ANTONIO PULE aka ANTONIO PULE Jr., Appellant,
v.
AMERICAN SAMOA GOVERNMENT, Appellee.
High Court of
Appellate Division
AP No. 09-96
April 11, 1997
[1] The findings of the trial court may not be set aside on appeal unless clearly erroneous.
[2] The jury’s finding that an injury had occurred was not clearly erroneous where there was testimony that the victim “experienced pain in his legs, side and back.”
[3] Despite assertion that breathalyzer results were erroneous, evidence that Appellant crashed into another vehicle as he was overtaking it, that he admitted to having drunken two beers and a shot of tequila, that he was observed with red eyes and alcohol breath, and that he failed the Horizontal Gaze Nystagmus Test and refused to perform the other two field sobriety tests was sufficient to support jury’s finding that he was driving under the influence.
[4] A trial court has wide latitude and discretion in supervising the time limits, the scope, and the extent of argument and summation. Rulings on such issues are subject to review for abuse of discretion.
[5] In case where closing argument limited to two minutes, strong evidence was presented of Appellant’s guilt, and rule limiting closing argument had dubious effect on jury’s verdict, it was not abuse of discretion to impose such a time limitation.
[6] Where counsel fails to timely object to the trial court's rulings on the time limits, scope, and extent of argument, there must be a showing of plain error to afford a basis of reversal.
[7] "Plain error" is defined as an error or defect which affects substantial rights.
[8] Where the
evidence against a defendant is so strong that the absence of the purported
error would not have changed the jury's verdict, plain error is seldom
found. [1ASR3d8]
[9] Where the evidence against a defendant is overwhelming and would not have affected the jury’s verdict, the Court’s time limitation on closing arguments will not constitute plain error.
[10] Appellant’s convictions for both Driving under the Influence (A.S.C.A. § 22.0707) and Careless Driving Causing Injury and Property Damage (A.S.C.A. § 22.0701) did not contravene A.S.C.A. § 46.3107(3) as neither violation was necessarily a violation of the other.
[11] The fact that the trial court judge, during in-chambers conference, remarked that if appellant were found guilty, he would be held in custody pending sentencing did not constitute a threat that the judge would penalize appellant for exercising his right to a jury trial.
[12] The fact that the trial judge alerted Appellant’s counsel as to the costs associated with a jury trial constituted no cognizable prejudice to Appellant as Appellant ultimately received a jury trial.
Before KRUSE, Chief Justice, GOODWIN,* Acting Associate Justice, WALLACE,** Acting Associate Justice, LOGOAI, Associate Judge, and ATIULAGI, Associate Judge.
Counsel:
For Appellants, David P. Vargas, Assistant Public Defender
For Appellee,
Fainu`ulelei F. Ala`ilima-Utu,
Assistant Attorney General
OPINION
KRUSE, Chief Justice.
Procedural History
On April 16, 1996, appellant, Antonio Pule, was cited
for Driving under the Influence (A.S.C.A. § 22.0707), Careless Driving
Causing Injury and Property Damage (A.S.C.A. § 22.0701), and Not
Possessing a Driver's License (A.S.C.A. § 20.0210). The nonpossession
charge was dismissed prior to trial.
Appellant entered pleas of not guilty and requested a jury trial, which
was had on June 5, 1996. The jury
unanimously found appellant guilty of both offenses. On June 7, 1996 appellant was sentenced
to a suspended imprisonment term of two years and [1ASR3d9] suspension of his license for eight months. Appellant now appeals both the decision
and the sentence.
Discussion
The appellant presents five issues on appeal: 1) whether the guilty verdicts
were clearly erroneous; 2) whether the trial court erred in only allowing each
party two minutes for closing argument; 3) whether the conviction of multiple
offenses violated A.S.C.A. § 46.3107(3) and (4); 4) whether appellant was
penalized for exercising his right to jury trial; and 5) whether the court
violated appellant's right to a fair trial.
A. Sufficiency of Guilty Verdicts
[1-2] First, appellant argues that there was no evidence of any injury,
thus precluding a conviction of Careless Driving Causing Injury. However, Mr. Lolohea
testified that his car door was pushed inward contacting his leg and as a
result of the accident he experienced pain in his legs, side and back. (Tr. 12:5-11). A.S.C.A. § 46.3111(19) defines
physical injury as "physical pain, illness, or any impairment of physical
condition."
The findings of the trial court may not be set aside by the appellate division
unless clearly erroneous. A.S.C.A. § 43.0801(b); Uigalelei v. Ulufale, 17
ASR 2d 158, 160 (App. Div. 1990).
