicted Green's story that he had just come from visiting Armstrong when the officer stopped him.
But even assuming that this testimony should have been excluded, we conclude that any error was harmless. Despite the fact that Boltjes lost sight of the truck twice, for a total of approximately seven seconds, the evidence was essentially uncontradicte
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