Appeal from the Superior Court of the District of Columbia CTF-4635-09 (Hon. Marisa Demeo, Trial Judge)
The opinion of the court was delivered by: Thompson, Associate Judge:
Before THOMPSON and BECKWITH, Associate Judges, and REID, Senior Judge. Opinion for the court by Associate Judge THOMPSON.
Opinionconcurring in part and dissenting in part by Associate Judge BECKWITH at page 25.
Having been instructed that appellant Larry Taylor could be
convicted of Operating a Vehicle While Intoxicated ("OWI")*fn1
if the District of Columbia (the "District") proved beyond a
reasonable doubt that he was impaired by alcohol "in any way or at some level" while operating a motor vehicle,
a Superior Court jury found him guilty of that charged offense. The
jury was unable, however, to reach a verdict on the additional charge
of Driving Under the Influence ("DUI").*fn2 In this
appeal, appellant argues that OWI and DUI are "alternative offenses
for the same conduct,"and that the trial judge therefore committed
reversible error (1) in instructing the jury that OWI "is a lesser
standard," and (2) in failing to instruct them that, to convict
appellant of OWI, they must find that he was impaired to "an
appreciable degree," the same instruction the court gave as to DUI.
Although we agree that the trial court erred in instructing the jury
that the threshold of impairment required for an OWI conviction is
less than the threshold of impairment required for a DUI conviction,
we conclude in light of the jury's particular questions, the evidence
presented, and the entire charge to the jury, that the instructional
errors were harmless beyond a reasonable doubt as to the OWI
conviction. We therefore affirm the judgment of conviction.
At appellant's trial, Metropolitan Police Detective Joseph Diliberto testified that, at around 9:00 P.M. on February 25, 2009, he was patrolling in his police cruiser when he heard and then responded to a dispatcher's lookout for a dark-colored van that was driving recklessly. Around the 800 block of Mississippi Avenue, S.E., a residential area, Detective Diliberto spotted a van matching the description, and began following it. The van was traveling within the speed limit and, although not weaving or drifting, was driving "on the wrong side of the roadway" for approximately five to six blocks. Detective Diliberto turned on his lights and siren, and the van pulled over.
Other officers arrived on the scene, and, along with Detective Diliberto, they approached the van and driver. Detective Diliberto testified that appellant was sitting in the driver's seat and that he was the sole occupant in the van.*fn3 As the detective approached the van, he smelled "a strong odor of beer." He testified that when he observed the appellant, "something obviously wasn't right." Appellant "wasn't responding to a lot of the questions immediately, or at all," and the detective had difficulty "mak[ing] sense of what he did say."*fn4 Appellant also "had trouble focusing on [the detective]," and "[h]is eyes were all watery." The officers found an opened beer can and beer bottle, both partially empty, in the center console of the van. When Detective Diliberto asked appellant to step out of the van, he noticed "right away that [appellant] was unsure of how he was standing and that his balance was off, . . . to the point where we had to grab onto him because I was afraid he was going to fall down and hurt himself." The detective testified that it was "obvious that there was some impairment there." Some of the other officers assisted in holding appellant upright. While one of the officers was holding him upright, appellant began urinating in his pants. Detective Diliberto also noticed that appellant's "pupils would involuntarily jerk, which is a resting nystagmus."*fn5
Detective Diliberto testified that he did not administer the standard field sobriety test because he was afraid that, if left unassisted, appellant might fall down and injure himself, and that he did not perform the horizontal gaze nystagmus test because appellant was having difficulty focusing. Concluding that appellant "could not operate a motor vehicle," Detective Diliberto placed him under arrest. On cross-examination, the detective acknowledged that during the "stopping sequence alone," i.e., during the time when appellant pulled over and stopped his car in response to the police lights and siren, the detective saw nothing to indicate that appellant was impaired.