The jury obviously found Mr. Lolohea's
testimony persuasive, and we do not believe this finding is clearly
erroneous. Mr. Lolohea's
testimony is more than sufficient for the jury to conclude that the appellant's
careless driving caused injury or physical pain to one or more individuals.
[3] Second, the appellant argues that the ASG did not prove beyond a
reasonable doubt that the appellant was driving under the influence. Appellant's argument is premised on his
assertion that the he had "spiked" chew in his mouth at the time of
the breathalyzer test which rendered the test ineffective.
Again we review the jury's verdict for clear error. The record below reveals that the
appellant, in attempting to overtake a vehicle that was turning off of the
highway, crashed into it. Two
police officers testified that they observed that appellant's eyes were red and
that his breath smelled of alcohol.
The appellant admitted to having drank two beers and a shot of
tequila. The appellant failed the
Horizontal Eye Nystagmus Test, and refused to perform
the other two field sobriety tests.
Further, the appellant's testimony, that he had tequila spiked tobacco
in his mouth at the time of the breathalyzer, was contradicted by the appellant's
wife's testimony. (Tr. 49:13-16,
66:21-67:5). Again we believe that
jury's finding was not clearly erroneous.
There was [1ASR3d10]
substantial evidence presented at trial for the jury to find that the appellant
was driving under the influence, quite apart from the results of the alco-sensor breath test.
B. Closing Argument
Appellant argues reversible error on the court's part in limiting closing
arguments to two minutes, claiming that it deprived him of opportunity to fully
and fairly present his defense.
See Woodham v.
[4-5] A trial court has wide latitude and discretion in supervising the
time limits, the scope, and the extent of argument and summation. See Trawick v.
Manhattan Life Ins. Co. of
[6-9] Moreover, as noted, counsel failed to object to the time
limit. Generally when counsel fails
to make a timely objection to some purported trial error, there must be a
showing of plain error to afford a basis of reversal. See
C. Violation of A.S.C.A. § 46.3107(3) and (4)
[10] Appellant argues that his conviction on both Driving Under the
Influence and Careless Driving was in violation of A.S.C.A. § 46.3107(3),
which states that a person cannot be convicted of more than one offense if:
(3) the offenses differ only in that one is defined to prohibit a designated
kind of conduct generally and the other to prohibit a specific instance of
conduct.
Appellant asserts that Careless Driving is the specific conduct which the Driving Under the Influence statute prohibits, but then also seems to assert that Driving Under the Influence is a merely a specific instance of Careless Driving.
We find that a violation of either statute is not necessarily a violation of
the other. One can be sober and
still drive carelessly, and one can be driving safely but be stopped at a
roadblock and be charged with Driving Under the Influence.
D. Penalization for Exercising Right to Jury Trial
[11] Appellant claims that he was penalized for exercising his right to
jury trial. He bases this claim on
a certain comment by the trial judge to counsel during a conference in chambers
and upon his belief that the sentences given for first offenders are usually
more lenient then the one imposed on him.
During the pretrial conference, the trial court judge told counsel that if
appellant were found guilty, he would be held in custody pending the court's
sentencing. We do not believe that
this constitutes a threat that the judge would penalize appellant for
exercising his right to a jury trial.
Further, the sentence handed down was well within the sentencing
guidelines afforded under the applicable statutes. See A.S.C.A. §§
46.1902, 22.0707, 22.0701, 46.2301, 46.2101, 46.2204, 22.0211 and 22.0212.
Since the judge did not threaten to impose a stricter penalty if the appellant
failed to accept the plea bargain, and since the sentence was within the
applicable guidelines, we are not persuaded that the trial court penalized the
appellant for exercising his right to a jury trial. [1ASR3d12]
E. Violation
of Right to Fair Trial
[12] Again, appellant argues that he was prejudiced by the purported
"threats" of the trial judge concerning the exercising of his rights
to a jury trial. The judge also
alerted the counsel as to the cost of a jury trial. Apparently appellant believes these
statements "discouraged" him from seeking a jury trial. However, the appellant received a
jury trial, and therefore there is no cognizable prejudice, regardless of
whether he was "discouraged" or not.
For the reasons stated above the judgment appealed from will be AFFIRMED.
It is so Ordered.
**********
* Honorable Alfred T. Goodwin,
** Honorable J. Clifford Wallace, United States Court of Appeal for the Ninth Circuit, serving by designation of the Secretary of the Interior.
[1] The Woodham court stated, quoting the Florida Supreme Court, that:
The limitation of the time for argument must of necessity, within reasonable bounds, rest in the discretion of the trial court. This is the general rule. The right may be waived, but, when requested, reasonable time must be allowed. The question to be determined is what is reasonable time, and this depends upon the facts and circumstances of the case.