In instructing the jury on the elements of DUI at the close of the evidence, the trial court told them that the District was required to prove beyond a reasonable doubt that appellant operated a motor vehicle under the influence of alcohol, and that "[o]ne is under the influence of alcohol when one's ability to operate a motor vehicle is impaired to the slightest degree."*fn6 Regarding OWI, the court instructed the jury that it is "a separate offense from driving under the influence. Under this offense, you must consider whether the District of Columbia has proved beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired in any way. . . . One is under the influence when one's ability . . . to operate a motor vehicle is impaired in any way."
The following day, the trial judge explained to counsel that he had thought more about the instructions already given and believed he would be "hard pressed" to explain to the jury, if they asked, the difference between impairment "to the slightest degree" (the term the court had used in instructing the jury on DUI) and "any" degree of impairment (the term the court had used in instructing the jury on OWI). The trial judge also told counsel that he had reread the relevant case law, in particular Poulnot v. District of Columbia, 608 A.2d 134 (D.C. 1992), and that he would re-instruct the jury with respect to DUI, "giv[ing] the same exact instruction but substitut[ing] ‗appreciable' for ‗slightest.'" The court then re-instructed the jury that for purposes of the DUI statute, "[o]ne is under the influence of alcohol when one's ability to operate a motor vehicle [is] impaired to an appreciable degree. Thus, the term ‗under the influence' means that the person charged must have drunk alcohol so that the effect of the alcohol disturbed or interfered with his normal mental or physical faculties to an appreciable degree."
After the jurors began deliberating, they sent a note to the trial judge asking the court to "explain the term ‗to an appreciable degree' which is used in the last sentence of the second paragraph of the instruction." After a discussion with counsel, the court sent a note to the jury instructing them that "‗[t]o an appreciable degree' means enough to be perceived or estimated; noticeable" (a definition that the court explained to counsel it took from Webster's Dictionary). *fn7 ). Less than an hour later, the jury sent a second note, asking, "Will you please further explain the differences between driving while under the influence of alcohol and operating a motor vehicle while impaired?" Before the court had had an opportunity to respond to the second note, it received a third note from the jury asking,"If we find the Defendant operated a motor vehicle in the District of Columbia while he was impaired by alcohol, must we find that he was guilty of driving under the influence of alcohol?" With the agreement of counsel, the court sent a "No" response to the third note. Regarding the second note, the court said that it would respond by adding the word "considerable" to the definition of "appreciable," observing that it is "perhaps even a stronger word" that "implies something greater than" the phrase "enough to be perceived" connotes. The court decided to give that instruction over the District's objection that use of the word "considerable" would "rais[e] the burden on DUI" and "add a burden upon the Government that was not there." The court sent the jury a written instruction that told them that "DUI requires that one is under the influence of alcohol when one's ability to operate a motor vehicle was impaired to an appreciable degree, that is, enough to be perceived or estimated, noticeable or considerable." By contrast, the court's note instructed, "to show that somebody is impaired [for purposes of the OWI statute], it doesn't have to be an appreciable degree, just to be impaired in any way, or at some level."
Shortly after receiving that instruction from the court, the jury sent a fourth note in which it asked, "With respect to the definition you have given us of ‗appreciable degree' as used in the jury instructions concerning driving under the influence, does ‗appreciable degree' mean merely noticeable or must it be something more than that?" The court, in its final instruction to the jury, answered their inquiry as follows:
[T]here is a difference between DUI, driving under the influence, and OWI, and the difference is that DUI requires that one is under the influence of alcohol when one's ability to operate a motor vehicle was impaired to what we call an appreciable degree or, to state it another way, that is enough to be perceived or estimated, noticeable or considerable. And that's the difference from OWI, which is a lesser standard. To show that somebody is impaired for OWI, it doesn't have to be an appreciable degree or a considerable degree or a noticeable degree. And these words are pretty much interchangeable. And that's my point. I have a stated [sic] "appreciable" several different ways. In my view, they're basically interchangeable. . . .
So for OWI, it doesn't have to show that somebody is impaired -- it doesn't have to be an appreciable degree or a considerable degree or a noticeable degree, just to be impaired in any way or at some level.
So I realize I perhaps haven't precisely answered your question, but I have tried in both phraseologies to use alternative words to communicate ...